JUDGMENT Hon’ble V.K. Shukla, J.—Present writ petition has been filed by petitioner questioning the validity of the decision dated 9.3.2010 passed by Additional District Judge, (Court Room No. 1) Etah in Election Petition No. 5 of 2006 (Zahir Ahmad v. Kanchan Gupta Aranga and others) Annexure-24 to the writ petition proceeding to set aside the re-polling held on 5.11.2006 in respect of 17 booths and further direction to District Election Officer to get counting done of the ballots of said 17 booths qua the polling which took place on 28.10.2006 and apprise result of the same to Election Tribunal so that final order could be passed. 2. Brief background of the case is that State Election Commission (Local Bodies U.P.) has issued notification of the Election of Nagar Palika Parishad Etah for the post of Chairman and 25 ward members and declared the election schedule wherein the dates fixed from 3.10.2006 to 6.10.2006 were for nomination, scrutiny and withdrawal of the nomination and the date for polling was fixed for 28.10.2006 and the date of counting was fixed for 06.11.2006. In the said elections so declared petitioner and respondent Nos. 4 to 12 were all candidates for the post of Chairman Nagar Palika Parishad Etah. In the said election petitioner was candidate of Bhartiya Janta Party and her election symbol was ‘Lotus’ and respondent No. 4 was the candidate of Samajwadi Party and his election symbol was ‘Cycle’ and similarly different election symbol were allocated to respondent Nos. 5 to 13. Date of polling was 28.10.2006 and petitioner’s contention has been that at the said point of time Samajwadi Party was in power and various polling booths were captured and the local administration was under pressure and on account of this fair polling was disturbed booth capturing was done and ballots were looted. 5 to 13. Date of polling was 28.10.2006 and petitioner’s contention has been that at the said point of time Samajwadi Party was in power and various polling booths were captured and the local administration was under pressure and on account of this fair polling was disturbed booth capturing was done and ballots were looted. Petitioner’s contention is that though booth capturing in favour Zaheer Ahmad had taken place at various booths but several Presiding Officers did not make complaint due to undue influence of ruling party candidate, but some of them had the courage and reported to their superior authorities with recommendation of re poll, out of which the Presiding Officer of polling station No. 1 ‘Printis Girls Inter College’ has given recommendation to the election officer, Etah on 28.10.2006 complaining of antisocial elements entering in his room, snatching the counter foils of the ballots namely 401 to 450 and tearing other paper which effected the polling. On the complaint made by petitioner, qua booth capturing, report was called for and diaries maintained were perused and therein except for Booth No. 3 of Printis Girls Inter College polling had been reported to be peaceful, in such a situation Returning Officer made recommendation for re polling at Booth No. 3, Room No. 3 of Printis Girls Inter College on 28.10.2006. The Sector Magistrate, Sector-3 Dr. Kuldep Dwivedi has submitted his report and recommended for repoll for two polling stations, Prinitis Boys Primary School, Room No. 1 Ward No. 10 and Prinits Girls College, Room No. 1. On said report being submitted, Returning Officer also made his recommendation. Petitioner has stated that recommendation and report sent on 28.10.2006 clearly mentioned that ballots have snacked out and secrecy of election has been effected. Petitioner submits that Presiding Officer also recommended for repoll of Booth No. 28 vide report dated 28.10.2006 mentioning therein that ballot had been snatched and torn up, which effected the election, as such re polling should take place. Petitioner submits that Presiding Officer also recommended for repoll of Booth No. 28 vide report dated 28.10.2006 mentioning therein that ballot had been snatched and torn up, which effected the election, as such re polling should take place. Petitioner stated that on complaint being made inquiry was got conducted by Sub-Divisional Magistrate Etah and Zonal Magistrate respectively and then based on the report submitted, recommendation was made in respect of Ward No. 1, Printis Girls Inter College, Etah Booth No. 3 and Poling Station No. 28, Printis Primary School for fresh poll by the District Election Officer and the letter/recommendation dated 28.10.2006 was accordingly sent to Observer of the State Election Commission. Petitioner’s contention has been that on the said recommendation made for repoll, the State Election Commission has taken cognizance and called for the details of the interruption and obstructions of the election proceedings upon the polling Stations and made the query of such polling station on which the poll was more then 75%. District Election Officer submitted its report on 30.10.2006 through Fax to the State Election Commission and sent the list of poling station Nos. 3, 6, 17, 28, 29, 30, 38, 69 and 71 wherein voting percentage was more than 75%. State Election Commission thereafter on 31.10.2006 directed for conduct for re-polling in respect of polling Stations 3, 6, 17, 28, 29, 30, 38 69 and 71 of the Nagar Palika Parishad, Etah. State Election Commission again sent communication dated 1.11.2006 deciding fresh poll for polling Stations 19, 20, 32, 33, 51, 52 and 53 to achieve the goal of fair poll. After said order has been passed fresh elections were notified and held on 5.11.2006 and thereafter counting of votes started from 6.11.2006 and therein petitioner got 18,575 votes and was declared elected whereas Zaheer Ahmad got 16,185 votes and thus, margin of victory was 2390 votes. Election of petitioner was questioned by Zaheer Ahmad by preferring Election Petition No. 5 of 2006 (Zaheer Ahmad v. Kanchan Gupta ‘Aranga’) under Section 43(3)/19/20 of U.P. Municipalities Act, before the Court of District Judge, Etah. Election of petitioner was questioned by Zaheer Ahmad by preferring Election Petition No. 5 of 2006 (Zaheer Ahmad v. Kanchan Gupta ‘Aranga’) under Section 43(3)/19/20 of U.P. Municipalities Act, before the Court of District Judge, Etah. In the said election petition from the side of Zaheer Ahmad, election petitioner filed his own affidavit on 7.5.2007 and affidavits of Riyaj Mohammad, Afsar, Dilshad Nirale, Bhagbaan Singh, Sumit Kumar, Manoj Kumar, Charan Singh, Chand Miyan, Sabir, Balvir Singh, Akram Khan, Siraj Mohammad, Naseem Ahmad, Sharif, Sudhir Kumar, Jitendra Kumar, Mohammad Umar had also been filed thereafter. In support of the case of election petition following incumbents appeared namely Riyaj Mohammad, Afsar, Dilshad, Nirale, Bhagbaan Singh, Sumit Kumar, Manoj Kumar, Charan Singh, Chand Miyan, Sabir, Balvir Singh. From the side of petitioner written statement alongwith objection was filed and affidavit of following incumbents was been filed namely Sri Vimal Sharma s/o Late Satyabhan Sharma, Sudhir s/o Achal Singh, Pushpendra s/o Udai Vir Singh, Awdhesh Kumar s/o Gajraj Singh, Jinterndra Yadav s/o Rajvir Singh, Alok Mishra s/o Virendra Mishra, Rajeev Yadav s/o Ram Niwas Yadav. Petitioner had filed her own affidavit also. After evidence has been led from both the sides, thereafter Election Tribunal proceeded to decide the issues framed and issue No. 3 was to the effect, as to whether fresh polling which have been taken place on 5.11.2006 at 17 polling booths same was in contravention of provision as provided for under U.P. Urban Local Bodies Conduct of Election Orders, 2003 and if Yes, then what was its effect ? Election Tribunal thereafter has decided the said issue in the said election petition by directing that repolling held at 17 booths are illegal. District Election Officer has been further asked to get counting done of the ballots, in respect of 17 booths qua the polling which took place on 28.10.2006 and apprise the result of same to Election Tribunal so that final order could be passed. At this juncture present writ petition in question has been filed. 3. Adversary parties to the present litigation are petitioner and Zaheer Ahmad. Both the parties to the dispute have agreed that on the basis of material which are available on record present writ petition be heard and finally decided, as such with the consent of the adversary parties present writ petition is being heard and finally decided. 4. 3. Adversary parties to the present litigation are petitioner and Zaheer Ahmad. Both the parties to the dispute have agreed that on the basis of material which are available on record present writ petition be heard and finally decided, as such with the consent of the adversary parties present writ petition is being heard and finally decided. 4. Sri U.N.Sharma, Senior Advocate appearing with Sri S.P.S. Rathore, Advocate, contended with vehemence that in the present case Election Tribunal has totally misdirected itself on this aspect of the matter that State Election Commission has got full authority to maintain purity of the election and in such a situation once conscious decision has been taken by State Election Commission for re-polling wherein Zahir Ahmad, respondent No. 4 has participated without raising any objection whatsoever and after having lost in the election such plea was not at all open to him and further State Election Commission was fully justified in the facts of the case to ask for repolling for maintaining fairness and purity in election and coupled with this Election Tribunal has erred both on law and fact, while returning finding that on account of re polling in question result of election was materially affected for the reason that such finding is perverse based on speculation and not supported by any material, as such present writ petition deserves to be allowed. 5. Sri Shashi Nandan, Senior Advocate, assisted by Sri Arvind Kumar Singh II, Advocate contended that State Election Commission is bound by the provision as contained under U.P. Urban Local Bodies Conduct of Election Orders, 2003 and once pre-requisite term and condition for exercising the authority for repoll were not at all in existence, as such order of repoll could not have been given as has been done in the present case, as such Election Tribunal has rightly passed order disapproving the action of State Election Commission, and such repoll in question had materially affected the result of the election which was sustained from material evidence, available on record, in such a situation this Court should refuse to interfere with the said finding in exercise of its authority of judicial reviews and writ petition as it has been framed and drawn is liable to be dismissed. 6. 6. Sri P.K.Mishra, appearing for State Election Commission contended that fairness and purity of election is the paramount consideration which weighs with State Election Commission, and opportunity ought to have been afforded to State Election Commission to justify its action, before the Election Tribunal , and in the facts of case Election Commission without giving opportunity has formed its opinion, same as such cannot subscribed. 7. After respective arguments have been advanced, Constitutional provision and statutory provisions in respect of election of municipalities and other relevant provision are being looked into. 8. Under Part IX-A inserted by 74th Amendment Act 1992 w.e.f. 1.6.1993, Articles 243-Q, 243-Z, 243-ZA, 243-ZF, 243-ZG and under Part XV Article 324 of the Constitution of India, being relevant, are quoted below: PART IX A “ 243Q. Constitution of Municipalities.—(1) There shall be constituted in every State, (a) a Nagar Panchayat (by whatever name called) for a transitional area, that is to say, an area in transition from a rural area to an urban area (b) a Municipal Council for a smaller urban area; and (c) a Municipal Corporation for a larger urban area, in accordance with the provisions of this Part: Provided that a Municipality under this clause may not be constituted in such urban area or part thereof as the Governor may, having regard to the size of tile area and the municipal services being provided or proposed to be provided by an industrial establishment in that area and such other factors as he may deem fit, by public notification, specify to be an industrial township (2) In this article, a transitional area, a smaller urban area or a larger urban area means such area as the Governor may, having regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of employment in non agricultural activities, the economic importance or such other factors as he may deem fit, specify by public notification for the purposes of this Part Article 243-ZA- Election of the Municipalities.—(1) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Municipalities shall be vested in the State Election Commission referred to in article 243K. (2) Subject to provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Municipalities Article ZF- Continuance of existing laws and Municipalities.—Notwithstanding anything in this Part, any provision of any law relating to Municipalities in force in a State immediately before the commencement of the Constitution (Seventy-fourth Amendment) Act, 1992, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier: Provided that all Municipalities existing immediately before such commencement shall continue till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of that State or, in the case of State having a Legislative Council, by each House of the Legislature of that State. Article ZG- Bar to interference by Court in Electoral Matters.—Notwithstanding anything in this Constitution— (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 243-ZA shall not be called in question in any Court; (b) no election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by Legislature of a State. PART XV Article 324- Superintendence, direction and control of elections to be vested in an Election Commission.—(1) The superintendence, direction and control of the preparation of the electoral rolls for and the conduct of, all elections of parliament and to the Legislature of every State and of elections to the offices of President and Vice President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission). (2) The Election Commission shall consist of the Chief Election Commission and such number of other Election Commissions, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners, shall be subject to the provisions of any law may in that behalf by Parliament, by made by the President. (3) When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission. (4) Before each general election to the House of the People and to the Legislative Assembly of each State, and before the first general election and thereafter before each biennial election to the Legislative Council of each State having such Council, the President may also appoint after consultation with the Election Commission such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of the functions conferred on the Commission by Clause (1). (5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may be rule determine. Provide that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment. Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner. (6) The President, or the Governor of a State, shall when so requested by the Election Commission, make available to the Election Commissioner or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commissioner by Clause (1). 9. Constitutional provision quoted above would go to show that municipalities have been conferred constitutional status by Constitution 74th amendment w.e.f. 1.6.1993 and municipality has been defined under Clause (e) Article 243-P as an institution of self Government constituted under Article 243-Q. Article 243-Q deals with constitution of municipalities and same has to be constituted in accordance with the provision as provided under Part IX-A of the Constitution. Article 243-R, deals with composition of Municipalities; Article 243-S, deals with constitution and composition of Wards Committees, etc; Article 243-T, deals with the way and manner reservation of seats is to be dealt with; Article 243-U deals with duration of municipalities etc; Article 243-V deals with disqualifications for membership and Article 243-W deals with powers, authority, and responsibilities of Municipalities etc. Article 2430-X deals with power to impose tax , and funds of the municipalities and Article 243-Y deals with Finance Commission. Article 243-ZA deals with Elections to the municipalities and provides that the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Municipalities shall be vested in the State Election Commission referred to under Article 243-K. Sub-Clause (2) of Article 243-ZA provides that subject to provisions of this Constitution, the Legislature of a State may, by law make provision with respect to all matters relating to, or in connection with, elections to the Municipalities. Article 243-ZF deals with continuance of existing laws and Municipalities and Article 243-ZG provides that no election of any Municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by Legislature of a State. Article 324 deals with authority of Election Commission of India and said akin authority qua the election of Municipalities has been vested to the State Election Commission. 10. Relevant provision of U.P. Municipalities Act 1961 are being looked into. Section 13-B, Section 13-G and Sections 19, 20, 23 and 25 are being extracted below: Section 13-B-Superintendence etc. of the conduct of the elections.—(1) The superintendence, direction and control of the conduct of all elections to the municipalities shall be vested in the State Election Commission. (2) Subject to sub-section (1), the Chief Election Officer (Urban Local Bodies), referred to in sub-section (2-A) of Sect5ion 12-B shall supervise the conduct of all elections to the municipalities. Section 13-G-Order regarding conduct of elections.—In so far as provision with respect to any matter is not made by this Act, the State Election Commission, may, by order, make provision with respect to the following matters concerning conduct of elections, that is to say. Section 13-G-Order regarding conduct of elections.—In so far as provision with respect to any matter is not made by this Act, the State Election Commission, may, by order, make provision with respect to the following matters concerning conduct of elections, that is to say. (a) issue of notifications for general elections; (b) the appointment, powers and duties of Returning Officers, Assistant Returning Officer, Presiding Officers and Polling Officers and clerks’ (c) appointment of dates for nomination, scrutiny , withdrawal and polling; (d) the manner of presentation and the form of nomination paper, the requirements for a valid nomination, scrutiny of nominations and withdrawal of candidature; (e) appointment and duties of election agents, polling agents and counting agents; (f) procedure at general election including death of candidate before poll, procedure in contested and uncontested elections,(***). (g) identification of voters; (h) hours of polling. (i) adjournment of polls and fresh polls (j) —————— (k) —————— (L) —————— (m) —————— (n) —————— (o) —————— (p) —————— (q) generally on all matters relating to conduct of elections Section 19-Power to question municipal election by petition.—(1) The election of any person as a member of a (Municipality) may be questioned by an election petition on the ground) (a) that such person committed during or in respect of the election proceedings a corrupt practice as defined in Section 28; (b) that such person was declared to be elected by reason of this improper rejection or admission of one or more votes, or any other reason was not duly elected by a majority of lawful votes. (C) that such person was not qualified to be nominated as a candidate for election or that the nomination paper of the petitioner was improperly rejected. (2)The election of any person as a member of a (Municipality) shall not be questioned (3)(a) on the ground that the name of any person qualified to vote has been omitted from, or the name of any person not qualified to vote has been inserted in the electoral roll or rolls; (b) on the ground of any non-compliance with this Act or any rule, or of any mistake in the forms required thereby, or of any error irregularity or informality on the part of the officer or officers charged with carrying out this Act or any rules, unless such non-compliance, mistake, error, irregularity or informality has materially affected the result of the election. Section 20 Form and presentation of election petitions-(1) An election petition shall be presented within 30 days after the day of which the result of the election ought to be questioned is announced by the Returning Officer, and shall specify the ground or grounds on which the election of the respondent is questioned and shall contained a concise statement of the material facts on which the petitioner relies and set for the full particular of any corrupt practices that the petitioner alleges, including as full a statement fas possible of the names of the parties alleged to have committed such corrupt practices and the dates and place of the commission of each such practice. (2) The petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (V of 1908), for the verification of pleadings. (3) The petition may be presented by any candidate in whose favour votes have been recorded and who claims in the petition to be declared elected in the room of the person whose election is questioned or by ten or more electors of the municipality or by a person who claims that his nomination paper was improperly rejected. (4) The person whose election is questioned, and, where the petitioner claims that any other candidate should be declared elected in the room of such person, every unsuccessful candidate who is not a petitioner in the petition shall be made a respondent to the petition. (5) The petition shall be presented to the District Judge exercising jurisdiction in the area in which the municipality, to which the election petition relates, is situate; Provided that the petition shall not be entertained by the District Judge, unless it is accompanied by a treasury challan showing that the prescribed security has been deposited. (5) The petition shall be presented to the District Judge exercising jurisdiction in the area in which the municipality, to which the election petition relates, is situate; Provided that the petition shall not be entertained by the District Judge, unless it is accompanied by a treasury challan showing that the prescribed security has been deposited. Section 23 Procedure-Except so far as may be otherwise provided by this Act or by rule, the procedure provided in the Civil Procdure Code (Act V of 1908) in regard to suits, shall, so far as it is not inconsistent with this Act or any rule and so far it can be made applicable, followed in the hearing of election petitions : Provided that (a) two or more persons whose election is called in question may be made respondents to the same petition, and their cases may be tried at the same time, and any two or more election petitions may be heard together; but, so far as is consistent with such joint trial or hearing, the petition shall be deemed to be separate petition against each respondent; (b) the (District Judge ) shall not be required to record or have recorded the evidence in full, but shall make a memorandum of the evidence sufficient in its option for the purpose of deciding the case. (c) the (District Judge) may, at any stage of the proceedings, require the petitioner to give (***) further security for the payment of all costs incurred or likely to be incurred by any respondent; (d) the (District Judge) for the purpose of deciding any issue, shall only be bound to require the production of, or to receive so much evidence, oral or documentary, as it considers necessary. (e) during the hearing of the case the (District Judger) may refer a question of law to the High Court under Order XLVI of the First Schedule of the Code of Civil Procedure, 1908, but there shall be no appeal either on a question of law or fact, and no application in revision against or in respect of the decision of the (District Judge). (f) any person considering himself aggrieved by the decision may apply for review to the District Judge within thirty days from the date of the decision and the District Judge may thereupon review the decision on any point. (f) any person considering himself aggrieved by the decision may apply for review to the District Judge within thirty days from the date of the decision and the District Judge may thereupon review the decision on any point. Section 25 Finding of the District Judge.—(1) If the District Judge, after making such inquiry as it deems necessary, finds in respect of any person whose election is called in question by a petition, that his election was valid, it shall dismiss the petition as against such person and may award costs at its discretion and may also pass such order for return or forfeiture of the security or part thereof as he may deem fit. (2) If the District Judge finds that the election of any person was invalid, or that nomination paper of the petitioner was improperly rejected it shall either. (a) declare a casual vacancy to have been created; or (2) declare another candidate to have been duly elected, whichever course appears, in the particular circumstances of the case, the more appropriate, and in either case may award costs at its discretion. 11. Provision as contained under Uttar Pradesh Municipalities Act 1916 would go to show that Section 13-B has been introduced under U.P. Act 12 of 1994 wherein authority of superintendence of conduct of the elections has been vested with the State Election Commission. Section 13-G confers authority on State Election Commission to issue order in the matter concerning conduct of election in so far as provision with respect of any matter is not made under Municipalities Act, and therein State Election Commission has been authorized to issue order concerning adjournment of poll as well as qua fresh poll and generally on all matter relating to conduct of election. Section 19 in term of constitutional mandate of Article 243 ZG (b) that election has to be challenged before Election Tribunal provides for filing of election petition and also provides for the ground on which said election can be questioned. Section 19 is in two part. First part of sub-section (1) of Section 19 gives right to incumbent to question election of any person as a member of a municipality by way of election petition on the ground mentioned in Section 19 (i)(a), (b) and (c). Section 19 is in two part. First part of sub-section (1) of Section 19 gives right to incumbent to question election of any person as a member of a municipality by way of election petition on the ground mentioned in Section 19 (i)(a), (b) and (c). The grounds which are mentioned under Section 19 (a) (b) (c), in case such grounds are established then requisite orders can be passed under Section 25 of the Act and it is not all further required to be established that existence of said ground has materially effected the result of election. Said grounds in itself if they are in existence, enough to vitiate the purity and fairness of election and the Election Tribunal is free to set aside the election whereas on the other hand Section 19(2) is couched in negative language by providing that election of any person as a member of municipality shall not be questioned on the grounds mentioned in Section 19 (2) clause (a) & (b). On existence of said ground mentioned in Clause (a) and (b) of sub-section 2 of Section 19 election cannot be questioned except for the situation, qua the grounds mentioned in clause (b) of Sub-section (2) of Section 19 even if said grounds are in existence same cannot be made foundation and basis for non-suiting the election unless and until further exercise is carried out to find out that same has materially effected the result of election. Even if first part stands fulfilled i.e.. non-compliance of Act or any rule or of any mistake in the forms required thereby or of any error, irregularity or informality on part of the officer charged with carrying out the Act & the Rules unless such mistake, error, irregularities and informality has materially affected the result of the election, no relief can be accorded to the election petitioner. Election petition has to be presented in the formate as mentioned in Section 20 of the Act, 1916 and the manner prescribed therein. Section 23 deals with procedure and Section 25 deals with finding that District Judge has to return after making such inquiry as it deems necessary. 12. At this stage, further ancillary provision dealing with election is also being looked into. Section 23 deals with procedure and Section 25 deals with finding that District Judge has to return after making such inquiry as it deems necessary. 12. At this stage, further ancillary provision dealing with election is also being looked into. State Election Commission in exercise of authority vested under Section 13 (G) and Section 43-C of U.P. Municipalities Act has issued order, known as U.P. Urban Local Bodies Conduct of Election Orders, 2003 which deals with Administrative Machinery for the conduct of elections, Under Chapter 2 providing for District Magistrate to exercise and supervise all work in the conduct of elections under supervision of State Election Commission and appointment of Returning Officer, Assistant Returning Officer, Polling Station, Presiding Officer, Polling Officer. Chapter -3 deals with general conditions in respect of certificate of clearance of arrears and in respect of appointment of election agent, polling agent and counting agent. Chapter 4 deals with place, time and notification of election. Chapter 5 deals with nomination of candidates and Chapter 6 deals with arrangement at polling station, adjournment of poll in an emergency, disposal of ballot boxes etc on adjournment of poll, procedure on re-commencement of adjournment poll and fresh poll in the case of destruction etc of ballot boxes has been provided for. Relevant extract of said provision as contained in paragraphs 54, 55, 56 and 57 are being extracted below: 54. Adjournment of poll in an emergency.—(1) If at as election the proceedings at any polling station are interrupted or obstructed by any riot or violence or if it is not possible to take the poll on account of any natural calamity, or any other sufficient cause, the Presiding Officer for such polling station shall announce an adjournment of the poll to a date to be notified later and where the poll is so adjourned, the Presiding Officer shall forthwith inform the Returning Officer concerned. (2) Whenever a poll is adjourned under sub-para (1) the Returning Officer shall immediately report the circumstances to the District Magistrate who shall immediately report to the Commission the circumstances for the adjournment of the poll and the poll shall recommence in accordance with the direction of the Commission. 54. Disposal of ballot boxes etc. (2) Whenever a poll is adjourned under sub-para (1) the Returning Officer shall immediately report the circumstances to the District Magistrate who shall immediately report to the Commission the circumstances for the adjournment of the poll and the poll shall recommence in accordance with the direction of the Commission. 54. Disposal of ballot boxes etc. on adjournment of poll.—On the poll being adjourned under para 54, the ballot boxes and other materials relating to the poll so adjourned shall, subject to the directions of the Commission, be sealed and kept in safe custody of the Returning Officer. 56. Procedure on recommencement of adjourned poll.—(1) If poll is adjourned under Para 54 and the poll there is recommenced, the electors, who have already voted at the poll so adjourned shall not be allowed to vote again. (2) When an adjourned poll is recommenced at a polling station, the ballot boxes, which have already been used at the poll before its adjournment and have been sealed and delivered to the Returning Officer after the adjournment shall not be used, but new ballot boxes shall be used and the procedure laid down in paras 34 and 36 shall be followed. (3) If poll is to recommence at a polling station, the Returning Officer shall deliver to the Presiding Officer of the polling station at which such adjourned poll is to recommence, the sealed packets of the following material which were received by the Returning Officer from the Presiding Officer of the polling station at which the poll was adjourned. (a) the unused ballot papers, (b) the marked copy of the electoral roll, (c) the list of tendered votes; and (d) the list of challenged votes. (4) The Presiding Officer shall, before the commencement of the poll, open, in the presence of any candidate or his election agent or polling agent who may be present at the polling station the sealed packets received by him under sub-para (3). 57. Fresh poll in the case of destruction etc. of ballot boxes.—If at any election any election any ballot box is unlawfully taken out of the custody of the Returning Officer or any Presiding Officer or is in any way tampered with, or is either accidentally or intentionally destroyed or lost the polling at the polling station to which such ballot box relates, shall be void. of ballot boxes.—If at any election any election any ballot box is unlawfully taken out of the custody of the Returning Officer or any Presiding Officer or is in any way tampered with, or is either accidentally or intentionally destroyed or lost the polling at the polling station to which such ballot box relates, shall be void. (2) Whenever the polling at a polling station shall become void under sub-para (1), the Returning Officer shall, as soon as practicable after the act or event referred to in sub- para (1) has come to his knowledge, report the matter to the District Magistrate who shall forthwith report the matter to the Commission and fresh poll shall be taken in accordance with the directions of the Commission. (3) In every such case as aforesaid the Presiding Officer shall take a fresh poll and the provisions of this order shall apply to every such poll as they apply to the original poll. “ 13. After all these provisions have been noted at the very outset as here re polling has been done at the instance of State Election Commission, the authority of State Election Commission which is akin to the authority of Election Commission of India is being looked into. 14. Under Article 324 of the Constitution of India, Election Commission of India has been vested with the authority of superintendence, direction and control of the preparation of the electoral rolls for and the conduct of all elections of Parliament and to the Legislature of every State and of elections to the offices of President and Vice President held under this Constitution has also been vested in Election Commission. 15. Authority of Election Commission, under Article 324 of Constitution of India has been subject-matter of consideration by Hon’ble Apex Court. Hon’ble Apex Court in the case of Mohinder Singh Gill (supra) AIR 1978 SC 851 , wherein order of countermanding was passed, concluded that Election Commission in our democratic scheme is a central figure and a high functionary, and discretion vested in it will ordinarily be used wisely, not rashly. Election Commission has power to direct re-poll of a particular polling. Constitution contemplates free and fair election and vests comprehensive responsibilities of superintendence, direction and control of the conduct of elections in the Election Commission. This responsibility may cover powers, duties and functions of many sorts, administrative or other depending on the circumstances. Election Commission has power to direct re-poll of a particular polling. Constitution contemplates free and fair election and vests comprehensive responsibilities of superintendence, direction and control of the conduct of elections in the Election Commission. This responsibility may cover powers, duties and functions of many sorts, administrative or other depending on the circumstances. The avowed object is to confer the Commission with the authority to push forward free and fair election with expedition and fairness imports in itself that no wrong doer candidate benefits by his own wrong. Relevant extract of the said judgment contained in paragraphs 60, 90, 91 and 93 are being quoted below: “60. Nobody will deny that the Election Commission in our democratic scheme is a central figure and a high functionary. Discretion vested in him will ordinarily be used wisely, not rashly, although to echo Lord Camden. Wide discretion is fraught with tyrannical potential even in high personages, absent legal norms and institutional checks, and relaxation of legal canalisation on generous ‘VIP’ assumptions may boomerang. Natural justice is confused in certain aspects, especially in relation to the fourfold exceptions but forward by the respondents. 90. Having regard to statutory setting and comprehensive jurisdiction of the Election Court we are satisfied that it is within its powers to direct a re-poll of particular Polling Stations to be conducted by the specialized agency under the Election Commission and report the results and ballots to the Court. Even a re-poll of postal ballots, since those names are known can be ordered taking case to preserve the secrecy of the vote. The Court may, if necessary, after setting aside the election of R. 3(if there are good grounds therefor) keep the case pending, issue directions for getting available votes, order recount and or partial re-poll, keep the election petition pending and pass final order holding the appellant elected if - only if - valid grounds are established. Such being the wide ranging scope of implied powers we are in agreement with the learned Additional Solicitor General that all the reliefs the appellant claims are within the Court’s powers to grant and Sri Rao’s alarm is unfounded. 91 Diffusion, even more elaborate discussion, tends to blur the precision of the conclusion i a judgment and so it is meet that we synopsize the formulations. 91 Diffusion, even more elaborate discussion, tends to blur the precision of the conclusion i a judgment and so it is meet that we synopsize the formulations. Of course, the condensed statement we make is for convenience, not for exclusion of the relevance or attenuation of the binding impact of the detailed argumentation. For this limited purpose, we set down our holdings: 1. (a) Article 329 (b) is a blanket ban on litigative challenges to electoral steps taken by the Election Commission and its officers for carrying forward the process of election to its culmination in the formal declaration of the result. (b) Election in this context, has a very wide connotation commencing from the Presidential notification calling upon the electorate to elect and culminating in the final declaration of the returned candidate. 2. (a) The Constitution contemplates a free and fair election and vests comprehensive responsibilities of superintendence, direction and control of the conduct of elections in the Election Commission . This responsibility may cover powers, duties and functions of many sorts, administrative or other depending on the circumstances. (b) Two limitations at least are laid on its plenary character in the exercise thereof. firstly, when Parliament or any State Legislature has made valid law relating to or in connection with elections, the commission, shall act in conformity with not in violation of, such provisions but where such law is silent Article 324 is reservoir or power to act for the avowed purpose of not divorced from pushing forward a free and fair election with expedition. Secondly, the Commission shall be responsible to the rule of law, act bona fide and be amenable to the norms of natural justice in so far as conformance of such cannons can reasonably and realistically be required of it as fairplay-in-action in a most important area of the constitutional order, viz. elections. fairness, does not import an obligation to see that no wrong does candidate benefits by his own wrong . to put the matter beyond doubt, natural justice enlivens and applies to the specific case of order for total re-poll, although not in full panoply but in flexible practicability. whether it has been complied with is left open for the Tribunal’s adjudication. 3. to put the matter beyond doubt, natural justice enlivens and applies to the specific case of order for total re-poll, although not in full panoply but in flexible practicability. whether it has been complied with is left open for the Tribunal’s adjudication. 3. The conspectus of provisions bearing on the subject of elections clearly expresses the rule that there is a remedy for every wrong done during the election in progress although it is postponed to the post election stage and procedure as prescribed in Article 329 (b) and 1951 Act. the election Tribunal has, under the various provisions of the Act, large enough powers to give relief to an injured candidate if he makes out a case and such processual amplitude of power extends to directions to the election Commission or other appropriate agency to hold a poll, to bring up the ballots or do other things necessary for fulfillment of the jurisdiction to undo illegality and injustice and do complete justice within the parameters set by the existing law. 93. We conclude stating that the bar of Article329 (b) is as wide as the door of S.100 and read with S. 98. the writ petition is dismissible but every relief (given factual proof) now prayed for in the pending election petition is within reach on this view of the law ubi jus ibi remedium is vindicated, election injustice is avoided and the constituency is allowed to speak effectvely. In the light of and conditioned by the law we have laid down, we dismiss the appeal. Where the dispute which spirals to this Court is calculated to get a clarification of the legal clauses in an area of national moment, the parties are the occasion by the people are the beneficiaries and so costs must not be visited on a particular person. Each party will bear his own costs.” 16. Thereafter in the case of Election Commission of India v. Ashok Kumar and others, (2000) 8 SCC 216 . Issue was in respect of the area of jurisdiction of High Court under Article 226 of the Constitution after commencement of election process. Each party will bear his own costs.” 16. Thereafter in the case of Election Commission of India v. Ashok Kumar and others, (2000) 8 SCC 216 . Issue was in respect of the area of jurisdiction of High Court under Article 226 of the Constitution after commencement of election process. Article 324 has been noted and it has been concluded that area of “superintendence, direction and control” have a wide connotation so as to include therein such powers which though not specifically provided but are necessary to be exercised for effectively accomplishing the task of holding the elections to their completion. The term “election” has been held to mean and include the entire process from the issue of notification to the declaration of the result. Two types of challenge has been noted, the first relating to proceedings which interfere with the progress of the election and the second which accelerate the completion of the election and acts in furtherance of an election. It has also been held that election disputes are not just private civil dispute between two parties and therein entire stake of constituency as a whole is involved and a conscientious approach with overriding consideration for welfare of the constituency and strengthening the democracy has to be kept in mind. 17. Hon’ble Apex Court again in the case of Union of India v. Association for Democratic Reforms, (2002) 5 SCC 305, has taken the view that purity of election is fundamental of democracy. Election Commission is empowered to issue direction in respect of candidates in question. Paragraph 46 of the aforesaid judgment being relevant is quoted below: “46. To sum up the legal and constitutional position which emerges from the aforesaid discussion, it can be stated that; 1. The jurisdiction of the Election Commission is wide enough to include all powers necessary for smooth conduct of elections and the word “elections” is used in a wide sense to include the entire process of election which consists of several stages and embraces many steps. 2. The limitation of plenary character of power is when Parliament or State legislature has made a valid law relating to or in connection with elections, the Commission is required to act in conformity with the said provisions In case where law is silent, Article 324 is a reservoir of the power to act for the avowed purpose of having free and fair election. The Constitution has taken care of leaving scope for exercise of residuary power by the Commission in its own right as a creature of the Constitution in the infinite variety of situations that may emerge from time to time in a large democracy, as every contingency could not be foreseen or anticipated by the enacted laws or the rules. By issuing necessary directions, the Commission can fill the vacuum till there is legislation on the subject. In Kanhaiya Lal Omar v. R.K. Trivedi, (1985) 4 SCC 628 , the Court construed the expression “superintendence, direction and control” in Article 324 (1) and held that a direction may mean an order issued to a particular individual or a precept which many may have to follow and it may be specific or a general order and such phrase should be construed liberally empowering the Election Commission to issue such orders. 3. The word “election” includes entire process of election which consists of several stages and it embraces many steps, some of which may have an important bearing on the process of choosing a candidate. Fair election contemplates disclosure by the candidate of his past including the assets held by him so as to give a proper choice to the candidate according to his thinking an opinion. As stated earlier, in Common Cause (A registered Society) v. Union of India, (1996) 2 SCC 752 , the Court dealt with a contention that elections in the country are fought with the help of money power which is gathered from black sources and once elected to power, it becomes easy to collect tons of black money, which is for retaining power and for re-election. If on an affidavit a candidate is required to disclose the assets held by him at the time of election, the voter can decide whether he could be re-elected even in case where he has collected tons of money. Presuming, as contended by the learned Senior counsel Mr. Ashwani Kumar, that this condition may not be much effective for breaking a vicious circle which has polluted the basic democracy in the country as the amount would be unaccounted. May be true, still this would have its own effect as a step-in-aid and votes may not elect law-breakers as law-makers and some flowers of democracy may blossom. 4. Ashwani Kumar, that this condition may not be much effective for breaking a vicious circle which has polluted the basic democracy in the country as the amount would be unaccounted. May be true, still this would have its own effect as a step-in-aid and votes may not elect law-breakers as law-makers and some flowers of democracy may blossom. 4. To maintain purity of elections and in particular to bring transparency in the process of election, the commission can ask the candidates about the expenditure incurred by the political parties and this transparency in the process of election would include transparency of a candidate who seeks election or re-election. In a democracy, the electoral process has a strategic role. The little man this country would have basic elementary right to know full particulars of a candidate who is to represent him in Parliament where laws to bind his liberty and property may be enacted. 5. The right to get information democracy is recognized all throughout and it is a natural right flowing from the concept of democracy. At this stage, we would refer to Article 19 91) (g) and (2) of the International Government on Civil and Political Rights, which is as under: “(1) Everyone shall have the right to hold opinions without interference, (2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 6. On cumulative reading of a plethora of decisions of this Court as referred to, it is clear that if the field meant for legislature and executive is left unoccupied detrimental to the public interest, this Court would have ample jurisdiction under Article 32 read with Articles 141and 142 of the Constitution to issue necessary directions to the executive to subserve public interest. 7. Under the Constitution, Article 19 (1) (a) provides for freedom of speech and expression. Voter’s speech of expression in case of election would include casting of votes, that is to say voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is a must. 7. Under the Constitution, Article 19 (1) (a) provides for freedom of speech and expression. Voter’s speech of expression in case of election would include casting of votes, that is to say voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is a must. Voter’s (little man-citizen’s) right to know antecedents including criminal past of his candidate contesting election for MP or MLA is much more fundamental and basic for survival of democracy. The little man may think over before making his choice of electing law breakers as law makers.” 18. Hon’ble Apex Court, in the case of Election Commission In Re Special Reference No. 1 of 2002, 2002 (8) SCC 237 has considered the background in which Election Commission was set up, and the duties and functions of Election Commission, and that conducting of election, is the sole responsibility of Election Commission and holding periodical, free and fair elections are part of basic structure of our Constitution. Fixing schedule for elections either for the House of the People or Legislative Assembly is in the exclusive domain of Election Commission. Relevant paragraphs 76,77,78,80 and 81 are being quoted below: 76. It is in light of the aforesaid discussion, Article 324 was enacted and the superintendence, direction, control and conduct of election was no more left in the hands of the Executive but was entrusted to an autonomous Constitutional Authority i.e.. the Election Commission. It appears that since the entire matter relating to the elections was entrusted to the Election Commission, it was found to be a matter of no consequence to provide any period of limitation for holding fresh election for constituting new Legislative Assembly in the event of premature dissolution. This was deliberate and conscious decision. However, care was taken not to leave the entire matter in the hands of the Election Commission and, therefore, under Article 327 read with Entry 72 of List I of VIIth Schedule of the Constitution, Parliament was given power subject to the provisions of the Constitution to make provisions with respect to matters relating to or in connection with the election of either House of Parliament or State Legislature, as the case may be, including preparation of electoral roll. For the States also, under Article 328 read with Entry 37 of List II, the Legislature was empowered to make provisions subject to the provisions of the Constitution with respect to matters relating to or in connection with election of either House of Parliament or State Legislature, including preparation of electoral roll. Thus, the Parliament was empowered to make law as regards matters relating to conduct of election of either Parliament or State Legislature, without affecting the plenary powers of the Election Commission. In this view of the matter, the general power of superintendence, direction, control and conduct of election although vested in the Election Commission under Article 324(1), yet it is subject to any law either made by the Parliament or State Legislature, as the case may be which is also subject to the provisions of the Constitution. The word ‘election’ has been interpreted to include all the steps necessary for holding election. In M.S. Gill v. Chief Election Commissioner (supra), A.C. Jose v. Sivan Pillai @page-SC116 and others, (1984) 2 SCC 656 and Kanhaiya Lal Omar v. R. K. Trivedi and others, (1985) 4 SCC 628 , it has been consistently held that Article 324 operates in the area left unoccupied by legislation and the words ‘superintendence’, ‘control’, ‘direction’ as well as ‘conduct of all elections’ are the broadest of the terms. Therefore, it is no more in doubt that the power of superintendence, direction and control are subject to law made by either Parliament or by the State Legislature, as the case may provided the same does not encroach upon the plenary powers of the Election Commission under Article 324. 77. We find that the Representation of the People Act, 1951 also has not provided any period of limitation for holding election for constituting fresh Assembly election in the event of premature dissolution of former Assembly. In this context, concerns were expressed by learned Counsel for one of the national political parties and one of the States that in the absence of any period provided either in the Constitution or in the Representation of the People Act, the Election Commission may not hold election at all and in that event it would be the end of democracy. It is no doubt true that democracy is a part of the basic structure of the Constitution and periodical, free and fair election in substratum of democracy. It is no doubt true that democracy is a part of the basic structure of the Constitution and periodical, free and fair election in substratum of democracy. If there is no free and fair periodic election, it is end of democracy and the same was recognized in M.S. Gill v. Chief Election Commissioner, (1978) 1 SCC 404 thus : 1978 (1) SCC 405 : AIR 1978 SC 851 (Para 12) 12.”A free and fair election based on universal adult franchise is the basic, the regulatory procedures vis-a-vis the repositories of functions and the distribution of the legislative, executive and judicative roles in the total scheme, directed towards the holding of free elections, are the specifics. The super authority is the Election Commission, the kingpin is the Returning Officer, the minions are the Presiding Officers in the Polling Stations and the electoral engineering is in conformity with the elaborate legislative provision.” 78. Similar concern was raised in the case of A.C. Jose v. Sivan Pillai and others, (1984) 2 SCC 656 . In that case, it was argued that if the Commission is armed with unlimited arbitrary powers and if it happens that the persons manning the Commission shares or is wedded to a particular ideology, he could by giving odd directions cause a political havoc or bring about a Constitutional crisis, setting at naught the integrity and independence of the electoral process, so important and indispensable to the democratic system. Similar apprehension was also voiced in M.S. Gill v. Chief Election Commissioner (supra). The aforesaid concern was met by this Court by observing that in case such a situation ever arises, the Judiciary which is a watchdog to see that constitutional provisions are upheld would step in and that is enough safeguard for preserving democracy in the country. AIR 1984 SC 921 80. So far as the framing of the schedule or calendar for election of the Legislative Assembly is concerned, the same is in the exclusive domain of the Election Commission, which is not subject to any law framed by the Parliament. The Parliament is empowered to frame law as regards conduct of elections but conducting elections is the sole responsibility of the Election Commission. As a matter of law, the plenary powers of the Election Commission cannot be taken away by law framed by Parliament. If Parliament makes any such law, it would be repugnant to Article 324. The Parliament is empowered to frame law as regards conduct of elections but conducting elections is the sole responsibility of the Election Commission. As a matter of law, the plenary powers of the Election Commission cannot be taken away by law framed by Parliament. If Parliament makes any such law, it would be repugnant to Article 324. Holding periodic, free and fair elections by the Election Commission are part of the basic structure and the same was reiterated in Indira Nehru Gandhi v. Raj Narain, (1975) Suppl 1 SCC 1, which run as under : AIR 1975 SC 2299 . “198. This Court in the case of Kesavananda Bharati (supra) held by majority that the power of amendment of the Constitution contained in Article 368 does not permit altering the basic structure of the Constitution. All the seven Judges who constituted the majority were also agreed that democratic set-up was part of the basic structure of the Constitution. Democracy postulates that there should be periodical elections, so that people may be in a position either to re-elect the old representatives or, if they so choose, to change the representatives and elect in their place other representatives. Democracy further contemplates that the elections should be free and fair so that the voters may be in a position to vote for candidates of their choice. Democracy can indeed function only upon the faith that elections are free and fair and not rigged and manipulated, that they are effective instruments of ascertaining popular will both in reality and form and are not mere rituals calculated to generate illusion of defence to mass opinion......” 81. The same is also evident from Sections 14 and 15 of the Representation of People Act, 1951 which provide that the President or the Governor shall fix the date or dates for holding elections on the recommendation of the Election Commission. It is, therefore, manifest that fixing schedule for elections either for the House of People or Legislative Assembly is in the exclusive domain of the Election Commission (3) Application of Article 356' Word “election” used includes entire process of election consisting of several stages and re-polling is also integral part of the election process in the direction of free and fair election, once opinion is formed that on the earlier occasion election held was not free and fair election. State Election Commission is empowered to direct for repolling, once opinion is formed that on earlier occasion election held has not at all been free and fair exercising authority of superintendence conferred by Article 243-ZA of Constitution of India and additionally conferred under Section 13-B of U.P. Municipalities Act by State Legislature also which clearly provides that superintendence, direction, and control of the conduct of all elections to the municipalities shall be vested in the State Election Commission. Thus, here superintendence mandate is backed up by constitutional as well statutory provision conferring authority on the State Election Commission of power of superintendence, direction and control and conduct of Municipal elections. 19. Hon’ble Apex Court in the case of Kishan Singh Tomar v. Municipal Corporation City of Ahmadabad, AIR 2007 SC 269 , has taken the view that power of State Election Commission are akin to the authority of Election Commission of India, both stand at par in the matter of holding election though at the different level and object of both the bodies i.e.. Election Commission of India and State Election Commission is to ensure free and fair election; Paramount consideration being purity of the election. 20. On the touchstone of the provisions and judgments quoted above it is well settled and clear that the word “election” used in wide sense includes entire process of election which consists of several stages and embraces many steps. The term “Election” has been held to mean and include the entire process from the issue of notification to the declaration of result. Holding of free and fair periodical election is bounden duty of Election Commission. In furtherance of fulfilment of said objective i.e.. holding of free and fair elections, Election Commission is entitled to take all necessary steps. The word “ superintendence”, “control” “direction” as well as “conduct of all elections” are the broadest of terms. There is no limitation on plenary character of power, vested in Election Commission, however when Election Commission itself has made law relating to or in connection with the elections, the Election Commission is to act in conformity with said provisions. In case where law is silent and piquant situation has arisen, Article 243-ZA of Constitution read with Section 13-B of Municipalities Act is a reservoir of the power to act for the avowed purpose of having free and fair election. In case where law is silent and piquant situation has arisen, Article 243-ZA of Constitution read with Section 13-B of Municipalities Act is a reservoir of the power to act for the avowed purpose of having free and fair election. The Constitution as well as State Legislature has taken care of leaving scope for exercise of residuary power by the Commission in its own right as a creature of the Constitution in the infinite variety of situations that may emerge from time to time in a large democracy, as every contingency could not be foreseen or anticipated by the enacted laws or the rules. 21. Scheme of things provided for clearly reflects that State Election Commission has to ensure free and fair elections so that democracy is reflected in its best form. State Election Commission thus as acts regulator to ensure free and fair election and as to whether election have been held in free and fair manner, the Election Tribunal has been conferred all authority to decide the election dispute on the ground provided for. The exercise of authority by State Election Commission, in connection with elections has to be bona fide pushing forward for free and fair election. If contrary averments are being mentioned, terming the action of State Election Commission to be arbitrary, unreasonable, resulting in materially effecting the result of election, then in such situation, for the said wrong , remedy had been provided for under constitutional scheme, Article 243 2G and under statutory scheme by filing of election petition under Section 19 of U.P. Municipalities Act. The election Tribunal under the various provision of the Act, has large enough power to give relief to the injured candidate, inclusive of power to declare another candidate elected , in the particular circumstances of the case. State Election Commission thus act as a regulator of free and fair elections, whereas election Tribunal Acts as an arbiter, when election of returned candidate is challenged on the ground available. 22. Election Tribunal has answered in positive that Election Tribunal has got authority to examine the action of State Election Commission. State Election Commission thus act as a regulator of free and fair elections, whereas election Tribunal Acts as an arbiter, when election of returned candidate is challenged on the ground available. 22. Election Tribunal has answered in positive that Election Tribunal has got authority to examine the action of State Election Commission. There is no doubt about this proposition, inasmuch as once Election process has commenced and election comes to an end by way of declaration of result then whatever action is taken from the date of commencement of election to polling to re-polling till the declaration of result, all are integral part of election process and State Election Commission is charged with the duty of ensuring free and fair election in exercise of its authority under Article 243-ZA of Constitution of India read with Section 13-B of the Act then in such situation defeated candidate has a right to challenge even the action of State Election Commission on the ground of non-compliance with the provision of the Act/Rule or on the ground of any error, irregularity or informality on the part of officer or officers charged with carrying out Act/Rules, with further proof of said non-compliance, mistake, error irregularity or informality has materially effected the election, in such a situation Election Tribunal is fully empowered to examine the action of the State Election Commission also within the parameter provided for. 23. Hon’ble Apex Court in the case of B. Sundara Rami Reddy v. Election Commission of India and others, 1991 Supp. (2) SCC 624, has taken the view that in the matter of election petition, Election Commission of India is neither necessary nor proper party in the election petition and parties to the election petition are governed by statutory provision. Under U.P. Municipalities Act 1916 also full fledged procedure has been provided for and the way and manner in which election petition is to be presented and further Sub-Section (4) of Section 19 of U.P. Municipalities Act provides for person whose election is questioned and where the petitioner claims that any other candidate should be declared elected in the room of such person, every unsuccessful candidate who is not a petitioner in the petition shall be made a respondent to the petition. Once statute gives particular procedure and also prescribe incumbents who are to be impleaded as respondents then in such a situation State Election Commission cannot be termed to be necessary or proper party in Election Petition filed under Section 19 of the U.P. Municipalities Act 1916. 24. The question is that once State Election commission is neither necessary party nor proper party, in what way and manner its action can be judged, to find out non compliance with the Act/Rule or of any error, irregularity or informality on the part of officer of officers , which has materially affected the result of election. Section 23 of Act, deals with procedure to be adopted by Election tribunal, while dealing with election petition, by providing, except so for as may be otherwise provided by this Act or by Rule, the procedure provided for in regard to suits, shall, so for as it is not inconsistent with thus Act or any rule, and so for it can be made available, is to be followed. By means of proviso, provided for District Judge has been exempted from recording of evidence, and has been merely obliged to make memorandum of evidence, sufficient, for the purpose of deciding the case and further District Judge has been left with the discretion for the purpose of deciding any issue, to require the production of, or to receive so much evidence, oral or documentary, as it considers necessary. Authority of Election Tribunal is thus of wide amplitude. 25. Once action of State Election Commission is under challenge, on the grounds provided for, as in the present case action of giving direction of repolling at 17 booths was being questioned, in such a situation action of State Election Commission being record based, it would have been much more appropriate and fair enough if the Election Tribunal would have proceeded to exercise authority vested under Order 16 Rules 14 of CPC which authorises the Election Tribunal, to summon any one as witness to give evidence or to produce document, on its own motion, so that factual situation was clear, and in the facts of present case by summoning State Election Commission through its representative to appear and justify the action of State Election Commission in respect of directive given for repolling at 17 booths. Hon’ble Apex Court, in the case of Pratap Singh v. Rajender Singh, 1975 SC AIR 1045, has taken the view that Election Tribunal is not powerless, in the matter of performance of its duty to ascertain the truth and Order XVI Rule 14, C.P.C. helps in such a situation, and specially when essential facts are missing and not even clear to the Election Tribunal. Election Tribunal ought to have directed the official of State Election Commission to appear as witness and to produce all documents which could have substantiated that action taken by State Election Commission was justifiable or not in the fact of the present case. Admittedly no such exercise has been undertaken by Election Tribunal in the present case, the effect of not taking such exercise is reflected from the tenor of the order as Election Tribunal has proceeded to make observation at pages 227/228 of the paper book as to under what circumstances State Election Commission has proceeded to ask for repoll of nine booths same was not clear and similarly in respect of other booths also same was not at all clear from the order. Once position was not clear then it would have been much more appropriate to summon the record of State Election Commission and any official as Court witness to form conclusive opinion that action of State Election Commission was in any way arbitrary or unreasonable. 26. Issue of violation of provision as contained under U.P. Urban Local Bodies Conduct of Election Orders, 2003 is also being looked into. 27. In exercise of authority, vested, under Section 13G and section 43C, till provision is not made under the Act or in respect of matter provided for, the State Election Commission is empowered to make provision concerning conduct of election, provided for under clauses (a) to (q) of Section 13G; clauses (a) to (i) of Section 43C. Chapter 6 deals with the polls. U.P. Urban Local Bodies Conduct of Elections Order 2003, is self contained and all possible situations which can be anticipated, has been taken into account in the direction of holding the election. Paragraph 54 deals with adjournment of poll in emergency, wherein Presiding Officer is entitled to adjourn the poll, in the event of exigencies mentioned in said order being present there, and thereafter re poll has to commence at the directive of Commission. Paragraph 54 deals with adjournment of poll in emergency, wherein Presiding Officer is entitled to adjourn the poll, in the event of exigencies mentioned in said order being present there, and thereafter re poll has to commence at the directive of Commission. Paragraph 56 deals with procedure on recommencement of adjournment of poll and the voters who have already voted at the poll so adjourned are not allowed to vote again. Paragraph 57 on the other hand deals with fresh poll, in the case of destruction etc. of ballot boxes, in the contingencies mentioned therein, polling at such polling station has to be held as void. Returning Officer has to report the matter to district Magistrate, who further has to report to Commission, and fresh poll has to take places per the directives of Commission. 28. In the present case accepted position is that at no point of time election in question has ever been adjourned as is envisaged under Clause 54 of the Order 2003 nor at any point time any fresh poll has been directed on account of destruction of ballot boxes as is envisaged under Clause 57. Once this is accepted position that none of the contingency mentioned in Clauses 54 and 57 are in existence then in such a situation authority which has been exercised by the State Election Commission is definitely where the order is silent, referable to Article 243-ZA read with Section 13-B of U.P. Municipalities Act which is reservoir of power to act for avowed purpose i.e.. to ensure free and fair election. The Constitution as well as State Legislature has taken care of leaving scope for exercise of residuary power by the Commission in its own right as creature of Constitution in the infinite variety of situation, that may emerge from time to time in large democracy as every contingency could not be foreseen or anticipated by enacted order, by the Commission itself. 29. Once State Election Commission had proceeded to exercise authority of superintendence of election, and not on the report as prescribed under paragraphs 54 and 57 in the direction of ensuring free and fair election in such a situation Election Tribunal has full authority to examine as to whether said authority had been bonafidly exercised or same was arbitrary exercise of authority. Election Tribunal has proceeded to mention, after examining the complaint that action of State Election Commission for repolling booth Nos. 1, 3, and 28 were unsustainable and action taken by State Election Commission qua other booths was in contravention of Election Order 2003. 30. In the present case as already mentioned the record of State Election Commission had not at all been called for and on the basis of reports filed and available at the level of District Election Officer and on the basis of communication sent by State Election Commission even without ascertaining as under what circumstances such recommendation had been made by the said officials and what prompted State Election Commission to take such decision and ignoring important aspect of the matter wherein report had been submitted that secrecy of voting had been breached, as sealed ballots with serial Nos. 28215, 28195, 28196, 28189 of Booth No. 28 had been supplied alongwith copy of complaint which clearly reflected breach and the fact that election petitioners witnesses themselves had accepted disturbance in polling on earlier date, statement of PW-3 Afsar, PW-4 Dilshad, PW-5 Nirale, PW-6 Bhagwan Singh and further after elections there has been large scale anarchy and violence. Election Tribunal ought to have considered entire material and then formed opinion. In such a situation opinion which has been formed for setting aside repoll falling short of requisite exercise cannot be subscribed. 31. On the said issue matter would have been remanded back for reconsideration but in the present case Election Tribunal has proceeded to record finding that on account of repolling in question held on 5.11.2006 on the basis of same, election in question has been materially effected, as such said question is also being looked into. 32. Election in question cannot be set aside on the ground mentioned Clause in (b) of Section 19 (2) unless and until it is established by evidence available on record that on account of said contravention the result of election in question has been materially affected. Election was in contravention of provision of the Act and the Rules will not do and election petitioner will have to go a little further and prove that result of the election has been materially effected. 33. Election was in contravention of provision of the Act and the Rules will not do and election petitioner will have to go a little further and prove that result of the election has been materially effected. 33. In the present case factual position which is emerging that on declaration of the result in question petitioner polled 18,575 votes and Zaheer Ahmad polled 16,185 votes, margin of win being 2390 votes. On calculation being made it has been found that in respect of 17 booths wherein repolling has been done, qua last occasion and the subsequent occasion when election has taken place difference of votes polled is 2616 which is clearly reflected on calculation being made from both the charts. Once margin of victory is by 2390 votes and shortfall in voting is of 2616 votes then Election Tribunal ought to have looked into the matter as to whether on account of such voting pattern could it be said that election was materially effected and in fact it has been materially affected. 34. Hon’ble Apex Court in the case of Vashist Narain v. Dev Chandra, AIR 1954 SC 513 , has the words “the result of the election has been materially affected’ indicate that the result should not be judged by mere increase or decrease in the total number of votes secured by candidate but by proof of the fact that wasted votes could have been distributed in such manner between the contesting candidates that would have brought defeat to the returned candidate. 35. Hon’ble Apex Court in the case of Paokai Haokip v. Rishang, AIR 1969 SC 663 , has taken the view that the casting of votes at an election depends upon a variety of factors and it is not possible for anyone to predicate how many or which proportion of votes will go to one or other of the candidates. One cannot therefore accept the statement even of a Headman that the whole village would have voted in favour of one candidate to the exclusion of the others. The petitioner cannot successfully contended that all the votes which were not cast would have gone to him. One must work at the pattern of voting at the other centres. One cannot therefore accept the statement even of a Headman that the whole village would have voted in favour of one candidate to the exclusion of the others. The petitioner cannot successfully contended that all the votes which were not cast would have gone to him. One must work at the pattern of voting at the other centres. If one goes by the law of averages and applies these figures reasonably to half of the votes which were not cast, it is demonstrated at once that the election petitioner could not expect to wipe off the large arrears under which he laboured and that he could not have therefore made a successful bid for the seat even with the assistance of the voters who did not cast their votes. One cannot take the statement of the witness at their worth and hold on the basis of those statements that all the votes that had not been cast would have gone to the election petitioner. Though the decision of the learned Judicial Commissioner that the election was in contravention of the Act and the Rules was correct in the circumstances of this case; that does not alter the position which regard to S. 100(1)(d) (iv) of the Act. That section requires that the election petitioner must go a little further and prove that the result of the election had been materially affected. 36. Issue in the present case is as to whether the finding returned that election in question has been materially affected is valid finding or it is based on mere surmise and conjecture? Election Tribunal in the present case has proceeded to record such finding by mentioning that from the statement of election petitioner and witness in support of election petitioner it is reflected that various supporter of election petitioner are from depressed, dalit labour, worker class, and they have gone out for their employment as election has taken place after eight days, they could not return back and has further proceeded to mention, that few did not turn to cast their votes on account of fear. The said finding is neither here nor there, as in the statement of Zaheer Ahmad, PW-1, it has been mentioned that voters from poor category could not cast their votes, and he acquired knowledge of the same subsequently, and he never made any complaint in said regard. The said finding is neither here nor there, as in the statement of Zaheer Ahmad, PW-1, it has been mentioned that voters from poor category could not cast their votes, and he acquired knowledge of the same subsequently, and he never made any complaint in said regard. Zaheer Ahmad before Election Tribunal has not made any statement of communal colour being given or that on account of fear various persons could not cast their vote. PW-2 Riyaz Ahmad, in his statement has accepted peaceful holding of elections on 5.11.2006, has accepted the large scale disturbance which has taken place on 28.10.2006; and has also stated half of the population of poor people have gone out and that he abstained from voting. PW-3 Afsar in his statement has stated, qua some people working at Aligarh and of the disturbance which has taken place and few people of locality working at Aligarh/Firozabad. PW-4 Dilshad has also given statement of fifteen-twenty persons working at Aligarh, and that he had not polled in subsequent elections, and of three persons working at Firozabad. PW-5 Nirale accepted about the information of re-polling taking place, and has stated that about 200-250 persons stay out side and of the anarchy on earlier polling. PW-6 Bhagwan Singh has stated that persons from his locality has not voted, who are 200-250 in number, as they were unaware of re-poll. PW-7 Sumit Kumar has also stated that he was unaware of re-polling, and that 150-200 are working outside. P.W.-8 Manoj Kumar has come out with statement that various persons were stopped from casting vote. PW-9 Charan Singh has stated of no information in respect of date of re-poll has been given. Similar statement has been made by PW-10 Chand Miyan. PW-11 Sabir has stated that there has been no re-poll. From the evidence which has been adduced theory of giving communal colour is not at all substantiated there, and the theory that due to fear various voters did not cast their votes is also not at all established. There is no finding returned by the election tribunal, that qua the re polling there had been no wide publicity on account of which various voters were prevented from participating in the election. There is no finding returned by the election tribunal, that qua the re polling there had been no wide publicity on account of which various voters were prevented from participating in the election. Once all these finding are not there, then on vague allegations that various persons, from labourer category had gone out and had been prevented from participating in poll will not do. It would have been much more expedient, if name of such voters or block of voters was disclosed alongwith the material to show and substantiate, that in the event of casting their vote, they would have exercised their right of voting in favour of election petitioner. 37. On vague and evasive statement, that Zaheer Ahmad is popular amongst poor persons and lot of persons had gone out it cannot be presumed that election in question has been materially affected specially when only 2616 persons had not casted their votes as compared to the earlier polling and it could not be substantiated that the said votes would have gone in favour of election petitioner. Once this is factual scenario, then in such a situation finding of fact returned that it was materially effected cannot be subscribed, even if there is any breach of provision of U.P. Urban Local Bodies Conduct of Election Orders, 2003. Once said finding is not supported by material and based on mere surmises and conjecture order impugned has been passed, then it cannot be said that order of repoll in any way had materially affected the result of election in question. 38. Consequently present writ petition is allowed. 39. No orders as to cost. ————