B.S. Chauhan, J.
1. This writ petition has been filed for quashing the impugned order dated 25.10.2005 (Annex. 1) passed by the respondent No. 2, the State Station Election Commission, countermanding the election of the Member of the Zila Panchayat.
2. The facts and circumstances giving rise to this case are that a notification was issued by respondent No. 2 for holding elections of Members of the Zila Panchayat on 23.09.2005 under the provisions of U.P. Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 (hereinafter called the 'Adhiniyam 1961'). The petitioner contested the election for the said post and the voting took place peacefully on 23.10.2005 without any interruption or hindrance. The votes polled on 23.10.2005 were to be counted on 25.10.2005. However, the respondent No. 2, in exercise of the powers under Article 243K of the Constitution of India and Section 260B of the Adhiniyam 1961, countermanded the election by the impugned order on the ground that one candidate namely Shri Jitendra Yadav had adopted corrupt means while canvassing for votes and he was found holding a public-meeting in a temple, i.e. prohibited area after expiry of the period for canvassing, which was in violation of the code of conduct for elections.
3. Shri Manish Goel, learned Counsel for the petitioner has submitted that there is no provision for countermanding the election under the Adhiniyam 1961 nor such a power has been conferred upon the State Election Commission by Article 243K of the Constitution; the order is without jurisdiction and hence nullity; at the most, in case the said candidate Shri Jitendra Yadav was found to have adopted corrupt means while canvassing for his candidature, it could have been a ground for setting aside the election after declaration of the result. More so, countermanding may be permissible in exceptional circumstances on the date of election but such power cannot be exercised at the time of counting of votes. He, therefore, submitted that the order impugned is liable to be quashed.
4. Shri C.K. Rai, learned Standing Counsel and Shri P.N. Rai, learned Counsel appearing for the Commission and other respondents have vehemently opposed the writ petition contending that as. the result of the election has not been declared, this Court has no power to interfere with the ejection process; the order impugned cannot be examined in exercise of power of judicial review by the High Court; the State Election Commission can exercise such a power as it has all residuary powers to conduct free and fair election and, therefore, the petition is liable to be dismissed.
5. This Court, while entertaining the writ petition, vide order dated 02.02.2006 directed the Returning Officer to keep the ballot boxes in a sealed cover in safe custody and it is pointed out that in spite of the fact that there was no interim order by this Court restraining the Commission to hold the election afresh, no attempt has been made by the Commission to conclude the election by issuing a direction for fresh polls in the entire constituency.
6. We have considered the rival submissions made by learned Counsel for the parties and perused the record.
7. The law of election is too technical; equity, justice etc. have no role in such matters. The Election Commission is competent, in appropriate case, to pass an appropriate order to meet a particular situation in exercise of its power under the Statute on receiving the reports from the Returning Officer etc. with regard to any situation arising in the course of election and the powers have to be exercised with promptitude. In Mohinder Singh Gill and Anr. v. Chief Election Commissioner, New Delhi and Ors. : [1978]2SCR272 , the Hon'ble Supreme Court held as under:
Election in this context, has a wide connotation commencing from the Presidential notification calling upon the electorate to elect and culminate in the final declaration of the returned candidate.
(Emphasis added).
8. A similar view has been reiterated in N.P. Ponnuswami v. Returning Officer : [1952]1SCR218 ; and Union of India v. Association for Democratic Reforms and Anr. : [2002]3SCR696 .
9. There can be no dispute to the settled legal proposition that once the result of the election is declared, it can be challenged only before the election Tribunal. (Vide N.P. Ponnuswami (supra); Durga Shankar Mehta v. Raghuraj Singh : [1955]1SCR267 ; Brundaban Nayak v. Election Commission of India and Anr. : [1965]3SCR53 ; Mohinder Singh Gill (supra); Krishna Ballabh Prasad Singh v. Sub Divisional Officer, Hilsa-cum-Returning Officer and Ors. : AIR1985SC1746 ; and The Election Commission of India v. Shivaji and Ors. : [1988]1SCR878 ).
10. In exceptional circumstances, where the facts are not in dispute, the controversy regarding disqualification etc. can also be agitated in writ jurisdiction. (Vide K. Venkatachalam v. A. Swamickan and Anr. : [1999]2SCR857 ; and Lal Chand v. State of Haryana and Ors. ; Manda Jaganath v. K.S. Rathnam and Ors. : AIR2004SC3600 ; Harnek Singh v. Charanjit Singh : AIR2006SC52 ).
11. In view of the above, it is evident that the Courts do not have power to interfere with the election process and can examine the issue after the election stands concluded. Such a course is necessary in view of the fact that if the power of judicial review is given to the Courts to interfere at any stage, the conclusion of election would become difficult.
12. In Election Commission of India v. Ashok Kumar and Ors. : AIR2000SC2979 , the Hon'ble Supreme Court considered the issue involved herein taking into consideration the provisions of the Constitution particularly Article 324, which gives the Election Commission power of 'superintendence, direction and control' and observed that the said words are of very 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. So far as the power of judicial review is concerned, the Court held as under:
30. To what extent Article 329(b) has an overriding effect on Article 226 of the Constitution. The two Constitution Benches have held that Representation of the People Act, 1951 provides for only one remedy; that remedy being by an election petition to be presented after the election is over and there is no remedy provided at any intermediate stage. The non obstante clause with which Article 329 opens pushes out Article 226 where the dispute takes the form of calling in question an election (see para 25 of Mohinder Singh Gill's case : [1978]2SCR272 (supra). The provisions of the Constitution and the Act read together do not totally exclude the right of a citizen to approach the Court so as to have the wrong done remedied by invoking the judicial forum; nevertheless the lesson is that the election rights and remedies are statutory, ignore the trifles even if there are irregularities or illegalities, and knock the doors of the Courts when the election proceedings in question are over. Two-pronged attack on anything done during the election proceedings is to be avoided - one during the course of the proceedings and the other at its termination, for such two-pronged attack, if allowed, would unduly protract or obstruct the functioning of democracy.
32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove:
1) If an election, (the term election' being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.
2) Any decision sought and rendered will not amount to 'calling in question an election' if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.
3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.
4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court.
5. The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the Court's indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the Court would act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas, with particulars and precision and supporting the same' by necessary material.
13. In Special Reference No. 1 of 2002, AIR 2003 SC 87, the Hon'ble Supreme Court examined the issue and held as under:
The Election Commission is vested with the power to decide the election schedule. It can act only in accordance with the constitutional provisions. The election process. for electing the new Legislative Assembly should start immediately on the dissolution of the Assembly. There may be cases where the electoral roll may not be up-to-date and in such case the Election Commission is well within its power to update the electoral roll and the time taken for such updating of the electoral roll shall be reasonable time. Ordinarily, the Election Commission would also require time for notification, calling of nomination and such other procedure that are required for the proper conduct of election. There may be situation where the Election Commission may not be in a position to conduct free and fair election because of certain natural calamities. Even under such situation the Election Commission shall endeavour to conduct election at the earliest making use of all the resources within its command. Ample powers are given to the Election Commission to coordinate all actions with the help of various departments of the Government including military and para-military forces. When an Assembly is dissolved by the Governor on the advice of the Chief Minister, naturally, the Chief Minister or his political party seeks fresh mandate from the electorate. The duty of the Election Commission is to conduct fresh election and see that a democratically elected Government is installed at the earliest and any decision by the Election Commission, which is intended to defeat this very avowed object of forming an elected Government can certainly be challenged before the Court if the decision taken by the Election Commission is perverse, unreasonable or for extraneous reasons and if the decision of the Election Commission is vitiated by any of these grounds the Court can give appropriate direction for the conduct of the election.
14. In view of the above, the Court cannot interfere for thwarting the election process but it does not mean that in case the Commission has acted arbitrarily and not completed the election process, the Court cannot exercise its power of judicial review and direct the Commission to complete the election process.
15. More so, the powers of the Commission have to be exercised as per the requirement of the Statute. For the purposes of conducting the elections, the Uttar Pradesh Kshettra Panchayats and Zila Panchayats (Election of Members) Rules, 1994 (hereinafter called the 'Rules 1994') have been enacted. Rules 1994 is a comprehensive and complete code for conducting the election. Rule 4 of Rules 1994 reads as under:
4. Conduct of election.- (1) Subject to the superintendence, direction and control of the State Election Commission, a general election under Section 6 or Section 18 of the Act, shall be conducted in accordance with the provisions of these rules.
(2) The Mukhya Nirvachan Adhikari (Panchayat) appointed by the State. Government, as required by the State Election Commission, shall, under the supervision, direction and control of the State Election Commission, perform all the functions relating to the conduct of all-elections to the Kshettra Panchayats and the Zila Panchayats.
16. Rules 1994 provide a detailed procedure for appointment of the Nirwachan Adhikari, fixing of polling places, printing and price of nomination papers, list of symbols and notice of election and fixing of dates, presentation of nomination papers, withdrawal of candidature, uncontested and contested elections, admission to the polling place, procedure for voting, notice of polling and arrangements for secrecy of voting, preparation of ballot boxes for the polls, identification of electors, issue of ballot papers to electors, sealing of ballot boxes etc. after poll and transport of ballot boxes and packets and their custody. Rule 45 of the Rules 1994 reads as under:
45. Adjournment of poll in emergencies.
(1) If at an election the proceedings at the polling place 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 Matdan Adhyaksha for such polling place shall announce an adjournment of the poll to a date to be notified later and where the poll is so adjourned, the Matdan Adhyaksha shall forthwith inform the Nirvachan Adhikari.
(2) Whenever a poll is adjourned under sub-rule (1), the Nirvachan Adhikari shall immediately report the circumstances to the District Magistrate and shall as soon as may be with his previous approval appoint a day for the taking of a fresh poll and fix the place at which and the hours during which a fresh poll shall be taken and notify the same in such manner as may be specified by the District Magistrate.
(3) In every such case as aforesaid the Matdan Adhyaksha shall take a fresh poll and the provisions of these rules shall apply in relation to fresh poll as they apply to the original poll.
17. Rule 46 of the Rules 1994 provides for fresh poll in case of destruction etc. of ballot boxes. Rule 47 provides for appointment of time, place and date for the counting. Rule 50 provides for procedure at the counting and Rule 54 provides for declaration of the result. Rule 45 makes it clear that in case of interruption or obstruction by riot or violence at the polling place, or if the polling is not permissible on. account of any natural calamity or any other sufficient cause, the poll can be adjourned by the Matdan Adhyaksha and the date of fresh election shall be notified later on. Sub-rule (2) of Rule 45 makes it mandatory for the District Magistrate to seek approval for appointing a day for taking a fresh poll and fixing the place and hour during which fresh election can be taken and notify the same.
18. Undoubtedly, there is no provision for countermanding the election. The Adbiniyam 1961 provides only for adjournment of poll only on limited grounds, i.e. 'interruption and obstruction in the polling by any riot or violence or it is not possible to hold to election on account of any natural calamity or any other sufficient cause. 'Sufficient cause' is an expression which is used in large number of Statutes. Its ordinary dictionary meaning is 'adequate' or 'enough', 'any justifiable reason' for which the party could not act. It means the party should not be negligent or want of bona fide cannot be imputed in view of the facts and circumstances of a case or party cannot be alleged 'not acting diligently' or 'remaining inactive.' (Vide Ramlal and Ors. v. Rewa Coalfields Ltd. : [1962]2SCR762 ; Sarpanch, Lonand Gram Panchayat v. Ramgiri Gosavi and Anr. : (1967)IILLJ870SC ; and Surinder Singh Sibia v. Vijay Kumar Sood : AIR1992SC1540 ).
19. The word 'sufficient cause' has to take the colour from the earlier circumstances like interruption, obstruction or natural calamity not less than that. The meaning of words 'sufficient cause' has to be given by applying the rule of ejusdem generis.
20. The rule of ejusdem generis is applicable when particular words pertaining to a class, category or genus are followed by general words. In such a case the general words are construed as limited things of the same kind as those specified. (Vide Municipal Corporation of Greater Bombay v. Bharat Petroleum Corporation Ltd. : [2002]2SCR860 .
21. Where general words follow specific words in an enumeration describing a legal subject, the general words are continued to embrace only objects similar in nature to those objects enumerated by the preceding specific words.
22. When the Statute provides for a particular procedure, the authority has to follow the same and cannot be permitted to act in contravention of the same. It is an uncontroverted legal position that where a Statute requires that a certain thing must be done in a certain way, then the thing must be done in that way or not at all. Other methods or mode of performance are impliedly and necessarily forbidden.(Vide Taylor v. Taylor (1876) 1 Ch.D.426; Nazir Ahmed v. King Emperor ; Deep Chand v. State of Rajasthan : [1962]1SCR662 ; State of Mizoram v. Biakchhawna : (1995)1SCC156 ; J.N. Ganatra v. Morvi Municipality Morvi : AIR1996SC2520 Babu Verghese and Ors. v. Bar-Council of Kerala and Ors. : [1999]1SCR1121 ; and Chandra Kishore Jha v. Mahavir Prasad : AIR1999SC3558 ).
23. The aforesaid settled legal proposition is based on a legal maxim ' Expressio unius est exclusio alterius', meaning thereby that if a statute provides for a thing to be done in a particular, then it has to be done in that manner and in no other manner and following other course is not permissible! This maxim has consistently been followed, as is evident from the cases referred to above. A similar view has been reiterated in Chandra Kishore Jha v. Mahavir Prasad and Ors. : AIR1999SC3558 ; Haresh Dayaram Thakur v. State of Maharashtra and Ors. : AIR2000SC2281 ; Delhi Administration v. Gurdip Singh and Ors. : (2000)7SCC296 ; Dhanajaya Reddy v. State of Karnataka etc. etc. (2001) 4 SCC 9; Commissioner of Income Tax, Mumbai v. Anjum M.H. Ghaswala and Ors. : [2001]252ITR1(SC) ; Prabha Shankar Dubey v. State of Madhya Pradesh AIR 2004 SC 486; and Ram Phal Kundu v. Kamal Sharma : AIR2004SC1657 .
24. Similarly, in K. Kuppuswami and Anr. v. State of Tamil Nadu and Ors. : (1998)8SCC469 , the Apex Court held that the statutory rules cannot be over-ridden by executive orders or executive practice.
25. In the Adhiniyam 1961, the legislature has nowhere used the word 'countermand', thus, as the Adhiniyam 1961 does not provide for such a drastic step, it is not permissible in law to pass the order countermanding the election.
26. The word 'countermand' of election has not been used by the Legislature in Adhiniyam 1961. The word 'countermand' has been used in Section 52 of the Representation of People Act, 1951 (hereinafter called the 'Act 1951'). It is permissible in case of death of a candidate of a recognised political party before poll. The said Section had undergone an amendment with effect from 01.08.1996 by Act No. 21 of 1996. Prior to the amendment, election could be countermanded on the death of any candidate. Now, it has been restricted to the death of a candidate of a recognised political party. Countermand of the election is permissible when a candidate of a recognised political party dies before the poll. A Division Bench of this Court in Madan Gopal v. Nek Ram Sharma 25 E.L.R. 61, considered this aspect and held that it is so necessary because the basic principle is that the death of a contesting candidate may alter the political situation in a constituency so completely as to require that the electorate should have another chance of nominating fresh candidates. Persons who would not have opposed the deceased candidates because they had no chance of success against him or for any other reason, may be available after his death. Thus, the Legislature considered it necessary that the electorate may be given another opportunity to select candidates provided the poll has not actually commenced. This provision was required in order to avoid the frustration of election because of death of a candidate before the poll commenced. However, such powers cannot be exercised if a candidate of a recognised political party dies after the poll. In that situation, the counting of vote is necessary.'
27. Section 58A of the Act 1951 was inserted by Act No. 1 of 1989 with effect from 15.03.1989 and adjournment of poll or countermanding of an election has been made permissible on the ground of booth capturing. The said provision enables the Election Commission on receiving the report from the Returning Officer and after taking all material circumstances in account that booth capturing has taken place in any election in such a manner that the result of the poll at that polling station cannot be ascertained to declare that the poll at that polling station was void and appoint a day and fix the hours for taking fresh poll at that polling station and notify the date so appointed and hour so fixed in such manner as it deems fit. However, in case the Commission is satisfied that large number of polling stations or places are involved in booth capturing and the result of the election is likely to be affected, or booth capturing has affected counting of votes in such a manner as to affect the result of the election, it can countermand the election in that constituency. So, under the Act 1951, countermanding of an election on a particular polling booth is permissible in case of booth capturing and countermand of entire election of a constituency is permissible if the booth capturing has been at such a large scale that it has affected the result of the election. However, even in that situation, it is mandatory on the part of the Election Commission to fix a date of repolling and notify the schedule of fresh election. It is not permissible for the Election Commission to sit idle after passing the order of countermand. A full Bench of Delhi High Court in Amar Pal Singh v. Chief Election Commissioner of India : AIR1993Delhi316 , has considered the scope of Section 58A of the Act 1951 and held as under:
31. It appears to us that the intention of the Legislature clearly was that the entire election was not to be countermanded and the word 'election' occurring in Section 58A(2)(b) must be given a restricted meaning. Examining the provisions of Sub-section (2) of Section 58A closely we find that under its Sub-clause (a) fresh poll in some polling stations is to be ordered after declaring the poll at those polling stations to be void and the Election Commission is, duty bound to appoint a date and fix the hours for the fresh polls. Sub Clause (b) of Section 58A(2) is an alternative provision to Sub-clause (a). It provides that where booth capturing is to such a large extent at a number of polling stations that the Commission is satisfied that the result of the election is likely to be affected, then, notwithstanding the fact that at a number of polling stations no booths have been captured still it can under Sub-clause (b) of Section 58A(2) order the poll in all the polling stations to be countermanded. Sub-clause (a) deals with the case of only those polling stations where booth capturing had taken place but Sub-clause (b) enables the cancellation of poll even in those stations where no booth capturing has taken place, provided booth capturing in a constituency was to such a large extent so as to satisfy the Election Commission that the entire result of the election was likely to be affected. Providing for a complete countermanding of the entire election without fixing dates for re-poll or extending the time for completion of election could obviously not have been regarded as a solution to the problem created by the capturing of booths. If the contention of the learned Counsel for the respondents is accepted then, an order countermanding the entire election would result in the thwarting of the election process and cannot be regarded as a step in aid of completion of the electoral process....
35. In the election law wherever any infirmity or illegality occurs the electoral process is stopped, the illegality removed and the process is re-started so that the electoral process is completed expeditiously. Even Article 329(b) clearly gives an indication that the intention of the framers of the Constitution was that the electoral process should not be interfered with and it should be completed at the very earliest. It is for this reason that the jurisdiction of the Courts was barred to any challenge to any order which is passed in the conduct of any election but, as observed by the Supreme Court in Mohinder Singh Gill's case (supra), if any order is passed which has the effect of thwarting the election then, of course, that can be challenged. In the present case, however, we are not concerned with the same because in our opinion the order countermanding the elections can only mean countermanding the polls and if that be so the Election Commission should, simultaneously with the issuance of the Notification under Section 58A(2)(b) have also issued a fresh polling programme after extending the date under Section 153 and should also have made the necessary amendments to the earlier Notification issued under Section 30 of the 1951 Act.
37. It is clear from the above that if a narrower interpretation is given to the words 'countermand the election' occurring in Section 58A(2)(b) then, there would be no occasion of stultifying the Presidential notification or impinging upon the power of the President.
28. While deciding the said case, the Hon'ble Apex Court placed reliance upon its earlier judgment in Mohinder Singh Gill's case (supra) wherein it was observed;-
We are concerned only to say that if the regular poll, for some reasons, has failed to reach the goal of choosing by plurality the returned candidate and to achieve this object a fresh poll (not a new election) is 'needed, it may still be a step in the election. The deliberance of Dunkirk' is part of the strategy of counter-attack. Wise or valid, is another matter.
If election bears the larger connotation, if calling in question possesses a semantic sweap in plain English, if policy and principle are tools for interpretation of statutes, language permitting, the conclusion is irresistible, even though the argument contra may have emotional impact and ingenious appeal, that the catch-all jurisdiction under Article 226 cannot consider the correctness, legality or otherwise of the direction for cancellation integrated with re-poll. For, the prima facie purpose of such a re-poll was to restore a derailed poll process and to complete it through the salvationary effort of a re-poll.
It is true that in exercise of powers under Article 324(1) the Election Commission cannot do something impinging upon the power of the President in making the Notification under Section 14 of the Act. But after the Notification has been issued by the President, the entire electoral process is in the charge of the Election Commission and the Commission is exclusively responsible for the conduct of the election without reference to any outside agency.
29. The Court further issued a writ directing the Election Commission to complete the electoral process and hold a re-poll in the Parliamentary Constituency at the earliest.
30. In view of the above, the law can be summarised that election is to be completed in accordance with the statutory provisions and election can be postponed in case the condition precedent as provided under Rules 1994 and in absence of any provision analogous to Section 58A of the Act 1951, the Election Commission cannot countermand the election. Law permits only adjournment of section if the pre-requisite conditions incorporated in Rule 45 of the Rules 1994 exist and even in that situation, it is obligatory on the part of the District Magistrate to notify the date for fresh election.
31. The democratic set-up of the country has always been recognised as a basic feature of the Constitution. Like other features eg. Supremacy of the Constitution; Rule of law; Principle of separation of powers; Power of judicial review under Articles 32, 226 and 227 etc. (Vide His Holiness Keshwananda Bharti Sripada Galvaru and Ors. v. State of Kerala : AIR1973SC1461 ; Minerva Mills Ltd. v. Union of India and Ors. : [1981]1SCR206 ; R.C. Poundyal v. Union of India and Ors. : [1993]1SCR891 ; Special Reference No. 1 of 2002 In re (Gujrat Assembly Election matter) : AIR2003SC87 ; Union of India v. Association for Democratic Reforms : [2002]3SCR696 ; and People's Union for Civil Liberties v. Union of India and Ors. : [2003]2SCR1136 ). The authority has acted illegally thwarting the election process and destroying the rule of democracy.
32. The instant case requires to be examined in the light of the aforesaid settled legal propositions.
33. The order impugned has been passed without any jurisdiction as we have observed, hereinabove, that the State Election Commission lacks the competence to countermand the election, as there is no provision in the Adhiniyam 1961 or Rules 1994 analogous to Section 58A of the Act 1951. The submission made by learned Counsel for the respondents that it is an inherent power of the State Commission to exercise the power of superintendence, direction and control and there is no requirement for the Legislature to amend the Adhiniyam by inserting provisions of Section 58A of the Act 1951, cannot be accepted.
34. The Society is governed by rule of law and not by rule of thumb or by rule of jungle. The rule of law from this point of view means that decisions have to be made by the application of known principles and rules in general. Such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is antithesis of a decision taken in accordance with the rule of law. (Vide S.G. Jaisinghani v. Union of India and Ors. : [1967]65ITR34(SC) ).
35. In State of Andhra Pradesh and Anr. v. Nalla Raja Reddy and Ors. : [1967]3SCR28 , the Hon'ble Apex Court observed as under:
In respect of a statutory discrimination on knows where he stands, but the wand of official arbitrariness can be waved in all directions indiscriminately.
36. Thus, the Authorities under the Act cannot be given a free hand to act according to their whims or caprice. They are bound to act only giving strict adherence to the statutory provisions.
37. Reliance has been placed by the learned Counsel for the respondents upon the Division Bench decision of this Court dated 25.11.2005 in Writ Petition No. 69168 of 2005 (Bhaiya Lal v. State of U.P. and Ors.). The said decision reads as under:
Learned counsel for the petitioner has relied upon the decision of Supreme court in case of N.P. Ponnuswami. v. the Returning Officer, Namakkal Constituency, Namakkal, Sale, district and Ors. : [1952]1SCR218 . The said decision does not apply because in the present case the result of the election had not been declared and before that the State Election Commission had intervened.
Till the result is declared the State Election Commission can exercise its power to control and countermand the election.
After result' is declared by the Returning Officer, the Election Commission could not examine the rejection of the nomination papers which can only be done by an election petition. The State Election Commission is not empowered to cancel a declared or quash-the election....
In the present case as even counting was not done and before that the State Election Commission countermanded the election, it was well within its powers to do so. We are not inclined to interfere with the impugned order.
Petition is dismissed.
38. The question that arises for consideration is, as to what is the impact of the judgment relied by the learned Counsel for the respondents in the case of Bhaiya Lal (supra). We have carefully perused the same, and we find that the conclusion drawn by the Bench, that the State Election Commission has the power to countermand an election in a situation like this, has been assumed without reference to any specific power conferred on the State Election Commission in this respect. We have not been able to find out any such power which the State Election Commission may possess under the Adhiniyam 1961 and nor could the learned Counsel for the respondents point out any such provision available to the Commission for exercise of the power of countermand. The aforesaid decision, therefore, does not lend any support to the argument advanced by the respondents. The decision does not take into consideration any provision, which may indicate that the power of countermand has been exercised in accordance with law. The said decision, therefore, does not lay down any law in the sense that the conclusion in the said decision is not founded on any legal principle or reason that may constitute the gravamen of ratio decidendi.
39. In Union of India and Ors. v. Dhanwanti Devi and Ors. : (1996)6SCC44 , the Hon'ble Supreme Court examined the issue of precedent observing as under.
It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates- (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment.... The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding, It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi.
(Emphasis added).
40. A similar view has been taken by the Constitution Bench of the Supreme Court in State of Orissa v. Sudhansu Sekhar Misra and Ors. : (1970)ILLJ662SC .
41. In Uttaranchal Road Transport Corporation v. Mansaram Nainwal : (2006)IIILLJ505SC the Hon'ble Supreme Court expressed the same view observing that the enunciation of the reason or principle on which a question before a Court has been decided is alone binding as a precedent.
42. A Full Bench of this Court in Ganga Saran v. Civil Judge, Hapur, Ghaziabad and Ors. : AIR1991All114 considered as to whether the judgment of the Hon'ble Supreme Court in Qamruddin v. Rasul Baksh and Anr. 1990 All WC 308 was having any binding effect as the law laid down therein had impliedly overruled the Full Bench decision of this Court in Jupiter Chit Fund (Pvt.) Ltd. v. Dwarka Diesh Dayal and Ors. : AIR1979All218 and came to the conclusion that as the Hon'ble Apex Court decided a case without taking note of the amendment in the Code of Civil Procedure made by the State of U.P., the said judgment did not have binding effect nor it had overruled the Full Bench judgment of this Court on the issue in 3upiter Chit Fund Private Limited (Supra). The Court observed as under:
It would not be reasonable to say that the Supreme Court would debar or descent from its earlier decision without even reference to them or without even referring to the relevant provisions of low....
43. In view of the law laid down in the aforesaid decisions, we do not find any binding ratio in the decision relied upon by the learned Counsel for the respondents and, as such, we hold that the State Election Commission had no -authority in law to countermand the election. There is no provision in Adhiniyam 1961 analogus to Section 58A of the Act 1951. Even otherwise on general principles, as contained in the Act 1951, an order of countermand has to be necessarily coupled with an order of re-polling. This has admittedly not been attempted even by the State Election Commission. Thus, on this score as well, we are unable to subscribe to the view suggested by the learned Counsel for the respondents.
44. In the instant case, two grounds had been mentioned for countermanding the election. The first one was that one candidate in Ward No. 6 Shri Jitendra Yadav held a public meeting in a temple which was a prohibited area for the purpose of canvassing after the expiry of the period for that purpose and secondly, the said candidate Shri Jitendra Yadav had adopted corrupt means while canvassing. Both the grounds were totally irrelevant for countermanding the election after the poll had been completed. More so, non-action on the part of the Commission, in not fixing the date for re-polling in spite of the fact that there was no restraint order by the Court, also makes it obligatory on the part of the Court to direct the State Election Commission to complete the Election by counting the votes polled on 23.10.2005 at the earliest and declare the result in accordance with law.
45. In view of the above, the petition succeeds and is allowed. The order dated 25.10.2005 passed by respondent No. 2 is hereby quashed. The State Election Commission is directed to complete the counting of votes polled on 23.10.2005 at the earliest and declare the result in accordance with law.