JUDGMENT

FAZAL ALI, J.:—This election appeal has been filed by the appellant, who was a candidate for election to "No. 70 - Parur Assembly Constituency" in Kerala but was not elected. Six candidates contested the said election which was held on May 19, 1982, out of whom the first respondent (Sivan Pillai), who was a candidate of the Communist Party of India, and the appellant were the two principal contestants. The result of the election was announced on May 20, 1982 in which the first respondent was declared elected having secured 30450 votes as against 30327 votes secured by the appellant. Thus, the first respondent secured 123 more votes than the appellant. Of the 30450 votes, 11268 were cast manually, according to the conventional method provided in the Conduct of Election Rules, 1961 (for short, to be referred to as the Rules) made under the Representation of the People Act, 1951 (hereinafter to be referred to as the Act), and 19182 votes were cast by means of electronic machines (for short, to be referred to as voting machines). This was done in pursuance of the direction issued by the Election Commission of India (for facility to be referred to as the Commission) by virtue of a notification published in the Kerala Gazette on 13-5-82. The said notification was purported to have been made under Art. 324 of the Constitution of India, and has been extracted on pages 3 to 5 of the Judgment of the High Court and it is not necessary for us to repeat the same having regard to the point of law that we have to decide in the instant case.

2. It may be mentioned that prior to issuing the notification the Commission had sought the sanction of the Government of India which was however refused. As mentioned above, the votes by the mechanical process were cast in 50 out of the 84 polling stations.

3. The trial Court upheld the validity of voting by machine and held that the respondent was duly elected to the Assembly, seat. Hence, this appeal by the appellant.

4. Art. 324 of the Constitution gives full powers to the Commission in matters of superintendence, direction and control of the preparation of electoral rolls aid also for the conduct of elections to the Parliament and State Legislatures. It was argued that the Commission being a creature of the Constitution itself, its plenary powers flowing directly from Art. 324 will prevail over any Act passed by the Parliament or Rules made thereunder. In order to butteress this argument, it was contended that the manner of voting was a matter coming within the ambit of Arts. 324 and 327 which empowered the Parliament to make laws in respect of matters relating to or in connection with the elections to the Parliament or the State Legislatures and would be deemed to be subsidiary to the power contained in Art. 324 and if there was any conflict between a law enacted by the Parliament and the powers given to the Commission regarding regulating the conduct of elections to Parliament that law must yield to Art. 324, otherwise the very object of Art. 324 would be defeated. Notice was given by this Court both to the Union of India as also the Commission though in terms of Section 82 of the Act they are not necessary parties and were not before the High Court.

5. This is a very attractive argument but on a closer scrutiny and deeper deliberation on this aspect of the matter, it is not possible to read into Art. 324 such a wide and uncanalised power, which is, entrusted to the Commission as Mr. Jethmalani would have us believe. Part XV of the Constitution contains Arts. 324 to 328 which relate to the manner in which elections are to be held, the rights of persons who are entitled to vote, preparation of electoral rolls, delimitation of constituencies, etc., but this is merely the storehouse of the powers and the actual exercise of these powers is left to Parliament under Arts. 325 to 329. In other words, Art. 324 has to be read in harmony with, and not in isolation of Arts. 326 to 329, Art. 324 may be e