A writ petition challenging an election is not maintainable in view of the blanket ban under Article 329 (b) of the Constitution of India.

( 1 ) THE petitioner filed this petition, seeking a writ for quashing the order dated 21 -5-1991, passed by the Chief Election Commissioner, countermanding the election in 80 Meerut Parliamentary Constituency and also for quashing the order dated 10-6-1991, passed by the respondent, refusing to review its earlier order dated 21-5-1991. A direction was also sought, directing the respondent and authorities concerned with the elections, to hold an adjourned poll or a re-poll in the affected polling stations of 80 Meerut Parliamentary Constituency as per the procedure, prescribed under the Representation of the People Act, 1951.

( 2 ) THIS writ petition, along wifh other numbers of writ petitions, involving same question of law were heard by a Division Bench of this Court, composing of Mahinder Narain and P. N. Nag, JJ. During the hearing of the writ petition, the learned Attorney General raised a preliminary objection on behalf of the Chief Election Commissioner, the respondent, that the writ petition was not maintainable. The preliminary objection is based upon Article 329 (b) of the Constitution of India, which provides that an election cannot be called in question except by an election petition.

( 3 ) MAHINDER Narain, J. , by a separate independent judgment dated 27th March, 1992 held that the writ petition was maintainable. It was also held that Sees. 58-A (2) and 58-A (2) (b) of the Representation of the People Act were ultra vires, the Constitution. The writ petition was allowed and the orders of the Chief Election Commissioner dated 21-5-1991 and dated 10-6-1991 were quashed, and the following directions were given;

(I) The Election Commission shall, within 15 days of the order, decide whether repoll is to be ordered in respect of the polling booth, where poll is recommended by the Returning Officers, and will given an opportunity to be heard to the parties affected by the repoll order, if desired, by them. (ii) The Election Commission shall order the holding of the repoll within 21 days of the date of the order, directing repelling in the constituencies, in which repoll is to be held. (iii) The votes called and repelled be counted, and the results declared in accordance with law.

( 4 ) P. N. Jog, J. by a separate independent judgment of the same date held that the writ petition was not maintainable and dismissed the writ petition. In the judgment, it was observed by P. N. Jog, J. :

". . . . . . . . In view of this authoritative pronouncement of the Supreme Court, it would not be appropriate and proper for this Court to embark upon the enquiry on the merits of the dispute. At this stage, the proper course for this Court is to decide first the jurisdictional issue whether this Court has jurisdiction to entertain and try the petition under Article 226 of the Constitution in view of the blanket ban in view of Article 329 (b)of the Constitution of India. . . . . . . . . . . . . . . . . . . . . . . . 3 Next submission was that the impugned order had been passed in violation of the principles of natural justice. Such an order, therefore, is null and void. This order is also bad in the eyes of law as that the same has been passed without the report of the returning officer, which is a condition precedent for passing of such an order and also without taking into consideration the material circumstances into account. These arguments are based on merits of the case. The petition is not maintainable. It is neither necessary nor permissible to decide these questions in these writ petitions. These questions can be raised in the election petition in case it is filed and the order of the Election Commission can be challenged under Section 100 (l) (d) of the Act, i. e. , non- compliance with the provisions of the Act and the Rules. "

( 5-6 ) IT is obvious that Nag, J. did not enter into merits of the case. The judgments were pronounced on 27th March, 1992. On that date, the following order was passed by the Bench:

"in view of th