Judgment

VENKATARAMIAH, J. :- We are very much disturbed by the manner in which the High Court of Bombay (Aurangabad Bench) has interfered not once but twice with the process of election which was being held under the provisions of the Representation of the People Act, 1951 (hereinafter referred to as the Act) to the Legislative Council of the State of Maharashtra from the Osmanabad-cum-Latur-cum-Beed Local Authorities Constituency. The Governor of Maharashtra by a notification dt. 18th Sept. 1987 issued under S. 16 of the Act called upon six local authorities constituencies in the State of Maharashtra to elect one member from each of the said constituencies in order to fill the vacancies in the Maharashtra Legislative Council which had been caused by the retirement of the members representing the said constituencies on the expiration of their terms of office. On the same day the Election Commission of India, the appellant herein, issued a notification under S. 30 of the Act fixing the calendar of events for the purpose of holding the elections accordingly. Osman abad-cum-Latur-cum-Beed Local Authorities Constituency was one of the six constituencies referred to above. According to the notification issued by the Election Commission the last date for making nominations was 25th Sept. 1987. The date for the scrutiny of nominations was 26th Sept. 1987. The last date for the withdrawal of candidatures was 28th Sept. 1987 and the date on which the poll, if necessary, was to be taken was 18th Oct. 1987. The entire election process had to be completed within 21st Oct: 1987. Respondents 1 to 5 Shivaji son of Vishwanath Gangane, Prof. K. S. Shinde, Prabhakar son of Bapurao Pudale, Shankarrao Madhavrao Mane and Ashok son of Rangnath Magar filed a writ petition under Art. 226 of the Constitution in Writ Petition No. 1459 of 1987 on Sept. 26, 1987 before the High Court of Bombay (Aurangabad Bench) challenging the validity of the notification issued by the Election Commission on 18th Sept. 1987 on the ground that the notification was invalid because the Zilla Parishad of Osmanabad and the Zilla Parishad of Latur district which were within the constituency had not been constituted and the Administrators were appointed to run the said Zilla Parishads and therefore the members of the said Zilla Parishads; who were entitled to take part in the said elections had been deprived of their right to participate in the said election. Along with the writ petition an application was made for an interim order and the counsel who moved the said application just prayed for the postponement of the last date for withdrawal of candidatures from 28th Sept. 1987 to 1st Oct. 1987. It is not clear why such a prayer was made. The learned single Judge before whom the writ petition came up for consideration however passed an order on Sept. 26, 1987 issuing notice on the writ petition and passing an interim order ex parte directing the postponement of the last date of withdrawal of candidatures from 28th Sept. 1987 to Oct. 1, 1987. A Division Bench of the High Court which was presided over by the learned single Judge who had issued the interim order earlier heard the writ petition on Oct. 1, 1987 and dismissed it by the order passed on the same day. In the course of its order the Division Bench relied on the decision in Inderjit Barua v. Election Commission of India, (1985) Supp 3 SCR 225, which had laid down that the validity of an election process under the Act could be challenged only in an election petition filed under the Act as provided by Art. 329(b) of the Constitution. While dismissing the writ petition the High Court did not make any observation as to the effect of the interim order passed by it earlier on the election programme. 18 candidates withdrew their candidatures by 1st Oct. 1987 which was the last date for withdrawal of candidatures as per the interim order passed by the High Court. In the circumstances the Election Commission considered it fair to