ORDER [ENTITY], J.
1. Petitioner, at present a member of Legislative Assembly, was returned from 35-[ENTITY] Assam Legislative constituency. This 35-[ENTITY] Assam Legislative constituency is reserved constituency for scheduled caste. The petitioner submitted his nomination paper as a candidate of Indian National Congress (I) before the Returning Officer, North Salmara, [ENTITY] Sub-Division. The nomination paper was scrutinised and the Returning Officer found it in order. During the scrutiny of the nomination paper no objection was raised by any of the candidate or their election agents against the nomination and the Returning Officer found the nomination paper valid and accepted the same thereby it was also accepted that the petitioner was a member of Scheduled Caste community i.e. Namasudra.
2. After declaration of the result no election case was filed against the petitioner. The petitioner thus became an M.L.A. The 6th respondent, thereafter, submitted a memorandum dated 20-12-93 to the 1st respondent stating, inter alia, that the petitioner was not a member of scheduled caste community. His father [ENTITY] was living at the village Jateswar, Police Station Falakata, District Jalpaiguri, West Bengal. The Pra-dhan of Jateswar II Gaon Panchayat had written that he was a Kayastha by caste. The 6th respondent further stated in the said memorandum that though the petitioner was not a member of scheduled caste, he became a member of the Legislative Assembly from 35-[ENTITY] constituency, reserved for scheduled caste. Besides, by virtue of the membership of the Assam Legislative Assembly, the petitioner had successfully got himself nominated to the. Office of the Chairman of Assembly Committee on welfare of scheduled caste and scheduled tribes as well as a member of the Board of Directors of Assam State Development Corporation for Scheduled Caste Ltd. which he was otherwise not competent to hold. The 6th respondent requested, by the said memorandum, the [ENTITY]er to take appropriate action and declare the election of the petitioner invalid under the law and to arrange for a fresh election. In the said memorandum the 6th respondent also stated that the petitioner's name appeared in two constituencies, namely, 35-[ENTITY] constituency in Assam and in 13 Falakata Legislative Assembly constituency, West Bengal. According to the 6th respondent his name could not appear in two constituencies.
3. On receipt of the memorandum, the 5th respondent directed that a thorough enquiry be made into the allegations and asked for a detailed report thereon. On receipt of the said direction from the 5th respondent, the State Government had asked Shri [ENTITY], Commissioner and Secretary, Revenue to. conduct an enquiry into the allegations. Said Sri [ENTITY] submitted a report to the Secretary to the Government of Assam, Political (B) Department on 10th February, 1994.
4. In the report the Commissioner and Secretary Shri [ENTITY] stated that the petitioner had produced a copy of the certificate issued by the District Magistrate/Deputy Commissioner of Bongaigaon dated 13-1 -90 also some other certificate, viz., a certificate issued by the Chief Executive Councilor of Coalpara Mahkuma Parishad dated 15-1-83, countersigned on behalf of the then Sub-Divisional Officer, Coalpara, a scheduled caste certificate issued in the name of the petitioner's father [ENTITY] by the then M.'L.A. of [ENTITY] South (S.C. constituency) dated 2-2-88. During that period as per the provisions of [SECTION] of the [ACT], a scheduled caste M.L.A. was authorised to issue caste certificate within thejurisdiction of the District which the M.L.A. represented.
5. By a letter dated 7-2-94 one [ENTITY] an Ex-M.L.A. and then President of North Salmara District "[ENTITY]" had given in writing that the above mentioned caste certificates were obtained by the father of the petitioner said [ENTITY] by misrepresenting the facts in the year 1988, It was also reported by him that [ENTITY] was not a member of scheduled caste community. He further stated that the certificates were fraudulently obtained and, therefore, certificates were illegal and void ab initio. The Pradhan of Jateswar II Gram Panchayat, West Bengal on 10-9-92 informed one Shri [ENTITY], Advocate of [ENTITY] that [ENTITY], the father of the petitioner actually belonged to general caste (Kayastha). When the Secretary Shri [ENTITY] enquired, the B.D.O. Falakata Office as to whether petitioner's father [ENTITY] claimed any benefit as a member of scheduled caste community, the reply was in negative. Scheduled Caste and Scheduled Tribe Welfare Inspector of Falakata Development Block also stated that no application had been made to them by Shri [ENTITY], for scheduled caste certificate. Shri [ENTITY] had further stated that a declaration was made by Smt. [ENTITY], wife of [ENTITY], a brother of the present petitioner and son of [ENTITY] stating that the family belonged to the general caste. He also stated that no document was furnished to him by anybody saying that the petitioner had applied for inclusion of his name in the electoral roll of 13, Falakata Legislative Assembly constituency. The report was sent to the 5th respondent.
6. On going through the report as well as other documents, the Commission issued Annexure-1 order dated 15-3-94. In the said order the 5th respondent stated, inter alia, that the findings of the enquiry conducted into the allegations made against the petitioner that he did not belong to a scheduled caste community and that he obtained the certificate fraudulently by misrepresentation of facts and the report further revealed that the petitioner got the name enrolled as an elector of both the electoral rolls pertaining to 35-[ENTITY] South (SC) Assembly constituency and 13 Falakata (SC) constituency of West Bengal during and after 1991 when he was elected from 35 [ENTITY] (SC) Assembly constituency in the general election of Assam Legislative Assembly election held in 1991. The 5th respondent, therefore, in exercise of the power under [SECTION] of the [ACT] and all other powers enabling in this behalf desired as follows :
"(i) the State Government of Assam should direct the Deputy Commissioner/District Magistrate, Bongaigaon, Assam to cancel forthwith the Scheduled Caste Certificate issued by him on 31-3-1993 in favour of the said Shri [ENTITY];
(ii)kind attention of the Hon'ble Speaker, Assam Legislative Assembly may be invited to [SECTION] of the [ACT] for appropriate action against Shri [ENTITY], as he cannot say, in view of the established facts, that he does not know that he is not qualified for membership of the Assam Legislative Assembly under [SECTION] read with [SECTION] of the [ACT] having been chosen from a constituency reserved for scheduled caste.
(iii)the State Government should initiate forthwith criminal proceedings under the relevant provisions of the [ACT], against the said Shri [ENTITY] for having obtained the scheduled caste certificate fraudulently by misrepresenting facts and for producing such false certificate before the Returning Officer at thetime of his nomination during the general election to Assam Legislative Assembly held in 1991;"
The Commission further directed that the concerned Electoral Registration Officers of 35-[ENTITY] (SC) Assembly constituency of Assam and 13-Falakata (SC) Assembly constituency of West Bengal should conduct detailed enquiry personally as to how the name of the said [ENTITY] (petitioner) was enrolled as an elector in the electoral rolls pertaining to the said assembly constituencies and penal action under [SECTION] of the [ACT] be initiated against the persons who furnished wrong/false information on the basis of which his name was included in the electoral rolls of both assembly constituencies.
7. The petitioner has filed this application under [SECTION] of the [ACT] against the said Annexure-I order dated 15-3-94 and prayed for issuance of an appropriate writ in the nature of mandamus, certiorari and any other appropriate writ or writs setting aside the Annexure-I order dated 15-3-94 and declare it as void, illegal and inoperative in law.
8. I have heard the counsel appearing on behalf of the petitioner, counsel appearing on behalf of the 5th respondent, counsel appearing on behalf of the 6th respondent and also counsel appearing on behalf of other respondents.
9. Mr. [ENTITY], learned counsel appearing on behalf of the petitioner submitted that the impugned Annexure-I was misconceived and without jurisdiction, inasmuch as the 5th respondent had no jurisdiction whatsoever for issuing an order like Annexure-1 although in the form of a request. Besides, if the dispute was there as to whether the petitioner was a member of the scheduled caste community or not, could not be the subject matter of any enquiry by the Commission or by any authority. It could be challenged by an election petition only in view of the ban under [SECTION] of the [ACT]. The learned counsel further submitted that petitioner's candidature and his nomination papers were scrutinised by competent authority and found to be valid and at that point of time no objection whatsoever was raised by any of the members including 6th respondent. Election was held and result was declared. However, no election petition was ever filed challenging the validity of election. Mr. [ENTITY] submitted that the dispute as to whether the petitioner belonged to a scheduled caste community or not was an election dispute within the meaning of [SECTION] of the [ACT]. Besides, even assuming that the [ENTITY] had power to make such enquiry and also to make a request to the various authorities as mentioned in Annexure-I then also this order/ request was bad for violation of, the principles of natural justice. The learned counsel submitted that the entire order was vitiated for non-application of mind which was patent on the face of it.
10. Mr. [ENTITY], learned counsel appearing on behalf of the 5th respondent, on the other hand, supported the Annexure-I request made to the various authorities. According to him it was not an election dispute and, therefore, the question of the bar under [SECTION] was inapplicable. The 5th respondent passed the said order making request to the various authorities in exercise of the plenary power of the [ENTITY] over and above the power given under [SECTION] for upholding the democratic rights. The [ENTITY] had much wider power under the said Article for "superintendence", "control" and "direction". The power conferred under [SECTION] of the [ACT] on the [ENTITY] is unlimited as will appear from the various decisions mainly the decision of the Supreme Court in [ENTITY] v. The Chief [ENTITY]er, New Delhi, reported in [PRECEDENT].
11. Mr. [ENTITY], learned counsel appearing on behalf of the ,6th respondent also submitted that the [ENTITY] the 5th respondent had the right to make requests like in Annexure-I. The Supreme Court in [ENTITY]'s case (supra) also very clearly said that the [ENTITY] had power in appropriate case to make such order which may not be within the laws made by the Parliament and State Legislature under [SECTION] and [SECTION]. He also had drawn my attention to report submitted by said Shri [ENTITY], Commissioner and Secretary, Government of Assam (Annexure-IX). The report specifically suggested that the petitioner was not a member of scheduled caste community. A close reading of the report would make the matter clear.
12. Mr. [ENTITY] had placed a catena of decisions on the point of the violation of the principles of natural justice and also the power of the [ENTITY]. Similarly, Mr. [ENTITY], learned counsel for the 5th respondent had also placed several decisions. Mr. [ENTITY] mainly relied on the decision in [ENTITY], India v. Saka Venkata Rao, reported in AIR 1953 SC 210.
13. On the rival contentions of the petitioner as well as the respondents it is to be seen whether the 5th respondent was competent to pass order making request to the various authorities as per Annexure-I. So, before I deal with the matter in controversy, it would be apposite to see what is the power of the [ENTITY] the 5th respondent.
14. [SECTION] of the [ACT] deals with the provisions relating to election. [SECTION] deals with the power of the [ENTITY]. It gives the power of "superintendence", "direction" and "control" of the preparation of electoral roll. I quote [SECTION] Sub-article (1):
"(I) The superintendence, direction and control of the preparation of the electoral rolls for and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this [ACT] shall be vested in a Commission referred to in this [ACT] as the [ENTITY]."
15. [SECTION] provides that subject to the provisions of the [ACT], Parliament may from time to time by law make provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimination of constituencies and all other matters necessary for securing the due constitution of such House or Houses.
16. [SECTION] provides that notwithstanding anything in the [ACT] no election to either house of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate-Legislature. The words, "superin tendence", "direction" and "control" appearing in [SECTION] also empowers the [ENTITY] to act in contingencies not provided by any law that may be made under [SECTION] and [SECTION] and to pass necessary orders for the conduct of the election that is whether a required poll should be held or not in a particular polling station in exercise of the power to conduct of election read with provisions relating to the conduct of Election Rules 1961 made by the Central Government in consultation with the [ENTITY] under [SECTION] of the [ACT] the [ENTITY] is competent to make an order and to decide a dispute relating to the allotment of the symbol to a political parties and to recognise the parties or de-recognise a party for such purpose and in this context it has the power of determination the status of rival groups within the same period and the relevant rule which gives it the power is intra vires. It is entitled to determine the fact of merger or a separation of parties for that purpose.
17. If looked closer to the words, "superintendence", "control" and "direction" appearing in [SECTION] 1) it will appear that these powers have been conferred to the [ENTITY] for preparation and holding of election. It is also correct to say that over and above the law made by the Parliament or State legislature the Commission has also power to make appropriate orders when the laws made by the Parliament or State legislature are not adequate.
18. Under [SECTION] the "superintendence", "direction" and "control" of election is definitely vested in the [ENTITY]er. Before each election to the House of the people and the Legislative Assembly of each State and before the first general election and thereafter before each biennial to the Legislative Council of each State having such Council, the President may also appoint after consultation with the [ENTITY] such Regional Commissioner as he may consider necessary to assist the [ENTITY]. In order to secure independence of the Chief [ENTITY]er it is provided that he can be removed from the office in like manner as a Judge of the Supreme Court and the conditions of his service should not be varied to his disadvantage after his appointment. The [ENTITY]er or the Regional [ENTITY]er cannot also be umoved from the office except on the recommendation of the [ENTITY]er. Subject to the [ACT], the Parliament has been empowered to make law relating to the provisions in regard to all matters relating to or in connection with election and subject to the [ACT] and so far as the provision is not made in that behalf by the Parliament, the Legrislature can do likewise (See [SECTION]). [SECTION] and [SECTION] have to be read along with the entries respectively. Entry No. 72 relates to election to the Parliament to the legislature and Entry No. 37 relates to the election to the Legislature of the State subject to the provisions of law made by the Parliament. The [ENTITY] finds a special place in our [ACT]. Preamble to our [ACT] declares India to be a "sovereign democaratic republic".
Our [ACT] is a federal constitution. We have a free and open society. Every citizen has similar rights and privileges. Free and fair election is, therefore, the basic postulate of a democratic society like ours. The whole scheme of [ENTITY] was considered by the Supreme Court in [ENTITY] v. The Returning Officer, Namakhal Constituency reported in AIR 1952 SC 64. The Supreme Court in the said [ENTITY]'s case (supra) held that word "election" was used in [SECTION] of the [ACT] in a very wide sense i.e. the entire election process from the date of notification till the declaration of the result. [SECTION] puts a complete bar for any Court to consider any dispute during the process of election. This dispute can only be raised by way of election petition within the time mentioned in [ACT] after the declaration of the result.
19. The right to vote or stand as a candidate is not a civil right but a statutory right and is subject to the limitation created by the statute. The power to examine and determine all the matters relating to the election is vested in a special tribunal and entirely a new jurisdiction has been created and that jurisdiction can only be exercised in accordance with the law creating it. Where a right or liability is created by a statute which gives a special remedy for enforcing it, that remedy must be availed of.
20. Having regard to the important functions discharged by the Legislature in democratic countries it has been recognised that all disputes arising out of election should be postponed till the elections are over so as not to dislocate the time schedule for election and such dispute should be raised after the election by an election petition and the above construction is supported by the following scheme of [SECTION] of the [ACT]. Before an election machinery can be brought into operation there are three requisites which are required to be attended to, namely, (1) there should be a set of laws and rules making provisions with repsect to all matters relating to, or in connection with, elections, and it should be decided as to how these laws and rules are to be made; (2) there should be an executive charged with the duty of securing the due conduct of elections; and (3) there should be a judicial tribunal to deal with disputes arising out of or in connection with elections. Justice [ENTITY] in the aforesaid decision further observed that [SECTION] and [SECTION] deal with the first of these requisities, [SECTION] with the 2nd and [SECTION] with the third.
21. [ENTITY]'s case (supra) was followed by the Supreme Court in [ENTITY] v. The Chief [ENTITY]er, New Delhi reported in [PRECEDENT]. The Supreme Court held in the said case that the ambit of [SECTION] is very wide and under [SECTION] [ENTITY]er had the power to make any order in repsect of "superintendence", "direction" and "control". In that sence it can be said that [ENTITY] in exercise of power under [SECTION] can take any action under the law made by the Parliament as well as by the State Legislature and over and above take further action if law made under [SECTION] and [SECTION] are found to be not adequate. The Supreme Court further held that [SECTION] vests in the [ENTITY] the "superintendence", "direction" and "control" of the preparation of rolls for, and conduct of all elections to the Parliament and to the State Legislature and also the election of the President and the Vice President. When appropriate laws were made under [SECTION] and [SECTION] the Commission was required to act in conformity with the provisions made thereunder. Supreme Court in that case further observed that the framers of the [ACT] took care to leaving scope for exercise of residuary power by the Commission in its own right, as a creature of the [ACT], in the infinite variety of the situations that may emerge from time to time in such a large democracy as ours. That was why there was no hedging in [SECTION]. The Commission might be required to cope with the same situation.
Supreme Court again in the said case considered the ban imposed by [SECTION] of the [ACT]. The Court held that it was undisputed that an election could be challenged only under the provisions of the Act. Under [SECTION] of the Act no election should be called in question except by an election petition presented in accordance with the provisions of [SECTION] of the [ACT]. It would be within the power of the High Court as the election court, to give all the appropriate reliefs to do complete justice between the parties. In doing so it would be open to the High Court to pass any ancillary or consequential order to enable it to grant necessary reliefs provided under the [ACT].
22. In [PRECEDENT], the Supreme Court considered the power of the [ENTITY]. In the said decision the Supreme Court observed that [SECTION] of the [ACT] deals with the various provisions regarding the settlement of election dispute.
23. In [ENTITY] Omar v. R.K. Trivedi reported in AIR 1986 SC 111 also the Supreme Court considered the power of [ENTITY] as enshrined in [SECTION]. In that case the Supreme Court considered the power of the [ENTITY]. I quote the relevant portion of the said judgment at page 115:
"9. The constitutional scheme with regard to the holding of the elctions to parliament and the State Legislatures is quite clear. First, the [ACT] has provided for the establishment of a high power body to be in charge of the elections to Parliament and the State Legislatures and of elections to the offices of President and Vice President. That body is the Commission. [SECTION] of the [ACT] contains detailed provisions regarding the [ACT] of the Commission and its general powers. The Commission consists of the Chief [ENTITY]er who is appointed by the President and it may also consist such number of other [ENTITY]ers, if any, as the President may from time to time fix, who are also to be appointed by the President. When [ENTITY]ers are appointed, the Chief [ENTITY]er becomes the Chairman of the Commission. There is provision for the appointment of Regional Commissioners to assist the Commission. In order to ensure the independence and impartiality of the Commission, it is provided that the Chief [ENTITY]er shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court of India and that the conditions of service of the Chief [ENTITY]er shall not be varied to his disadvantage after his appointment. An [ENTITY]er or a Regional Commissioner cannot be removed from office except on the recommendation of the Chief [ENTITY]er. The superintendence, direction and control of the conduct of elections referred to in [SECTION] of the [ACT] are entrusted to the Commission. The words 'superintendence', 'direction', and 'control' are wide enough to include all powers necessary for the smooth conduct of elections. It is, however, seen that Parliament has been vested with the power to make law under [SECTION] of the [ACT] read with [SECTION] to the [ACT] with respect to all matters relating to the elections to either House of Parliament or to the House or either House of the Legislature of a State subject to the provisions of the [ACT]. Subject to the provisions of the [ACT] and any law made in that behalf any Paliament the Legislature of a State may under [SECTION] read with [SECTION] to the [ACT] make law relating to the elections to the House or houses of Legislature of that State. The general powers of superintendence, direction and control of the elections vested in the Commission under [SECTION] naturally are subject to any law made either under [SECTION] or under [SECTION] of the [ACT]. The word 'election' in [SECTION] is used in a wise sense so as to include the entire process of election which consists of several stages and it embraces many steps some of which may have an important bearing on the result of the process. India is a country which consists of millions of voters. Although they are quite conscious of their duties politically, unfortunately, a large percentage of them are still illiterate. Hence there is need for using symbols to denote the candidates who contest elections so that the illiterate voter may cast his vote in secrecy in favour of the candidate of his choice by identifying him with the help of the symbol printed on the ballot paper against his name."
24. In [PRECEDENT], Supreme Court observed at page 927
"(a) when there is no Parliamentary legislation or rule made under the said legislation, the Commission is free to pass any orders in respect of the conduct of elections,
(b) where there is an Act and express Rules made thereunder, it is not open to the Commission to override the Act or the Rules and pass orders in direct disobedience to the mandate contained in the Act or the Rules. In other words, the powers of the Commission are meant to supplement rather than supplant the law (both statute and Rules) in the matter of superintendence, direction and control as provided by [SECTION].
(c) where the Act or the Rules are silent, the Commission has no doubt plenary powers under [SECTION]-to give any direction in respect of the conduct of election, and
(d) where a particular direction by the Commission is submitted to the Government for approval, as required by the Rules, it is not open to the Commission to go ahead with implementation of it is its own sweet will even if the apporoval of the Government is not given."
25. In Inderjit Barua etc. etc. v. [ENTITY] of India, reported in AIR 1984 SC 1911, the Supreme Court considered the provisions of [SECTION]. According to the Supreme Court finality of electoral rolls could not be assailed in a proceeding challenging the validity of an election held on the basis of such electoral rolls. In short, no displane during the period of election process i.e. from the date of notification till the declaration can be questioned in any Court. Besides, the Court further held that dispute could be raised in an election petition in respect of each constituency even though the dispute might be common to all the constituencies.
26. Mr. [ENTITY], learned counsel for the petitioner in his argument emphasised that the question as to whether the petitioner was a member of the scheduled caste was a disptue. This ought to have been raised at the time of scrutiny of the election papers and if it was not done at least this ought to have been challenged by filing an election petition after the declaration of election result. As this was not done, the [ENTITY]er had no power whatsoever to make request or pass order to take appropriate action for alleged giving of false statement that the petitioner belonged to a scheduled caste community (Namasudra). Mr. [ENTITY] further submitted thuat the power of "superintendence", "control" and "direction" given under [SECTION] was only in respect of the preparation of electrol rolls and for holding of election. After the declaration of the results, the [ENTITY]er 5th respondent had no role to play, at least for the purpose of election that had been held. Therefore, the requests made in the impunged Annexure I order were without jurisdiction.
27. Mr. [ENTITY], learned counsel for the 2nd respondent on the other hand, submitted that it was true that in case of an election dispute, it could be challenged only by way of election petition. According to him there was no election dispute and, therefore, the question of filing an election petition did not arise at all. The [ENTITY] was, however, duty bound to see that the election was held in free and fair manner. If any candidate was returned by making false representation, the [ENTITY] would not be a silent spectator and become helpless to do anything. In fact, over and above the law made under the provisions of [SECTION] and [SECTION], [SECTION] of the [ACT] conferred plenary power to the [ENTITY]. Therefore, [ENTITY] in exercise of the plenary power had given those directions. The existence of plenary power of the [ENTITY] had been recognised by the Supreme Court in [ENTITY]'s case (supra) and also in case of [ENTITY] (supra).
28. Mr. [ENTITY], learned counsel also supported the action of the 5th respondent [ENTITY]. The learned counsel submitted that the fact that the petitioner did not belong to scheduled caste came to the knowledge of the 6th respondent after the delaration of the result and, therefore, immediately after coming to know about it, submitted a memorandum to the [ENTITY] stating the entire fact and the [ENTITY] after making some preliminary enquiry passed the impugned Annexure-I order. According to him this order was passed in accordance with law. Mr. [ENTITY] drew my attention to Annexure IX and also relied on a decision reported in AIR 1953 SC 210 ([ENTITY], India v. Saka Venkata Rao.
29. In [ENTITY]'s case (supra), the Supreme Court dealt with in details regarding the law of election of this country. Justice [ENTITY] AH while dealing with this matter in the said judgment considered the question whether law of election in this country contemplated that there should be two attacks on matters connected with the election proceedings, one, while they were going on by invoking the extraordinary jurisdiction of the High Court under [SECTION] of the [ACT] and, the other, after they had been completed by means of an election petition and opined thus at page 68-
" In my opinion, to affirm such a position would be contrary to the scheme of [SECTION] of the [ACT] and the Representation of the [ACT], which as I shall point out later, seems to be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any Court If the grounds on which an election can be called in question could be raised at an earlier stage and errors, if any, are rectified, there will be no meaning in enacting a provision like [SECTION] and in setting up a special tribunal. Any other meaning ascribed to the words used in the article would lead to anomalies, which the [ACT] could not have contemplated "
Justice [ENTITY] in the said judgment concluded thus-
"(1) Having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognized to be a matter of first importance that election should be concluded as early as possible according to time schedule and all controversial matters and ail disputes arising out of elections should be postponed till after the'elections are over, so that the election proceedings may not be unduly retarded or protracted.
(2) In conformity with this principle, the scheme of the election law in this country as well as in England is that no significance should be attached to anything which does not affect the 'election' and if any irregularities are committed while it is in progress and they belong to the category or class which, under the law by which elections are govened, would have the effect of vitiating the 'election' and enable the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any Court while the election is in progress."
30. In [ENTITY] and another (supra), the Supreme Court considered the scope of [SECTION]. The Supreme Court in the said case observed thus at page 890-
"What is the scope and ambit of [SECTION] of the [ACT]? The [ACT] ushered in a Demoratic Republic for the free people of India. The founders of the [ACT] took solemn care to devote a special chapter to Elections niched safely in [SECTION] of the [ACT]. Originally there were only six articles in this Part opening with [SECTION]. The penultimate Article in the chapter, as it stands, is [SECTION] which puts a ban on interference by courts in electoral matters. We are not concerned in this appeal with the newly added [SECTION] which is the last Article to close the chapter."
In the said case the Supreme Court further observed thus-
"[SECTION] vests in the [ENTITY] the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of the President and Vice President held under the [ACT] [SECTION] is thus couched in wide terms. Power in any democratic set up, as is the pattern of our polity, is to be exercised in accordance with law. That is why [SECTION] and [SECTION] provide for making of provisions with respect to all matters relating to or in connection with elections for the Union Legislatures and for the State Legislatures respectively. When appropriate laws are made under [SECTION] by Parliament as well as under [SECTION] by the State Legislatures, the Commission has to act in conformity with those laws and the other legal provisions made thereunder. Even so, both [SECTION] and [SECTION] are 'subject to the provisions' of the [ACT] which include [SECTION] and [SECTION]. Since the conduct of all elections to the various legislative bodies and to the offices of the President and the Vice President is vested under [SECTION] in the [ENTITY], the framers of the [ACT] took care to leaving scope for exercise of residuary power by the Commission in its own right, as a creature of the [ACT], in the infinite variety of situations that may emerge from time to time in such a large democracy as ours. Every contignency could not be foreseen, or anticipated with precision. That is why there is no hedging in [SECTION]. The Commission may be required to cope with some situation which may not be provided for in the enacted laws and the rules. That seems to be the raison d'etre for the opening clause in [SECTION] and [SECTION] which leaves the exercise of powers under [SECTION] operative and effecive when it is reasonably called for in a vacuous area "
31. The main thrust of Mr. [ENTITY]'s argument was that the [ENTITY]er had no authority or jurisdiction to pass the impugned Annexure I order. The power of "superintendence", "direction" and "control" of the preparation of electoral rolls for and the conduct of elections referred to in [SECTION] is applicable only in respect of election and declaration of election result. After declaration of result the power of [ENTITY]er conferred under [SECTION] ceases and he has no further role to play. Any dispute relating to election or preparation of electoral roll can be challenged after the result by way of an election petition before a Tribunal, i.e., the High Court at present as held by .various decisions of the Supreme Court. [SECTION] specifically puts bar on Court to make any enquiry in respect of any dispute relating to election to either House of Parliament or to the House or either House of the State Legislature.
32. Mr. [ENTITY], on the other hand, submitted that there was no election dispute and, as such, the [ENTITY]er had passed the impugned order making a request to various authorities to take appropriate action and this had been done for ensuring free and fair election. It was the duty of the [ENTITY]er in a democratic country like ours to see that the elections are held in free and fair manner. Free and fairelection is one of the important pillars of democracy. While doing so, the [ENTITY]er had exercised the plenary power conferred under [SECTION].
33. I have already discussed various decisions of the Supreme Court. From the decisions discussed above, it is now well settled law that any dispute regarding holding of election can be challenged only by way of election petition and no other form is available to the persons aggrieved, to challenge any dispute regarding holding of an election as there is a specific bar under [SECTION]. On careful reading of [SECTION] and the decisions given by the Apex Court in vnrious cases mentioned above, it appears that the [ENTITY]er has the power in respect of the election matters. [SECTION] of the [ACT] empowers the Parliament by law to make provisions with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the Houses of the State Legislature including preparation of electoral rolls, delimitation of constituencies and all other matters necessary for securing due constitution of such House or Hosues.
[SECTION] empowers the legislature of a State, from time to time, by law, to make provisions with respect to all matters relating to, or in connection with, elections to the House or either Houses of the Legislature of the State including the preparation of electorol rolls and all other matters necessary for securing the due constitution of the House or Houses. Thus, from the reading of [SECTION] and [SECTION] of the [ACT], I find that the Parliament or the State Legislature have been empowered to make law for the purpose of preparation of electoral rolls, delimitation of constituencies and all other matters for securing due constitution of such House or Houses and when no law is made by the Parliament in respect of certain matters, the State Legislatures have been empowered to make laws relating to preparation of electorol rolls and other matters under [SECTION].
34. Though the [ENTITY] has been given the power of "superintendence", "direction" and "control" by [SECTION] of the [ACT], the Commission has to work in accordance with law or laws that may be made by the Parliament and State Legislature in exercise of power under [SECTION] and [SECTION] as aforesaid. The Commissioner cannot function against the prescribed provisions of law made by the Parliament and State Legislature under the aforesaid two Articles. But then, the laws that may be made either under [SECTION] or under [SECTION] may not be exhaustive. There may be areas where the laws made by the Parliament or the State Legislature do not cover all the necessities for due performance of election and in that case the [ENTITY] will not be without any power to make such orders which are necessary for holding of election, etc. This power can be said to be a pleanary power of the [ENTITY]. Therefore, the submission of Mr. [ENTITY] that the [ENTITY] has been vested with the plenary power to deal with the election matters for upholding the democratic right in the [ACT] is not without substance. But then, a close reading of [SECTION] will also make it clear that power given under [SECTION] to the [ENTITY] is only in respect of preparation of electorol roll and for conduct of elections. Even though the [ENTITY] has plenary power to cover up the areas where no law is made by the Parliament or the State Legislature for holding free and fair election, such power of the Commission is restricted to "superintendence", "direction" and "control" of the preparation of the electoral rolls for and the conduct of elections. Once the eletion is over, and the result is declared that can be challenged by way of election petition as mentioned in [SECTION].
(Emphasis laid)
35. Next question is whether the [ENTITY] has got any jurisdiction to decide the legality and validity of an election which later on is found to be contrary to the provisions of law. As held in various decisions by the Apex Court the function of the [ENTITY] comes to an end with the declaration of the election result. Therefore, after the declaration of election, in my opinion, [ENTITY] has no right arid jurisdiction to scrutinise about the legality and validity of the preparation of electorol rolls and holding of elections. If any dispute arises, that may be challenged only by way of election petition.
36. Coming to the present case in hand, the petitioner was one of the candidates front 35 Abhayapur Assam Legislative Constituency reserved for scheduled caste. He claimed to be a member of the Namasudra community which is recognised as one of the scheduled caste communities in the State of Assam. He submitted certain certificates including one issued by the Deputy Commissioner. As per the caste certificate he belongs to Namasudra community recognised as one of the scheduled caste communities in Assam.
37. As per the provisions of [ACT], in case of scheduled caste candidates, Scheduled Caste M.L.As. and Scheduled Caste M.Ps. and Members of the Advisory Council for Welfare of Scheduled Castes are authorised to issue Caste Certificate within the jurisdiction of the District which they represent and the Chairman of the Sub-divisional Scheduled Castes Development Boards within the jurisdiction of the Sub-divisions concerned, and the President and Vice-Presidents of the Asom Anusuchit Jati Parishad and the Presidents of different Districts Sub-divisions of the Asom Anusuchit Jati Parishad are authorised to issue Caste Certificate within the jurisdiction of the District/Sub-divisions concerned. Similarly, jn case of scheduled tribes candidates, Scheduled Tribes M. L. As., Scheduled Tribes M. Ps. and Mmebers of the Advisory Council for the Welfare of Scheduled Tribes, Presidents and Vice-Presidents of the All Assam Tribal Sangha and District Units of the All Assam Tribal Sangha and the Chairman of the Integrated Tribes Development Project Implementation Committees and the Sub-divisional Tribal Development Boards are authorised to issue Castes Certificates. The Presidents of the Districts Tribal Sangha and the Chairman of the Integrated Tribal Development Project Implementation Committees and the Sub-Divisional Tribal Development Boards also are authorised to issue Caste Certificates within the jurisdiction of the Sub-divisions concerned. The Scheduled Tribes M. L. As. and M. Ps. are similarly authorised to issue Caste certificates within the jurisdiction of their respective Districts. The President and Vice-Presidents of All Assam Tribal Sangha are authorised to issue Caste Certificatess in respect of the entire State. The certificate so issued except by M. L. As. and M. Ps. shall be countersigned by the Deputy Commissioner or the Sub-divisional Officer of the concerned Districts/ Sub-divisions of which the candidate is a resident. Be that as it may, the petitioner had been issued certificates by competent authorities like M. L, A. and the Deputy Commissioner, etc. Normal presumption would be that those certificates had been issued after proper enquiry; however, it is always subject to challenge. But then, it can be done by the authority issuing the certificate.
38. The petitioner submitted his nomination paper claiming himself to be a member of scheduled caste community. During scrutiny nobody challenged it and the election was held and the result was also declared and he was declared elected. Some time thereafter, 6th respondent submitted a memorandum to the 1st respondent-the Chief [ENTITY]er, stating that the petitioner did not belong to the scheduled caste community and, therefore, he committed fraud by misleading the authority. On the basis of the memorandum the 5th respondent made a request to the Government to make enquiry regarding the allegations made in the memorandum. Sri [ENTITY], Commissioner and Secretary to the Government of Assam, Panchayat and Rural Development was entrusted with the job of making enquiry. After the enquiry, Shri [ENTITY] submitted Anne-xure-IX report dated 10-2-94. Shri [ENTITY] examined some officials of the Falakata L.A. Constituency. However, he did not examine any person except the 6th respondent and one [ENTITY], S. D. O. (Civil), Alipur-duar in respect of 35 [ENTITY] Constituency. From his report it appears that the Pradhan of Joteswar-II Gram Panchayat, West Bengal, informed one [ENTITY], Advocate of [ENTITY] that Shri [ENTITY], father of the petitioner, was of general caste. Therefore, the report suggested that probably the petitioner did not belong to Namasudra community. On the basis of the said report the [ENTITY] 5th respondent made the Anne-xure-I order making request to the various authorities including the Speaker of the State Legislative Assembly to take action.
39. - As I have already discussed, the [ENTITY] has been conferred with wide power of "superintendence", "control" and "direction" besides it is to act in accordance with law made by the Pai liament or the State Legislature under the provisions of [SECTION] and [SECTION]. Over and above, the [ENTITY] has plenary power where the provisions of law made under [SECTION] and [SECTION] are found to be inadequate. But then, this power is restricted only for the purpose of preparation and holding of election only. Such power cannot be exercised by the [ENTITY] after the declaration of the result in connection with matters relating to the said election. [SECTION] does not confer any power, not to speak of plenary power in respect of such matter. In this case, the [ENTITY] made request to take action by the authorities referred to in Annexure-I order. All these requests and directions appear to me relate to the matters in respect of the election alredy held. So far the future election is concerned, in my opinion, the [ENTITY]er has all the powers under [SECTION] of the [ACT] including the plenary power but not in respect of the matter relating to the election already held.
40. It was argued that Annexure-I order could not be challenged as no order had been specifically passed against the petitioner. Annexure-I contained only requests. It is true that on reading the impugned order I do not find any direction or order in respect of any matter relating to the election already held. May be, the 5th respondent is conscious about its power after the declaration of the result. But when a High [ACT]al Authority makes some request, some times it partakes the character of a direction and the petitioner has every 'reason for apprehension that action might be taken against him. This may amount to a threatened action. Over and above, the [ENTITY] has no jurisdiction whatsoever to make any enquiry and pass any order giving directions as contained in Annexure-I order. 5th respondent being a high [ACT]al functionary, has to exercise only the powers conferred to it. In may opinion, the Commission may not take the role of an adviser to the Government or the Speaker. It is normally expected that the Government and the Speaker are well aware of their duties and no advice whatsoever is called for to the Government or a Speaker. This may, in my opinion, amount to interference with the duties of the State Government as well as the Speaker. I find sufficient force in the submission of Mr. [ENTITY].
41. In view of my decision regarding the jurisdiction of the [ENTITY] to pass order as per Annexure-I, I do not consider it expedient to consider about the violation of the principles of natural justice as argued by Mr. [ENTITY]. That being the position, I find the Annexure-I order is illegal and without jurisdiction and liable to be set aside which I accordingly do. The petition is accordingly allowed in the light of the observation made herein above.