WP(C) 499/2008 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA Heard Mr. R.P. Sharma, learned Sr. counsel assisted by Mr. A. Matin, lea rned counsel for the petitioners and Mr. M.U. Mahmud, learned Standing counsel, Election Commission. I have also heard Ms. R. Chokraborty, learned State counsel . By means of this writ petition, the petitioners who are the candidates of the ongoing Panchayat Election have prayed for a direction to the respondents , more particularly the Election Commission, to hold fresh poling in all the pol ing stations numbering 621 of Hailakandi District. Earlier the elections were he ld on 09.01.08. Because of mass scale disturbances, interruptions and illegaliti es on the date of poll in different poling stations, there was recommendation fo r repoling in 309 poling stations. In this connection, the Deputy Commissioner o f the District submitted his report on 10.01.08 advised for repoling in 309 poli ng stations. Taking into account the aforesaid report and various other informat ion, the State Election Commission decided to go for fresh poling in 371 poling stations. It has been so done by the impugned order dated 04.02.08 (Annexure-6). As per the said order, there will be repoling on 12th and 15th February, 2008 i n 371 poling stations. Be it stated here that the date of 15th February, 2008 ha s now been modified as 14th February, 2008. Upon reference to Annexure-5 A, 5 B and 5 C representations submitted by the political parties to the State Election Commission urging for holding fresh election throughout the District, the petitioners have contended that the decis ion to hold fresh election in 371 poling stations only instead of all the poling stations throughout the District numbering 621 will not lead to free and fair e lection. According to the writ petitioners, there was large scale violence and i llegalities in conducting the election throughout the District and in such a sit uation it was incumbent on the part of the State Election Commission to hold fre sh lection throughout the District. Mr. Mahmud, learned Standing Counsel, Election Commission was requested to obtain instruction in the matter. He has been furnished with written instruct ion on 11.02.08 by the Secretary, Assam State Election Commission. As per the sa id written instruction, the Election Commission, upon evaluation of the fact sit uation involved in the incidents that took place on the date of poling, i.e. 09. 01.08, has taken the conscious decision to go for fresh poling in 371 poling sta tion as against the suggestion made by the jurisdictional Deputy Commissioner to hold fresh poling in 309 poling station. Upon reference to the said written ins truction and documents annexed thereto, Mr. Mahmud, learned Standing counsel, El ection Commission submits that since the Election Commission has taken a decisio n in consideration of the facts and materials involved, the writ Court will not sit on appeal over the impugned decision. Mr. R.P. Sharma, learned Sr. counsel representing the petitioners submit s that all the political parties were invited by the Election Commission for a d ecision in the matter. All the political parties unanonymously contended before the Election Commission that considering the magnitude of the large scale violen ce and illegalities on the date of poling, there should be fresh election throug hout the District instead of only in some of the poling stations out of 620 po ling stations. Since the matter involves disputed questions of facts and the Election C ommission has passed the impugned order on the basis of the reports etc., I am o f the considered opinion that writ Court exercising the power of judicial review under Article 226 of the Constitution of India cannot issue any mandamus to the Election Commission to hold election throughout the District. The matter involv es scrutiny and evaluation of the facts and circumstances involved on the date o f poling, i.e. on 09.01.08. If all the political parties have desired that there should be fresh poling throughout the District, it is for the Election Commissi on to consider the same in accordance with law. In view of the above, the matter is left open for the Election Commissio n to decide as to whether the circumstances involved in the case require fresh e lection throughout the District instead of only 371 poling stations. The writ petition is disposed of. The petitioners may obtain a certified copy of this order and approach the Election Commission for its appropriate dec ision in the matter in accordance with law. Upon approaching the Election Commis sion by the petitioners with appropriate representations, same shall be decided as expeditiously as possible.