MOHINDER SINGH GILL & ANR. versus THE CHIEF ELECTION COMMISSIONER, NEW DELHI & ORS.

Citation: [1978] 2 S.C.R. 272 · Decided: 02-12-1977 · Supreme Court of India · Bench: M. HAMEEDULLAH BEG · Disposal: Dismissed

Cited by 67 judgment(s) · cites 6 · see the full citation network in Lexace

Judgment (excerpt)

A 
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' 
MOHINDER SINGH GILL & ANR. 
v. 
THE CHIEF ELECTION COMMISSIONER, NEW DELHI & ORS. 
December 2, 1977 
[M. H. BEG, C.J., P. N. BHAGWATI, V. R. KRISHNA IYER, p, K. 
GOSWAMI AND P. N. SHINGHAL, JJ.] 
Constitution o1 India, 1950-Arts. 324 and 329(b)-Scope of --Counting' 
of votes in n1any segments of the constituency cornpleted-Before declaration 
of final result ballot papers and ballot boxes of some segments destroyed in 
mob _violence-~le_ction_ Comn1ission ordered repoll of the entire constituency-
Electzon Commission, if competent to order 11epoll of entire constituency. 
Article 226-Election Commi'ssion's order for fresh poll in enti're consti· 
tu~ncy-lf could be challenged in a writ petition. 
Representation of the 
People 
Act, 
1950-Ss. 80 and 100(1)(d)(iv)-
Scope of. 
Natural justice-Issue of notice to affected parties and opportunity to hear 
before pas<sing an order under Art. 329(b)-If necessary-Notioe, if shoufd 
be given to the whole constituency. 
Words and phrases-"Civil 
consequence"-Election 
"called in questioli' 
meaning of. 
Article 329 (b) of the Constitution provides that notwithstanding anything 
in the Constitution no election to eiher 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. 
Section lOO(l)(d)(iv) of the 
Representation of the 
People 
Act, 1951 
provides that if the High Court is of the opinion that the result of the election 
so far as it concerns a returned candidate has been materially affected by any 
non·compliance with the provisions of the Constitution or of this Act or of 
any rules or orders made under this Act the High Court shall declare the 
election of the returned candid.ate to be void. 
The appellant and the third 
respondent were candidates 
for election in 
a Parliamentary constituency. The appellant 
alleged that when at the last 
hour of counting it appeared that he had all 
but won the election, at the 
instance of respondenjt no. 3 mob violence broke out and postal ballot papers! 
and ballot boxes from certain Assembly 
segments, while being 
brought for 
counting, were destroyed and the Returning officer was forced to postpone the 
declaration of the result. The Returning Officer reported the happening by 
wireless to the Chief Election Commissioner. An officer of the Election Com-
mission who was deputed to be an observer at the 
counting stage gave 
a 
written report to the Commission in 
addition to an oral 
report about the 
incidents which marred the last stages of the counting. The appellant met 
the Chief Election 
Com.missioner and 
requested him to 
declare the result. 
EventuaUy, however, the Chief Election 
Com.missioner issued a 
notification 
stating that the counting in the constituency was seriously disturbed by violence 
and that ballot papers of some of the assembly segments had been destroyed 
by violence, as a consequence of which it was not possible to complete the 
counting of votes in the constituency and declare the result with any degree 
of certainty. The notification further stated that takine all circumstances into 
account, the Commission was satisfied that th-~ poil had been vitiated to such 
an extent as to affect the result of the 
election. In exercise of the 
powers 
under Art. 324 of the Constitution it cancelled 
the poll 
already held 
and 
ordered a re·poll in the entire constituency. 
In a petition under Art. 226 of the Constitution the appellant alJeged that 
the action of the Chief Election Commissioner in ordering repoll in the whole 
constituency was arbitrary and violative of any vestige of fairness. 
The re~· 
pendents in reply urged that the High Court had no iurisdiction to entertain 
the writ petition in view of Art. 329(b) and that the Commission's action was 
well within its powers under Art. 324. 
M. S. GILL v. C.E.C. 
273 
The High Court dismissed the writ petition holding that it had~ no jurisdic-
tion to entertain the writ petition. Yet on merits it held that Art. 324 goes 
not impose any limitation on the function contemplated under that article; 
that principles of natural justice were 
not specifically provided for in that 
article but were totally excluded while passing the impugned order and that 
even if the principles of natural justice were impliedly to be obs

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