Judgment :- Biswanath Somadder, J. To be or not to be; even that is not the question! Panchayat election must be held in the State of West Bengal – as soon as possible – both parties cry out in unison! Yet, the West Bengal State Election Commission and the State of West Bengal have locked horns and are now before a Constitutional Court seeking appropriate directions for holding such election! The instant writ petition has been filed by the West Bengal State Election Commission (hereinafter referred to as “the Commission”), principally seeking the following reliefs: -“a) A Declaration that the 1st & 2nd impugned Notifications dated 22nd March 2013 and 26th March 2013 are unconstitutional, illegal and void; b) A writ of and/or in the nature of Mandamus do issue commanding and directing the respondent State to forthwith withdraw and cancel the impugned notifications; c) A writ of and/or in the nature of Mandamus do issue commanding and directing the respondent State and its servants and agents to forthwith implement the requirements spelt out in its letters and in particular those contained in the letter dated 25th March 2013 and thereafter issue a notification under S.42 of the West Bengal Panchayat Elections Act in accordance with law, and effectively cooperate with the Commission for holding the Panchayat elections as early as possible; d) A Declaration that Section 42 of the West Bengal Panchayat Elections Act, 2003 read with Section 8 of the West Bengal State Election Commission Act, 1994 is ultra vires as it offends Article 243K of the Constitution of India;” Initially, when the matter was taken up for hearing, this Court – considering its importance and paucity of time – had requested the learned senior counsel representing the Commission and the learned Advocate General to sit across the table and try and resolve the issues sought to be raised in the instant writ petition, out of Court. However, since the impasse could not be resolved across the table, this Court has now been left with no other option, but to decide the matter on its merit. Before going into interpretation of certain provisions of law, which would ultimately decide the fate of holding Panchayat election in the State of West Bengal, it is necessary, at first, to advert to the submissions made on behalf of the Commission and the State. Before going into interpretation of certain provisions of law, which would ultimately decide the fate of holding Panchayat election in the State of West Bengal, it is necessary, at first, to advert to the submissions made on behalf of the Commission and the State. The main thrust of the submission advanced by the learned senior counsel representing the Commission was centered around the consultative process required to be followed before the State Government issued a notification under section 42 of the West Bengal Panchayat Elections Act, 2003 (hereinafter referred to as “the Act”). According to the learned senior counsel, there were several outstanding issues, which were required to be resolved through effective and meaningful consultation, before the State could issue the impugned notifications dated 22nd March, 2013 and 26 th March, 2013 under section 42 of the Act. During the course of hearing of the matter, the State Government had issued another notification under section 42 of the Act on 04 th April, 2013, which has been taken on record in terms of an earlier order dated 09th April, 2013. The learned senior counsel appearing on behalf of the writ petitioner submitted that there were primarily four outstanding issues as on 16th April, 2013. Without resolving those issues – through an effective and meaningful consultative process – the State of West Bengal could not have issued the notification under section 42 of the West Bengal Panchayat Elections Act, 2003, on 22nd March, 2013. The four outstanding issues are as follows: 1. Deployment of adequate security forces including Central Paramilitary Force (CPMF). 2. Appointment of balance 134 observers as per section 134 of the West Bengal Panchayat Elections Act, 2003. 3. Phasing of the elections, i.e. the number of phases and grouping of the Districts. 4. Funding by the State. So far as the consultative process for deployment of Central Paramilitary Force is concerned, it was submitted by the learned senior counsel for the Commission that right from 27th September, 2012, the Commission was pleading with the State Government for deployment of Central Paramilitary Force for the ensuing Panchayat General elections. 4. Funding by the State. So far as the consultative process for deployment of Central Paramilitary Force is concerned, it was submitted by the learned senior counsel for the Commission that right from 27th September, 2012, the Commission was pleading with the State Government for deployment of Central Paramilitary Force for the ensuing Panchayat General elections. On 27th September, 2012, the State Election Commissioner wrote to the Chief Secretary, Government of West Bengal, bringing it to the notice of the State Government that the Commission had reviewed the law and order problem that had cropped up during the last Panchayat General Election, held in the year 2008. The Commission had also assessed the ground realities including the situation prevailing in the naxalite affected areas in the State. On the basis of such exercise, the Commission firmly held that deployment of Central Paramilitary Force in adequate numbers was absolutely essential, in addition to the State Police Force, for conducting the elections in a peaceful, free and fair manner. The other relevant portion of the letter dated 27 th September, 2012 is set out hereinbelow: - “Apart from protecting the polling stations, which number around 62,000 and guarding of strong rooms and counting centres, the CPMF will also be required for conducting flag marches, point patrolling and other confidence building measures. Their services will further be required for area domination in the pre-poll period. In view of the above requirements, the Commission will require at least 800 companies of the CPMF in the 17 districts going for the Panchayat polls, in phases. They shall be placed under the control of the Commission, and their deployment plan shall be drawn up by this Commission in consultation with the concerned authorities and the State Level Force Coordinator, (if any) appointed by the Ministry of Home Affairs. You are further requested to ensure that 300 companies of the CPMF are available during the nomination phases of the elections. You are, therefore, requested to take up the matter with the concerned authorities in the Ministry of Home Affairs and keep this Commission informed about the developments in this regard.” It was specifically contended by the learned senior counsel for the Commission that the request of the Commission – as stated in the letter dated 27th September, 2012 – was never responded to by the State Government. The next letter he referred to was the Commission’s letter dated 17th December, 2012, which was issued by its Secretary and was addressed to the Principal Secretary to the Government of West Bengal, Panchayats and Rural Development Department. The Secretary of the Commission in the said letter reiterated the Commission’s view with regard to deployment of Central Paramilitary Force by stating as follows: - “The Commission also firmly holds the view that deployment of Central Paramilitary Forces in adequate numbers is absolutely essential in addition to the State Police Force for conducting the elections in a peaceful, free and fair manner. A proposal in this regard has also been initiated and forwarded to the Chief Secretary, Govt. of West Bengal with the request to take up the matter with the concerned authorities in the Ministry of Home Affairs, Govt. of India.” According to the learned senior counsel for the Commission, instead of acceding to the request of the Commission for deployment of Central Paramilitary Force for the Panchayat election and for holding such election in a multiphased manner, the Principal Secretary to the Government of West Bengal, Panchayats and Rural Development Department by a letter dated 10th January, 2013, intimated the Secretary of the Commission that a single day poll would ensure proper management of law and order instead of multiple day poll. The Principal Secretary also annexed a copy of the letter dated 1st January, 2013, whereby the views of the Director General and Inspector General of Police, Government of West Bengal with regard to holding of poll in one day was enclosed, justifying the necessity of holding of Panchayat poll in one day. The learned senior counsel for the Commission referred to both the letters – that of the Principal Secretary and the Director General and Inspector General of Police, Government of West Bengal extensively and submitted that it would be apparent from the tenor of the said two letters that none of the critical issues that were raised by the Commission were sought to be addressed by the State Government. He specifically referred to the letter of the Director General and Inspector General of Police, Government of West Bengal, dated 1st January, 2013 to highlight the fact that not only the Director General had not stated anything specifically with regard to actual manpower deployment regarding availability of security forces, but – in effect – had admitted that the State Police would not be able to provide armed coverage to all the polling booths. The learned senior counsel for the Commission stressed on the expression “would attempt to”, as used hereinbelow: - “In conducting Panchayat Poll in one day the State Police would attempt to provide armed coverage to as many premises as possible depending on additional availability of force. It is expected that some force from CAPF will be available and Kolkata Police will also be able to provide good number of Police Personnel during the Panchayat Elections. It may also be mentioned here that the State Police will also be able to take services of Regular Home Guards/NVFs/enrolled Civil Police Volunteers/ Village Police Volunteers/NCCs who will be available for this purpose. Regular Home Guard & NVF volunteers are trained in arms handling and can be deployed with arms. Others enrolled personnel like Civil Police Volunteers, Village Police Volunteers, NCCs etc. are also trained and may be deployed effectively. We would not appoint any Temporary Home Guards but only use those who are already enrolled. State Police will also ensure appropriate pre-poll drives against warranties, recovery of illegal arms & ammunitions, ID Liquors, arrest under preventive sections of Laws etc. and ensure that well before the actual Panchayat Poll, criminals & trouble makers are identified, bound down and/or sent to Jail Custody for peaceful conduct of elections. However, there may be some areas which are far flung and inaccessible as well as areas where special circumstances might exist. Depending on prevailing circumstances it could be considered whether for these limited areas poll could be held on same date or separately." The learned senior counsel for the Commission, thereafter, referred to the Commission’s reply to the letter dated 10th January, 2013. According to him, the Director General of Police’s recommendation for conducting single day election was countered by the Commission in its letter dated 24th January, 2013, with the following observations: - “2. According to him, the Director General of Police’s recommendation for conducting single day election was countered by the Commission in its letter dated 24th January, 2013, with the following observations: - “2. After careful consideration of your views proposing a single phase election, supported by the report of DGP as appended to your letter, the Commission is of the view that conducting a single day election for ensuring proper management of law and order arrangements has an inherent weakness. The Commission feels that in a phased election, focused and intensive security arrangements can be made for relatively smaller areas, which is not possible in case of a one day election. Moreover, the success of holding elections in a phased manner has been amply demonstrated in the recently held Assembly/Parliamentary elections which were spread over 3/6 phases. 3. The suggestions of the DGP that there will be no free movement of trouble makers in the event of a single day election also does not stand to reason. The violent incidents that occurred in the last Panchayat General Elections, 2008 were not the result of phased elections, but the failure on the part of the administration to prevent such cases even though a larger number of forces were available per phase. As rightly pointed out by the DGP such incidents can only be forestalled by appropriate and effective preemptive actions in the pre-poll period. 4. Regarding availability of police forces in the state, it has been stated that the police authorities “would attempt to provide armed coverage to as many premises as possible depending on additional availability of forces”. The Commission thinks that any arrangement for maintenance of law and order for such a sensitive and complicated election like the Panchayat General Elections cannot and should not be based on assumptions and probabilities but on the concrete number of forces available with the State Government. 5. During 2008 elections, the number of polling stations were 47,731 and voters were 3,68,72,222. In 2013 the number of polling stations and the number of voters are 57012+ (auxiliary polling booths) and 4,29,06,434 respectively. The number of constituencies and seats thereof in all the three tiers of the Panchayats has also gone up. In 2008 the number of constituencies was 45234 and seats were 51059. In 2013 it is 58716 (provisionally) constituencies and 58764 seats. The number of constituencies and seats thereof in all the three tiers of the Panchayats has also gone up. In 2008 the number of constituencies was 45234 and seats were 51059. In 2013 it is 58716 (provisionally) constituencies and 58764 seats. As far as is known to the Commission, the population to police ratio in West Bengal is very low in comparison to other states like Tamil Nadu, Maharashtra and Andhra Pradesh etc. Therefore, West Bengal is already handicapped for having lesser number of policemen to deal with election related problems. This would definitely affect holding of elections. In addition, West Bengal has densely populated areas and much less police men to provide security for these areas. The Commission holds that the safety and security of the voters, polling personnel and the candidates is of utmost importance and should be accordingly addressed with due seriousness. 6. The Commission had vide its No. Commr –410/SEC/2012 dated September 27, 2012 requested the State Government for requisitioning the services of CPMF to augment the State Police strength (copy enclosed). However, the State Government has not yet communicated the actions taken by it, if any, in this regard. 7. It may be pointed out that even in phased elections in 2008, armed coverage could not be provided to about 20% polling premises in the first phase and 10% in the second phase (relevant copy of the write up of the then DGP is enclosed at Annexure-I). Now that the number of polling stations has increased to about 58,000 with corresponding increase in the number of polling premises, managing elections in a single day, though “ideally” preferable as held by the DGP, will not be practicable in view of the prevailing ground realities. Moreover, mere security of polling stations is not enough. There would be almost 6000 sectors which will have to be manned by security personnel. In addition, strike forces, forces for area domination in the run up to the elections and for confidence building of the voters will be required. All the District Magistrates have in various meetings with the Commission stressed that they need to have sufficient security forces in place from before the nomination stage in order to ensure proper maintenance of law and order. All the District Magistrates have in various meetings with the Commission stressed that they need to have sufficient security forces in place from before the nomination stage in order to ensure proper maintenance of law and order. Therefore, the task of managing so many different requirements for police personnel would have to be looked at seriously and consequently, the Commission feels that the work of managing all these in a one day poll is virtually not possible. On the basis of consultations held with the DGP and Home Secretary as well as feedback received from the District Magistrates, the Commission feels that the State Government does not have adequate police forces to provide armed security for each polling station in the event of a single day election. It may be added that the Commission desires provision of armed security personnel in each polling station. 8. In this context, it may be mentioned that under similar circumstances during the 2008 Panchayat General Elections, the State Government was moved by the Commission to hold elections in three phases which was agreed to by the Government and the election schedule was accordingly finalized (Copy of SEC, West Bengal’s letter No.Commr- 66/SEC/2008 dated January 31, 2008 is enclosed at Annexure-II). 9. In the above circumstances, I am directed to inform you that the Commission continues to hold that free, fair and peaceful elections can only be ensured by holding the same in a phased manner. You are therefore, requested to kindly move the State Government to hold the ensuring “(ensuing)” Panchayat General Elections in at least three phases. 10. In this connection, it may be mentioned that a sizeable number of teachers are inducted as members of polling parties. Since Higher Secondary and Madhyamik Examinations are to commence from the latter half of February and will continue upto the end of March, it may not be possible for them to attend the election training sessions for Presiding and Polling Officers prior to April, 2013. The Commission therefore, in partial modification of its proposed election schedule communicated vide letter no. 1833- SEC/1E/70/2012 dated 17.12.212, suggests that the three proposed phases of election may be fixed on 20.04.2013, 24.04.2013 and 28.04.2013. 11. The Commission therefore, in partial modification of its proposed election schedule communicated vide letter no. 1833- SEC/1E/70/2012 dated 17.12.212, suggests that the three proposed phases of election may be fixed on 20.04.2013, 24.04.2013 and 28.04.2013. 11. The decision of the State Government in this regard may kindly be communicated early to enable the Commission to take necessary preparatory steps for the elections.” The learned senior counsel for the Commission then referred to the letter dated 12th February, 2013, which was in response to the Commission’s letter dated 24th January, 2013. According to him, the relevant portion of the said letter would clearly demonstrate the fact that the State Government had responded to the letter of the Commission dated 24th January, 2013, without even making an attempt to counter the specific stand of the Commission with regard to holding of multiphase Panchayat election with the help of additional security forces, such as the Central Paramilitary Force. He further submitted that even on 12th February, 2013, there were no concrete facts and figures provided by the State Government, which would indicate the number of armed personnel that were to be deployed for use at the polling stations. The relevant portion of the letter dated 12 th February, 2013, is reproduced hereinbelow: “a) As regards security arrangements required for free and fair elections, the State Government feels that ideally a single-day poll would ensure proper management of law and order without free movement of mischief/trouble-makers from one place to another that a multiple-day polling facilitates. b) Multiple phase elections may not help prevent violent incidents. The Panchayat General Elections were held in three phases in 2008 but there was little improvement in the scenario of violent incidents compared with earlier Panchayat General Elections. c) However, taking into account all factors, it is suggested that elections may be held over two days, with one phase covering the districts of Malda, Murshidabad and Uttar Dinajpur and the other phase covering the remaining districts. d) The State Government is also of the view that there will be no dearth of police, NVF, Home Guard, Civic Police Volunteers and other personnel to ensure law and order in the State. Comparisons with Assembly/Parliamentary Elections are not really relevant because Panchayat Elections are local body elections. d) The State Government is also of the view that there will be no dearth of police, NVF, Home Guard, Civic Police Volunteers and other personnel to ensure law and order in the State. Comparisons with Assembly/Parliamentary Elections are not really relevant because Panchayat Elections are local body elections. e) The State Government reiterates that the above views are not based on assumptions and probabilities, but have been firmed up on the basis of ground realities carefully considered at the highest levels of the police and Civil administration. As such, the State Government is of the firm opinion that the Panchayat Elections may be held over two days on 20.04.2013 and 22.04.2013.” According to the learned senior counsel for the Commission, in spite of the letter dated 12th February, 2013, the State did not attempt to provide any concrete response to the specific request of the Commission. Nevertheless, the Secretary of the Commission, by a letter dated 19 th February, 2013, gave a detailed response to the State Government’s letter dated 12th February, 2013, relevant portion whereof, is quoted hereinbelow: - “a) While admitting that preventing free movement of mischief/trouble-makers from one place to another is a necessary measure to ensure peaceful elections, the prime concern is availability of adequate security forces for 57012 polling stations. The Commission holds that the present strength of police forces in the State cannot provide the same for a single phase election. b) Though multiple phase elections may not totally help in ruling out violent incidents, the single phase elections were also not violence-free. Large number of violent incidents occurred in 2003 and earlier Panchayat elections too, leading to many casualities. The Commission holds that phased elections enable the administration to provide much more focussed and intensive arrangements for tackling law and order situations over smaller areas and this advantage cannot be ignored. c) The Commission has been extremely surprised to note the allocation of districts for the proposed two phases. while only three districts namely, Malda, Murshidabad and Uttar Dinajpur having 9119 Polling Stations, have been earmarked for the first phase, the remaining 14 districts including the larger ones like South 24-Parganas, North 24-Parganas, Bardhaman etc. as well as the three districts in the Jangal Mahal areas having total Polling Stations to the tune of - 47,893, have been clubbed together for the second phase. as well as the three districts in the Jangal Mahal areas having total Polling Stations to the tune of - 47,893, have been clubbed together for the second phase. The rationale behind such a grossly lopsided phase-wise distribution of districts has not been spelt out. The Commission feels this exercise should be finalised in consultation with it, as the Commission is under the Constitutional mandate to conduct the polls, in a free and fair manner. However, the Commission firmly holds that the elections should be conducted in at least three phases in view of the present law and order scenario and ground realities. d) The Commission regrets to state that it fails to share the views of the Government regarding availability of adequate security forces in consideration of the present strength of the same. It also doubts the effectiveness of detailing ‘Civil Police’ Volunteers/Village Police Volunteers, NCC etc. in controlling law and order situation during Panchayat election. In this connection, it may be mentioned that the State Government had to requisition CPMF even for conducting only three Assembly bye-elections (by-elections) slated for 23.2.2012. But it has not yet indicted whether it intends to requisition CPMF for the Panchayat General Election as requested earlier by the Commission. While admitting that the Panchayat elections vary from Assembly/Parliamentary Elections in nature and scope, it is also a fact that Panchayat elections are fought generally on local issues in a highly charged up atmosphere and are therefore more prone to violence than Assembly/Parliamentary elections as borne out by the history of earlier Panchayat General Elections. The sheer number of constituencies in the Panchayat election complicates the situation. At present, there are a total of 58,707 constituencies in the three tiers as compared to the Assembly/Parliamentary constituencies numbering 294/42 respectively. In this context, the Commission firmly believes that deployment of considerable number of Companies of CPMF is absolutely necessary to supplement the State forces in the ensuing Panchayat General elections. It may be added that CPMF was provided also for conducting Municipal General Elections in 2010 for 81 Municipalities. f) The Commission further holds that the spacing of the proposed two phases of elections is impracticable. Security forces will require at least required three days between two phases for movement from one place to another. Moreover, it being three tier elections, polling in many cases spills over to the next morning. f) The Commission further holds that the spacing of the proposed two phases of elections is impracticable. Security forces will require at least required three days between two phases for movement from one place to another. Moreover, it being three tier elections, polling in many cases spills over to the next morning. Besides, Panchayat elections have a history of necessitating a good number of re-polls and adequate force has to stay back for this reason. Though it has been asserted that the State Government’s views have been firmed up on the basis of ground realities, carefully considered, the State Government has not indicated the pattern of mobilisation of category-wise forces in concrete terms in the absence of which the Commission cannot consider suitability and adequacy of the security arrangements. I am further directed to state that the Commission reiterates its stand for holding the elections in at least three phases, with law and order, to be managed by a Joint strength of CPMF and State Police force right from the nomination stage. In this connection, it may be pointed out that the dates for Poll suggested earlier by the Commission on 20th, 24th and 28th April, 2013, require to be modified as there was some delay in the districts in finalising the delimitation and reservation of seats for constituencies as well as reservation of seats for office-bearers owing to unavoidable reasons. Rules provide that a clear gap of 9 weeks has to be maintained between the date of publication of the draft order for reservation of seats for office-bearers and the date of poll. As the said order has been published on 14.02.2013, it is suggested that the dates for the poll may be fixed on 28.04.2013, 02.05.2013 and 06.05.2013, after keeping a few days’ cushion for exigencies.” Referring to the contents of the letter dated 19 th February, 2013, the learned senior counsel for the Commission submitted that it would be evident therefrom that the Commission had pointed to the State Government the necessity of joint strength of Central Paramilitary Force and State Police Forces, right from the stage of nomination. He also submitted that the Commission had pointed the delay in finalizing the delimitation/reservation. He also submitted that the Commission had pointed the delay in finalizing the delimitation/reservation. He, thereafter, referred to the letter dated 26th February, 2013, issued by the Secretary of the Commission, addressed to the Additional Chief Secretary Home and Home Secretary, Government of West Bengal which reads as follows :- “I am directed to request you to refer to the State Election Commissioner’s D.O. Letter No. 410/SEC/2012 dated 27.9.2012 addressed to the Chief Secretary on the subject matter mentioned above. It may be pointed out that this issue was also brought to the notice of the State Government in several correspondence with the State Government in P&RD Department. However, this Commission has not yet been intimated as to whether the State Government has since moved the Central Government requisitioning for the 800 Companies of CPMF as requested by the Commission. It is therefore requested to look into the matter and intimate the action so far taken by the Government, at the earliest convenience.” The learned senior counsel for the Commission then placed the letter dated 6th March, 2013, issued by the Additional Chief Secretary, Government of West Bengal, addressed to the Secretary of the Commission, which reads as follows: - “I am directed to refer to your letter No.302-SEC/1E- 70/2012 of 26th February 2013 regarding the deployment of Armed Police Forces for the ensuing Panchayat General Elections 2013 and to state that the views of the State Government on the issue of deployment of police forces have been conveyed vide letter No.891/PN/O/1/1E-3/2012 Part-II dt. 04/03/2013 of the Principal Secretary, Panchayat “(panchayats)” & Rural Development Department. Photocopy of the said letter is enclosed herewith for the information of the Commission.” He submitted that even a plain reading of the letter dated 6th March, 2013, would reveal that the State Government – after referring to the Commission’s letter dated 26th February, 2013, regarding deployment of Central Paramilitary Force – chose to distort the subject of the letter, by referring to deployment of Armed Police Force instead of deployment of Central Paramilitary Force. According to the learned senior counsel for the Commission, this letter dated 6th March, 2013, had prompted an immediate response from the Commission. Its Secretary issued a letter dated 7th March, 2013 (i.e. on the very next day), addressed to the Additional Chief Secretary Home and Home Secretary, Government of West Bengal. According to the learned senior counsel for the Commission, this letter dated 6th March, 2013, had prompted an immediate response from the Commission. Its Secretary issued a letter dated 7th March, 2013 (i.e. on the very next day), addressed to the Additional Chief Secretary Home and Home Secretary, Government of West Bengal. while referring to the letter dated 7th March, 2013, he submitted that the Secretary of the Commission clearly stated that the Commission’s letter dated 26th February, 2013, was specifically for deployment of Central Paramilitary Force for the ensuing Panchayat election and not for Armed Police Forces. He, thereafter, referred to the letter dated 13 th March, 2013, issued by the Election Commissioner, addressed to the Chief Secretary, Government of West Bengal wherein it was stated, inter alia, that actual availability of police force was never provided by the State Government and the State Government was requested to provide for a concrete report detailing actual availability of police force in the State for conducting the Panchayat election, which should not include Village Police, NCC, Civic Police, etc. He further submitted that the Election Commissioner had also specifically drawn the attention of the Chief Secretary, with regard to the State Government’s silence in respect of the specific request made by the Commission for deployment of 800 Companies of Central Paramilitary Force (CPMF) for Panchayat election, in terms of the Commission’s letter dated 27th September, 2012. The Election Commissioner had also requested the Chief Secretary to inform the Commission as to whether the State Government had taken necessary steps for ensuring availability of Central Paramilitary Force and if so, the quantum thereof. The learned senior counsel also submitted that in the said letter dated 13th March, 2013, the Election Commissioner had also requested the State Government to provide the details of arrangement of engagement of police forces from other State. The text of the letter dated 13th March, 2013 is reproduced hereinbelow : “As you are aware this Commission has repeatedly requested the State Government for a concrete report detailing actual availability of police forces in West Bengal for Panchayat polls, with a view to assessing the adequacy of such forces for ensuring free, fair and peaceful Panchayat Elections in consideration of prevailing ground conditions. But the Commission is yet to receive the same. But the Commission is yet to receive the same. I would, therefore, request you to look into the matter and arrange for sending report at your earliest convenience. However, this report should cover only the regular police forces (armed and others) available with the State Government, excepting those to be retained for other necessary duties. This should not include such categories as Village Police, Civic Police, NCC etc. Besides, the Commission had also requested the State Government to arrange for deployment of 800 Companies of Central Para-Military Forces (CPMF) for the above elections vide D.O.No. 410-SEC/2012 dated 27.09.2012. When reminded of the same vide No. 302-SEC/1E-70/2012 dated 26.02.2013, the Additional Chief Secretary, Home Department, vide his No. 832-HS/13 dated 06.03.2013 has intimated that the information on this issue has been provided in the last letter from Principal Secretary, Panchayat “(Panchayats)” & Rural Development Department issued vide No. 891/PN /O/1/1E-3/2012 – Pt-II dated 04.03.2013. However, it is regretted that there was not a single word on this matter in the letter under reference. In these circumstances, I would further request you to inform as to whether the State Government has taken necessary steps for ensuring availability of CPMF and if so, the quantum thereof. The details of arrangements for engagement/requisitioning of police forces from other States may also be intimated as was mentioned in the letter of the Panchayat “(Panchayats)” & Rural Development Department, under reference.” Learned senior counsel for the Commission submitted that there was no reply to the said letter dated 13th March, 2013, which prompted the Election Commissioner to write another letter to the Chief Secretary, Government of West Bengal on 22nd March, 2013. The text of the said letter is reproduced hereinbelow: - “In continuation of my D.O. letter sent to you vide D.O. No. Commr-184/SEC/2013 dated 13.03.2013, I am to remind you that this Commission has not yet been provided with a concrete report detailing the actual availability of Police Forces in West Bengal as requested therein. The State Government has also not intimated whether arrangements have been made for deployment of 800 Companies of Paramilitary Forces for the ensuing Panchayat Elections though repeatedly requested for such information. The State Government has also not intimated whether arrangements have been made for deployment of 800 Companies of Paramilitary Forces for the ensuing Panchayat Elections though repeatedly requested for such information. However, in its interface with the District Magistrates and District Police authorities on 16.03.2013, the Commission has come to find that actual availability of State Police Forces in the districts is woefully inadequate for conducting the Polls even in three phases. It may also be mentioned that the State Government has only reiterated its assurances, for providing Security forces, as necessary, subject to availability of such forces. In these circumstances, I would once again request you to look into the matter and arrange for providing a detailed report on the above matter including arrangements made for deployment of Central Paramilitary Forces urgently.” So far as the consultative process in respect of balance 134 Observers as per section 134 of the Act is concerned, learned senior counsel for the Commission stated that as against 400 Observers, the State had sent 266 names only. In this regard, he referred to the letter dated 25th February, 2013, whereby the Commission informed the State Government that it had proposed to appoint Observers and requested the Government to send names of about 400 IAS/W BCS(Ex) officers, only in the rank of Deputy Secretary and above to facilitate appointment of Observers by 10 th March, 2013, as the elections were likely to be held in April/May, 2013. According to the learned senior counsel for the Commission, there was no response to the said letter of the Commission dated 25th February, 2013 from the State Government. He further submitted that without even considering the request of the Commission for engagement of Observers, as stated in the Commission’s letter dated 25 th February, 2013, the State Government went on to issue the impugned notification dated 22nd March, 2013, under section 42 of the Act. The Secretary of the Commission, in his letter dated 25th March, 2013, which was addressed to the Principal Secretary, Panchayats and Rural Development Department, Government of West Bengal, had restated the Commission’s stand with regard to deployment of Observers by referring to the Commission’s earlier letter dated 25 th February, 2013. The learned senior counsel for the Commission referred to paragraph nos. The learned senior counsel for the Commission referred to paragraph nos. 4, 4.1, 4.2, 4.3 and 4.4 of the letter dated 25th March, 2013, issued by the Secretary of the Commission, in order to highlight the fact that with regard to deployment of Observers, the issue stood unresolved before the impugned notification dated 22 nd March, 2013, was issued by the State Government. He also referred to the State Government’s reply dated 26th March, 2013, addressed to the Secretary of the Commission wherein it was stated, inter alia, that with regard to the issue of providing names of officers for deployment as Observers, the State Government will furnish a fresh consolidated list at the earliest. However, the same was never furnished to the Commission, till the time of filing of the writ petition. He referred to paragraph 4 of the Commission’s letter dated 28th March, 2013 – in reply to the State Government’s letter dated 26th March, 2013 – wherein it was pointed out that the State Government was well aware that after notification is given by the Commission, the process for nomination starts and it is a settled convention that the Observers appointed under section 134 of the Act shall have to be in position in the areas assigned to them for their duties, prior to start of nomination. Referring further to the Commission’s letter dated 28th March, 2013, he submitted that the State Government itself has stated that fresh consolidated list of Observers were yet to be finalised. If that be so, then on what basis have the dates been notified by the State Government. Learned senior counsel for the Commission submitted that in spite of repeated requests to the State Government for providing the names of the officers, before issuance of the impugned notifications under section 42 of the Act, the State Government never paid heed to such requests, which is evident from the letter dated 30th March, 2013 issued by the Principal Secretary, Panchayats and Rural Development Department, Government of West Bengal addressed to the Secretary of the Commission. Referring to paragraph 3 of the said letter, he submitted that it has been stated therein that with regard to providing names of officers for deployment as Observers, the State Government has already sent to the Commission names of officers for the said purpose and will further send names of as many officers – as required for deployment as Observers – within one day of notification of the various stages of elections by the Commission. According to the learned senior counsel for the Commission, the various correspondence with regard to deployment of Observers would clearly demonstrate the lack of effective and meaningful consultation by the State, prior to issuance of the impugned notifications under section 42 of the Act. So far as the consultative process with regard to phasing of Panchayat election is concerned, learned senior counsel for the Commission submitted that as far back on 11th April, 2012, the Secretary of the Commission had written a letter to the Principal Secretary, Panchayats and Rural Development Department, Government of West Bengal, requesting the Principal Secretary, inter alia, to take necessary steps for communicating the views of the State Government regarding tentative date(s) of elections (in a phased manner) at an early date so that the Commission could start preparatory steps of such work. Learned counsel for the Commission submitted that there was no response to the said letter dated 11th April,2012, by the State Government. Subsequently, on 27th April, 2012, a reminder was issued by the Commission, this time addressed to the Joint Secretary to the Government of West Bengal, making the same request. A second reminder was issued on 3rd July, 2012, by the Commission addressed to the Principal Secretary, Panchayats and Rural Development Department, Government of West Bengal. Learned senior counsel for the Commission submitted that, ultimately, on 13th August, 2012, the State Government responded to the Commission’s letter dated 27th April, 2012. However, such reply never spoke about phasing of elections but merely communicated the State Government’s desire of holding of elections to the Panchayats in West Bengal, including Darjeeling District (except Siliguri Mahakuma Parishad area), to be held in the first part of December, 2012. However, such reply never spoke about phasing of elections but merely communicated the State Government’s desire of holding of elections to the Panchayats in West Bengal, including Darjeeling District (except Siliguri Mahakuma Parishad area), to be held in the first part of December, 2012. In response to the State Government’s letter dated 13th August, 2012, the Commission, through its Secretary, wrote an elaborate and detailed letter dated 16th August, 2012, addressed to the Principal Secretary, Panchayats and Rural Development Department, Government of West Bengal, wherein it was stated, inter alia, in paragraph 5 of the said letter as follows:- “5) However, I am directed to state that, considering the time gaps required for delimitation, reservation of seats and offices and preparation of electoral rolls and other aspects as mentioned above, even if the process is initiated from today, it appears that it may not be feasible to hold the Panchayat General Elections before March, 2013. In view of the issues stated above, the Commission would request the State Government to reconsider the entire matter in the light of the observations made above and take a considered view in fixing tentative date(s) for holding elections in 4 phases, not earlier than March, 2013.” The learned senior counsel for the Commission stated that it would appear from paragraph 5 of the said letter, as quoted above, that as early as in August, 2012, the Commission conveyed its desire of holding Panchayat election in four phases. On 4th September, 2012, the State Government responded to the Commission’s letter dated 16th August, 2012. Further, it did not make any comment regarding fixing of tentative date(s) for holding Panchayat election in all four phases. Regarding the date of election, it was stated that, “I am to state that the State Government considers it convenient to hold the next Panchayat General Elections in the state, except in the district of Darjeeling, in January, 2012…………….”. On 13th September, 2012, the Secretary of the Commission responded to the State Government’s letter dated 4th September, 2012, again reiterating the Commission’s request to the State Government to reconsider the entire matter and to fix tentative dates for holding the election in four phases, immediately after the Board examinations were over. On 13th September, 2012, the Secretary of the Commission responded to the State Government’s letter dated 4th September, 2012, again reiterating the Commission’s request to the State Government to reconsider the entire matter and to fix tentative dates for holding the election in four phases, immediately after the Board examinations were over. On 17th September, 2012, the Principal Secretary, Panchayats and Rural Development Department, Government of West Bengal wrote back to the Commission, reiterating the State Government’s stand to hold the Panchayat election in the State of West Bengal except in the district of Darjeeling in January, 2013. The learned senior counsel for the Commission submitted that even in the letter dated 17th September, 2012, there was no specific acceptance of the request of the Commission with regard to holding of Panchayat election in four phases. According to the learned senior counsel for the Commission, on 19th September, 2012, the Commission gave a detailed reply to the State Government’s letter dated 17th September, 2012. Along with the said letter, it annexed a tentative schedule for various stages of preparatory works for the purpose of Panchayat General Elections, 2013, which is set out herein below: “ A N N E X U R E Tentative schedule for various stages of preparatory works for the purpose of holding Panchayat General Elections 2013. 1. Draft delimitation-cum-reservation order – 1st of November 2012 15 days time for claims and objections. 15 days minimum for hearing and disposal. 2. Final Publication of delimitation-cum-reservation order – not before 1st week of C December 2012. 3. Draft Electoral Roll to be segregated as per delimited constituencies and published on 10.12.2012. 4. 15 days for claims and objections – 24th December 2012. 5. Thereafter, 20 days for disposal of claims and objections – 14th January 2013. 6. Final Electoral Roll printed and publication – 24 th January 2013. 7. Circulation to the political parties – 7 days i.e. 1 st February 2013. 8. Nomination – 4th February 2013 to 11th February 2013 (8 days) 9. Scrutiny of nominations – 13th February 2013. 10. Withdrawal of candidature – 16th February 2013. 11. 6. Final Electoral Roll printed and publication – 24 th January 2013. 7. Circulation to the political parties – 7 days i.e. 1 st February 2013. 8. Nomination – 4th February 2013 to 11th February 2013 (8 days) 9. Scrutiny of nominations – 13th February 2013. 10. Withdrawal of candidature – 16th February 2013. 11. Date of poll has to be fixed within 21 days to 35 days from the last date of filing nominations.” In reply, the Principal Secretary, Panchayats and Rural Development Department, Government of West Bengal, wrote a letter dated 21st September, 2012, reiterating the request for reconsideration of the Commission in the matter of holding Panchayat election in the State of West Bengal in the month of January, 2013. The State Government also gave a proposed calendar of activities for considering the matter of holding of Panchayat General Elections, wherein the date of poll was mentioned as 28th January, 2013 and never spoke of anything with regard to election in a phased manner. On 27th September, 2012, the Secretary of the Commission wrote to the Principal Secretary, Panchayats and Rural Developments Department, responding to the State Government’s letter dated 21st September, 2012 and stated therein the dates for holding of Panchayat election in West Bengal in four phases i.e., 24th January, 28th January, 2nd February and 6th February, 2013. The learned senior counsel for the Commission submitted that his client, on 1 st October, 2012, however, withdrew its stand with regard to the schedule for different stages of Panchayat election vide letter dated 27th September, 2012. The reason that was given by the Commission was the information it received from the Election Commission of India vide its letter dated 29th September, 2012. The Commission with reference to the Election Commission of India’s letter dated 29 th September, 2012, informed the State Government that since the Commission’s schedule was drawn up on the condition that the electoral roll revision programme as scheduled by the Election Commission of India would be postponed from 1st October, 2012, to a later date and since the Election Commission of India was unable to agree to such request of the Commission for postponement of the schedule for revision, the schedule of date as stated in the Commission’s letter dated 27th September, 2012, necessarily stood withdrawn. The learned senior counsel for the Commission thereafter, invited this Court’s attention to the State Government’s letter dated 1st October, 2012, stating its firm view to hold elections on a single date that is on 10 th February, 2013. He submitted that this stand was once again reiterated by the State Government in its letter dated 3rd October, 2012, which was in response to the Commission’s letter dated 1st October, 2012, whereby a fresh time schedule was provided for holding of Panchayat General Elections in four phases, beginning on 4th May, 2013 and ending on 15th May, 2013. On 5th October, 2012, the Commission once again requested the State Government to fix the date of Panchayat General Elections in four phases as per the schedule proposed by the Commission in its letter dated 1st October, 2012. On 11th December, 2012, the State Government responded to the Commission’s letter dated 5th October, 2012, on the matter of the dates for holding the next Panchayat General Elections. In the said letter, the State Government fixed a single day election on 20th April, 2013. The learned senior counsel for the Commission submitted that it would be evident from the letter of the Commission dated 17th December, 2012, that his client was keen on effective and meaningful consultation with regard to phasing of Panchayat election and suggested elections in three phases with the polling dates scheduled on 17th April, 21st April and 25th April, 2013 and hours of poll for such elections between 7.00 a.m. to 5.00 p.m except for Naxal affected areas. On 10th January, 2013, the State Government responded to the Commission’s letter dated 17th December, 2012, regarding holding of Panchayat election in the month of April, 2013. The State Government forwarded the recommendation made by the Director General and Inspector General of Police, Government of West Bengal and stated in the said letter that in line with such recommendation of the Director General and Inspector General of Police, Government of West Bengal , it would advocate a single-day Panchayat election in April, 2013. The learned senior counsel for the Commission next referred to the Commission’s letter dated 24th January, 2013, which was in response to the State Government’s letter dated 10 th January, 2013, regarding holding of Panchayat election in the State during the month of April, 2013. The learned senior counsel for the Commission next referred to the Commission’s letter dated 24th January, 2013, which was in response to the State Government’s letter dated 10 th January, 2013, regarding holding of Panchayat election in the State during the month of April, 2013. The Commission in the said letter dated 24th January, 2013, suggested three proposed phases of elections fixing the dates on 20th April, 24th April and 28th April, 2013. On 12th February, 2013, the State Government responded to the Commission’s letter dated 24th January, 2013, suggesting, inter alia, that elections could be held over two dates with one phase covering Malda, Murshidabad and Uttar Dinajpur and the other phase covering the remaining districts. In the said letter dated 12th February, 2013, the State Government also stated that it was of the firm opinion that Panchayat election may be held over two days on 20th April and 22nd April, 2013. On 19th February, 2013, the Commission replied to the State Government’s letter dated 12th February, 2013, fixing three fresh dates for holding Panchayat election in the State of West Bengal for reasons stated in the last paragraph, which is quoted hereinbelow: “In this connection, it may be pointed out that the dates for Poll suggested earlier by the Commission on 20th, 24th and 28th April, 2013, require to be modified as there was some delay in the districts in finalising the delimitation and reservation of seats for constituencies as well as reservation of seats for office-bearers owing to unavoidable reasons. Rules provide that a clear gap of 9 weeks has to be maintained between the date of publication of the draft order for reservation of seats for office-bearers and the date of poll. As the said order has been published on 14.02.2013, it is suggested that the dates for the poll may be fixed on 28.04.2013, 02.05.2013 and 06.05.2013, after keeping a few days’ cushion for exigencies.” On 4th March, 2013, the State Government through its Principal Secretary, Panchayats and Rural Development Department, Government of West Bengal wrote to the Commission stating, inter alia, that the State Government has agreed to phased elections and reiterated its stand to hold the Panchayat election in the State of West Bengal in two phases. Citing ground realities and law and order situation, the State Government stated that elections should be held on 24th April, 2013, in all the districts except Murshidabad, Malda and Uttar Dinajpur and on 27th April, 2013, in the said three Districts. On 7th March, 2013, the Commission responded to the State Government’s letter dated 4th March, 2013, stating, inter alia, in paragraph 6 of the said letter, the Commission’s regret to note that elections were again proposed for two phases with a gap of two days and not in at least three phases with a gap of three days in between two phases, as repeatedly requested by the Commission. The State Government responded to the Commission’s said letter dated 7th March, 2013, by a letter dated 22nd March, 2013, enclosing a copy of the formal notification issued in terms of section 42 of the Act, stating, inter alia, that after careful consideration of the relevant issues, the State Government reiterated its stand to hold the Panchayat election in the State in two phases on 26th April and 30 th April, 2013. The formal notification dated 22nd March, 2013, under section 42 of the Act, which was annexed to the said letter bearing the same date, contained two dates for holding elections i.e., 26th April and 30th April, 2013. The learned senior counsel for the Commission, thereafter, referred to the Commission’s letter dated 25 th March, 2013, wherein a reference was made under subsection (2) of section 43 of the Act. In particular, he referred to paragraph 3.2 of the said letter dated 25th March, 2013 which is in respect of the Commission’s stand on the number of phases for holding Panchayat election. The said paragraph is quoted hereinbelow: - “It is also beyond the comprehension of the Commission how the State Government decided on the number of phases when the State Government is only empowered under the relevant provisions of the West Bengal Panchayat Elections Act, 2003 to decide the dates and the hours of poll. This process can not be confused with the number of phases the elections are required to be held, as this is decided by the State election Commission which has the sole responsibility for conduct of free, fair and peaceful elections. This process can not be confused with the number of phases the elections are required to be held, as this is decided by the State election Commission which has the sole responsibility for conduct of free, fair and peaceful elections. This is a prerogative of the State Election Commission and comes under the Constitutional mandate of superintendence, direction and control of the conduct of Panchayat Elections. The phasing of the elections and tagging of the districts therefore shall have to be decided by the State Election Commission.” In response to the Commission’s letter dated 25 th March, 2013, the State Government by its letter dated 26 th March, 2013, stated, inter alia, in paragraph 8 of the said letter that, “The State Government feels that phasing of elections is essentially an integral part of the process of fixing of dates of election. As such, after careful re-consideration of all the relevant issues and in exercise of its prerogative to fix dates of Panchayat Elections under section 42 of the West Bengal Panchayat Elections Act, 2003 and also after taking into considerations the concerns raised by the Commission, the State Government modifies its stand to hold the 8 th Panchayat General Elections in this State in two phases – on 26th of April 2013 and 30th of April 2013 as per the revised schedule stated below: On 26/04/2013 : In the districts of Nadia, North 24-Parganas, South 24-Parganas, Howrah, Purba Medinipur, Paschim Medinipur, Bankura, Purulia, Birbhum, Burdwan and Hooghly On 30/04/2013 : In the districts of Cooch Behar, Jalpaiguri, Uttar Dinajpur, Dakshin Dinajpur, Malda and Murshidabad” A notification was issued by the State Government on the same date, i.e., on 26th March, 2013, in partial modification of the earlier notification dated 22nd March, 2013, stating that elections were to be held on 26th April, 2013 and 30th April, 2013. The Commission by its letter dated 28th March, 2013, responded to the State Government’s letter dated 26th March, 2013, stating, inter alia, that, “It is therefore with deep regret that the Commission expresses it inability to agree to the schedule laid down by the State Government in their letter No.1276/PN/O/1/1E-3/2012 dated 26.3.2013.” In response, the State Government by its letter dated 30th March, 2013, inter alia, requested the Commission to notify various stages of election under section 43(1) of the Act immediately so that the 8 th Panchayat General Elections could be held on the two dates mentioned in the said notification. The learned senior counsel for the Commission submitted that, thereafter, the writ petition was filed and after commencement of hearing, the State issued a letter dated 4th April, 2013, stating that Panchayat election were to be held in two phases on 5th May, 2013 and 8th May, 2013 and another notification was issued by the Government on the same date i.e., on 4th April, 2013, to partial modification of the Department’s notification dated 26th March, 2013. So far as funding by the State Government is concerned, the learned senior counsel for the Commission submitted that as against an estimated budget of the Commission amounting to Rs.209 crores, a sum of Rs.100 crores only has been released as on 16th April, 2013. After placing the four outstanding issues – which have been discussed in detail hereinabove – he submitted that for the purpose of conducting a free, fair and peaceful Panchayat election in the State of West Bengal, it was the State Government’s obligation in law to have resolved those issues by means of effective and meaningful consultation with the Commission, before issuance of the impugned notifications under section 42 of the Act. As such, his client was left with no option but to approach this Court by filing the instant writ petition. According to the learned senior counsel for the Commission, superintendence, direction and control of the preparation of electoral roll for, and the conduct of, elections to the Panchayat are absolutely vested in the State Election Commission in terms of Article 243K of the Constitution of India. According to the learned senior counsel for the Commission, superintendence, direction and control of the preparation of electoral roll for, and the conduct of, elections to the Panchayat are absolutely vested in the State Election Commission in terms of Article 243K of the Constitution of India. He further submitted that the Constitutional status of the State Election Commission was an absolute necessity so that citizens of the State were able to have an impartial machinery – which would not only have superintendence, direction and control over preparation of electoral roll, but would also have such power of superintendence, direction and control in respect of conducting Panchayat election, right from the stage of nomination of candidates, till report and publication of the election results, after result is declared – so that such election could be conducted in a free, fair and peaceful manner. He referred to various provisions of the Constitution, especially, Articles 324 and 243K of the Constitution of India and the various provisions of the West Bengal Panchayat Elections Act, 2003, as also provisions of the West Bengal State Election Commission Act, 1994, to reinforce his submissions. The judgments referred to by the learned senior counsel for the Commission are as follows: 1. 1995 Supp (3) Supreme Court Cases 643 (Election Commission of India vs. Union of India & Others), 2. (2006) 8 Supreme Court Cases 352 (Kishansing Tomar vs. Municipal Corporation of the City of Ahmedabad & Others.), 3. (2002) 8 SCC 237 (In the matter of Special Reference Number 1 of 2002), (Gujarat Assembly Election Matter), 4. (2009) 7 SCC 1 (N.Kannadasan vs. Ajoy Khose & Others.), 5. AIR 1984 SC 1406 (Election Commission of India vs. State of Haryana), 6. (1995) Supp 3 SCC 379 (Election Commission of India vs. State of Tamil Nadu & Others), 7. (1993) 4 Supreme Court Cases 441 (Supreme Court Advocates-on-record Association & Others vs. Union of India with S.P.Gupta vs. Union of India), 8. (2013) 3 Supreme Court Cases 1 (State of Gujarat and Another vs. Justice R.A.Mehta (Retd) & Others.), 9. (2005) 2 Supreme Court Cases 1 (Janak Singh vs. Ram Das Rai & Others), 10. Unreported decision of the Supreme Court (writ petition (Civil) No(s). 89 of 2013-Dalitha Sangarsha Samithi vs. State of Karnataka & Others.), 11. (2002) 5 Supreme Court Cases 294 (Union of India vs. Association for Democratic Reforms & Another), 12. (2005) 2 Supreme Court Cases 1 (Janak Singh vs. Ram Das Rai & Others), 10. Unreported decision of the Supreme Court (writ petition (Civil) No(s). 89 of 2013-Dalitha Sangarsha Samithi vs. State of Karnataka & Others.), 11. (2002) 5 Supreme Court Cases 294 (Union of India vs. Association for Democratic Reforms & Another), 12. (1978) 1 Supreme Court Cases 405 (Mohinder Singh Gill & another vs. The Chief Election Commissioner, New Delhi & Others), 13. AIR 1984 Supreme Court 121 (Motor General Traders and Another vs. State of Andhra Pradesh & Others), 14. 2000 (3) A.W.C 2159 (L.B.) (Prem Lal Patel vs. State of U.P. through Secretary, Panchayat Raj and another), 15. AIR 1980 SC 1622 (Municipal Council, Ratlam vs. Vardhichand and Others) On the other hand, learned Advocate General submitted that the State Government does not consider the present proceeding as adversarial in nature. He also submitted that critical observations regarding the Commission, during the course of his submission, should not be considered or construed as an attempt to denigrate the Commission as an institution. Learned Advocate General submitted that the contention of the Commission with regard to absence of consultation – prior to issuance of the notifications under section 42 of the Act – is not correct. He further submitted that correspondence between the parties will show that there was consultation at all stages between the State Government and the Commission. He also submitted that consultation does not necessarily mean agreement. According to the learned Advocate General, prayers (a) and (b) of the writ petition have no relevance, as of date. Prayer (c) merely highlights the contents of the Commission’s letter dated 25th March, 2013. He also submitted that funding was not an issue and funds have already been provided to the Commission. He submitted that the State Government had already released 100 Crores, prior to issuance of necessary orders/notifications. It is committed to release the necessary funds immediately after the Commission issues necessary notification under section 43(1) of the Act. He submitted that it is well known, however, that the State Government is facing a severe resource crunch and the Commission should not be oblivious of this fact. He, thereafter, referred to sections 42 and 43(2) of the Act. It is committed to release the necessary funds immediately after the Commission issues necessary notification under section 43(1) of the Act. He submitted that it is well known, however, that the State Government is facing a severe resource crunch and the Commission should not be oblivious of this fact. He, thereafter, referred to sections 42 and 43(2) of the Act. Referring to one of the letters of the Commission i.e., letter dated 27th September, 2012, he submitted that the Commission, in the said letter, had stated, inter alia, that the Commission had assessed the present “ground realities”. He submitted that detail of such “ground realities” were neither disclosed nor elaborated by the Commission, at any stage. He further submitted that in the year, 2008 (being the year of last Panchayat election), the Commission never raised the issue of deployment of Central Forces. He, thereafter, referred to section 42 of the Act and stated that the same relates to pre-election period. He submitted that during pre-election period, the Commission did not have superintendence, direction and control with regard to election to the Panchayat, as envisaged in Article 243K of the Constitution of India. Such power could be invoked only from date of issuance of notification by the State Government under section 42 of the Act and continue till the date of declaration of the result and not during pre-poll or post-poll periods. He also submitted that prior to 27th September, 2012, there was no whisper from the Commission with regard to its requirement of Central Forces or 800 Companies of Central Paramilitary Force (CPMF). He also referred to various provisions of the Act and also the Rules framed thereunder and also referred to various provisions of the West Bengal State Election Commission Act, 1994 and the Representation of the People Act, 1951. He submitted that the Commission has to act bona fide and reasonably and not arbitrarily and the power under Article 243K is subject to valid State laws, such as the West Bengal State Election Commission Act, 1994 and the West Bengal Panchayat Elections Act, 2003. Only where the laws enacted by the State Legislature are silent, can the Commission exercise plenary power to fill the lacuna for the purpose of conduct of elections expeditiously. Only where the laws enacted by the State Legislature are silent, can the Commission exercise plenary power to fill the lacuna for the purpose of conduct of elections expeditiously. He further submitted that once a notification under section 42 of the Act was issued by the State Government, it would be proper for the Commission to issue necessary notifications or orders under section 43(1) of the Act and set the process of election into motion. The power vested in the State Government under section 42 of the Act to notify date(s) of election includes the right to configure phasing of election and grouping of districts. By effective consultation between the State Government and the Commission, the issues raised in the letter dated 16th August 2012, were resolved through exchange of correspondence. He also submitted that consultation may take place in many ways, such as exchange of correspondence and also through personal visits. Learned Advocate General submitted that the alleged outstanding issues raised in the letter dated 25 th March, 2013, were actually three in number, i.e., deployment of Central Forces, Observers, Phasing of election including grouping of districts. So far as the issue of funding by the State Government is concerned, the same has not been raised in the letter dated 25th March, 2013. He submitted that Article 243K of the Constitution of India does not provide for the Governor of the State to bring outside staff, such as Central forces. On a conjoint reading of Article 243K(3) and section 7 of the West Bengal State Election Commission Act, 1994, the Commission could not have directed the State to ensure deployment of Central Forces since neither such force was in the control of the State Government nor in the services of the State. Sensitive and critical nature of polling stations should be taken as the yardstick for deployment of armed forces. He also submitted that the State’s law and order position in the Naxalite areas was much better than other States. He referred to certain pages of the report of the Department of Home Affairs, Government of India, in order to explain the meaning of CAPF, which was used by the Director General and Inspector General of Police, Government of West Bengal, in his letter dated 1st January, 2013. He submitted that full form of CAPF would be ‘Central Armed Police Force’. He submitted that full form of CAPF would be ‘Central Armed Police Force’. He referred to various correspondence, particularly, the State Government’s letter dated 10th January, 2013; the Director General & Inspector General of Police’s letter dated 1 st January, 2013; other letters dated 4th March, 2013; 22 nd March, 2013; 26th March, 2013; and also the letter dated 30th April, 2013 (which was handed up during the course of hearing of the matter), in order to emphasize his submission of consultation having taken place at various stages between the State Government and the Commission, prior to issuance of the notifications under section 42 of the Act. He particularly referred to the Director General & Inspector General of Police, West Bengal’s letter dated 1st January, 2013, and submitted that the DGP was an expert authority whose professional assessment of law and order was the State Government’s perception in that respect and deployment of security forces by the State would necessarily be based on such assessment of law and order by the Director General & Inspector General of Police, Government of West Bengal, as contained in his letter dated 1st January, 2013. Learned Advocate General also referred to the letters dated 24th January, 2013 and 17th February, 2013, both written by the Commission, and submitted that the same would clearly demonstrate that it was the perception of the Commission that if elections were to be held on a single day, the State Police Force would not be adequate. Therefore, the demand of deployment of Central Forces was intertwined with the earlier proposal for single-phase election. He further submitted that it was only, thereafter, that the State Government had notified dates for two-phased elections and hence the demand for deployment of Central forces would wholly be unreasonable in view of changed circumstances. The Commission had held consultations with the Home Secretary, Director General of Police and got feedback from the District Magistrates and, therefore, it would be inappropriate for the Commission to say that it was not informed about the available strength of State police force. Otherwise, the Commission could not assert about the alleged inadequacy of the State Police Force. He further submitted that the State Government, time and again assured the Commission of providing necessary police force at the polling premises and not at polling booths. Otherwise, the Commission could not assert about the alleged inadequacy of the State Police Force. He further submitted that the State Government, time and again assured the Commission of providing necessary police force at the polling premises and not at polling booths. In so far as the issue of phasing of elections is concerned, the State Government have shifted from its original stand of holding single phase election to two-phase election and by a notification dated 26th April, 2013, the districts have been re-grouped with five North Bengal districts and Murshidabad in one phase and the eleven South Bengal districts in the other phase. The learned Advocate General also submitted that the State Government could provide 400 Observers to the Commission, if it does not insist on appointment of officers in the rank of Deputy Secretary only and agrees to engagement of officers in the rank of Assistant Secretary too, as Observers. He categorically submitted that the District Magistrates, Additional District Magistrates and Sub-Divisional Officers cannot function as Observers, as they are directly involved in the election process under the law. He, however, concluded his submission by praying before this Court to issue appropriate directions so that Panchayat election could be held in the State before 10 th June, 2013, (i.e. before onset of monsoon) in order to avert a Constitutional crisis. In support of his submissions, he referred to the following judgments: 1. (1978) 1 Supreme Court Cases 405 (Mohinder Singh Gill and Another vs. The Chief Election Commissioner, New Delhi and Others), 2. (2002) 5 Supreme Court Cases 294 (Union of India vs. Association for Democratic Reforms and Another), 3. (1984) 2 SCC 656 (A.C.Jose vs. Sivan Pillai and Others), 4. (2006) 8 Supreme Court Cases 352 (Kishansing Tomar vs. Municipal Corporation of the City of Ahmedabad and others), 5. (2000) 8 Supreme Court Cases 216 (Election Commission of India through Secretary vs. Ashok Kumar and Others), 6. (2002) 8 Supreme Court Cases 237 (Gujarat Assembly Election Matter), 7. (1999) 3 Supreme Court Cases 737 (V.S. Achuthanandan vs. P.J.Francis and Another), 8. (1988) 1 Supreme Court Cases 277 (Election Commission of India vs. Shivaji and Others), 9. A.I.R. (39) 1952 Supreme Court 64 (N.P.Ponnuswami vs. Returning Officer, Namakkal Constituency, Namakkal, Salem Dist., and others), 10. (2002) 8 Supreme Court Cases 237 (Gujarat Assembly Election Matter), 7. (1999) 3 Supreme Court Cases 737 (V.S. Achuthanandan vs. P.J.Francis and Another), 8. (1988) 1 Supreme Court Cases 277 (Election Commission of India vs. Shivaji and Others), 9. A.I.R. (39) 1952 Supreme Court 64 (N.P.Ponnuswami vs. Returning Officer, Namakkal Constituency, Namakkal, Salem Dist., and others), 10. 1995 Supp (2) Supreme Court Cases 13 (Election Commission of India vs. State Bank of India Staff Association Local Head Office Unit, Patna and Others). In the facts of the instant case, the entire issue is centred around section 42 of the Act, which falls under Chapter VII of Part VI of the Act and is set out hereinbelow: "Notification for election. - The State Government shall, in consultation with the Commission, by notification, appoint the date or dates and hour or hours of poll for any election or by-election." It is the interpretation of the above section – in the backdrop of the scheme of the entire Act and its compatibility with Article 243K of the Constitution of India, read together with the West Bengal State Election Commission Act, 1994 – which would resolve the issue sought to be raised in the instant petition. The entire scheme of the Act highlights and emphasizes the pivotal role of the Commission in respect of the Panchayat election process. Whether it is compatible with Article 243K of the Constitution of India or not will be evident from a plain reading of a few provisions of the Act. Section 3 of the Act, for example, empowers the Commission to issue direction, by any general or special order, for the Prescribed Authority for delimitation of Panchayat areas into constituencies. Then again, if one looks at section 21 of the Act, it would appear therefrom that all officers for the purpose of election shall be appointed in accordance with the provision of section 6 of the West Bengal State Election Commission Act, 1994, and shall exercise powers and functions in accordance with the provisions of the Act and the West Bengal State Election Commission Act, 1994. Sub-section (1) of section 22 of the Act makes it clear that the District Panchayat Election Officer shall co-ordinate and supervise all work within his jurisdiction in connection with the preparation and revision of electoral rolls for, and conduct of, all elections to the Panchayat, subject to the superintendence, direction and control of the Commission. (emphasis supplied) Sub-section (2) of section 22 of the Act casts an obligation upon the District Panchayat Election Officer to perform such other functions as may be entrusted to him by the Commission. Section 24 of the Act is with regard to appointment of Assistant Panchayat Returning Officers. The District Panchayat Election Officer is entrusted with the power to make such appointment, subject to the direction and control of the Commission. (emphasis supplied) Section 25 of the Act empowers the Commission to issue notification in consultation with the State Government to appoint, from amongst the officers of the State Government – a Panchayat Electoral Registration Officer of the Blocks comprising a sub-division of a District. Section 25 of the Act further mandates that every Panchayat Electoral Registration Officer shall, subject to the direction and control of the Commission and the District Panchayat Election Officer, prepare and, as and when necessary, revise the electoral rolls for election to the Panchayats. (emphasis supplied) Section 26 of the Act empowers the District Panchayat Election Officer to appoint, from amongst the officers of the State Government, as many Assistant Panchayat Electoral Registration Officers as may be necessary for each subdivision of a District or any administrative division thereof. Such appointment by the District Panchayat Election Officer is, however, subject to the direction and control of the Commission. (emphasis supplied) Section 27 of the Act empowers the District Panchayat Election Officer to provide sufficient number of polling stations for each constituency for election of members of Gram Panchayat, Panchayat Samiti, Zilla Parishad or Siliguri Mahakuma Parishad, subject to such direction as may be issued by the Commission. (emphasis supplied) Section 27 also casts a mandate upon the District Panchayat Election Officer to forward a copy of the list of polling stations to the Commission for the areas for which they would be set up within a certain time frame, as stated in the said section. Part V of the Act consists of one Chapter, i.e., Chapter VI, which is in respect of electoral rolls. Part V of the Act consists of one Chapter, i.e., Chapter VI, which is in respect of electoral rolls. Section 31, which falls under Chapter VI, casts a statutory obligation upon the Panchayat Electoral Registration Officer to prepare and revise the electoral roll for each Block within his jurisdiction, subject to the provision of section 4 of the West Bengal State Election Commission Act, 1994. Section 34 of the Act is in respect of preparation, publication and revision of electoral roll for each Block. Such preparation has to be made with reference to a qualifying date as may be specified, by an order, by the Commission. Sub-section (2) of section 31 is in respect of revision of electoral rolls, wholly or in part, with reference to the qualifying date referred to in sub-section (1) of section 34, unless otherwise directed by the Commission. (emphasis supplied) A non obstante clause contained in sub-section (3) of section 34, states that notwithstanding anything contained in sub-section (2), the Commission may at any time, for reasons to be recorded in writing, direct a special revision of the electoral roll for any Block or a part thereof in such manner as it thinks fit. Section 35 of the Act begins with another non obstante clause which states that notwithstanding anything contained in section 34 of the Act, the Commission may, by an order in writing, adopt the electoral roll meant for election of members to the West Bengal Legislative Assembly, for the time being, to such extent and in such manner as may be specified in an order for the purpose of any election to the Panchayats from any Block. Section 36 of the Act is with reference to correction of entry in the electoral roll. The Panchayat Electoral Registration Officer for a Block is empowered under section 36 to make such correction subject to general or special directions, if any as may be given by the Commission in that respect. (emphasis supplied) Part VI of the Act is in respect of “conduct of elections”. (emphasis supplied) Part VI of the Act is divided into four Chapters, namely, Chapters VII, VIII, IX and X. Chapter VII deals with nomination of candidates, Chapter VIII deals with candidates and their agents, Chapter IX is in respect of poll and Chapter X deals with the counting of votes. (emphasis supplied) Part VI of the Act is divided into four Chapters, namely, Chapters VII, VIII, IX and X. Chapter VII deals with nomination of candidates, Chapter VIII deals with candidates and their agents, Chapter IX is in respect of poll and Chapter X deals with the counting of votes. As stated earlier, section 42 of the Act falls under Part VI. Since Part VI of the Act is in respect of “conduct of elections”, one has to turn to section 4 of the West Bengal State Election Commission Act, 1994, wherein the phrase has been used in the context of the role played by the Commission for conduct of all Panchayat elections, relevant portion whereof is quoted hereinbelow:- “4. (1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to the Panchayats shall vest in the Commission: Provided that the electoral roll for the time being in force for the election of Members to the West Bengal Legislative Assembly may, at the discretion of the State Election Commissioner, be adopted as the electoral roll for election of members, by whatever name called, to a Panchayat to such extent and in such manner as the State Election Commissioner thinks fit. (2) Subject to the provisions of sub-section (1), all matters relating to, or in connection with, elections to the Panchayats shall be regulated in accordance with the provisions of the West Bengal Panchayat Act, 1973, and the rules made thereunder in so far as they are not inconsistent with the provisions of this Act or the rules made thereunder.” (emphasis supplied) The phrase, “conduct of elections” and the role of the Commission with regard to such “conduct of elections” for Panchayats has its genesis in Article 243K of the Constitution of India. The language of Article 243K is quite akin to the language used in Article 324 of the Constitution of India, which is in respect of elections to Parliament and to Legislature of every State and of elections to the offices of President and Vice President. A comparative table of the two Articles is set out hereinbelow: CONSTITUTION OF INDIA ARTICLE 324 ARTICLE 243K 324. A comparative table of the two Articles is set out hereinbelow: CONSTITUTION OF INDIA ARTICLE 324 ARTICLE 243K 324. Superintendence, direction and control of election to be vested in an Election Commission-(1) 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 Constitution shall be vested in a 243K. Elections to the Panchayats.- The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor.(2) Subject to the provisions of any commission (referred to in this constitution as the Election Commission).(2) The Election Commission shall consists of the Chief Election Commissioner and such number of Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.(3) When any other Election Commissioneris so appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission. (4) Before each general election to law made by the Legislature of a State the conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may by rule determine: Provided that the State Election Commissioner shall not be removed from his office except in like manner and on the like ground as a Judge of the High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment. (3) The Governor of a State shall, when so requested by the State Election Commission, make available to the House of the People and to the Legislative Assembly of each state, and before the first general election and thereafter before each biennial election to the Legislative Council of each state having such Council, the President may also appoint after consultation with the Election Commission such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of the functions conferred on the Commission by clause (1). (5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the State Election Commission such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by clause (1) (4) Subject to the provisions of the Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Panchayats. the Regional Commissioners shall be such as the President may by rule determine. Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment. Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner. (6) The President, or the Governor of a State, shall, when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission by clause (1). The issue, clearly, is narrowly focussed towards significance of the word, "shall" and the phrase, "in consultation with", and its usage in the context of section 42. It may be profitable, therefore, to find out, at first, the dictionary meaning of the words, “shall” and "consultation". The word, “shall”, is defined in the Concise Oxford English Dictionary, Eleventh Edition, published by the Oxford University Press as, “expressing a strong assertion or intention” and also “expressing an instruction or command”, amongst some other meanings, which are not relevant in the context. The Concise Oxford English Dictionary – same edition and same publisher – defines the other word, "consultation", as "the action or process of formally consulting or discussinga meeting with an expert or professional in order to seek advice." Now that we have a fair idea of the meaning of the two words, “shall” and "consultation", such meaning is required to be applied in the context of the expression, "The State shall, in consultation with the Commission........" as used in section 42. A question may arise at this juncture as to why the State Government is at all required to enter into any kind of consultation with the Commission for the purpose of appointing the date or dates and hour or hours of poll for any election or by-election, prior to issuance of the notification under section 42, if the same relates to preelection period, as submitted by the learned Advocate General. The other question that may arise is whether the phrase, "in consultation with", would mean a mere exchange of correspondence between the State and the Commission – the effect of which brings about a kind of fact situation that has given rise to the instant writ petition – or it would mean an effective and meaningful consultative process between the State and the Commission for the purpose of free, fair and peaceful “conduct of elections” of Panchayat in the State of West Bengal by the Commission. (emphasis supplied) The Commission derives its powers from Article 243K of the Constitution of India, read with the West Bengal State Election Commission Act, 1994. The language used in Article 243K of the Constitution of India also finds its place in the statement of Objects and Reasons, which brings into force, the West Bengal State Election Commission Act, 1994: “An Act to provide for matters relating to the constitution of a State Election Commission for the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats and the Municipalities.” (emphasis supplied) Even the recital preceding the 1994 Act, contains use of the same language. For convenience, the recital is reproduced hereinbelow: “WHEREAS it is expedient to provide for matters relating to the constitution of a State Election Commission for the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats and the Municipalities;” (emphasis supplied) Thus, one finds from a plain reading of all the provisions of law referred above that so far as Panchayat election is concerned, superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections vests with the Commission. (emphasis supplied) At this stage, it may be observed that if one has to accept the submission of the learned Advocate General with regard to section 42 of the Act being related to pre-election period only, there would have been no necessity at all for the State legislature to have involved both the State and the Commission in a mandatory consultative process under section 42, prior to issuance of a notification by the State Government appointing the date or dates and hour or hours of poll for any Panchayat election or by-election. In that case, section 42 would have simply read as, “The State Government may, in consultation with the Commission…..”. True, consultation does not mean that it has to necessarily culminate in an agreement between the parties, but one has to find out its true scope, purport and effect – as observed hereinbefore – in the backdrop of its use in section 42. As observed earlier, section 42 falls under Part VI of the Act, which is in respect of “conduct of elections”. The State legislature has quite consciously kept section 42 under Part VI and not elsewhere in the Act. The reason is, the pivotal role played by the Commission in respect of “conduct of elections” right from pre-nomination stage till declaration, followed by report and publication of the Panchayat result, as per scheme of entire Part VI of the Act, which is compatible with Article 243K of the Constitution of India. W hat clearly emerges from the above discussion is the statutory recognition of such a pivotal role of the Commission by the State legislature, which has ensured that the State Government does not issue a notification under section 42 of the Act, unilaterally, without entering into consultation with the Commission. The provision is indeed mandatory in nature, so far as the consultative process is concerned and puts the Commission in a pivotal role. This answers the first question posed by this Court unto itself. Now, coming to the other question, it is necessary for this Court to advert to some of the correspondence exchanged between the State and the Commission. It is noticed that in respect of the four outstanding issues, there has been several exchange of correspondence between the State and the Commission. Now, coming to the other question, it is necessary for this Court to advert to some of the correspondence exchanged between the State and the Commission. It is noticed that in respect of the four outstanding issues, there has been several exchange of correspondence between the State and the Commission. As far back on 27th September, 2012, the Commission wrote to the Chief Secretary, Government of West Bengal, bringing to his notice that it had reviewed the law and order problem that had cropped up during the last Panchayat General Election, held in the year, 2008. The Commission had also assessed the ground realities including the situation prevailing in the Naxalite affected areas in the State. The Commission firmly held that deployment of Central Paramilitary Force in adequate numbers was absolutely essential, in addition to the State Police Force for conducting elections in a peaceful, free and fair manner. It is noticed from record that the said letter dated 27th September, 2012, was never responded to by the State Government. The Commission, by its letter dated 17th December, 2012, addressed to the State Government, reiterated the Commission’s view with regard to deployment of Central Paramilitary Force. The Commission also suggested three polling dates, i.e., 17th, 21st and 25th April, 2013 and hours of poll for such election from 07.00 a.m. to 05.00 p.m., except for Naxal affected area. This letter was replied to by the Principal Secretary, Panchayats and Rural Development Department, Government of West Bengal, by a letter dated 10th January, 2013, intimating the Commission that a single day poll would ensure proper management of law and order, instead of multiple day poll. The Principal Secretary, along with his letter, had also annexed a copy of the letter dated 1st January, 2013, whereby the views of the Director General and Inspector General of Police, Government of West Bengal, in respect of holding of poll in one day was expressed, justifying the necessity of holding Panchayat poll in one day for ensuring proper management of law and order and also since one day poll would be favourable towards setting of logistics in every front. During the course of hearing of the matter, this Court had sought for clarification from the Director General and Inspector General of Police, Government of West Bengal, with regard to the abbreviation ‘CAPF’, which he had used in his letter dated 1st January, 2013. During the course of hearing of the matter, this Court had sought for clarification from the Director General and Inspector General of Police, Government of West Bengal, with regard to the abbreviation ‘CAPF’, which he had used in his letter dated 1st January, 2013. A written instruction, which was later handed up by the learned Advocate General clearly reveals that ‘CAPF’ stands for ‘Central Armed Police Force’. A minute scrutiny of the Director General of Police’s letter dated 1st January, 2013, clearly reveals that he has not stated anything specifically with regard to actual manpower deployment of security forces, but – in effect – has admitted that State Police would not even be able to provide armed coverage to all premises – much less polling stations/booths – as rightly submitted by the learned senior counsel for the Commission. The tenor of the letter of the Director General and Inspector General of Police, Government of West Bengal, could not have inspired confidence in the Commission, which is entrusted with the Constitutional obligation to ensure that the Panchayat election is conducted in a free, fair and peaceful manner. One line from the Director General and Inspector General of Police’s letter dated 1 st January, 2013, would clearly demonstrate this aspect of the matter – “In conducting Panchayat Poll in one day the State Police would attempt to provide armed coverage to as many premises as possible depending on additional availability of force.” (emphasis supplied) However, it is also evident from the said letter dated 1st January, 2013, that the Director General and Inspector General of Police, Government of West Bengal, was agreeable to deploy some force from the Central Armed Police Force (CAPF). As such, the stand of the State with regard to non deployment of Central Armed Police Force for the Panchayat election, cannot stand to reason. There are several letters of the Commission, which have already been referred to hereinbefore, which would clearly demonstrate that repeated requests were made by the Commission to the State Government for the purpose of seeking specific details regarding the number of forces available with the State Government and also stressing the need to have sufficient security in place before the nomination stage, in order to ensure proper maintenance of law and order. The Commission has also referred to the feedback, it received from the District Magistrates and conveyed to the State Government, its concern with regard to safety and security of the voters, polling personnel and the candidates, which were of utmost importance. The Commission had also repeatedly requested the State Government for providing the exact number of security forces, which would be available for approximately 57,000 polling stations. It also stressed the absolute necessity to supplement the State forces in the ensuing Panchayat General Elections by deployment of considerable number of Companies of Central Armed Police Forces. It is noticed from the exchange of correspondence between the Commission and the State Government that till date of filing of the instant writ petition (i.e. 1st April, 2013), the State Government did not provide any concrete report detailing actual availability of police forces in West Bengal for Panchayat polls for the purpose of enabling the Commission to assess adequacy of such forces in order to ensure free, fair and peaceful Panchayat election. Concrete detail of actual availability of State Police Force has been disclosed for the first time in the State’s affidavit. Even this does not address the acute district-wise shortfall of police personnel, which is clearly evident from one of State Government’s own document annexed to the writ petition relating to Murshidabad district, which was issued by the Superintendent of Police, DIB, of that district on 18th March, 2013. That apart, the details of actual availability of State Police Force, as disclosed by the State in its affidavit, does not even tally with the collated data, which the Commission compiled from various police authorities and disclosed in Annexure P-45 at page 176 of the writ petition. One of the other outstanding issues is with regard to consultative process in respect of deployment of Observers. It is noticed that the Commission had requested for 400 Observers, but the State Government had sent 266 names only. The Commission, by its letter dated 25th February, 2013, informed the State Government that it proposed to appoint Observers and requested the Government to send about 400 IAS/W BCS(EX) officers only in the rank of Deputy Secretary and above to facilitate appointment of Observers by 10th March, 2013. It is noticed that there was no response by the State Government in respect of the Commission’s letter dated 25th February, 2013. It is noticed that there was no response by the State Government in respect of the Commission’s letter dated 25th February, 2013. The first notification under section 42 of the Act was issued by the State Government on 22nd March, 2013, without the Observers being engaged as per request of the Commission. Even thereafter, on 25th March, 2013, the Commission had re-stated its stand with regard to deployment of Observers by referring to its earlier letter dated 25 th February, 2013. It was only on 26th March, 2013, that the State Government replied and stated, inter alia, that with regard to the issue of providing names of officers for their deployment as Observers, the State would furnish fresh consolidated list at the earliest. However, till date of filing of the instant writ petition, no such list was furnished to the Commission. It was only during the course of hearing of the matter, that the learned Advocate General produced a copy of a letter dated 29th April, 2013 highlighting the State’s stand in respect of deployment of Observers. It would be quite worthwhile to quote paragraphs 2, 3 and 4 of the said letter wherefrom it would appear clearly the reasons shown by the State for not acceding to the request of the Commission regarding deployment of Observers :- “2. This is also to mention that names of more number of I.A.S. & W.B.C.S. (Executive) Officers could not be sent for the following reasons:- i) Those officers who are in the rank of District Magistrate, Additional District Magistrate & Sub-Divisional Officers were not included in the Observers List as they are directly involved in the activities & processes relating to the conduct of election; ii) The Officers serving as the Head of the department/office were excluded from the list as their absence would hamper the implementation of different important schemes of the concerned departments; iii) A considerable number of Officers are at present on Central Deputation. So, their names could not be proposed for the observers’ duty; iv) A good number of officers are due to retire within three months on superannuation. So, their names could not be proposed for the observers’ duty; iv) A good number of officers are due to retire within three months on superannuation. Their names were, therefore, not included in the said list of observers; v) Besides, many officers are not capable of performing observers’ duty because of their frail health due to advanced age and ailments; vi) Officers serving as P.S. to Ministers have also not been considered for the observers’ duty as they are not sparable; 3. It is firmly hoped that the inability of this department to propose names of more officers for observers’ duty for the above reasons, would be appreciated. 4. However, if it is so decided that officers below the rank of Deputy Secretary would suffice, we may be in a position to provide further names.” If one carefully scrutinizes sub-paras (ii), (v) and (vi) of paragraph 2, as quoted above, it appears that not only has the State not been able to furnish the balance list of names of Observers as requested by the Commission prior to issuance of the notifications under section 42 of the Act, the reasons provided therein do not seem to convey keenness on the part of the State to ensure deployment of Observers from the IAS/WBCS (Ex) cadre, which the Commission had requested. This is all the more evident if one merely glances through paragraphs 3 and 4 of the said letter. It would have been quite otherwise if the State was not able to provide the number of Observers, as requested by the Commission, if there was any actual dearth of officers in the State of West Bengal belonging to the IAS/WBCS (Ex) cadre. The statutory provision with regard to Observers is contained under section 134 of the Act, which reads as follows: - “134.(1) The Commission may nominate an Observer who shall be an officer of the State Government to watch the conduct of election or elections in a constituency or a group of constituencies and to perform such other functions as may be entrusted to him by the Commission. (2) The Observer, nominated under subsection (I), shall have the power to direct the Panchayat Returning Officer for the constituency or for any of the constituencies for which he has been nominated, to stop the counting of votes at any time before the declaration of the result or not to declare the result if, in the opinion of the Observer, booth capturing has taken place at a large number of polling stations or at places fixed for counting of votes or any ballot papers used at a polling station are unlawfully taken out of the custody of the Panchayat Returning Officer or are accidentally or intentionally destroyed or lost or damaged or tampered with to such an extent that the result of the poll at that polling station or place cannot be ascertained. (3) Where an Observer has directed the Panchayat Returning Officer under this section to stop counting of votes or not to declare the result, the Observer shall forthwith report the matter to the Commission and thereupon the Commission shall, after taking all material circumstances into account, issue appropriate directions.” The opening sentence of section 134 itself defines the role of an Observer to watch the “conduct of election or elections” in a constituency or a group of constituencies and to “perform such other functions” as may be entrusted to him by the Commission. (emphasis supplied) Therefore, there cannot be any two interpretations with regard to deployment of Observers before issuance of any notification under section 42 of the Act. It must be held that it was incumbent on the part of the State to have deployed the Observers before it issued the first notification dated 22nd March, 2013, under section 42 of the Act. The third outstanding issue is with regard to phasing of election. It is noticed from the correspondence available on record that on 11th April, 2012, the Commission had written to the State Government requesting necessary steps to be taken for communicating the views of the State Government regarding tentative date(s) of election(s) in a phased manner, at an early date, so that the Commission could start preparatory stage of such works. A reminder appears to have been issued on 27th April, 2012 requesting the State to communicate its views, inter alia, regarding tentative date(s) of election (in a phased manner). A second reminder was issued on 3rd July, 2012. A reminder appears to have been issued on 27th April, 2012 requesting the State to communicate its views, inter alia, regarding tentative date(s) of election (in a phased manner). A second reminder was issued on 3rd July, 2012. The letter dated 27th April, 2012, was ultimately responded to by the State Government on 13th August, 2012. However, in the said letter there was no mentioning of phasing of elections. It appears that the Commission had issued another letter dated 16th August, 2012, requesting the State Government to reconsider the matter and take a considered view in fixing tentative date(s) for holding election in four phases. The State Government responded to the Commission’s letter dated 16th August, 2012, by a letter dated 4th September, 2012, but never made any comment therein with regard to holding of Panchayat election in four phases. This letter was responded to by the Commission by its letter dated 13th September, 2012, requesting the State Government, inter alia, to reconsider the entire matter and fix tentative dates for holding the election in four phases, immediately after the Board examinations were over. Several correspondence have been made by the Commission with regard to holding of Panchayat election in four phases, which are on record. It is also noticed that on 19 th September, 2012, the Commission wrote a letter addressed to the State Government, annexing a tentative schedule for various stages of preparatory works for the purpose of Panchayat General Election, 2013. On 27th September, 2012, the Commission provided dates for holding of Panchayat election in four phases i.e., 24th January, 28th January, 2nd February and 6th February, 2013. However, it withdrew its stand subsequently in view of the information received from the Election Commission of India, vide its letter dated 29th September,2012. Thereafter, the Commission, again by its letter dated 1st October, 2013, provided a fresh time schedule to the State Government for holding Panchayat General Election in four phases, beginning 4th May, 2013 and ending on 15th May, 2013. The stand of holding election in phases was repeatedly reiterated by the Commission. However, the State Government went on stating that Panchayat elections should be held in a single day. The stand of holding election in phases was repeatedly reiterated by the Commission. However, the State Government went on stating that Panchayat elections should be held in a single day. Subsequently, the Commission, by its letter dated 24 th January, 2013, modified its original request for holding elections in four phases by proposing a three phased election and fixing 20th April, 24th April and 28th April, 2013, as dates for holding such election. In response, the State Government, by its letter dated 12th February, 2013 suggested that election could be held over two dates, with one phase covering the districts of Malda, Murshidabad and Uttar Dinajpur and the other phase covering the remaining districts. The State Government also stated in the said letter dated 12th February, 2013, that it was of the firm view that Panchayat election may be held over two days, i.e., 20th April, 2013 and 22nd April, 2013. Thereafter, on 19th February, 2013, the Commission gave a reply to the State Government’s letter dated 12 th February, 2013, fixing three fresh dates (i.e. 28th April, 2013, 02nd May, 2013 and 06th May, 2013) for holding Panchayat elections in the State of West Bengal. The State Government, by its letter dated 04th March, 2013, did not agree to the Commission’s request for holding Panchayat elections in three phases, as contained in the letter dated 24th January, 2013, and reiterated its stand to hold such election in two phases. The State Government cited, inter alia, “ground realities and law and order” and stated that Panchayat election should be held on 24th April, 2013, in all districts except Malda, Murshidabad and Uttar Dinajpur, and on 27th April, 2013, in the said three districts. This letter was responded to by the Commission, by its letter dated 7th March, 2013. The Commission regretted to note that elections were again proposed for two phases with a gap of two days and not in at least three phases, with a gap of three days in between two phases, as repeatedly requested by the Commission. This letter was responded to by the Commission, by its letter dated 7th March, 2013. The Commission regretted to note that elections were again proposed for two phases with a gap of two days and not in at least three phases, with a gap of three days in between two phases, as repeatedly requested by the Commission. The State Government responded to the Commission’s letter dated 7th March, 2013, by a letter dated 22nd March, 2013, enclosing a copy of formal notification issued under section 42 of the Act, stating, inter alia, that after careful consideration of the relevant situation, the State Government reiterated its stand to hold Panchayat election in the State in two phases on 26th April, 2013 and 30 th April, 2013. On 25th March, 2013, the Commission wrote a letter to the State Government referring to sub-section (2) of section 43 of the Act, stating, inter alia, that it was the Commission which was to decide the number of phases of election, since it was the Commission’s sole responsibility for conduct of free, fair and peaceful election. This letter was responded to by the State Government on 26th March, 2013, by stating, inter alia, that, “The State Government feels that phasing of elections is essentially an integral part of the process of fixing of dates of election. As such, after careful re-consideration of all the relevant issues and in exercise of its prerogative to fix dates of Panchayat Elections under section 42 of the West Bengal Panchayat Elections Act, 2003 and also after taking into considerations the concerns raised by the Commission, the State Government modifies its stand to hold the 8th Panchayat General Elections in this State in two phases – on 26th of April 2013 and 30th of April 2013 as per the revised schedule stated below: On 26/04/2013 : In the districts of Nadia, North 24-Parganas, South 24-Parganas, Howrah, Purba Medinipur, Paschim Medinipur, Bankura, Purulia, Birbhum, Burdwan and Hooghly On 30/04/2013 : In the districts of Cooch Behar, Jalpaiguri, Uttar Dinajpur, Dakshin Dinajpur, Malda and Murshidabad” Notification was issued on the same date, i.e., on 26 th March, 2013, in partial modification to the earlier notice dated 22nd March, 2013, stating elections were to be held on 26th April and 30th April, 2013. It is noticed that the Commission, by its letter dated 28th March, 2013, responded to the State Government’s letter dated 26th March, 2013, stating, inter alia, that, “It is therefore with deep regret that the Commission expresses it inability to agree to the schedule laid down by the State Government in their letter No.1276/PN/O/1/1E-3/2012 dated 26.3.2013.” The State Government responded to the said letter of the Commission by its letter dated 30th March, 2013. The State Government, inter alia, requested the Commission to notify various stages of election under section 43(1) of the Act, immediately, so that the 8th Panchayat General Election could be held on two dates as mentioned in the said notification dated 26th March, 2013. Subsequently, the writ petition was filed and after commencement of hearing, the State issued another letter dated 4th April, 2013, stating that Panchayat election were to be held on two dates, i.e., on 5th May, 2013 and on 8 th May, 2013 and another notification was issued by the Government on the same date, i.e., on 4th April, 2013, in partial modification of the earlier notification dated 26 th March, 2013. The exchange of correspondence between the State and the Commission in respect of phasing of election till issuance of the first notification by the State under section 42 and even thereafter, does not show one instance where the State has come anywhere even near to reaching an agreement with the Commission in respect of “conduct of election” in a phased manner, through the mandatory consultative process. The other outstanding issue is in respect of funds. It is noticed that the estimated budget of the Commission with regard to holding of Panchayat elections, amounts to Rs.209 Crores and even after date of issuance of the first notification under section 42 of the Act, only a sum of Rs.100 Crores has been released as on 16th April, 2013. During the course of hearing of the matter, the learned Advocate General of the State, however, assured this Court that adequate funds would be made available to the Commission for the purpose of holding of the election. During the course of hearing of the matter, the learned Advocate General of the State, however, assured this Court that adequate funds would be made available to the Commission for the purpose of holding of the election. The discussion above leaves no scope for this Court to hold that there was any effective or meaningful consultative process between the State and the Commission in respect of the four outstanding issues, prior to issuance of the notifications under section 42 of the Act by the State Government. This answers the second question posed by this Court unto itself. The Supreme Court, in several of its judgments interpreted, inter alia, the scope, power and role of the Commission. In Kishansing Tomar (supra), the Supreme Court while referring to a large number of decisions, including Special Reference No.1 of 2002, In re, Lakshmi Charan Sen v. A.K.M.Hassan Uzzaman, Mohinder Gill & another v. the Chief Election Commissioner, Presidential Poll, In re. observed, inter alia, to the effect that it is necessary for all the State Governments to recognize the significance of the State Election Commission, which is a Constitutional body and it shall abide by the directions of the Commission in the same manner in which it follows the directions of the Election Commission of India during the elections for Parliament and the State Legislatures. It has been observed to the effect that in terms of Article 243K and Article 243 ZA(1) of the Constitution of India, the same power is vested in the State Election Commission as the Election Commission of India under Article 324 of the Constitution of India. The words in the former provisions are in pari materia with the latter provision. While referring to the “superintendence, direction and control” as well as “conduct of elections”, it was observed that such words have been held in the “broadest terms” by the Supreme Court in several decisions including Special Reference No.1 of 2002, In re and Mohinder Singh Gill’s case.(emphasis supplied) The following observations made by the Supreme Court in Kishansingh Tomar’s case are of significance in the facts of the instant case:- “ From a reading of the said provisions it is clear that the powers of the State Election Commission in respect of conduct of elections is no less than that of the Election Commission of India in their respective domains. These powers are, of course, subject to the law made by Parliament or by the State Legislatures, provided the same do not encroach upon the plenary powers of the said Election Commissions. The State Election Commissions are to function independent of the State Governments concerned in the matter of their powers of superintendence, direction and control of all elections and preparation of electoral rolls for, and the conduct of, all elections to the panchayats and municipalities. Article 243-K(3) also recognises the independent status of the State Election Commission. It states that upon a request made in that behalf the Governor shall make available to the State Election Commission “such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by clause (1)”. It is accordingly to be noted that in the matter of the conduct of elections, the Government concerned shall have to render full assistance and cooperation to the State Election Commission and respect the latter’s assessment of the needs in order to ensure that free and fair elections are conducted. Also, for the independent and effective functioning of the State Election Commission, where it feels that it is not receiving the cooperation of the State Government concerned in discharging its constitutional obligation of holding the elections to the panchayats or municipalities within the time mandated in the Constitution, it will be open to the State Election Commission to approach the High Courts, in the first instance, and thereafter the Supreme Court for a writ of mandamus or such other appropriate writ directing the State Government concerned to provide all necessary cooperation and assistance to the State Election Commission to enable the latter to fulfil the constitutional mandate.” In the case of Special Reference No.1 of 2002 (supra), the Supreme Court, while giving its opinion on three questions posed by the President of India under clause (1) of Article 143 of the Constitution of India, proceeded to observe in paragraph 80 of its judgment as follows: “ So far as the framing of the schedule or calendar for election of the Legislative Assembly is concerned, the same is in the exclusive domain of the Election Commission, which is not subject to any law framed by Parliament. Parliament is empowered to frame law as regards conduct of elections but conducting elections is the sole responsibility of the Election Commission. Parliament is empowered to frame law as regards conduct of elections but conducting elections is the sole responsibility of the Election Commission. As a matter of law, the plenary powers of the Election Commission cannot be taken away by law framed by parliament. If Parliament makes any such law, it would be repugnant to Article 324. Holding periodic, free and fair elections by the Election Commission are part of the basic structure and the same was reiterated in Indira Nehru Gandhi v. Raj Narain………………” In paragraph 81, it was further observed by the Supreme Court, as follows: “ The same is also evident from Sections 14 and 15 of the Representation of the People Act, 1951 which provide that the President or the Governor shall fix the date or dates for holding elections on the recommendation of the Election Commission. It is, therefore, manifest that fixing schedule for elections either for the House of the People or Legislative Assembly is in the exclusive domain of the Election Commission.” The Supreme Court of India, in Election Commission of India v. State of Tamil Nadu & Others (supra) made certain significant observations where the controversy centred around the proclaimed dissatisfaction of the Election Commission as to the responses of the Central Government to its orders and directions for deployment of adequate paramilitary and security requirements in the constituencies going to the polls. One facet of this controversy was whether the Election Commission was entitled to issue such “directions” to the Government. In paragraph 4 of the said judgment, it was observed that this question assumes significance from the Constitutional position of the plenitude of the powers of the Election Commission; whether they include the power to assess, prescribe and impose security standards in accordance with its own exclusive perception of the law and order situation. The Supreme Court, thereafter, went on to pose unto itself the question as to what should happen if the Central Government was unable to accept the Commission’s perception of the law and order situation? Or the Commission’s assessment of the requisites of security arrangements? Another question, which the Supreme Court posed unto itself was who shall resolve the dispute if the Central Government expressed its own constraints as to the availability or affordability of the Commission’s demands? Or the Commission’s assessment of the requisites of security arrangements? Another question, which the Supreme Court posed unto itself was who shall resolve the dispute if the Central Government expressed its own constraints as to the availability or affordability of the Commission’s demands? In the facts of the instant case, there is a similar situation which has arisen and that is why it is perhaps necessary to quote the observations made by the Supreme Court in paragraph 5 in the said judgment, which reads as follows: “ The Election Commission of India is a high constitutional authority charged with the function and the duty of ensuring free and fair elections and of the purity of the electoral process. It has all the incidental and ancillary powers to effectuate the constitutional objective and purpose. The plenitude of the Commission’s powers corresponds to the high constitutional functions it has to discharge. In an exercise of the magnitude involved in ensuring free and fair elections in the vastness of our country, there are bound to be differences of perception as to the law and order situation in any particular constituency at any given time and as to the remedial requirements. Then again, there may be intrinsic limitations on the resources of the Central Government to meet in full the demands of the Election Commission. There may again be honest differences of opinion in the assessment of the magnitude of the security machinery. There must, in the very nature of the complexities and imponderables inherent in such situations, be a harmonious functioning of the Election Commission and the Governments, both State and Central. If there are mutually irreconcilable viewpoints, there must be a mechanism to resolve them. The assessment of the Election Commission as to the state of law and order and the nature and adequacy of the machinery to deal with situations so as to ensure free and fair elections must, prima facie, prevail. But, there may be limitations of resources. Situation of this kind should be resolved by mutual discussion and should not be blown up into public confrontations. This is not good for a healthy democracy. The Election Commission of India and the Union Government should find a mutually acceptable coordinating machinery for resolution of these differences.” The Supreme Court in N.Kannadasan’s case (supra), had an occasion to consider the effect and meaning of the word, “consultation”. This is not good for a healthy democracy. The Election Commission of India and the Union Government should find a mutually acceptable coordinating machinery for resolution of these differences.” The Supreme Court in N.Kannadasan’s case (supra), had an occasion to consider the effect and meaning of the word, “consultation”. It observed in paragraph 81 of its judgment that the word, “consultation”, may mean differently in different situations depending on the nature and purport of the statute. Referring to S.P.Gupta’s case, the Supreme Court observed as follows in paragraph 85 of its judgment: “ This Court in S.P.Gupta opined that the principles as regards consultation for appointment of Judges in terms of Article 217 of the Constitution of India would be the same as laid down in State of Gujarat v. Sankalchand Khodidas Patel, and other cases, stating: (S.P.Gupta case, SCC p.227, para 30) “30…. ‘2. … The word “consult” implies a conference of two or more persons or an impact of two or more minds in respect of a topic in order to enable them to evolve a correct, or at least, a satisfactory solution.’ and added: ‘39. … In order that the two minds may be able to confer and produce a mutual impact, it is essential that each must have for its consideration full and identical facts, which can at once constitute both the source and foundation of the final decision’. ‘103. … all the materials in the possession of one who consults must be unreservedly placed before the consultee.’ ‘103. … a reasonable opportunity for getting information, taking other steps and getting prepared for tendering effective and meaningful advice must be given to him.’ And ‘103. … The consultant, in turn, must take the matter seriously since the subject is of grave importance.’ The learned Judge proceeded to add: ‘103. … Therefore, it follows that the President must communicate to the Chief Justice all the material he has and the course he proposes. … The consultant, in turn, must take the matter seriously since the subject is of grave importance.’ The learned Judge proceeded to add: ‘103. … Therefore, it follows that the President must communicate to the Chief Justice all the material he has and the course he proposes. The Chief Justice, in turn, must collect necessary information through responsible channels or directly, acquaint himself with the requisite data, deliberate on the information he possesses and proceed in the interests of the administration of justice to give the President such counsel of action as he thinks will further the public interest, especially the cause of the justice system.’ These observations apply with equal force to determine the scope and meaning of ‘consultation’ within the meaning of clause (2) of Article 124 and clause (1) of Article 217. Each of the constitutional functionaries required to be consulted under these two articles must have for his consideration full and identical facts bearing upon appointment or non-appointment of the person concerned as a Judge and the opinion of each of them taken on identical material must be considered by the Central Government before it takes a decision whether or not to appoint the person concerned as a Judge.” In regard to the position of the Additional Judges, it was clearly held that same process must be followed.” (emphasis supplied) Again, the meaning of the word “consultation” came for consideration before the Supreme Court in State of Gujarat & Another vs. Justice R.A.Mehta (Retd) (supra). In paragraph 25 of the said judgment, the Supreme Court observed, inter alia, that if a certain power can be exercised only after consultation, such consultation must be conscious, effective, meaningful and purposeful. To ensure this, each party must disclose to the other all relevant facts for due deliberation. The consultee must express his opinion only after complete consideration of the matter on the basis of all the relevant facts and quintessence. Observations made by the Supreme Court in Janak Singh’s case (supra) with regard to deployment of Central Paramilitary Forces inside the polling booths, in addition to the law and order duty outside the polling booths are also of some significance. In paragraph 25 of the said judgment the Supreme Court made certain suggestions to the Election Commission, which are quoted hereinbelow: “ …………. In paragraph 25 of the said judgment the Supreme Court made certain suggestions to the Election Commission, which are quoted hereinbelow: “ …………. But before parting with the case, we would like to suggest that the Election Commission should consider posting of some personnel of paramilitary force inside the polling booth in addition to the law and order duty outside the polling booths. Some cameras should be installed in the polling booths to keep a vigilance on the local staff on duty. It has come to our notice that sometimes local staff which is appointed to conduct the election become party to the unfair and illegal practice. The paramilitary staff outside the polling booth maintains law and order situation outside but what transpires inside the polling booth is beyond their reach. Therefore, the Election Commission may consider some measures to appoint some of the personnel from paramilitary force to be deputed inside the polling booth so as to keep an eye on the local staff who are entrusted to conduct the election. This will have sobering effect on the staff that they are under vigilance of the paramilitary force.” The observation in Mohinder Singh Gill’s case (supra) by the Supreme Court in respect of Article 324 of the Constitution of India being a reservoir of power, where valid law in connection with elections is silent, is also required to be taken note of. Paragraph 92(2)(b) of the said judgment is quoted hereinbelow: “ Two limitations at least are laid on its plenary character in the exercise thereof. Firstly, when Parliament or any State Legislature has made valid law relating to or in connection with elections, the Commission, shall act in conformity with, not in violation of, such provisions but where such law is silent Article 324 is a reservoir of power to act for the avowed purpose of, not divorced from, pushing forward a free and fair election with expedition. Secondly, the Commission shall be responsible to the rule of law, act bona fide and be amenable to the norms of natural justice in so far as conformance to such canons can reasonably and realistically be required of it as fairplay-in-action in a most important area of the constitutional order, viz.. elections. Fairness does import an obligation to see that no wrong-doer candidate benefits by his own wrong. elections. Fairness does import an obligation to see that no wrong-doer candidate benefits by his own wrong. To put the matter beyond doubt, natural justice enlivens and applies to the specific case of order for total repoll, although not in full panoply but in flexible practicability. Whether it has been complied with is left open for the Tribunal’s adjudication.” In Association for Democratic Reforms’s case (supra), the Supreme Court has held, inter alia, that when the Act or Rules are silent on a particular subject and the authority implementing the same has Constitutional or statutory power to implement it, the Court can necessarily issue directions or orders on the said subject to fill the vacuum or void till the suitable law is enacted. The Supreme Court has further observed that the phrase, “conduct of elections”, is held to be of wide amplitude which would include power to make all necessary provisions for conducting free and fair elections. In an unreported decision the Supreme Court, in the case of Dalitha Sangarsha Samiti (supra), directed the Chief Secretary, State of Karnataka and all officers subordinate to him to comply with the directions given by the State Election Commission, Karnataka, in the matter of holding elections to local bodies and extend full cooperation to it. The Supreme Court further directed that no officer of the State Government or any other functionary shall make any attempt to frustrate the process initiated by the State Election Commission for holding and completing the election for the local bodies in accordance with the mandate of Article 243U of the Constitution of India. The Supreme Court in Election Commission of India v. State of Haryana (supra), had an occasion to consider a fact situation when there was difference between the Government of Haryana and the Chief Election Commissioner, which was centred around the question as to whether the position of law and order in the State of Haryana was such as to make it inexpedient or undesirable to hold the proposed by-election at that point of time. The Supreme Court’s observation in paragraph 8 of the judgment, which is also relevant in the facts of the present case, is quoted hereinbelow: “ ……………… The Government of Haryana is undoubtedly in the best position to assess the situation of law and order in areas within its jurisdiction and under its control. The Supreme Court’s observation in paragraph 8 of the judgment, which is also relevant in the facts of the present case, is quoted hereinbelow: “ ……………… The Government of Haryana is undoubtedly in the best position to assess the situation of law and order in areas within its jurisdiction and under its control. But the ultimate decision as to whether it is possible and expedient to hold the elections at any given point of time must rest with the Election Commission……….” The Supreme Court went on to observe further in paragraph 8 as follows: “ ……….It is therefore necessary that on an issue like the present, which concerns a situation of law and order, the Election Commission must consider the views of the State Government and all other concerned bodies or authorities before coming to the conclusion that there is no objection to the holding of the elections at this point of time. On this aspect of the matter, the correspondence between the Chief Secretary of Haryana and the Chief Election Commissioner shows that the latter had taken all the relevant facts and circumstances into account while taking the decision to hold the by-election to the Taoru Constituency in accordance with the proposed programme. The situation of law and order in Punjab and, to some extent, in Haryana is a fact so notorious that it would be naïve to hold that the Election Commission is not aware of it. Apart from the means to the knowledge of the situation of law and order in Punjab and Haryana, which the Election Commission would have, the Chief Secretary of Haryana had personally apprised the Chief Election Commissioner as to why the State Government was of the view that the elections should be postponed until the Parliamentary elections. We see no doubt that the Election Commission came to its decision after bearing in mind the pros and cons of the whole situation. It had the data before it. It cannot be assumed that it turned a blind eye to it. In these circumstances, it was not in the power of the High Court to decide whether the law and order situation in the State of Punjab and Haryana is such as not to warrant or permit the holding of the by election. It had the data before it. It cannot be assumed that it turned a blind eye to it. In these circumstances, it was not in the power of the High Court to decide whether the law and order situation in the State of Punjab and Haryana is such as not to warrant or permit the holding of the by election. It is precisely in a situation like this that the ratio of the West Bengal Poll case (1982) 2 SCC 218 would apply in its full rigor.” Significant observations were made by the Supreme Court in paragraph 9 of the same judgment, relevant portion whereof is quoted hereinbelow: “………………..The law and order situation in the State, or in any part of it, or in a neighbouring State, is a consideration of vital importance for deciding the question of expediency or possibility of holding an election at any particular point of time. We are confident that the Chief Election Commissioner, who is vested with important duties and obligations by the Constitution, will discharge those duties and obligations with a high sense of responsibility, worthy of the high office which he holds. If he considers it necessary, he should hold further discussions with the Chief Electoral Officer of Haryana and consult, once again, leaders of the various political parties on the question whether it is feasible to hold the poll on the due date. On an important issue such as the holding of an election, which is of great and immediate concern to the entire political community, there can be no question of any public official standing on prestige, an apprehension which was faintly projected in the State’s arguments. A sense of realism, objectivity and non-alignment must inform the decision of the Election Commission on that issue.” In Supreme Court Advocates-on-Record Association’s case (supra), on the question of primacy in a consultative process, the Supreme Court has made certain observations in paragraph 438, which are quite relevant in the facts of the instant case. A sense of realism, objectivity and non-alignment must inform the decision of the Election Commission on that issue.” In Supreme Court Advocates-on-Record Association’s case (supra), on the question of primacy in a consultative process, the Supreme Court has made certain observations in paragraph 438, which are quite relevant in the facts of the instant case. It stated that the debate on primacy is intended to determine who amongst the Constitutional functionaries involved in the integrated process of appointments is best equipped to discharge the greater burden attached to the role of primacy of making the proper choice; and this debate is not to determine who between them is entitled to greater importance or is to take the winner’s prize at the end of the debate. The Supreme Court has further observed to the effect that the primacy of one Constitutional functionary qua the others, who together participate in the performance of this function, assumes significance only when they cannot reach an agreed conclusion. The debate is academic when a decision is reached by agreement taking into account the opinion of everyone participating together in the process, as primarily intended. The situation of a difference at the end, raising the question of primacy, is best avoided by each Constitutional functionary remembering that all of them are participants in a joint venture, the aim of which is to find out and select the most suitable candidate for appointment, after assessing the comparative merit of all those available. This exercise must be performed as a pious duty to discharge the Constitutional obligation imposed collectively on the highest functionaries drawn from the executive and the judiciary…… In Election Commission of India v Union of India and Others (supra), the Supreme Court had an occasion to consider the Constitutional position of the Election Commission of India. In paragraph 8 of the said judgment, the Supreme Court observed as follows: “ While we reiterate the judicial perception as to the constitutional position and the plenitude of the powers of the Election Commission as a high and exclusive body charged with the duty, at once sensitive and difficult, of overseeing free and fair elections in the country and that its perceptions of the imperatives for a free and fair elections are not be interfered with by the courts, we must also indicate that there are no unreviewable discretions under the constitutional dispensation. The overall constitutional function to ensure that constitutional authorities function within the sphere of their respective constitutional authority is that of the courts. Whether the blanket suspension of the electoral process purported in the order dated 2-8- 1993 is justiciable on that principle of judicial review is eminently arguable. But one thing seems clear: the jurisdiction of courts would not extend to issuing directions to the Election Commission for the conduct of particular polls on particular dates independently of the perception by the Commission as to their feasibility and practicability consistent with what may be needed to ensure the purity of the electoral process. On this aspect we have reservations about the permissibility of the various interlocutory orders of the High Courts which may have the effect and implications of compelling the Election Commission to conduct polls on particular dates and also to follow those events up to their sequential and logical ends. But in the light of the submissions made by Shri G.Ramaswamy, it becomes unnecessary to consider these aspects any further at this stage.” In paragraph 9 of the same judgment, while taking into consideration the submissions made on behalf of the Election Commission of India, the Supreme Court went on to observe as follows: “…….However, the Election Commission, it was submitted, would reserve to itself its constitutional function to notify such suitable dates for the polling as the circumstances and exigencies obtaining in the respective constituencies may permit. This stand of the Election Commission is proper and reassuring. The fixing of the dates of polling is a matter for the informed judgment of the Election Commission consistent with its perception of the law and order situation and of the ensurement of the requisite precautionary and remedial measures.” The observations of the Supreme Court in the judgments referred above are consistent with regard to recognition of the pivotal role played by the Election Commission of India as well as the State Election Commission in the matter of conducting elections, right from the national level to the Panchayat level. A Division Bench judgment of the Allahabad High Court, which has also been referred to by the learned senior counsel for the Commission, is required to be taken notice of since the same has been rendered taking into consideration Article 243K of the Constitution of India and relates to issuance of notification for the election appointing date or dates of the general election or by-election of the Pradhan or Upa-pradhan or members of the Gram Panchayat in the State of Uttar Pradesh. Relevant portion of the observations made by the Allahabad High Court in Prem Lal Patel’s case (supra) as appearing in paragraph 36 is quoted hereinbelow: “……. Matters regarding issuance of the notification for the election appointing date or dates of the general election or by-election of the Pradhan or Upa-Pradhan or members of the Gram Panchayat falls within the scope and ambit of the superintendence, directions and control of the State Election Commissioner, who is appointed by the Governor of the State under Article 243K(1), of the Constitution. By means of the substitution of clause (3), in Section 12BB of the U.P. Panchayat Raj Act, the State Government has taken upon itself, the task of issuing notification for the election appointing date or dates for the general election or by-election of the Pradhan or Up-Pradhan, or members of the Gram Panchayat with the consultation of Election Commissioner. The edict of Article 243K, is unambiguous and clear. All such powers are vested to the State Election Commissioner. The State Government cannot enact a law, which is inconsistent with any provisions of the Constitution much less Article 243K, which encroaches upon the field, which is occupied by the State Election Commissioner.” Some of the judgments referred to by the learned Advocate General are common with those cited on behalf of the Commission. There is no necessity to deal with them separately. The observations made by the Supreme Court in paragraphs 6 and 7 in M.P.Ponnuswami’s case (supra), which was referred to by the learned Advocate General, was in the factual backdrop of a person who had filed nomination papers for election to the Madras Legislative Assembly from the Namakkal Constituency in Salem district. On 28th November, 1951, the Returning Officer for that constituency took up for scrutiny the nomination papers filed by the various candidates and on the same day he rejected the applicant’s nomination paper on certain grounds. On 28th November, 1951, the Returning Officer for that constituency took up for scrutiny the nomination papers filed by the various candidates and on the same day he rejected the applicant’s nomination paper on certain grounds. The appellant thereafter moved the High Court under Article 226 of the Constitution of India praying for a writ of certiorari to quash the order of the Returning Officer rejecting his nomination paper and to direct the Returning Officer to include his name in the list of valid nominations to be published. The High Court dismissed the appellant’s application on the ground that it had no jurisdiction to interfere with the order of the Returning Officer by reason of the provisions of Article 329 (b) of the Constitution of India. It was under those circumstances that the matter came up consideration before the Supreme Court. The Supreme Court had the occasion to interpret the word, “election” as appearing under Article 329(b). The Supreme Court in paragraph 7 of the said judgment observed, inter alia, that the word has by long usage in connection with the process of selection of proper representatives in democratic institutions, acquired both a wide and a narrow meaning. In the narrow sense, it is used to mean the final selection of a candidate which may embrace the result of the poll when there is polling or a particular candidate being returned unopposed when there is no poll. In the wide sense, the word is used to connote the entire process culminating in a candidate being declared elected. The above observation of the Supreme Court cannot render any assistance to the State in the facts of the instant case. Rather it allows wide interpretation of the word, “election” in the context it has been referred to in the instant matter. In Election Commission of India vs. Ashok Kumar and Others (supra), an interim order passed by the High Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India during the currency of the process of election, whereby the High Court stayed the notification issued by the Election Commission of India, containing direction as to the manner of counting votes and made directions of its own on the subject. This was put in issue by the Election Commission of India before the Supreme Court. This was put in issue by the Election Commission of India before the Supreme Court. Referring to the term, “election”, as occurring under Article 329 of the Constitution of India, the Supreme Court held, in paragraph 14 of its judgment, that the term would mean and include the entire process from the issue of notification under section 14 of the Representation of the People Act, 1951, to the declaration of result under section 66 of the Act. It may be observed at this juncture that section 14 of the Representation of the People Act, 1951, does not provide a mechanism for effective and meaningful consultation between the Government and the Commission, as envisaged under section 42 of the Act, which is in issue in the present case. Similarly, in the case of V.S. Achuthanandan (supra), the Supreme Court was considering the meaning of the word “election” as used in Representation of the People Act, 1951 and reiterated its wide usage from the time of notification calling for elections. The other judgments referred to by the learned Advocate General, such as Election Commission of India vs. State Bank of India Staff Association (supra) and Election Commission of India vs. Shivaji and Others (supra), seek to define the word “election” in the backdrop of its use under the provisions of the Representation of the People Act, 1951. It has to be kept in mind that the State exercises direct control over its law and order machinery with its political executive at the helm. The political executive, on the other hand, is constituted on the strength of majority of elected members of the State Assembly. The elected members of the State Legislative Assembly are members of recognized political parties, other than a few independent or nominated members. The recognised political parties are also participants in the Panchayat elections. Thus, on a logical analysis, there is bound to be conflict of interest in such a situation. There is always an outside chance that the ruling political establishment would like to cling on to power, somehow. The law and order machinery at its disposal, there is all likelihood of the machinery being made to work for the ruling political establishment, thereby compromising on the most significant aspect of the democratic process of election, and that is, maintenance of absolute neutrality during the election process. The law and order machinery at its disposal, there is all likelihood of the machinery being made to work for the ruling political establishment, thereby compromising on the most significant aspect of the democratic process of election, and that is, maintenance of absolute neutrality during the election process. It is precisely for this reason that we have in place an apolitical and neutral Constitutional body, which has been empowered by the Constitution with power of superintendence, direction and control of the preparation of electoral rolls for, and conduct of, all elections to the Panchayats. Even if everyday law and order falls within the exclusive domain of State control, for the purpose of conduct of election, assessment of such law and order cannot be left in the hands of the State Government, since it would severely compromise on the aspect of neutrality. The sole object, therefore, is to achieve total neutrality in respect of conduct of election, which is possible only through the apolitical and neutral Constitutional body, i.e., the Commission and the pivotal role played by it in the election process. (emphasis supplied) The language used in Articles 324 and 243K of the Constitution of India, are quite similar. The Constitutional position of the two bodies, i.e., the Election Commission of India and the State Election Commission are also similar to each other. A bare reading of the two Articles leaves no manner of doubt whatsoever that similar Constitutional powers and privileges have been consciously bestowed upon the Election Commission of India as well as the State Election Commissions – both being apolitical and neutral bodies – only in order to grant them total immunity against any kind of interference by the political establishment, in so far as their role in preparation of electoral rolls for, and the conduct of, all elections in free, fair and peaceful manner.(emphasis supplied) Resources – whether relating to funds or logistics – or its limitation, can never stand in the way of conducting any election under our Constitutional scheme. The object of holding an election – an integral part of the democratic process – is only to uphold the most fundamental tenet on which Sovereign Democratic Republic of India was founded and that is – people of India’s absolute right of free, fair and peaceful participation in the democratic process of election. The object of holding an election – an integral part of the democratic process – is only to uphold the most fundamental tenet on which Sovereign Democratic Republic of India was founded and that is – people of India’s absolute right of free, fair and peaceful participation in the democratic process of election. As W E THE PEOPLE OF INDIA have resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens our Constitutional philosophy as enshrined in the Preamble, it would be an utter failure on our part to fulfil our Constitutional objective, if the State cannot ensure that not only each vote is cast by a citizen in a free, fair and peaceful manner, the “conduct of election” itself is not compromised – in any form or manner – through interference or encroachment on the Constitutional power vested with the Commission with regards to its superintendence, direction and control for conducting the Panchayat elections as an apolitical and neutral body. (emphasis supplied) The significance of democratic elections, perhaps, was most succinctly expressed by Sir Winston Churchill: “ At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper – no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point.” It has been quoted by the Supreme Court in at least two of its judgments – Mohinder Singh Gill and Association for Democratic Reforms (supra). The pivotal role played by the Commission in respect of “conduct of elections”, right from pre-nomination stage till declaration, followed by report and publication of the Panchayat result – as per scheme of entire Part VI of the Act – is compatible with Article 243K of the Constitution of India, which has already been discussed earlier. It clearly establishes the Commission’s primacy in respect of “conduct of elections” as an apolitical and neutral body. It clearly establishes the Commission’s primacy in respect of “conduct of elections” as an apolitical and neutral body. It would, therefore, be an absolute non-negotiable obligation on the part of the State under our Constitutional scheme to find effective means of providing logistics and adequate financial resources – either by imposing some kind of tax/levy/cess and/or by creating a separate budgetary head – so that adequate logistic support and funds are available at the disposal of the Election Commission, which is entrusted under the Constitution for conducting Panchayat elections in a free, fair and peaceful manner as an apolitical and neutral body. In this context, one may consider the following observations made by the Supreme Court in Municipal Council, Ratlam v. Vardhichand reported in AIR 1980 SC 1622 : “The statutory setting being thus plain, the municipality cannot extricate itself from its responsibility. Its plea is not that the facts are wrong but that the law is not right because the municipal funds being insufficient it cannot carry out the duties under S.123 of the Act. This ‘alibi’ made us issue notice to the State which is now represented by counsel, Shri Gambhir, before us. The plea of the municipality that notwithstanding the public nuisance financial inability validly exonerates it from statutory liability has no juridical basis. The Criminal Procedure Code operates against statutory bodies and others regardless of the cash in their coffers, even as human rights under Part III of the Constitution have to be respected by the State regardless of budgetary provision. Likewise, S.123 of the Act has no saving clause when the municipal council is penniless. Otherwise, a profligate statutory body or pachydermic governmental agency may legally defy duties under the law by urging in self-defence a self-created bankruptcy or perverted expenditure budget. That cannot be.” Coming back to the case in hand, the four outstanding issues (as on 16th April, 2013), remain unresolved even as of date. In view of the foregoing discussion, the Commission’s pivotal role in the consultative process, prior to issuance of notification by the State Government under section 42 of the Act, has been clearly established. There is, however, an absolute necessity to hold Panchayat elections in the State of West Bengal before the present term expires, sometime in June. An extraordinary situation has arisen, which is required to be dealt with an extraordinary manner. There is, however, an absolute necessity to hold Panchayat elections in the State of West Bengal before the present term expires, sometime in June. An extraordinary situation has arisen, which is required to be dealt with an extraordinary manner. In such circumstances, this Court issues the following directions : 1. The State shall provide the balance names of Observers, as per Commission’s request, from its pool of IAS/WBCS (Ex) officers, latest by tomorrow; 2. So far as security personnel are concerned, the shortfall as appearing from Annexure P-45 at page 176 of the writ petition, is required to be fully compensated by the State Government by bringing in Central Armed Police Forces (CAPFs) as well as security personnel from other States to the satisfaction of the Commission. The State should ensure that adequate armed police personnel are available for deployment to the satisfaction of the Commission, from the stage of nomination itself. The exact detail should be made known to the Commission, latest by tomorrow; 3. The Panchayat election shall be held in three phases. District-wise grouping and actual dates shall, however, be communicated by the Commission to the State Government, immediately upon receipt of the names of Observers and exact detail of availability of security personnel from the State Government in terms of this order; 4. The Commission, while intimating the State Government the three dates of election and district-wise grouping, shall also provide a revised time-table, which will ensure holding of Panchayat elections before the present terms of the elected bodies expire; 5. Lastly, the Commission shall issue necessary directions upon all concerned, including recognized political parties and candidates in the fray to refrain from referring to the observations made in this judgment as part of their election campaign. So far as funds are concerned, in view of the categorical assurance given by the learned Advocate General before this Court to the effect that adequate funds will be available at the disposal of the Commission, this Court refrains from issuing any mandatory directions, but reminds the State of the observations made in this respect in the earlier part of this judgment. The writ petition stands disposed of accordingly. Urgent photostat certified copy of this judgment and order, if applied for, be supplied to the parties on priority basis