Research › Search › Judgment

Allahabad High Court · body

2013 DIGILAW 825 (ALL)

SUJEET KUMAR SINGH v. STATE OF U. P.

2013-03-14

BHARAT BHUSHAN, SUNIL AMBWANI

body2013
JUDGMENT By the Court.—This writ petition is directed against the order of the State Election Commissioner, U.P. at Lucknow dated 19.1.2013 by which he has countermanded the elections of Chairman, Zila Panchayat, Varanasi on the seat, which has fallen vacant on the no confidence motion passed against the then Chairman, Zila Panchayat, Varanasi on 28.6.2012; and its communication by the District Magistrate, Varanasi dated 20.1.2013. 2. The pleadings have been exchanged. With the consent of the parties, the writ petition was heard on the following questions of law : “(i) Whether the State Election Commission in exercise of its powers of superintendence over the elections on the post of Chairman of Zila Panchayat under Article 243K of the Constitution of India can direct to countermand the elections on any grounds other than the ground of the death of a candidate under Rule 15 of the U.P. Panchayat Election of Adhyaksh and Upadhyaksh and Settlement of Election Dispute Rules, 1994, made under the U.P. Kshetra Panchayat and Zila Panchayat Adhiniyam, 1961? (ii) Whether the State Election Commission, U.P. can countermand the elections after the date of scrutiny and withdrawal of the nominations, before the date of polling on the reports submitted by the district administration that majority of the members of the Zila Panchayat are not available at their residence and cannot be contacted, with the apprehension that they have been taken away by one of the contestants, who is involved in large number of criminal cases and who has with his influential in the area created an atmosphere of fear, causing apprehension of vitiating the peaceful atmosphere to hold free and fair elections? (iii) Whether the State Election Commission, U.P. failed in exercise of its powers, in making request to the Governor of Uttar Pradesh in requisitioning adequate security to ensure free and fair elections? (iv) Whether in the facts and circumstances of the case, the State Election Commissioner abdicated his authority and independence in countermanding the elections on the post of Chairman, Zila Panchayat, Varanasi by accepting the report of the State Government, that on account of the influence of one of the contestants, and the apprehensions of majority of members being waylaid or abducted by one of the contestants, to serve the political interests of the ruling party in the State? 3. 3. We have heard Shri Kesari Nath Tripathi, Senior Advocate assisted by Shri Sudist appearing for the petitioner. Shri C.B. Yadav, learned Additional Advocate General appears for the State respondents. Shri M.D. Singh ‘Shekhar’, Senior Advocate assisted by Shri Satyendra Kumar Singh appears for the State Election Commission-respondent No. 3. Shri Amulya Ratan Srivastava appears for respondent No. 5-Smt. Kanti. 4. The Zila Panchayat, Varanasi consists of 39 members elected from different wards under the U.P. Kshetra Panchayat and Zila Panchayat Adiniyam, 1961 (in short the Act). The elections for members and Chairman of Zila Panchayat, Varanasi was held in the year 2010 in which Sujeet Kumar Singh, the petitioner was elected as member from Ward No. 2 and Shri Madhukar Maurya was elected as Adhyaksha of Zila Panchayat, Varanai from amongst 39 members of the Zila Panchayat. 5. A no confidence motion was brought by the members of Zila Panchayat against Shri Madhukar Maurya on 6.6.2012, which was passed on 28.6.2012 by majority of 20 members out of 39 members of Zila Panchayat causing a vacancy in the office. The State Government constituted a Committee of three members to perform the functions of the Zila Panchayat until the elections are held for the post of Chairman. Smt. Kanti Yadav-respondent No. 5, Phool Chand and Sanjai Mishra were notified as members of the committee. 6. The vacancy to the office of Chairman, Zila Panchayat was required to be filed under Section 25 of the Act within a period of six months. Section 25 of the Act provides : “25. Filling of casual vacancy.—If a vacancy occurs by reason of death or otherwise in the office of Adhyaksha, Upadhyaksha or an elected member of Zila Panchayat, it shall be filled before the expiration of a period of six months from the date of such vacancy, in the manner provided for in Section 18 or 19, as the case may be, for the residue of the term of his predecessor. Provided that on the date of occurrence of such vacancy the residue of the term of Zila Panchayat is less than six months, the vacancy shall not be filled.” 7. The State Election Commission issued notification on 4.1.2013 for holding the elections. The election programme announced by the District Magistrate, Varanasi/Election Officer dated 5.1.2013 notified the dates for elections as follows : “1. Date of filing of nomination papers 15.1.2013 2. The State Election Commission issued notification on 4.1.2013 for holding the elections. The election programme announced by the District Magistrate, Varanasi/Election Officer dated 5.1.2013 notified the dates for elections as follows : “1. Date of filing of nomination papers 15.1.2013 2. Date of scrutiny of nomination papers 15.1.2013 3. Date of withdrawal 18.1.2013 4. Date of poll 21.1.2013 5. Date of counting of votes 21.1.2013" 8. The petitioner as well as the respondent No. 5 filed nomination papers on 15.1.2013. The nomination papers were scrutinised on the same day after 3.00 p.m. and were found to be valid on which they became duly nominated candidates. After the date of withdrawal on 18.1.2013, the petitioner and respondent No. 5 were the only candidates left in fray. It is alleged that the respondent No. 5 has political leaning towards ruling party of the State and this fact had become evident after she was appointed as member of the committee to perform the duties of the Chairman by the State Government until the elections were held. She is a member of Samajwadi Party, which has majority in the State Legislative Assembly and has formed the State Government in April, 2012. 9. It is alleged that on 17.1.2013, four days before the polling day a complaint was made by Smt. Kanti Yadav-respondent No. 5 to the District Magistrate/District Election Officer, Varanasi alleging that Shri Brijesh Singh, a mafia don is the resident of the same village in which she is residing. Shri Sujeet Singh, the nephew of Shir Brijesh Singh and the entire family is well known for their criminal activities. Shri Brijesh Singh alongwith Shri Upendra Singh @ Guddu Singh resident of District Chandauli, who is also known criminal and is associated with criminals of eastern U.P. and Bihar, alongwith Shri Avanindra Singh and other criminals, in 4-5 luxury vehicles alongwith fire arms have abducted Shri Ramesh, Shri Anjani Nand Pandey, Hans Raj Yadav, Smt. Sabnam, Shri Kashi Nath Yadav, Shri Sant Kumar Sant, Shri Santosh Gautam, Jai Devi Kannoujia; Phool Chandra Kannoujia, Shiv Lochan, Maya Kannojia, Amit Sonkar, Usha Patel and others, members of the Zila Panchayat, forcibly after terrorising them and have hidden them at an unknown place far away from the district. They alongwith their accomplices have created an atmosphere of terror amongst members of the Zila Panchayat. They alongwith their accomplices have created an atmosphere of terror amongst members of the Zila Panchayat. The members of Zila Panchayat and their relatives do not have the courage in view of the activities and criminal background of these persons to act or to speak against them and in such circumstances it is neither appropriate nor possible to expect a fair election. She requested the District Magistrate to take effective legal steps so that democratic process may be established. 10. The District Magistrate, Varanasi caused an enquiry on her complaints dated 17.1.2013 and 18.1.2013, to the same effect, and having obtained a report from the Senior Superintendent of Police dated 19.1.2013, informed the Election Commissioner, on the same day on 19.1.2013 that Shri Sujeet Singh (the petitioner) is brother of the sitting MLA Shri Susheel Singh and nephew of Brijesh Singh, who is a known criminal lodged in Central Jail, Varanasi. Several criminal cases are registered against him. On enquiries the Senior Superintendent of Police has found that most of the members of Zila Panchayat are absconding and have also switched off their cell phones. He also reported that Shri Sujeet Singh (the petitioner) has taken them away with his money and muscle power and that the allegations of Smt. Kanti Devi appear to be prima facie correct. A criminal case under Section 123 (2) of Representation of People Act has been registered against Sujeet Kumar at P.S. Choubepur in which investigation is in progress. He reported that the elections have been affected by money and muscle power and it is not possible at present to hold elections peacefully. On these facts the District Magistrate, Varanasi recommended to countermand the elections of Chairman of Zila Panchayat. 11. That on the same day on 19.1.2013 the State Election Commissioner on the report of the District Magistrate, Varanasi, based on the report of the Senior Superintendent of Police, Varanasi, recorded his satisfaction that the election process for holding elections on the vacancy on the post of Chairman, Zila Panchayat has been vitiated and keeping in view such circumstances and recommendations decided in exercise of his powers under Article 243-T of the Constitution of India and Section 264-B of the Act of 1961, to countermand the entire election process initiated by Notification dated 4.1.2013. The State Election Commissioner also recommended that since the situation in which the electors have been deprived to cast votes has prima facie arisen out of negligence of District Magistrate and Senior Superintendent of Police, Varanasi, resulting in countermanding the elections, the Chief Secretary, Government of U.P. will cause an enquiry in the matter and inform the Commission with the steps taken in the matter. The District Magistrate issued consequential orders on the next day on 20.1.2013 giving rise to this writ petition. 12. It is alleged that these reports were engineered on account of political pressure at the instance of the ruling party, which was also clear by the way the electors were harassed and on which the petitioner has to move an application to provide police protection for all the electors. The petitioner repeated the request on 19.1.2013, two days before the elections were to be held. Instead of taking any action for providing security to 39 members and for holding elections peacefully, the State Election Commissioner acting on the report of the State Government, based on the report of the District Magistrate and the Senior Superintendent of Police of the same date decided to countermand the elections. 13. It is submitted that under Section 25 of the Act elections for filling up vacancy of the office of Chairman, Zila Panchayat must be held within six months from the date of vacancy. The period of six month expired on 28th January, 2013. The impugned orders countermanding the elections passed by the Chief Election Commissioner, U.P. and communicated by the District Magistrate are not in conformity of the provisions of law nor the registration of criminal case of Section 123 of the Representation of People Act, 1951 has anything to do with the exercise of such powers. 14. The writ petition was filed on 6.2.2013. On 12.2.2013 and thereafter on 4.3.2013, we passed following orders : “Order Date : 12.2.2013 “Heard Shri Kesari Nath Tripathi, Senior Counsel assisted by Shri Sudist for the petitioner. Learned Standing Counsel appears for the State-respondent Nos. 1 to 3. Shri M.D. Singh Shekhar, Senior Counsel assisted by Shri S.K. Singh appears for State Election Commission, Lucknow-respondent No. 4. Issue notice to Smt. Kanti-respondent No. 5. Steps within three days. Learned Standing Counsel appears for the State-respondent Nos. 1 to 3. Shri M.D. Singh Shekhar, Senior Counsel assisted by Shri S.K. Singh appears for State Election Commission, Lucknow-respondent No. 4. Issue notice to Smt. Kanti-respondent No. 5. Steps within three days. By this writ petition, the petitioner has challenged the order passed by the State Election Commission, U.P. dated 19.1.2013 countermanding the elections of Chairman, Zila Panchayat for which the polling was scheduled to be held on 21.1.2013. The office of the Chairman, Zila Panchayat, Varanasi fell vacant after the motion of no confidence against Shri Madhukar Maurya elected as Adhyaksha, Zila Panchayat, Varanasi was carried out on 28.6.2012. Section 25 of the U.P. Kshetra Panchayats and Zila Panchayats Adhiniyam, 1961 provides for filling up the casual vacancy for which the State Election Commission issued notification on 4.1.2013 for holding elections on 21.1.2013. After the process of filing of nomination papers and scrutiny were completed, there were only two candidates in the fray namely Shri Sujeet Kumar Singh-the petitioner and Smt. Kanti-respondent No. 5. Smt. Kanti submitted an application to the State Election Commission alleging, that most of the members of the Zila Panchayat have been abducted by the petitioner, who is nephew of Shri Brijesh Singh, a known criminal and Shri Sushil Singh-the sitting Member of Legislative Assembly and that in the circumstances, the elections are not possible. The State Election Commission appears to have made an enquiry through the Deputy Inspector General of Police/Senior Superintendent of Police, Varanasi and has countermanded the elections by the order dated 19.1.2013 under challenge in this writ petition. The Senior Superintendent of Police reported through the District Magistrate, Varanasi that most of the members of Zila Panchayat have left their residential houses and their mobile phones are switched of. The Senior Superintendent of Police also reported that it was prima facie found in the enquiry that Shri Sujeet Kumar Singh and his accomplices have given inducement of money and have also pressurised most of the members and in the circumstances the elections should be countermanded. It is submitted by Shri Kesari Nath Tripathi, that the State Government is responsible for ensuring free and fair elections in any elections in the State and to ensure the democracy to be protected in the State. It is submitted by Shri Kesari Nath Tripathi, that the State Government is responsible for ensuring free and fair elections in any elections in the State and to ensure the democracy to be protected in the State. The report submitted by the Senior Superintendent of Police appears to have accepted that the State Government is unable to maintain peace and to ensure free and fair elections, even if the elections are held for only post of Chairman, Zila Panchayat to fill up the vacancy. He submits that the countermanding is only permissible under the Rules, where any candidate who has validly filed nomination dies. In all other cases the date of polling may be postponed for reasons beyond the control of authorities and election should start from the stage immediately prior to the date when they are postponed. A perusal of the order of the State Election Commission shows that the Deputy Inspector General of Police/Senior Superintendent of Police, Varanasi and the District Magistrate not only failed to maintain law and order situation for holding free and fair elections, they have also accepted that there are certain persons in the district, who have gained the status who are beyond their control. The matter, as to whether in such circumstances the polling should be postponed or that the elections should be countermanded, requires consideration by this Court. Learned Standing Counsel may file counter-affidavit including the reports of the Senior Superintendent of Police and the District Magistrate, Varanasi on which the State Election Commission recorded its satisfaction. Shri M.D. Singh Shekhar assisted by Shri S.K. Singh appearing for the State Election Commission will also file the counter-affidavit. The counter-affidavit shall be filed within two weeks. The petitioner will have three days thereafter to file rejoinder-affidavit. List on 4.3.2013 in the additional cause list.” 15. On 4.3.2013 after quoting the order dated 12.2.2013, we passed the order : “2. The counter-affidavits of Shri A.K. Srivastava, District Panchayat Raj Officer, district Jaunpur, and Shri Jai Prakash Singh, Joint Commissioner, State Election Commission, Lucknow have been filed today. 3. In the counter-affidavit of Shri Jai Prakash Singh, Joint Commissioner, State Election Commission, the joint report of the District Magistrate and Senior Superintendent of Police, Varanasi dated 25.2.2013 has been annexed. The counter-affidavits of Shri A.K. Srivastava, District Panchayat Raj Officer, district Jaunpur, and Shri Jai Prakash Singh, Joint Commissioner, State Election Commission, Lucknow have been filed today. 3. In the counter-affidavit of Shri Jai Prakash Singh, Joint Commissioner, State Election Commission, the joint report of the District Magistrate and Senior Superintendent of Police, Varanasi dated 25.2.2013 has been annexed. He has also annexed the report of the Additional Superintendent of Police (Rural) Varanasi, giving the details of the criminal cases registered against Sushil Singh son of Shri Chulbul Singh, and Brajesh Singh son of Shri Ravindra Nath Singh; the approval to the report given by the Director General of Police, Law and Order, U.P. dated 28.2.2013, and report of the Principal Secretary, Home and Intelligence dated 28.2.2013 accepting the joint report of the District Magistrate and the Senior Superintendent of Police, Lucknow dated 26.2.2013. 4. The joint report of the District Magistrate and the Senior Superintendent of Police, Lucknow prima facie establishes the allegations made by the petitioner that instead of acting on the complaint made by the petitioner for giving protection to the members of the Zila Panchayat, they were influenced by the status of Shri Sujeet Singh, nephew of Brajesh Singh-a known criminal against whom 25 cases have been registered. The report is based upon the influence of Brajesh Singh,who has in their opinion, money power and muscle power and, appears to have complete control over the political activities in district Varanasi and neighbouring districts. They have jointly reported that in order to hold free and fair elections of Zila Panchayat in peaceful atmosphere, it is necessary to remove the fear out of the minds of the voters. They are also required to be provided with armed guards. They further reported that in view of large number of people visiting Varanasi after Kumbh Mela and the Basant Panchami, the elections should be held after 4th April, 2013. 5. Shri K.N. Tripathi states that the Statute mandates holding of the elections within six months from the date of vacancy. They are also required to be provided with armed guards. They further reported that in view of large number of people visiting Varanasi after Kumbh Mela and the Basant Panchami, the elections should be held after 4th April, 2013. 5. Shri K.N. Tripathi states that the Statute mandates holding of the elections within six months from the date of vacancy. Instead of ensuring maintenance of law and order situation and providing security to the members of Zila Panchayat, who are alleged to have submitted their affidavits that they were present to participate in the elections and were not prevented by any one, the District Magistrate and the Senior Superintendent of Police have on their own influenced by the extra constitutional powers of certain persons allowed the elections to be countermanded, on their report, and have now recommended for its postponement beyond 4th April, 2013. 6. We find the language used by the District Magistrate and the Superintendent of Police, Varanasi, who are under statutory duty to maintain law and order situation in the district, to be highly objectionable. It is rather surprising that instead of directing the District Magistrate and the Senior Superintendent of Police to maintain law and order and peace in the district, the report has been submitted by the Director General, Law and Order and the Home Secretary of Government of Uttar Pradesh. 7. Shri K.N. Tripathi prays for and is allowed two days’ time to file rejoinder-affidavit. 8. In the meantime, after hearing Shri C.B. Yadav, Additional Advocate General, we direct that an affidavit of Home Secretary, Government of U.P be filed explaining the circumstances, in which the joint report of the District Magistrate and the Senior Superintendent of Police dated 26.2.2013 was accepted by him, and the recommendations were made for holding elections after 4th March, 2013. 9. Put up this matter again on 7th March, 2013. The State respondents will file affidavit of the Home Secretary, Government of UP. A copy of the order be given to the Chief Standing Counsel today.” 16. It appears that the State Government asked the District Magistrate, Varanasi to submit a report on the expected dates on which the countermanded elections may be held. The State respondents will file affidavit of the Home Secretary, Government of UP. A copy of the order be given to the Chief Standing Counsel today.” 16. It appears that the State Government asked the District Magistrate, Varanasi to submit a report on the expected dates on which the countermanded elections may be held. On this request enquiries were made by the District Magistrate and Senior Superintendent of Police, Varanasi and on the reports obtained by them from the Additional Superintendent of Police, they jointly submitted a report on 26th February, 2013 to the Principal Secretary (Home), Government of U.P. giving details of six criminal cases in Schedule-1 pending against the petitioner Shri Sujeet Singh; 13 criminal cases in Schedule-2 against his brother Shri Sushil Singh; 16 criminal cases in Schedule-3 pending against the father of the petitioner Shri Udai Nath Singh @ Chulbul Singh and 25 criminal cases against Shri Brijesh Singh, who is uncle of the petitioner in Schedule-4. They further reported that criminal case has been registered on the complaint of Smt. Kanti Devi on 19.1.2013 at P.S. Chobeypur for abducting the members of Zila Panchayat registered as Criminal Case No. 21/13 under Section 341/364; 506/171 ‘Cha’ IPC and 123 (2) Representation of People Act, 1951 against Shri Sujeet Singh and three other persons, of which investigation is pending. 17. The District Magistrate and the Senior Superintendent of Police, Varanasi reiterated in their joint report that ordinarily no one has courage to fight elections against these persons on account of their money and muscle power. The effect of their money and muscle power is visible in entire area of Varanasi and neighbouring district. Shri Sushil Singh is sitting Members of Legislative Assembly of Dhanapur in Distt, Chandauli; Smt. Indu Singh, the wife of the petitioner is Block Pramukh of Sewapuri Kshetra Panchayat, Distt. Varanasi and Smt. Annpurna Singh wife of his uncle Shri Brijesh Singh is the Member of Legislative Council. Smt. Kiran Singh wife of Shri Sushil Singh has held office of Chairman of Zila Panchayat and that Shri Udai nath Singh @ Chulbul Singh, the father of the petitioner has been a member of Legislative Council. In the circumstances, and in order to remove fear from the minds of electors, to hold elections impartially and peacefully it is necessary to provide them security guards from the beginning of election process. 18. In the circumstances, and in order to remove fear from the minds of electors, to hold elections impartially and peacefully it is necessary to provide them security guards from the beginning of election process. 18. It was further reported that so far as possible time for holding elections, Varanasi being an ancient city known for religious festivals and congregation is a highly sensitive district from the point of view of communal harmony. Lacs of pilgrims will arrive from Maha Kumbh. After the festival of ‘Basant Panchami’ a large number of ‘akharas’ have already arrived at Varanasi, which will continue to stay at Varanasi upto bathing days of ‘Maha Shivratri’ and ‘Holi’. The last representation of ‘Akharas’ for bathing is scheduled on 3.4.2013. Since District Varansi is the chief centre of Shaiv disciples and that on ‘Maha Shivratri’ more than ten lacs persons are likely to assemble. Apart from this there is also possibility of communal dispute on the festival of Holi, and in the circumstances the date for Zila Panchayat elections may be fixed after 4.4.2013. 19. In the counter-affidavit of Shri A.K. Srivastava, District Panchayat Raj Officer, Distt. Jaunpur filed on behalf of the District Magistrate, Varanasi and the District Panchayat Raj Officer, Varanasi, it is stated in paragraph 10 as follows : “That, the allegations made in paragraph No. 12 of the writ petition are misleading and are also incorrect. It is stated that a complaint dated 17.1.2013 was given by respondent No. 5 who was also a candidate for the election in question to the District Magistrate levelling allegations against the petitioner about kidnapping of several members of Zila Panchayat by the petitioner. Copy of aforesaid complaint of respondent No. 5 is annexed as Annexure CA-1 to this counter-affidavit. On the aforesaid complaint the District Magistrate had directed the Senior Superintendent of Police, Varanasi to make an enquiry. The Senior Superintendent of Police gave his report to the District Magistrate on 19.1.2013 stating that the allegations levelled by Smt. Kanti Devi appeared to be true on the basis of investigation conducted by him. Copy of report dated 19.1.2013 of Senior Superintendent of Police, Varanasi is annexed as Annexure CA-2 to this counter-affidavit. The respondent No. 2 being returning officer for the poll of Adhyaksha, Zila Panchayat, Varanasi sent his report dated 19.1.2013 to the respondent No. 4, namely, the State Election Commission. Copy of report dated 19.1.2013 of Senior Superintendent of Police, Varanasi is annexed as Annexure CA-2 to this counter-affidavit. The respondent No. 2 being returning officer for the poll of Adhyaksha, Zila Panchayat, Varanasi sent his report dated 19.1.2013 to the respondent No. 4, namely, the State Election Commission. Copy of aforesaid letter dated 19.1.2013 is annexed as Annexure CA-3 to this counter-affidavit. After received of the aforesaid report, the order has been passed by the Election Commission on 19.1.2013 to countermand election.” 20. In the counter-affidavit of Shri R.M. Srivastava, Principal Secretary, Department of Home, Government of U.P., Lucknow it is stated in paragraphs 2 to 10 as follows : “2. That the instant writ petition has been filed by the petitioner challenging the order dated 19.1.2013 passed by State Election Commission, U.P. Lucknow. In the aforesaid case Counter-affidavit has already been filed by the State respondent and also affidavit was filed by the Election Commission. Taking into account the averments referred in the affidavits filed by the authorities this Hon’ble Court was pleased to pass an order on 4.3.2013. In the aforesaid order the direction was given in paragraph No. 8 that an affidavit of Home Secretary, Government of U.P., Lucknow be filed explaining the circumstances the joint report of District Magistrate and Senior Superintendent of Police dated 26.2.2013 has been accepted and recommended for holding election after 4.3.2013. The deponent who is functioning as Principal Secretary, Home has been communicated by Additional Advocate General vide his letter dated 5.3.2013. Para-8 of the order dated 4.3.2013 is being quoted below; “8. In the meantime, after hearing Shri C.B. Yadav, Additional Advocate General, we direct that an affidavit of Home Secretary, Government of U.P. be filed explaining the circumstances, in which the joint report of the District Magistrate and the Senior Superintendent of Police dated 26.2.2013 was accepted by him, and the recommendations were made for holding elections after 4th March, 2013” 3. That, the deponent is filing the instant affidavit explaining the justification of accepting the joint report of District Magistrate and Senior Superintendent of Police dated 26.2.2013. 4. That, in the election of Zila Panchayat, Varanasi 21.1.2013 was the date fixed for holding election. 5. That, on 19th and 20th January, 2013 the voters were not available at the places where they are normally supposed to be available. 6. 4. That, in the election of Zila Panchayat, Varanasi 21.1.2013 was the date fixed for holding election. 5. That, on 19th and 20th January, 2013 the voters were not available at the places where they are normally supposed to be available. 6. That, in the aforesaid matter one candidate who was contesting the election to the office of Zila Panchayat, Varanasi Smt. Kanti Devi wife of Shri Hawaldar Yadav has lodged an first information report on 19.1.2013 at police station Chaubepur, District Varanasi to the extent that the Members are influenced by the other side by offering them huge amount, and on that basis the first information report was registered as Case Crime No. 21 of 2013 under Sections 341, 364, 506 and 171 (Cha) IPC read with Section 123(2) of Peoples Representation Act,1951 against Sujeet Singh and three others. The aforesaid matter is under investigation under the close supervision of Additional Superintendent of Police (Rural Area), Varanasi. The State Government was never of the view that because of the law and order situation in District Varanasi was any obstacle of holding free and fair election, but State is of the view that the election should take place fairly without there being any influence on its members and appropriate security may also be provided to each Members who are participating in the election of Zila Panchayat, Varanasi. 7. That, there was certain evidence which found that members were actually offered the money to lure them and, therefore, appropriate enquiry is required to be done in the matter, and in case it is found that any candidate has adopted such way of taking votes of the Members appropriate action may be taken against such candidate in accordance with the provisions of Penal Code as well as the provisions of Peoples Representation Act, 1951. 8. That, District Magistrate has joined at Varanasi on 13.2.2013 and the Senior Superintendent of Police has joined at Varanasi on 12.2.2013. Therefore, they may be granted some time to evaluate the situation of law and order, so that they may take appropriate steps for holding free and fair election. 9. That, so far District Varanasi is concerned it is religious and historical old city which always pointed out a sensitive city one in State of Uttar Pradesh. Therefore, they may be granted some time to evaluate the situation of law and order, so that they may take appropriate steps for holding free and fair election. 9. That, so far District Varanasi is concerned it is religious and historical old city which always pointed out a sensitive city one in State of Uttar Pradesh. After Mahakumbh lacs and lacs devotees reached to Varanasi all Akharas of Mahakumbh have already been reached over Varanasi after Basant Panchami religion occasion is over in Mahakumbh. In addition thereto the Mahashivratri and Holi both festivals are ensuing in short span of time. The final Peshwai of Akharas will take place on 3.4.2013. The District Magistrate, Senior Superintendent of Police and other District Officials of Varanasi are always required to be engaged in Varanasi just in order to meet out the contingency and the ensuing festival of Shivratri. 10. That the factors referred to above were found to be factually correct and therefore there is justification of accepting the joint report of District Magistrate and Senior Superintendent of Police dated 26.2.2013. The report of District Magistrate and S.S.P. does not indicate that they are not in position to holding the election or the State is not in a position to hold the election. But the State Government is fully competent to hold the election of Zila Panchayat Varanasi through the District Election Officer, who happens to be the District Magistrate. Therefore, appropriate request was made to the State Election Commission to hold the election of Zila Panchayat Varanasi after 4.4.2013.” 21. It is submitted by Shri Kesari Nath Tripathi, Senior Counsel assisted by Shri Sudist that the State Election Commissioner holds independent office with constitutional responsibility to supervise and conduct free, fair and peaceful elections of the local bodies in the State. He is required to maintain the independence of his office and impartiality in conducting the elections peacefully. He must ensure that the rule of law prevails, and that the elections are held in accordance with the statutory provisions of the Act. He is required to maintain the independence of his office and impartiality in conducting the elections peacefully. He must ensure that the rule of law prevails, and that the elections are held in accordance with the statutory provisions of the Act. If the State Government, recommends for postponing the elections beyond the statutory period of six months on the ground of the influence of any one candidate, a public order or law and order situation, he has powers to request the Governor of the State to provide sufficient number of security forces to ensure the safety of the electors for holding peaceful elections. 22. Shri K.N. Tripathi submits that in this case election dates were notified by the Election Officer on 4.1.2013. After the date of withdrawal of the nomination papers on 18.1.2013 only two candidates were left in fray including the petitioner and respondent No. 5. There are only 39 electors, who could be provided with armed guards for ensuring their safety. They were to assemble on 21.1.2013 in the premises of Zila Panchayat for casting their vote. It was not difficult for the Government, if it was willing to hold elections and for the State Election Commissioner to ensure security for electors and at the office of Zila Panchayat for holding the elections. The dates of religious festivals and congregations and the arrival of pilgrims from Kumbh Mela were far away, in as much as the pilgrims were in congregation of Maha Kumbh in Allahabad and were not expected to arrive at Varanasi in large numbers nor such arrivals were reported. Shri Tripathi submits that the facts stated in the report of the District Magistrate and the Senior Superintendent of Police are entirely wrong. He has filed the report of Shri Amrendra Prasad Singh, Addl. S.P. (Rural), Varanasi dated 26.2.2013 with supplementary counter-affidavit in which he had reported, in response to the letter of the Senior Superintendent of Police, Varanasi dated 20.2.2013 on the action taken on the complaint of Smt. Kanti Devi at P.S. Chobeypur on 19.1.2013 that all the members of Zila Panchayat were present at their residence. The investigation on the report made by Smt. Kanti Devi till that day did not show that any of the members were abducted and that sufficient number of security was assured to be made available for holding the elections. The investigation on the report made by Smt. Kanti Devi till that day did not show that any of the members were abducted and that sufficient number of security was assured to be made available for holding the elections. He reported that the investigation of the complaint of Smt. Kanti Devi received at the police station on 19.1.2013 is in progress. He also reported and requested that in view of the number of cases registered against Shri Sujeet Singh, the petitioner, his brother Shri Sushil Singh, his father Shri Udai Nath Singh and his uncle Shri Brijesh Singh and their influence in the area as well as the expected arrival of pilgrims, the communal sensitivity of the city of Varanasi and the last bathing day of the ‘Aakharas’ on 3.4.2013 as well as the ‘Maha Shivratri’ festival on 10.3.2013, elections may be scheduled on any day after 4.4.2013. 23. Shri Kesari Nath Tripathi submits that the complaint made by Smt. Kanti Devi to the District Magistrate on 17.1.2013 was received and registered at P.S. Chobeypur on 19.1.2013. On the same day the Deputy Inspector General of Police/Senior Superintendent of Police, Varanasi submitted a report to the District Magistrate and that the District Magistrate on the same day forwarded the report to the Principal Secretary, Department of Home, and on this report on the same day the State Election Commission decided to countermand the elections, which was communicated by the District Magistrate/Election Officer, Varanasi on the next day on 20.1.2013. The district administration was playing to the tune of the political powers in the State Government and engineered the reports. He submits that the elections can be countermanded only on the death of a candidate. The law does not contemplate countermand in any other situation and that the State Election Commission could not have extended the dates to postpone the elections beyond six months of the date, when the vacancy was caused. 24. Shri C.B. Yadav, Additional Advocate General appearing for the State of U.P. submits that the State forwarded the complaint alongwith reports of the District Magistrate and Senior Superintendent of Police, Varanasi to the State Election Commission through the Principal Secretary (Home), Government of U.P. The State did not refuse and could have provided the required security. 24. Shri C.B. Yadav, Additional Advocate General appearing for the State of U.P. submits that the State forwarded the complaint alongwith reports of the District Magistrate and Senior Superintendent of Police, Varanasi to the State Election Commission through the Principal Secretary (Home), Government of U.P. The State did not refuse and could have provided the required security. The situation, however, was such that Shri Saurabh Babu, the District Magistrate/Election Officer expressed his opinion that looking to the criminal background of the family of the petitioner, and the non-availability of the members of Zila Panchayat, who had also switched off their mobile phones, free and fair election was not possible. The State Government had communicated the fact situation to the State Election Commissioner with recommendation to countermand the elections. Shri C.B. Yadav states that though countermanding is permissible only where a candidate contesting the elections dies, there may be a situation in which elections may be countermanded, such as in the present case. He has defended the recommendation of the District Magistrate and the Senior Superintendent of Police to countermand the elections. 25. Shri C.B. Yadav submits that the State Government does not recognise the money power and muscle power of the criminals nor is under their influence. The State Government is taking care law and order situation in the State, which is improving. The influence of certain persons, however, if it is going to affect the elections, was reported by the State Government to the State Election Commissioner. He submits that the District Magistrate and the Deputy Inspector General of Police/Senior Superintendent of Police, Varanasi have since been transferred and that the new incumbents have taken over. The State is committed to hold free and fair elections for the post of Chairman, Zila Panchayat, Varanasi on any of the date, which may be fixed by the State Election Commissioner. 26. The State is committed to hold free and fair elections for the post of Chairman, Zila Panchayat, Varanasi on any of the date, which may be fixed by the State Election Commissioner. 26. Shri M.D. Singh Sekhar, Senior Counsel assisted by Shri S.K. Singh appearing for the State Election Commissioner submits that on the reports received from the State Government regarding the influence of the petitioner and his family members, who are involved in large number of criminal cases and further on the report that most of the members in Zila Panchayt are not available at their residence and have also switched off their phones, on an assessment of the law and order situation for holding fresh and fair elections it was decided to countermand the elections. He submits that the State Election Commission under the powers of superintendence, of the elections is responsible to ensure free and fair elections. The State Election Commissioner has given sufficient reasons for countermanding the elections in the order under challenge in this writ petition. The State Election Commission will be shortly announcing the dates for elections. He denies the allegations against the State Election Commissioner and submits that the office of the State Election Commissioner is independent and is not under any influence of the State Government. However, for the purposes of assessment of the law and order situation, the office of the State Election Commissioner has to depend upon the information received from the district administration after its assessment and analysis by the State Government. 27. We have considered the respective submissions and perused the records, which include reports submitted by the police officers, district administration and the State Government. 28. The elections to the Panchayats are to be held under the superintendence, direction and control of the State Election Commission, which is an independent institution under Section 264-B of the Act of 1961 by which the powers have been vested in the State Election Commission of superintendence, direction and control of the conduct of elections by Act No. 9 of 1994. Article 243-K included in Part IX of the Constitution of India inserted by Constitution (Seventy-third) Amendment Act, 1992 (w.e.f. 1.6.1993) has given constitutional status to State Election Commission. Article 243-K included in Part IX of the Constitution of India inserted by Constitution (Seventy-third) Amendment Act, 1992 (w.e.f. 1.6.1993) has given constitutional status to State Election Commission. Section 264B and Article 243K provide : “264-B. Manner and conduct of election.—(1) The election to the office of an Adhyaksha, Upadhyaksha or a member of a Zila Panchayat and a Pramukh, Up-Pramukh or a member of a Kshettra Panchayat shall be held by secret ballot in the manner provided by rules which shall also provide for resolution of doubts and disputes relating to the election of such Adhyaksha, Upadhyaksha, Pramukh and Up-Pramukh. (2) The superintendence, direction and control of the conduct of election of the office of an Adhyakasha, Upadhyaksha or a member of a Zila Panchayat and of a Pramukh, Up-Pramukh or a member of a Kshettra Panchayat shall vest in the State Election Commission.” “243-K. Elections to the Panchayats: (1) 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 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 a 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 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 this 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.” 29. The State Election Commissioner has constitutional duties to perform under the powers given under Article 243-K of the Constitution of India. (4) Subject to the provisions of this 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.” 29. The State Election Commissioner has constitutional duties to perform under the powers given under Article 243-K of the Constitution of India. Section 25 of the Act of 1961 provides that the office, which has been vacated for reasons of death or otherwise of the Chairman, Vice-Chairman or any elected members of Zila Panchayat to be filled before the expiration of six months in the manner provided under Section 18 and 19 of the Act. The State Election Commissioner in exercise of the powers under Clause (3) of Article 243K can request, if the State Government refuses or is not in a position to assist State Election Commission to provide such staff as may be necessary for discharge of the functions conferred on the State Election Commission of Clause (1) to the Governor of the State to provide staff as may be necessary to discharge its functions. This power includes to summon security force for conducting free and fair elections. 30. Though it is unfortunate that the members of the family of the petitioner, facing large number of criminal cases, and wielding influence both with their money and muscle men are able to create an atmosphere of fear in the entire area, it is difficult to understand as to how the district administration, which is required to protect the citizens with all the powers to summon security forces including para-military forces recognised their powers and in the absence of any information of the whereabouts of the members of the Zila Panchayat made recommendations that on account of the fear created by them it is not possible to hold free and fair elections. The first part of report, giving reasons for countermanding the elections prima facie establishes that the State Government was not willing, to deal firmly with powers of the family of the petitioner and accepted their influence on the electors. The postponement or countermanding of the elections would not in any way help the State Government in dealing with the situation, as the influence, so long as State Government is not willing to deal with it firmly, will continue to cast shadow on the elections on any re-scheduled dates. The postponement or countermanding of the elections would not in any way help the State Government in dealing with the situation, as the influence, so long as State Government is not willing to deal with it firmly, will continue to cast shadow on the elections on any re-scheduled dates. We are informed by learned counsel appearing for the petitioner that Shri Brijesh Singh is in jail. The other family members of the petitioner including him are facing criminal cases. He has, however, not been convicted in any offence so far to disqualify him from contesting elections. Shri K.N. Tripathi frankly submits that personally he is of the view that a person charged of henious offences may not be allowed to contest the elections but neither the Parliament nor any State legislature, has so far enacted laws reforming the electoral system of India for protecting democracy to keep such persons away from elected offices. He submits that so long as the election laws are not reformed to enable the Election Commission of India or State Election Commissions to disqualify such persons from holding elected offices, the State is under constitutional duty to hold free and fair elections by keeping the electors free from their influence. It is the responsibility of the State Government to ensure free and fair elections to any elected office and for that purpose provided sufficient security to the electors and at the place, where polling is to take place for ensuring peaceful elections. We find substance in the contention of Shri K.N. Tripathi that countermanding of elections is permissible only where a candidate to the elections left in the fray dies. In such a situation, the result of the elections may be affected. In order to avoid such a situation, which may also include eliminating a candidate, the legislature has provided to countermand the elections, and to re-notify it from the stage of filing nominations. Where, however, the situation such as in the present case, has arisen, or where the public order or law and order is seriously threatened or polling is not possible due to any act of God such as earthquake, floods etc., the Election Commission can reschedule the polling dates. 31. Where, however, the situation such as in the present case, has arisen, or where the public order or law and order is seriously threatened or polling is not possible due to any act of God such as earthquake, floods etc., the Election Commission can reschedule the polling dates. 31. In the present case the Additional Superintendent of Police in his report given on the complaint of Smt. Kanti Devi-respondent No. 5 on 26.2.2013 a week after the elections were countermanded, has reported on investigations that all the electors were available at their residence and that allegations levelled by Smt. Kanti Devi that they have been abducted to a far away place was not found to be true. We are of the view that even if in a situation where some of the electors, are not available to be contacted either personally or on telephones, either on account of the influence of any of the persons in the contest or their supporters, the elections cannot be countermanded. In case the State Election Commission receives the information that some or many of the electors have been abducted and that it is not possible to contact them, or there is positive evidence of any harm caused to them or their family members or any public order or law and order situation has arisen, the State Election Commission can only postpone the date of polling. He does not have the powers even in such a situation to countermand the elections to begin from the date of nomination, causing serious prejudice to the candidates, who are left in fray. 32. In Kishansingh Tomar v. Municipal Corporation of the City of Ahmedabad and others, JT 2006 (9) SC 320, a Constitution Bench of the Supreme Court considering the question of powers of the State Election Commission under Section 243K (3) held as follows : “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 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 concerned Government shall have to render full assistance and co-operation 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 concerned State Government 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 concerned State Government to provide all necessary cooperation and assistance to the State Election Commission to enable the latter to fulfill the constitutional mandate.” 33. The Constitution Bench relied upon its earlier opinion in Special Reference No. 1 of 2002 with reference to Gujarat Assembly Elections, JT 2002 (8) SC 389, in which it was held as follows : “The impossibility of holding the election is not a factor against the Election Commission. The maxim of law impotentia excusat legem is intimately connected with another maxim of law lex no cogit ad impossibilia. Impotentia excusat legem is that when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly perform. “Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him.” Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like an act of God, the circumstances will be taken as a valid excuse. Where the act of God prevents the compliance with the words of a statute, the statutory provision is not denuded of its mandatory character because of supervening impossibility caused by the act of God. (See Broom’s Legal Maxims, 10th Ed., at pp 1962-63 and Craies on Statue Law, 6th Edn., p.268.) These aspects were highlighted by this Court in Special Reference No. 1 of 1974. Situations may be created by interested persons to see that elections do not take place and the caretaker Government continues in office. This certainly would be against the scheme of the Constitution and the basic structure to that extent shall be corroded.” 34. It is apparent on the facts of the case presented before us, that the State Election Commission acted illegally and beyond its authority in countermanding the elections. The State Election Commissioner had notified elections to be held before the expiry of six months to fill up the vacancy under Section 25 of the Act. He could not have, thereafter, countermanded the elections on a complaint and the reports of the district administration forwarded by the Principal Secretary (Home), Government of U.P. on the same day, which at best referred to the fear in the mind of the electors on account of the criminal background of the petitioner and his family members and their influence. There was no confirmed report of the abduction of the members of the Zila Panchayt except their absence from their residence and the inability of the police to contact them on phone. The names of the electors and the effort made by the police to find out their location was not disclosed in the reports. The State Election Commission in such situation, was under constitutional duty to request the State Government, and if the State Government was not willing to cooperate, to request the Governor of the State to provide sufficient number of security forces, to ensure free and fair elections. He could have requisitioned and provided sufficient security to the 39 members, which is not a large number, to ensure their safety and for their presence for casting their vote. It was not a tall order for any security force to achieve. 35. He could have requisitioned and provided sufficient security to the 39 members, which is not a large number, to ensure their safety and for their presence for casting their vote. It was not a tall order for any security force to achieve. 35. The records clearly demonstrate that the State Election Commissioner instead of taking steps to ensure security, and to remove the allegedly reported fear from the minds of the electors, fell into persuasion of the State Government, which appears to be clearly based upon the political considerations to exercise the power, which he did not possess to countermand the elections. The circumstances of the case in which the complaint, and reports were submitted on the same day on 19.1.2013, two days before the polling and the expediency shown by the State Government in recommending to countermand the elections, instead of ensuring safety and restoring confidence of the electors, establishes that either the State Election Commissioner does not have the knowledge and understanding of his powers, or he was not prepared to act independently keeping himself away from influence of the State Government to request the Governor for providing sufficient staff for holding the elections or to approach the High Court for necessary assistance. 36. Rule 15 of the Rules of 1994 provide for countermanding poll only in the event of the death of a candidate, whose nomination has been found valid on scrutiny under Rule 11 or has not withdrawn his candidature under Rule 12, the report of which has been received by the Returning Officer before the publication of the list of contesting candidates under sub-rule (1) of Rule 13 or before the commencement of the poll. The First Proviso to Rule 15 provides that no further nomination shall be necessary in case of a candidate, whose nomination was valid at the time of countermanding of the poll. The Second Proviso provides that no person, who has given notice of withdrawal of his candidature under Rule 12 before the countermanding of the poll shall be eligible for being nominated for the elections after such countermanding. 37. The changes in the Representation of Peoples Act, 1951 providing for countermanding of the polls, have also been noticed by the Supreme Court in Jitu Patnaik v. Sanatan Mohakud and others, (2012) 4 SCC 194 . 37. The changes in the Representation of Peoples Act, 1951 providing for countermanding of the polls, have also been noticed by the Supreme Court in Jitu Patnaik v. Sanatan Mohakud and others, (2012) 4 SCC 194 . The substitution of Section 52 by Act No. 21 of 1996 takes cognisance of death of a candidate of the recognised political party before poll provided the candidate is of registered political party and dies at any time after 11.00 a.m. on the day of making nomination or whose nomination has been found valid on scrutiny under Section 36 and, who has not withdrawn his candidature under Section 37. 38. The countermanding of poll, is not permissible on any condition, which is not prescribed in the Rules of 1994 for elections. It is not necessary to refer to the decisions that the right to contest the elections or to question the election by means of the election petition is neither common law nor fundamental right: N.P. Ponnuswami v. Returning Officer, AIR 1952 SC 64 ; Jyoti Basu v. Debi Ghosal, (1982) 1 SCC 691 ; Madan Lal Agarwal v. Rajiv Gandhi, 1987 Supp SCC 93 and Chandra Kishore Jha v. Mahavir Prasad, (1999) 8 SCC 266 . 39. We are not persuaded to take the chivalrous stand, as suggested by the Additional Advocate General and the learned senior counsel appearing for the State Election Commissioner that the State Election Commissioner is prepared to hold elections within shortest possible time schedule. The offer seeks to validate the orders and the manner in which the State Election Commissioner was and may be influenced in future by the reports engineered by the State Government, in political expediency to delay the elections. In our view the State Election Commissioner has not demonstrated the impartiality expected from him to deal with the situation, in exercising the powers vested in him by the Constitution of India. 40. On the discussion of facts and legal position as above, we hold and conclude that in the circumstances of the case on the reports submitted by the district administration and the State Government the State Election Commissioner did not have powers and authority to countermand the elections. 40. On the discussion of facts and legal position as above, we hold and conclude that in the circumstances of the case on the reports submitted by the district administration and the State Government the State Election Commissioner did not have powers and authority to countermand the elections. The State Election Commission failed to exercise the powers vested in it by Article 243-K (3) of the Constitution of India to summon security forces by making a request to the Governor of U.P. for conducting elections and completing the election process in accordance with law within the mandatory period of time fixed in Section 25 of the Act of 1961. 41. We also find substance in the contention of Shri K.N. Tripathi that taking away of the electors by persuasion exercising pressure of any kind, or inducing them in any manner is a corrupt practice on which election could be challenged by filing election petition. The police reports cannot be ordinarily relied upon, on such complaints for countermanding the election, which is permissible only on the death of the candidate in the circumstances set out in Rule 15 of the Rules of 1994. 42. The writ petition is allowed. The order dated 19.1.2013 and 20.1.2013 passed by the State Election Commissioner, U.P. and the District Magistrate, Varanasi are set aside. The State Election Commission is directed to announce the re-scheduled date of polling in continuation of the Notification dated 4.1.2013 to complete the election process from the stage, when impugned orders were passed, in accordance with law. ——————