B.S.CHAUHAN, J. - (1.) THIS writ petition has been filed for quashing the impugned order dated 25.10.2005 (Annex. 1) passed by the respondent No. 2, the State Station Election Commission, countermanding the election of the Member of the Zila Panchayat.
(2.) THE facts and circumstances giving rise to this case are that a notification was issued by respondent No. 2 for holding elections of Members of the Zila Panchayat on 23.09.2005 under the provisions of U.P. Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 (hereinafter called the 'Adhiniyam 1961'). The petitioner contested the election for the said post and the voting took place peacefully on 23.10.2005 without any interruption or hindrance. The votes polled on 23.10.2005 were to be counted on 25.10.2005. However, the respondent No. 2, in exercise of the powers under Article 243K of the Constitution of India and Section 260B of the Adhiniyam 1961, countermanded the election by the impugned order on the ground that one candidate namely Shri Jitendra Yadav had adopted corrupt means while canvassing for votes and he was found holding a public -meeting in a temple, i.e. prohibited area after expiry of the period for canvassing, which was in violation of the code of conduct for elections. Shri Manish Goel, learned Counsel for the petitioner has submitted that there is no provision for countermanding the election under the Adhiniyam 1961 nor such a power has been conferred upon the State Election Commission by Article 243K of the Constitution; the order is without jurisdiction and hence nullity; at the most, in case the said candidate Shri Jitendra Yadav was found to have adopted corrupt means while canvassing for his candidature, it could have been a ground for setting aside the election after declaration of the result. More so, countermanding may be permissible in exceptional circumstances on the date of election but such power cannot be exercised at the time of counting of votes. He, therefore, submitted that the order impugned is liable to be quashed.
(3.) SHRI C.K. Rai, learned Standing Counsel and Shri P.N. Rai, learned Counsel appearing for the Commission and other respondents have vehemently opposed the writ petition contending that as. the result of the election has not been declared, this Court has no power to interfere with the ejection process; the order impugned cannot be examined in exercise of power of judicial review by the High Court; the State Election Commission can exercise such a power as it has all residuary powers to conduct free and fair election and, therefore, the petition is liable to be dismissed.;