RASHID ASLAM Vs. STATE OF ORISSA

JUDGEMENT

(1.) We have heard the learned counsel for respective parties as regards the prayer for interim order. But, in course of hearing of the matter and in view of the stand taken by the respective parties, it seems that if we decide all those questions agitated before us, it will amount to final disposal of the writ petition. Accordingly, we have obtained consent from the learned counsel for respective parties for final disposal of the writ petition.

(2.) Orissa State Legislature has amended the Orissa Municipal Act, 1950 in conformity with the provisions of Part IX-A of the Constitution of India as inserted by Constitution (74th Amendment) Act, 1992. This case relates to election to Rourkela Municipality. Said Municipality is admittedly situated within the scheduled areas under the provisions of Fifth Schedule to the Constitution India. Learned counsel for the petitioner while referring to Article 243ZC which occurs in part IX-A of the Constitution of India contended that in view of this provision, the provisions of the Orissa Municipal Act as amended in conformity with the provisions of Part IX-A of the Constitution cannot apply in respect of election of municipality situated within the scheduled areas establishment under the provisions of Fifth Schedule of the Constitution. It is therefore contended by the learned counsel for the petitioner that a declaratory relief be" granted to this effect and the opposite parties be restrained from holding any election of the said Rourkela Municipality under the provisions of the Orissa Municipality Act.

(3.) If we accept the contention of the learned counsel for the petitioner that in view of the mandate contained in Article 243ZC, the provisions of paragraph 5 of Fifth Schedule to the Constitution of India would be inapplicable to municipalities situated in scheduled area then the Governor cannot exercise his discretion vested in him under the said paragraph. Therefore, the sum and substance of the contention of the learned counsel for the petitioner is that the provisions of Article 243ZC being repugnant or inconsistent with the provisions of paragraph 5 of Fifth Schedule, it will be Article 243ZC which should prevail over paragraph 5.