MINATI DAS Vs. STATE OF ORISSA

JUDGEMENT

(1.) IN ths writ application under Article 226 of the Constitution of India the petitioner calls in questio the legality of the notification No.Ele. 10/2002 -15354/HUD. Dated 26.3.2003 issued by the Government of Orissa in the Department of Housing and Urban Development reserving office of the Chairperson of Angul Notified Council for the backward class citizens in pursuance of provisions under Section 47 of the Orissa Municipal Act, 1950 (hereinafter referred to as 'the Act) read with Sub -Rule(5) of Rule 67 of the Orissa Municipal (Delimitation of Wards, Reservation of Seats and Conduct of Election) Rules, 1994 (hereinafter referred to as '1994 Rules) on the ground that the same violates principles of natural justice and contravenes of the provisions of the Act and the Rules.

(2.) CASE of the petitioner is that she is a permanent resident of Rajkishorepada of Ward No.2 of Angul NAC and is a social activist and a member of a political party called 'Samata. Further case of the petitioner is that the Hocusing and Urban Development Department vide notification dated 13.1.2003 in exercise of powers under Section 47 of the Act real with Sub -Rule (5) Rule 67 of the 1994 Rules published a draft notification showing reservation of offices of Chairpersons in different Municipalities in the State and also invited objections from all persons interested in connection with the said notification within 15 days from the date of publication of the same. In the said draft notification office of the Chairperson of the Angul NAC was reserved for Backward Class of citizen. After publication of such notification the petitioner who was interested in the election of the Chairperson raised objection in writing contending therein that the delimitation of Wards and reservation of seats for SC.,ST. Backward Class of Citizens and women are to be made on the basis of equitable distribution on the basis of population of different wards relating to 1991 census. In the year 1997, election to the Municipal Council was done on the basis of population figure of 1991 census and every 2nd seat of Chairperson was kept reserved for male (general). Generally female population being next highest, on the basis of principles of rotation office of the Chairperson, Angul NAC should have been kept reserved for woman (general). In absence of any population figure of Backward Class of Citizens, reservation of office of the Chairperson in Angul NAC for Backward Class of citizens is without any basis and contrary to the provisions of the Act and the Rules as stated above. It is also the case of the petitioner that specific objections were raised by her, but same were not taken into consideration and the final notification was published on 26.3.2003. It is also averred in the writ application that since there is no revision of appeal against such a decision, the petitioner was without any remedy under the statute and therefore has approached this Court in an application under Article 226 of the Constitution of India.

(3.) THE State Election Commission though was not a party initially in the writ application, was sought to be made a party by the petitioner. Though no orders were passed on the said petition, learned counsel appearing for the Election Commission was heard in the matter. before we proceed with the contention of the learned counsel appearing for the Election Commission, we feel it proper to first deal with the application (Misc.Case No.7848 of 2003) filed by the petitioner for impleading the State Election Commission as party to the writ application. There being no objection to such prayer by any of the parties, the State Election Commission is impleaded as opposite party No.5 to the writ application. Shri G. Rath, learned Senior Advocate on behalf of the State Election Commission submitted that the grounds on which the writ application has been filed in effect amounts to calling in question certain laws relating to Delimitation of Wards and reservation of seats and therefore the Court has no jurisdiction to entertain the application in view of the bar under Article 243ZG of the Constitution of India. It was further contended by Sri Rath that since the election process has been started from 28.7.2003, this Court has no jurisdiction to interfere with the process of election even accepting the case of the petitioner that she has no alternative remedy available to her under the Municipal Act or the 1994 Rules.