(1.) IN exercise of the powers conferred by Sub -section (1) of Section 60 of the Orissa Municipal Corporation Act, 2003 read with Sub -rule (5) of rule 3 of the Orissa Municipal Corporation (Division of City into Wards, Reservation of Seats and Conduct of Election) Rules, 2003, the State Government in Housing and Urban Development Department by notification No. 26484 dated 10.10.2008 divided the area of Cuttack Municipal Corporation into 54 wards as specified in column (2) of the Statement -I of the said notification and, inter alia, assigned Ward No. lll for the Scheduled Tribe. By means of this Writ Petition, the Petitioner has prayed for quashing of the notification No. 26484 dated 10.10.2008 so far as the same relates to reservation of Ward No. lll for the Scheduled Tribe and for a direction to the Opposite Parties to make reassignment of wards for reservation in terms of Section 7 of the Orissa Municipal Corporation Act, 2003 read with Rule 4(1) of the Orissa Municipal Corporation (Division of City into Wards, Reservation of Seats and Conduct of Election) Rules, 2003 and to keep Ward No. lll unreserved for the ensuing election to the Cuttack Municipal Corporation.
(2.) THE facts of the case are that the State Government in exercise of powers conferred by Section 60(1) of the Orissa Municipal Act, 2003 (hereinafter referred to as the Act) read with Sub -rule (5) of Rule 3 of the Orissa Municipal Corporation (Division of City into Wards, Reservation of Seats and Conduct of Election) Rules, 2003 (hereinafter referred to as the Rules) issued final notification on 18.2.2008 dividing the Cuttack Municipal Corporation area into 54 wards' and reserving certain wards for the S.C, S.T. Backward Class and Women. As per the said notification, Ward No. ll consists of Sectors 9 to 13 and Nuasahi whereas Ward No. lll consists of Sector -6, Sector -7Tangarhuda, Bentakarpada and Jyoti Vihar. As per statement II of the said notification Ward Nos. ll and III were determined for reservation for Scheduled Tribe and Women respectively. Said notification was challenged by one Dharmesh Nayak, the then Corporator of Ward No. ll in W.P.(C) No. 4159 of 2008. This Court by Order Dated 15.5.2008 quashed the said notification and directed the State Government to proceed in the matter afresh in accordance with Sections 7 and 60 of the Act as well as rule 4(3) of the Rules. This Court also directed the State Government to take a fresh decision on the objection of the Writ Petitioner in that case in consonance with the statutory provisions and keeping in view the principles of consultation as laid down by the Supreme Court as well as Madras High Court referred to in the Judgment. Thereafter the State Government issued draft notification No. 24683/HUD dated 12.9.2008 under Section 60(1) and (3) of the Act inviting objection and suggestions thereto as required under Sub -section(3). Pursuant to the same, Petitioner filed his objection on 21.9.2008 before the Director, Municipal Administration and EX. -officio Addl. Secretary to Government, Housing and Urban Development Department stating that during the last Municipal election held in 2003 Ward No. lll was assigned to unreserved category. As per the notification the Ward consists of Sector -6, Sector -7, Tangarhuda, Bentakarpada, Jyoti Vihar and Satichoura the total population of which as per last Census is 10434. The percentage of S.T. population in the proposed Ward No. lll is less than 5% of the total population. It was further stated in the objection that most of the S.T. population reside in Munda Sahi which has been included in proposed Ward No. ll. Therefore, there is no justifiable reason to reserve the ward No. lll for the Scheduled Tribe, rather it is Ward No. 11 which should have been reserved for Scheduled Tribe having regard to S.T. population residing therein. The action of the State Government in reserving the Ward No. III for the Scheduled Tribe is therefore contrary to Section 7 of the Orissa Municipal Corporation Act, 2003. Even then the same Government issued the final notification reserving Ward No. lll for the Scheduled Tribe. The allegation of the Petitioner is that there has been no proper consultation of the State Government with the Cuttack Municipal Corporation as required under Section 60 of the Act. The case of the Petitioner is that pursuant to the letter dated 27.10.2007 of the Opposite Party No. 2, the Cuttack Municipal Corporation submitted the population figure in the prescribed Form I and Form II along with sketch map, as required under rule 3.(1) of vide letter dated 29.11.2008 copies of which are annexed as Annexures -5 (i) and 5 (ii) to the Writ Petition. The case of the Petitioner is that as per 2001 Census enumeration the total population of Ward No. 11 was 8787 out of which the total S.T. population was 541 inclusive of 322 S.T. population residing in Census Block No. 40. As per the said Census enumeration, the total population of Ward No. lll was 8626 out of which 166 belong to S.T. category. But 322 ST populations in Census Block No. 40 have been taken out from Ward No. ll and added to Ward No. lll resulting in an increase in the percentage of ST population in Ward No. lll. According to the Petitioner, this has materially led to illegal reservation of Ward No. lll for Scheduled Tribe. It is averred by the Petitioner that Census Block No. 40 in which 322 ST population live is located in parts of Sectors 11, 12 and 13 which have been included in Ward No. ll. Sectors 11, 12 and 13 are separated from Ward No. lll by Sectors 8, 9, 10 which are in Ward No. ll. They are situated at a long distance from Ward No. lll. There is no compactness of area and majority of ST population live in Sectors 11, 12, 13 and Mundasahi which come under Ward No. ll. Therefore, reserving Ward No. lll for the Scheduled Tribe has no basis.
(3.) THE main contention of the Petitioner is that as per 2001 Census enumeration, the total population of Ward No. II of Cuttack Municipality was 8787 out of which the total ST population was 541 inclusive of 322 ST population residing in Census Block No. 40 and the total population in Ward No. lll was 8626 out of which 166 was of ST category. But in Form II as per Annexure -6 to the Writ Petition, ST population from Census Block No. 40, i.e. total 322 was taken out from Ward No. ll and added to Ward No. lll, thereby resulting in an increase in the percentage of ST population in Ward No. lll thereby resulting in an increase in the percentage of ST population in Ward No. lll. The additional Tahasildar, Sadar Cuttack and the Secretary, Cuttack Municipal Corporation had jointly filed their report dated 26.11.2008 wherein it has been specifically mentioned that the State Election Commission vide its Order Dated 21.11.2008 had wanted a report on the location of Census Block No. 40, as to whether it is located in Ward No. lll and if not, in which Ward. It was submitted by the Learned Counsel for the Petitioner that the map pertaining to the location of Census Block shows that Ward No. lll is in two parts and the distance of those two parts is about three kilometers, According to the allegation made in the Writ Petition, Census Block No. 40 in which 322 ST population live is located in parts of Sectors 11, 12 and 13 which are included in Ward No. ll. These three sectors are separated from Ward No. lll by Sectors 8, 9 and 10 of Ward No. ll. Sectors 11, 12, and 13 are far away from Ward No. lll. Therefore, vide Order Dated 19.1.2009 this Court directed that the Secretary of the Election Commission along with the District Magistrate and Collector, Cuttack may visit the spot and prepare a report which may be submitted along with the map through Sri Pitambar Acharya. It was further directed that the Learned Counsel for the parties may also remain present at the spot if they desired to do so. Thereafter the Secretary of the Commission shown his difficulties in making the spot visit and therefore this Court vide Order Dated 29.1.2009 held that the decision making authority is the State Election Commission and there was allegation that Ward No. ll was bifurcated into two parts, i.e. Ward Nos. II and III and Census Block No. 40 which is adjacent to Biju Pattanaik Park was originally in Ward No. ll and Census Block No. 40 has now been kept in Ward No. lll and Ward No. lll is having two parts, one is a big part but the small part, i.e. adjacent to Biju Pattanaik Park is Census Block No. 40 which is in Ward No. ll and it is about more than 3 kilometers away from the rest part of Ward No. lll and entrusted the work to the State Election Commission to get the report by deputing any officer at its own discretion along with the District Magistrate, Cuttack to see as to whether Census Block No. 40 is a part of Ward No. ll or Ward No. lll and the distance between Census Block No. 40 from the rest part of Ward No. lll. Accordingly, the Deputy Secretary, State Election Commission along with the District Magistrate, Cuttack visited the spot and submitted the following report: We, along with the Learned Advocates and the Petitioner moved on the boundary dividing Ward No. 2 and 3. The Learned advocate for the Petitioner led us to the area near Biju Patnaik Park to locate Census Block No. 40. It may be mentioned here that in the said notional map (not prepared to scale), Biju Patnaik Park has been written at the eastern side of Census Block No. 40. Accordingly, we visited the western side of Biju Patnaik Park but we could not locate the significant land marks like market complex or play ground as shown in the said map. Thereafter, we proceeded to Sector 7 area along with the Learned advocates. After making the spot visits, our findings are as follows: