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2003 DIGILAW 592 (ORI)

Minati Das v. State of Orissa

2003-09-22

L.MOHAPATRA

body2003
JUDGMENT L. MOHAPATRA, J. — In ths writ application under Arti¬cle 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 (Delimi¬tation 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 resi¬dent 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 exer¬cise 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 Municipali¬ties 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, elec¬tion 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 the year 1997, elec¬tion 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 objec¬tions were raised by her, but same were not taken into considera¬tion 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 Constitu¬tion of India. 3. Counter-affidavit has been filed on behalf of the opposite parties 1 and 2 stating therein that as per the provi¬sions of the Constitution of India as well as the Orissa Munici¬pal Act and 1994 Rules, reservation is to be made for Backward Class of Citizens in respect of 27 per cent of the total number of offices of Chairpersons after deducting the number of offices of Chairpersons reserved for SC, ST and women belonging to the aforesaid SC and ST. Since the Act and the Rules as stated above, prescribe for reservation of offices of Chairpersons for Backward Class citizens, in absence of any population figure of Backward Class of Citizens, a decision was taken to reserve every second seat from out of 45 Urban Local Bodies for Backward Class of Citizens. Objection with regard to maintainability of the writ application has also been taken referring to Article 243-ZG of the Constitution of India. 4. 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. 4. 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 inter¬fere 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. 5. Since preliminary objection with regard to maintaina¬bility of the writ application was taken by the learned counsel for the State as well as learned counsel appearing for the State Election Commission, we called upon the parties to address the Court on the question of maintainability. It was contended by Sri Sanjit Mohanty, learned Senior Advocate appearing for the peti¬tioner that under Sub-Rule (5) of Rule 67 of the 1994 Rules, for reservation of offices of Chairpersons under Sub-Section (3) of Section 47 of the Act the State Government has to publish a notification in the official gazette showing reservation of offices of Chairpersons of Municipalities for SC, ST, Backward Class of Citizens and Women after inviting objections and sugges¬tions from all persons interested. According to Sri Mohanty after such a draft notification was published inviting objections, the petitioner had objected to reservation of the office of Chairper¬son in Angul Notified Area Council on the ground mentioned in the petition. According to Sri Mohanty after such a draft notification was published inviting objections, the petitioner had objected to reservation of the office of Chairper¬son in Angul Notified Area Council on the ground mentioned in the petition. Though no specific orders have been passed rejecting the objection, it is contended that by issuing final notification ignoring the objection raised by the petitioner, in effect, objec¬tion of the petitioner has been indirectly rejected. Therefore, there being no other remedy available to the petitioner under the Statute, she has right to approach this Court by way of filing a writ application under Article 226 of the Constitution of India. Learned counsel appearing for the State as well as for State Election Commission though did not address the Court on the question of maintainability on the above ground, submitted that the election process having been started this Court has no juris¬diction to interfere with the process of election and therefore the writ application is not maintainable. It will not be out of place to mention that the writ application was filed on 29.4.2003, whereas the notification by the State Government for conducting election was issued on 28.7.2003. It is therefore obvious that when the writ application was filed the election process had not been started. Therefore, at that point of time the writ application was maintainable at the instance of the peti¬tioner. Merely because the notification for election was issued during pendency of the writ application the same cannot be a ground to hold that the writ application is not maintainable. Learned counsel appearing for the parties do not dispute that there is no remedy available under the statute to the petitioner against rejection of the objection filed by her. This being the position, it cannot said that the writ application is not main¬tainable. Question as to whether this Court should interfere in the election process or not, does not relate to the maintainabil¬ity of the writ application at the instance of the petitioner and the same will depend on merits of the case and the Court has to decide whether after issuance of the notification for election, it should interfere with the election process or not even if the writ application is maintainable. 6. 6. Sri Mohanty, learned senior Advocate appearing on behalf of the petitioner, in order to substantiate the grounds taken in the writ application referred to some provisions of the Orissa Municipal Act as well as 1994 Rules and some provisions of the Constitution of India. According to Sri Mohanty, provisions contained in the Act and the 1994 Rules providing for reservation of offices for the Backward Class of Citizens cannot be chal¬lenged and the petitioner also does not intend to challenge the same. Shri Mohanty submitted that Rule 67 of the 1994 Rules prescribes that reservation of offices of Chairpersons for Scheduled Castes, Scheduled Tribes, Backward Class of Citizens and Women, has to be determined and assigned to different munici¬palities in descending order of the percentage of the respective population to the total population in each Municipality. Since admittedly population figures of Backward Class of Citizens is not available with the State Government, reservation of every second seat for Backward Class of Citizens is in contravention of Rule 67 and therefore has to be struck down. It was contended by the learned counsel that the petitioner has not challenged any law relating to delimitation of Wards or Reservation of offices, but claims that there has been contravention of Statutory Rules while making reservation for Backward Class of Citizens in re¬spect of offices of Chairpersons in different Municipalities. The other contention raised by the learned counsel for the petitioner Sri Mohanty is that even accepting the contention of the learned counsel appearing for the State Government as well as State Election Commission that reservation has been made on a sound principle in accordance with the Rules, there is a mistake appar¬ent on the face of the record which could be rectified without affecting the election process. Referring to the additional affidavit filed on behalf of the opposite parties 1 and 2 dated 6.8.2003, Shri Mohanty contended that in the list of offices reserved for Chairpersons in different Municipalities for Back¬ward Class of Citizens, name of Bhubaneswar Municipality finds place at sl. No.1. It is contended that the said Municipality is no more a municipality under the Orissa Municipal Act and is now covered under the Orissa Muncipal Corporation Act. Therefore, the State Government committed a mistake in including Bhubaneswar Municipal Corporation at sl.1 of the list. No.1. It is contended that the said Municipality is no more a municipality under the Orissa Municipal Act and is now covered under the Orissa Muncipal Corporation Act. Therefore, the State Government committed a mistake in including Bhubaneswar Municipal Corporation at sl.1 of the list. It is also contended that if Bhubaneswar Municipal Corporation is deleted from the list, the entire order of reservation will change and so for as the Angul Municipality is concerned, the same shall become unre¬served. Learned Additional Government Advocate, on the other hand, submitted that Rue 67 of the 1994 Rules has not provided for reservation in descending order taking into consideration popula¬tion figure so far as Backward Class of Citizens are concerned. According to the learned Addl.Government Advocate, such provision is only in respect of SC, ST and their women. In view of such provision, population of Backward Class of citizens is not neces¬sary for the purpose of reservation and therefore the Government took a decision to reserve every second office out of total 45 Urban Local Bodies reserved for Backward Class of Citizens. The learned Addl.Government Advocate also contended that when the list indicating offices reserved for Backward Class of Citizens referred to by the petitioner was prepared, Bhubaneswr Municipal Corporation had not become a Corporation by then and therefore it was included in the list at sl. No.1. After preparation of the list, at a subsequent stage, the Orissa Municipal Corporation Act came into force and therefore the State Government could not have made any changes in the list by deleting Bhubaneswar Municipal Corporation, and in that event the entire process of preparing draft notification, inviting objections and publication of final reservation list had to be done. Since there was no time it was decided to continue with the list which had been prepared when Bhubaneswar Municipal Corporation had not come into existence. Shri G. Rath, learned Senior Advocate appearing for the State Election Commission contended that even though the writ application had been filed near about three months prior to publication of notification for election by the State Government during pendency of the writ application, the notification having been published, the Court loses its jurisdiction in interfering with the process of election. Shri G. Rath, learned Senior Advocate appearing for the State Election Commission contended that even though the writ application had been filed near about three months prior to publication of notification for election by the State Government during pendency of the writ application, the notification having been published, the Court loses its jurisdiction in interfering with the process of election. It was also contended by Sri Rath that even if it is accepted that there is a mistake in including Bhubaneswar Municipal Corporation in the list for Municipalities for the purpose of reservation of offices of Chairpersons for Backward Class of Citizens, such mistake cannot be rectified at present, election process having already started and even if Court is satisfied that there is a mistake it cannot interfere with the election process. 7. Keeping in mind the rival contentions of the parties, we proceed to examine the case in referring to certain provisions of the Constitution of India as well as the Orissa Municipal Act and the 1994 Rules. Part-IX(A) of the Constitution of India deals with Municipalities. Article 243-T(6) provides that nothing in this part shall prevent the legislature of a State from making any provision for reservation of seats in any Municipality or offices of Chairpersons in Municipalities in favour of Backward Class of Citizens. In terms of the said provision contained in the Constitution of India, provisions have been made in the Orissa Municipal Act. Section 47(3)(d) of the Act which was inserted by Orissa Act 19 of 1995 with effect from 19.10.1995 prescribes that as nearly as may be, but not less than, twenty-seven per centum of the offices of Chairpersons of Municipalities shall also be reserved in favour of Backward Class of Citizens. Therefore, there cannot be any dispute that reservation so far as offices of Chairpersons in different Municipalities are con¬cerned, can be made for Backward Class of Citizens. The manner in which such reservation is to be made has been provided in Rule 67 of the 1994 Rules. Therefore, there cannot be any dispute that reservation so far as offices of Chairpersons in different Municipalities are con¬cerned, can be made for Backward Class of Citizens. The manner in which such reservation is to be made has been provided in Rule 67 of the 1994 Rules. For convenience, the entire Rule 67 of 1994 Rules is quoted below : “Reservation of officer of the Chairperson of the Municipal¬ity by rotation- (1) For the purpose of election to the Municipalities for the first time after the Orissa Municipal (Amendment) Act, 1994 (Orissa Act 11 of 1994) come into force, the number of offices of Chairpersons of the Municipalities in the State to be reserved for the Scheduled Castes, Scheduled Tribes, Backward Class of Citizens and women shall be determined in accordance with Sub-Section(3) of Section 47 of the Act. After determining the total number for reservation of offices of the Chairperson of the Municipalities in the State for Scheduled Castes, Scheduled Tribes, Backward Class of citizens and women, (the reservation of offices of the Chairperson for the Scheduled Castes, Scheduled Tribes and for their women) shall be assigned to different Munic¬ipalities, in descending order of the percentage of the respec¬tive population to the total population in each Municipality. If a Municipality qualifies at a particular general election for reservation for both Scheduled Tribes for the office of the Chairperson on the basis of the said principle, the office of the Chairperson shall be reserved for Scheduled Castes or Scheduled Tribes, as the case may be, whose population in terms of percent¬age of population is higher. (1-A) Subject to the directions, if any, issued by the Governor under sub-paragraph (1) of paragraph 5 of the Fifth Schedule to the Constitution of India, out of the Municipalities left after reservation of offices of the Chairpersons for the Scheduled Castes, Scheduled Tribes and their women the reservation of required number of offices of the Chairpersons for the members of the Backward Class of citizens including their women in the Municipalities shall be made until the required quota is complet¬ed. The reservation of offices of Chairpersons for women belong¬ing to Backward Class of citizens shall be made from out of the percentage of women population to the total population of the Municipality. The reservation of offices of Chairpersons for women belong¬ing to Backward Class of citizens shall be made from out of the percentage of women population to the total population of the Municipality. (2) The reservation and assignment of Municipalities for Scheduled Castes, Scheduled Tribes, Backward Class of citizens and women in subsequent erection shall be made. (3) Reservation of offices of the Chairpersons of the Munic¬ipalities for the Scheduled Castes, Scheduled Tribes, Backward Class of citizens and women shall be made and assigned to the category to which the particular Municipality should have been entitled by taking all Municipalities into consideration in accordance with Sub-rule (1) of this Rule, notwithstanding of the functioning of the nominated Councils immediately before commen¬cement of these Rules. (4) The required number offices of Chairpersons in the Municipalities in the State shall be reserved for women in the following manner, namely : (a) In computing total number of offices of Chairpersons for reservation of women as required under Sub-Section (3) of Section 47 of the Act, the offices of Chairpersons reserved for women belonging to Scheduled Castes, Scheduled Tribes and Backward Class of Citizens shall be taken into account; (b) Reservation of offices of Chairpersons for women belonging to Scheduled Castes shall be made at the first instance then for the Scheduled Tribes and then for the Backward Class of citizens; and (c) Out of the Municipalities left after reservation for the offices of the Chairpersons for the Scheduled Castes, Scheduled Tribes and Back ward Class of Citizens including their women, the offices of Chairpersons in the Municipalities shall be reserved for women in the descending order of the percentage of the women population to the total population in each Municipalities. (5) For reservation of the offices of Chairpersons under Sub-Section (3) of Section 47, the State Government shall cause to be published a notification in the official gazette showing reservation of the offices of the Chairpersons of the Municipali¬ties for Scheduled Castes, Scheduled Tribes, Backward Class of citizens and women after inviting objections and suggestions from all persons interested to be filed before the State Government within a period of fifteen days from the date of such notifica¬tion. Copy of such notification inviting objections and sugges¬tions shall be sent to the District Magistrate for wide circula¬tion by publishing it in the Notice Boards (s) of his office and office of the Municipality. Copy of such notification inviting objections and sugges¬tions shall be sent to the District Magistrate for wide circula¬tion by publishing it in the Notice Boards (s) of his office and office of the Municipality. (6) The State Government after considering the objections and suggestions received within the specified period in respect of the notification issued under Sub-Rule (5), shall published the reservation of offices of Chairpersons under Sub-Section (4) of Section 47. (7) The reservation of the offices of the Chairpersons of the Municipalities shall be communicated to the Election Commis¬sioner.” As is evident from Sub-Rule (5) of Rule 67, for reservation of the offices of Chairpersons for Backward Class of Citizens, the State Government shall cause to be published a notification in the official gazette showing reservation of the offices of the Chairpersons of the Municipalities for Scheduled Castes, Sched¬uled Tribes, Backward Class of Citizens and women. Said Sub-Rule also provides for inviting objections and suggestions from all persons interested within 15 days from the date of publication of such notification. Only after consideration of such objections, under Sub-Rule (6) final notification relating to reservation of offices of Chairpersons shall be made. However, this reservation may be made in terms of Rule 67 (1) of the 1994 Rules, Rule 67(1) provides that for the purpose of election to the Municipalities for the first time after the Orissa Municipal (Amendment) Act, 1994 comes into force, the number of offices of Chairpersons of the Municipalities in the State to be reserved for the Scheduled Castes, Scheduled Tribes, Backward Class of citizens and women shall be determined in accordance with Sub-section (3) of Section 47 of the Act. It is further provided in the said sub-rule that after determining the total number of offices of the Chairpersons of the Municipalities to be reserved in the State for Scheduled Castes, Scheduled Tribes, Backward Class of Citizens and women, reservation of offices of the Chairperson for the Scheduled Castes, Scheduled Tribes and for their women, shall be assigned to different municipalities, in descending order of the percent¬age of the respective population to the total population in each Municipality. Referring to the aforesaid provision, learned counsel for the petitioner contended that admittedly, population figure of Backward Class of citizens is not available with the State Government and therefore in absence of any such population figure, descending order could not be prepared for the purpose of reservation. Learned Addl.Government Advocate, on the other hand, submitted that the provision only prescribes that reservation for Scheduled Castes, Scheduled Tribes and their women, shall be assigned to different Municipalities in descending order of percentage of respective population to the total population in each Municipality and the same does not relate to Backward Class of Citizens. We find some force in the contention of the learned counsel appearing for the State. The provision clearly prescribes that after determining the total number for reservation of offic¬es of the Chairperson of the Municipalities in the State for Scheduled Castes, Scheduled Tribes, Backward Class of citizens and women, the reservation of offices of the Chairpersons for the Scheduled Castes, Scheduled Tribes and for their women, shall be assigned to different Municipalities, in descending order of the percentage of the respective population to the total population in each Municipality. Confronted with this argument, of the learned Additional Government Advocate, learned counsel for the petitioner submitted that so far as the reservation of offices of Chairpersons in different Municipalities is concerned, the State Government cannot adopt two methods, i.e. one for the Backward Class of Citizens and other for the Scheduled Castes, Scheduled Tribes and their women. If reservations are to be made in de¬scending order of population of reserved categories, such as S.C. and S.T., the same principle has to be also applied in respect of Backward class of Citizens. Before answering the question raised, it will be appropriate on our part to first decide as to whether the question raised can be decided at this point of time when election notification has already been issued and process of election has already started. 8. Learned counsel for the petitioner referred to a deci¬sion of the Apex Court in the case of Anugrah Narain Singh and another -v- State of U.P and others, reported in (1996)6 S.C.C. 303 . 8. Learned counsel for the petitioner referred to a deci¬sion of the Apex Court in the case of Anugrah Narain Singh and another -v- State of U.P and others, reported in (1996)6 S.C.C. 303 . As it appears from the judgment the appeal was filed before the Apex Court by two persons out of whom one was a former member of the Legislative Assembly of the State of U.P and the other was a candidate for the post of Mayor of Allahabad and in the appeal the order passed by the Division Bench of Allahabad High Court on 13.11.1995 was challenged, whereby Municipality election in the State of U.P which were scheduled to take place from 17.11.95 to 20.11.95 were cancelled and/or postponed. It further appears that ten persons filed a writ petition challenging the notification for holding municipal election in the State in the Allahabad High Court. Fifteen similar petitions were also filed before the Lucknow Bench. Payers in the all these writ petitions were that in view of the defects in the electoral rolls and delimitation of constituencies (Wards) and also on the ground of arbitrary reser¬vation of constituencies for women, Scheduled Castes, Scheduled Tribes and Backward Class, process of election should be post¬poned. Lucknow Bench dismissed the petitions on the ground of bar imposed by Article 243ZG of the Constitution, but the writ peti¬tion filed before the Allahabad High Court was allowed stopping the election process regardless of the judgment and order passed by the Lucknow Bench of the High Court. One of the points raised before the Apex Court was that there being no population figure available for Backward Class of Citizens in the 1991 Census, on the basis of which elections were being held, there should be no reservation for the Backward Class of citizens either for the offices of councillors or for the offices of the Chairpersons. From para-31 of the judgment, it appears that it was contended before the Apex Court that the Court is not entirely without jurisdiction to intervene when it finds that provisions of the Constitution are being flouted in holding the election. It was also contended that in such a situation, the Court has jurisdic¬tion and, indeed, a duty to intervene and set right the election process. It was also contended that in such a situation, the Court has jurisdic¬tion and, indeed, a duty to intervene and set right the election process. In para-33 of the judgment the Court observed as follows : “In our view, the argument advanced on behalf of the State must be upheld. It is true that Article 243-P(g) has defined ‘population’ to mean “population as ascertained by the last preceding census of which the relevant figures have been pub¬lished”. The delimitation of constituencies and also preparation of electoral rolls will have to be done on the basis of the figures available from the last census which was taken in 1991. Reservation of seats for Scheduled Castes and Scheduled Tribes is mandatory under Article 243-T of the Constitution. This must also be done on the basis of the available figures from the census. Clause (6) of Article 243-T of the Constitution has made it permissible for the State Government to reserve seats for other Backward Classes. The census of 1991 has not enumerated the number of persons belonging to Backward Classes. Therefore, in order to reserve seats for citizens belonging to Backward Class¬es, their number will have to be found out. Clause(6) of Article 243-T has impliedly empowered the State Government to ascertain the Backward Classes and the number of people belonging to such classes. Otherwise, the provisions of Clause (6) of Article 243-T will become otiose and meaningless. Merely because, such an enumeration of people belonging to Backward Classes was made, does not mean that the figures enumerated by the last census were discarded. the latest available census figures had to be the basis for delimitation of the constituencies, preparation of electoral rolls and also for reservation of seats for Scheduled Castes, Scheduled Tribes and women. But Cencus figures are not available for persons belonging to Backward Classes. The next cesus will be in the year 2001. There is no way to reserve seats for Backward Classes in the meantime except by making a survey of the number of persons belonging to such classes for the purpose of giving them assured representation in the municipal bodies. To do this exercise is not to do away with the last available census figures but to find out what was not to be found by the last census. To do this exercise is not to do away with the last available census figures but to find out what was not to be found by the last census. Had such counting been done in the census, then it would not have been open to the State Government to embark upon a survey of its own. The State Government here had only two choices. It could say that there will be no reservation for people belonging to Backward Classes because, the census figures of such people are not available or it could make a survey and count the number of people belonging to the Backward Classes and reserve seats for them in the municipal bodies. The State Government has taken the latter course. This is in con¬sonance with the provisions of Clause (6) of Article 243-T. Therefore, the survey made by the State Government for finding out the number of persons belonging to Backward Classes was not in anyway contrary to or in conflict with any of the provisions of the Constitution.” Relying on this paragraph it was contended by the learned counsel for the petitioner that in absence of population figure of Backward Classes of citizens, only two options were also available for the State Government, i.e. no reservation for Backward Class of Citizens due to non-availability of population figure of said class in the last census or such reservation could be made only after survey of population of Backward classes is made. Though such observation was made by the Apex Court in the said judgment, in para-35 of the judgment the Apex Court held that the High Court on no ground should have directed postpone¬ment of the election by the impugned judgment. 9. With regard to jurisdiction of the Court to interfere after the election process starts, reference may be made to a decision of the Apex Court in the case of Boddula Krishnaiah and another -v- State Election Commissioner, A.P. and others, report¬ed in AIR 1996 S.C. 1595 . 9. With regard to jurisdiction of the Court to interfere after the election process starts, reference may be made to a decision of the Apex Court in the case of Boddula Krishnaiah and another -v- State Election Commissioner, A.P. and others, report¬ed in AIR 1996 S.C. 1595 . The Apex Court held as follows : “Once an election process has been set in motion, though the High Court may entertain or may have already entertained a writ petition, it would not be justified in interfering with the election process giving direction to the election officer to stall the proceedings or to conduct the election process afresh, in particular when election has already been held in which the voters were allegedly prevented to exercise their franchise as that dispute is covered by an election dispute and remedy is thus available at law for redressal. In the circumstances, the order passed by the High Court giving direction not to declare the result of the election or to conduct fresh poll for 20 persons, though the writ petition is maintainable would be illegal. The High Court, pending writ petition, would not be justified in issuing direction to stall the election process.” In the case of Mohinder Singh Gill and another -v- the Chief Election Commission, New Delhi and others, reported in AIR 1978 S.C. 851 , the Apex Court in para-30 of the judgment observed as follows : “The plenary bar of Art.329(b) rests on two principles; (1) The peremptory urgency of prompt engineering of the whole elec¬tion process without intermediate interruptions by way of legal proceedings challenging the steps and stages in between the commencement and the conclusion. (2) The provision of a special jurisdiction which can be invoked by an aggrieved party at the end of the election excludes other form, the right and remedy being creatures of statues and controlled by the Constitution. Durga Shankar Mehta ( 1955 (1) SCR 267 : ( AIR 1954 SC 520 ) has affirmed this position and supplemented it by holding that, once the Election Tribunal has decided, the prohibition is extinguished and the Supreme Court’s over all power to interfere under Art. 136 springs into action. Durga Shankar Mehta ( 1955 (1) SCR 267 : ( AIR 1954 SC 520 ) has affirmed this position and supplemented it by holding that, once the Election Tribunal has decided, the prohibition is extinguished and the Supreme Court’s over all power to interfere under Art. 136 springs into action. In Hari Vishnu (1955-1 SCR 1104) : ( AIR 1955 SC 233 ) this Court upheld the Rule in Ponnuswami ( AIR 1952 SC 64 ) excluding any proceeding, including one under Article 226, during the on-going process of election, understood in the com¬prehensive sense of notification down to declaration. Beyond the declaration comes the election petition, but beyond the decision of the Tribunal the ban of Art.329(b) does not bind.” It is evident from the aforesaid paragraph that the provisions of a special jurisdiction which can be invoked by an aggrieved party at the end of the election excludes other form right and remedies being creatures of statutes and controlled by the Constitution. However, in paragraph 31 and 32 the Apex Court observed as follows : “If ‘election’ bears the larger connotation, if ‘calling in question’ possesses a semantic sweep in plain English, if policy and principle are tools for interpretation of statutes, language permitting, the conclusion is irresistible, even though the argument contra may have emotional impact and ingenious appeal, that the catch-all jurisdiction under Art,226 cannot consider the correctness, legality or otherwise of the direction for cancella¬tion integrated with re-poll. For, the prima facie purpose of such a re-poll was to restore a detailed poll process and to complete it through the salvationary effort of a re-poll. Whether, in fact or law, the order is validly made within his powers or violative of natural justice can be examined later by the appointed instrumentality, viz. The Election Tribunal. That aspect will be explained presently. We proceed on the footing that re-poll in one polling station or in many polling stations, for good reasons, is lawful. This shows that re-poll in many or all segments, all pervasive or isolated, can be lawful. We are no considering whether the act was bad for other reasons. The Election Tribunal. That aspect will be explained presently. We proceed on the footing that re-poll in one polling station or in many polling stations, for good reasons, is lawful. This shows that re-poll in many or all segments, all pervasive or isolated, can be lawful. We are no considering whether the act was bad for other reasons. We are concerned only to say that if the regular poll, for some reasons, has failed to reach the goal of choosing by plurality the re¬turned candidate and to achieve this object a fresh poll (not a new election) is needed, it may still be a step in the election. the deliverance of Dunkirk is part of the strategy of counter-attack. Wise or valid, is another matter.” “On the assumption, but leaving the question of validity of the direction for re-poll open for determination by the Election Tribunal, we hold that a writ petition challenging the cancellation coupled with re-polled amounts to calling in question a step in ‘election’ and is therefore barred by Art.329(b). If no re-poll had been directed the legal perspective would have been very different. The mere cancellation would have then thwarted the course of the election and different considerations would have come into play. We need not chase a hypothetical case.” The above decision was again taken note of by the Apex Court in the case of Election Commission of India through Secretary -v- Ashok Kumar and others, reported in AIR 2000 S.C. 2977 and in para-32 of the judgment, the Apex Court observed as follows : “For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows there from in view of the analysis made by us hereinabove :- (1) If an election, (the term ‘election’ being widely inter¬preted so as to include all steps and entire proceedings commenc¬ing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections. (2) Any decision sought and rendered will not amount to “calling in question an election” if it subserves the progress of the election facilitates the completion of the election. Anything done towards completing or in furtherance of the election pro¬ceedings cannot be described as questioning the election. (3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law. (4) Without interrupting, obstructing or delaying the pro¬gress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court. (5) The Court must be very circumspect and act with caution while entertaining any election dispute through not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the Court’s indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the Court would act with reluctance and shall not act except on clear and strong case for its interven¬tion having been made out by raising the pleas with particulars and precision and supporting the same necessary material.” 10. On analysis of the above judgments, we are of the view that unless a very clear and strong case is made out for Court’s intervention, the Court would act with reluctance and should not act unless such grounds are available to intervene. On analysis of the above judgments, we are of the view that unless a very clear and strong case is made out for Court’s intervention, the Court would act with reluctance and should not act unless such grounds are available to intervene. The main point that was raised by the learned counsel for the petitioner is that under Rule 67(1) of the 1994 Rules, a provision has been made for reservation of office of Chairperson for Backward Class of citizens in the descending order of population without such figures being available with the State Government. While examin¬ing Rule 67(1) of 1994 Rules earlier in the judgment, we have observed that prima facie there appears to be some force in the contention of the learned counsel for the State that descending order of population refers to reservation of offices for the Scheduled Castes, Scheduled Tribes and their women. We, there¬fore, do not find that the petitioner has very clear and strong case on this point. In view of the very limited jurisdiction of this Court to interfere after election process started as is evident from the observations made by the Apex Court in different decisions quoted above, we are of the view that on this question raised by the learned counsel for the petitioner, the Court cannot interfere at this stage. 11. The only other question raised by the learned counsel for the petitioner is that Bhubaneswar Municipality having been converted to a Corporation could not have been included in the list of Municipalities for the purpose of reservation of offices of Chairpersons for the Backward Class of citizens. There is no dispute that Bhubaneswar Municipality has been declared to be a Corporation and the Orissa Municipal Act has no application to the said Corporation. However, Court cannot lose sight of the fact that when this list was prepared the Orissa Municipal Corpo¬ration Act had not come into force. Though we agree with the learned counsel for the petitioner that after coming into force of the Orissa Municipal Corporation Act, Bhubaneswar Municipal Corporation should have been excluded from the list of Municipal¬ities., the question that arose for consideration is whether the same could be done now ? Though we agree with the learned counsel for the petitioner that after coming into force of the Orissa Municipal Corporation Act, Bhubaneswar Municipal Corporation should have been excluded from the list of Municipal¬ities., the question that arose for consideration is whether the same could be done now ? After the State Government took a deci¬sion to reserve every second office in the Municipalities for Backward Class of citizens, the draft notification had been issued, objections were invited and final publication of the notification was made. If the contention of the learned counsel for the petitioner is accepted at this stage, the entire process has to be gone though again and that will stall election of offices of Chairpersons in all the Municipalities and in absence of a Chairperson Municipality cannot also function. The election notification was issued on 28.7.2003 and polling is scheduled to be held on 19.9.2003. Results are scheduled to be declared on 23.9.2003 and as per the provisions of the Act and the Rules, election to the offices of the Chairperson shall be done in the first meeting of the councillors of respective Municipalities. Therefore, at this stage of the election process, it will not be appropriate on the part of this Court to pass any direction with regard to exclusion of Bhubaneswar Municipal Corporation from the list of Municipalities which had been prepared much prior to coming into force of the Orissa Municipal Corporation Act. Moreo¬ver, there is no dispute that reservations are to be made on rotation as provided in the Statute. Therefore, no prejudice is caused to the petitioner if such reservation is made now as at some point of time the office of Chairperson of Angul Municipali¬ty has to be reserved on rotation. 12. In view of the discussions made above, we do not find any justification to interfere with the election process at this stage and therefore dismiss the writ application. SUJIT BARMAN ROY, C.J. I agree. Application dismissed.