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2009 DIGILAW 111 (ORI)

DAYANIDHI LENKA v. STATE OF ORISSA

2009-02-05

I.M.QUDDUSI, SANJU PANDA

body2009
JUDGMENT : I.M. Quddusi, J. - 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. 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 u/s 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 u/s 60 of the Act. 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 u/s 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. Each of the Opposite Parties has filed separate counter affidavit. 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. Each of the Opposite Parties has filed separate counter affidavit. In the counter affidavit filed on behalf of the State Election Commission, it has been stated that pursuant to the order of this Court dated 10.9.2008 in W.P.(C) No. 12453 of 2008 flied by the State Election Commission directing the Cuttack Municipal Corporation as well as the State Government to complete the division of City into Wards and making reservation thereof within 20th of October, 2008, the State Government finally published the notification on 10.10.2008 after due consultation with the Cuttack Municipal Corporation. Division of wards and reservation of seats has been done by the State Government strictly in accordance with Article 243T of the Constitution as well as the provisions of Sections 7 and 60 of the Act and Sub-rule (3) of rule 4 of the Rules. The entire process of delimitation as well as reservation has been done in most transparent manner in accordance with the provision of law and there is absolutely no infirmity or defect either in division or wards or reservation of seats and the Petitioner with a view to delay the process of election has been repeatedly approaching this Court. Therefore, the Writ Petition-should be dismissed in limine. In the additional counter affidavit filed on behalf of Opposite Party No. 4 it has been averred that the very same notification which has been challenged in this Writ Petition was challenged in W.P.(C) No. 15458 of 2008'and this Court by Order Dated 29.10*.2008 did not feel inclined to interfere with the same but disposed of the Writ Petition with an observation that the Petitioner may approach the State Election Commission. Therefore, the Order Dated 29.10.2008 passed in W.P.(C) No. 15458 of 2008 would operate as res judicata. The further contention of the State Election Commission is that since the election process has already commenced with the issuance notification on 12.12.2008, therefore this Court should not interfere with this Writ Petition in view of law laid down by the Hon'ble Apex Court. The further contention of the State Election Commission is that since the election process has already commenced with the issuance notification on 12.12.2008, therefore this Court should not interfere with this Writ Petition in view of law laid down by the Hon'ble Apex Court. The case of the State Government is that the delimitation of wards and reservation of seats has been made afresh in tune with the provisions of the Orissa Municipal Corporation Act, 2003 and the rules framed thereunder basing on the information furnished by the Municipal Commissioner, Cuttack Municipal Corporation. The allegations made by the Petitioner has been denied by the State Government in its counter affidavit. The Cuttack Municipal Corporation while denying the allegations made by the Petitioner in the Writ Petition, has averred that there has been proper consultation with it by the State Government in the matter of delimitation of wards and reservation of seats in accordance with law. The further case of Opposite Party No. 3 is that Ward No. 3 was reserved for Scheduled Tribe following the descending order of population and rotation method. It is further contended by Opposite Party No. 3 that the Writ Petition filed by one Sunil Kumar Sharma challenging the reservation of Ward No. 3 for Scheduled Tribe having not been found favour with this Court, the present Writ Petition is hit by the principle of res judicata. 4. 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 & 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. 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: 1. Notional maps showing census blocks had to be relied upon since no map to the scale showing the census blocks is available. 2. As per notional map for Census Block No. 15 (copy enclosed), Biju Patnaik Park has been shown to be on its north-western side, and as part of Census Block No. 14. 3. Notional maps showing census blocks had to be relied upon since no map to the scale showing the census blocks is available. 2. As per notional map for Census Block No. 15 (copy enclosed), Biju Patnaik Park has been shown to be on its north-western side, and as part of Census Block No. 14. 3. Census Block No. 15 as per the notional map is surrounded by Census Block Nos. 14, 16, 17 and 18 and not by Census's Block No. 40. 4. The land marks shown on the notional census maps in respect of Census Block No. 40, like play ground & market complex do not exist on the western side of Biju Patnaik Park. 5. The above physical features as shown in respect of notional Census Block No. 40 appear to match with the physical features in Sector No. 7 where there is a big play ground. A market complex also exists in Sector 7 on the northern side of Kathjodi Ring Road leading towards Naraj. Sector 7 is part of Ward No 3 and is a compact area. In view of the above, it is clear that Census Block No. 40 is in Ward No. lll. 5. Learned Counsel for the Petitioner has raised a contention that the notification issued by the State Government is agarnst the provisions of Section 64 of the Act, It is therefore necessary to peruse the provisions of the aforesaid Section which reads as under: 64. Notification calling upon wards to elect Corporators:- For the purpose of holding election under this Act the Government shall by one or more notifications published on such date or dates as may be recommended by the Election Commission, call upon all wards in the city to elect Corporators in accordance with the provisions of this Act and the Rules and orders made thereunder, before such date or dates as may be specified in the said notification or notifications. 6. 6. The contention of the Learned Counsel for the Petitioner is that the State Government is to issue notifications published on the date or dates, as may be recommended by the State Election Commission, calling upon all wards in the city to elect Corporators in accordance with the Orissa Municipal Corporation Act, 2003 and the rules made thereunder before such date or dates, as may be specified in the said notification or notifications and since no date was notified in the notification, the notification is bad in law. 7. The further contention of the Petitioner is that the State Election Commission vide its notification dated 5.12.2008 had called upon the State Government to issue notification on 12.12.2008 to elect Corporators in accordance with law. Neither the State Government nor the Election Commission has given any date in the notification. But the Election Commission vide notification dated 7th January, 2009 has appointed dates and time with respect to the election which is beyond its jurisdiction when the same has not been specified by the State Government. 8. In the above regard, first of all it is to be borne in mind that the term of the Cuttack Municipal Corporation had already come to an end on 29th September, 2008. The State Government was not taking any action for holding the election and ultimately the Election Commission filed two Writ Petitions, i.e. W.P. (C) No. 12356 of 2008 (for Bhubaneswar Municipal Corporation) and W.P.(C) No. 12453 of 2008 (for Cuttack Municipal Corporation) praying for a writ of mandamus directing the State Government and the Municipal Corporations in question to provide all necessary cooperation and assistance to the State Election Commission to enable it to fulfil the constitutional mandate and for permitting the Commission to hold and complete the election on the basis of existing delimitation of wards and reservation of seats as well as electoral roll. However, we are concerned here with the Cuttack Municipal Corporation. This Court vide Order Dated 10.9.2008, so far as Cuttack Municipal Corporation is concerned, gave the following directions: It appears that (sic) Municipal Corporation has already sent the proposal to the State Government on 2.9.2008, which according to the Learned AGA has been received on 5.9.2008. However, we are concerned here with the Cuttack Municipal Corporation. This Court vide Order Dated 10.9.2008, so far as Cuttack Municipal Corporation is concerned, gave the following directions: It appears that (sic) Municipal Corporation has already sent the proposal to the State Government on 2.9.2008, which according to the Learned AGA has been received on 5.9.2008. Therefore, there is no impediment to issue draft notification under rule 3(1) of Chapter III of Orissa Municipal Corporation (Division of City into Wards Reservation of Seats and Conduct of Election) Rules, 2003 and Section 60 of the Municipal Corporation Act. Thereafter, ten days time is to be granted to finalize the objection and after expiry of ten days time, the objections and suggestions received under Sub-rule (22) shall be consolidated wardwise after considering the same and making such further enquiry, as may be necessary, the Government shall pass such orders as deemed appropriate. Sub-rule (5) thereof provides that the Government after considering all such objections and suggestions as required under Sub-rule (4) shall publish the final notification making alternation, if any, in form IV showing the division of the area of the Corporation into wards and reservation of seats therein as required under Sub-section (1) of Section 60 and shall forward forthwith a copy of such notification to the Election Commission, to the concerned District Magistrate and to the Corporation. Learned AGA on instruction assures that the draft notification will be issued by 15th of September, 2008 giving ten days time for filing objections and thereafter the objections shall be disposed of within a period of twenty five days from the date of expiry of the period for filing the objections in respect of Cuttack Municipal Corporation. We so direct. This Court called upon the State Government to act in accordance With the direction quoted above as well as the assurance given by the Learned Additional Government Advocate on their behalf. This Court also further directed that in case, the State Government failed to act according to the above direction; it would be open for the State Election Commission to hold election on the basis of the existing wards and the electoral roll. 9. Pursuant to the aforesaid direction, the State Government as well as the State Election Commission acted. This Court also further directed that in case, the State Government failed to act according to the above direction; it would be open for the State Election Commission to hold election on the basis of the existing wards and the electoral roll. 9. Pursuant to the aforesaid direction, the State Government as well as the State Election Commission acted. Therefore, in these circumstances, when the term of the Cuttack Municipal Corporation had already come to an end on 29th of September, 2008, the dates of election were to be notified by the Election Commission and in such circumstances, if the State Government had not specified any dates, it is always meant that the State Government had not limited the constitution of the Municipal Corporation and it is within the domain of the State Election Commission to conduct the election by issuing notification or notifications mentioning the dates. Therefore, in our opinion, it is not mandatory in such circumstances to give dates in the notification by the State Government or in the recommendation by the Election Commission regarding the dates and non-mentioning of the dates in the notification would not nullify the notifications. 10. Shri Pitambar Acharya, Learned Counsel for the State Election Commission has drawn the attention of this Court towards the provisions of Sub-section (2) of 88 of the Act and submitted that an efection petition calling in question any election may be presented on one or more of the grounds specified in Section .89 by any candidate at such election, by any elector of the ward concerned. One of the grounds of challenge in Section 89 is that the result of the election in so far as it concerns a returned candidate has been materially affected by the non-compliance with the provisions of the Orissa Municipal Corporation Act or the rules or orders made thereunder. Therefore, even an elector can file an election petition for non-compliance with the provisions of the Act and the rules made thereunder and hence the Petitioner had no cause of action to file the instant Writ Petition. Since the contentions raised by the Petitioners in the instant Writ Petitions are misconceived, rather incorrect averments were made, which show that the Petitioners wanted to delay the election process, we are of the opinion that the Writ Petition should be dismissed with costs. Since the contentions raised by the Petitioners in the instant Writ Petitions are misconceived, rather incorrect averments were made, which show that the Petitioners wanted to delay the election process, we are of the opinion that the Writ Petition should be dismissed with costs. In view of the above, the Writ Petition is dismissed with cost which is assessed at Rs.10,000.00 which shall be deposited with the Registrar (Judl.) of this Court and shall be transmitted to the State Legal Services Authority, Orissa. Final Result : Dismissed