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2010 DIGILAW 190 (ORI)

Sri Ashok Dora v. State of Orissa

2010-03-23

B.P.RAY, I.M.QUDDUSI

body2010
JUDGMENT B.P. Ray, J. 1. The Petitioner, who claims to be a Samiti member of Gudvela Panchayat Samiti in the district of Bolangir has filed this writ application under Articles 226 & 227 of the Constitution of India praying inter alia for a direction challenging the reservation made for the office of chairperson of Gudvela Block as well as to declare the reservation made beyond 50% as illegal. The' Petitioner has also further prayed to declare the reservation made for backward class citizens as illegal & that the election conducted in 2nd, 3rd & 4th phase as illegal. The Petitioner has also prayed to declare the provisions contained in Section 16(2) (b-1) of Orissa Panchayat Samiti Act & Rule 30 thereof as ultra' vires. 2. The Opp. Party Nos. 2 & 3 have filed a counter affidavit stating therein that the reservation of seats for the office of chairperson of Panchat Samiti in the district of Bolangir has been made as provided Under Section 16 of the Orissa Panchayat Samiti Act & Rule 7 of Orissa Panchayat Samiti Election Rules. It is further stated that reservation has been made keeping in view the provisions contained in Article 243D of the Constitution, inasmuch as Clause-6 thereof, provides reservation to be made for backward class of citizens. 3. The State Election Commission, namely, Opp. Party No. 5 has also filed a separate counter affidavit. In the counter affidavit filed by the State Election Commission it was stated that in view of the bar provided under Article 243O of the Constitution of India, the writ application filed by the Petitioner is not maintainable. However, the Petitioner has filed a normal rejoinder to the counter affidavit filed by the Opp. Parties. 4. We have heard Learned Counsel for the Petitioner as well as Learned Counsel for the State Election Commission & Learned Addl. Govt. Advocate for Opp. Party Nos. 2 & 3. Upon hearing, the Learned Counsel for the parties & on perusal of the records it appears that the election for the office of chairperson in the Panchayat Samiti in question has already taken place long since. Since elections have already taken place, it is neither desirable nor expedient to unsettle the settled position. Further, in view of the provisions contained in Article 243D of the Constitution of India, we are not inclined to interfere with this Writ Petition. Since elections have already taken place, it is neither desirable nor expedient to unsettle the settled position. Further, in view of the provisions contained in Article 243D of the Constitution of India, we are not inclined to interfere with this Writ Petition. Article 243D of the Constitution of India reads as follows: 243D. Bar to interference by Courts in electoral matters. Notwithstanding anything in this Constitution: (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under Article 243K, shall not be called in question in any Court; (b) no election to any Panchayat shall be called in question except by an election petition presented to such authority & in such manner as is provided for by or under any law made by the Legislature of a State. 5. Keeping in view the aforesaid provisions as well as the law laid down by the Apex Court in the case of Nanhoo Mal v. Hira Mal reported in AIR 1975 SC 2140 which has been followed by a Division Bench of this Court reported in 1992 (II) OLR 90 in the case of Maheswar Tripathy v. State of Orissa and Ors., we decline to entertain this Writ Petition. The Writ Petition is accordingly dismissed. I.M. Quddusi, A.C.J. 6. I agree.