A legislative body cannot be permitted to weaken the effect of the guarantee in Article 14 by arbitrarily creating a class and then ask the Court to accept such classification as a proper one.

NARASIMHAM, C. J.

( 1 ) THIS is a petition under Article 226 of the Constitution for a declaration that the Orissa Municipal Elections Validation Ordinance 1959 (Orissa Ordinance No 1 of 1959) (hereinafter referred to as the Ordinance) is void and inoperative in its application to Cuttack Municipality and for a permanent injunction restraining the State of Orissa (opposite party No. 1) from enforcing the Ordinance and restraining opposite parties Nos. 2 to 28 from exercising their functions as Councillors, Chairman and Vice-Chairman as the case may be, of Cuttack Municipality.

( 2 ) THE elections to Cuttack Municipality took place during the period from December, 1957 to March, 1958 and opposite parties 2 to 28 were duly declared elected as Municipal Councillors. Opposite party No. 3 Sri Manmohan Misra was elected Chairman and opposite party No. 15, Sri Mahendra Kumar Sahu was elected Vice Chairman of the said Municipality. The petitioner Sri Bhupendra Kumar Boss who was one of the defeated candidates, challenged the validity of the elections before this Court in O. J. C. No. 72 of 1958. A Division Bench of this Court by its judgment dated 11-12-1958 declared the elections to be invalid and issued a direction to the State of Orissa and to the District Magistrate of Cuttack to hold fresh elections to the Municipality according to law. A further direction was issued to the elected Municipal Councillors restraining them from functioning as Councillors on the basis of the said elections. Neither the State of Orissa nor the other members of the opposite party challenged the judgment by way of an appeal to the Supreme Court. Consequently, the judgment became conclusive and was given effect to in due course and the District Magistrate of Cuttack took over the administration of the Municipality as an interim arrangement.

( 3 ) IT will be useful at this stage to briefly summarise the reasons for which the Division Bench held the elections to be invalid, in O. J. C. No. 72 of 1958. They are as follows:

(i) The qualifying date for determining the age qualification of voters under Section 13 of the Orissa Municipal Act was published by the State Government only on 10-1-1958 whereas the preliminary electoral rolls had already been published on 23-12-1957 and claims and objections had been invited for a period of twenty one days from that date, i. e. from 23-12-1957 to 12-1-1958. In consequence of the belated notification of the qualifying date the citizens of Cuttack, in effect, were given only two days time to file their claims and objections though under the Orissa Municipal Election Rules they were entitled to twenty-one clays. On the affidavits of the parties the Court further held that such a drastic abridgement of the period for filing claims and objections materially affected the results of the elections, by depriving several persons of their right to be enrolled as voters.

(ii) A candidate was entitled to fifteen' clear days for the purpose of canvassing but the notification issued under the Orissa Municipal Election Rules curtailed this period to fourteen days. The onus was, therefore, upon the opposite party to show that the results of the elections were not, and could not be, affected by the contravention of the rules and that party did not discharge this onus.

( 4 ) ON 15-1-1959 the Governor of Orissa promulgated the Ordinance validating the elections to Cuttack Municipality notwithstanding the decision of this Court in O. J. C. No. 72 of 1958. The provisions of the Ordinance are as follows: Orissa Ordinance No. 1 of 1959. The Orissa Municipal Elections Validation Ordinance, 1959. AN ordinance To provide for the validation of electoral rolls and elections to Municipalities and certain other matters. Whereas in certain judicial proceedings it has been held that the elections to the Cuttck Municipality are invalid due to some defect and irregularity in the preparation of the electoral roll and fixation of the date of polling;