JUDGMENT

21.01.2016.Heard Mr. Rajat Kumar Rath, learned Senior Counsel for the petitioner, Mr. Pitambar Acharya, learned Senior Counsel for opposite party Nos. 1 and 2, learned Additional Government Advocate for opposite party No.3 and Mr. M.R. Mohanty, learned Counsel for intervenor.

2.The petitioner, who claims to be a scheduled caste woman and a resident of Ward No.21 of Cuttack Municipal Corporation, has filed this writ petition challenging the legality and propriety of notification dated 08.01.2016 (Annedure-4) issued by the State Election Commissioner, Orissa-opposite party No.1 for the bye-election for the post of Mayor of Cuttack Municipal Corporation ( hereinafter referred to as the Corporation) to be held on 22.01.2016, with a further prayer to direct the opposite parties to hold bye election to the post of Corporator of Ward No.21 of the Corporation and thereafter to hold the bye-election to the post of Mayor of the Corporation.

3.The undisputed facts are that the Corporation comprises of 59 wards, out of which 32 wards fall within the Barabati-Cuttck Assembly Constituency; 21 wards come within the Choudwar-Cuttack Assembly Constituency, and 6 wards pertain to Cuttack Sadar Assembly Constituency. Ward No.21 of the Corporation comes within Barabati-Cuttack Assembly Constituency, Notification No.31141 dated 24.10.2013 (Annexure 2) issued under sub-Section (3) and (4) of Section 14 of the Orissa Municipal Act, 2003 ( in short ‘the Act’) read with sub-rule (8) of Rule-80 of the Orissa Municipal Corporation ( Division of City into Wards, Reservation of Seats, and Conduct of Election) Rules, 2003 ( in short ‘the Rules’) was published by the State Government reserving the office of the Mayor of the Corporation for scheduled caste women for the current term 2013-2018 on rotation basis. Accordingly in general municipal election of the Corporation held in 2013 one Smt. Anita Behera, a scheduled caste woman was elected as Corporator of Ward No.21 and she was also elected as the Mayor of the Corporation. In view of some allegations made against her, the said Anita Behera resigned from the post of Mayor as well as post of Corporator of Ward no.21 of the Corporation. Her resignation having been accepted as per law, the post of Corporator of Ward No.21 and the post of Mayor of the Corporation have fallen vacant with effect from 01.01.2016. The vacancies so caused was intimated by the Commissioner of the Corporation to the Secretary, State Election Commission ( opposite party No.2) and also to the Government as per Annexure-3 in terms of Rule 90 of the Rules.

The State Election Commissioner (opposite party No.1) has thereafter issued notification dated 08.01.2016 (Annexure-4) for bye-election to the post of Mayor of the Corporation and no notification has yet been issued for bye-election to the post of Corporator of Ward No.21 of the Corporation.

4.In challenging the validity of the notification under Annexure-4, the learned Senior Counsel for the petitioner raise the following contentions :

(a)As per the notification of reservation of seats, or ward (ward No.21) pertaining to Barabati-Cuttack Constituency, two wards ( Ward Nos. 39 and 45) falling under Choudwar-Cuttack constituency and one ward ( Ward No.51) pertaining to Sadar-Cuttack Constituency of the Corporation have been reserved for scheduled caste women, and that the largest number of wards of the Corporation come under Barabati-Cuttack Assembly Constituency and the only ward reserved for scheduled caste women within this area having remained vacant after resignation of Smt. Anita Behera from the post of Corporator of the said ward, in the election to be held for the post of Mayor as per notification under Annexure-4 the wards of the Corporation coming within Barabati-Cuttack Assembly Constituency shall go unrepresented and, therefore, the notification under Annexure-4 is bad and unsustainble.

(b)The Commissioner of the Corporation having intimated opposite party Nos.1 and 2 ab