B.P. Ray, J.

1. In this application under Section 226 & 227 of the Constitution of India, the petitioners assail the order passed by the State Election Commission under Annexure-5 as well as the final notification issued by the District Magistrate, Mayurbhanj by which delimitation of Baripada Municipality and reservation of seats thereof was made in exercise of the power under Section 12 of the Orissa Municipal Act, 1950.

2. It appears the District Magistrate Mayurbhanj had issued notification No. 647, dated 15.2.2008 under Section 12(3) of the Orissa Municipal Act indicating delimitation of wards and reservation of seats in respect of Baripada Municipality. The appeal preferred by the petitioners challenging the said notification having been dismissed by the appellate authority, the petitioners had filed W.P.(C) No. 2539 of 2008 which came to be disposed of by judgment dated 17.06.2008 by which the delimitation notification under Section 12 of the Act was quashed. It further appears after disposal of W.P.(C) No. 2539 of 2008, the District Magistrate issued the impugned notification under Annexure-3 which was also challenged by the petitioners in W.P.(C) No. 15557 of 2008. The said writ application was disposed of by this Bench by order dated 7.11.2008 wherein we had declined to interfere in the matter keeping in view the provisions of Article 243ZG of the Constitution of India. While declining to interfere, we had granted liberty to the petitioners to approach State Election Commission by moving a representation which was directed to consider the same in accordance with law. It appears in consonance with the direction in the said writ application, the petitioners submitted a representation under Annexure-4, which came to be disposed of by the impugned order under Annexure-5 dated 5.12.2008. This writ application has been filed challenging the said order under Annexure-5 as well as the final notification issued by the District Magistrate under Annexure-3.

3. The State Government as well as the Director, Municipal Administration have filed a counter affidavit stating that reservation has been made following the principle of rotation and it was stated that the writ petition is not maintainable in as much as the election process having already been started by the issuance of the notification dated 12.12.2008, the Writ petition has become infructuous. The State Election Commission-opp. party No. 6 has also filed a counter affidavit in which it was stated that the writ petition was not maintainable in view of the bar contained in Article 243ZG of the Constitution of India and it was also further stated that in view of the disposal of the writ petition bearing W.P.(C) No. 15557 of 2008, the present writ petition would be barred by law of res judicata. It was also stated that the election process for Baripada Municipality has already commenced since 12.12.2008 by issuance of notification.

4. Admittedly, the election to the Baripada Municipal Council has already taken place in the month of December, 2008. Since elections are over about a year back, it is neither desirable nor expedient to unsettle the settled position. Moreover, in view of the provisions contained in Article 243ZG of the Constitution of India, we are also not inclined to interfere in the matter, keeping in view, the law laid down by the apex Court in the case of Nanhoo Mal v. Hira Mal reported in AIR 1975 SC 2740 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 & others. By referring to several judgments of the apex Court, their Lordships summarized their conclusion in paragraph 17 of the judgment in Maheswar Tripathy (supra) which are as follows :-

(1) The right to stand for election is a creature of a statute, and so, must be subject to limitations imposed by it.

(2) If the statute provides only one remedy, that remedy being an election petition to be presented after the election is over, remedy at any intermediate stage would not be available.

(3) The word election has to be understood as including the stage of rejection or acceptance of nomination paper.

(4) If the alternative remedy fully covers the challenge to election that remedy alone must be restored to, even though in the case challenge is to the election of all the successful candidates.

(5) There may exist exceptional or extraordinary circumstances under which a High Court can be approached to challenge an election like the one at hand; but improper acceptance or rejection of nomination papers in individual cases would not normally be such a circumstance.

(6) There would be hardly any room to entertain applications under Art. 226 of the Constitution in matters relating to elections. An exception can be when there is real and genuine challenge to the vires of a provision having intimate connection with the holding of election. This too would be permissible after the election is over.

5. The aforesaid being the legal position, we decline to entertain this writ petition particularly when the election are already over.

The writ petition is accordingly dismissed.

I.M. Quddusi, A.C.J.

6. I agree.