JUDGMENT

I. MAHANTY, J. — In the present writ application, the petitioner Sri Ram Kumar Jain has sought to challenge an order dated 29.7.2009 passed by the learned District Judge, Kalahandi-Nuapada at Bhawanipatna in Election Petition No.13 of 2008, rejecting the petitioner’s application for preliminary hearing on the point of jurisdiction.

2. The case of the petitioner is that he was elected as Chairperson to Kesinga NAC and the present election petitioner has sought to challenge the same by filing an election petition No.13 of 2008 before the learned District Judge/Tribunal Kala¬handi-Nuapada at Bhawanipatna. On receiving notice from the Elec¬tion Tribunal, the present petitioner filed a petition on 17.2.2009 praying for adjudicating the issue of maintainability as a preliminary issue on the plea that the election petition was not maintainable in law.

3. Learned counsel for the petitioner submitted that the election petition in challenging the election of ‘Chairperson’ of a Municipal body by way of filing of an election petition before the District Judge/Tribunal is not permissible in law.

4. Sri A.K. Nanda, learned counsel for the Opp.Party No.1 (Election Petitioner) submitted that the writ petitioner had con¬tested for ‘Councillor’ from a general category seat and had been duly elected as Councillor to the Kesinga N.A.C. After the peti¬tioner succeeded in his election as Councillor from a general seat, thereafter he sought to contest the election for “Chairper¬son” of the said NAC, which is reserved for “OBC candidate” on the basis of a caste certificate submitted by him, claiming to be an OBC candidate. It is further averred in the writ petition that the petitioner has duly elected as ‘Chairperson’ of the NAC and has been declared as such by Opposite Party No.2-Election Offi¬cer. The petitioner asserts that Opposite Party No.1 (Election Petitioner) who has been elected as Councillor from Ward No.5 of Kesinga NAC had contested for the post of ‘Chairperson’ but on losing the election, filed an election petition before the learned District Judge/Tribunal, which is the subject matter of challenge on the ground of maintainability.

5. In course of hearing of the present writ application, since an important question of law arose for consideration, request was made to the learned Advocate General to appear in the matter in order to assist the Court and in particular, to ascer¬tain as to whether an election petition before the District Judge/Tribunal, challenge to an election of Chairperson of the N.A.C. was at all maintainable or not and further, if such elec¬tion petition was held to be not maintainable in law, then, what remedy was available to a person who intends to question or chal¬lenge the election of a Chairperson of the Municipal Body.

6. Sri A. Mohanty, learned Advocate General appearing on behalf of the State submitted that on a plain reading of Section 18 of the Orissa Municipal Act (in short the ‘Act’) as well as Article 243-ZG of the Constitution of India, only those election petitions seeking to challenge the election of a Councillor to a Municipality could be brought before the District Judge/Election Tribunal under Sections 18 and 21 of the Act. For the purpose of convenience, the relevant Article and Sections of the Municipal Act, 1950 are quoted hereunder :

“Article 243 ZG.- Bar to interference by Courts in electoral matters- Notwithstanding anything in this Constitution.

(a) the validity of any law relating to delimitation of con¬stituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 243 ZF shall not be called in question in any Court;

(b) no election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.”

“18. Power to question election by petition - (1) The election of any person as a Councillor may be questioned p