The main legal point established in the judgment is the importance of properly constituted election petitions and the jurisdiction of the District Judge as the Election Tribunal under the Orissa Zilla Parishad Act, 1991 and the Orissa Panchyat Samiti Act, 1959.

JUDGMENT :

Dr. B.R. Sarangi, J.

The appellant, being the writ petitioner, has filed this intra-Court appeal against the order dated 29.04.2016 passed by the learned Single Judge of this Court in W.P.(C) No. 6657 of 2016 confirming the order dated 08.04.2016 passed by the learned District Judge-cum- Election Tribunal, Puri, rejecting the application filed by the appellant under Order 6 Rule 16 and Order 7 Rule 11 of C.P.C in Election Petition No. 1 of 2012.

2. The factual matrix of the case, in hand, is that the appellant has been elected as a Member of Zilla Parishad, Puri representing Satyabadi-3 Constituency No. 33 pursuant to the election held on 13.02.2012 where the respondents were contesting her in the said election. The election of the appellant has been challenged by respondent no.1 by raising election dispute under Section 32 of the Orissa Zilla Parishad Act, 1991 before learned Election Tribunal –cum- District Judge, Puri on the ground that the caste certificate showing that she belongs to OBC category is not a genuine one, thereby acceptance of nomination and declaring the appellant as returned candidate is void.

3. It is admitted that evidence from both the sides have already been closed and the matter has been posted for argument and it is also stated at the bar that on completion of such argument the matter has been posted to 17.05.2016 for delivery of judgment by the Election Tribunal –cum- District Judge, Puri in Election Petition No. 1 of 2012. When the matter was posted for argument, the appellant filed three separate applications, one to recall P.W. 3 for further cross-examination, second to call for the case record in Misc. Case No. 162 of 2012 from the Tahasildar, Satyabadi and for time of examination of respondent no.1 and third petition under Order 6 Rule 16 read with Order 7 Rule 11 of the CPC to reject the election petition as no cause of action has arisen. The Election Tribunal –cum- District Judge, Puri on consideration of the application filed under Order 6 Rule 16 read with Order 7 Rule 11 of C.P.C held that the election petition as a whole, if read together, make out all the facts necessary to the satisfaction of the Tribunal regarding the cause of action for challenging the election of the appellant as she does not belong to the caste for which the seat is reserved and accordingly, rejected the application filed under Order 7 Rule 11 of C.P.C on the ground that it lacks merit. Assailing the said order, the appellant preferred writ petition bearing W.P.(C) No. 6656 of 2016 before this Court and the learned Single Judge vide impugned order dated 29.04.2016 dismissed the writ petition holding that the appellant shall come with the expression that such person is disqualified for election. Hence this appeal.

4. Mr. U.K. Samal, learned counsel for the appellant urged that Section 33 of the Orissa Panchyat Samiti Act, 1959 provides for disqualification of a member. The caste certificate, on the basis of which she was declared elected, cannot be challenged as a fraudulent one to nullify the effect of election as it does not cover election to be void under Section 44-L of the said Act, which stipulates that improper acceptance of nomination cannot be a ground for declaring an election void. More particularly, Section 44-L(1)(c) of the said Act provides that the Civil Judge (Senior Division) shall declare the election of a returned candidate void, if he is of the opinion that such person is disqualified for election under the provision of this Act. Section 33 of the Orissa Zilla Parishad Act deals with disqualification for becoming a member and continuing as member. Production of caste certificate, which is not genuine, is not a disqualification mentioned under the said provision and therefore, he seeks for setting aside of the impugned order dated 29.04.2016 passed by the learned Single Judge. To substantiate his contention, he has relied upon the judgments in Jyoti Basu and others v. Debi Ghosal and others, (