JUDGMENT : B.N. Mahapatra, J. - In this writ petition challenge has been made to the judgment and order dated 11-03-2010 passed by learned District Judge, Dhenkanal in Election Petition No. 193 of 2008 filed under the Orissa Municipal Act, 1950 (for short, 'the Act') by which the learned District Judge, inter alia, held that the third child of the writ Petitioner was born much after the cut off date as provided u/s 16(1)(xvii) of the Act and as such the Petitioner was disqualified from contesting the election for the post of Councillor of Ward No. 6 of Angul Municipality and his election as Councillor from said Ward was invalid. 2. Shorn of unnecessary details, the facts and circumstances giving rise to the present writ petition are that the Petitioner was elected as Councillor from Ward No. 6 of Angul Muncipality in the year 2008. In the said election, the Petitioner obtained 252 votes whereas O.P. Nos. 1 and 2, who were also contesting the election from the same Ward, obtained 176 and 96 votes respectively. Opp. Party No. 1 filed Election Petition No. 193 of 2008 in the Court of District Judge, Dhenkanal to declare the election of the present writ Petitioner invalid on the ground that u/s 16(1)(xvii) of the Act the Petitioner was disqualified to contest the election inasmuch as his third child was born after the cut off date. According to the writ Petitioner, the third child was born to him much prior to the cut off date as provided under the said Section of the Act and therefore there is no occasion to question his election under that provision. Proforma O.P. No. 3 Sub-Collector-cum-Election Officer in his show cause notice has stated that O.P. No. 1 did not raise any objection at the time of scrutiny of nomination papers that the date of birth of third child of the present Petitioner was after the cut off date. On the above rival pleadings, the learned District Judge framed as many as five issues. While the matter was pending before the District Judge, the present Petitioner filed an application u/s 24 of the CPC to transfer the case from the Court of District Judge, Dhenkanal to the Court of Addl. District Judge, Angul, as both parties were residing within the jurisdiction of Addl. District Judge, Angul. The said application was rejected by the learned District Judge, Dhenkanal. District Judge, Angul, as both parties were residing within the jurisdiction of Addl. District Judge, Angul. The said application was rejected by the learned District Judge, Dhenkanal. Being aggrieved by the said order of rejection, the writ Petitioner filed W.P. (C) No. 5736 of 2009 before this Court challenging the said order of rejection. This Court by its order dated 17-08-2009 dismissed the aforesaid writ petition. Thereafter, the writ Petitioner filed Writ Appeal No. 183 of 2009 challenging the order of the learned Single Judge. While the said Writ Appeal was pending, the learned District Judge passed the impugned judgment dated 11-03-2010 in Election Petition No. 193 of 2008 and declared election of the present Petitioner as Councillor of Ward No. 6 of Angul Municipality invalid on the ground that a third child was born to the Petitioner much after the cut off date. Hence, the present writ petition. 3. Mr. S.P. Mishra, learned Senior Advocate appearing on behalf of the writ Petitioner submits that the impugned judgment is vitiated for non-compliance of the principles of natural justice as the same has been passed without affording sufficient opportunity to the Petitioner to adduce evidence in support of his claim that his third child was born on 7-3-1994. Learned District Judge also failed to appreciate the facts of the case and evidence available on record in its proper perspective and thereby arrived at an erroneous conclusion which is not supported by the materials available on record. Referring to Sections 8, 17, 41, 49 and 54 of the Act, he submitted that Section 16(1)(xvii) of the Act is ultra vires the Constitution for making an unreasonable classification among the Councillors of a Municipality. The disqualification, as provided u/s 16(1)(xvii) of the Act, is only applicable to elected Councillor and it does not have any application so far as nominatd Councillor is concerned. The said disqualification does not satisfy the twin test of reasonable classification viz., (a) the classification must be founded on an intelligible differentia, which means distinguished persons or things that are grouped together from others left out of the group, and (b) the differentia must have a rational relation to the object sought to be achieved by the Act. The said disqualification does not satisfy the twin test of reasonable classification viz., (a) the classification must be founded on an intelligible differentia, which means distinguished persons or things that are grouped together from others left out of the group, and (b) the differentia must have a rational relation to the object sought to be achieved by the Act. Since Section 16(1)(xvii) of the Act is ultra vires the Constitution of India, learned District Judge applying the said section committed error in declaring the election of the Petitioner as Councillor from Ward No. 6 of Angul Municipality invalid. There is no authoritative pronouncement of the Apex Court or this Court relating to the constitutionality of the provisions of Section 16(1)(xvii) of the Act. He further submitted that the learned District Judge should have referred the matter u/s 113 of the CPC to this Court for opinion on the constitutionality of the said provision pending disposal of the Election Petition. 4. Mr. B. Routray, learned Senior Advocate appearing for O.P. No. 1 submitted that the writ Petitioner has not specifically pleaded either in the written statement filed before the District Judge or in the writ petition stating that the actual date of birth of his third child was 07-03-1994. He has not raised any objection to the original copy of the information obtained from the office of the District Inspector of Schools, Angul vide No. 2993 dated 23-09-2008 and original declaration of the Headmaster of Huluringha High School, Angul regarding date of birth of the third child. The Petitioner has also not challenged genuineness of the certificates issued by different authorities certifying the dates of birth of his children produced before the learned District Judge and the competency of those authorities. He has also not taken any ground before the learned District Judge challenging the constitutional validity of Section 16(1)(xvii) and for the first time he is taking such a stand before this Court which is not tenable. 5. Mr. R.K. Mohapatra, learned Government Advocate submitted that since the Petitioner has not impleaded the State Government as a party and served a copy of the writ application on the learned Advocate General, the writ petition is not maintainable with regard to challenge to the constitutional validity of Section 16(1)(xvii) of the Act. 6. 5. Mr. R.K. Mohapatra, learned Government Advocate submitted that since the Petitioner has not impleaded the State Government as a party and served a copy of the writ application on the learned Advocate General, the writ petition is not maintainable with regard to challenge to the constitutional validity of Section 16(1)(xvii) of the Act. 6. On the rival contentions of the parties, the questions that fall for consideration by this Court are as under: i. Whether the impugned judgment passed by the learned District Judge is vitiated for violation of the principles of natural justice on the ground that the District Judge has not afforded reasonable opportunity to the present Petitioner to prove the date of birth of his third child as 07-03-1994? ii. Whether in the facts and circumstances of the case for the first time the Petitioner can be permitted to raise the point of constitutionality of Section 16(1)(xvii) of the Act, which he has not raised before the District Judge? 7. Before dealing with the above questions, it is necessary to know what is "cut off date" as the only dispute is whether the third child of the writ Petitioner was born after the cut off date provided u/s 16(1)(xvii) of the Act or prior to the said cut off date. Section 16 of the Act provides disqualification of candidates. The relevant provisions of Section 16 of the Act are reproduced below: 16. Disqualification of Candidates for election -- (1) No person shall be qualified for election (as a Councillor) of a Municipality if such person -- xx xx xx xx (xvii) has more than two children Provided that the disqualification under Clause (xvii) shall not apply to a person who has more than two children on the date of commencement of the Orissa Municipal (Amendment) Act, 1994, or as the case may be, within a period of one year of such commencement, unless he begets an additional child after the said period of one year. Section 16(1)(xvii) was inserted in the Act vide Orissa Municipal (Amendment) Act, 1994 which came into force on 25-05-1994. Clause (xvii) provides that a person is disqualified to contest an election as a Councillor if he has more than two children. Section 16(1)(xvii) was inserted in the Act vide Orissa Municipal (Amendment) Act, 1994 which came into force on 25-05-1994. Clause (xvii) provides that a person is disqualified to contest an election as a Councillor if he has more than two children. Further, Section 16(1)(xvii) provides that disqualification under Clause (xvii) does not apply to a person who has more than two children on the date of commencement of Orissa Municipal (Amendment) Act, 1994, or as the case may be, within a period of one year of such commencement, unless he begets an additional child after the said period of one year. From the above provision, it is clear that if a child is born to a person after the cut off date, i.e. 25-05-1995 then the said person is not entitled to contest in the election and get elected to the post of Councillor of a Municipality. 8. Now to deal with the first question, it is necessary to know the pleadings of the parties made in the Election Petition (Annexure-1) and the Written Statement (Annexure 2) filed before the learned District Judge. In ground No. (iii) taken in the Election Petition, it is pleaded that the third child of the Respondent No. 1 (writ Petitioner) had taken birth on 07-11-1997, i.e. after the cut off date as provided in the Amendment Act, 1994. In the Written Statement filed by the writ Petitioner (Respondent No. 1 before the District Judge), there is no specific denial to the above pleading, i.e. ground No. (iii) taken in Election petition. In the written statement, no where the writ Petitioner has pleaded that his third child was born on 07-03-1994. Moreover, in the Election Petition, present O.P. No. 1 has enclosed documents issued by the competent authorities certifying the date of birth of Biswajit Mukhi, the third child of the present Petitioner. In the written statement also the genuineness of the documents and the competency of the authority in issuing such documents was not challenged/questioned. Relying on Exts. Moreover, in the Election Petition, present O.P. No. 1 has enclosed documents issued by the competent authorities certifying the date of birth of Biswajit Mukhi, the third child of the present Petitioner. In the written statement also the genuineness of the documents and the competency of the authority in issuing such documents was not challenged/questioned. Relying on Exts. 6, 7, 11 and 12, which are documents relating to date of birth of the third child of the writ Petitioner and issued by different competent authorities and the evidence of election Petitioner (present O.P. No. 1), who was examined as PW-1 and stated that the third child of the Petitioner ad taken birth on 07-11-1997, the learned District Judge came to the conclusion that the date of birth of Biswajit Mukhi, the third child of the present Petitioner was either 07-11-1996 or 07-11-1997 which is much after the cut off date, as provided in Section 16(1)(xvii) of the Act. Admittedly, the writ Petitioner, who was Respondent No. 1, filed his written statement before the learned District Judge in the Election Petition. But, he had chosen not to cross-examine PW-1 and challenge the documents filed by the election Petitioner or to adduce any evidence on his behalf in support of his contention regarding date of birth of his third child before the learned District Judge. Even though the writ appeal was pending as contended by the writ Petitioner during pendency of the election petition before the learned District Judge no interim order was passed by this Court in the writ appeal staying further proceeding in Election Petition No. 193 of 2008 pending before the learned District Judge. For the best reason known to the writ Petitioner, he chose not to contest the Election Petition. Now, he cannot be permitted to take advantage of his own inaction. In the circumstances, it cannot be said that the learned District Judge has not afforded reasonable opportunity to the writ Petitioner to prove the date of birth of his third child as 07-03-1994. In fact, though opportunity was given to the writ Petitioner, consciously he chose not to contest the Election Petition. 9. Undisputedly, in the writ petition, the Petitioner has not specifically pleaded to the effect that his third child was born on 07-03-1994. In fact, though opportunity was given to the writ Petitioner, consciously he chose not to contest the Election Petition. 9. Undisputedly, in the writ petition, the Petitioner has not specifically pleaded to the effect that his third child was born on 07-03-1994. The writ Petitioner has also not adduced any evidence before this Court in support of his contention that the date of birth of his third child is 07-03-1994. Law is well settled that a party has to plead the case and produce/adduce sufficient evidence to substantiate his stand taken in the petition and, in case the pleadings are not complete, the Court is under no obligation to entertain the plea. In Bharat Singh and Others Vs. State of Haryana and Others the Supreme Court has observed as under: In our opinion, when a point, which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ Petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the Respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the Court will not entertain the point. There is a distinction between a pleading under the CPC and a writ petition or a counter-affidavit. While in a pleading, i.e. a plaint or written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. (Also see Naresh K. Aggarwala and Co. Vs. Canbank Financial Services Ltd. and Another, . As stated above, since there is no specific pleading in the writ petition that the third child of the Petitioner was born on 07-03-1994 much less any evidence to that effect is adduced before this Court we are unable to entertain such plea. 10. So far the second question is concerned, it is not in dispute that the Petitioner has not challenged the constitutional validity of Section 16(1)(xvii) before the learned District Judge. 10. So far the second question is concerned, it is not in dispute that the Petitioner has not challenged the constitutional validity of Section 16(1)(xvii) before the learned District Judge. Had the said question been raised before the learned District Judge, he would have been satisfied that the case pending before him involves a question as to validity of the certain provision of the Orissa Municipal Act, determination of which was necessary for disposal of the case and the said provision has not been declared by this Court or by the Supreme Court, he would have referred the matter u/s 113 of the CPC to this Court for opinion. But in the instant case, the constitutional validity of Section 16(1)(xvii) is raised before this Court for the first time. The writ Petitioner has also not arrayed the State Government as a party and no copy of the writ application has been served on learned) Advocate General. This adds vulnerability to the case of the writ Petitioner. Moreover, the Apex Court in Javed and Others Vs. State of Haryana and Others, held that Section 175(1)(q) of Haryana Panchayatiraj Act (11 of 1994), which prescribes disqualification of persons having more than two children from holding certain elective offices of Panchayat does not suffer from vice of arbitrary classification. The classification made also has nexus with the object of popularizing family planning. The classification is well-defined and well-perceptible. Persons having more than two living children are clearly distinguishable from persons having not more than two living children. The two constitute two different classes and classification is founded on an intelligible differentia clearly distinguishing one from the other. One of the Objects sought to be achieved by the legislation is popularizing the family welfare/family planning programme. The disqualification enacted by the provision seeks to achieve the objective by creating a disincentive. The classification does not suffer from any arbitrariness. The number of children, viz. two is based on legislative wisdom. It could have been more or less. Fixing the number of children is a matter of policy decision of the Executive which is not open to judicial scrutiny. The classification does not suffer from any arbitrariness. The number of children, viz. two is based on legislative wisdom. It could have been more or less. Fixing the number of children is a matter of policy decision of the Executive which is not open to judicial scrutiny. In the present case, Section 8 of the Act provides two different class of Councillors, i.e. (a) Councillors elected directly from every Ward within the Municipal area; and (b) a person having special knowledge or experience in Municipal administration as may be nominated by the State Government. Said Section further provides that persons nominated by the State Government shall not have the right to vote at any meeting of the Municipality but shall have the right to attend every meeting thereof except the meetings convened under Sections 47, 49 and 54. These two categories of Councillors constitute two different classes and the classification is founded on intelligible differentia clearly distinguishing one from the other. Thus, the classification does not suffer from arbitrariness or discrimination. In view of the above, the second ground of challenge also cannot be entertained. 11. In the result, the writ petition is dismissed. No order as to cost. V. Gopala Gowda, C.J. I agree. Final Result : Dismissed