Case No: Civil Petition No. 140 of 1985
Judge: F.K.M.A. Munim,
Court: Appellate Division ,,
Advocate: Mr. Md. Aftab Hossain,Syed Ishtiaq Ahmed,Mr. T. H. Khan,Mr. Fazlul Karim,Mr. M Nurullah,,
Citation: 38 DLR (AD) (1986) 172
Case Year: 1986
Appellant: A.K.M. Ruhul Amin
Respondent: District Judge and Appellate Election Tribunal, Bhola and others
Subject: Interpretation of Statute, Election Matter, Words and Phrases,
Delivery Date: 1986-7-23
F.K.M.A. Munim CJ
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
A.K.M. Ruhul Amin
.................Appellant (In C. A. No 51 of 1985 with CP No. 140 of 1985)
District Judge and Appellate Election Tribunal, Bhola and others ...Respondents
Abul Kalam Azad
………………..Appellant (In C. A. No. 52 of 1985)
Nur Hossain Howlader and others
……………………...Appeallant (In C. A. No 53 of 1985)
Shahjahan Chowdhury and others
Mohammad Hossain Mi Sarker
……………………….Appellant (In C. A. No. 54 of 1985)
Mohammad Mobarak Ali and others
July 23, 1986
The Constitution of Bangladesh, 1972,
The Local Government (Union Parishad) Ordinance, 1983 (LI of 1983)
The General Clauses Act, 1896, “District Judge”
Interpretation of Statutes
District Judge as used in Article 29(4) of the Local Government (Union Parishad) Ordinance does not mean persona designate that is, his private or personal capacity but clearly indicates his office, that is, District Court of which he is the Presiding Judge. Court of District Judge is subject to both appellate and revisional jurisdiction of the High Court Division……(42)
In exercising revisional powers under section 115 of the Code of Civil Procedure against the decision of any election appellate Tribunal, the High Court Division can grant any relief to which any aggrieved party is entitled to under the Ordinance…………..(42)
The District Judge being a “Persona designata” jurisdiction of the High Court Division under article 102 of the Constitution can be invoked in appropriate circumstances involving such matters under the Ordinance……….(38)
Cases Referred to-
Colquhoun Vs. Brooks ( 1889) 14 App. 493; Canada Sugar Refining Co. Vs K. (1898) A.I. 731; K. K. Shrivastava Vs. Bhupendra Kumar AIR 1977 SC 1703 ; Murree Brewery Co. Vs. Pakistan, PLD 1972 S.C. 27 ; Md. Husain Munir vs. Sikandar, PLD 1974 SC 139 ; 9 ILR (1827) 21 Bom. 279; AIR 1926 Bom. 344; Turabali vs. Soraj AIR 1944 Nag. 288; Sultan Ali Nur Hussain, AIR 1949 Lab 131; Azizul Huq vs. Sm. Hanif Ltd. (1955) 7 DLR 287; IDBP (Bangladesh) Vs. M/s. Master Industries (1974) 26 DLR 157; Chera Dangi Mela Committee vs. Md. Yusuf Ali (1977—78) BSCR 254 AD; Amir Sultan vs. Md. K. Alam. (1977) 29 DLR 295 (SC).
Syed Ishtiaq Ahmed, Senior Advocate (Shah Md. Sharif & Mahmudul Islam, Advocates with him) instructed by Md. Wahidullah, Advocate-on-Record—For the appellant (In C. A. No. 51 of 1985 & C.P. No. 140 of 1985).
T. H. Khan, Senior Advocate (M. A. Wahhab Mian, Md. Abdul Mannan & Khan Saifur Rahman, Advocates with him) instructed by Sharifuddin Chaklader & Md. Wahidullah, Advocate-on- Records. —For the appellant (In C. A. Nos. 52, 53 & respondent in C.A. No. 54 of 1985).
Abdul Malek, Senior Advocate instructed by Sharfuddin Chaklader, Advocate-on-Record—For the appellant (In C A. No. 54 of 1985).
Fazlul Karim, Senior Advocate (Abdur Rahman Biswas, Advocate with him) instructed by Md. Aftab Hossain, Advocate-on-Record—For the respondent No. 3 (In C. A. No. 51 of 1985 & respondent No. 1 in CA. No. 52 of 1985).
Md Aftab Hossain, Advocate-on-Record— For the respondent No. 1 (In C. A. 53 of 1985).
M. Nurullah, Attorney-General, instructed by B Hossain, Advocate-on-Record—For the respondent Nos. 1 & 2 (In C A. No. 51 of 1985), respondent Nos. 40 & 41 (In C.A. No. 52 of 1985), respondent Nos. 13 & 14 (In C. A. 53 of 1985), respondent No. 5 (In C. A. 54 of 1985).
Civil Appeal No. 51-54 of 1985 with Civil Petition No. 140 of 1985
(From the Judgment and Orders dated 16.5.85. 21.5.85, 25.4.85 passed by the High Court Division, Dhaka and Rangpur in Writ Petition Nos. 1, 13, 109 of 1985 and Civil Revision No. 105 of 1985 respectively.)
Fazle Munim CJ.
In all these appeals the common question of law which has arisen for determination is what procedure is available to a person for challenging the order passed by the District Judge under Article 29 (4) of the Local Government (Union Parishads Ordinance, 1983. In other words, whether against such an order revision under section 115 of the Code of Civil Procedure would lie to High Court Division or an application under Article 102 of the Constitution is to be preferred. Differences of opinion among the several Benches of the High Court Division, as it would appear from the judgments in these appeals, have led to confusion among the litigant public which required uniform interpretation of law on this point.
2. Before the amendment of the Local Government (Union Parishads) Ordinance, 1983 (Ordinance No. LI of 1983) the hearing of an election petition was governed under the following provisions:
(2) Any candidate may make an election petition challenging the election at which he was a candidate.
(3) An election petition shall be presented, in such manner as may be prescribed to the Election Tribunal appointed under section 27.
27. Appointment of Tribunal.- (1) for the trial of election petitions, the Election Commission shall, by notification in the official Gazette, appoint a judicial officer to be an Election Tribunal for such area as may be specified in the notification.
(2) Where the person constituting an Election Tribunal is succeeded by another, the trial of a petition shall continue before the person so succeeding and any evidence already recorded shall remain upon the record and it shall not be necessary to re-examine the witnesses who have already been examined and discharged.
28. Power to transfer election petitions.- The Election Commission, either of its own motion or on an application made in this behalf by any of the parties, may, at any stage, transfer an election petition from one Election Tribunal to another Election Tribunal, and the Tribunal to which the petition is so transferred shall proceed with the trial of the petition from the stage at which it was transferred:
Provided that the Tribunal to which an election petition is so transferred may, if it thinks fit, recall and examine any of the witnesses already examined.
29. Trial of election petitions.-(1) An Election Tribunal shall, upon receipt of an election petition, gives notice thereof to all the contesting candidates at the section to which the petition relates.
(2) Subject to any rules made in this behalf, the Election Tribunal shall, after giving the contesting candidates an opportunity of being heard and taking such evidence as may be produced before it, make such orders as it may think fit.
(3) The decision of the Election Tribunal on an election petition shall be final and shall not be called in question in or before any court."
3. These provisions, as will be noted, did not provide any appeal or revision against the decision of an Election Tribunal. The omission or lack of a forum where an appeal against the decision of a Tribunal could be challenged was removed by providing an appeal to the District Judge by the amending Ordinance No. XLIV of 1984. Thus, section 29 of this Ordinance was amended by replacing old sub-section 3 by new sub-section (3) and introducing new sub-section (4). These sub-sections are as follows:
(4) Any person aggrieved by a decision of the Election Tribunal may, within thirty days of the announcement of the decision, prefer an appeal to the District Judge within whose jurisdiction the election in dispute was held, and the decision of the District Judge on such appeal shall be final:
Provided that in the case of a decision announced before the commencement of the Local Government (Union Parishads) (Amendment) Ordinance, 1984 (XLIV of 1984), such appeal may be preferred within thirty days of such commencement."
4. To determine the question whether an application under Article 102 of the Constitution or an application under section 115 of the Code of Civil Procedure is available, it may first be seen whether there is any indication in the Ordinance as to solution of this problem. This kind of controversy, in the absence of such indention in the law concerned, can be reseed by the only means open to us namely, by considering the Act (in which such expression has been used) as a whole. The conclusion depends upon the decision regarding the nature of District Judge’s function, that is, whether the District Judge, in passing the impugned order, was exercising powers of a Court or acting as a persona designata? If he was exercising the powers of a Court in deciding a dispute he was found to be subordinate to the High Court but if he was acting in his personal capacity that is, as a persona designata, he was not amenable to the jurisdiction of the High Court. In the former case, that is, when the District Judge is exercising the function of a Court, revision under section 115 of tile Code of Civil Procedure would lie against his order, but if he was not acting as a Court any such application can be preferred.
A number of decisions on similar problems have been cited by the learned. Counsels who appeared in these appeal ranging themselves either for or against the broad issues involved as above mentioned.
5. Mr. M. Nurullah, Attorney General, referred to the following decisions: Azizul Huq Vs. Sm, Hanif Ltd, (1955)7 DLR 287: IDBP (Bangladesh) Vs. M/s. Master Industries, (1974 26 DLR 157 ; Muhammad Hosain Munir Vs. Sikandar, PLD 1974 SC 139; The Murree Brewery Co. Ltd Vs. Pakistan through the Secretary to Govt. of Pakistan, Works Division and 2 others, PLD 1972 SC 27; K. K. Shrivastava V Bhupendra Kumar Jain, AIR 1977 SC 1703 ; P.V. Somaraju v. Munsif-Magistrate, Bhimavaram, AIR 1968 AP 28.
6. This list of cases was supplemented by the following decisions cited by Mr. T. H. Khan: Amir Sultan Vs Md. K Alam, (1977) 29 DLR 295 AD; Maung Than V. No Pin, AIR 1934 PC 81. Hemshing V. Basant , AIR 1936 PC 93 ; Addikappa V. Chandrasekhara, AIR 948 PC 12 ; Shamsul Huq Sikder Vs Election Tribunal, (1975) 27 DLR 388; Md. Amjad Hossain Howlader V. Chief Election Commissioner, Govt. of the People's Republic of Bangladesh, (1975) 27 DLR 373.
7. As against these decisions, Syed Istiaq Ahmed cited several other decisions, namely, Balaji Sakharam Gurab Vs. Merwanji Now Roji, ILR (1897) 21 Bom 279; Antia Gangadhar Ba-purao Gadre Vs. Hubi Municipality, AIR 1926 Bom 344; Jagmohan Surujmal Mar waqf Vs. Venkatesh Gopal Ranade, AIR 1933 Bom 105; Turabali Vs. Sorabji AIR 1944 Wag 28 8, Sultan Ali Nanghiana Vs. Nur Hussain, AIR 1949 Lah 131.
8. From the decision cited by the learned counsels is supper, of their respective contention, in will appear that ID solving the problem whether a person who is indicated in a statute not by name bus by his official design nation is a persona designata, i.e., individual, or a Courts, the learned Judges have applied different tests.
9. Consequently, conclusions reached by them have not always been uniform. Such differences arose not merely from the application of different tests but are referable to the differences in the statutes concerned which they were construing for the purpose of deciding the question. It should well be remembered that while interpreting statutes Judges are not expected to do not apply pre-conceived notions nor can they be expected to arrive at the conclusion by considering the provisions concerned in an isolated or piecemeal fashion. While construing as statute, its provisions should be considered as a whole, beaming in mind its object and purpose
10. In Colquhoun vs. Brooks (1889) 14 App. Case 491 (496). Lord Herscheel said “It is beyond dispute, too, that we are entitled, and indeed, bound, when construing the terms of any provision found in a statute, to consider any other parts of the Act which throw light on the intention of the lecture, and which may serve to show that the particular provision ought not to be construed as it would be alone and apart from he rest of the Act." And Lord Davey in Canada Sugar refining Co. vs. R. (1898) 4.C. 735 (74) said: "Every clause of a statute should be construed with reference to the context and the other clauses of the Act, so far as possible, to make a consistent enactment on the whole statute or series of status relating to the subject-matter."
11. Where a person is mentioned in the statute not by name hut by his official designation, for determining the question whether the legislature intended to single him out as an individual (his designation being merely an additional description) or court provided, of course, he is a judicial officer, some of these tests may now be considered. Before considering the tests we may refer to the meaning of the expression 'persona designata'.
12. What is meant by the expression 'persona designata' is available from its definition in Aiyar's Law Lexicon of British India:
13. Having referred to this definition the test, as has been applied in Somaraju vs. Munsif-Magistrate, AIR 1968 AP 22, "is to find out whether the person who is named as an individual or is designated by his office is the person who is selected to exercise the pouter by excluding others from the exercise of such power. If the answer is in the affirmative, then such period becomes a 'persona designata'.
The expression 'persona designata', is may be mentioned, has not been used by the legislature in any of the statutes considered in the cases cited before us. It has been employed by the courts to state the problem in simpler terms.
14. Mr. M. Nurullah, Attorney-General, Mr.T. H. Khan and Mr. Fazlul Karim supported the view that revision lies against an order of the District Judge passed under Article 29(4) of the Ordinance since, in their opinion, the District Judge is exercising his powers as a Court, that is, Court of District Judge, which is subordinate to the High Court Davison.
15. On the other hand, Syed Ishtiaq Ahmed gave reason in support of the contrary view, that if, no revision under section 115 C.P.C. lies against his decision. He contended that since the expression ''District Court" has been used in Article 29(4) but resort was taken to the express in ''District Judge" in its place, the concept of his being subordinate to the High Court Division has been negatived He at first leveled his criticism against the draftsman whose lack of care in drafting the particular piece of legislation led to this unnecessary confusion. Since distinction exists between the two expressions, namely, "District Judge" and "District Court", if the draftsman had, in drafting the provisions of Article 29(4), borne its implications in mind, such confusion would not have occurred. If it was meant that the "District Judge" was to exercise the power of a Court, he should have used the expression "District Court" instead of "District Judge", but his carelessness or indifference has, it seemed, resulted in equating the one with other and thus created the controversy.
16. He asserted that the expression "District Judge" used in section 29 (4) does not mean Court, but even if the expression means court, he in functioning an the election appellate authority does not become a court to as to be subordinate to the High Court Division which is empowered to exercise revisional jurisdiction in respect of decisions of a court subordinate to in. It needs no mention that District Judge when acting as a Court becomes subordinate to it. He referred to the provisions of section 3 of the Civil Procedure Code which provides:
17. He mentioned that since, in these provisions, this reference is not to District Judge but District Court, which had been made subordinate to the High Court Division, and it would, therefore, seem that District Judge has not been made subordinate to it. Further, even if it can be said that the District Judge in sub-section (4) of section 29 means District Court, he, while acting as an election appellate authority, cannot be a Civil Court so as to become subordinate to High Court Division presumably the learned counsel says this it i reference to the definition of "District Judge" in section 21 of the General Clauses Act. According to him, District Judge, as used in tie aforesaid sub-section, is, therefore, neither a Court nor a Court subordinate to the High Court Division, it is difficult to understand why the District Judge acting as a election appellate authority can not be held to exercise the powers in a Court, lo this connection reference may be made to a few provisions of law defining a "District", "District Court", "Judge" and "District Judge".
Thus, in section 2 of the Code of Civil Procedure, "District", ''District Court" ''Judge" are defined as follows:
“Judge" means the presiding officer of a Civil Court".
18. In the General Clauses Act "District Judge" is defined to mean "the Judge of a principal Civil Court of original Jurisdiction but shall not include the High Court Division in the exercise of its ordinary or extraordinary Civil jurisdiction."
19. In section 21 of the Civil Courts Act appeals to a District Judge have been provided from a decree or order of a Subordinate Judge or in some cases from that of a Munsif. Provisions of section 21 are as follows:
(a) to the District Judge where the value of the original suit in which or in any proceeding arising out of which the decree or order was made did not exceed twenty thousand Taka,
(2) Save as aforesaid, an appeal from a decree or order of a Munsif shall lie to the District Judge".
20. In this connection Mr. Syed Ishtiaq Ahmed referred to a few Acts which instead of using the expression “District Judge" employed the expression "District Court" in provisions relevant for our consideration. Even so the function of such court has been exercised by no person other than the District Judge. These Acts are for example, the Patents and Designs Act Insolvency Act and Trade Marks Act. Apart from what has been decided In various cases as to the meaning of the expression "District Judge" or “District Court" tired in the Acts concerned, which appears to depend on reading the provisions of the entire act and its context, the finding as to whether the expression "District Judge" used in Article 29(4) of the Ordinance mean the District Court cannot be determined with reference to merely any one of the two sets of decisions presented for oar consideration in rapport of respective cases, though understandably we may look forward to receiving the required guidance from them.
21. One of the contentions raised during the hearing of these appeals was that as no further appeal has been provided against the decision of the District Judge, a party aggrieved by his decision could Invoke the Constitutional jurisdiction of the High Court Division under Article 102 of the Constitution and not by invoking its revisional jurisdiction under section 115 C.P.C. In view of our willingness to accept the contention that the District Judge while acting under section 29(4) of the Ordinance is not a 'persona designata' but a court and as such subordinate to the High Court Division, revision against his order lies to the High Court Division, and that in deciding the revisional application under section 11 C P.C. the High Court Division is empowered to give fall and adequate relief without delay, this contention would seem to be of no importance, but even then, since the contention has been raised and also reference has been made to two decisions of the High Court Division where it has been held that the election tribunals were not courts and therefore an aggrieved party could maintain an application under Article 102 of the Constitution against its decision, it deserves some consideration. These two decisions are: Md. Amjad Hossain Howlader vs. Chief Election Commissioner, Govt. of the People’s Republic of Bangladesh, (1975) 27 DLR 373 and Shamsul Huq Sikder vs. Election Tribunal, 0975) 27 DLR 388. These decisions, as would appear from their contexts, have dealt with Election Tribunal and not Election Appellate Authority headed by a District Judge No appeal was provided against their decisions. Moreover, the provisions of the Ordinance which were considered in these cases and led the Court to conclude that from the decision of an Election Tribunal which is not a court, an application under Article 102 of the Constitution lies, would appear to be also, different These decisions have, therefore, no scope for application in the present case.
Independently of these reasoning, following cases cited by the learned Attorney-General would show in which circumstances a petition under Article 102 is maintainable.
22. Such circumstances do not, however, appear to exist in the present case as will appear from our discussions.
23. In K. K. Shrivastava Vs. Bhupendra Kumar Jain, AIR 1977 SC 1703 the validity of an election to the Bar Council of Madhya Pradesh was under challenge before an election tribunal (set up by rules framed under the Indian Advocates Act) where the election petition was pending. Two voters invoked the writ jurisdiction of the High Court challenging the validity of the election. Question-arose whether in the presence of an equally efficacious remedy it would be proper for the High Court to entertain a writ petition. While observing that under the writ jurisdiction High Court has wide powers, held 'hat there are equally well-settled limitations on the exercise of such power. The Court then observed:
24. In Murree Brewery Co. Vs, Pakistan, PLD 1972 SC 279 the appellant filed writ petition before the Lahore High Court challenging acquisition of certain properties by Capital Development Authority under the Ordinance, As the appellant had, without taking recourse to section 36 of the Ordinance concerned, invoked the writ jurisdiction of the High Court, it was contended that the writ petition was not maintainable as the appellant did not exhaust his remedy of appeal under the Ordinance. While recognising the rule that the High Court will not entertain a writ petition when other appropriate remedy is available, the Supreme Court at the same time observed that it is not a rule of law barring jurisdiction but a rule by which the High Court regulates its jurisdiction. The Court, however, observed as follows:-
25. In our opinion as the jurisdiction of High Court Division under section 115 C.P.C. is wide enough to entertain questions relating to legality of the judgment, or jurisdiction of the election appellate authority the question of exceptions to the general rule will not arise for consideration in the present case.
26. In Muhammad Hosain Munir Vs. Sikandar, PLD 1974 SC 139 while referring to the well-settled principle that where a Court or a tribunal has jurisdiction and it determines that question, it cannot be held that it acted illegally or with material irregularity merely because It came to an erroneous decision on a question of fact or even of law, Pakistan Supreme Court observed:
In this connection reference was also made to the provisions of sections 109 and 114 of the Constitution of Bangladesh. Article 109 provides:
Article 114 provides:
28. It was submitted that though section 115 of the Civil Procedure Code has empowered the High Court Division to exercise revisional powers over any court subordinate to it and legislature has been empowered by the Constitution to create courts subordinate to the Supreme Court and further the Constitution has empowered the High Court Division to exercise powers of superintendence and control over all courts subordinate to it. District Judge acting under section 29(4) of the Ordinance is not such a subordinate court.
29. Unless a court, though inferior to High Court Division, is not made subordinate of it, such a court does not become amenable to the jurisdiction of the. High Court Division under Section 115 C.P.C. In support of this contention the case of Mewar Textile Mills Vs. Girdhari Singh, AIR 1957 Raj was cited to show that the power of superintendence and control does not mean that an inferior court is invariably subordinate to the High Court Division within the meaning of the word "subordinate" as used in Article 109 so as to become antenna be to the Jurisdiction of the High Court Division under section 115 C.P.C. As the question for determination before us is not merely whether District Judge is a court but whether the expression “District Judge" as mentioned in Article 29(4) of the Ordinance means the court of District Judge the question of interpretation of the word "subordinate" as used in the aforesaid constitutional provides does not arise, because once it is held that the District Judge means the court of District Judge, and not an individual carrying the designation, his subordination to the High Court Division becomes obvious from the definition of (he relevant terms in several Acts referred to above.
30. In Sultan Ali Vs. Nur Hussein, AIR 1949 Lah 131, in deciding the question that the Election Petitions Tribunal constituted under the Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order, 1936 was not subordinate to High Court to as to be subject to its revisional powers under section 115 C.P.C. several tests were indicated by the court to determine whether a court is subordinate to the High Court within the meaning of section 115 C.P.C It was thus observed ;
31. Even, application of these tests it would appear that subordination of "District Judge" as occurs in section 29(4) of the Ordinance to High Court Division is beyond dispute as "District Judge” therein means court of District Judge. We now propose for refer to a few decisions of our Courts,
32. In Azizul Huq Vs. Sm. Hanif Ltd, (1955)7 DLR 287, the learned Judges prior to concluding that the District Judge in section 29 of the East Bengal Premises Rent Control Act meant the Court of the District Judge considered whether the Act conferred the power of transfer of appeals, even though that power of transfer Is restricted to such judicial officers as maybe appointed by the Government. Again, in construing the word ''final" which occurs in lection 29(6) of the Act it was held that the word means that the order of Rent Controller was, subject to the result of an appeal to the District Judge, final. It did not take away the Jurisdiction of the High Court to interfere with the District Judge's order under section 115 C.P.C. In coming to the above conclusion, a large number of decisions, it appears, were considered.
33. In considering whether the District Judge in entertaining and deciding a matter under section 39 of the Industrial Development Bank of Pakistan Ordinance acts as a Court of law or a "persona designata" the learned Judges considered a number of decisions, Here, the test applied was whether the legislature intended that the District Judge, in disposing of a proceeding under section 39 of the Ordinance should act judicially. It was held that as the District Judge was required to exercise judicial power, while acting under the aforesaid section, he was not a 'persona designata' but a Court Vide, IDBP (Bangladesh) Vs. M/s. Master Industries. (7974) 26 DLR 157.
34. It may be mentioned that since in deciding the question whether a person named by his official designation in a particular statute is exercising judicial power, it may become necessary to consider the characteristics of a Court, there being no definition of a Court in the Act concerned. Some of the attributes of a Court as considered in a few decisions were referred to in the aforesaid case.
35. Whether District Judge who constitutes the election appellant’s authority a 'persona designata’ or a Court may also, therefore, be decided by considering the nature of his functions. If the functions he would exercise as election appellate authority reveal attributes of a Court, he exercises judicial powers and as such, there would be no difficulty in saying that he is not a 'persona designata' but a court. Whether the intention of the legislature when it names the person by his official designation is one or the other has to be gathered from the words used in the Act itself and considering its objects and purpose and the functions of the person named by his official designation. In Chera Dangi Mela Committee vs. Mohammad Yusuf Ali, (1977-78) BSCR 254, AD, this Court while considering similar question, observed as follows:
36. In Amir Sultan vs. Md. K. Alam,(1977) 29 DLR 295 SC, question arose as to whether the expression "District Judge" used in section 43 of the Waqfs Ordinance, 1962 was a "persona designata" or court, it was observed:
For the correct determination of the answer consideration of the relevant provisions of the Ordinance will, therefore, be necessary. The provisions have been quoted above.
37. Right to be elected as member or chairman of a Union Parishad is undoubtedly a valuable right. The office of a member or a chairman which, though relate to local self-government, partakes of political nature. It carries no salary or remuneration but it has considerable influence and prestige in the constituency. Those who are elected as well as the ones, who are defeated, incur lot of expresses during the election campaign. Right to be elected as a Member Chairman of a Union Parishad has been conferred and regulated by the Ordinance. In addition to the fairly elaborate provisions of the Ordinance, detailed rules have also been framed. If there has been any violation of any provisions of the Ordinance or rules made thereunder a forum has been created for seeking remedy. Article 26 provides for filing an election petition challenging an election at which the petitioner was a candidate. This petition cannot be made to any person or body other than an Election Tribunal. Under Article 27 an Election Tribunal for a particular area is appointed by the Election Commission. Article 28 provides for transfer of an election petitioner from one tribunal to another tribunal by the Election Commission. Article 29 lays down the manner of holding the trial of an election petition including the hearing of an appeal from the decision of an Election Tribunal. Subject to appeal to the District Judge which is to be preferred within 30 days from the decision of the Election Tribunal its decision is final. Similarly, when an appeal has been filed and decided by the District Judge his decision is final.
38. As no other appeal or legal remedy has been provided by the Ordinance the question has arisen whether revision under section 115 of the Code of Civil Procedure lies or the constitutional remedy provided under Article 102 of the Constitution would be available against the order of the District Judge hearing and deciding such appeal. If the District Judge constitutes a court, which, as we have already seen, he does, he, in such capacity being subordinate to the High Court Division would be amenable to its jurisdiction. On the of bet hand, it has also been noticed by us that if he has not been intended to be a court by the law-making authority, the party aggrieved by his decision, he, being then a persona designata, can invoke the jurisdiction of the High Court Division under Article 102.
39. It is difficult to find fault with the draftsman when he used the expression "District Judge" instead of "District Court" if it was meant that he should exercise the powers of a Court. Such an use in legal, language, unless any contrary intention appears from the context is capable of no other meaning than meaning District Court. When a District Judge has been defined as "the Judge of a Principal Civil Court of original jurisdiction" by using this expression for constituting the election appellate tribunal and empowering to hear him an appeal from the decision of an Election Tribunal, it can not be intended that he is to act as a persona designata. While making such legislation the law-making authority is supposed to know the definition of such expression provided in existing Act. Also, from the very context in which it has been used, it is evident that District Judge is not to act in his private capacity or any capacity other than a Court. This would appear from the qualifying words "within whose Jurisdiction the election in dispute was held" used in Article 29(4) of the Ordinance. The qualifying words exclude any other, capacity which may be attributed to him, obviously enough, such jurisdiction means and refers to the jurisdiction he exercises while sitting as a court.
40. Also, on a reference to Rules 47 & 48 of the Union Parishads (Election) Rules, 1983, it would be seen that the Election Tribunal has been invested with the powers of a Civil Court and the procedure before it is to be the same as that of an Ordinary Civil Court.
Provided that the Tribunal may-
(a) make memorandum of the substance of the evidence of each witness as his examination proceeds unless it considers that there Is special reason for taking down the evidence of any witness In full; and
(b) refuse to examine a witness if it considers that his evidence is not material or that he has been called on a frivolous ground for the purpose of delaying the proceedings.
Rule 48. Power of the Tribunal—The Tribunal shall have all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908 (V of 1908), and shall be deemed to be a Civil Court within the meaning of sections 480 and 482 of the Code of Criminal Procedure, 1898 (V of 1898).
These provisions imply that if any appeal is provided against the decision of an Election Tribunal, it must lie to a person or authority higher than such Tribunal and at the tame time exercising the powers and functions of a Court, particularly when the Election Tribunals are manned by Munsif.
41. Finally, an election dispute relates to a right to office. The dispute is civil in nature. Judicial officers who decide civil disputes have been empowered to decide diction disputes. Procedure for holding the trial of such disputes is the same as that of an Ordinary, Civil Court being constituted by Munsifs and empowered to decide election disputes relating to right to office, after taking evidence and hearing arguments, both on facts and law, are definitely exercising Judicial powers, and not administrative powers, though it may be that they are constituted by the Election Commission, an executive authority.
42. Having regard to these considerations, it would appear that District Judge as used in Article 29(4) of the Ordinance does not mean persona designate that is, his private or personal capacity but clearly indicates his office, that is, District Court of which he is the Presiding Judge. Court of District Judge is subject to both appellate and revisional jurisdiction of High Court Division.
In exercising revisional powers under section 115 of the Code of Civil Procedure against the decision of any election appellate Tribunal, High Court Division can grant any relief to which any aggrieved party is entitled to under the Ordinance.
For the reasons stated above, the Civil Appeals Nos. 51 to 53 are dismissed end Civil Appeal No. 54 of 1985 is allowed. Civil petition No. 140 of 1985 is disposed of. There will, however, be no order as to costs.