N.D.OJHA, J. - (1.) THE petitioner and respondents Nos. 2, 3 and 4 were candidates for the membership of Ward No. 1 of the Canton­ment Board, Varanasi. The petitioner was declared to have been duly elected and an election petition was filed by respondent No. 2 before the District Judge, Varanasi. This election petition was sub­sequently transferred to the court of the II Additional District Judge, Varanasi. The II Additional District Judge, Varanasi passed certain orders of which it is not necessary to give any detail. The peti­tioner aggrieved by those orders instituted the present writ petition. The order passed by the District Judge, Varanasi, on July 12, 1978 transferring the election petition to the II Additional District Judge, Varanasi has also been challenged in this writ petition.
(2.) THE main ground on which the writ petition has been pressed is that in view of Rules 43 and 45 of the Cantonments Electoral Rules, 1945, framed in the exercise of the power conferred by Section 31 of the Cantonments Act it was not open to the District Judge to trans­fer the election petition to the II Additional District Judge. Having heard learned counsel for the parties we are of opinion that there is substance in this submission. Rules 43 and 45 read as follows:- "43. Officer to whom the petition should be presented:-A petition calling in question the validity of an election or the re­turn of a particular candidate may be presented in writing to the District Judge of the district within which the elec­tion has been held (or where there is no District to such Judicial Officer as the State Government may appoint in this behalf), within seven days after the date on which the result of the election was declared either by a person who was candidate at the election or by not less than five persons entitled to vote at the said election: Provided that no such petition shall be presented on the ground either that the name of any person qualified to vote has been omitted from the electoral roll or that the name of any person not so qualified has been inserted in the roll. 45. Enquiry into Election.-Where a petition has been present­ed under rule 43 and the security deposited as required by rule 44, the District Judge (or the Officer appointed in accordance with with rule 43), or any Judicial Officer subordinate to him and not below such rank as the State Government may by notification prescribed in this behalf to whom the District Judge may trans­fer the petition, shall after notice to all candidates for the ward concerned at the election (other than such of them as may be petitioners) hold such enquiry as he deems necessary." , A perusal of Rules 43 and 45 indicates that the election petition is to be presented not in the Court of the District Judge but to the District Judge. Likewise the power which has been given under Rule 45 of the rules to transfer the election petition has been given to the District Judge and not to the court of the District Judge. In this view of the matter unless it can be shown that the Officer to whom the election petition has been transferred by the District Judge is an Officer contemplated by Rule 45, the order of transfer cannot be sustained. In our opinion no assistance can be derived from Section 8 of the Bengal, Agra and Assam Civil Courts Act for the simple reason that the said section falls in Chapter II of the said Act which deals with the constitution the Civil Courts. Section 3 prescribes classes of courts and provides that there shall be the fol­lowing classes of Civil Courts under this Act, namely, (1) The Court of the District Judge; (2) The Court of the Additional Judge; (3) The Court of the Civil Judge; and (4) The Court of the Munsif.
(3.) SECTION 8 deals with Additional Judges. It reads: - "8. Additional Judges-(1) When the business pending be­fore any District Judge' requires the aid of Additional Judges for its speedy disposal the State Government may, having consulted the High Court appoint such Additional Judges as may be re­quisite. (2) Additional Judges so appointed shall discharge any of the functions of a District Judge which the District Judge may assign to them, and in the discharge of those functions they shall exercise the same powers as the District Judge." It is thus apparent that the power which can be exercised by Additional Judges contemplated by Section 8(2) of the Bengal, Agra end Assam Civil Courts Act is that power which exercisable by the District Judge in his capacity as the Presiding Officer of the Prin­cipal Civil Court. Had the power to entertain and decide an elec­tion petition been conferred by Rules 43 and 45 of the Cantonments Electoral Rules, 1945 to the Court of the District Judge it could with some justification' be urged that the provisions of Section 8 of the Bengal, Agra and Assam Civil Courts Act were applicable. This being not the position, it is plain that a tribunal had been created by Rules 43 and 45 aforesaid which is to be presided over by the Dis­trict Judge. In this view of the matter the election petitioner had to be decided either by the District Judge or by such other Officer as enumerated in Rule 45. No notification which may have been issued by the State Government indicating that an election petition filed under Rule 43 aforesaid before a District Judge could be transferred by him to an Additional District Judge has been brought to our notice. If such a notification had existed then the District Judge would certainly have power to transfer the petition to such an Ad­ditional District Judge in view of Rule 45. In the absence of such a notification the election petition, in the present case, in our opinion had to be decided by the District Judge and could not be transferred to the II Additional District Judge. The view which we take finds support from the decision of a Division Bench of the Madhya Pradesh High Court in Moti Lal Verma v. Narain Prasad (A.I.R. 1967 M.P. 243). ;