By the Court.—This appeal has been preferred against the judgment and order dated 24th July, 2009, passed in Civil Misc. Writ Petition No. 36942 of 2009, whereby the learned Single Judge has dismissed the writ petition of the appellant, wherein a challenge was put forth to the order dated 5th May, 2009 passed by learned Additional District Judge, Agra, in an election petition that had questioned the elections of the appellant as a Member of the Cantonment Board, Agra.

2. The facts, in brief, are that the appellant (hereinafter referred to as the ‘returned candidate’) came to be elected as a Member of the Cantonment Board held on 18th of May, 2008. Respondent No. 2-Ramesh Baghel questioned his election by filing an election petition before the learned District Judge, Agra in accordance with the Cantonment Electoral Rules, 2007. The election petition was transferred by the District Judge before the learned Additional District Judge, Court No. 1, Agra where the returned candidate filed a written objection that in view of Rules 55 and 57 of the Cantonment Electoral Rules, 2007 (hereinafter referred to as the ‘Rules’), the election petition could not proceed before the learned Additional District Judge and it had to be tried by the District Judge himself. This application has been rejected by the order dated 5th of May, 2009 by the learned Additional District Judge, who found that he had the competence to hear the election petition.

3. Assailing the said order, the returned candidate preferred Civil Misc. Writ Petition No. 36942 of 2009 raising the same plea as raised before the learned Additional District Judge and the learned Single Judge by order dated 24.7.2009, impugned in the present appeal dismissed the writ petition and declined to interfere with the order dated 5th of May, 2009.

4. Aggrieved, the returned candidate has preferred this appeal under Chapter VIII Rule 5 of the Rules of the Court urging that the election petition can be heard only by the District Judge of the District as no notification has been issued by the State Government empowering the Additional District Judge to hear any such dispute.

5. We have heard Shri Indra Mani Tripathi, learned counsel for the appellant-petitioner and Shri J.S. Pandey, learned counsel for respondent No. 2 as well as Shri Chandra Bhan Gupta, learned counsel for respondent No. 1.

6. A preliminary objection had been raised by Shri Pandey to the maintainability of the appeal on the ground that the District Judge or the Additional District Judge while proceeding to hear the election petition was a Election Tribunal and therefore, in view of the language in Chapter VIII Rule 5 of the Rules of the Court, the appeal would not be maintainable.

7. Replying to the aforesaid submission, Shri Tripathi invited our attention to the fact that the proceedings regulating election petitions under Rules, are provided under a Central Act made by Parliament for which it is alone competent to legislate under the Union List. He pointed out that the Rules have been framed under the Cantonment Act, 1914, the subject whereof is neither under the State List or the Concurrent List. He has further placed reliance on the Division Bench judgment of this Court in the case of Union of India and others v. Ashish Kumar Bala, (2008) 1 UPLBEC 171 which is as follows :

“10. In response, Shri Chaturvedi has drawn the attention of the Court to the provision of Chapter 8, Rule 5 wherein it excludes the embargo of special appeal being maintainable in respect of the matters of the Union List and he has also relies upon the judgment passed by Division Bench of this Court reported in 1997 (3) AWC 1997, Oriental Bank of Commerce, Kanpur v. Union of India and others, which reads as under :

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On a plain reading of the above provision, it is clear that if the judgment of the learned