The District Judge has the implied power to transfer an election petition to an Additional District Judge under Section 8(2) of the Bengal, Agra and Assam Civil Courts Act, 1887, and Section 4(53) of the U. P. General Clauses Act, 1904, even in the absence of an express provision in the U. P. Nagar Mahapalika Adhiniyam, 1959.

S.K. DHAON, J.

1. THE petitioner, after defeating Sri Shamim Ahmad Shah the respondent no. 3 and other candidates, was declared elected as Corporator of Nagar Mahapalika, Agra. Shamim Ahmad Shah challenged the legality of the election of the petitioner by means of an election petition no. 27 of 1988 before the District Judge, Agra. THE District Judge transferred the election petition for trial to the Court of the IInd Additional District Judge. THE petitioner's objection before the IInd Additional District Judge that he had no jurisdiction to try the election petition as the order of transfer was void has been negatived by the impugned order dated 4th February, 1989. Hence this petition.

2. SUB-section (4) of Section 62 of the U. P. Nagar Mahapalika Adhiniyam, 1959 (hereinafter referred to as the Adhiniyam) provides that the petition shall be presented to the District Judge exercising jurisdiction in the city. Making sub-section (18) of Section 2 of the Adhiniyam, which provides that "District Judge" includes an Additional District Judge to whom any function of the District Judge has been transferred under the Adhiniyam, as the sheet- anchor, the submission made on behalf of the petitioner is that there being no provision under the Adhiniyam empowering the District Judge to transfer his function to any other officer, the order of transfer passed by the District Judge is without jurisdiction. Learned counsel is right in his submission that so far as the provisions of the Adhiniyam are concerned there is nothing to indicate that the District Judge has been empowered to transfer his power of trying an election petition. The Adhiniyam was enacted in the year 1959. It is presumed that the Legislature was aware of the provisions of the Bengal, Agra and Assam Civil Courts Act, 1887 and Section 8 thereof in particular. Subsection (1) of Section 8 of the said Act empowers the State Government to appoint Additional Judges in consultation with the High Court. SUB-section (2) ordains that the Additional Judges so appointed shall discharge any of the functions of the 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 clear that under sub-section (2) of Section 8 the District Judge is empowered to assign any of his powers and functions to an Additional Judge. The question, therefore, is whether under the Adhiniyam the Legislature took away the power given to the District Judge by the provisions of sub-section (2) of Section 8 of the aforesaid Act? Let us, therefore, read again sub-section (18) of Section 2 of the Adhiniyam in this back drop. Having read and re-read this provision I have no hesitation in expressing the opinion that the Legislature has employed a rather unhappy phraseology to express its intention. If the provision is re-written with a slight modification it will mean that the District Judge will include an Additional District Judge to whom the function of the District Judge under the Adhiniyam has been transferred. Once the provision is read in this light, it is apparent that the power of transfer in the District Judge need not be found in the Adhiniyam. It may lie elsewhere. Therefore, sub-section (2) of Section 8 of the Bengal, Agra and Assam Civil Courts Act will be clearly attracted and the District Judge will be clothed with sufficient power to transfer his function under the Adhiniyam to the Additional District Judge.

In Chapter XX of the Adhiniyam in certain matters of taxation the District Judge has been empowered to entertain second appeals. There too the expression used is "District Judge". There too no power has been conferred upon the District Judge to transfer the appeal pending in his file to an Additional District Judge. If sub-section (18) of Section 2 of the Adhiniyam is read literally, there will be no escape from the situation that even a second appeal cannot be transferred by the D