' SAHIB KHAN, J.--- (i) Manzoor Hussain has challenged the validity of impugned order dated 9-6- 2006 passed by learned Election Tribunal Gilgit in Election Petition No,10 of 2004.
(ii) The learned Election Tribunal, Gilgit has sent up Election Petition No,10 of 2004 for entrusting it to any other Election Tribunal.
1. I intend to dispose of both the above matters through this single order.
2. In Northern Areas, general elections for Northern Areas Legislative Council as well as for the local councils were held in October, 2004. Chief Secretary, Northern Areas issued Notification No,CLC- 3(20)/2004 dated 14th October, 2004 under section 52 of Northern Areas Council Elections Order, 1979 declaring all the District Judges in Northern Areas as Election Tribunals for the respective Districts. However, this notification was re-notified by empowering Additional District Judges due to shortfall of District Judges in Northern Areas on 23-10-2004.
3. Shahid Ali son of Nasir Hussain respondent/petitioner filed election petition challenging the result/declaration of petitioner/ respondent No,6 as returning candidate in respect of Ward No,4 (District Council) NA-3 Gilgit before the Election Tribunal, Gilgit. The learned Election Tribunal tried the election petition and passed the impugned order on 9-6-2006. The operative part of the above orders reads as follows:--
(a) Rechecking/recounting of all ballot-papers of all polling stations of suit seat will be conducted in this Court or so other subsequent date to be fixed by this Court. Results of recounting and rechecking will be prepared in the Court.
(b) After consolidating and compiling results of rechecking and recounting in Court a schedule will be issued for re-polling in polling stations of Khaltaro and such polling will be conducted in supervision of this Tribunal.
(c) In the light of consolidated results of rechecking/recounting as well as re-polling judgment will follow.
4. On 6-7-2006 the above named petitioner filed revision petition under consideration before this Court challenging the validity of above orders while, Election Tribunal/District Judge, Gilgit has sent up the record requesting for assigning it to any other Tribunal giving some reasons vide his order- sheet, dated 26-8-2006.
5. I have heard the learned counsel for the parties, gone through record, perused the case-laws referred by the learned counsel for the parties.
6. The learned counsel for the petitioner has stressed that the impugned order is perverse and ab initio void due to the following reasons:--
(i) That the learned Election Tribunal has declared Khaltaro Polling Station for re-polling prior to the process of recounting/ rechecking of ballot-papers of all polling stations.
(ii) That the learned Election Tribunal has illegally conferred the powers exclusively owned by the election authorities to Election Tribunal by holding that re-polling will be held under supervision of Election Tribunal.
On the point of maintainability of instant petition the learned counsel argued that since the District Judge is subordinate to this Court, therefore, orders made or passed by him are revisable by this Court. He referred No,C.Rev.1 of 2006 by brother Judge of this Court, and C.A. No,14 of 2006 of the apex Court of Northern Areas in support of his contentions.
7. Contrary to above arguments the learned counsel for respondent vehemently opposed the contentions. He mainly questioned the maintainability of the petition on the ground that there is no provision in the Northern Areas Local Government Election Rules, 1979 to tile a revision petition against orders of Tribunal. He referred 1981 CLC 516 in support of his version.
8. Before going into the merits of the case and validity of the impugned order I deem it proper to determine that (i) whether this Court has got revisional jurisdiction under law and (ii) whether an election petition filed under Northern Areas Local Government Election Rules, 1979 can be assigned/transferred to any other Tribunal by this Court?
9. To meet the above points counsel for the petitioner relied on above referred two case-laws. It is evident from the 1st case-law that question of revisional jurisdiction has not been agitated before or it has not been discussed by the brother Judge. Whereas, in the second referred case although this point has been shown one of the preliminary points, but the judgment has been passed on the point of limitation and learned Bench of the apex Court did not feel necessary to discuss and decide point of revisional jurisdiction of High Court. Therefore, I could not benefit from the above both case-laws, nor these case-laws favour the petitioners. The mere contention of the learned counsel that the similar revision petition has been adjudicated by the Court is not answer to the question of jurisdiction for the reason given above.
10. It is just necessary to reproduce the relevant provisions of law and procedure for determination of issue under consideration.
' Section 56(1) of Northern Areas Local Government Election Rules, 1979. (1) The election petition presented under these rules shall be enquired into and tried by the Election Tribunal.
' Section 58(4) of Northern Areas Local Government Election Rules, 1979. Every election petition shall be tried as nearly as may be in accordance with procedure applicable under the Code of Civil Procedure, 1908 (Act V of 1908) to the trial of suits. Provided that: (a)
(b) ........................................................................................................................
(11) The Election Tribunal have the same powers as are vested by the Code of Civil Procedure 1908 in a Court trying a civil suit and in particular power in respect of a, b, c, d, e, g.
Section 3 of Civil Procedure Code, 1908.--- For the purpose of this Code the District Court is subordinate to the High Court and every Civil Court of a grade inferior to that of a District Court and every Court of small cause is subordinate to the High Court and District Court.
Section 115 of Civil Procedure Code, 1908. Revision 1(1). The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-- (a)
(b)
(c) .........................................................................................
The impugned order has been passed by Election Tribunal, Gilgit, constituted under section 52 of Northern Areas Council Election Order, 1979 (hereinafter called as Order, 1979). The contents of Notification although would show that the Election Tribunal is to be presided over by a Additional District Judge. Moreover, the provision contained in the Northern Areas Local Government Election Rules, 1979 (hereinafter called as Rules, 1979) empowering the Tribunal with all the powers vested in a Civil Court of general jurisdiction under the Code of Civil Procedure, 1908. Despite that the Court constituted under Order, 1979 is a Tribunal having special jurisdiction, formation and entity which is totally different from that of a Court of general jurisdiction. The Provincial Government in pursuance of section 52 of the Order, 1979 constituted this Tribunal for the special purpose of entertaining petitions under sections 55 and 56 of the Election Rules, 1979.
' It is evident that the Rules, 1979 do not extend any right of appeal to any aggrieved person from the orders of the Election Tribunal. Thus, the position is that the Rules, 1979 do not provide any remedy against the orders passed by Election Tribunal in the shape of appeal.
' There is no provision in the Rules, 1979 providing that the Tribunal is subordinate Court to High Court for the purpose of section 115 of Civil Procedure Code nor there exist any provision of appeal to the High Court as stated above. In absence of such provision in the Special Law in my opinion the High Court cannot exercise its revisional jurisdiction.
' Section 3 of Civil Procedure Code defines subordination of Court to the High Court. No amendment has been introduced in the Code to the effect that any Tribunal/Special Court constituted for special functions to be the subordinate Court of High Court while, section 115 of the same Code restricts the revisional jurisdiction up to the extent of subordinate Court to it.
' If the intention of the Legislature was to declare the Tribunal as subordinate to High. Court for the purpose of section 115 of C.P.C. a provision similar to 56(1) could have been included in the Rules, 1979. Neither, the rules provide any right of appeal nor any amendment has been introduced in section 3 of C.P.C. So the Legislature is intended to provide a quick and single phase adjudication.
' I do not agree with the view that in the absence of above stated requirements in the law a High Court automatically functions as revisional/Appellate Court, just for the assumption that Rules, 1979 have provided that the petition may be tried as nearly as may be under Civil Procedure Code, or the Additional District Judge is subordinate to High Court for the purpose of Code, 1908 PLD 1970 Lah. p.641.
' Coming to the reference/request of the learned Election Tribunal, Gilgit for assigning the petition in hand to any other Tribunal I am of the opinion that this Court lacks jurisdiction under Rules, 1979 and Code of Civil procedure for assigning/transfer to any other Tribunal.
' Consequently, both the matters disposed of by dismissing the same for lack of jurisdiction. Parties are directed to appear before the Tribunal on 20-11-2006. Record of the case remitted back to the Election Tribunal.