Appeal No 1555 of 1973
From the judgment and Order dated the 1st October 1973 of the Madhya Pradesh High Court Bench at Indore in Miscellaneous Petition No 206 of 1973
B Sen R C Garg Fazal Hussain and section K Gambhir for the appellant
M C Setalvad J B Dadachanji Ram Panjwani U N Bachawat and T T Kunhikannan for Respondent No 1
Sobhagmal Jain for Respondent No 4
I N Shroff for Respondent No 8
F section Nariman Additional Solicitor General for India and section P Nayar for Respondent No 9
The Judgment of the Court was delivered by KHANNA J
Whether a person sitting and acting as a judge of the High Court under article 224A of the Constitution can exercise the jurisdiction to try an election petition under section 80A of the Representation of the People Act 1951 Act 43 of 1951 hereinafter refer
red to as the Act and whether the Chief Justice of the High Court can after entrusting an election petition to one judge allocate it at his request to another judge are the two main questions which arise for determination in this appeal filed on certificate against the judgment of the Madhya Pradesh High Court
The appellant and respondents 1 to 4 were candidates in the election to the Madhya Pradesh Legislative Assembly from Mhow constituency in indore district in March 1972
Respondent No 4  withdrew his candidature and the contest took place between the appellant and res 208 pondents 1 to 3
The result of the election was declared on March 12 1972 and respondent No 1 was declared elected
On April 25 1972 the appellant presented an election petition under section 8 1 of the Act to the Madhya Pradesh High Court challenging the election of respondent No 1 on various grounds
This election petition which was numbered Election Petition 11 of 1972 and some other election petitions were entrusted by the then Chief Justice Binshambhar Dayal CJ to Vyas J
The date of the order of the Chief Justice in this respect is not on the record before us but it has been stated during the hearing that the order was made sometime in July or August 1972
Vyas J in those days was sitting on the Indore Bench of the Madhya Pradesh High Court
Surajbhan J of the Madhya Pradesh High Court retired on February 2 1971
After obtaining the previous consent of the President the Chief Justice of Madhya Pradesh High Court requested Surajbhan J to sit and act as a judge of that court under article 224A of the Constitution
Surajbhan J has been thereafter sitting and acting as a judge of that court with effect from April 28 1971
His last appointment was by virtue of the consent of the President issued under article 224A of the Constitution as per notification dated November 23 1972
The appointment was to last for a period of one year or till the disposal of election petitions entrusted to him whichever was earlier
Vyas J dealt with the election petition filed by the appellant and some other election petitions entrusted to him till June 1973
On June 2 1973 the present Chief Justice directed that Vyas J should sit on the Gwalior Bench of the Madhya Pradesh High Court
It may be mentioned that apart from Jabalpur where there is the principal seat of the Madhya Pradesh High Court two Benches of the High Court function one at Gwalior and the other at Indore
After Vyas J was ordered to sit on the Gwalior Bench he came from Gwalior to Indore for the trial of election petitions assigned to him
On June 20 1973 Vyas J addressed a letter to the Chief Justice setting out the stage at which were the different election petitions entrusted to him
A letter was thereafter addressed by the Chief Justice to Vyas J on July 19 1973
In reply thereto Vyas J sent letter dated August 5 1973 to the Chief Justice
The material part of that letter reads as under Thakur Virendra Singh EP No 9 72 Mannalal that as I have bean posted here it would be better that they are heard by some one at Indore
This would avoid my visits to Indore and will be in the interest of their early disposal
I request accordingly
 On the margin of that letter the Chief Justice made an endorsement He has to try them
The Chief Justice thereafter appears to have changed his mind
On August 20 1973 the Chief Justice passed the following order In exercise of the powers conferred under Section 80 A2 of the Representation of the People Act 1951 1 Chief 2 09 Justice direct that Election Petition No 11 of 1972 Krishna Gopal vs P C Sethi shall be tried by the Hon
Shri Justice Surajbhan Grover at the Indore Bench of the Madhya Pradesh High Court
In exercise of the said powers it is hereby further ordered that Election Petition No 5 of 1972 Rana Natwarsingh vs Haribhau Joshi and Election Petition No 12 of 1972 Satya naryan vs Madhukar Marmat shall be tried by the Hon ble Shri Justice
Surajbhan Grover at the Indore Bench of the Madhya Pradesh High Court
This order is in supersession of the earlier order dated 9th July 1972 Election Petition No 4 of 1972 Vimal Kumar vs Thakur Virendra singh and Election Petition No 9 of 1972 Mannalal vs Kanhaiyalal Nagori shalt continue to be tried by the Hon ble Shri Justice
section R Vyas at the Indore Bench of the Madhya Pradesh High Court Sd PK Trare Chief Justice 20 873 In the meantime proceedings in the election petition filed by the appellant continued before Vyas J
The last date of hearing in the petition before Vyas J was August 22 1973 when he made a formal order for filing reply to some interim applications and also issued directions that the record of the case be sent to the Registry at Jabalpur for being placed before the Chief Justice
It may be stated that issues have been framed on merit in this election petition but no evidence has so far been recorded on those issues
On August 27 1973 the Deputy Registrar of the High Court sent intimation to the appellant s counsel that the hearing of the election petition filed by the appellant and another election would take place at Indore and that arguments on the two interim applications would be heard on September 10 1973 instead of on September 17 1973
On September 10 1973 an application was filed on behalf of the appellant stating that as his election petition had been allocated to Vyas J for trial the same could not be withdrawn from
It was stated that Surajbhan J had no jurisdiction to try the petition and the same should be tried by Vyas J On September 11 1973 Surajbhan J passed an order dismissing the above application
It was stated in the order that as Vyas J had released the election petition in question for trial by another judge the Chief Justice was competent to pass an order for trial of the election petition by another judge whom he considered proper
On September 13 1973 an application was filed by the appellant stating that he had not been heard on his application about the lack of jurisdiction of Surajbhan J to decide the appellant s election petition
Fresh arguments were thereupon heard on the above application and the same was dismissed by Surajbhan J as per order dated October 9 1973
Surajbhan J held that he had jurisdiction to hear the election pe tition and that the order of the Chief Justice directing that it be heard by Surajbhan J did not suffer from any infirmity
210 in the meantime on September 27 1973 the appellant filed a petition under article 226 of the Constitution for the issuance of a writ of mandamus directing Surajbhan J to forbear from giving effect to the order dated August 20 1973 of the Chief Justice entrusting the trial of the election petition filed by the appellant to him and to direct Vyas J to complete the trial of the petition
This petition came up for preliminary hearing before a Division Bench Sen and Soni JJ of Madhya Pradesh High Court
Four contentions were advanced on behalf of the appellant at the bearing of the writ petition but we are now concerned with only two of them
The first contention was that a person sitting and acting as a judge of the High Court under article 224A of the Constitution was not a judge of the High Court for the purpose of section 80A2 of the Act
The second contention was that once the trial of an election petition had begun the Chief Justice had no power under section 80A2 of the Act to reallocate that petition to another judge
Both these contentions as well as the other two contentions with which we are not concerned were repelled by the High Court
In the result the writ petition filed by the appellant was dismissed
On an application filed by the appellant the High Court granted a certificate of fitness under Article 132 of the Constitution because in its opinion the case involved a substantial question of law as to the interpretation of article 224A of the Constitution
At the hearing of the appeal Mr Sen has contended on behalf of the appellant as was done in the High Court that a person requested to sit and act as a judge of the High Court under article 224A of the Constitution is not a judge of the High Court for the purpose of section 80A of the Act and as such Surajbhan J has no jurisdiction to try the election petition
It is further argued that even if it may be assumed that Surajbhan J is a judge of the High Court for the purpose of section 80A of the Act the election petition filed by the appellant could not after it had been entrusted to Vyas J be allocated by the Cliief Justice to Surajbhan J So far as the latter contention is concerned we may state that the certificate of fitness which was granted under article 132 of the Constitution by the High Court related to the interpretation of article 224A of the Constitution
We have however permitted Mr Sen under article 1323 to raise the second contention also
The contentions of Mr Sen have been controverted by Mr Setalvad on behalf of respondent No 1 as well a by learned Additional Solicitor General on behalf of the Union of India and they have canvassed for the correctness of the view taken by the High Court
Before examining the merits of the contentions advanced on behalf of the appellant it would be apposite to reproduce artic le 224A of the Constitution and section 80A of the Act  Article 224A
Notwithstanding anything in this Chapter the Chief Justice of a High Court for any State may at any time with the previous consent of the President request any person who has held the office of a Judge of that Court or of any other High Court to sit and act as a Judge of the High Court for that 211 State and every such person SO requested shall while so sitting and acting be entitled to such allowances as the President may by order determine and have all the jurisdiction powers and privileges of but shall not otherwise be deemed to be a Judge of that High Court
Provided that nothing in this article shall be deemed to require any such person as aforesaid to sit and act as a Judge of that High Court unless he consents so to do Section 80A High Court to try election petitions
1 The Court having jurisdiction to try an election petition shall be the High Court 2 Such jurisdiction shall be exercised ordinarily by a single Judge of the High Court and the Chief Justice shall from time to time assign one or more Judges for that purpose Provided that where the High Court consists only of one Judge he shall try all election petitions presented to that Court
3 The High Court in its discretion may in the interests of justice or convenience try an election petition wholly or partly at a place other than the place of seat of the High Court An election petition calling in question any election has under section 81 of the Act to be presented to the High Court
Sub section 1 of section 80A of the Act makes it clear that the Court which has jurisdiction to try an election petition shall be the High Court
High Court has been defined in clause e of section 79 of the Act to mean a High Court within the local limits of whose jurisdiction the election to which the election petition relates has been held
Sub section 2 of section 80A of the Act provides that the jurisdiction which the High Court has to try an election petition shall be exercised ordinarily by a single judge of the High Court and the Chief Justice shall from time to time assign one or more judges for the purpose
It is plain that subsection 2 does not confer jurisdiction to try an election petition
Such jurisdiction is conferred by sub section 1 of section 80A upon the High Court
Sub section 2 merely specifies the instrumentality through which the jurisdiction which is vested in the High Court shall be exercised
The sub section thus relates to the procedure for the exercise of the jurisdiction and provides that the jurisdiction shall be exercised ordinarily by a single judge of the High Court who has been assigned for the purpose by the Chief Justice
Perusal of sub section 2 of section 80A makes it manifest that it is only a judge of the High Court assigned for the purpose by the Chief Justice who can exercise the jurisdiction which is vested in the High Court to try an election petition by sub section 1 of that section
The provisions of Rub section 2 are mandatory and a person who is not a judge of the High Court concerned and who has not been assigned for the purpose by the Chief Justice cannot exercise the jurisdiction which is vested in the High Court by sub section 1 of section 80A of the Act
The word ordinarily does not indicate that the provisions of sub section 2 of section 80A are riot mandatory and that relaxation in com 2 12 pliance with those provisions is permissible
The word ordinarily only qualifies the number of judges who can exercise the jurisdiction which is vested in the High Court try an election petition
The said word indicates  that normally it would be single judge of the High Court who can exercise the jurisdiction which is vested in the High Court but in appropriate cases such jurisdiction can also be exercised by two or more judges
It has hot been disputed before us that the learned Chief Justice of the High Court has assigned Surajbhan J for the purpose of the trial of the election petition filed by the appellant and some other petitions but what has been contended by Mr Sen is that Surajbhan J is not a judge of the Madhya Pradesh High Court
Surajbhan J it is urged was requested by the Chief Justice to sit and act as a judge of the Madhya Pradesh High Court under article 224A of the Constitution and though Surajbhan J has consented so to do he does not thereby become a judge of that High Court
As Surajbhan J according to Mr Sen lacks the requisite attribute of being a judge of the High Court he cannot exercise under sub section 2 of section 80A of the Act the jurisdiction which is vested by sub section 1 of that section in the High Court
This contention in our opinion is devoid of force
Article 224A starts with the non obstante clause and provides that notwithstanding anything contained in Chapter V of Part VI of the Constitution the Chief Justice of a High Court for any State may at any time with the previous consent of the President request any per on who has held the office of a judge of that Court or any other High Court to sit and act as a judge of the High Court for that State
It is further provided that every such person so requested shall while so sitting and acting be entitled to sucks allowances as the President may by order determine and have all the jurisdiction powers and privileges of but shall not otherwise be deemed
to be a judge of that High Court
According to the proviso to the article no person would be required to sit and act as a judge of the High Court unless he consents so to do
It is manifest from a reading of article 224A that the request made by the Chief Justice to the person who has held the office of a judge of that Court or any other High Court is to sit and act as a judge of the High Court for that State
The article further makes it clear that the person while so sitting and acting shall have all the jurisdiction powers and privileges of a judge of the High Court but shall not otherwise be deemed to be a judge of that Court
Analysing article 224A it would follow that the request which is made by the Chief Justice of the High Court for any State under that article to a person who has held the office of a High Court judge is to it and act as a judge of the High Court for that State
Such a request ha to be made by the Chief Justice after obtaining the previous consent of the President
The person requested while so sitting and acting shall have all the jurisdiction powers and privileges of a judge of tile High Court
Such a person shall not otherwise be deemed to be a judge of that Court
The words while so sitting and acting show that the person requested not merely has the Jurisdiction powers and privileges of a judge of the High Court he also sits and acts as a judge of that 213 Court
Question then arises as to what is the significance of the concluding words but shall not otherwise be deemed to be a judge of that Court
These words in our opinion indicate that in matters not relating to jurisdiction powers and privileges the person so requested shall not be deemed to be a judge of that Court
The dictionary meaning of the word otherwise is in other ways in other circumstances in other respects
The word otherwise would therefore point to the conclusion that for the purpose of jurisdiction powers and privileges the person requested shall be a judge of the concerned High Court and for purposes other than those of jurisdiction powers and privileges the person requested shall not be deemed to be a judge of that Court
It would for example be not permissible to transfer him under article 222 of the Constitution
The use of the word deemed shows that the person who sits and acts as a judge of the High Court under article 224A is a judge of the said High Court but by a legal fiction be is not to be considered to be a judge of the High Court for purposes other than those relating to jurisdiction powers and privileges
The words but shall not otherwise be deemed to be
a judge of that High Court in our opinion by necessary implication emphasis and high light the fact that for purposes of jurisdiction powers and privileges the person requested under article 224A is a judge of the High Court concerned
The words while so sitting
and acting in article 224A do not contemplate that the person requested has the powers privileges_ and jurisdiction only when be sits in court during court hours
The effect of those words is that during the period for which a person has been requested to sit and act as a judge of the High Court he has the juris diction powers and privileges of a judge of that Court
The language of article 224A but for the difference in the marginal note is similar to that employed in article 128 which relates to the attendance of retired judges at the sittings of the Supreme Court Indeed article 224A was a part of the Constitution as originally framed
It was then numbered a  article 224
The language of the article was identical but its marginal note at that time read as Attendance of Retired Judges at Sittings of High Court
Article 224A was inserted by the Constitution Fifteenth Amendment Act
1962 and the marginal note of the article since then is Appointment of Retired Judges at Sitting of the High Court
Both at modelled on section 8 of the Supreme Court of dating Act
1925 which relates to the Supreme Court of Judicature in England
According to section 8 of the English Act the Lord Chancellor may at any time subject to the provisions of this section
request any person who has held the office of the judge of the Court of Appeal or of a judge of the High Court to sit and act as judge of the Court of Appeal and every such person so requested shall while so sitting and acting
have all the jurisdiction powers and privileges of but shall not otherwise be deemed to be a judge of the Court of Appeal  Provided that nothing in this section shall be deemed to require any such person as aforesaid to sit and act  as a judge of the Court of Appeal unless he consents so to do
214 Mr Sen has pointed to the difference in the language of articles 224 and 224A
It is urged that under article 224 a person is appointed by the President as an additional or acting judge of the High Court while under article 224A the person requested by the Chief Justice is only to sit and act as a judge of the High Court
In our opinion the difference in the language of the two articles would not detract from the conclusion that a person requested under article 224A sits and acts as a judge of the High Court for the purpose of exercising jurisdiction powers and privileges
Article 224 and 224A deal with different mat ters
If the language of article
224A warrants the conclusion that in the matter of jurisdiction powers and privileges the person requested is a judge of the High Court the said conclusion cannot be affected by the fact that in another
article dealing with a different matter the language employed is not identical but has been couched in different words
According to article 216 of the Constitution every High Court shall consist of a Chief Justice and such other judges as the President may from time to time deem it necessary to appoint
It is not necessary for the purpose of the present case to decide whether a person requested under article 224A falls within the category of such other judges as the President may from time to time deem it necessary to appoint under article 216 because the provisions of article 224A have an overriding effect
This is made clear by the non obstante clause at the beginning of article 224A
The effect of that clause is that notwithstanding the other provisions of Chapter V and Part VI of the Constitution the person requested under article 224A would sit and act as a judge of the High Court and would have the jurisdiction powers and privileges of a judge of that Court
Apart from the above we find that  if the contention advanced on behalf of the appellant were to be accepted it would render article 224A to be a dead letter because the jurisdiction of the High Court can under the Letters Patent of the various High Courts as well as the other enactments which have been made in this connection can be exercised only through a judge of that  High Court
If a person ap pointed under article 224A cannot be considered to be a judge of the High Court for the purpose of jurisdiction powers and privileges the question of appointing such a person would never arise
No one can obviously be asked to sit and act as a judge of the High Court if after being so requested he would not be able to hear any cases
It is inconceivable that the framers of the constitution inserted an article in the Constitution which was in the nature of a dead letter
Any construction of article 224A which would have the effect of rendering that article to be ineffective and purposeless must in our opinion be rejected
As observed on page 36 of Maxwell on the Interpretation of Statutes Twelfth Edition a construction which would leave without effect any part of the language of a statute will normally be rejected
We are therefore of the view that a person requested to sit and act as a judge of the High Court under Article 224A is a judge of that Court for the purpose of sub section 2 of section 80A of the Act
215 We may now deal with the second contention advanced on behalf of the appellant that after the election petition filed by him had been entrusted to Vyas J the same could not be allocated to Surajbhan J
In this context we find that after Vyas J had been directed by the Chief Justice to sit on the Gwalior Bench of the High Court Vyas J himself made a request in letter dated August 5 1973 to the Chief Justice that the election petition filed by the appellant should be heard by someone at Indore
It was further mentioned by Vyas J that this would avoid his visits to Indore and would be in the interest of the early disposal of the petition
The Chief Justice acceded to this request of Vyas J and entrusted the election petition filed by the appellant to Surajbhan J
There was in our opinion no legal infirmity in the order made by the Chief Justice in this respect
There is nothing in the language of section 80A of the Act which stood in the way of the learned Chief Justice relieving Vyas J at his request from the task of trying the election petition which had been earlier entrusted to him
We have also not been referred to any other provision which prevented the Chief Justice from making the impugned order dated August 20 1973
The case of Zikar vs The State1 to which reference has been made on behalf of the appellant can hardly be of any help to him
What was laid down in that case was that the Chief Justice of a High Court has no power to withdraw and transfer a case of which a division Bench is properly seized to another Bench without the concurrence of the former
There is nothing in that case to indicate that a Chief Justice is powerless to withdraw a case from a judge of the High Court
even though a request for that purpose is made by that judge
The two legal contentions which have been advanced on behalf of the appellant in our opinion are not well founded and we have no hesitation to repel them
All the same looking to the special facts and circumstances of this case we are of the opinion that it is fit and proper and in the interest of justice that the election petition filed by the appellant be tried by another learned judge of the High Court who may be assigned for the purpose by the Chief Justice of that Court
It seems indeed desirable that election petitions should ordinarily if possible be
entrusted for trial to a permanent judge of the High Court even though we find that additional or acting judges or those requested under article 224A of the Constitution to sit and act as judges of the High Court if assigned for the purpose by the Chief Justice are legally competent to hear those matters
We therefore set aside the order dated August 10 1973
The election petition filed by the appellant shall now be heard by a permanent judge who may be assigned for the purpose by the learned Chief Justice
The case may therefore J be placed before the learned Chief Justice for necessary orders
The appeal is accepted accordingly
The parties in the circumstances shall bear their own costs of this Court and in the High Court
PBR Appeal allowed


Summary:
Article 224A of the Constantine provides that notwithstanding anything contained in Chapter V of Part VI of the constitution the Chief Justice of a High Court for any State at any time with the previous consent of the President request any person who has held the office of a judge of hat Court or any other High Court to sit and act as a judge of the High Court for that State
It is further provided that every such person so requested shall while so sitting and acting be entitled to such allowances as the President may by order determine and have all the jurisdiction powers and privileges of but shall not otherwise be deemed to be a judge of that High Court
The appellant s election petition in the Madhya Pradesh High Court was posted in the first instance before a permanent Judge of that High Court in the meantime a retired Judge of that High Court was appointed as a Judge of that Court in accordance with the provisions of article 224A of the Constitu tion and the election petition of the appellant along with a few
other election petitions was transferred to him for disposal
The writ petition of the appellant questioning the jurisdiction of the Judge to try an election petition was dismissed by the High Court
Before the Supreme Court it was contended i that a person requested to sit and act as a Judge of the High Court under Art 224A was not a Judge of the High Court for the purpose of section 80A of the Representation of the People Act and ii that even assuming that he was a Judge for the purpose of section 80A of the Act the election petition could not after it had been entrusted to a permanent Judge be allocated to a Judge appointed under article 224A Disposing of the appeal HELD  It is inconceivable that the framers of the Constitution inserted an article in the Constitution which was in the nature of a dead letter
Any construction of article 224A which would have the effect of rendering that article to be ineffective and purposeless must be rejected
A person requested to sit and act as a Judge of the High Court under article 224A is a judge of that Court for the purpose of sub section
2 of section 80A of the Act
214G H Under article 224A the Chief Justice of a High Court after obtaining the previous consent of the President requests a person who has held the office of a High Court Judge to sit and act as a Judge of the High Court for that state
The person requested while so sitting and acting shall have all the jurisdiction powers aid privileges of a Judge of the High Court
Such a person shall not otherwise be deemed to be a Judge of that Court
212D  F The words while so sitting and acting  show that the person requested not merely has the jurisdiction powers and privileges of a Judge of the High Court he also sits and acts as a Judge of that Court
The words but shall not otherwise be deemed to be a Judge of that Court indicate that in matters not relating to jurisdiction powers and privileges the person so requested shall not be deemed to be a Judge of that Court
The word Otherwise would point to the conclusion that for the purpose of jurisdiction powers and privileges the person requested shall be a Judge of the concerned High Court and for purposes other than those of jurisdiction powers and privilegesthe person requested shall not be deemed to be a Judge of that Court
The use of the 20 7 word deemed  shows that the person who sits and acts as a Judge of tic High Court under this Article is a Judge of the said High Court hub by a legal fiction he is not to be considered to be a Judge of the High Court for purposes other that those relating to jurisdiction powers and privileges
The words but shall not otherwise be deemed to be a Judge of that High Court by necessary implication emphasis and highlight the fact that for purposes of jurisdiction powers and privileges the person requested under article 224A is a Judge of the High Court concerned
The effect of the non obstante clause at the beginning of article 224A is that notwithstanding the other provisions of Chapter V of Part VI of the Constitution the person requested under article 224A would sit end act as a Judge of the High Court are would have the jurisdiction powers and privileges of a Judge of that Court
The difference in the language of articles 224  224A would not detract from the conclusion that a person requested under article 224A sits and acts as a Judge of the High Court for the purpose of exercising jurisdiction powers and privileges Articles 224  224A deal with different matters
212H 213A D 214B iiThere is nothing in the language of section 80A of the Representation of People Act which stood in the way of the Chief Justice relieving a Judge from the task of trying the election petition which had been earlier entrusted to him
215C Zikar vs The State ILR held not applicable