http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 10  

PETITIONER: KRISHAN GOPAL

       Vs.

RESPONDENT: SHRI PRAKASH CHANDRA & ORS.

DATE OF JUDGMENT08/11/1973

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ RAY, A.N. (CJ) MATHEW, KUTTYIL KURIEN ALAGIRISWAMI, A. BHAGWATI, P.N.

CITATION:  1974 AIR  209            1974 SCR  (2) 206  1974 SCC  (1) 128  CITATOR INFO :  E          1982 SC 149  (619,623,724,883,1047)

ACT: Constitution of India-Art. 224A--Whether  an ad hoc judge  a judge of the High Court.

HEADNOTE: 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 Art. 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  s. 80A of the Representation of the People Act and  (ii) that even assuming that he was a Judge for the purpose of s. 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 Art. 224A. Disposing of the appeal HELD  :  It  is  inconceivable  that  the  framers  of   the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 10  

Constitution  inserted an article in the Constitution  which was  in  the nature of a dead letter.  Any  construction  of Art.  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  Art. 224A is a judge of that  Court  for  the purpose of sub-s. (2) of s. 80A of the Act. [214G-H] Under  Art. 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 privileges,the  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 Art. 224A is a Judge of the High Court concerned.  The effect  of the non-obstante clause at the beginning of  Art. 224A is that notwithstanding the other provisions of Chapter V of Part VI of the Constitution, the person requested under Art.  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 Arts. 224 & 224A would not detract from the conclusion  that a person requested under Art. 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] (ii)There  is  nothing  in the language of  s.  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 v. The State I.L.R. 1951 Nag. 251 held not applicable.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil 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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 10  

B.   Sen.  R. C. Garg, Fazal Hussain and S. 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.   S. Nariman Additional Solicitor General for India,  and S. 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 10  

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               "Regarding  E.P.  No.  4/72  Vimal  Kumar  Vs.               Thakur Virendra Singh, E.P. No. 9 /72 Mannalal               Vs.   Kanhaiyalal  Nagori and E.P.  No.  11/72               Krishna Gopal Vs.  P. C. Sethi, I have to  say               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-A(2) of the Representation of  the               People Act, 1951, 1, Chief               2 09               Justice, direct that Election Petition No.  11               of 1972 (Krishna Gopal v. 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 v. Haribhau  Joshi)               and  Election Petition No. 12 of 1972  (Satya-               naryan  v. 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               v.   Thakur  Virendra  singh)   and   Election               Petition   No.   9  of   1972   (Mannalal   v.               Kanhaiyalal Nagori) shalt continue to be tried               by  the Hon’ble Shri Justice.  S. R.  Vyas  at               the  Indore Bench of the Madhya  Pradesh  High               Court                Sd/-P.K. Trare                Chief Justice 20-8.73" 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. him.  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 10  

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 80A(2) 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  80A(2)  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 132(3) 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 10  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 10  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 10  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 10  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 10  

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 v. The State(1), 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. P.B.R. Appeal allowed. (1) I. L. R. 1951 Nag. 251. 2-L522Sup.CI/74 21 6