Judgment

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 referred 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.

2. 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 appellant and respondents 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 81 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 Bishambhar Dayal C. J.) 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.

3. 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 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.

4. 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:

"Regarding E. P. No. 4/72 Vimal Kumar v. Thakur Virendra Singh, E. P. No. 9/72 Mannalal v. Kanhaiyalal Nagori and E. P. No. 11/72 Krishna Gopal v. P. C. Sethi, I have to say that as I have been 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, I, Chief Justice, di