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Judgment
Subba Rao, C.J.—This is a petition under Article 226 of the Constitution of India, for issuing a writ of prohibition against the Election Tribunal, Eluru, prohibiting it from proceeding with the enquiry in Election Petition No. 10 of 1955 on its file.
General elections for membership to the Legislative Assembly of. the Andhra State were held on 18th February,. 1955. The Petitioner and Respondents 1 to 4 were the contesting candidates for the Guntur constituency. The first Respondent was declared duly elected. The Petitioner filed Election, Petition No. 10 of 1955 for setting aside the said election. The Election '' J Commissioner, Delhi, constituted a tribunal consisting of the foUowing three members.
(1) Sri G. Nagireddi, District Judge, Eluru
(2). Sri M. Sitaramayya, Advocate, Kakinada mand
(3) Sri Narasimhacharyulu. who was a District Judge in the Madras State before the Andhra State was formed and is now practising atifr Eluru.,
The said tribunal is now proceeding wit the enquiry into the Election Petition. . This Petitioner alleges'' that the constitution of the. tribunal is illegal .for the reason that Sri C Narasimhacharyulu is not qualified to be a pointed. member of .the tribunal and therefore the tribunal has no" jurisdiction to proceed "wit the" enquiry,
The Advocate-General appealing for the tribunal raised a preliminary. to the maintainability of the petition argued that the" Petitioner''s main attack against the validity pt the order of-the Elect Commission situated at Delhi and, therefore, this High Court, which has no jurisdiction to '' Issue a writ to run beyond the territorial jurisdiction of the Andhra State, cannot adjudicate I upon the validity of that order. In support of thus contention, reliance is placed upon Article 226 of the Constitution of India, which reads:
Notwithstanding anything in Article 32, seventy High Court shall have power, throughout I". the territories in relation to which it exercises Jurisdiction to issue to any person or authority including in appropriate cases any Government within those territories directions, order or writs, including write in the nature of habeas corpus, mandamus, prohibition, quo warren to and or any of them for the enforcement of any of the rights conferred by Part III and for "any other purpose.
Under this Article, the High Court is empowered to issue a writ of prohibition against lany authority in the Andhra State. In Short ''and Miller�s "Practice of the Crown Office" 2nd .edition page 252, a writ of prohibition is described as "a judicial writ, issuing out of a Court of superior jurisdiction and directed to an inferior Court for the purpose of preventing the inferior . from usurping a jurisdiction with which it was not legally vested."
This writ enables Courts to compel inferior Courts or tribunals entrusted with judicial duties to keep within the limits of their jurisdiction. To enable the High Court to exercise jurisdiction, the; only question to be considered! Is whether a tribunal, functioning within the territorial limits of its jurisdiction, has jurisdiction ito proceed with an enquiry, or, whether W Is exercising jurisdiction in excess of that conferred on it. The fact that an authority residing outside the territorial jurisdiction constituted a tribunal or conferred authority on it is not relevant to the enquiry. If the tribunal is illegally constituted, the fact that the constituting authority is in Delhi cannot maks tthe tri-bunaUany the less; an illegal body. The High , Courts is only concerned with a tribunal func-M Cloning within its jurisdiction. If it was illegally constituted, the said tribunal would be acting 1without-jurisdiction and therefore, it would be within the reach of the writ of prohibition. In lathes view; the preliminary objection raised by fine learned Advocate-General has no substance L and therefore, it is rejected.
Before we consider the contentions raised ""by the Petitioner, it will be convenient to state the qualifications, Sri C. Narasimhacharyulu.
(Sri C: Narasimhacharyulu retired as a District 7udge ''of "the Madras State in 1950. Since his rement, he has been practicing in Courts at Sluru, He has been receiving his pension from the Treasury. His name is in-the list Onimendeid by .the Madras High Court in Sbruary, 1955, as being suitable for appointment of the tribunal. The question is the)r Sri C. Narasimhacharyulu, with the foresaid qualifications, has been validly appoint-" by the Commission.
Learned Counsel for the Petitioner con-ids tliat the appointment of Sri C. Narasimhacharyulu was made in contravention of the poisons of Section 86 of the Representation of the apple Act (Act XLHI of 1951 - hereinafter reared to as the Act). Section 86 reads:
(l) If the petition is not dismissed u/s 85, the Election Commission shall a (Dec.) 1957 Andh. Pra. D.F./64 point an. Election Tribunal for the trial of: the petition.
(2) For the purpose of constituting such Tribunals the Election Commission shall obtain from the High Court of each State (other than Jarninu and Kashmir).
(a) a list of persons who are or have been District Judges in the State and who are in the opinion of the High Court fit to be appointed as members of the Election Tribunals, and (b) a lisit of advocates of that High Court who have been in practice for a period of not less than ten years and who are in the opinion of the High Court fit to be appointed as such members, and shall maintain the lists by. making such alterations therein as the High Court may from time to time direct.
(3) Every Tribunal appointed under Sub-section (1) shall consist of (a) a Chairman who shall be either a person who is or has been a Judge of a High Court, or a person elected by the Election Commission from the list maintained by it under Clause (a) of Sub-section (2) and (b) two other members of whom one! shall be selected by the Election Commission from the list maintained under Clause (a) of Sub-section (2) and the other shall be selected by it from the list maintained under Clause (b) of that Sub-section: Provided that where the petition for the trial of which a Tribunal is to be appointed is in respect of an election to the Legislative Assembly or the Legislative Council of a State, no person, who belongs to the Judicial service of another State shall be selected for appointment as a member of the Tribunal except with the consent of the Government of the other State.
It is argued that the Election Commission can appoint a person as a member of a Tribunal functioning in a State only from the list obtained by it from the High Court of that State. To put it differently, the contention is that the Election Commission cannot appoint a person from the list obtained from the Madras High Court as. a member of a Tribunal functioning in ,the Andhra State. This conclusion is sought to be deduced from the provisions of the aforesaid section. Under the seictipn, for the purpose of constituting Tribunals, .(the Election Cbmmis-sion shall obtain from the High Court of each State two lists: (1) a list of persons who are. or have been District Judges in the State and (2)'' a list of advocates of that High Court, who have been in practice for a, period of snot less than 10 years.
Under Sub-section 3 the commission is at of the risotto appoint� a Chairman from the list maintained under Clause-(a) by Sub-section (2) and the'' other two from the lists''-maintafried dear Clauses (a) ;and (b)'' of that'' Sub-section. is, therefore, said that'' the Commission can Appoint a member-of a Tribunal functioning that State only, from one of me lists obtained from the High we deeper grade the provisions, it is ''"not" acceptable. Tresum-ably, the "object of obtaining the lists the High Courts is ''to select competent persons T&-commended by the High Court and to eliminate, as far as possible, political influences in the constitution of the Tribunals.
The Tribunals are constituted, to hear disputes about elections to the State Legislatures and also to Parliament, The object of selecting competent and disinterested parsons will be achieved if the commission selected persons for appointment from the lists obtained from the High Courts. There is no particular reason why a person from a list obtained from a particular High Court of a State should only be appointed to the Tribunal functioning in that State.
The provisions of the section also support this view. Under Sub-Section 2, the Election Commission obtains from the High Court of each State two lists: (i) of persons who are or have been District Judges of the State and (ii) a list of advocates of. that High Court and maintains these two lists. Under Sub-Section 3, the Tribunal is authorised to appoint a judicial member from the list maintained under Clause (a) and an advocate member from the list maintained under Clause (b). Sub-Section 3 docs not say that a member of a Tribunal functioning in a State'' shall be selected only from the list obtained from the High Court of that State. But the learned Counsel stresses on the word ''list'' in Clauses (a) and (b) of Sub-Section 3 and says that it can only mean a list obtained from each of the High Court.
But the scheme of the provision is that two categories of lists, should be maintained u/s 86(2) and, therefore, the word ''list'' in Sub-Section 3 can reasonably be construed as the. lists on the principle that the singular includes the plural. (See Section 13 of the General Clauses Act). If so read, without doing violence to the language'', the provisions of the entire section will be reconciled and the object of the Legislature will be achieved. If the contrary view be accepted, the proviso would be inconsistent with the main provisions of the said section. Under the proviso, in the case of a Tribunal appointed in respect of an election to the Legislative Assembly or the Legislative Council of a State, no person who belongs to the Judicial service of another State shall be selected for appointment as a member of that tribunal except with the consent of the Government of the other State.
This proviso pre-supposes that, under the main provisions of the section, a person belonging to the judicial service of another State may be appointed to a tribunal in a different State but the consent of the Government of the latter State is made a condition for the validity of such appointment. The proviso will be in conflict with the provisions of the Sub-section if it should be held that a person in the list obtained from one High Court cannot be appointed to the Tribunal functioning in another State. It is no doubt true that the well-settled canon, of construction is that where the language of the main enactment is clear and unambiguous, a I proviso can have no repercussion on the inter pretation of the main enactment so as to exclude from it by implication what clearly falls within; its express terms. See S. M. Railway Co., Ltd. v. Bezwada Municipality . But, in this case, the language of the main enactment is not clear .and unambiguous and the language is susceptible to the interpretation, which is consistent with the proviso. A similar view has been accepted by four Division Benches of the Rajasthan High Court.
In Madan Mohan Vs. Bankatlal and Others, , adverting to a similar argument, Wanchoo, C. J., observed at page 152 as follows.
Emphasis is also laid on the words ''the list appearing in Section 86(3)(a) and (b). it is urged that the use of the word ''the list'' means that the Chairman and "the members have to be from the lists supplied by High Court of the particular State in which the election was held. We are of opinion that the use of the definite article ''the'' before the word ''list'' in Section 86(3)(a) and (b) does not mean that the Election Commission must appoint the Chairman and members from the list received from the High) Court of thei State in which the election was held. The definite article was used in Section 86(3) because the two lists had already been particularised in Section 86(2) �a) and (b).
It may also be pointed out that u/s 13 of the. General Clauses Act, unless there is anything repugnant in the subject or context, words in the singular include the plural and vice-versa. Section 86 (2) (a) and (b) uses the word ''list'' in the singular but in view of Section 13 of the General Clauses Act, the singular includes the plural and there is nothing repugnant in the context of this section to show that the words ''the list'' mentioned in Section 86(3)(a) and (b) do not mean all the lists maintained u/s 86 (2) (a) and 86 (2) (b).
The same view was expressed by the same High Court in Sangramsingh Vs. Election Tribunal, Kotah, , Rawat Man Singh Vs. Roop Chand Sogani and Others, , and Tej Singh Vs. Election Tribunal, Jaipur and Others, . We respectfully agree with the aforesaid view. We, therefore, hold that the Elieelfton Cbmmlission is within its rights in appointing a person from the list obtained from the Madras High Court to the Tribunal functioning in the Andhra State.
The next contention is that under Clause (a) of Sub-Section 2 of Section 86, the qualification for selection is that a person should continue" to be a District Judge at the time the list is obtained from the High Court. Reliance is placed upon the words ''have been District Judges in the State'' in the said sub-clause and it is contended that ''have been'' is present perfect continuous and therefore, a retired Judge is not qualified under that sub-clause. It is true thai ordinarily and grammatically the words have been'' connote an idea of continuity. But, in tr context in which these words are used, we has no doubt that they refer to retired Judges. Tab clause reads: ''C "a list of persons who are or have been District Judges in the State.
The words "are or have been District Judged indicate two different categories of officers. The word ''or'' clearly shows that persons who are District Judges and persons, who have been District Judges, belong to two different groups, for, ''or'' is always used to distinguish the two subjects preceding it and following it in the argument of the learned Counsel for the pep-tioner be accepted, the words ''have been would be redundant.
It is a well recognised canon of construction that one which will leave without effect, any part of the language: of a statute, will normally be rejected. If so constructed, the words ''are? trict Judges'', refer to District Judges in 0'' and the words ''have been District Judges) relate to Judges, who were District Judge who retired from service.
The decision in KrishnarnurtM Madras Hindu Religious Endowments Bos 1957 fad 11 384 : AIR J93.5 Mad 921) (F), is not of help in deciding this question. The learned iJudge was construing the words in the definition pf an excepted temple u/s 0(5) of thq fMadras Hir,du Religious Endowment; Act. Under that clause, a temple would be an excepted tem-fple if the right of succession to the office of trustee thereof is hereditary. The learned Counsel largued before the learned Judge that, wherever 4 ''religious institution was shown to have been Jbunded by the ancestors of the claimant, it must the held to be an institution, the trustee where of was: hereditary within the meaning of that definition, and therefore, it was an excepted temple the learned Judge, relying upon the words las been'', among other circumstances, held that in said words suggest that the right contemplated was one which had continued to be exercised up-to-date.
The construction put upon the words occurring in a different context cannot be of much Relevance in construing the provisions of Section 86 of the Act. In this view, Sri C. Narasimhacha-fryulu is certainly'' qualified to be appointed a Member of the Tribunal.
Learned Counsel then contended that f Clauses (a) and (b) of Sub-Section 2 are mutually exclusive and that a person qualified to be placed in the list prepared under Clause (b) cannot be put in the list prepared under Clause (a). To put it differently, if a person is a practising Advocate, the argument proceeds, he cannot be placed in the list of persons who are or have been District Judges in the State, though, as a matter of fact, they were retired Judges of that State.
If this argument be accepted, by the same parity of reasoning, a retired District Judge cannot be placed in a list prepared under Clause (b): though he is a practising advocate. The result 1 would''be that the High Court can recommend a fcretired District Judge or a practising lawyer but lit cannot recommend either of them if he possesses both the qualifications. We cannot accept |this contention.
If person possesses both ''the qualifications, it his for the High Court concerned, to recommend'' such a person by putting him in one or other of a two lists. The Election Commission can there-Iter appoint such a person under Sub-section (3) belonging to the category in which has them.
It was then argued that under the fAndhra State Act, 1953, the composite Madrasi 3tate was divided into three parts. One part was added to the Mysore State and, out of the) If Balance, two new States were formed, the Madias State and the Andhra State, and, therefore, a retired Judge of the composite Madras State Could not be recommended by the present High aurt of Madras. In support of this argument, fianc� is placed upon the provisions of the gndhra State Act, 1953. The relevant provisions; the Andhra State Act are:
"5. Amendment of the First Schedule to the institution: In the First Schedule to the (a) In part A, entries 1 to 9 shall be renumber as entries 2 to 10 respectively, and before entry so renumbered, the entry "1 Andhra" shall Inserted:
In part A in the description of the tersest of States (1) before the paragraph re-iig to. the territory of the State of Assam, the If pawing paragraph shall be inserted, namely;
The territory of the State of Andhra shall comprise the territories specified in Sub-section (1) of Section 3 of the Andhra State Act, 1953" and (ii) at ith(c) end of last paragraph, tho following shull be added, namely f "But in the case of the State of Madras shall not include the territories specified in Sub-section (1) of Section 3 and Sub-section (1) of Section 4 of the Andhra State Act, 1953" and (c) in part B, at the end of the paragraph containing the description of the Territories of States, the following shall be added, namely ;
and in the case of the State of Mysore shall also comprise the territory specified in Sub-section (1) of Section 4 of the Andhra State Act: 1953.
Section 30 - Jurisdiction of Andhra High Court. The High Court of Andhra shall have, in respect of the territories for the time being included in the State of Andhra, all such original, appellate and other jurisdiction as, under the law in force immediately before the prescribed day; is exercisable in respect of the said territories or any part thereof by the High Court at Madras.
Part A of the Constitution.
Andhra. e. Madras 2. Assam 3. Bihar.
Bombay.
Orlssa.
Punjab.
Uttar Pradesh.
Madhya Pradesh. 10. West Bengal.":
The aforesaid provisions show that, out of the area included in the composite State of Madras, two definite parts were carved out, one forming the Andhra State and the other being added to the Mysore State. The balance of the area continued to be the Madras State. So far as the Madras State is concerned, no new State was formed but only a portion of the area constituting that State was taken out to be formed into a different State.
In this view, the present Madras State retained its. continuity and it is not possible to hold that the present Madras State is a New State carved out of the earlier composite Madras State. Therefore, a retired Judge of the Madras State before 1st October, 1953, is a retired Judge of the present Madras State. Sri C. Narasimha-charyulu, therefore, could not be considered to be a Judge of some other State, which is no longer in existence, but was Judge of the present Madras State.
The decision of the Rajasthan High Court in The Mewar Textile Mills Ltd. Vs. The Industrial Tribunal and Others, does not support the learned Counsel for the Petitioner. There, an application was filed under Article 226 of the Constitution of India, challenging the appointment of Shree Sukhdeo Narain, a retired Judge of the High Court of the former State of Jodhpur as Industrial Tribunal u/s 7 of the Industrial Disputes Act (Act XIV of 1947) to decide a dispute arising in the State of Rajasthan. He was also a former District Judge of Jodhpur. Section 7 (3) of the Industrial Disputes Act reads:
Where a Tribunal consists of one member only, that member, and where it consists of two or more members, the Chairman of the Tribunal shall be a person who (a) is or has been a judge of a High Court or (b) is or has been a District Judge or (c) is qualified for appointment as a Judge of a High Court '' provided that no] appointment under the cub-1 section to a tribunal shall be made of any person not qualified under Clause (a) or Clause (b) except with the approval of the High Court of the State in which the Tribunal has, oris intended to have its usual seat.
It was argued that he is qualified to be appointed as a Judge of the High Court and that he was a former District Judge of Jodhpur. The division Bench of the Rajasthan High Court rejected the plea on the ground that he was neither a Judge of the High Court of Judicature for Rajasthan nor a District Judge of the United States or Rajasthan. Dealing with the argument, the learned Judges state at page 164 as follows.
The United State of Rajasthan came into existence on 7th April, 1949 and the United State of Matsya was integrated with it on 15th May, 1949. The question then falls for consideration is whether a District Judge of the former State of Jodhpur is included in the word ''District Judge'' which appears in Section 7(3) (a), Industrial Disputes Act, when read with Section 5 (ix) of Ordinance IV of 1950.
Learned Counsel for the State admits that Shree Sukhdeo Narain was not a Judge of ''Rajasthan'' within the meaning of Section 5(ix) of Ordinance IV of 1950. His contention however is that Shree Sukhdeo Narain was a Judge ''in'' Rajasthan, and, therefore, eligitoie tor appointment, It is contended that the word ''Rajasthan'' in Section 5 (ix) is a geographical expression only, and as Snree Sukhdeo Narain was a District Judge in the former Jodhpur State, which was geographically situated in what is now called the United State of Rajasthan, he is qualified u/s 7 (3)(a) as a District Judge. We are, however, of opinion that in view of the provisions of Ordinance 1 of 1949 the word "Rajasthan" has not a mere geographical meaning. Rajasthan, as we have already said has been defined in Ordinance I of 1949, as-the United States of Rajasthan.....
..... It is obvious, that the words "judges, Magistrates, Officers or authorities ''of Rajasthan mean judges, etc. who are in the service of the United State of Rajasthan.
There is an essential distinction between the constitution of the United States of Rajasthan and the continuation of the residuary State of Madras, In the former ease, different states were constituted into a hew State, the different states losing their identity and merging into a new State, whereas, in the latter case, the former State of Madras did not lose its identity but continued to be as before, though part of it was carved out from its area and formed into a new State. A District Judge of Jodhpur was not a District Judge of the United State of Rajasthan. Whereas a District Judge of the Madras State is certainly a District Judge of the present Madras State. That decision has no bearing on the question to be decided in the present case. Further, if this argument be accepted, it would lead to the; anomaly of all of the District Judges of the composite State of Madras, who have retired before 1st October, 1953, being disqualified for appointment to the Tribunal for none of them would be retired Judges of either the present Madras State or the Andhra State. We therefore hold that Sri.G. Narasimhacharyulu was a District Judge of the Madras State.
Nor can we accept the last contention of the learned Counsel that Sri G. Narasimhacharyulu is a District Judge of the Andhra State for the reason that though he retired before the formation of the ''Andhirav State, he is drawing pension from a treasury situated in the Andhra State. Assuming, without admitting that a pensioner is in the judicial service of that State, the argument; even accepted, would enable both the Madras High Court and the Andhra High Court to recommend his name for appointment to the Tribunal, for even if he be deemed to be a District Judge of the Andhra State now, he was certainly a District Judge of the Madras State. The Madras High Court had,, therefore, ample jurisdiction to recommend him as a person who had been District Judge in the Madras State. Though we are also inclined to reject the plea that a retired District Judge drawing a pension must be deemed to continue in the judicial service oil the State as a District Judge, it is not necessary to express our final opinion on that question as even in that view the Madras High Court was well within its powers to recommend the name of Sri G. Narasimhacharyulu as a Retired District Judge of that State.
For the aforesaid reasons, we dismiss the application with costs. Advocate''s fee Rs. 200/-.