judgement:
Criminal Appeal No. 702 of 1989.
From the Judgment and Order dated 4.7.1988 of the Andhra Pradesh High Court in W.P. No. 8610 of 1988.
M.C. Bhandare and Ms. C.K. Sucharita for the Appellant.
Ganesh, section Muralidhar, T.V.S.N. Chari and Raghav for the Respondents.
109 The Judgment of the Court was delivered by K.N. SAIKIA, J.
Special leave granted.
This appeal is from the Judgment and Order of the High Court of Andhra Pradesh at Hyderabad dated 4.7.1988 passed in Writ Petition No. 86 10 of 1988.
The appellant states that he enjoys popularity in his area and that he previously held several important positions in the Cuddapah District of Andhra Pradesh, such as organis ing Secretary of the Andhra Pradesh Congress Committee for several years, a Municipal Councillor from 1982 to 1986 and a Vice Chairman of Cuddapah Municipal Council.
According to him in December 1985 he was elected as a Chairman of the Cuddapah Municipal Council for its residuary term and in March 1987 he was elected to the Municipal Council as an independent candidate defeating the Telugu Desam and Con gress (I) candidates by a large margin.
It is his case that the local leadership of the ruling Telugu Desam Party.
having failed to woo him into their fold he was pressurised through the Excise and Police authorities foisting false cases upon him.
On 13.11.1987, the police having summoned him to the Police Station for taking his photograph as was done in case of criminals, he moved the Andhra Pradesh High Court by Writ Petition No. 79038 of 1987 and the High Court was pleased to issue directions as prayed for, by its order dated 17.12.1987.
Thereafter the excise authorities are stated to have registered some cases against the appellant who applied for and was granted bail on 10.5.1988 rejecting the Excise authorities ' prayer for custody.
Scenting a move to detain the appellant under the provisions of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986, hereinafter referred to as 'the Act ', the appellant filed Writ Petition No. 8610 of 1988 on 6.6.1988 in the Andhra Pradesh High Court averting, inter alia, that the successive actions initiated against him were a part of political vendetta.
A learned Single Judge on 8.6.1988 was pleased to direct interim the respondents not to take the appellant into preventive custody for a period of 15 days on basis the cases already registered.
However, on 10.6.1988 the appellant was served the detention order in S.No.
7/1988 dated 3.6.1988 as well as the grounds of deten tion; and he was taken into custody and detained in Secun derabad jail, but was released after four days.
The deten tion order stated that with a view to preventing him from acting in a manner prejudicial to the maintenance of public order, it was 110 necessary to make an order directing that "he shall be de tained.
" The grounds of detention as served upon the appel lant contained altogether 13 grounds ranging a period from 23.11.1974 to 7.5.1988.
The appellant filed on 25.6.1988 in his writ petition a miscellaneous petition being W.P.M.P.S.R. No. 51830, as an additional affidavit, stating, inter alia, that the writ petition was filed by him seeking a direction to the re spondents to refrain from making an order detaining him under the provisions of the Act and the same was admitted and interim direction issued.
But thereafter the detention order in S.No. 7 of 1988 dated 3.6.1988 was served on him on 10.6.1988 and, therefore, he submitted the additional affi davit with reference to the impugned order of detention.
He assailed therein the grounds of detention as vague, stale, non existent and, in any case, irrelevant bearing no reasons for the decision that his detention was necessary to prevent him from acting in a manner prejudicial to the maintenance of public order.
He also assailed the order on grounds of non application of mind by the respondent NO. 2 and absence of nexus between the grounds and maintenance of public order and of non disclosure of any rational basis for formation of such an opinion.
He refuted and denied each of the 13 grounds and prayed that the writ petition be amended by substituting the prayer so as to issue a writ, order or direction and more particularly one in the nature of writ of mandamus declaring the order of the Collector and District Magistrate respondent No. 2 herein in S.R. No. 7 of 1988 dated 3.6.1988 made under Act 1 of 1986 as illegal and void and to pass such other orders as are necessary in the inter ests of justice.
Admittedly no specific order was passed on this miscellaneous petition.
It appears that a Counter Affidavit was filed in the writ petition on behalf of the respondents and the appellant filed a reply affidavit there to.
A Division Bench of the High Court of Andhra Pradesh on reference by the learned Single judge heard the writ peti tion analogously with another writ petition and observing, inter alia, that as an order of detention was made even before the writ petition was filed, held that the prayer in the writ petition had become infructuous; and that there were no extraordinary or special reasons to depart from the normal rule, namely, that in such a case the appellant should first surrender and move for a writ of habeas corpus, and accordingly dismissed the writ petition.
Mr. M.C. Bhandare, the learned counsel for the appellant submits, inter alia, that the High Court erred in dismissing the appellant 's 111 writ petition holding that there were no extraordinary circumstance, or special reasons to depart from the normal rule that the appellant in such a case should first surren der and then move a petition for habeas corpus thereby refusing to grant relief to the appellant against infringe ment of his fundamental right to liberty; and that the grounds of detention were vague, irrelevant, stale and non existent having no relation to the stated purpose of deten tion, and there was mala fide exercise of power and complete non application of mind on the part of the detaining author ity for which the grounds of detention ought to have been rejected and the detention order set aside.
Counsel relies on a decision of the Bombay High Court reported in 1981(1) Crl.
L.J. 767 and one of the Gujarat High Court since re ported in AIR 1978 Gujarat 253.
Counsel further submits that the detention order having not been approved by the State Government as required under section 3(3) of the Act and the appellant 's case having not been placed before the Advisory Board as required under section 10 the detention order ceased to be in force and hence is liable to be quashed.
Mr. M.S. Ganesh, the learned counsel for the respondents submits that the detention order having been passed before the writ petition was filed, the High Court was right in dismissing the same following the court 's practice and procedure; and that there were no extraordinary or special reasons to depart from the normal rule inasmuch as granting relief at such a stage would defeat the very purpose of the Act.
Counsel however, could not deny that the detention order was not approved by the State Government and that the appellant 's case was not placed before the Advisory Board.
The first question to be decided therefore, is whether the High Court was right in dismissing the writ petition holding that the rule or practice of the High Court in such a case was to interfere only where there were extraordinary or special reasons and otherwise to leave the appellant to first surrender and then move a petition for habeas corpus.
From a perusal of the Judgment of the High Court it appears that it analysed the question of maintainability of the writ petition from two view points, namely, of the High Court 's power, and the High Court 's rule or practice.
The High Court correctly analysed the power of the High Court to interfere in such a case under Article 226 of the Constitu tion of India concluding that the High Court had power to interfere.
While tracing the High Court 's evolving rule or practice, the Bench took the view that it was but appropri ate and proper that the 112 court evolved and followed a practice and procedure where it would not ordinarily entertain a challenge to a preventive detention unless the person concerned submitted himself to the order and not to encourage persons against whom orders of preventive detention were made by the competent authority under a valid enactment to avoid the process of law and at the same time seek the protection of law from this Court.
Relying on several decisions of its own, the Court observed: "There is no presumption that any and every order of detention is bad.
The normal rule shall therefore be "surrender to the order first and then approach this Court.
" Only in extraordinary cases, where it appears that the State is exercising its power under a preven tive detention statute for an oblique purpose, or in an outrageous and/or vindictive manner, or where the order of detention is ex facie invalid, would this Court depart from this rule.
Now, what would be such extraordi nary case cannot and, indeed, should not be defined or specified.
It is better left to the sound judgment and decision of this Court.
" The High Court on facts of the appellant 's writ peti tion, observed that the allegations that the entire adminis trative machinery was being misused by the local MLA who happened to be a Cabinet Minister to hound the appellant and that the Collector and District Magistrate was being used as a tool were not correct and, therefore, said: "Once we are of the opinion that there are no extraordinary or special reasons to depart from the normal rule, we will not look into or examine the relevance or correctness of the grounds as we would do in a writ of habeas corpus.
" The writ petition was accordingly dismissed.
Mr. Bhandare submits that when the appellant 's fundamen tal right to liberty was threatened through the machination of a detention order, he approached the High Court for protection and when despite the interim order of the High Court his fundamental right was violated by detaining him, after serving the order of detention on vague, stale, irrel evant and non existent grounds, though he was released after four days, he ought not to have been denied relief on the ground of there having evolved a practice or procedure of the Court not to interfere in such a case except where there were extraordinary or special reasons 113 and to leave the appellant to surrender and then move a petition for habeas corpus.
We find force in this submis sion.
As the detention order was already passed and served and the detenu was already taken into custody during the pendency of the writ petition, these subsequent events having been brought to the notice of the court by a Misc.
application in the form of an Additional Affidavit the same ought to have been dealt with by the High Court.
In Jayantilal Bhagwandas Shah vs The State of Maharash tra, , the challenge was directed towards orders of detention passed under the , but the intended detenus under those orders were not in detention.
The State having raised a preliminary objec tion to the maintainability of the petition on the ground that the habeas corpus jurisdiction under article 226 of the Constitution was exercisable only to examine the legality of a detention where there was a detention and in no other case, a Division Bench of the Bombay High Court took the view that though the writ of habeas corpus might be issued only when there was actual illegal detention, that was not to say that an illegal order of detention could not be successfully challenged.
In para 11 of the report, the Court held: "article 226 is couched in language wide enough to protect a person against an illegal inva sion of his fight to freedom by protecting him while still free and by regaining his freedom for him if he has already been wrongfully detained.
We cannot countenance and do not accept the Advocate General 's submission that the High Courts are impotent to give relief against the prospect of illegal detention and must first require the intended detenu to surrender to the illegal detention.
We are satisfied that the High Courts may under the provisions of article 226 issue a direction, order and writ in the nature of mandamus and/or certiorari quashing an illegal order of detention and may by direction, order and writ in the nature of prohibition enjoin the person threatening the illegal detention from execut ing the threat.
" Accordingly the Court held that it would intervene to strike down an illegal order of detention.
If the court could in matters of personal liberty intervene on the strength of a mere post card, they surely could intervene on the strength of a petition, though they may seek the 114 wrong relief or be phrased in the wrong form.
The position of a person who is actually under illegal detention and of a person who is in imminent jeopardy of illegal detention are not far dissimilar.
We are inclined to agree with this view as we feel that refusal to interfere in such a case may amount to denial of the fundamental right itself.
A Full Bench of the Gujarat High Court in Vedprakash Devkinandan Chiripal vs State of Gujarat, since reported in AIR 1987 Gujarat 253 where the petitioner was said to be detained under the provisions of Prevention of Blackmarket ing and maintenance of Supply of Essential Commodities Act, 1980 and the petitioner having absconded, a notification was issued in the official gazette as provided under section 7(1)(b) of the said Act and the person moved the petition under article 226 of the Constitution of India praying a writ of habeas corpus or a writ of mandamus, the question was whether the petition would be maintainable before the detenu had been served with order of detention and had been de tained in custody, answered the question in the affirmative.
Relying on the decisions in A.K. Gopalan vs State of Madras, ; and Addl.
District Magistrate, Jabalpur vs Shivakant Shukla; , , the Full Bench took the view "that before detention, if writ of mandamus is moved for challenging unauthorised detention order which is al ready passed on the ground that the order is a nullity because it is passed (a) by an incompetent person or (b) it is a mala fide order or (c) it is contrary to the legal procedure prescribed for passing such order, or (d) it is otherwise a nullity for any other reason, for example, passed against a wrong person, it cannot be said that such challenge would be per se not maintainable.
" We are inclined to agree inasmuch as it would be a challenge to an existing order of detention which is posing an imminent threat to a fundamental right of the named person guaranteed under article 21.
There could, therefore, be no reason why in such an exceptional and rare case, detention order already made, and either served or yet to be served, and the person is still free could not be legally brought under challenge.
Article 226(1) of the Constitution of India notwith standing anything in Article 32, empowers the High Court throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government within those territo ries directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other pur pose; and it also envisages 115 making of interim orders, whether by way of injunction or stay or in any other manner in such a proceeding.
Article 21 giving protection of life and personal liberty provides that no person shall be deprived of his life or personal liberty except according to procedure established by law.
For en forcement of one 's right to life and personal liberty resort to Article 226(1) has thus been provided for.
What is the ambit of enforcement of the right? The word 'enforcement ' has also been used in Article 32 of the Constitution which provides the remedy for enforcement of fights conferred by Part III of the Constitution.
The word 'enforcement ' has not been defined by the Constitution.
According to Collins English Dictionary to enforce means to ensure observance of or obedience to a law, decision etc.
Enforcement, according to Webster 's Comprehensive Dictionary, means the act of enforcing, or the state of being enforced, compulsory execu tion; compulsion.
Enforce means to compel obedience to laws; to compel performance, obedience by physical or moral force.
If enforcement means to impose or compel obedience to law or to compel observance of law, we have to see what it does precisely mean.
The right to life and personal liberty has been guaranteed as a fundamental right and for its enforce ment one could resort to Article 226 of the Constitution for issuance of appropriate writ, ' order or direction.
Precisely at what stage resort to Article 226 has been envisaged in the Constitution? When a right is so guaranteed, it has to be understood in relation to its orbit and its infringement.
Conferring the right to life and liberty imposes a corre sponding duty on the rest of the society, including the State, to observe that fight, that is to say, not to act or do anything which would amount to infringement of that right, except in accordance with the procedure prescribed by law.
In other words, conferring the fight on a citizen involves the compulsion on the rest of the society, includ ing the State, not to infringe that right.
The question is at what stage the right can be enforced? Does a citizen have to wait till the right is infringed? Is there no way of enforcement of the right before it is actually infringed? Can the obligation or compulsion on the part of the State to observe the fight be made effective only after the right is violated or in other words can there be enforcement of a fight to life and personal liberty before it is actually infringed? What remedy will be left to a person when his right to life is violated? When a right is yet to be violat ed, but is threatened with violation can the citizen move the court for protection of the right? The protection of the right is to be distinguished from its restoration or remedy after violation.
When right to personal liberty is guaran teed and the rest of the society, including the State, is compelled or obligated not to violate that right, and if someone has threatened to violate it or its violation is imminent, 116 and the person whose right is so threatened or its violation so imminent resorts to Article 226 of the Constitution, could not the court protect observance of his right by restraining those who threatened to violate it until the court examines the legality of the action? Resort to Article 226 after the right to personal liberty is already violated is different from the pre violation protection.
Post viola tion resort to Article 226 is for remedy against violation and for restoration of the right, while pre violation pro tection is by compelling observance of the obligation or compulsion under law not to infringe the right by all those who are so obligated or compelled.
To surrender and apply for a writ of habeas corpus is a post violation remedy for restoration of the right which is not the same as restrain ing potential violators in case of threatened violation of the right.
The question may arise what precisely may amount to threat or imminence of violation.
Law surely cannot take action for internal thoughts but can act only after overt acts.
If overt acts towards violation have already been done and the same has come to the knowledge of the person threat ened with that violation and he approaches the court under article 226 giving sufficient particulars of proximate actions as would imminently lead to violation of right, should not the court call upon those alleged to have taken those steps to appear and show cause why they should not be restrained from violating that right? Instead of doing so would it be the proper course to be adopted to tell the petitioner that the court cannot take any action towards preventive justice until his right is actually violated whereafter alone he could petition for a writ of habeas corpus? In the instant case when the writ petition was pending in court and the appellant 's right to personal liberty happened to be violat ed by taking him into custody in preventive detention, though he was released after four days, but could be taken into custody again, would it be proper for the court to reject the earlier writ petition and tell him that his petition has become infructuous and he had no alternative but to surrender and then petition for a writ of habeas corpus? The difference of the two situations, as we have seen, have difference legal significance.
If a threatened invasion of a right is removed by restraining the potential violator from taking any steps towards violation, the rights remain protected and the compulsion against its violation is enforced.
If the right has already been violated, what is left is the remedy against such violation and for restora tion of the right.
In K.K. Kochunni vs The State of Madras and Ors., [1959] Suppl.
2 SCR 316, where the grievance of the petitioner was that the Madras Marumakkathayam (Removal of Doubts) Act, 1955 (Act 32 of 1955), 117 provided in section 2 of the Act that notwithstanding any decision of court any Sthanam which fulfilled the conditions stated in the section shall be deemed to be and shall be deemed always to have been properties belonging to the tarwad to which the provisions of the Madras Marumakkathayam Act, 1932 shall apply, and thus, unlike other Acts that contemplated some further action to be taken by the State after the enactment had come into force, automatically took away or abridged a person 's fundamental right (as right to property then was) immediately it came into force, a Consti tution Bench of this Court speaking through Das C.J. held that there was no reason why the aggrieved person should not immediately be entitled to seek the remedy under article 32 of the Constitution.
The argument that an application under article 32 could not be maintained until the State had taken or threatened to take any action under the impugned law which again, if remedy to be taken would infringe the petitioner 's fundamental rights, was negatived by this Court holding that in cases arising under those enactments the proprietors could invoke the jurisdiction of this Court under article 32 when the State did or threatened to do the overt act, (emphasis supplied).
It was observed that quite conceivably an enactment may immediately on its coming into force take away or abridge the fundamental rights of a person by its very terms and without any further overt act being done.
The impugned Act was said to be an instance of such enactment.
In such a case, it was held, the infringement of the funda mental right was complete eo instanti the passing of the enactment and, therefore, there could be no reason why the person so prejudicially affected by the law should not be entitled immediately to avail himself of the constitutional remedy under article 32.
It was also observed that to say that a person, whose fundamental right had been infringed by the mere operation of an enactment, was not entitled to invoke the jurisdiction of this Court under article 32, for the en forcement of his fight would be to deny the benefit of a salutary constitutional remedy which was itself his funda mental right.
The same reasoning is applicable to the facts of the instant case inasmuch as the detention order was already passed and served and the appellant was already taken into custody and though released after 4 days the Government could at any time cancel his release under sec tion 15 of the Act.
In the Special Reference No. 1 of 1964, reported in [ ; the Constitution Bench speaking through Gajendragadkar, C.J. held (at page 493): "If a citizen moves this Court and complains that his fundamental fight under article 21 had been contravened, it would 118 plainy be the duty of this Court to examine the merits of the said contention, and that inevitably raises the question as to whether the personal liberty of the citizen has been taken away according to the procedure estab lished by law.
In fact, this question was actually considered by this Court in the case of Pandit Sharma, [1959] Supp. 1 SCR 806." The same law applies to a High Court moved under Article 226 of the Constitution of India against similar contravention.
In M.C. Mehta vs Union of India, [1987] 1 SCC 395, the Constitution Bench speaking through Bhagwati, C.J. said: "We are also of the view that this Court under Article 32(1) is free to devise any procedure appropriate for the particular purpose of the proceeding, namely, enforcement of a fundamental right and under Article 32(2), the Court has the implicit power to issue whatever direction, order or writ is necessary in a given case, including all incidental or ancillary power necessary to secure enforcement of the fundamental right.
The Power of the Court is not only injunctive in ambit, that is, preventing the infringement of a fundamental right, but it is also remedial in scope and provides relief against a breach of the fundamental right already committed vide Bandhua Mukti Morcha case. ; If the court were powerless to issue any direction, order or writ in cases where a fundamental right has already been vio lated, Article 32 would be robbed of all its efficacy, because then the situation would be that if a fundamental right is threatened to be violated, the court can injunct such violation but if the violator is quick enough to take action infringing the fundamen tal right, he would escape from the net of Article 32.
That would, to a large extent, emasculate the fundamental right guaranteed under Article 32 and render it impotent and futile." "Despite the power of the State" says Jean Dabin, "there are always smart people who contrive to violate the laws without incurring the rigours of compulsion; or, again, certain rules are psychologically or technically awkward to apply, so that the machinery of compulsion lends them but insufficient aid.
In any case, actual inefficacy or impo tence of compulsion can affect the validity of the rule even less than disobedience; that validity binds, and continues to bind, by virtue of 119 the very disposition made by the rule.
" Analytical positivist concept of right has been differ ently analysed.
Hohfeld writing on fundamental legal con cepts as applied in judicial reasoning analysis four ideas.
One of those is that a right may be claim right.
P has a right to do X, it means to indicate that Q or everyone else has a duty to let P do X.
The existence of such a duty gives P some sort of claim against Q. Claim rights may be either in personam or in rem.
A claim right in personam co relates to a duty of a person, while claim rights in rem co relate to duties in principle incumbent on everyone.
A right en joyed by one thus co relates to a duty on the part of oth ers.
In Hans Kelsen 's analysis it is usual to oppose the concept of right to the concept of obligation and to cede priority of rank to the former as we speak of rights and duties.
The behaviour of one individual that corresponds to the obligated behaviour of the other is usually designated as a content of a 'right ' as an object of a 'claim ' that corresponds to the obligation.
"The behaviour of the one individual that corresponds to the obligated behaviour of the other, particularly the claiming of the obligated beha viour, is designated as exercising a right." In case of an obligation to tolerate something, the behaviour of the one corresponding to the obligation of the other is spoken of as 'enjoyment ' of the right.
According to Kelsen the 'right ' or a 'claim ' of an individual, is merely the obligation of the other individual or individuals.
When we speak of a right as a legally protected interest, in the words of Kelsen, it refers to a right as the "reflex of a legal obligation".
Right is often understood as a will power conferred by law.
A 'right ' in the sense is present if the conditions of the sanction that constitutes a legal obligation includes a motion, normally of the individual in relation to whom the obligation exists; the motion is aimed at the execution of the sanction and has the form of a legal action brought before the law applying organ.
Then this organ may apply the general norm to effectuate the fight, which is the reflex of the legal obligation by executing the sanction.
The right which is the reflex of legal obligation is equipped with the legal power of the entitled individual to bring about by a legal action the execution of a sanction as a reaction against the non fulfilment of the obligation whose reflex is his right; or as it is sometimes called, the enforcement of the fulfilment of this obligation.
To make use of this legal power of motion is exercise of the right.
In this sense each right of an individual contains a claim to the behaviour of another individual namely to that behaviour to which the second individual is obligated toward the first; the beha viour that constitutes 120 the content of the legal obligation identical with the reflex right.
If an individual, towards which another indi vidual is obligated to a certain behaviour, does not have the legal power to bring about by a legal action the execu tion of a sanction as a reaction against the non fulfilment of the obligation, then the act by which he demands fulfil ment of the obligation has no specific legal effect; the act is legally irrelevant, except for not being legally prohib ited.
Therefore, a 'claim ' as legally effective act exists only when a law exists, which means that an individual has the legal power.
The subject of a right may be not only one individual but two or several individuals, including the State.
In the language of Kelsen the right of an individual is either a mere reflex right the reflex of a legal obligation existing towards this individual; or a private right in the technical sense the legal power bestowed upon an individual to bring about by legal action the enforcement of the ful filment of an obligation existing toward him, that is, the legal power.
From the above analysis it is clear that in the instant case the appellant 's fundamental right to liberty is the reflex of a legal obligation of the rest of the society, including the State, and it is the appellant 's legal power bestowed upon him to bring about by a legal action the enforcement of the fulfilment of that obligation existing towards him.
Denial of the legal action would, therefore, amount to denial of his right of enforcement of his right to liberty.
A petition for a writ of habeas corpus would not be a substitute for this enforcement.
We, therefore, proceed to consider the merits of this case instead of remanding to the High Court to avoid further delay.
Mr. Bhandare 's submission is that the detention order having not been approved by the State Government under sub section (3) of section 3 it had ceased to be in force after 12 days of its being made.
We find force in this submission on the facts of the case.
Section 3 of the Act provides the power to make detention orders.
Sub section (1) thereof empowers the State Government to make a detention order.
Sub section (2) empowers the State Government to authorise a District Magistrate or a Commissioner of Police to exercise the powers conferred by sub section (1) during such period as may be specified in the order not exceeding three months at the first instance with power to extend such period from time to time by any period not exceeding three months at any one time.
Admittedly, the impugned detention order was passed by the District Magistrate in exercise of powers under section 2.
Sub section (3) is to the following effect: 121 "When any order is made under this section by an officer mentioned in sub section (2), he shall forthwith report the fact to the Govern ment together with the grounds on which the order has been made and such other particulars as in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the Government.
" Examining the records we find that before the High Court in the Misc.
case W.P.M.P.S.R. 51830 in the form of an Additional Affidavit at para 11 it was urged: "Apart from the infirmities stated above which vitiate the order, statutory requirement of reporting to the Government and obtaining approval of the Government within the pre scribed time has not been complied with.
" In the counter affidavit filed by the Collector and District Magistrate in the High Court to the writ petition as well as the W.P.M.P., there was no reply to para 11 of the W.P.M.P. and it was nowhere stated that the detention order was approved by the State Government.
In this Court in the Special Leave Petition Ground No. V is as follows: "The Hon 'ble High Court has erred in not noting the infirmity in the order of detention inasmuch as the approval of State Government of Andhra Pradesh for the order of the deten tion made by the District Magistrate, Cuddapah was not obtained within the period of 12 days as enjoined under sub section (3) of section 3 of the Act.
The order is therefore non est in law." In the Counter Affidavit of the Collector and District Magistrate there was not even a whisper in denial of this fact.
The learned counsel for the respondents at the heating could not deny before us that the detention order had not been approved by the Government within 12 days.
On his request time was granted to produce materials.
He has now filed reply affidavit on behalf of the respondents to the rejoinder affidavit filed by the appellant.
Scanning this affidavit also we do not find any statement that the deten tion order was approved.
Though the learned counsel submits that it was 122 approved, in view of the above affidavits it cannot be acted upon.
We have, therefore, no other alternative than to hold that the detention order had not been approved by the State Government within 12 days of its being made.
The result is that the order could not claim in force more than 12 days after making thereof and as such must be treated as to have ceased to be in force and non existent thereafter.
Mr. Bhandare then submits that the case of the appellant was not at all referred to the Advisory Board under section 10 of the Act.
This too has not been denied by the learned counsel for the respondents.
Section 10 of the Act provides for reference to the Advisory Board and says: "In every case where a detention order has been made under this Act, the Government shall within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by them under section 9, the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in the case where the order has been made by an officer, also the report by such officer under sub section (3) of section 3.
" Section 11 of the Act prescribes the procedure for the Advisory Board.
Under sub section (1) of section 12, in any case where the Advisory Board has reported that there is, in his opinion sufficient cause for the detention of a person, the Government may confirm the detention order and continue the detention of person concerned for such period not ex ceeding the maximum period specified in section 13 as they think fit.
Under sub section (2) thereof in any case where the Advisory Board has reported that there is, in his opin ion, no sufficient cause for the detention of the person concerned, the Government shall revoke the detention order and cause the person to be released forthwith.
Thus section 10 makes it mandatory for the Government to place the ground on which the order has been made and the representation, if any made by the person affected by the order and in the case where the order has been made by an officer also the report by officer under sub section (3) of section 3.
This section prescribes a period of 3 weeks from the date of detention irrespective of whether the person continues to be in deten tion or not.
Therefore, even though the detenu was released, if the detention order was in force, his case was required to be placed before the Advisory Board.
This being a manda tory provision and having not been complied with the deten tion order even if 123 otherwise it was in force, cannot be said to have been in force after three weeks.
Under Article 22 of the Constitu tion of India a person cannot be kept in detention beyond three months without referring his case to an Advisory Board under the appropriate law.
In either case the appellant 's case having not been referred to an Advisory Board the detention order cannot be said to have remained in force after the statutory period.
It is, therefore, not necessary to go into the validity or otherwise of the grounds of detention.
In the result we set aside the impugned Judgment of the High Court and hold that the detention order ceased to be in force after 12 days of making thereof and even if it was in force it ceased to be in force for failure to refer the appellant 's case to Advisory Board within the time pre scribed by law; and accordingly we quash the same.
The appeal is accordingly allowed.
After the Judgment was finalised, another affidavit on behalf of the respondents affirmed by one belonging to the office of the Advocate on Record has been circulated.
This affidavit is not acceptable.
Even if it was accepted it would not affect the ultimate legal position.
R.S.S. Appeal allowed.

summary:
The appellant is a Municipal Councillor of the Cuddapah Municipal Council.
He was elected to the Council as an independent candidate.
According to him, he enjoys populari ty in his area and had previously held important positions in the District.
He states that the local leadership of the ruling Telugu Desam Party having failed to woo him into their fold, he was pressurised through the Excise and Police authorities foisting false cases upon him.
Scenting a move to detain him under the provisions of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986, the appellant filed a writ petition on 6.6.1988 in the High Court, averring inter alia that the successive actions initiated against him were a part of political vendetta.
A learned Single Judge on 8.8.1988 was pleased to direct interim the respondents not to take the appellant into preventive custody for a period of 15 days on the basis of the cases already registered.
However, on 10.6.1988 the appellant was served the detention order dated 3.6.1988 as well as the grounds of detention, and he was taken into custody, but was released after four days.
The appellant filed on 25.6.1988 in his pending writ petition a miscellaneous petition, as an additional affida vit.
He assailed therein the order of detention on various grounds.
A Division Bench of the High Court, on reference by the learned Single Judge, held that the prayer in the writ petition had become infructuous, and that there were no extraordinary or special reasons to depart from the normal rule, namely, that in such a case the appellant should first surrender and move for a writ of habeas corpus.
The Division Bench accordingly, dismissed the writ petition.
Before this Court it was inter alia contended on behalf of the 106 appellant that the High Court erred in holding that there were no extraordinary circumstances or special reasons to depart from the normal rule, thereby refusing to grant relief to the appellant against infringement of his funda mental right to liberty; that the detention order having not been approved by the State Government as required under Section 3(3) of the Prevention of Dangerous Activities Act and the appellant 's case having not been placed before the Advisory Board as required under section 10 thereof, the detention order ceased to be in force and hence was liable to be quashed.
On behalf of the respondent, it was contended that the detention order having been passed before the writ petition was filed, the High Court was right in dismissing the writ petition following the court 's practice and procedure, and that there were no extraordinary or special reasons to depart from the normal rule inasmuch as granting relief at such a stage would defeat the very purpose of the Act.
Counsel, however, could not deny that the detention order was not approved by the State Government and that the appel lant 's case was not placed before the Advisory Board.
Allowing the appeal and quashing the order of detention, this Court, HELD: (1) The position of a person who is actually under illegal detention and of a person who is in imminent jeop ardy of illegal detention are not far dissimilar.
Refusal to interfere in such a case may amount to denial of the funda mental right itself.
[114A].
Jayantiial Bhagwandas Shah vs The State of Maharash tra, , referred to.
(2) There could be no reason why in an exceptional and rare case, detention order already made, and either served or yet to be served, and the person is still free, could not be legally brought under challenge.
[114F] Vedprakash Devkinandan Chiripal vs State of Gujarat, AIR 1987 Gujarat 253.
A.K. Gopalan vs State of Madras, ; ; Addl.
District Magistrate, Jabalpur vs Shivakant Shukla, ; , referred to.
107 (3) For enforcement of one 's right to life and personal liberty resort to Article 226(1) has been provided for.
The word 'enforcement ' has also been used in Article 32 of the Constitution which provides the remedy for enforcement of rights conferred by Part III of the Constitution.
The word 'enforcement ' has not been defined by the Constitution.
[115B] (4) 'Enforce ' means to compel obedience to laws; to compel performance, obedience by physical or moral force.
[115C] (5) Conferring the right to life and liberty imposes a corresponding duty on the rest of the society, including the State, to observe that right, that is to say, not to act or to do anything which would amount to infringement of that right, except in accordance with the procedure prescribed by law.
[115F] (6) Resort to Article 226 after the right to personal liberty is already violated is different from the pre viola tion protection.
Post violation resort to Article 226 is for remedy against violation and for restoration of the right, while pre violation protection is by compelling observance of the obligation or compulsion under law not to infringe the right by all those who are so obligated or compelled.
To surrender and apply for a writ of habeas corpus is a post violation remedy for restoration of the right which is not the same as restraining potential violators in case of threatened violation of the right.
[116B C] (7) Law surely cannot take action for internal thoughts but can act only after overt acts.
If overt acts towards violation have already been done and the same has come to the knowledge of the person threatened with the violation and he approaches the court under article 226 giving sufficient particulars of proximate actions as would imminently lead to violation of right, should not the court call upon those alleged to have taken these steps to appear and show cause why they should not be restrained from violating that right? [116 C D] (8) The difference of the two situations have different legal significance.
If a threatened invasion of a right is removed by restraining the potential violator from taking any steps towards violation, the rights remain protected and the compulsion against its violation is enforced.
If the right has already been violated, what is left is the remedy against such violation and for restoration of the right.
[116F G] (9) In the instant case, the appellant 's fundamental right to 108 liberty is the reflex of a legal obligation of the rest of the society, including the State, and it is the appellant 's legal power bestowed upon him to bring about by a legal action the enforcement of the fulfilment of that obligation existing towards him.
Denial of legal action would, there fore, amount to denial of his right of enforcement of his right to liberty.
A petition for a writ of habeas corpus would not be a substitute for this enforcement.
[120D E] K.K. Kochunni vs The State of Madras and Ors., [1959] Supp.
2 SCR 316; Special Reference No. 1 of 1964; , ; M.C. Mehta vs Union of India, [1987] 1 SCC 395 referred to.
(10) As the detention order was already passed and served and the detenu was already taken into custody during the pendency of the writ petition, these subsequent events having being brought to the notice of the court by a Misc.
application in the form of additional affidavit, the same ought to have been dealt with by the High Court. [113A B] (11) The detention order had not been approved by the State Government within 12 days of its being made, as en joined under subsection (3) of section 3 of the Act.
The result is that the order could not remain in force more than 12 days after making thereof and as such must be treated as to have ceased to be in force and non existent thereafter.
[122A] (12) Even though the detenu was released, if the deten tion order was in force, his case was required to be placed before the Advisory Board.
This being a mandatory provision and having not been complied with, the detention order even if otherwise in force, cannot be said to have been in force after three weeks.
[122H; 123A]


judgement:
t Petition (C) No. 1157 of 1988.
(Under Article 32 of the Constitution of India) R.K. Kapoor, Mrs. Anil Katiyar (not present) for the Peti tioner.
Rajinder Sachar and Mahabir Singh for the Respondents.
The Judgment of the Court was delivered by K. RAMASWAMY, J.
This writ petition under Article 32 of the Constitution is a sequel to the order passed by this Court in Sat Der Parasher, etc.
vs State of Haryana, in Writ Petition Nos. 887 of 1986 and a batch of connected Special Leave Petitions.
Transfer Petitions etc.
in December, 1985.
The State of Haryana made on different dated ad hoc appointments to the posts of Assistant District Attorney.
Applications were invited by the Haryana Public Service Commission to make recruitment to the posts of Assistant District Attorney.
The ad hoc appointees filed writ petitions under Article 32 and also Special Leave Petitions against the judgment of the High Court of Punjab & Haryana.
Their main contention was that they have been regularly recruited though on ad hoc basis after interview by a duly constituted Committee and that they were entitled to be regularised.
This Court while disposing of the cases held that the petitioners therein were appointed only on ad hoc basis till suitable candidates were available for regu lar appointment.
The interim orders passed on different dates were vacated.
It was observed that "if amongst the said petitioners any person has been appointed regularly by the Public Service Commission subsequently he shall hold the post pursuant to the order issued on the recommendation of the Public Service Commission.
This order of dismissal will not affect him.
The petitions are disposed of accordingly.
The candidates who have been selected by the 191 Public Service Commission shall be appointed by the State Government on regular basis and any stay order passed by this Court against their appointment is vacated.
These petitions are accordingly allowed.
Dr. Y.S. Chitale, learned counsel for the State, submits that if any post of the Assistant District Attorney is to be filled up within one year, candidates who are selected by the Public Service Commission but have not been appointed shall be appointed in the order of merit . "The petitioner was, admittedly, selected by the Haryana Public Service Commission, as commu nicated by letter dated May 7, 1986, with his Roll No. 446.
He stood at Serial No. 39 in the order of merit among sixty six selected candidates.
In the counter affidavit filed in the earlier group of petitions by the State of Haryana it was admitted that 39 posts were to be filled from among the selected general candidates.
The petitioner having been selected on merit and assigned the 39th position, was also entitled to be appointed as Assistant District Attorney.
It is the petitioner 's case that the respondents have arbi trarily and illegally denied him his right to appointment as Assistant District Attorney.
It is his case that several representations made in this regard received no considera tion constraining him to approach this Court for issuance of a Writ of Mandamus or order or direction to the respondents to give his due appointment.
In the counter affidavit, it is admitted that the petitioner was selected by the Public Service Commission and he stood at Serial No. 39, but the posts earmarked for the general candidates were 37.
Conse quently, the petitioner could not be appointed.
This Court seeing the specific admission made on the earlier occasion that 39 posts were earmarked for general candidates, called upon the respondents to explain the contradictory stand set up in the present case.
A further affidavit was filed stat ing that averments of earmarking 39 posts for general candi dates is a typographical mistake.
The total number of posts notified were 57, the breakup of which is that 11 posts were reserved for Scheduled Castes, six posts were reserved for Backward Classes and three posts were reserved for NSML and the remaining 37 were to be filled up from general candi dates.
They regretted the typographical error committed in the earlier affidavit.
It is also admitted that subsequent notification was issued by the Public Service Commission to select 27 candidates to fill up 27 posts of Assistant Dis trict Attorneys, but claiming to be, after the expiry of the one year limit set by this Court.
The stand taken by the respondents in their counter affidavit and argued by their counsel is that the direction issued by this Court referred to herein before was strictly adhered to and appointments were given to all the selected candidates.
No vacancy had arisen before the expiry of one year as indicated in the judgment, and therefore, the 192 petitioner could not be appointed as per the undertaking given by the counsel for the State.
The petitioner has no fundamental right to appointment.
He has to apply afresh and take his chance for selection by the Haryana Public Service Commission.
The admitted fact is that the petitioner was one among the selected candidates standing at Serial No. 39 in the order of merit by the Public Service Commission and was recommended for appointment to the post of Assistant Dis trict Attorney.
The counsel for the State had given an unequivocal undertaking that if any vacancies arise within one year from the date of the judgment, the candidates selected and recommended by the Public Service Commission shall be appointed to those posts in the order of merit.
It is uncredible to believe the averment of the State that within one year even one vacancy in the post of Assistant District Attorney had not arisen for appointment when 27 posts were subsequently notified for direct recruitment.
It is not their case that all the 27 vacancies had suddenly arisen on a particular date just after the expiry of one year.
It would be obvious and it is common knowledge that vacancies kept arising as and when the incumbents of such posts either retire or resign or new posts are created.
When this Court had given the direction on the undertaking given by the State that selected candidates would be appointed in vacancies in the said posts that would arise within one year, it was expected that the Haryana State Government would comply with the spirit and substance of the direction, and not to avoid compliance on the technical plea of expiry of the one year period.
We wanted to know the definite dates when the twenty seven vacancies arose but the details have not been placed on the record inspite of the Court 's query.
On the fact situation arising out of the record of the proceeding, it has to be concluded that some of these twenty seven vacancies did arise within the one year period set by this Court in its earlier order but the State Government delayed action to allow the year to run out and to free itself from the purview of the direction.
The Court would not permit the State to avoid implementation of the order made by it on any technical or unjustified stand.
In these circumstances, we are of the considered view that the peti tioner became entitled to be considered for appointment to the post of Assistant District Attorney and given appoint ment in accordance with the rules.
The respondents are, accordingly, directed to appoint the petitioner against one of the posts of Assistant District Attorney subject to physical fitness.
No costs.
N.P.V. Petition disposed of.

dataset_name: IN-Abs

summary:
In a group of cases filed in this Court in connection with recruitment to the posts of Assistant District Attor neys by the State Public Service Commission.
The Respondent State had undertaken that if any post was to be filled up within one year, candidates who were selected by the Public Service Commission but had not been appointed, would be appointed in the order of merit.
However, the petitioner, who was selected by the Public Service Commis sion and, assigned 39th position in the order of merit, was not given the appointment, and a fresh notification was issued by the Public Service Commission for selecting candi dates for 27 posts.
Therefore, the petitioner filed a writ petition in this Court alleging that the respondents had arbitrarily and illegally denied him his right to appoint ment to the posts.
The respondent State contended that since only 37 posts were earmarked for general candidates and no vacancy had arisen before the expiry of one year, the petitioner could not be appointed as per the undertaking given by the State.
Disposing of the Writ Petition, this Court, HELD: When this Court had given the direction on the undertaking given by the State that selected candidates would be appointed in vacancies that would arise within one year, it was expected that the State Government would comply with the spirit and substance of the direction, and not to avoid compliance on the technical plea of expiry of the one year period.
The Court would not permit the State to avoid implementation of the order made by it on any technical or unjustified stand.
[192E F] It is incredible to believe that within one year even one vacancy had not arisen when 27 posts were subsequently notified for direct 190 recruitment.
It would be obvious, and it is common knowl edge, that vacancies keep arising as and when the incumbents of such posts either retire or resign or new posts are created.
On the fact situation arising out of the record of the proceeding, it has to be concluded that some of these 27 vacancies did arise within the one year period set by this Court but the State Government delayed action to allow the year to run out and to free itself from the purview of the direction.
[192C, D F] The petitioner, therefore, became entitled to be consid ered for appointment to the post of Assistant District Attorney and given appointment in accordance with the rules.
The respondents would accordingly appoint the petitioner against one of the posts subject to physical fitness.
[192G]


judgement:
Civil Appeal No. 2542 (NCE) of 1986.
From the Judgment and Order dated 24.1.1986 of the Orissa High Court in Election Petition No. 7 of 1985.
S.P. Singh and S.K. Jain for the Appellant.
G.L. Sanghi, M.A Firoz and R.K. Mehta for the Respondents.
The Judgment of the Court was delivered by KANIA, J.
This is an appeal from the judgment of a learned Single Judge of the Orissa High Court dismissing Election Petition No. 7 of 1985 filed by the appellant in that Court.
The facts of the case have been fully set out in the impugned judgment of the High Court and hence, little pur pose would be served in setting them out here again.
It should be sufficient to note only the few facts required to be set out to appreciate the controversy arising before us.
The election in question was to the Legislative Assembly of the Orissa State from 74 Gopalpur (SchedUled Caste) Assembly Constituency.
This election was held in March 1985.
The last date for filing the nomination papers was February 8, 1985.
The date of scrutiny was 102 as February 9, 1985.
The last date for withdrawal of the nominations was February 11, 1985, February 10, 1985 being a Sunday.
The appellant duly filed his nomination papers for the seat and along with the other papers, he filed an at tested copy of the relevant part of the electoral roll relating to 67 Sorada Assembly Constituency in which he was an elector.
This was required because he was standing for election from a constituency other than the one in which he was an elector.
On an objection by one of the candidates, the said nomination paper was rejected for non compliance with section 33(5) of the Representation of the People Act, 1951 (hereinafter referred to as "the said Act").
The con tention of the appellant is that he had produced before the Returning Officer an attested copy of the relevant part of the electoral roll of the constituency in which he was an elector and hence, the rejection of his nomination paper on the ground of non compliance with section 33(5) of the said Act was wrong and bad in law.
As we have already pointed out, it is common ground that what the appellant produced before the Re.turning Officer was an attested copy of the relevant part of the electoral roll of the constituency in ' which he was an elector and that copy admittedly was dated July 13, 1983.
There is a finding that the appellant had obtained the said copy on July 19, 1983 although he sought to contend that he had obtained it on July 19, 1984.
The correctness of that find ing has rightly not been assailed before us.
Section 15 of the Representation of the People Act, 1950 (hereinafter referred to as "the 2950 Act") provides that for any con stituency there shall be an electoral roll which shall be prepared in accordance with the provisions of that Act under the directions and supervision of the Election Commission.
It is the admitted position in the case before us that the electoral roll of the Orissa Legislative Assembly, was directed to be revised and was, in fact, revised as on January 1, 1984 and the supplementary electoral roll notify ing the changes to be incorporated on the revision was published and available before February 1985.
Section 21 of the 1950 Act deals with the preparation and revision of electoral rolls.
Sub section (1) of that section states that the electoral roll for each constituency shall be prepared in the prescribed manner by reference to the qualifying date and shall come into force immediately upon its publication according to law.
Clause (a) of sub section (2) of that section provides unless otherwise directed by the Election Commission the electoral roll shall be revised in the pre scribed manner with reference to the qualifying date before each General Election to the House of the People or to the Legislative Assembly of a State.
The provisions 103 of Rule 22 of the Registration of Electors Rules, 1960 (hereinafter referred to as "the said Rules of 1960") read with the provisions of Rules 15 to 21 A thereof show that when the electoral roll has to be revised the names of persons inadvertently omitted have to be included and the names of dead electors and of persons who ceased to be or are not ordinarily resident in the constituency have to be deleted from the electoral roll and so on.
After this, the officer concerned prepares the list of amendments to be carried out to the electoral roll.
Provisions are also made for the correction of any clerical or printing errors in the earlier roll.
After the completion of this task, either the entire revised electoral roll is to be prepared or the amendments in the existing electoral roll have to be made and incorporated in the electoral roll and published sepa rately along with the original electoral roll.
A complete electoral roll is made available for inspection and a notice to that effect is displayed in Form No. 16.
Rule 22(2) of the said Rules of 1960 lays that on such publication, the roll together with the list of amendments shall be the electoral roll of the constituency.
Subrule (3) of Rule 22 of the said Rules of 1960 shows that these amendments may be incorporated and an integrated roll may be published subject to any general or special directions issued by the Election Commission.
It is clear on the reading of these provisions that the publication of the integrated roll is not essential for the revision of the electoral roll to be complete and the electoral roll with the amendments duly published be comes the final electoral roll for the constituency.
In the present case, it is clear that what the appellant produced before the Returning Officer was not an attested copy of the final electoral roll for the said constituency for the election in question although the final roll was available.
What he produced was an attested copy of the electoral roll as it stood on July 21, 1983 and the production of such attested copy of the relevant part of the electoral roll as it stood before the final revision cannot amount to compli ance with the provisions of sub section (5) of section 33 of the said Act.
His nomination was, therefore, rightly reject ed.
We are supported in our views by the decision of this Court in Ranjit Singh vs Pritam Singh & Ors., ; It was held that: "When section 33(5) refers to a copy of the rele vant parts of the electoral roll, it means a part as defined in rule 5.
A complete copy would carry the various amendments made in the roll and enable the Returning Officer to see whether the name of the candidate continued in the roll for the whole of the relevant period." 104 In the aforesaid judgment, it has been held that when section 33(5) of the said Act refers to a copy of the rele vant part of the electoral roll, it means a part as defined in Rule 5 of the said Rules of 1960.
The complete copy would carry the various amendments made in the roll to enable the Returning Officer to see whether the name of the candidate continues in the roll.
Learned counsel for the appellant placed a strong reli ance on the decision of this Court in Jagannath Ramchandra Nunekar vs Gene Govind Kadam & Ors., [1988] 3 Judgments Today 662.
That judgment is, however, clearly distinguisha ble on facts.
In that case, a certified copy of the relevant entry in the electoral roll was furnished to the appellant on January 8, 1986 which was only one day before the date on which he filed his nomination paper.
The presumption would, therefore, arise that such a certified copy would be of the relevant entry in the final electoral roll and that presump tion was justified on the actual facts.
That decision has no application to this case where a certified copy of the relevant part of the electoral roll was applied for and obtained several months before the revision of the electoral roll.
The ratio of the judgment cited is, therefore, not applicable to the case before us.
In the result, the appeal fails and is dismissed with costs.
N.P.V. Appeal dismissed.

summary:
The appellant was a candidate for election to the Legis lative Assembly.
As he was standing for election from a constituency other than the one in which he was an elector, he filed an attested copy of the relevant part of the elec toral roll relating to the constituency in which he was an elector, along with the nomination paper.
On an objection by one of the candidates, the Returning Officer rejected the.
appellant 's nomination paper for non compliance with Section 33(5) of the Representation of the People Act, 1951.
The appellant filed an Election Petition before the High Court, which dismissed the same.
In the appeal filed before this Court, the appellant contended that since he had produced before the Returning Officer an attested copy of the relevant part of the elec toral roll of the constituency in which he was an elector, the rejection of his nomination paper on the ground of non compliance with Section 33(5) of the said Act was wrong and bad in law.
Dismissing the appear, this Court, HELD: The publication of the integrated roll is not essential for the revision of the electoral roll to be complete and the electoral roll with the amendments duly published becomes the final electoral roll for the constitu ency.
[103D] In the instant case, admittedly, the electoral roll of the State Assembly was directed to be revised and was, in fact, revised as on January 1, 1984 and the supplementary electoral roll notifying the 101 changes to be incorporated on the revision was published and available before February 1985.
[102F] However, what the appellant produced before the Return ing Officer was not an attested copy of the final electoral roll for the said constituency although the final roll was available, but only an attested copy of the electoral roll as it stood on July 21, 1983.
The production of such attest ed copy of the relevant part of the electoral roll as it stood before the final revision cannot amount to compliance with the provisions of sub section (5) of Section 33 of the said Act.
His nomination was, therefore, rightly rejected.
[103F] Ranjit Singh vs Pritam Singh & Ors., ; , relied on.
Jagannath Ramchandra Nunekar vs Gene Govind Kadam & Ors., [1988] 3 Judgments Today 662, distinguished.


judgement:
(Civil) No. 2 123 of 1982.
(Under Article 32 of the Constitution of India).
184 R.K. Garg and H.K. Puri for the Petitioners.
D.P. Mukherjee, G.S. Chatterjee, Ms. C.K. Sucharita, Ms. A. Subhashini and S.R. Grover for the Respondents.
The Judgment of the Court was delivered by KULDIP SINGH, J.
The Parliament enacted the (hereinafter called the Act) with the object of abolition of contract labour in respect of such categories as may be notified by the Appropriate Government in the light of criteria laid down in the Act and also regulating the service conditions of contract labour where abolition is not possible.
Section 10 of the Act which is relevant is as under: "Prohibition of employment of contract labour (1) Notwithstanding anything contained in this Act, the appropriate Government may, after consultation with the Central Board or, as the case may be, a State Board prohibit, by noti fication in the Official Gazette, employment of contract labour in any process; operation or other work in any establishment.
(2) Before issuing any notification under sub section (1) in relation to an establish ment, the appropriate Government shall have regard to the conditions of work and benefits provided for the contract labour in that establishment and other relevant factors such as (a) Whether the process, operation or other work is incidental to, or necessary for the industry, trade, business, manufacture or occupation that is carried on in the estab lishment; (b) Whether it is of perennial nature, that is to say, it is of sufficient duration having regard to the nature of industry, business, manufacture or occupation carried on in that establishment; (c) Whether it is done ordinarily through regular workmen in that establishment or an establishment similar thereto; 185 (d) Whether it is sufficient to employ consid erable number of whole time workmen.
Explanation If a question arises whether any process or operation or other work is of perennial nature, the decision of the appro priate Government thereon shall be final.
" In exercise of the powers under Section 10(1) of the Act, the Government of West Bengal issued a notification dated February 9, 1980 prohibiting the employment of con tract labour in 16 departments covering 65 jobs in the establishments of M/s. Indian Iron and Steel Co. Ltd. (hereinafter called the company) situated at Burnpur in the State of West Bengal.
The list of the departments and the jobs is given in the schedule attached to the notification and paragraph 9 therein, relating to the Brick Department, is as under: "Cleaning and stacking and other allied jobs except loading and unloading of bricks from wagons and trucks.
" It is thus obvious that the job of loading and unloading of bricks from wagons and trucks in the Brick Department has been specifically excluded from the beneficial purview of the notification.
The said action of the State Government has been challenged in this writ petition under Article 32 of the Constitution of India by the affected workmen on the ground that the petitioners have been subjected to hostile discrimination so much so that the workmen doing the same job in other departments and allied jobs in the same depart ment have been rescued from the archaic system of contract labour whereas the petitioners have been singled out and left to be grinded under the pernicious effect of this primitive system.
The action according to the petitioners is arbitrary, discriminatory and is violative of Article 14 of the Constitution of India.
Mr. R.K. Garg, learned counsel appearing for the peti tioners has contended that the job of loading and unloading is not peculiar to the Brick Department rather such jobs are being operated in the stores (iron and steel), Traffic (steel) and Coke ovens Departments.
The benefit of notifica tion dated February 9, 1980 has been extended to the loaders in all these departments.
He further argued that the work of stacking is directly dependent on the loading and unloading of bricks.
The two jobs according to him are allied and incidental and as such the workmen holding these jobs cannot be treated differently.
186 The learned counsel for the respondents on the other hand has argued that the job of loading and unloading of bricks in the Brick Department is not of perennial nature, the supply of bricks is intermitent depending upon the requirement, availability of bricks as also the availability of the wagons and trucks.
It is further submitted that the decision of the appropriate Government to the effect that the job is not of perennial nature is final under the Act.
It is surprising that more than forty years after the independence the practice of employing labour through con tractors by big companies including public sector companies is still being accepted as a normal feature of labour em ployment.
There is no security of service to the workmen and their wages are far below than that of the regular workmen of the company.
This Court in Standard Vaccum Refining Co. of India Ltd. vs Its Workmen, ; and Catering Cleaners of Southern Railway vs Union of India & Anr., ; has disapproved the system of contract labour holding it to be 'archaic ', 'primitive ' and of 'baneful nature '.
The system, which is nothing but an im proved version of bonded labour, is sought to be abolished by the Act.
The Act is an important piece of social legisla tion for the welfare of labourers and has to be liberally construed.
It is not denied that the bricks handled by the Brick De partment are used in furnaces of the company as refractory.
Therefore the work done by the Brick Department including loading and unloading of bricks is incidental to the indus try carried on by the company.
It is also not denied that the petitioners are employed as contract labour by the company for the last 15/20 years.
Then where is the justifi cation to treat the petitioners differently and deny them the right of regular appointment? We may examine the case from another aspect.
The peti tioners have specifically averred in paras 7 and 11 of the writ petition that the job of loading and unloading of bricks is allied and incidental to the job of stacking of bricks.
Para 7 is as under: "It is submitted that loading and unloading of bricks from wagons and trucks is an essential feature of; and/or a job allied and/or incidental to the job of stacking of bricks.
It is further submitted that the job of loading and unload ing of bricks from wagons and trucks cannot be separated from the job of stacking and other allied jobs in the case of the petitioners.
" 187 Further para 11 is as under: "It may be stated here that"stacking" as such was never the job of contract labour.
The job of stacking and the job of loading and unload ing of bricks are job ancillary, including and/or supplemented to each other.
It may be made clear that the job of stacking and/or loading and unloading of bricks has to be done by competent and technical hands.
The bricks used in the furnace are a very costly and technical material requiring perfect dimen sions and precision These bricks are also imported from outside India.
Such bricks are manufactured indigenously too, but depending upon the consumption and demand, the bricks arc purchased locally and/or imported from outside India.
Such a costly material has to be handled by skilled workmen.
The job of loading and unloading of such bricks their stacking is done by skilled workmen and this work cannot be done by casual labour which may be engaged disengaged as contract labour depending upon the sweet will of the manage ment.
It is submitted that loading and unload ing and stacking of bricks are jobs which are supplementary to each other carried out by the same set of workmen and is essential for the day to day production.
The petitioners submit that it is not possible to engage one set of workmen for stacking and another set of work men for loading and unloading of bricks.
" In the counter affidavit on behalf of the company filed by its Dy.
Chief Personnel Manager, there is no specific denial to the above averments.
Though it has been stated that the petitioners are not doing the job of stacking the bricks, there is no denial nor any averment or material on the record to show that the job of loading and unloading of bricks is not incidental or allied to the stacking of the bricks.
Even otherwise we fail to understand how the stack ing of bricks is a job which is not incidental to loading and unloading.
The purchase of bricks, transportation to the factory, unloading, stacking and use in the furnace are the jobs in one continuing process and it is difficult to accept that these jobs are not incidental or allied to each other.
That being so all the workmen performing these jobs are to be treated alike.
On the same reasoning it cannot be said that the loader 's job is not, and other jobs in the Brick Department are, of perennial nature.
In any case there is no material or basis to show that the job of loading and un loading of bricks is not of perennial nature.
188 We, therefore, see no justification for excluding the job of loading and unloading of bricks from wagons and trucks from the purview of the notification dated February 9, 1980.
We allow the writ petition and strike down the words "except loading and unloading of bricks from wagons and trucks" in paragraph 9 of the said notification issued by Government of West Bengal being discriminatory and as such violative of Article 14 of the Constitution of India.
We direct that the petitioners and other workers doing the job of loading and unloading of bricks from wagons and trucks in the Brick Deptt.
be treated at par, with effect from the date of nonfication, with those who are doing the job of cleaning and stacking m the said department.
It is further directed that the workmen doing the job of loading and unloading who have been retrenched during the pendency of the writ petition be put back into service with all back wages and consequential benefits.
There shall be no order as to costs.
P.S.S. Petition allowed.

summary:
Section 10(1) of the empowered the appropriate Government to prohibit employment of contract labour in any process, operation or other work in any establishment.
The Government of West Bengal issued a notification on February 9, 1980 under section 10(1) of the Act prohibiting the employment of contract labour in certain departments in the establishments of M/s Indian Iron and Steel Company Ltd. Paragraph 9 of the Schedule thereto listing the departments, included cleaning and stacking and other allied jobs in the brick department, except loading and unloading of bricks from wagons and trucks.
In the writ petition, the affected workmen assailed this action of the State Government in excluding them from the beneficial purview of the notification as arbitrary, dis criminatory and violative of Article 14 of the Constitution.
It was contended for them that the job of loading and un loading was not peculiar to the brick department alone, that the work of stacking was directly dependent on the loading and unloading of bricks, and that the two jobs being allied and incidental the workmen holding these jobs could not be treated differently.
For the respondents, it was contended that the job of loading and unloading of bricks in the brick department was not of perennial nature, the supply of bricks being intermittent depending upon the requirement, avail ability of bricks as also the availability of the wagons and trucks.
Allowing the writ petition, HELD: 1.1 The is 183 an important piece of social legislation for the welfare of the labourers and has to be liberally construed.
[186D] Standard Vacuum Refining Co. of India Ltd. vs Its Work men; , and Catering Cleaners of Southern Railway vs Union of India & Anr., ; , referred to. 1.2 In the instant case, it was not denied that the bricks handled by the brick department were used in furnaces of the company as refractory.
Therefore, the work done by the brick department including loading and unloading of bricks was incidental to the industry carried on by the company.
It was also not denied that the petitioners were , employed as contract labour by the company for the last 15/20 years.
There was, therefore, no justification to treat the petitioners differently and deny them the right of regular appointment.
[186E F] 1.3 The purchase of bricks, transportation to the facto ry, unloading, stacking and use in the furnace were the jobs in one continuing process.
It could not thus be said that all these jobs were not incidental or allied to each other.
That being so, all the workmen performing these jobs were to be treated alike.
On the same reasoning it could not be said that the loader 's job was not, and other jobs in the brick department were, of perennial nature.
There was, therefore, no justification for excluding the job of loading and un loading of bricks from wagons and trucks from the purview of the notification dated February 9, 1980.
[187G 188A] 2.
The words "except loading and unloading of bricks from wagons and trucks" in paragraph 9 of the Schedule to the notification are struck down being discriminatory and as such violative of Article 14 of the Constitution of India.
[188A B] [The petitioners and co workers to be treated at par with effect from the date of notification with those who were doing the job of cleaning and stacking in the brick department, and such of them who have been retrenched during the pendency of the writ petition to be put back into serv ice with all back wages and consequential benefits.] [188B C]


judgement:
ivil Appeal No. 3901 of 1981.
From the Judgment and Order dated 22.1.1987 of the Rajasthan High Court in S.B. Civil Revision No. 672 of 1983.
V.M. Tarkunde and L.K. Pandey for the Appellant.
J.P. Goyal, R.K. Gupta, K.K. Gupta, (NP) and Rajesh, (NP) for the Respondents.
The Judgment of the Court was delivered by SHARMA, J.
This appeal by special leave is directed against the judgment of Rajasthan High Court dismissing a civil revision application filed by the appellant in the following circumstances.
The appellant, a registered Society, filed the suit out of which this appeal arises in the court of the District Judge, Jaipur City in respect of an immovable property through its the then Secretary which was numbered as Suit No. 11 of 1973.
The counsel engaged by the appellant were Sri Satya Narain Sharma and Sri Shyam Bihari Agarwal.
The suit was later transferred to the court of Additional Dis trict Judge No. 1, Jaipur City where it was renumbered as Suit No. 116 of 1974.
After the institution of the suit, an election of the office bearers of the Society was held on 1.6.1973 and according to the appellant 's case one Sri Laxman Das Swami was elected as the Secretary.
On 4.9.74 a prayer for withdrawing the suit was made by one Hari Narain Swami through another lawyer claiming to have been elected as the Secretary of the Society.
In support of his claim of having been elected as the Secretary of the Society Hari Narain Swami produced certain documents on the basis of which the Trial Court allowed the suit to be withdrawn.
According to the case of the appellant, Hari Narain Swami was not elected as the Secretary and had no locus standi to withdraw the suit.
Since no notice was given of his applica tion for withdrawal of the suit either to the then Secretary Laxman Das Swami or to the learned advocates Sri Satya Narain Sharma or Sri Shyam Bihari Agarwal, through whom the suit had been instituted, none of them had any knowledge of the order passed by the court.
Later, in the next election, another Secretary named Jeeva Nand Swami was elected, and when he 236 learnt about the fate of the suit, an application was filed for recalling the order of withdrawal and restoring the suit to its file.
The prayer was contested and the trial court rejected the application.
The appellant Society challenged the order before the High Court by a petition under section 1 15 of the Code of Civil Procedure which was also dismissed by the impugned judgment.
The trial court after holding that the appellant 's application filed under section 15 1 of the Code of Civil Proce dure, was not maintainable, proceeded further to consider the question as to who was the duly elected Secretary of the Society, entitled to prosecute or withdraw the suit and accepted the case of Hari Narain Swami.
The High Court has agreed with the trial court that the application under section 15 1 of the Code of Civil Procedure was not maintainable.
While agreeingwith the argument of the appellant that the trial court had committed several serious errors in deciding the question as to who was the elected Secretary of the Society on the relevant date in favour of the respondent the High Court observed that the mistake could not be corrected in the present situation.
It has been contended by Mr. Tarkunde, the learned counsel for the appellant, that the application under section 15 1 of the Code of Civil Procedure, for restoration of the suit was maintainable and the error committed by the trial court while recording the finding on the merits of the case was such which the High Court ought to have rectified.
The learned advocate representing the respondents has strenuous ly argued that the trial court has no jurisdiction to recall its order permitting the withdrawal of the suit under its inherent power and the High Court has rightly held that the only remedy of the appellant is to file a fresh suit.
The finding recorded by the trial court on the merits of the case has also been relied upon.
The learned counsel for the appellant has challenged the correctness of the trial court 's finding in favour of the respondent 's case that Hari Narain Swami had been duly elected as the Secretary of the appellant Society and had, therefore, full authority to withdraw the suit, on several grounds.
Since we are of the view that the case has to go back to the trial court for reconsideration of the evidence on this point, we do not propose to deal with the argument on behalf of the appellant in detail, except mentioning one of them.
It has been stated that a dispute, relating to the election of the Secretary of the Society, had arisen between the parties which ultimately went before the Registrar of the Cooperative Societies, who decided the matter in 237 favour of Laxman Das Swami and against Hari Narain Swami.
A writ petition filed thereafter by Hari Narain Swami before the High Court (registered as C.W.P. No. 1406 of 1975) was dismissed.
It is said that the trial court failed to appre ciate the impact of the judgments of the Registrar and the High Court which has vitiated ' the impugned decision.
In reply, it has been argued by the learned counsel for the respondents that the High Court in C.W.P. No. 1406 of 1975 did not decide the dispute finally and left it to be settled by the civil court.
Beyond pointing out that even according to the impugned judgment of the High Court the errors in the judgment of the trial court are serious, we do not consider it appropriate to deal in detail with the arguments of the learned counsel, as the disputed question has to go back for reconsideration.
The main question which requires consideration, however, is whether the trial court has jurisdiction to cancel the order permitting the withdrawal of the suit under its inherent power, if it is ultimately satisfied that Hari Narain Swami was not the Secretary of the appellant Society and was, therefore, not entitled to withdraw the suit.
The position is well established that a court has inherent power to correct its own proceedings when it is satisfied that in passing a particular order it was misled by one of the parties.
The principle was correctly discussed in the judg ment in Sadho Saran Rai and Others vs Anant Rai and Others, AIR 1923 Patna 483, pointing out the distinction in cases between fraud practised upon the court and fraud practised upon a party.
Let us consider the cases in which consent decrees are challenged.
If a party makes an application before the Court for setting aside the decree on the ground that he did not give his consent, the court has the power and duty to investigate the matter and to set aside the decree if it is satisfied that the consent as a fact was lacking and the court was induced to pass the decree on a fraudulent repre sentation made to it that the party had actually consented to it.
However, if the case of the party challenging the decree is that he was in fact a party to the compromise petition filed in the case but his consent has been procured by fraud, the court cannot investigate the matter in the exercise of its inherent power, and the only remedy to the party is to institute a suit.
It was succinctly summed up in the aforementioned case that the factum of the consent can be investigated in summary proceedings, but the reality of the consent cannot be so investigated.
The principle has been followed in this country for more than a century.
In Vilakathala Raman vs Vayalil Pachu, 27 Madras Law Jour 238 nal Reports 172, the trial court had vacated its previous order regarding satisfaction of decree on the ground that the same was obtained by the judgment debtor 's fraud on the court.
The High Court, while confirming the order, said that in the exercise of inherent power under section 15 1 of the Code of Civil Procedure a court can vacate an order obtained by fraud on it.
Reliance had been placed on an old decision of Bombay High Court of 1882 and a Madras decision of 1880.
In Basangowda Hanmantgowda Patil and Others vs Churchigirigowda Yogangowda and Another, I.L.R. 34 Bombay 408, the defendant applied to the court to set aside a compromise decree on the ground that he had not engaged the lawyer claiming to be representing him and had not authorised him to compromise the suit.
The court accepted his plea and ruled that it is the inherent power of every court to correct its own pro ceedings when it has been misled.
Similar was the view of the Calcutta High Court in several decisions mentioned in Sadho Saran 's case (supra).
The ratio has been later fol lowed in a string of decisions of several High Courts.
The same principle applies where a suit is permitted to be withdrawn on the basis of a prayer purported to have been made on behalf of the plaintiff.
The courts below were, therefore, not right in holding that the application of the appellant invoking the inherent jurisdiction of the court was not maintainable.
If the appellant 's case is factually correct that Hari Narain Swami was not its elected secretary and was, therefore, not authorised to withdraw the suit, the prayer for withdrawing the suit was not made on behalf of the appellant at all and the impugned order was passed as a result of the court being misled.
Such an order cannot bind the appellant and has to be vacated.
The trial court was thus clearly wrong in dismissing the appellant 's application as not maintainable, and the High Court should have inter vened in its revisional power on the ground that the trial court had failed to exercise a jurisdiction vested in it by law.
So far the finding of the trial court that Hari Narain Swami was not the elected Secretary of the appellant Society with authority to withdraw the suit is concerned, the same suffers from several errors and requires a recon sideration.
Even in the view of the High Court that is the position, but it declind to exercise its revisional power on the assumption that it had no jurisdiction to do so.
We, therefore, allow the appeal, set aside the impugned judg ments of the trial court and the High Court and r. emit the matter to the trial court for reconsideration of the case on merits.
The parties shall be allowed to lead further evi dence in support of their cases.
The costs will abide the final result in the litigation.
G.N. Appeal allowed.

summary:
The appellant, a registered society, instituted a suit through its Secretary in respect of an immovable property.
Afterwards, the election of the office bearers for the Society was held and one 'X ' claiming to be the Secretary of the Society filed an application for withdrawing the suit and the trial court allowed the same.
In the subsequent election, one 'Y ' was elected as Secretary and he filed an application for recalling the order of withdrawal and for restoring the suit.
The applica tion was contested and the trial court rejected the applica tion.
The appellant challenged the order before the High Court by way of a petition under section 115 CPC.
The High Court observed that the trial court had committed several serious errors in deciding the question as to who was the elected Secretary of the Society on the relevant date in favour of the respondent but held that the mistake could not be corrected.
This appeal by special leave, is against the High Court 's judgment.
On behalf of the appellant, it was argued that the trial court failed to appreciate that 'X ' was not the elect ed Secretary of the Society, as was held by the Registrar of Cooperative Societies, and that 'X ' did not also succeed before the High Court in this regard.
And hence, he was not competent to withdraw the suit.
It has been contended that the error committed by the trial court ought to have been rectified by the High Court.
234 The respondents argued that the only remedy available to the appellant was to file a fresh suit.
It was contended that the High court rightly did not decide the dispute finally regarding election of 'X ' and left it to be settled by the Civil Court.
Allowing the appeal and remitting the matter to the trial court, this Court, HELD: 1.1 The position is well established that a court has inherent power to correct its own proceedings when it is satisfied that in passing a particular order it was misled by one of the parties.
[237D] 1.2 If a party makes an application before the Court for setting aside the decree on the ground that he did not give his consent, the court has the power and duty to investigate the matter and to set aside the decree if it is satisfied that the consent as a fact was lacking and the court was induced to pass the decree on a fradulent representation made to it that the party had actually consented to it.
However, if the case of the party challenging the decree is that he was in fact a party to the compromise petition filed in the case but his consent had been procured by fraud, the court cannot investigate the matter in the exercise of its inherent power, and the only remedy to the party is to institute a suit.
1237F G] 1.3 So far as the finding of the trial court that X was the elected Secretary of the appellant Society with authori ty to withdraw the suit is concerned, the same suffers from several errors and requires reconsideration.
Even in the view of the High Court that is the position, but it declined to exercise its revisional power on the assumption that it had no jurisdiction to do so.
The courts below were, there fore, not right in holding that the application of the appellant invoking the inherent jurisdiction of the court was not maintainable.
If the appellant 's case is factually correct that X was not its elected Secretary and was, there fore, not authorised to withdraw the suit, the prayer for withdrawing the suit was not made on behalf of the appellant at all and the impugned order was passed as a result of the court being misled.
Such an order cannot bind the appellant and has to be vacated.
High Court should have intervened in its revisional power on the ground that the trial court had failed to exercise ajurisdiction vested in it by law.
[238F G; D E] Sadho Saran Rai and Ors.
vs Anant Rai and Ors.
, AIR 1923 Patna 483; Vilakathala Raman vs Vayalil Pachu, 27 Madras Law Journal Reports 172 and Basangowda Hanmantgowda Patil and Anr.
vs 235 Churchugirigowda Yogangowda and Anr., I.LR 34 Bombay 408, approved.