Civil Appeal No 2542 NCE of 1986
From the Judgment and Order dated 2411986 of the Orissa High Court in Election Petition No 7 of 1985
SP Singh and SK Jain for the Appellant
GL Sanghi MA Firoz and RK 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 335 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 335 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 Returning 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 222 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 335 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 335 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
NPV Appeal dismissed


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 661988 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 881988 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 1061988 the appellant was served the detention order dated 361988 as well as the grounds of detention and he was taken into custody but was released after four days
The appellant filed on 2561988 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 33 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
AK 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 2261 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 KK Kochunni vs The State of Madras and Ors 1959 Supp
2 SCR 316 Special Reference No 1 of 1964   MC 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