1. This order will dispose of Criminal Misc. No 14 of 1975 in Criminal Writ No. 130 of 1975.
2. Surjit Singh petitioner in Criminal Writ No. 130 of 1975, younger brother of detenu Kabal Singh, has challenged the detention of Kabal Singh under Articles 226 and 227 of the Constitution of India and has thus prayed for the issuance of a writ in the nature of habeas corpus alleging the detention of Kabal Singh to be illegal and unconstitutional. Kabal Singh detenu was elected as a member of the Block Samiti, Jandiala. Guru, while under detention. It is alleged in the miscellaneous application that the election for the office of the Chairman of the Block Samiti, Jandiala Guru was to take place on August 19, 1975. It is alleged that Kabal Singh detenu is popular inpublic and is an eminent social worker. He is keen to contest the election of the Chairman of the Block Samiti of Jandiala Guru. Therefore, a prayer has been made in the miscellaneous application that a direction be issued to respondent No. 1 i.e., the State Government of Punjab to permit Kabal Singh detenu to participate in the co-option of Membership of the Block Samiti, Jandiala Guru, which was to be held on August 13. 1975, or any other order as deemed fit, may be passed in the matter.
3. The habeas corpus petition came up for hearing on September 1, 1975, before a Full Bench of this Court consisting of three Hon'ble Judges. The learned Judges constituting the Full Bench being of the opinion that the petition involved points of considerable importance and difficulty, ordered that the file of the case be placed before Hon'ble the Chief justice for constituting a larger Bench. It was observed that in the miscellaneous application a question has been raised whether the State Government is bound to take the detenu to the place where the polling in the elections to a Panchayat Samiti is to take place and while considering this question, the correctness of the decision of this Court in Civil Writ No. 4262 of 1975, Mool Chand Jain v, Punjab and Haryana Bar Council Chandigarh, D/- July 27, 1975 (Punj), will have to be gone into. Therefore, the miscellaneous application was also referred to a larger Bench along with the habeas corpus petition. This is how this application is placed before us.
4. Kabal Singh detenu has been elected as a Member of the Block Samiti, Jandiala Guru, under Section 5 of the Punjab Panchayat Samitis and Zilla Pari-shads Act, 1961 (hereinafter referred to as the Act). Under Section 17 of the Act, the Deputy Commissioner concerned, or any gazetted officer appointed by him in this behalf, not below the rank of an Extra Assistant Commissioner, shall call the first meeting of the Panchayat Samiti in the manner prescribed, as soon as the election and co-option of all Members of the Panchayat Samiti is notified, to elect the Chairman and Vice-Chairman from amongst the Primary and Co-opted Members. The Punjab Panchayat Samitis and Zila Parishads Chairman and Vice-Chairman (Election) Rules, 1961 (hereinafter referred to as the Rules) have been framed under the Act. Rule 3 of the said Rules provides that the election of the Chairman and Vice-Chairman of a Panchayat Samiti shall be held in the office of the Panchayat Samiti or such other place as may be specified in that behalf by the Presiding Officer who shall convene and preside over the meeting called for that purpose. Bule 4 makes a provision for issuing a notice in writing is form A attached with the Rules to the Members specifying the date and time of meeting.
5. Bule 5 is in the following terms:--
'5. Proposing and seconding candidates for office of Chairman and Vice-Chairman.
(1) As soon as the Members have assembled at the appointed time and place the Presiding Officer shall call upon the Members present to propose candidates for the two offices and every proposal shall also be seconded by a member. The names of candidates, their proposers and seconders shall then be recorded in Form B and read out by the Presiding Officer to the members present.
(2) One-half of the total number of members shall constitute a quorum.
(3) If at the first meeting there be no quorum present as specified in Sub-rule (2), the Presiding Officer shall adjourn the meeting.
(4) When a meeting is adjourned under Sub-rule (3) another meeting shell be convened by the Presiding Officer by giving three days' clear notice to the members.
(5) No quorum shall be necessary for second meeting.'
6. Rule 6 makes a provision for the withdrawal of the candidates. According to Rule 7 (1), if only one candidate is duly proposed there shall be no ballot and he shall be declared to have been duly elected, and Rule 7 (2) provides that if there are two or more such candidates the votes of the members present at the meeting shall be taken by ballot in the manner as provided under Rule 8. Rule 8 provides a procedure for taking ballots. Sub-rule (8) of Rule 8 specifically provides that every member wishing torecord his vote shall do so in person and not by proxy The remaining Rules arenot relevant for the purposes of the decision of this miscellaneous application.
7. It would be seen that a candidate, who intends contesting en election to the office of a Chairman or Vice-Chair-man, has to be proposed by a Member of the Panchayat Samiti and has also to beseconded by a Member of the said Samiti so that according to the scheme of the rules, the presence of a candidate for contesting such an election is not necessary. It is further clear from the scheme of the rules that no member can vote by proxy and a member, who intends voting, has to be present in the meeting. It would thus be seen that statutory right has been given to a member of the Panchayat Samiti to cast his vote for election of Chairman and Vice-Chairman and to contest the said election if proposed and seconded in the manner provided. It is clear from the scheme of the rules that a member can contest the election of the office of Chairman or Vice-Chairman in absentia whereas if a member wants to cast his vote at the said election, he cannot do so by proxy and thus his physical presence in the meeting is necessary.
8. It is contended by Shri Shri-nath Singh, the learned counsel for the detenu, that the detenu has a statutory right to cast his vote according to the provisions of the Act and the Rules made thereunder and, therefore, there is a corresponding duty on the State Government to make arrangements for facilitating the exercise of that right. We are unable to uphold this contention. No doubt it is true that a member of the Samiti has a statutory right to cast his vote but the said right is subject to limitations. Such a right can only be exercised if he is capable of exercising the same. In other words, if a member is unable to present himself at the meeting convened for the purposes, either of his own volition or because of he having been validly detained, he cannot exercise the said statutory right. If the member is being detained by a valid and legal order, the question immediately arises: Whether such a right as mentioned above, casts any obligation on the detaining authority to make arrangements for facilitating the exercise of the said right? The answer clearly is in the negative. The exercise of the right is subject to the condition of the member being present at the time and place of meeting and if a member has been detained under valid orders and there being no provision made in law casting obligation on the detaining authority to make arrangements for the exercise of the said right, it cannot be successfully argued that there is any obligation on the detaining authority to facilitate the casting of vote by making special arrangements. It is, therefore, clear that in a case where the detention of a member is valid, there is no obligation on the detaining authority to facilitate the exercise of the right of franchise and thus this Court under its writ jurisdiction, cannot issue writ of mandamus to the detaining authority for making arrangements for the exercising of such a right which right has become incapable of being exercised because of the valid and legal detention orders. A writ in the nature of mandamus can only be issued it there exists a legal obligation which is sought to be enforced by issuance of such a writ
9. If the order of detention is valid, it is obvious that it validly prevents the member from attending the meeting end that being so, no occasion can arise for the exercise of the right of vote. In this connection, reference may usefully be made to a decision of the Supreme Court in K. Ananda Nambiar v. Chief Secretary to Government of Madras, AIR 1966 ,SC ,657. In that case, an argument was advanced on behalf of the detenu, who was a Member of Parliament, that the detenu in exercise of the rights granted by Article 105 (1) and (2) of the Constitution of Indie, was entitled to exercise the same and his detention on that ground was also illegal. This contention was repelled and it was held by their Lordships of the Supreme Court that if the order of detention validly prevents the detenu from attending the session of Parliament, no occasion arises for the exercise of the right of freedom of speech and no complaint can be made that the said right has been invalidly invaded.
10. It would further be seen that when a person is detained by means of a valid order, his right to freedom of movement stands suspended during the course of the period of detention. Right to cast vote, according to the rules referred to above, is necessarily connected with the presence of the member in the meeting convened and if a person is not in a position to attend the said meeting by reason of the valid orders of detention passed by a competent authority, the said right of his stands suspended during the period of detention as it is incapable of being exercised by any other manner because no such provision has been made in law. Reference in this connection may be made to the decision of the Supreme Court in A. K. Gopalan v. State of Madras, (1950) 1 SCR 88 = (AIR 1950 SC 27).
11. The learned counsel for the petitioner has placed reliance on a Bench decision dated July 28, 1975, of this Courtin C. W. P. No. 4262 of 1975 (Punj), Mool Chand Jain v. Punj. & Har. Bar Council, Chandigarh. That case was decided on its own facts. A contention was sought to be raised on behalf of the respondents in that case that if a person is detained, all his civil rights stand suspended. This contention was not accepted 'because it is obvious that merely because a person is detained, all his civil rights cannot come to an end. It will depend on the nature of rights. For instance, by a valid detention, the right to freedom of speech and expression; to assemble peaceably and without arms; to form associations or unions; to move freely throughout the territory of India; to reside and settle in any part of the territory of India are such rights which in the nature of things will be incapable of being exercised as the freedom of movement is restricted under the valid orders of detention. But there are other civil rights such as the acquisition and holding of property etc., which even though a person is under valid detention, are capable of being exercised. It was in this context that the contention raised in the said case was repelled.
12. No doubt the respondent State of Haryana in Mool Chand's case (C. W. No. 4262 of 1975, D/- 28-7-1975 (Punj)) (supra) was directed to make appropriate arrangements for enabling some of the advocates mentioned in that petition to cast their votes to the election of members of the Bar Council of Punjab and Haryana, but it may be pointed out that the precise point whether the State Government was under legal obligation to make such arrangements, was not raised and thus was not decided in that case. It may further be pointed out that some of the advocates regarding whom the directions were issued for making arrangements for casting of votes, were in jail in proceedings under Sections 109/151 of the Code of Criminal Procedure. I have no doubt in my mind that as regards the persons detained under such provisions and in cases where the detention of a detenu is under challenge before this Court, this Court has ample powers in appropriate cases to issue directions of any nature including the directions, directing the authorities to make proper arrangements for exercising the right of franchise, but whether the said power should be exercised or not, would depend on the facts and circumstances of each case. However, it may be made clear that even in cases of those categories, the detained personshave no legal right which is enforceable in the Court of law but at the same time the Court has got powers to issue interim relief of any kind which it may consider appropriate keeping in view the facts and circumstances of each case.
13. Keeping in view the facts and circumstances of this case, no ground is made out for the issuance of the directions prayed for.
14. For the reasons recorded above, there is no merit in this miscellaneous application and the same is hereby dismissed.