Andhra HC (Pre-Telangana)
Anantha Udaya Bhaskar Rao vs The Election Commission Of India, ... on 10 March, 2014
Author: Vilas V. Afzulpurkar
Bench: Vilas V. Afzulpurkar
THE HONBLE SRI JUSTICE VILAS V. AFZULPURKAR
WRIT PETITION No.5877 of 2014
10-03-2014
Anantha Udaya Bhaskar Rao.... PETITIONER
The Election Commission of India, Nirvachan Sadhan, Ashoka Road, New Delhi,
Rep. by its Secretary and others.... RESPONDENTS
Counsel for Petitioner: MR. P. GANGAIAH NAIDU
FOR MR. D.V. NAGARJUNA BABU
Counsel for Respondents: GP FOR GENERAL ADMN. R2
GP FOR REVENUE R3 TO R5
<GIST :
>HEAD NOTE:
? Cases referred:
1. AIR 1959 SC 725
2. 1970 (3) SCC 400
3. 2010 (2) ALD 333 (DB)
4. ARI 1955 SC 661
5. (2012) 11 SCC 565
6. (2013) 4 SCC 340
7. AIR 2007 SC 906
8. (2004) 5 SCC 577
The Court made the following:
ORDER:
The prayer in this writ petition is as follows:
the Honourable Court may be pleased to issue a writ or order of direction more particularly one in the nature of Writ of Mandamus directing the respondents herein to act upon the Social Status Certificate No.001762 dated 12.2.2005 issued by the 5th respondent herein in the context of my filing nomination in respect of 172-Rampachodavaram Assembly Constituency under S.T. Quota and pass such other order or orders as this Honourable Court may deem fit and proper in the circumstances of the case.
This relief sought for in this writ petition, as would be noticed form the prayer above, is on the basis of anticipatory breach of right of the petitioner to contest an election under the Representation of Peoples Act, 1950.
2. I have heard Mr. P. Gangaiah Naidu, learned senior counsel for the petitioner, on two concessions, as, prima facie, I was not satisfied of the maintainability of the writ petition.
3. The relief sought for arises on the facts, as pleaded in the affidavit, which are briefly, set out below:
(a) Petitioner claims that he belongs to Konda Kapu community, which is a listed Scheduled Tribe (ST) Community under the Presidential Order. He also claims that his father, paternal grandfather, maternal great grandfather have held various elected posts in the institutions under Panchayat Raj on the basis of the said social status as belonging to ST community and the said social status was also confirmed in several enquiries made by the State government through the District Collector and CBCID. It is alleged that under the Andhra Pradesh Scheduled Areas Land Transfer Regulation I of 1959 also several enquiries were initiated, which ultimately held that the family of the petitioner belongs to Konda Kapu ST community. Various orders passed from time to time by the District Collector, East Godavari in respect of maternal great grandfather of the petitioner as well as paternal grandfather of the petitioner are referred to and relied upon in addition to the proceedings of the District Collector, East Godavari District with respect to the mother and paternal uncle of the petitioner.
(b) It is stated that under proceedings of the Dsitrict Collector, East Godavari dated 17.05.2005 the said social status as Konda Kapu ST community was denied to the mother and paternal uncle, which was questioned by them in an appeal before the Government but the said appeal is stated to have been dismissed as time barred and challenging the same WP.No.18536 of 2006 was filed before this Court. The said writ petition was allowed by remitting the matter back to the Government for fresh consideration. It is alleged that in an election petition O.P.No.32 of 12987, filed by the Agency Divisional Officer and Special Assistant Agent to Government, Rampachodavaram, the election of petitioners father as President, Mandal Praja Parishad, Addateegala was set aside disbelieving his social status. Questioning the same, however, WP.No.672 of 1989 was filed before this Court, which was allowed by this Court on 27.11.1997 on the ground that the impugned order in OP.No.32 of 1987 was passed against a dead person i.e. after the death of the father of the petitioner and that any observations made in the said order with regard to social status will not be taken as a final word.
(c) Petitioner states that during his educational career also he was issued community certificate dated 12.02.2005 by the fifth respondent and the petitioner is stated to have been elected as a Member of Dormamidi/Konalova Mandal Parishad Territorial Constituency and subsequently as the President of the Mandal Praja Parishad, Addateegala under the reserved category. However, the Chief Officer, Zilla Parishad, East Godavari issued a show cause notice dated 10.06.2008 to the petitioner as to why he should not be held to have ceased to hold the said elected office under reserved category.
Questioning that, the petitioner filed WP.No.14149 of 2008 wherein the said show cause notice was suspended and later the writ petition was allowed (date of order, however, is not mentioned in the affidavit). Petitioner alleges that notwithstanding that the third respondent passed an order dated 01.07.2008 by ante-dating the proceedings, which were again challenged by the petitioner in WP.No.15136 of 2008 wherein the said order of the third respondent was suspended. It is alleged that a third party filed an implead and vacate petition and brought to the notice of this Court that on 09.09.2008 itself the third respondent has published his order in the District Gazette, East Godavari District and thereby, the State Government directed the third respondent to issue fresh notification canceling the petitioners caste certificate on the basis of order dated 17.05.2005. In view of the said cancellation of caste certificate, the petitioner filed WP.No.28299 of 2008 and by order of this Court dated 29.12.2008, the proceedings of the third respondent were suspended and subsequently, the writ petition is stated to have been allowed (date of order is not mentioned).
(d) Petitioner further states that in March 2009, the elections to the Parliament and Assembly Constituencies in the State were notified whereupon the petitioner filed his nomination in respect of 172-Rampachodavaram Assembly Constituency but the Returning Officer is stated to have rejected the petitioners nomination on 31.03.2009 on the basis of earlier orders of the third respondent dated 09.09.2008. Against the said rejection, petitioner filed WP.No.6987 of 2009 before this Court but the said writ petition was dismissed giving liberty to the petitioner to question the rejection by way of an election petition. Petitioner states that he filed EP.No.15 of 2009 under Section 100 of the Representation of Peoples Act but the said election petition was dismissed on 20.09.2013 and against that the petitioner has preferred a Civil Appeal No.178 of 201, which is stated to be pending before the Honorable Supreme Court.
(e) Petitioner submits that he intends to file nomination, as the election to the Parliament and Assembly Constituencies is proposed to be conducted in the State of Andhra Pradesh in near future. Petitioner, however, apprehends that once again his nomination would be rejected by the competent authority on erroneous grounds and thereby, he would be denied the right to contest elections on the strength of his social status. Petitioner, therefore, submits that to avoid repetition of similar episodes in the past and in order to enable him to contest the forthcoming elections on the basis of the caste certificate issued in his favour by the competent authority, he seeks a Mandamus to the respondents to act on the Social Status certificate No.001762 dated 12.02.2005 issued by the fifth respondent and on that basis to proceed and examine the nomination under ST quota, which is petitioner proposes file, as and when the elections are notified. Interim relief on similar lines is sought pending the writ petition.
4. A look at the pleadings of the petitioner would clearly show that, as on the date of filing of the writ petition, neither elections are notified nor any threatened cause of action has arisen to the petitioner to approach this Court. It is, therefore, evident that the Mandamus sought for is in anticipation of a threat, which is likely to impair the statutory right of the petitioner to contest elections. Keeping in view the nature of the relief sought for by the petitioner, it has to be considered as to whether the present writ petition is not premature and whether it can be entertained in the absence of any cause of action.
5. Mr. P. Gangaiah Naidu, learned senior counsel places strong reliance upon decisions of the Supreme Court in KAVALAPPARA KOTTARATHIL KOCHUNNI v. STATE OF MADRAS as well as another decision in MAGANBHAI ISHWARBHAI PATEL v. UNION OF INDIA . Learned senior counsel also relied upon a Division Bench judgment of this Court in GOVERNMENT OF ANDHRA PRADESH v. PAGADALA KHALI KANTHI , to which I am a party.
6. Learned senior counsel, primarily, contends that keeping in view the events in the past, as briefly narrated above, that the family members of the petitioner have been consistently held to belong to ST community and as such, the said social states, which automatically accrues to the petitioner cannot be denied or disputed and in support of that proposition reliance is placed upon the decision of this Court PAGADALA KHALI KANTHIs case (3 supra). Learned senior counsel also contends that even so far as petitioner is concerned, all the adverse orders, passed against him canceling the social status certificate, were set aside by this Court in more than one writ petition and as such, any orders passed based upon the earlier orders, which were set aside by this Court, would have no sanction of law and would be contrary to the orders of this Court in various writ petitions. Learned senior counsel, therefore, submits that as the situation exists, on the date of writ petition, the orders of this Court in various writ petitions hold the field and no order of cancellation of caste certificate exists, hence, there is no reason why the petitioners right to claim the said social status be interfered with by any authority.
7. Learned senior counsel submits that in the normal course when election is notified and when the petitioner files nomination on that basis, the competent authority is bound to accept the said nomination on the basis of the caste certificate of the petitioner, referred to above and thereby, petitioner is required to be allowed to contest the elections on the basis of the said social status. Learned senior counsel submits that during the previous elections, on account of erroneous rejection of nomination, the petitioner was deprived of right to contest and had to undergo long drawn process of filing election petition etc. Petitioner, therefore, apprehends that for the elections likely to be announced in the State, for which the petitioner intends to file nomination, the same would again be rejected on the same erroneous ground and after the said damage is done, the petitioner will be again driven to the process of filing of election petition and ultimately, would deny him right to contest the elections. Thus, in order to safeguard the rights of the petitioner that the present writ petition is moved and learned senior counsel submits that the Mandamus sought for in conformity with the social status of the petitioner, as it exists as on this date and as such, the prayer sought for is innocuous, according to him.
8. Reliance on the decisions of the Supreme Court in KAVALAPPARA KOTTARATHIL KOCHUNNIs case (1 supra) and MAGANBHAI ISHWARBHAI PATELs case (2 supra) by the learned senior counsel is, therefore, in support of the proposition that it is not necessary for the petitioner to wait for the State to take a threatened action and that he can as well approach the Court when though the threat, is not issued, is imminent.
9. I have deeply considered the said contentions but I regret my inability to agree with the same and the reasons therefore are as follows.
10. It cannot be denied or disputed that as on the date of filing of this writ petition neither the elections are announced nor notified inviting any nomination to be filed for any constituency. After the matter was reserved for order and before writing of the judgment, the Election Commission has merely announced the election schedule proposing to hold election in the State for the Parliament and Assembly Constituencies in different phases. However, neither the date for nomination and further election process is notified nor there is any other overt act by the State, which can be said to impair any right of the petitioner.
11. The decision of the Supreme in KAVALAPPARA KOTTARATHIL KOCHUNNIs case (1 supra) relied upon by the learned senior counsel is distinguishable from the facts of the present case. It would be noticed from the facts arising in the said decision that the then State of Madras had enacted the Madras Act 32 of 1995 called the Madras Marumakkathayam (Removal of Doubts) Act, 1955, which was notified in Gazette on 19.10.1995. The validity of the said Act was in question before the Supreme Court and one of the objections raised was the maintainability of the writ petition on the ground that until the State has taken or threatened to take any action under the impugned Act, the petition under Article 32 of the Constitution of India was not maintainable. While dealing with the said issued, the Supreme Court held at relevant portion of para 10, as under:
10. The third argument in support of the preliminary point is that an application under Art. 32 cannot be maintained until the State has taken or threatens to take any action under the impugned law which action, if permitted to be taken, will infringe the petitioners' fundamental rights. It is true that the enactments abolishing estates contemplated some action to be taken by the State, after the enactments came into force, by way of issuing notifications, so as to vest the estates in the State and thereby to deprive the proprietors of their fundamental right to hold and enjoy their estates. Therefore, under those enactments some overt Act had to be done by the State before the proprietors were actually deprived of their right, title and interest in their estates. In cases arising under those enactments the proprietors could invoke the jurisdiction of this Court under Art. 32 when the State did or threatened to do the overt act. But 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 is said to be an instance of such enactment. In such a case the infringement of the fundamental right is complete eo instanti the passing of the enactment and, therefore, there can 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 Art. 32. To say that a person, whose fundamental right has been infringed by the mere operation of an enactment, is not entitled to invoke the jurisdiction of this Court under Art. 32, for the enforcement of his right, will be to deny him the benefit of a salutary constitutional remedy which is itself his fundamental right (emphasis supplied) It would be noticed from the above that infringement of petitioners fundamental right was complete eo instanti. The Supreme Court also noticed on the basis of the enactment, in question, that the said enactment by itself resulted in infringement of the fundamental right of the petitioner and in those circumstances, the writ petition under Article 32 of the Constitution of India was held maintainable.
Whereas in the case on hand, it cannot be said that there is any eo instanti infringement of even a statutory right of the petitioner to contest elections.
12. The decision in MAGANBHAI ISHWARBHAI PATELs case (2 supra) relied upon by the learned senior counsel is also distinguishable, as the same test was applied in that decision also, as would be evident from para 21 of the said decision, which is extracted hereunder:
21. Before the hearing commenced we questioned each petitioner as to the foundation of his claim. We discovered that meat of the petitioners had no real or apparent stake the areas now declared to be Pakistan territory. These persons claim that they had and still have the fundamental rights guaranteed to them by Article 19(1)(d), (e), and (f), that is to say, the right to travel, to reside or settle down, or to acquire, and hold property in these areas. None of them has so far made any move in this direction but their apprehension is that they will be deprived of these rights in the future. This, in our judgment, is too tenuous a right to be noticed by the court in administering the law and still less in enforcing fundamental rights. When we communicated our view at an earlier hearing, some more petitioners came forward. Mr. Madhu Limaye puts forward the supporting plea that he had attempted to penetrate this area to reconnoiter possibilities for settlement, but was turned back. In this way he claims that he had attempted to exercise his fundamental rights and they were infringed. Another party claims to have had a lease of grass lands some ten years ago in this area and he is now to be deprived of the right to obtain a similar lease. Lastly, one of the parties puts forward the plea that he lives in the adjoining territory and thus has interest in the territories proposed to be ceded to Pakistan. These petitioners too have very slender rights, if at all. The only person who can claim deprivation of fundamental rights is Mr. Madhu Limaye, although in his case also the connection was temporary and almost ephemeral. However, we decided to hear him and as we were to decide the question we heard supplementary arguments from the others also to have as much assistance as possible. But we are not to be taken as establishing a precedent for this Court which declines to issue a writ of mandamus except at the instance of a party whose fundamental rights are directly and substantially invaded or are in imminent danger of being so invaded. From this point of view we would have been justified in dismissing all petitions except perhaps that of Mr. Madhu Limaye. We may now proceed to the consideration of the rival contentions.
13. Similar question was also considered in earlier decision of the Supreme Court in BENGAL IMMUNITY CO. LTD. v. STATE OF BIHAR wherein the maintainability of the writ petition under Article 226 of the Constitution of India complaining of infringement of Article 286 of the Constitution of India was in question. A show cause notice issued under the Bihar Act was questioned on the ground that the challenge is premature, that argument was considered by the Supreme Court in para 7, relevant portion thereof is extracted hereunder:
7. It has been argued that the application was premature, for there has, so far, been no investigation or finding on facts and no assessment under section 13 of the Act. The appellant company, contending, as it does, that the Act is ultra vires and void, should have ignored the notice served on it and should not have rushed into Court at this stage.
This line of argument appears to us to be utterly untenable. In the first place, it ignores the plain fact that this notice, calling upon the appellant company to forthwith get itself registered as a dealer, and to submit a return and to deposit the tax in a treasury in Bihar, places upon it considerable hardship, harassment and liability which, if the Act is void under article 265 read with article 286 constitute, in presenti, an encroachment on and an infringement of its right which entitles it to immediately appeal to the appropriate Court for redress (emphasis supplied) It would be noticed that even in that decision, the encroachment and infringement was found to be in presenti, unlike the case on hand.
14. In the latest decision of the Surpeme Court, similar issues were examined, in MINSTRY OF DEFENCE v. PRABHASH CHANDRA MIRDHA , which arose from a decision of this Court and in para 10, it was held as under:
10. Ordinarily a writ application does not lie against a chargesheet or show cause notice for the reason that it does not give rise to any cause of action. It does not amount to an adverse order which affects the right of any party unless the same has been issued by a person having no jurisdiction/competence to do so. A writ lies when some right of a party is infringed. In fact, chargesheet does not infringe the right of a party. It is only when a final order imposing the punishment or otherwise adversely affecting a party is passed, it may have a grievance and cause of action. Thus, a chargesheet or show cause notice in disciplinary proceedings should not ordinarily be quashed by the Court. (Vide State of U.P. v. Brahm Datt Sharma (AIR 1987 SC 943); Bihar State Housing Board v. Ramesh Kumar Singh [(1996) 1 SCC 327];
Ulagappa v. Commr. [AIR 2000 SC 3603 (2)]; Special Director v. Mohd. Ghulam Ghouse [AIR 2004 SC 1467] and Union of India. v. Kunisetty Satyanarayana [AIR 2007 SC 906].
(emphasis supplied)
15. In another decision of the Surpeme Court in STATE OF ORISSA v. MESCO STEELS LIMITED , the maintainability of the writ petition on the basis of inter departmental communication was examined and it was held in para 20 as under:
20. On the contrary, the issue of the show cause notice setting out the reasons that impelled the Government to claim resumption of a part of the proposed lease area from the Respondent-company clearly suggested that the entire process leading up to the issue of the show cause notice was tentative and no final decision on the subject had been taken at any level. It is only after the Government provisionally decided to resume the area in part or full that a show cause notice could have been issued. To put the matter beyond any pale of controversy, Mr. Lalit made an unequivocal statement at the bar on behalf of the State Government that no final decision regarding resumption of any part of the lease area has been taken by the State Government so far and all that had transpired till date must necessarily be taken as provisional.
Such being the case the High Court was in error in proceeding on an assumption that a final decision had been taken and in quashing what was no more than an inter-departmental communication constituting at best a step in the process of taking a final decision by the Government. The writ petition in that view was pre-mature and ought to have been disposed of as such. Our answer to question No. 1 is accordingly in the affirmative.
(emphasis supplied)
16. To the same effect is another decision of the Supreme Court in UNION OF INDIA v. KUNISETTY SATYANARAYANA . Paras 12 to 16, which are relevant are extracted hereunder:
12. In our opinion, the High Court was not justified in allowing the Writ Petition.
13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board v.
Ramdesh Kumar Singh and others. [(1995) 8 SCC 331], Special Director and another v. Mohd. Ghulam Ghouse and another [AIR 2004 SC 1467], Ulagappa and others v. Divisional Commissioner, Mysore and others [(2001) 10 SCC 639], State of U.P. v. Brahm Datt Sharma and another [AIR 1987 SC 943] etc.
14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.
15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet.
16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter.
17. We may examine the issue from another angle where detention orders were questioned at pre-execution stage on the ground of alleged infringement of fundamental right to liberty. In UNION OF INDIA v. VIDYA BAGARIA , the Supreme Court considered several decisions and came to the conclusion that the writ petition raised purely hypothetical questions and no relief can be granted at pre-execution stage by placing reliance upon earlier decision of the Supreme Court in ADDL. SECY. TO THE GOVT. OF INDIA v. ALKA SUBHASH GADIA [(1992) SUPP 1 SCC 496]. It would, therefore, be appropriate to extract paras 5, 6 and 7 thereof, as under, which clarify the legal position:
5. The question whether the detenu or any one on his behalf is entitled to challenge the detention order without the detenu submitting or surrendering to it has been examined by this Court on various occasions. One of the leading judgments on the subject is Addl. Secy. to the Govt. of India. v. Alka Subhash Gadia [(1992) Supp 1 SCC 496]. In para 12 of the said judgment, it was observed by this Court as under:
"12. This is not to say that the jurisdiction of the High Court and the Supreme Court under Articles 226 and 32 respectively has no role to play once the detention -punitive or preventive- is shown to have been made under the law so made for the purpose. This is to point out the limitations, which the High Court and the Supreme Court have to observe while exercising their respective jurisdiction in such cases. These limitations are normal and well known, and are self-imposed as a matter of prudence, propriety, policy and practice and are observed while dealing with cases under all laws. Though the Constitution does not place any restriction on these powers, the judicial decision have evolved them over a period of years taking into consideration the nature of the legislation or of the order or decision complained of, the need to balance the rights and interests of the individual as against those of the society, the circumstances under which and the persons by whom the jurisdiction is invoked, the nature of relief sought, etc. To illustrate these limitations, (i) in the exercise of their discretionary jurisdiction the High Court and the Supreme Court do not, as Courts of appeal or revision, correct mere errors of law or of facts, (ii) the resort to the said jurisdiction is not permitted as an alternative remedy for relief which may be obtained by suit or other mode prescribed by statute. Where it is open to the aggrieved person to move another Tribunal or even itself in another jurisdiction for obtaining redress in the manner provided in the statute, the Court does not, by exercising the writ jurisdiction, permit the machinery created by the statute to be by-passed; (iii) it does not generally enter upon the determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed; (iv) it does not interfere on the merits with the determination of the issues made by the authority invested with statutory power, particularly when they relate to matters calling for expertise, unless there are exceptional circumstances calling for judicial intervention, such as, where the determination is mala fide or is prompted by the extraneous considerations or is made in contravention of the principles of natural justice of any constitutional provision, (v) the Court may also intervene where (a) the authority acting under the concerned law does not have the requisite authority or the order which is purported to have been passed under the law is not warranted or is in breach of the provisions of the concerned law or the person against whom the action is taken is not the person against whom the order is directed, or (b) when the authority has exceeded its power or jurisdiction or has failed or refused to exercise jurisdiction vested in it; or (c) where the authority has not applied its mind at all or has exercised its power dishonestly or for an improper purpose; (vi) where the Court cannot grant a final relief, the Court does not entertain petition only for giving interim relief. If the Court is of opinion, that there is no other convenient or efficacious remedy open to the petitioner, it will proceed to investigate the case on its merit and if the Court finds that there is an infringement of the petitioner's legal rights, it will grant final relief but will not dispose of the petition only by granting interim relief (vii) where the satisfaction of the authority is subjective, the Court intervenes when the authority has acted under the dictates of another body or when the conclusion is arrived at by the application of a wrong test or misconstruction of a statute or it is not based on material which is of a rationally probative value and relevant to the subject matter in respect of which the authority is to satisfy itself. If again the satisfaction is arrived at by taking into consideration material, which the authority properly could not, or by omitting to consider matters, which it sought to have, the Court interferes with the resultant order. (viii) In proper cases the Court also intervenes when some legal or fundamental right of the individual is seriously threatened, though not actually invaded."
6. In Sayed Taher Bawamiya v. Jt. Secy. to the Govt. of India [(2000) 8 SCC 630], it was observed by this Court as follows:
"6. This Court in Alka Subhash's case (supra) was also concerned with a matter where the detention order had not been served, but the High Court had entertained the petition under Article 226 of the Constitution. This Court held that equitable jurisdiction under Article 226 and Article 32 which is discretionary in nature would not be exercised in a case where the proposed detenu successfully evades the service of the order. The Court, however, noted that the Courts have the necessary power in appropriate case to interfere with the detention order at the pre-execution stage but the scope for interference is very limited. It was held that the Courts will interfere at the pre- execution stage with the detention orders only after they are prima facie satisfied:
(i) that the impugned order is not passed under the Act which it is purported to have been passed.
(ii) that it is sought to be executed against a wrong person.
(iii)that it is passed for a wrong purpose.
(iv)that it is passed on vague, extraneous and irrelevant grounds, or
(v)that the authority which passed it had no authority to do so.
7. As we see it, the present case does not fall under any of the aforesaid five exceptions for the Court to interfere. It was contended that these exceptions are not exhaustive. We are unable to agree with this submission. Alka Subhash case shows that it is only in these five types of instances that the Court may exercise its discretionary jurisdiction under Article 226 or Article 32 at the pre- execution stage. The appellant had sought to contend that the order which was passed was vague, extraneous and on irrelevant grounds but there is no material for making such an averment for the simple reason that the order of detention and the grounds on which the said order is passed has not been placed on record inasmuch as the order has not yet been executed. The appellant does not have a copy on the same, and therefore, it is not open to the appellant to contend that the non- existent order was passed on vague, extraneous or on irrelevant grounds".
7. This Court's decision in Union of India v. Parasmal Rampuria [(1998) 8 SCC 402] throws considerable light as to what would be the proper course for a person to adopt when he seeks to challenge an order of detention on the available grounds like delayed execution of detention order, delay in consideration of the representation and the like. These questions are really hypothetical in nature when the order of detention has not been executed at all and the detenu has avoided service and incarceration and when challenge is sought to be made at pre-execution stage. It was observed as under:
"4. In our view, a very unusual order seems to have been passed in a pending appeal by the Division Bench of the High Court. It is challenged by the Union of India in these appeals. A detention order under Section 3(1) of the COFEPOSA Act was passed by the authorities on 13.9.1996 against the respondent. The respondent before surrendering filed a writ petition in the High Court on 23.10.1996 and obtained an interim stay of the proposed order, which had remained un-served. The learned Single Judge after hearing the parties vacated the ad interim relief. Thereafter, the respondent went in appeal before the Division Bench and again obtained ad interim relief on 10.1.1997 which was extended from time to time. The writ appeal has not been still disposed of.
5. When the writ petition was filed, the respondent had not surrendered. Under these circumstances, the proper order which was required to be passed was to call upon the respondent first to surrender pursuant to the detention order and then to have all his grievances examined on merits after he had an opportunity to study the grounds of detention and to make his representation against the said grounds as required by Article 22(5) of the Constitution."
18. Thus, examining the present case on hand in the light of the legal position enunciated in the decisions, referred to above, I am of the view that the petitioner has approached this Court purely on a hypothesis that election schedule will be notified and that if the petitioner files his nomination, the same would be rejected on the ground that he does not hold the status of ST and on further hypotheses that in such eventuality, the petitioners statutory right under the Representation of Peoples Act to contest elections would be affected. There is no factual basis for the said hypothesis and according to the petitioner, it is only a mere possibility. I am afraid the entertainment of the writ petition on such grounds would amount to entertaining the same on anticipatory breach of any right of petitioner and even before the competent authority has acted to the detriment of the petitioner, a Mandamus will have to be issued. Since such course is impermissible, I am constrained to dismiss the writ petition as not maintainable.
The writ petition is accordingly dismissed at the stage of admission. There shall be no order as to costs.
_____________________ VILAS V. AFZULPURKAR, J March 10, 2014