Kallu Ram v. Sakhawat — 1985 DIGILAW 736 (ALL)

JUDGMENT S.K. Dhaon, J. - This appeal, at the instance of a candidate duly elected as the Pramukh Kshettra Samiti, Kharkheda, stems from the judgment of the Ist Addtional District Judge, Meerut, given in an election petition declaring the election of the appellant as invalid. 2. An election to the office of the Pramukh of Kshettra Samiti, Kharkheda, was held on 29th May, 1983 and its result was declared on the same day. The election was held in accordance with the system of proportional representation wherein each elector had a single transferable vote. The appellant and respondent 1, Sakhawat, secured 22 votes each. However, since the appellant secured a larger number of first preference votes than Sakhawat, the question of decision being taken by the draw of lots did not arise and the appellant was declared duly . elected in accordance with the relevant Rule. An election petition purporting to-be under R. 35, U.P. Kshettra Samitis (Election of Pramukhs and Up-Pramukhs and Settlement of Election Disputes) Rules, 1962 (hereinafter referred to as the Rules) was preferred by respondent 1. In this petition, apart from the appellant the two other unsuccessful candidates, Sarvasri Balraj and Mansha Ram were impleaded as respondents. At this stage it may be noted that neither the State Government nor the District Magistrate, Meerut, were impleaded as respondents. 3. The trial Court struck a number of issues, six in all. They were : "1. Whether none of the candidates could be declared elected as alleged in para 8 of the petition? 2. Whether the result of this election was to be declared by means of a lot under the law as pleaded in para 9 of the petition'? 3. Whether any votes were cast by proxy illegally in this election as alleged in paras 12 and 13 of the petition? If so, its effect? 4. Whether the votes of the co-opted members of Kshettra Samiti are liable to be rejected as alleged in pars 14 of the petition? 5. Whether the election was not free and respondent I had adopted corrupt practice and exercised undue influence and gave bribery as alleged in pars 17 of the petition? If so, its effect? 6. To what relief, if any, is the petitioner entitled?" 4. Issues 1, 2 and 3 were decided against respondent 1. 5. Whether the election was not free and respondent I had adopted corrupt practice and exercised undue influence and gave bribery as alleged in pars 17 of the petition? If so, its effect? 6. To what relief, if any, is the petitioner entitled?" 4. Issues 1, 2 and 3 were decided against respondent 1. On issue 4, the trial Court returned a finding that the votes cast by the co-opted members of the Kshettra Samiti were liable to be rejected as those members were not entitled to vote at the election on the ground that they had not been administered oath as prescribed by the Rules. Under issue 5, the trial Court held that the election stood vitiated as respondent I was prevented from exercising his right of vote while in detention under the National Security Act, 1980 (hereinafter referred to as the Security Act). 5. Rule 49(1) of the Rules makes every order made under R. 43 appealable to this Court. The appellant is, therefore, entitled to approach this Court as a matter of right and address us both on questions of fact as well as law. 6. Respondent 1, Sri Sakhawat, has neither preferred any cross-objection under R. 22 of O. 41, Civil P.C. challenging the findings of the trial Court on issues 1, 2 and 3, nor has his learned counsel made any submission that the trial Court went wrong in recording its findings on these issues. The controversy in this Court, therefore, centres round the correctness of the view taken by the trial Court on the issues 4 and 5. 7. In para 14 of the election petition it is averred that since the co-opted members of the Kshettra Samiti had not made or subscribed on oath or affirmation in the prescribed form, they were not qualified and entitled to cast their votes. It was also averred that all such votes had been cast and counted in favour of the appellant. In para 14 of the written statement it is averred that the contents of para 14 of the election petition are rather vague. No particulars whatsoever of the number of co-opted members has been given nor has any reference been made to the votes of the co-opted members cast in favour of the appellant. However, the appellant admitted the fact that some co-opted members did participate in the election. No particulars whatsoever of the number of co-opted members has been given nor has any reference been made to the votes of the co-opted members cast in favour of the appellant. However, the appellant admitted the fact that some co-opted members did participate in the election. Since the appellant and respondent polled equal number of votes, even if one member was permitted to participate in violation of law, the result of the election of the appellant would have been affected materially. Therefore, the trial Court was right in adjudicating upon the controversy concerning the right of a co-opted member to participate in the election. The question, therefore, which has to be decided by me, is whether the co-opted members or member could cast their/his votes/vote at the election without undergoing the exercise of taking an oath. 8. The preamble to the U.P. Kshettra Samitis-and Zilla Parishads Adhiniyam, 1961 (U.P. Act No. XXXIII of 1961) (hereinafter referred to as the Act) reads : "An Act to provide for the establishment of Kshettra Samitis and Zilla Parishads in Uttar Pradesh." Section 2(6) of the Act defines "Kshettra Samiti" to mean : "Any Kshettra Samiti established under S. 5 and shall include any committee, member, officer or servant of the Kshettra Samiti authorised or required under this Act to exercise any power or perform any duty or function of the Kshettra Samiti under this Act." The heading or the marginal note of S. 5 is : "Establishment and incorporation of Kshettra Samitis." Sub-sec. (1) of S. 5 provides that the State Government shall notify in the Gazatte, the constitution or re-constitution of the Kshettra Samiti for each Khand, bearing the name of the Khand. Such notification shall be issued as soon as may be after the composition of the Kshettra Samitis, subject to the provisions of sub-sec. (2) of S. 10, completed under sub-secs. (1) and (2) of S. 6 and shall specify the date from which the Kshettra Samiti shall stand constituted or reconstituted. Sub-sec. (2) provides that every Kshettra Samiti shall be a body corporate having perpetual succession and common seal and, subject to any restriction or qualification imposed by any enactment, with the power to acquire, hold and dispose of property and to enter into contracts and it may, by its corporate name, sue and be sued. 9. Section 6 talks of composition of Kshettra Samiti. 9. Section 6 talks of composition of Kshettra Samiti. It provides that the Kshettra Samiti shall have as its members (i) All Pradhans of constituent Gaon Sabhas; (ii) Chairman of the committee for a town area and President of the committee for a notified area, contiguous to the Khand and declared as such by order in writing by the District Magistrate of the District in which the Khand lies; (iii) so many representatives, being neither less than two nor more than five, as the State Government may by notification in the Gazette fix of such co-operative societies or groups thereof as have their registered offices within the Khand and fulfil the requirements which the State Government may by order specify to be chosen in the manner prescribed; (iv) all members of the House of the People and the State Legislative Assembly............" (v) all members of the Council of State and the State Legislative Council ...................." Sub-section (2) provides that subject to the provisions of sub-sec. (2) of S. 10, the members mentioned in Cls. (i), (ii), (iv) and (v) of sub- sec. (1) shall, subject to the conditions and in the manner prescribed, co-opt the following as members of the Kshettra Samiti. There is a proviso added, the terms of which are not material. 10. Section 7 provides that every Kshettra Samiti shall have a Pramukh who shall be elected by the members mentioned in sub- secs. (1) and (2) of S. 6 out of persons whose names are registered as electors in the Assembly rolls from any area including in the Khand. It also provides that the aforesaid election shall be held by secret ballot and in the manner provided by rules which shall also provide for resolution of doubts and disputes relating to the election of Pramukhs and Up- Pramukhs. Sub-sec. (1-A) of S. 7 provides that notwithstanding anything in sub-sec. (1), the elections to the office of Pramukh and Up- Pramukh may be held notwithstanding any vacancy in the membership of Kshettra Samiti or the failure to choose any representative under Cl. (iii) of sub-sec. (1) of S. 6 or the failure to co-opt any member under sub-sec. (2) of that Section. 11. Section 8 talks of the Kshettra Samiti and its members. Sub-sec. (iii) of sub-sec. (1) of S. 6 or the failure to co-opt any member under sub-sec. (2) of that Section. 11. Section 8 talks of the Kshettra Samiti and its members. Sub-sec. (1) of this section provides that subject to the other provisions of the Act, the term of office of the first and every subsequent Kshettra Samiti for a Khand shall be five years. Sub-sec. (2) provides that the term of each Kshettra Samiti shall commence on the date of its constitution or re-constitution specified in the notification issued under sub-sec. (1) of S. 5. Sub-sec. (3) provides that the term of office of each member of the Kshettra Samiti shall commence on the date of its constitution or reconstitution or the date of his being entitled to be a member either ex officio or by virtue of his election or, as the case may be, co-option whichever be later, and shall, save as otherwise provided by the Act, extend up to term of the Samiti. 12. Section 9 refers to the term of Pramukh and Up-Pramukh. Sub-sec. (1) minus the three provisos thereof, which have been deleted with effect from 15th July, 1978 by the U.P. Act No. 30 of 1978, provides that save as otherwise provided in the Act the term of office of a Pramukh or Up-Pramukh of a Kshettra Samiti shall commence upon his election and shall extend up to the term of the Kshettra Samiti. 13. Section 237 confers power upon the State Government to make rules. Sub-sec. (1) of that Section provides that the State Government may by notification in the official Gazette make rules consistent with the Act in respect of any matters for which the power of making rules is expressly or by implication conferred by the Act, and may also make rules which are otherwise requisite for carrying out the purposes of the Act. 14. By a notification dated July 18, 1962 as amended on 15th July, 1983, in the purported exercise of power under S. 237 of the Act, the State Government prescribed a form of oath or affirmation. The relevant portion of which may be extracted : "I ..............having become Adhyaksha/Pramukh of the Zila Parishad/Kshettra Samiti/member of the Zila Parishad/Kshetra Samiti of ...................................do solemnly take oath/affirm that........ The relevant portion of which may be extracted : "I ..............having become Adhyaksha/Pramukh of the Zila Parishad/Kshettra Samiti/member of the Zila Parishad/Kshetra Samiti of ...................................do solemnly take oath/affirm that........ Constitution of India as by law established and that I will faithfully and honestly discharge the duties of my office." We may, at this stage, also consider some provisions of the Rules. Rule 2(b) defines "member" to mean a member of a Kshettra Samiti under S. 6 of the Act. Rule 3 provides that the District Election Officer shall be the Returning Officer for conducting election. Rule 5 provides that whenever an election is required to be held under the Act for the office of Pramukh of a Kshettra Samiti, the State Government shall, by notification in the Gazette, appoint for the election the date for filing nomination and scrutiny and so on. Rule 6 provides that before the issue of notification under R. 5 the Returning Officer shall cause to be prepared a list of the persons who are members for the time being, of the Kshettra Samiti and give public notice of the same by having an authentic copy of the list affixed each at his office, the office of the District Magistrate and such other conspicuous places and so on. 15. A combined reading of the preamble as extracted above, the definition of Kshettra Samiti as contained in S. 2(6) and S. 5 will immediately show that the Legislature has designedly used three expressions which have a material bearing on the point in issue. They are 'established', "constitution" and "composition". Sub-section (6) of S. 2 makes it clear that in S. 5 a Kshettra Samiti is established. In other words, it has come into existence; it has taken its birth; it has acquired a legal identity; and that is why in sub-sec. (2) of S. 5 we find that it has been made a body corporate. The Kshettra Samiti sees the light of the day as soon as the State Government makes a notification in the Gazette. In S. 6 the Legislature provides for the personnel of the entity established under S. 5. Merely by bringing into existence the personnel or the constituents of the Kshettra Samiti in S. 6, the Kshettra Samiti does not come into existence. It remains still-born. In S. 6 the Legislature provides for the personnel of the entity established under S. 5. Merely by bringing into existence the personnel or the constituents of the Kshettra Samiti in S. 6, the Kshettra Samiti does not come into existence. It remains still-born. We have seen that S. 6 prescribes the various fields of recruitment for the membership of the Kshettra Samiti. Co-opted members form one such category. It will also be seen that neither in S. 5 nor in S. 6 there is any reference to Pramukh or Up- Pramukh. The legislative intendment is clear that a Kshettra Samiti is established the moment it is composed in the manner prescribed under S. 6 and a notification in the Gazette is issued irrespective of the fact whether a Pramukh or a Up-Pramukh has been elected or not. 16. Section 10 may also be considered. Sub-section (2) of S. 10 provides that even the absence of any one of the members mentioned in Cls. (i), (ii) and (iii) of sub-s. (1) of S. 6 or a vacancy in the membership of Parliament or the State Legislature shall not prevent the co- option of members under sub-s. (2) of S. 6. The Legislature also provides that the existence of any vacancy in the membership of Parliament or the State Legislature or failure to choose any representative under Cl. (iii) of sub-s. (1) of S. 6 or the failure to co-opt any member under sub-s. (2) of that Section shall not prevent the constitution of a Kshettra Samiti by the State Government under S. 5. In other words, a Kshettra Samiti can be constituted even in the absence of co-opted members, the representatives mentioned in Cl. (iii) of sub-sec. (1) of S. 6 and any vacancy in the membership of Parliament and the State legislature. According to S. 7, a Pramukh shall be elected by the members of the Kshettra Samiti as mentioned in sub-ss. (1) and (2) of S. 6. We have also seen sub-s. (1-A) of S. 7 which opens with a non obstante clause and provides that even in the absence of co-opted members, representatives referred to in Cl. (iii) of sub-s. (1) of S. 6 and in the existence of any vacancy in the membership of the Kshettra Samiti, the election to the office of Pramukh or Up-Pramukh may be held. (iii) of sub-s. (1) of S. 6 and in the existence of any vacancy in the membership of the Kshettra Samiti, the election to the office of Pramukh or Up-Pramukh may be held. So far in the provisions of the Act, there is not even the faintest of the faint indication that the members of a Kshettra Samiti as constituted under S. 5 cannot elect a Pramukh unless and until they have taken oath as prescribed by the Rules although they have become members of an 'established' body. 17. An argument has been built by the learned counsel for the contesting respondent on a combine reading of sub-s. (2) and sub- s. (3) of S. 8. We have already seen that the normal term of the Kshettra Samiti for a Khand is five years. It is also provided in sub-s. (2) that the term of a Kshettra Samiti shall commence on the date of constitution or reconstitution specified in the notification issued under sub-s. (1) of S. 5. Sub-sec. (3) may be read in its entirety : "The term of office of each member of the Kshettra Samiti shall commence on the date of its constitution or reconstitution or the date of his being entitled to be a member either ex-officio or by virtue of his election or, as the case may be, co-option whichever be later, and shall, save as otherwise provided by this Act, extend up to the term of the Samiti." (Emphasis supplied). The argument is built on the words underlined and it is submitted that the entitlement will come into existence only after oath has either been administered to or taken by the member concerned. This submission appears attractive at the first blush but ceases to hold water on a slight scrutiny. This provision should be read conjointly with the provisions as contained in sub-s. (2) of S. 10 where the Legislature has provided that a Kshettra Samiti can be constituted even though there is any vacancy in the membership of Parliament or the State Legislature or a representative as contemplated in Cl. (iii) of sub-s. (1) of S. 6 has not come into existence or no member has been co- opted under sub-s. (2) of S. 6. (iii) of sub-s. (1) of S. 6 has not come into existence or no member has been co- opted under sub-s. (2) of S. 6. In sub-s. (3) of S. 8 an ex-officio member is referable to the Members of Parliament and the State Legislature and election is referable to the representatives envisaged in Cl. (iii) of sub- s. (1) of S. 6 and of course the co-opted members are contemplated in sub-s. (2) of S. 6. Naturally if a Kshettra Samiti has been constituted in the absence of the aforesaid category of members and later on either of the three or all of them are included as members, their term of office will commence not from the date of constitution of the Kshettra Samiti but from the date of their becoming the members of the Samiti, either in their ex-officio capacity or by election or by co-option. 18. The terms of S. 9 clearly indicate that the Kshettra Samiti will come into existence first and the Pramukh will arrive at the scene later on. There is nothing in the Rules to indicate that a person does not become a member of the Kshettra Samiti, in spite of the notification under S. 5 and in spite of its composition in accordance with the provisions of S. 6 merely because oath has not been administered to him. The Rules do not indicate that a meeting of the Kshettra Samiti is convened for transacting any business assigned to it. It is to be noted that an outside agency is a Returning Officer, the State Government notifies in the Gazette the time table for the holding of the election of the Pramukh and the entire exercise of electing a Pramukh is conducted by the Returning Officer. This is in consonance with the legislative mandate as contained in S. 7 which says that every Kshettra Samiti shall have a Pramukh. So long as the Pramukh does not come into existence under S. 7, the question of a meeting of a Kshettra Samiti being held for transacting the business of the Samiti cannot be and is not envisaged. 19. Section 31 of the Act provides that every Kshettra Samiti and Zila Parishad shall exercise the powers and perform the functions conferred and entrusted or delegated to it by or under the Act. 19. Section 31 of the Act provides that every Kshettra Samiti and Zila Parishad shall exercise the powers and perform the functions conferred and entrusted or delegated to it by or under the Act. Then in sub-s. (2) of the said section it is provided that the State Government may entrust any of the functions for the time being performed by any of its departments. Section 32 of the Act provides that every Kshettra Samiti shall exercise powers and perform the functions specified in Schedule contains the powers and functions of the Kshettra Samitis. A meeting of the Kshettra Samiti can, therefore, be convened or held only for exercising the powers or performing the duties specified in Schedule I. In the Schedule we do not find any entry whatsoever concerning the election to the office of the Pramukh. In S. 79 it is provided that the powers, duties and functions specified in the second column of Sch. VI, with the exception of those against which an entry is shown in the third column of that Schedule, may be exercised and shall be performed by a Kshettra Samiti by resolution passed at a meeting and not otherwise. Then, in Sch. VI there is a list of powers and functions. Again the function of electing a Pramukh is conspicuous by its absence in the list. 20. We may also consider the U.P. Kshettra Samitis (Conduct of Proceedings) Rules, 1962. Rules 4 and 5 of these Rules provide for the date, time and place of meeting and the roll of members. Rule 4 refers to S. 84 which says that a Kshettra Samiti shall meet for the transaction of business at least once in every two months. Rule 5 provides that a roll be placed at the place of the meeting and every member shall, before taking his seat, sign the roll. Therefore, it is apparent that the proceedings of the Kshettra Samiti and the meetings,of the Kshettra Samiti as such for transacting the business assigned to it are held under the Rules aforementioned. The conclusion, therefore, is inevitable that a member participating in the meeting conducted under these Rules for transacting the business of the Kshettra Samiti as referred to in S. 84 read with Schs. The conclusion, therefore, is inevitable that a member participating in the meeting conducted under these Rules for transacting the business of the Kshettra Samiti as referred to in S. 84 read with Schs. I and VI is required either to be administered an oath or take an oath and no oath is required to be taken by any member while electing a Pramukh under the Rules. 21. Section 98 refers to "the validity of the acts and proceedings". Sub-sec. (2) of the said provision provides that no disqualification or defect in the election, co-option or appointment of a person acting as a member of a Zila Parishad or a committee or sub- committee appointed under the Act or as the Presiding Officer of a meeting of a Zila Parishad or of such committee or sub- committee, shall be deemed to vitiate any act or proceeding of the Zila Parishad. 22. Sub-sec. (4) of S. 98 provides that the provisions of the preceding sub-sections shall mutatis mutandis apply to acts and proceedings of every Kshettra Samiti or a committee or sub-committee thereof. As already indicated, no meeting of the Kshettra Samiti takes place under the Rules for election to the office of the Pramukh. Assuming such a meeting takes place, as contended by the learned counsel for the contesting respondent, the defect, if any, stands fully cured by the provisions as contained in sub-s. (4) read with sub-s. (2) of S. 98 of the Act. 23. The scheme of the Act and the rules framed thereunder is quite distinct and separate from the schemes as contained either in the Representation of the People Act or the U.P. Municipalities Act. Unlike these Acts, in the present Act a distinction between assumption of office and membership does not exist. It is well known that if a certain right is created by the Statute, there cannot be and there should not be any abridgment of such a right unless there is either an express or implied intendment of the Legislature in that behalf. I have already held that the election of the Pramukh is not the function of the Kshettra Samiti. The authorities referred to by the trial Court and some other authorities cited at the bar by the learned counsel for respondent l relate to different statutory provisions and are, therefore, not apposite. I have already held that the election of the Pramukh is not the function of the Kshettra Samiti. The authorities referred to by the trial Court and some other authorities cited at the bar by the learned counsel for respondent l relate to different statutory provisions and are, therefore, not apposite. The conclusion, therefore, is inevitable that the view taken by the trial Court on issue 4 is not sustainable. 24. On or before the date of election, viz.. 29th May, 1983, respondent 1 was detained under the Security Act. It appears that respondent 2 was facing a trial before the learned Sessions Judge, Meerut, in certain crime No. 111 A of 1983 under Ss. 147/148/149/302, Penal Code. On 27th May, 1983, the learned Sessions Judge passed an order upon an application made by and on behalf of respondent 1. By this order the learned Sessions Judge directed the police authorities to take steps for taking respondent from the district jail Meerut to Block headquarters of Kharkheda on 29th May, 1983, so as to enable him (respondent 1) to cast his vote at the election. The learned Judge also directed that a copy of his order may be given to the District Government Counsel (Criminal) so as to enable him to take up the matter with the District Magistrate so that necessary arrangements may be made for the movement of respondent from the jail to the polling station. On 28th May, 1983, an application was made by and on behalf of respondent 1 before the District Magistrate. The District Magistrate on the same day passed an order rejecting the application. He pointed out that the power of permitting the movement of the detainee (respondent 1) from his place of detention (the jail) to the Block Kharkheda vested exclusively in the State Government and. therefore, he was unable to help respondent. He, however, expressed a pious wish that the Returning Officer may be requested to make some arrangement so as to enable respondent to cast his vote in the jail. In this background, the view of the trial Court that the election had not been free and fair as respondent was wrongly deprived of his right to vote has to be examined. 25. Respondent had no fundamental right whatsoever to participate in the election of the office of the Pramukh. He had no constitutional right either. In this background, the view of the trial Court that the election had not been free and fair as respondent was wrongly deprived of his right to vote has to be examined. 25. Respondent had no fundamental right whatsoever to participate in the election of the office of the Pramukh. He had no constitutional right either. He had, however, a legal right because under the provisions of the Act and the Rules framed thereunder he was entitled to contest the election. 26. There is no dispute that respondent 1 was detained under the Security Act. Certain consequences flew on account of the detention of the respondent. One of them, which was incidental to the fact of respondent being detained in jail, was that he was prevented from exercising his legal right of casting his vote at the election. So long as the order of detention continued to exist, respondent 1 had necessarily to suffer its consequences. 27. In K. Ananda Nambiar v. Chief Secy. Govt. of Madras, AIR 1966 SC 657 a question arose whether a Member of Parliament. who was under detention, had a right to participate in the business of the Legislature. Reliance was placed upon the provisions contained in Article 102 of the Constitution and S. 7, Representation of the People Act and the argument was that so long as a member did not incur a disqualification he had a constitutional right to exercise his right as a Member of Parliament. The Supreme Court observed (at p. 665) : "...... It is true that the conviction of a person at the end of a trial is different from the detention of a person without a trial; but so far as their impact on the alleged constitutional rights of the members of Parliament is concerned, there can be no distinction. If a person who is convicted and sentenced has necessarily to forgo his right of participating in the business of Legislature to which he belongs, because he is convicted and sentenced, it would follow that a person who is detained must likewise for goes his right to participate in the business of the Legislature. If a person who is convicted and sentenced has necessarily to forgo his right of participating in the business of Legislature to which he belongs, because he is convicted and sentenced, it would follow that a person who is detained must likewise for goes his right to participate in the business of the Legislature. Therefore, the argument that so long as the Member of Parliament has not incurred any disqualification, he is entitled to exercise his rights as such Member cannot be accepted." The order of detention under the Security Act remained intact and the presumption was that respondent I had been deprived of his right to vote in accordance with the procedure established by law. The order of detention had not been challenged directly in any proceedings and declared illegal. Its validity had neither been challenged in the election petition nor could it be challenged in the said proceedings. Such orders could not be and cannot be challenged in collateral proceedings. 28. In Smt. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299 Ray, C.J., as he then was, observed : "The constitution of the House which passed the Constitution (Thirty-ninth Amendment) Act is not illegal on the ground that a number of members of Parliament of the two Houses were detained by executive order after 26th June. 1975. It has also to be stated that it is not open to challenge the orders of detention collaterally." Sub-section (2) of S. 3, Security Act. primarily empowers the Central Government or the State Government, as the case may be, to pass an order of detention with respect to cases referred to therein. In sub-sec. (3), to meet an extraordinary situation, the District Magistrate or a Commissioner of Police can be authorised by the State Government to exercise the powers vested in it (the State Government) in sub-sec. (2). Sub-sec. (4) enjoins upon the District Magistrate concerned to forthwith report the action taken by him in pursuance of the direction given to him under sub-sec. (3). Section 5. inter alia, provides that every person in respect of whom a detention order has been made shall be liable to be detained in such place and under such condition, including conditions as to maintenance, discipline and punishment for breaches of discipline, as the appropriate Government may, by general or special order, specify. (Emphasis supplied). (3). Section 5. inter alia, provides that every person in respect of whom a detention order has been made shall be liable to be detained in such place and under such condition, including conditions as to maintenance, discipline and punishment for breaches of discipline, as the appropriate Government may, by general or special order, specify. (Emphasis supplied). The expression underlined by me will include the situation where a detenu seeks permission to be removed from the place of detention to some other place though in the same district. The word 'including' immediately after the words underlined is indicative of the fact that maintenance, discipline etc. are not exhaustive but are merely enumerative. Apart from S. 5, I find no other provisions under the Security Act which could be invoked by respondent for being removed from the district Jail Meerut to block Kharkheda and this power is vested exclusively in the appropriate Government. In this case the appropriate Government was the State Government. Therefore, the District Magistrate Meerut, had no jurisdiction to permit respondent to leave the district jail Meerut even for a short while so as to enable him (respondent 1) to cast his vote at Kharkheda. In my opinion, the learned Sessions Judge went out of his way in issuing the direction that respondent should he taken from the district jail to Kharkheda. The election of the applicant, therefore, does not stand vitiated on the ground that respondent 1 was prevented from casting his vote. The view taken to the contrary by the trial Court is again not sustainable. 29. This appeal succeeds and is allowed. The judgment and order dated 6th Aug. 1984. passed by the Ist Additional District Judge Meerut is set aside. The Election Petition preferred by respondent is dismissed. The parties are directed to bear their own costs.