Madras High Court
Thol.Thirumavalavan vs The Government Of Tamil Nadu on 12 July, 2013
Bench: V.Dhanapalan, C.T.Selvam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.07.2013 CORAM: THE HON'BLE MR.JUSTICE V.DHANAPALAN and THE HON'BLE MR.JUSTICE C.T.SELVAM W.P.No.18815 of 2013 Thol.Thirumavalavan S/o.Thol.Kappian, President of Viduthalai Chiruthaigal Katchi R-18, 2nd Avenue, TNHB Colony, Velacherry, Chennai-42. .. Petitioner -vs- 1. The Government of Tamil Nadu Rep. By its Secretary, Home Department, Fort. St. George, Chennai-9. 2. The District Magistrate and District Collector, Dharmapuri District. 3. The Superintendent of Police, Office of the Superintendent of Police, Dharmapuri, Dharmapuri District. 4. The Tahsildar, Dharmapuri Taluk. .. Respondents Writ Petition filed under Article 226 of Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus, calling for the records of the District Magistrate and District Collector, Dharmapuri in R.O.C.No.28026/2012/C1/ dated 04.07.2013, quash the same and further direct the respondents to permit the petitioner to enter into Dharmapuri District. For Petitioner : Mr.S.Prabakaran for Mr.K.Balakrishnan For Respondents : Mr.A.L.Somayaji Advocate General Assisted by Mr.S.T.S.Murthi, Special Government Pleader O R D E R
(Order of the Court was made by V.Dhanapalan,J.) Challenging the order dated 04.07.2013 passed by the District Magistrate and District Collector/2nd respondent herein, in ROC No.28026/2012/C1, and seeking to quash the same with a consequential direction to the respondents to permit him to enter into Dharmapuri District, the petitioner has filed the present Writ Petition.
2. Facts leading to filing of the Writ Petition, as put forth by the petitioner in his affidavit, are as follows:
2.1. A Dalit boy, viz., Elavarasan married one Divya, belonging to Vanniar community, on 07.11.2012 and the same was opposed by people of Vanniyar Community, due to which, three Dalit Villages, namely, Natham, Kottampatti and Anna Nagar in Dharmapuri District were burnt by anti-social elements, which resulted in ex-communication of Elavarasan and Divya from the village and they lived together in the outskirts of Natham village.
2.2. Pursuant to filing of Habeas Corpus Petition before this Court, Divya appeared before this Court and on 03.07.2013, she expressed her unwillingness to go with Elavarasan. Thereafter, Elavarasan died in a suspicious manner on 04.07.2013 near Thadangam Railway Track, about 12:30 p.m. Probe is being conducted by the local Police along with the Railway Police Department as to nature of his death.
2.3. The petitioner, being a Member of Parliament and also the President of Viduthalai Chiruthaigal Katchi, is to necessarily attend the funeral ceremony of Elavarasan scheduled to be held on 09.07.2013. Since the 2nd respondent/District Collector had passed the prohibitory order under Section 144(1) of the Code of Criminal Procedure, 1973, against caste leaders, including the petitioner, he is not in a position to enter into Dharmapuri District in order to pay homage to the deceased Elavarasan and console his family members. Therefore, the petitioner, besides pleading that the impugned order is violative of Article 19 (1)a(b) of the Constitution of India, seeks to set aside the same on the following grounds:
(a) that the impugned order is illegal, arbitrary and improper exercise of power;
(b) that the 2nd respondent had failed to see that no caste leaders create any law and order problem following the incident dated 07.11.2012, in which three Dalit Villages were completely burnt and the valuables of Dalit people were looted by anti-social elements;
(c) that the impugned order curtails the very movement of Dalit leaders even to console the family members of Elavarasan;
(d) that the impugned order is violative of Articles 14 and 19(a)(b)(c)(d) of the Constitution of India and no opportunity of hearing was given to the petitioner before passing the impugned order.
3. The 1st respondent has filed counter affidavit, wherein it is stated as follows:
(i) The body of one Elavarasan was found in the Railway Track near Government Arts College, Dharmapuri on 04.07.2013 and the Police authorities visited the spot and started investigation. The body was sent for Post-mortem on 05.07.2013 to the Government Medical College Hospital, Dharmapuri. A team of three Doctors conducted Post-mortem on the body of the said Elavarasan and thereafter, as per the orders of this Court, the body is kept in the mortuary at Government Medical College, Dharmapuri for further examination.
(ii) After the death of the said Elavarasan, there exists threat to law and order situation in Dharmapuri District and due to a riot conducted by one set of people on the houses of Natham Colony, Dharmapuri, on 07.11.2012, serious law and order problem spread over the District and other Northern Districts also. In order to prevent untoward incidents, the 2nd respondent promulgated proceedings under Section 144 Cr.P.C. in Dharmapuri District, vide ROC No.2802/2012/C1 dated 04.07.2013 and about 1000 police personnel of various categories have been engaged by the Government to have control over the law and order situation in that area, besides initiating relief measures.
(iii) On receipt of Intelligence Report from the Superintendent of Police, Dharmapuri stating that law and order problem is likely to arise in the District, the District Collector immediately passed an order under Section 144 of Cr.P.C., to avert any untoward incident likely to arise in the District.
(iv) The District Collector, Dharmapuri received representations from eight different political parties and Dalit Organizations for relaxation of the prohibitory order, by allowing them to attend the funeral ceremony. Consequent to the riot, which had taken place on 07.11.2012 in Dharmapuri District, many untoward incidents took place even in Villupuram District also and the District Collector of Villupuram promulgated proceedings under Section 144 of Cr.P.C.
(v) The marriage of Elavarasan and Divya resulted in arson and damage of public and private properties, which further got escalated after the death of Elavarasan and the Police authorities have received reliable information that there is every chance of group clash between the said two communities and that the situation is now under control, because of the presence of police personnel of various ranges. The situation will definitely deteriorate, if leaders outside the District are allowed inside the District and it is the habit of all these leaders to go in a convoy of vehicles and some of the followers tend to shout provocative slogans and the same will aggravate the tension.
(vi) If the petitioner is allowed to visit the area and attend the funeral ceremony of the deceased Elavarasan, other party leaders may also take a chance thereby requesting the authorities to allow them attend the funeral ceremony of the deceased and if permission is granted, huge crowd will assemble in the area and it would not be possible to have control over the crowd and it may lead to law and order problems.
(vii) A case in Crime No.14 of 2013 for the offence under Section 153A IPC was registered on 10.01.2013 after getting legal opinion regarding a speech made by the petitioner herein at Dharmapuri after the Natham Colony incidents, which is under investigation and hence, the request of petitioner cannot be considered. The petitioner's statement in paragraph 4 of his affidavit that he is the leader of Dalit community and also Member of Parliament and the President of Viduthalai Chiruthaigal Katchi and that Dalit people of Dharmapuri District expect him to attend the funeral ceremony of the deceased Elavarasan, clearly shows that the petitioner has no intention to console the family members of the deceased Elavarasan, but is only trying to attend the funeral ceremony of Elavarasan. If the petitioner is allowed, a mob will assemble in the funeral ceremony of Elavarasan and there is every chance of law and order problems arising in that area.
For the above reasons, the 1st respondent prays for dismissal of the Writ Petition.
4. Mr.S.Prabakaran, learned counsel for the petitioner would contend that the petitioner, being a Member of Parliament as also the leader of a party espousing the cause of Dalits, should be allowed to attend the funeral ceremony of Elavarasan, a Dalit boy, who has been done to death. Otherwise also, his right as a Member of Parliament representing a larger section of the society would definitely get affected. He would further contend that the prohibitory order is against the fundamental rights guaranteed under Article 19(1)(b) of the Constitution of India.
5. In support of his case, learned counsel for the petitioner has relied on a judgment of this Court, dated 28.08.2008 made in W.P.No.30554 of 2007 in the case of Thol.Thirumavalavan vs. The Commissioner, HR & CE and others, relevant portion of which reads as under:
"30. We are at a loss to understand as to how the third respondent has taken such a stand in his counter.
31. As regards the report sent by the District Collector, Salem District, We find that the decision taken in the peace committee meeting held on 26.04.2008 ended in favour of the dominant caste. In view of the stand taken by the Hindu Religious and Charitable Endowments Department, that the Draupadi Amman Temple is a public temple and the suits filed by the seventh respondent and their community people are yet to reach any finality with regard to the declaration of their right to the temple and that as per the Tamil Nadu Temple Entry Authorization Act, 1947, a right has been conferred upon all Hindus to enter into the said temple and offer worship, the order passed by the second respondent in ordering the closure of the temple on the face of it, is unsustainable. Regarding the prayer sought by the petitioner to take out the procession to vent their grievances regarding the denial of permission to the people belong to Scheduled Caste Community to offer worship at the Draupadi Amman Temple, in view of the foregoing reasons that the order passed by the second respondent in closing down the said temple, is unsustainable, there is no need for them to take out a procession. The third respondent has also taken a stand that in the event of procession allowed to be taken, it has to pass through arterial routes and also through the areas in which the people belong to other community are dominant and definitely there will be law and order problem, We are not inclined to grant the request made by the petitioner to take out a procession, for the present.
32. For the above said reasons, We direct the second respondent to reopen the said Draupadi Amman Temple within a period of four weeks from the date of receipt of a copy of this order from the Registry and We further direct the respondents 1 to 6 to ensure adequate protection to the people belong to the Scheduled Caste Community to enter the said temple and offer worship.
33. In the event of the writ petitioner filing appropriate application before the fifth respondent for taking out the procession, the fifth respondent can deal with the same in accordance with law after providing an opportunity of hearing to the petitioner.
34. In the result, the Writ Petition is disposed of on the above terms. Consequently, the connected Miscellaneous Petitions are closed. But, in the circumstances, there will be no order as to costs."
6. Mr.A.L.Somayaji, learned Advocate General has strenuously contended that the District Collector had passed the prohibitory order under Section 144 of Cr.P.C. on receipt of report from the Superintendent of Police to the effect that there is every possibility of untoward incidents occurring in the area. He would submit that eight other persons belonging to various political parties and Dalit Organizations requested the District Collector by way of representations to relax Section 144 Cr.P.C. proceedings to enable them attend the funeral ceremony of Elavarasan and if the petitioner's request is considered, it may result in serious consequences.
7. Learned Advocate General would further submit that the prohibitory order is not intentional or is against any political party and the same was passed only with the sole intention to control the situation and it is not the right time to allow political leaders to participate in the funeral ceremony. By producing a copy of the judgment of the Hon'ble Division Bench of this Court in the case of S.Jimraj Milton vs. The Government of Tamil Nadu and others in W.P.No.18519 of 2013 decided on 08.07.2013, he would contend that even for the parents of the deceased, the Hon'ble Division Bench took a view that only on the representations made by them to the District Collector, their request for participation in the funeral ceremony, would be considered. Therefore, the claim of the petitioner herein cannot be heeded to in the light of the situation prevailing in that area. Operative portion of the said order reads as under:
"5. The District Collector, Dharmapuri District, shall inform the immediate family members of N.Divya and the deceased E.Illavarasan that they could submit their representations for attending the funeral of the deceased E.Illavarasan. Thereafter, it would be open to N.Divya and her family members and the family members of the deceased E.Illavarasan to submit appropriate representations to the District Collector, Dharmapuri District, if they want to attend the funeral of the deceased E.Illavarasan, whenever it is scheduled to be held. On such representations being made, the District Collector, Dharmapuri District, shall consider the same and pass appropriate orders thereon, taking into account the security, law and order and other such aspects.
6. We also make it clear that sufficient security should be provided to the parents of the deceased E.Illavarasan, in the meantime."
8. A perusal of the order informs that a Dalit boy, namely, Elavarasan was found dead near Thadangam Railway Track near Government Arts College, Dharmapuri on 04.07.2013 and on completion of post-mortem by a team of three Doctors in the Government Medical College Hospital, Dharmapuri, the body of Elavarasan is being preserved at the mortuary of the said Hospital for further examination as per the orders of this Court. Further, it is seen that in order to keep law and order under control and also based on the report received from the Superintendent of Police, the District Collector, Dharmapuri promulgated proceedings under Section 144 of Cr.P.C. and abundans cautela non nocet, which means, abundant caution does no harm.
9. Be that as it may, several political leaders and Dalit Organizations have requested the District Collector to relax the prohibitory order so as to enable them attend the funeral ceremony of the deceased Elavarasan and no decision has been taken on their representations. The situation still appears to be tensed in the area after the suspicious death of Elavarasan. While so, the petitioner, in order to console the family members of the deceased Elavarasan and participate in the funeral ceremony, sought permission from the District Collector, by way of telex message dated 08.07.2013.
10. As per Section 42-A(2) of the Madras District Police Act, 1859, the District Magistrate has to consider such request, taking into account the situation prevailing in that particular area. The said proviso reads as under:
"42-A: Deputation of Police Officers to be present in assembly, meeting or procession in public places:
(2) Nothing in sub-section (1)shall apply to any assembly or meeting of a purely religious character held in a recognized place of worship, any assembly or meeting gathered together purely for the purpose of taking part in sports, any procession on the occasion of any wedding, funeral or similar domestic occurrence, or of any religious ceremony, or to any public meeting held under any statutory or other express legal authority, or any public meeting or class of public meetings exempted for that purpose by the State Government by general or special order.
Explanation--For the purposes of this section --
(a) the words "assembly", "meeting and "procession" include any assembly, meeting or procession which is open to the public or to any class or portion of the public;
(b)a place in which assembly or meeting is held may be a public place notwithstanding that admission thereto may have been restricted by ticket or otherwise. "
11. This Court, after considering various situations, particularly when there was a request for re-post mortem of the body of the deceased Elavarasan and the same was also allowed by this Court to be conducted by the Doctors from All India Institute of Medical Sciences (AIIMS), New Delhi and thereafter, funeral ceremony will be scheduled to be held on the date fixed by the family members of the deceased Elavarasan, is of the view that it is for the District Magistrate to take decision on the representations received from several political leaders including the petitioner, expeditiously, so that actus curiae neminem gravabit, which means, an act of law does no wrong.
12. We have considered the submissions made on either side and perused several orders placed before us.
13. The respondent has taken a stand that the petitioner is the leader of Dalit Community and Member of Parliament and the President of Viduthalai Chiruthaigal Katchi and the Dalit people of Dharmapuri District expect him to attend the funeral of Elavarasan. If the petitioner is allowed, a mob will assemble in the funeral of Elavarasan and there is every chance of arising law and order problems in the area. Keeping in view the same, prohibitory order came to be imposed in the area under Section 144 of Cr.P.C.
14. In the meantime, a representation vide telegram dated 08.07.2013 has been sent by the petitioner to the District Collector, requesting to allow him to attend the funeral ceremony of Elavarasan. Since the petitioner is a Member of Parliament, espousing the cause of Dalit community and assured of maintaining public tranquility in the District, it would be appropriate to direct the second respondent to consider the request of the petitioner, taking into account the prevailing situation.
15. Accordingly, the writ petition is disposed of with a direction to the District Collector/2nd respondent to consider the petitioner's request dated 08.07.2013 and take a decision, after verifying all the factors and situation prevailing in Dharmapuri District on 13.07.2013. No costs. Consequently, connected miscellaneous petitions are closed.
ar/abe To :
1. The Secretary, Government of Tamil Nadu Home Department, Fort. St.George, Chennai-9
2. The District Magistrate and District Collector, Dharmapuri District.
3. The Superintendent of Police, Office of the Superintendent of Police, Dharmapuri, Dharmapuri District.
4. The Tahsildar Dharmapuri Taluk