Madras High Court
Dr.K.R.Ramaswamy Alias Traffic vs The Chief Secretary on 23 August, 2017
Bench: Indira Banerjee, M.Sundar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.08.2017
CORAM :
The Hon'ble Ms.INDIRA BANERJEE, CHIEF JUSTICE
AND
The Hon'ble MR.JUSTICE M.SUNDAR
W.P.Nos.21953 and 22240 of 2017
and W.M.P.Nos.23001 and 23272 of 2017
W.P.No.21953 of 2017
Dr.K.R.Ramaswamy alias Traffic
Ramaswamy, Social Activist/Senior Citizen. .. Petitioner
-vs-
1.The Chief Secretary,
Govt. of Tamilnadu,
Fort St. George, Chennai-9.
2.The Secretary,
Home Department,
Fort St. George, Chennai-9.
3.The Secretary,
Municipal Administration & Water
Supply Department, Fort St. George,
Chennai-9.
4.The Director General of Police,
Dr.Radhakrishnan Salai, Chennai-4.
5.The Commissioner of Police,
Greater Chennai City, Chennai-7.
6.The Commissioner,
Greater Chennai Corporation, Chennai-3.
7.The Commissioner,
Hindu Religious and Charitable
Endowment Board, Nungambakkam,
Chennai-34.
8.The Chairman/Managing Director,
Tamilnadu Generation and Distribution
Corporation Ltd., 144, Anna Salai,
Chennai-2.
9.The Superintending Engineer/HOD,
Energy Department, Govt. of Puducherry,
Thambu St., Puducherry-605 001.
10.The Director General of Police,
Puducherry-605 001. .. Respondents
Petition filed under Article 226 of the Constitution of India praying for issue of Writ of Mandamus to direct respondents 1 to 10 to consider and pass appropriate orders on the representation dated 11.08.2017 made by the petitioner within stipulated time period as may be fixed by this Court.
WP.No.22240 of 2017
M.Subash .. Petitioner
-vs-
1.The Chief Secretary to Govt.,
Fort St. George, Chennai-600 009.
2.The Secretary to Govt.,
Municipal Administration Dept.,
Fort St. George, Chennai 600 009.
3.The Secretary to Govt.,
Home Department,
Fort St. George, Chennai-600 009.
4.The Director General of Police,
Dr.Radhakrishnan Salai, Mylapore,
Chennai-600 004.
5.The Commissioner of Police,
Greater Chennai City,
No.132, Commissioner Office Building,
EVK Sampath Rd., Vepery, Periyamet,
Chennai 600 007.
6.The Commissioner,
Corporation of Chennai,
Ripon Buildings, Chennai-600 003.
7.The Commissioner,
Hindu Religious and Charitable
Endowment Board, Nungambakkam,
Chennai-600 034.
8.The Chairman/Managing Director,
Tamil Nadu Pollution Control Board,
76, Mount Road, Guindy,
Chennai 600 032. .. Respondents
Petition filed under Article 226 of the Constitution of India praying for issue of Writ of Mandamus to direct the respondents to frame guidelines by considering installation of Vinayagar idols on 25.08.2017 followed by ten days of pooja and celebration after which procession and immersion of the idols will take place on 03.09.2017 and whereas Bakrid festival falls on 02.09.2017 and during which Muslims used to slaughter cattle for offering Qurbani for the interest of protecting the environment and communal peace and tranquility.
For Petitioner
in WP.21953/2017 : Mr.T.Sundaravadanam
in WP.22240/2017 : Mr.Kanimozhi Mathi
For Respondents
in WP.21953/2017 : Mr.C.Manishankar,
Addl. Adv. General, for RR 1 to 6
assisted by Mr.D.Vairamoorthy, Spl.G.P. and Mr.K.Soundararajan, Stg.Cnsl.
: Mr.M.Maharaja, Spl.G.P. For R-7
: Mr.S.K.Raameshwar for R-8
in WP.22240/2017 : Mr.C.Manishankar,
Addl. Adv. General, for RR 1 to 6
assisted by Mr.D.Vairamoorthy, Spl.G.P. and Mr.K.Soundararajan, Stg.Cnsl.
: Mr.M.Maharaja, Spl.G.P. For R-7
: Mrs.Rita Chandrasekar for R-8
* * * * *
COMMON ORDER
(Order of the Court was made by The Hon'ble Chief Justice) Both these writ petitions, the first filed by Dr.K.R.Ramaswamy, a public spirited citizen, and the second filed by an Advocate in public interest, relate to the Vinayagar Pooja Celebrations scheduled to commence on 25.08.2017.
2. In the writ petitions, it is alleged that on the occasion of Vinayagar Chathurthi, Vinayagar Idols are installed on public streets and pavements without any permission, flouting pollution norms and causing traffic obstruction. The authorities do not regulate the installation of Vinayagar Idols and public worship thereof and there is rampant pilferage of electricity by illegal tapping from electric poles.
3. While Dr.K.R.Ramaswamy has sought orders directing the respondent authorities to consider his representation to restrict installation and worship of Vinayagar Idols during the Vinayagar Chathurthi festival, Mr.M.Subash, an Advocate has sought directions on the respondent authorities to frame guidelines regarding installation and worship of Vinayagar Idols and also immersion thereof, which is scheduled to take place on 3.9.2017.
4. Article 25(1) of the Constitution of India guarantees every person in India the fundamental right to profess, practise and propagate religion. This right, however, is subject to restrictions that might be imposed by the State to maintain public order, morality and health.
5. Freedom of conscience and freedom of religion would necessarily include the freedom to practice rituals and ceremonies in accordance with law. The right to perform religious worship at public places on certain occasions has been acquired by custom/usage. Having been so acquired, such right enjoys the protection of Article 25 of the Constitution. From the right to practice religion flows the right to take out religious processions, to instal idols and to perform worship, subject to the restrictions that might be imposed by the State.
6. Religious practices are, however, protected only as long as they do not run counter to law, public safety, public health, morality and the civic rights of others. The right to instal and worship idols at public places is subject to compliance with the laws of the land, obtaining of requisite permissions and/or approvals, such as permission of the local body, police clearance and fire safety clearance, and compliance of rules and regulations to protect life and preserve public health, environment, safety, morality, free movement and the like.
7. Section 41 of the Chennai City Police Act, 1888, provides as follows:
S.41. Power to regulate assemblies, meetings and processions in public places etc. (1) The Commissioner, or subject to his orders, any Police-officer above the rank of head constable, may, from time to time, as occasion may require direct the conduct of all assemblies,meetings and processions in public places; prescribe the routes by which and the times at which such processions may pass; keep order in public places and prevent obstructions on the occasion of such assemblies, meetings and processions, and in the neighbourhood of places of worship during the time of public worship and in any case when public places may be thronged or liable to be obstructed and may licence and regulate or prohibit the use of music or of sound amplifiers in any area.
(2) Subject to the provisions of sub-sections (3) and (4), the Commissioner may, by order in writing, prohibit any assembly, meeting or procession if he considers such prohibition to be necessary for the preservation of the public peace or public safety; Provided that no order under this sub-section shall, without the sanction of the State Government, remain in force for more than fifteen days from the date on which such order takes effect.
(3) (a) When the order referred to in sub-section (2) is in force, any person who intends to convene or collect any assembly or meeting in any public place or to direct or promote any procession, shall make an application to the Commissioner for permission. The application shall be in such form and contain such particulars as may be specified by the commissioner in this behalf and shall be made not less than five days prior to the date on which the assembly or meeting is to be convened or collected or the procession is to be formed.
Provided that the Commissioner may, for reasons to be recorded in writing, receive such application within five days prior to the date aforesaid.
(b) On receipt of the application under clause (a), the Commissioner may, by order in writing served in the manner specified in sub-section (7), grant permission to convene or collect the assembly or meeting or to direct or promote the procession subject to such conditions as he may specify or refuse to grant such permission.
(4) Except in cases where immediate action is necessary for the preservation of the public peace or public safety no order refusing to grant permission shall be passed under clause (b) of sub-section (3) without giving the person concerned an opportunity of appearing before the Commissioner either in person or by pleader and showing cause against the order refusing to grant permission and the Commissioner shall record in writing the reason for such order.
4-A.Without prejudice to the provisions of sub sections (1) to (4) where any person intends to direct or promote any procession, he shall give prior notice, in writing atleast 24 hours in advance of the commencement of such procession indicating therein the routes by which and the time at which the procession is proposed to be taken. Such notice shall be given to any police officer above the rank of a head constable of the police station having jurisdiction over the area in which the procession starts.
(5) The Commissioner may, by order in writing, depute one or more Police-officer or other persons, to be present in any such assembly, meeting or procession, for the purpose of causing a report to be taken of the proceedings.
(6) Any person who:-
(a) opposes or fails to obey any order under sub-section (1), or
(b) contravenes the conditions of any licence under sub-section (1), or (bb) fails to give prior notice referred to in subsection (4-A), or
(c) When the order referred to in sub-section (2) is in force, convenes or collects any assembly or meeting or directs or promotes any procession:-
(i) without the permission of the Commissioner under clause (b) of sub-section (3), or
(ii) in contravention of any of the conditions subject to which the permission was granted under that clause, shall be liable, on conviction, to a fine not exceeding one thousand rupees, or to imprisonment not exceeding one month, or both.
(7) The order referred to in clause (b) of sub-section (3) shall be served:-
(a) by giving or tendering the order to the person concerned; or
(b) if such person is not found, by leaving such order at his last known place of abode or business or by giving or tendering the same to some adult member or servant of his family; or
(c) if such person does not reside in the City of Madras and his address elsewhere is known to the Commissioner, by sending the same to him by post registered; or
(d) if none of the means aforesaid be available, by affixing the same in some conspicuous part of the place of abode or business of such person.
(8) Nothing in this section shall apply to any assembly or meeting of a purely religious character held in a recognised place or 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 to public meetings convened by the sheriff, or to any public meetings or class of public meetings exempted for that purpose by the State Government by general or special order.
(9) 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 an assembly or meeting is held may be a public place notwithstanding that it is held in a private place and notwithstanding that admission thereto may have been restricted by ticket or otherwise.
8. For the purpose of preservation of public peace, public order or public safety, the Commissioner might, by order in writing, prohibit any assembly, meeting or procession, which, in our view, would include installation of idols and public worship of such idols on public streets and public land. Such worship would also attract the aforesaid Section.
9. Sub-section (3) requires any person, who intends to perform any public worship or take out any religious procession, to make an application to the Commissioner for permission. The application is required to be in such form, and contain such particulars as might be specified by the Commissioner in this behalf, and is to be made not less than five days prior to the date on which the public worship is to take place. The proviso to Section 41 (3), however, enables the Commissioner to receive applications filed later, for reasons to be recorded in writing.
10. On receipt of the application, the Commissioner might grant permission to hold worship subject to conditions that the Commissioner might specify or he might refuse to grant such permission. There can be no question of installation of any idols or any pandhals or structures on public land without the requisite permissions.
11. In view of Section 41(4) of the Chennai City Police Act, 1888, except in cases where immediate action is necessary for the preservation of public peace or public safety, no order refusing to grant permission is to be passed without giving the concerned person opportunity of hearing before the Commissioner, either in person or by pleader. On a combined reading of the various sub-sections of Section 41, it is apparent that permission to hold public worship cannot be refused altogether unless the same is necessary for preservation of public peace or public safety.
12. Since all roads and pavements in the city of Chennai vest in and are properties of Chennai Municipal Corporation, permission of the Chennai Municipal Corporation to hold such public worship is imperative. Reference may be made to Section 223 of the Chennai City Municipal Corporation Act, 1919.
13. The holding of public worship, be it Vinayagar worship or any other worship, in the city of Chennai contemplates (i) permission of the Chennai City Municipal Corporation; and (ii) permission of the Commissioner of Police, Chennai. In addition, considering the nature of such worship and/or celebrations which involve illumination and setting up of temporary structures with materials, which are often inflammable, clearance of the fire safety authorities under the provisions of Tamil Nadu Fire Safety Act, 1985, is also absolutely imperative. The provisions of the Pollution Control laws and in particular, the Hazardous Waste Management Rules restricting the use of pollutant substances are also required to be complied with.
14. In exercise of powers conferred by sub-section (2) of Section 41 of the Tamil Nadu City Police Act, 1888, the Commissioner of Police has prohibited all assemblies, processions, fasts, demonstrations, human chain meeting, installation of Vinayagar idols at unrecognised places in streets, roads, thoroughfares or other public places within Greater Chennai police jurisdiction for a period of fifteen (15) days commencing from 22.08.2017 to 06.09.2017. However, the prohibition is not to apply in cases where permission is granted by the Commissioner subject to conditions that might be imposed by the Commissioner.
15. The order, inter alia, provides as follows:
7. ..... However, taking into consideration of large scale installation of Vinayagar Idols at unrecognised places in Chennai city on the eve of Vinayagar Chathurthi festival, with a view to maintain public peace, tranquility, public safety and regulation of traffic, the following conditions have to be complied with by the organizers scrupulously for installation of Vinayagar idols and immersion procession in Chennai City.
i.Police permission should be obtained for installation of idols.
ii.If the idol is installed in a private place, consent of the owner of the land should be obtained and in case of any public place, permission should be obtained from Corporation / Other Local bodies.
iii.The idols proposed to be installed should be made of pure clay without coating of toxic paints as stipulated by TNPCB.
iv.The height of the idol including the base/dais should not exceed 10 feet.
v.The idols should not be installed nearby other religious places such as mosques, churches, etc. vi.The idols should not be installed at the traffic congested / thickly populated areas / near the hospitals / at the places objected by public.
vii.Fire preventive measures should be arranged at the place of idol installation.
viii.Sound amplifier licence conditions should be strictly adhered and no sound amplifier shall be used in the moving vehicles carrying idols.
ix.Music programmes / Slogans inciting sentiments of other religions should be avoided.
x.Bursting of crackers at the place of installation which will cause noise pollution should be avoided.
xi.The idol immersion procession should be taken out with Police permission at the route and time specified by the police and the idols should be immersed at the notified immersion points, adhering to the conditions.
xii.The organisers should strictly follow any other conditions laid down by the jurisdiction police officers in the interest of maintaining public peace, public safety and communal harmony.
16. Needless to mention that no Vinayagar idol can be installed during the ensuing Vinayagar Chaturthi festival, except with permission from the Commissioner and in compliance with the conditions of such permission, in view of the order dated 22nd August, 2017, referred to above.
17.The order dated 22nd August, 2017, issued by the Commissioner is of limited duration. As pointed out in the second writ petition, there are no Rules, Regulations or guidelines in the State to regulate public worship by installation of idols on religious occasions. It is imperative that Rules and/or Regulations be framed and publicized by the State, laying down detailed guidelines for temporary installation of idols at public places for public worship, immersion, processions, etc.
18. Pending the framing of Rules and/or Regulations regulating installation of idols on public streets/public land and worship thereof, the respondent authorities shall ensure that
a)The requisite permissions and/or approvals, particularly the approval of the municipal corporation, police, fire service and pollution control authorities is obtained.
b)No idols made of polluting materials such as Plaster of Paris or painted with prohibited polluting chemical colours are installed.
c)The organizers avoid using inflammable materials for construction of temporary structures and provide entrances and exits, which are wide enough for smooth and easy ingress into and exit out of Pandhals and/or structures in a regulated manner.
d)Public address system should not exceed the prescribed noise decibel limit and in the event any music is played, the music should not exceed the prescribed noise decibel limit.
e)There is a complete ban on use of amplifiers and loudspeakers and bursting of sound emitting fire crackers between 10.00 p.m. and 6.00 a.m.
f)The fire safety norms and rules are strictly complied with and the Pandhals including the electrical installations thereof are inspected and approved by the concerned fire authorities.
g)Adequate first aid and emergency medical facilities are made available.
h)No inflammable materials are stored in and around the worship areas.
i)No illegal activities take place under the garb of Vinayagar worship including pilferage of electricity.
j)There is no unauthorized tapping and/or pilferage of electricity by organizers of Vinayagar worship.
k)The immersion of idols should be conducted in an orderly manner at the spots specified by the concerned police authorities and the immersion procession should follow routes and timings approved by the police.
19. The Chairman cum Managing Director of Tamil Nadu Generation and Distribution Corporation Ltd., hereinafter referred to as 'TANGEDCO', has filed an affidavit indicating the steps that are taken to detect cases of theft of energy. In paragraph 7 of the affidavit, it is stated that the organisers of such functions might approach TANGEDCO for temporary supply for the purpose of illumination, etc., for which a temporary service connection is effected and current consumption charges collected as per the Tamil Nadu Electricity Regulatory Commission (TNERC) Rules. Any unauthorised tapping of power from pillar boxes or overhead lines attracts criminal cases. The organizers should, therefore, apply for and obtain temporary supply of electricity from TANGEDCO upon payment of requisite charges.
20. The State shall frame Regulations and/or Rules formulating detailed guidelines of the requisites that have to be complied with by all organizers who temporarily instal idols on public land and perform public worship. Such guidelines should include the requisite safety and fire safety measures required to be taken by the organizers, measures to prevent environmental and noise pollution, measures to avoid obstruction of traffic to the extent feasible, the requisite civil and medical facilities required to be provided by the organizers, etc. The Regulations shall be enforced the next time any idol of Vinayagar or any other deity is temporarily installed for worship on any public land.
With the aforesaid observations, the writ petitions are disposed of. No costs. Consequently, connected miscellaneous petitions are closed.
(I.B., CJ.) (M.S., J.)
23.08.2017
Index : Yes/No
Website : Yes/No
sra/sasi
To
1.The Chief Secretary,
Govt. of Tamilnadu,
Fort St. George, Chennai-9.
2.The Secretary,
Home Department,
Fort St. George, Chennai-9.
3.The Secretary,
Municipal Administration & Water
Supply Department, Fort St. George,
Chennai-9.
4.The Director General of Police,
Dr.Radhakrishnan Salai, Chennai-4.
5.The Commissioner of Police,
Greater Chennai City, Chennai-7.
6.The Commissioner,
Greater Chennai Corporation, Chennai-3.
7.The Commissioner,
Hindu Religious and Charitable
Endowment Board, Nungambakkam,
Chennai-34.
8.The Chairman/Managing Director,
Tamilnadu Generation and Distribution
Corporation Ltd., 144, Anna Salai,
Chennai-2.
9.The Superintending Engineer/HOD,
Energy Department, Govt. of Puducherry,
Thambu St., Puducherry-605 001.
10.The Director General of Police,
Puducherry-605 001.
11.The Chairman/Managing Director,
Tamil Nadu Pollution Control Board,
76, Mount Road, Guindy,
Chennai 600 032.
The Hon'ble Chief Justice
and
M.Sundar, J.
(sra/sasi)
W.P.Nos.21953 and 22240
of 2017
23.08.2017