Madras High Court
G.Sivarasa Boopathy vs The District Collector on 16 November, 2012
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 16/11/2012 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD)No.10812 of 2012 and W.P.(MD)No.11395 of 2012 and M.P.(MD)Nos.1,1 and 2 of 2012 G.Sivarasa Boopathy .. Petitioner in both writ petitions Vs. 1.The District Collector, Collectorate Campus, Tirunelvlei District. 2.The Superintendent of Police, O/o.The District Superintendent of Police, Tirunelveli District. 3.The Deputy Superintendent of Police, O/o.The Deputy Superintendent of Police, Valliyoor, Tirunelveli District. 4.The Inspector of Police, Kudankulam Police Station, Kudankulam, Tirunelveli District. .. Respondents in W.P.(MD)No.10812 of 2012 1.The Government of Tamil Nadu, rep by the Chief Secretary, Fort St. George, Chennai-600 001. 2.The Department of Home, rep by its Secretary, Government of Tamil Nadu, Fort St. George, Chennai-600 001. 3.The District Collector/ District Magistrate, Tirunelveli District, Tirunelveli. 4.The Superintendent of Police, Tirunelveli District, Tirunelveli. 5.The District Superintendent of Police, Valliyur Range, Tirunelveli. .. Respondents in W.P.(MD)No.11395 of 2012 W.P.(MD)No.10812 of 2012 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records pertaining to the impugned order issued by the 4th respondent in his proceedings Na.Ka.No.13/2012 dated 25.07.2012 and quash the same and consequently to direct the respondents to grant permission for conducting public meeting on any other date at Pillaiyar Kovil Thidal, Keezha Bazaar, Kudankulam in Tirunelveli District. W.P.(MD)No.11395 of 2012 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of declaration declaring that the order of proclamation of exigency by the third respondent on 11.8.2012 by his proceedings in Na.Ka.No.C3/44743/11 under Section 144(1) of Cr.P.C. for a period therefrom till 10.09.2012 as unconstitutional and null and void . !For Petitioner... Mr.T.Lajapathi Roy Mr.S.Vanchinathan ^For Respondents...Mr.K.Chellapandian, Additional Advocate General, assisted by Mr.A.K.Baskara Pandian, Spl.G.P. - - - - :COMMON ORDER
These two writ petitions were filed by one and the same person. The petitioner claiming to be the Secretary of Human Rights Protection Centre, Tamil Nadu, Kanyakumari District as well as a practicing Advocate at Nagercoil and Tirunelveli Districts, has filed these two writ petitions.
2.The petitioner sent a letter to the Deputy Superintendent of Police, Valliyur on 16.7.2012, seeking permission to hold a public meeting at Kudankukam East Bazaar, Pillaiyar Koil Grounds on 28.7.2012 to focus their demands relating to the cancellation of Kudankulam Indo American Nuclear Pact, giving up the commission of Kudankulam Atomic Power Centre, privatisation of electricity and withdrawal of false cases lodged against Kudankulam people. The Inspector of Police, Kudankulam Police Station upon receipt of the letter had passed an order dated 25.7.2012 stating that an order under Section 30(2) of the District Police Act has been promulgated in the Sub Divisional Limits of Valliyur. The District Collector-cum-Executive Magistrate, Tirunelveli had also issued a prohibitory order within 7 Kms. range of Kudankulam Power plant under Section 144(1) Cr.P.C., which is in force till 09.08.2012. Therefore, the petitioner if allowed to conduct any meeting, there is likelihood of infringement of law and order problem. Hence their request for public meeting was cancelled.
3.When the writ petition came up on 2.8.2012, this court directed the learned Special Government Pleader to get instructions. In the meanwhile, having realized that the promulgation of Section 144(1) was in force in that area, the petitioner filed a second writ petition in W.P.(MD)No.11395 of 2012 challenging the order dated 11.8.2012 issued by the District Magistrate under Section 144(1) Cr.P.C. It was stated that such an order has been in force by the previous orders dated 19.03.2012, 27.03.2012, 11.4.2012, 26.04.2012, 09.05.2012, 6.6.2012 and 10.7.2012. After referring to the previous orders passed by him for the very same purpose, the District Collector had opined that on review of the law and order problem in Radhapuram Taluk, the Kudankulam area is likely to be the venue of agitators and other unlawful organizations and protesters against the Nuclear Power Plant and other allied groups and there is disruption to public peace and creating law and order problem and cases have been registered against them and they have also intended to commit unlawful acts as per the report given by the Superintendent of Police, Tirenelveli and the Sub Collector, Cheranmadevi. Therefore, in order to prevent such actions which are in breach of public peace and also to protect the workers who are working in the power plant and in the interest of security of the people as well as the security of the power plant and also to prevent the public properties being damaged as well as safety to the public and their properties and to give protection to the public for leading normal life, in modification of the orders made earlier, with effect from 11.08.2012 to 10.09.2012 within the radius of 7 Kms. of the power plant, Section 144(1) Cr.P.C was promulgated. This is to prevent the persons who are having contrary view on the establishment of the power plant and those who are helping the struggling committee and instigating them including political parties, organizations and movements and other persons. When this writ petitions came up on 22.8.2012, the learned Special Government Pleader took notice. A counter affidavit in W.P.(MD)No.10812 of 2012 sworn to by the Inspector of Police, Kudankulam Police station, dated 4.9.2012 was filed. Another counter affidavit in W.P.(MD)No.11395 of 2012 sworn to by the Deputy Superintendent of Police, Vallioor dated 4.9.2012 was filed. The District Collector, Tirunelveli has also filed an independent counter affidavit dated 31.8.2012 in W.P.(MD)No.11395 of 2012 together with supporting documents in the form of typed set.
4.Heard the arguments of Mr.T.Lajapathi Roy and Mr.S.Vanchinathan, learned counsel for the petitioners and Mr.K.Chellapandian, learned Additional Advocate General assisted by Mr.A.K.Baskarapandian, learned Special Government Pleader for respondents.
5.Though the petitioner raised several grounds relating to denial of permission for holding meeting and also the continuous imposition of prohibitory order under Section 144(1) Cr.P.C in the area, relied upon a judgment of the Supreme Court in Madhu Limaye Vs. Sub Divisional Magistrate, Monghyr reported in AIR 1971 SC 2486 for contending that they failed to comply with the requirements for imposition of Section 144 Cr.P.C. They further relied upon a judgment of the Supreme Court in In re Ramlila Maidan Incident, dated 4/5.6.2011 reported in 2012 AIR SCW 3660 = (2012) 5 SCC 1 to contend that there were no grave circumstances in derogation of maintenance of public order and therefore, the order under Section 144 Cr.P.C. should be set aside as well as the order denying permission to hold meeting should be set aside.
6.The respondents in their counter affidavits had justified the imposition of the prohibitory order. The sheet anchor of their case was based upon the recent pronouncement of a division bench judgment in W.P.Nos.7520, 7633 and 7634 of 2012 in Pugalenthi and others Vs. State of Tamil Nadu and others, dated 26.03.2012. In those three writ petitions, the challenge was to the previous prohibitory order dated 19.03.2012 and sought to quash the prohibitory order in Radhapuram Taluk. The division bench while dealing with the prohibitory order which was issued earlier, also referred to the judgment of the Supreme Court in Ramlila Maidan Incident's case (cited supra) and applying that ratio, it was held that there was justification for imposition of Section 144 Cr.P.C. prohibitory order in Radhapuram Taluk and there were materials supporting the order. It was also held that the order comes very much within Madhu Limaye's case (cited supra). In paragraphs 17 to 21 and 24, the division bench had observed as follows :
"17.As noticed above, the power under Section 144 is an executive power and for exercise of such powers, there must be sufficient ground for proceeding and the next aspect would be immediate prevention or speedy remedy is desirable and the order is required to be in writing by directing any person to abstain from a certain Act or to take certain order with respect of certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent or tends to prevent obstructions, annoyance or injury to any person lawfully employed or danger to human life, health or safety or a disturbance of the public tranquillity or a riot or an affray.
18. In the impugned order, the District Collector has referred to a report of the District Superintendent of Police, dated 19.03.2012. After referring to the reports submitted by the Expert Committee appointed by the Central and State Government, wherein it appears they have dispelled the fear and suspicions raised by the people of that region in respect of the Atomic Power Plant and that it is a safe one, the State Government issued directions to operate the Power Plant and consequent upon such order, the Power Plant started functioning from 19.03.2012. The District Collector has stated that under such circumstances, it would be necessary to prevent people who are helping or assisting the agitators/organizations against Atomic Power Plants from entering Radhapuram Taluk for a period of 15 days from 19.03.2012 to 02.04.2012 and in order to prevent any incident affecting public tranquillity/public interest and in order to ensure that the persons lawfully employed in the Atomic Power Plant should not be prevented from attending their duties and to ensure safety for the life and property and to prevent any sought of agitation and riots, it has been decided that the following category of persons, namely, a) the political parties who are instigating and helping the #Koodankulam Atomic Power Plant protesters' movement# b) other Organisations/Associations and persons who are instigating and helping the #Koodankulam Atomic Power Plant protesters' movement# have been prevented from entering the Radhapuram Taluk limit between 3.00 p.m on 19.03.2012 till 3.00 p.m on 02.04.2012. The contention raised by the learned counsels appearing for the petitioners is that the Prohibitory order is in the nature of cordoning of entire Radhapuram Taluk and no person would be entitled to enter the Taluk and it is an unreasonable restriction offending Article 19 & 21 of the Constitution.
19. After, we have perused the Prohibitory order, we find that the contentions raised by the petitioners is devoid of any substance. The Prohibitory order is not against the entire world thereby preventing anybody from entering the boundaries of Radhapuram Taluk. The order is specific and it has categorized to sections of persons who are assisting and helping the organisation which is protesting against the Atomic Power Plant. Therefore, we are not persuaded to accept the contention that the order is a vague order thereby preventing anybody from entering the Taluk limits. We can take judicial notice of fact that for a considerable length of time agitation has been going on at Idinthakarai protesting against the Koodankulam Atomic Power Plant and it is a matter of common knowledge that recently the State Government passed an order permitting the commissioning of the Power Plant and news report in this regard were widely publicized. Therefore, in the opinion of the District Collector in order to prevent any obstruction to the functioning of the Plant or causing any annoyance or injury to the persons employed in the Plant and prevent any danger to human life and to maintain public tranquillity, the order has been passed by preventing the entry of such persons, political parties, Organizations and Associations who have been helping and supporting the group/movement which is protesting against the Koodankulam Atomic Plant. Thus, a particular identified section of the people having been restrained from entering the Taluk limit, the order has to be held to be in compliance with Section 144 (1) Cr.P.C. As held by Supreme Court in Madhu Limaye, the effect of the order being in the interest of public order and the interest of the general public, occasions may arise when it is not possible to distinguish between those whose conduct must be controlled and those whose conduct is clear.
20. The petitioners would further contend that the impugned Prohibitory order has not been made available in the public domain, copy of which was produced before this Court by the learned Advocate General. Having held that the Prohibitory order has been passed against an identifiable/identified group/political party/organisation/ association/person, it is for such aggrieved individual to seek for a copy of such order or to state that the order was not served in accordance with Section 134 Cr.P.C. Therefore, in our view the petitioners cannot be said to be persons aggrieved, so as to question the manner of service of the Prohibitory order. Likewise, the order having been passed against identified/identifiable group, such order cannot be questioned in a public interest litigation more so when the order has been passed stating the material fact and the Magistrate being satisfied that immediate prevention and speedy remedy is desirable.
21. Even assuming that the public interest litigant, is a person aggrieved, remedy is available under Sub-Section (5) of Section 144 Cr.P.C., by moving the Magistrate to rescind or alter the order or move the State Government under Sub-Section (6) of Section 144 Cr.P.C., for rescinding or altering the order passed under Sub-Section (4) of Section 144 Cr.P.C. As has been held by the Supreme Court there is a complete channel provided for examining the correctness or otherwise of such an order passed under Section 144 Cr.P.C., and preciously for this reason, the Supreme Court held that such order falls within the frame work of reasonable restriction.
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24.In view of the above, we hold that the impugned order is only a regulation and not a prohibition altogether for avoiding breach of peace. Therefore, we are not inclined to interfere with the impugned Prohibitory order passed by the Second Respondent. However, it is made clear that the District Administration shall ensure uninterrupted supply of essential commodities like milk, water and electricity etc., and bus facilities and take all steps against the persons indulging in activities like digging of the roads, blocking the roads with boulders, pillars etc., by taking action in accordance with law. It is needless to state that any person aggrieved by the impugned Prohibitory order would be at liberty to avail the remedy available under Section 144 (5) Cr.P.C., if so advised.
7.In the light of the clear pronouncement of the division bench judgment on the very same issue, this court sitting single is bound by the order passed by the division bench. Even in Ramlila Maidan Incident's case (cited supra) in paragraphs 229 and 250, it was observed as follows :
"229.The language of Section 144 CrPC does not contemplate grant of any time for implementation of the directions relating to the prevention or prohibition of certain acts for which the order is passed against the person(s). It is a settled rule of law that wherever provision of a statute does not provide for a specific time, the same has to be done within a reasonable time. Again reasonable time cannot have a fixed connotation. It must depend upon the facts and circumstances of a given case. There may also be cases where the order passed by an Executive Magistrate under Section 144 CrPC requires to be executed forthwith, as delay in its execution may frustrate the very purpose of such an order and may cause disastrous results like rioting, disturbance of public order and public tranquillity, while there may be other cases where it is possible, on the principles of common prudence, that some time could be granted for enforcement and complete implementation of the order passed by the executive authority under Section 144 CrPC. If one reads the entire provision of Section 144 CrPC, then the legislature itself has drawn a distinction between cases of urgency, where the circumstances do not admit to serving of a notice in due time upon the person against whom such an order is directed and the cases where the order could be passed after giving a notice to the affected party. Thus, it is not possible to lay down any straitjacket formula or an absolute proposition of law with exactitude that shall be applicable uniformly to all the cases/situations. In fact, it may not be judicially proper to state such a proposition. It must be left to the discretion of the executive authority, vested with such powers to examine each case on its own merits.
250.There cannot be any dispute that the executive authorities have to be given some leverage while taking such decisions and the scope of judicial review of such orders is very limited. These propositions of law are to be understood and applied with reference to the facts of a given case. ....."
8.Duty bound as I am by the order passed by the division bench, I am unable to countenance the prayer made by the petitioner. Hence both writ petitions will stand dismissed. No costs. Consequently, connected miscellaneous petitions stand closed.
vvk To
1.The Chief Secretary, The Government of Tamil Nadu, Fort St. George, Chennai-600 001.
2.The Secretary, The Department of Home, Government of Tamil Nadu, Fort St. George, Chennai-600 001.
3.The District Collector, Collectorate Campus, Tirunelvlei District.
4.The Superintendent of Police, O/o.The District Superintendent of Police, Tirunelveli District.
5.The Deputy Superintendent of Police, O/o.The Deputy Superintendent of Police, Valliyoor, Tirunelveli District.
6.The Inspector of Police, Kudankulam Police Station, Kudankulam, Tirunelveli District.
7.The District Collector/ District Magistrate, Tirunelveli District, Tirunelveli.