Andhra Pradesh High Court - Amravati
Ajjuguttu Ragunatha Reddy vs The State Of Ap on 3 January, 2020
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
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THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.9976 OF 2019
ORDER:
This petition is filed under Article 226 of the Constitution of India, questioning the impugned notice issued by the 2nd respondent bearing No.C-No.20/R1/DSW/KDP/2019, dt.18-06-2019 withdrawing the security provided to the petitioner, in spite of continuous threat perception, and declare the same as illegal, arbitrary, unilateral and unconstitutional, consequently set aside the same.
The petitioner contended that he is an active participant in Telugu Desam Party activities since 1998 and he was appointed as in charge of Simhadripuram Mandal Telugu Desam party and in that capacity, participated in dharnas against the atrocities of the then ruling party in Simhadripuram Mandal limits. The area of Simhadripuram Mandal fall within Pulivendula Assembly segment. Due to the active participation of petitioner in several dharnas against the atrocities of the then ruling party in Pulivendula Assembly segment for which the ruling party leaders developed personal grudge against the petitioner and hatched a plan to eliminate the petitioner by engaging anti-social elements. There was a constant threat to the life of petitioner and he submitted a representation to the 2nd respondent requesting to provide protection with gunmen. Thereafter, the police held enquiry about threat perception from YSR Congress party people and other anti-social elements, having satisfied with the report, the 2nd respondent provided two personal security officers/gunmen (1+1) to protect the life of petitioner.
It is further contended that Musalreddypalli village and surrounding villages in Simhadripuram Mandal of YSR Kadapa District are ridden with factions and every village is divided into two groups. The petitioner is a permanent resident of Musalreddypalli village. The petitioner is cousin to Mareddy Ramachandra Reddy @ Chandrudu, a prominent leader in Telugu 2 Desam Party in Pulivendula Assembly segment, who was brutally murdered in the hands of political opponents for which a case has been registered in Cr.No.7/2006 under Sections 147, 148, 324, 307, 302 read with 149 IPC in Simhadripuram Police Station and ultimately it was ended in acquittal. Subsequent to the murder of Mareddy Ramachandra Reddy @ Chandrudu, the petitioner's cousin's son by name Ravindranath Reddy @ B.Tech Ravi, sitting M.L.C for Telugu Desam Party took active role in Simhadripuram Mandal politics. Thus, the petitioner being blood relative of B.Tech Ravi has threat from YSR Congress party leaders. One Gunreddy Ravindranath Reddy @ Kasunoori Ravi led rival group and a prominent leader in YSR group. The petitioner's daughter studied MBBS and now she is prosecuting Post Graduation and the petitioner's son studied B.Tech., The petitioner own landed properties in Musalreddypalli Village and doing business. Due to constant threats from opponents, the petitioner is unable to move from the house and not able to concentrate on his children.
Further, it is contended that the Hon'ble Chief Minister is elected from Pulivendula Assembly segment which is a hyper sensitive area and the 2nd respondent abruptly withdrawn personal security by issuing notice dt.18-06-2019. It is further contended that the Security Review Committee failed to act independently and withdrawn the security to the petitioner with the influence of ruling party leaders. Due to change of Government, the petitioner has constant threat perception from the ruling party leaders and anti-social elements. The petitioner is one of the accused in Cr.No.71/2003 of Pulivendula Police Station for the offences punishable under Sections 147, 148, 302 read with 149 IPC, Cr.No.19/2007 of Simhadripuram Police Station for the offences punishable under Sections 147, 148, 324 read with 149 IPC and Cr.No.213/2014 for the offences punishable under Sections 147, 148, 341, 324, 427 read with 149 IPC which were ended in acquittal. The said cases are pertaining to political issues between two rival political parties. The Station 3 House Officer, Simhadripuram Police Station opened rowdy sheet number 129 against the petitioner, though no cases are pending. Aggrieved by the same, the petitioner submitted a requisition to the 2nd respondent on 12-03- 2018 with a request to cancel rowdy sheet but refused to concede the request of petitioner, then, the petitioner filed W.P.No.3554/2019 before this Court seeking direction to the 2nd respondent to cancel the rowdy sheet and the said writ petition was allowed on 09-04-2019.
The Special Security Review Committee without acting independently submitted a report on account of political pressure. The petitioner is residing in Pulivendula Assembly segment and he apprehending danger to his life. On 24-06-2019 the petitioner presented a requisition by registered post with acknowledgment due, requesting the 2nd respondent to provide personal security officers/gunmen (1+1) to protect his life by explaining grievance. But, the 2nd respondent has not responded to the said requisition and therefore the petitioner compelled to file this petition. At this stage, if the impugned notice dt.18-06-2019 is issued by the 2nd respondent is allowed to stand, there is every apprehension of danger to the life of petitioner, the impugned notice is politically motivated and issued unilaterally without considering the serious threat perception to the petitioner and if the same is not set aside, manifest injustice will be caused to the petitioner. Hence, the action of 2nd respondent is violative of Article 21 of the Constitution of India, thereby requested to declare the notice dated 18.06.2019 as illegal, arbitrary as the same was issued without hearing the petitioner and it is violative of principles of natural justice, and direct the respondents to restore 1+1 security cover to the petitioner as existed prior to 18.06.2019.
Learned Assistant Government for Home submitted that the averments made in the affidavit filed along with the petition are vague and the petitioner did not approach the Court with any material in support of his claim. Mere continuation in public life for a longer period does not entitle the petitioner to 4 have continuous security. Moreover, the alleged threat perception was only against the petitioner's political life and thereby, there was no threat to the life of the petitioner. The petitioner was provided with "position based security" of 1+1 PSOs, as he was a constitutional functionary and the same has been continued and the same scale of security was continued during his tenure. Further, the petitioner did not contest in the last General Elections thereby his position based security has been scaled down from 1+1 PSOs in the State Level Security Review Committee. Hence, the security cover being provided to the petitioner is based on G.O.655 dated 13.03.1997. Learned Assistant Government Pleader for Home further contended that Yellow book issued by Ministry of Home Affairs is a highly confidential document provides guidelines and rules for security categorization in respect of all VVIPs/VIPs including MLAs and MPs etc., In the present circumstances, even though the petitioner did not contest in the elections in 2019, he was provided with 1+1 PSOs basing on threat perception at that point of time. However, basing on the present threat assessment and in the absence of any fresh inputs, his security has been scaled down from 1+1 PSOs under proper intimation to the petitioner.
Learned Assistant Government Pleader specifically contended that the threat of a person changes constantly depending upon the impending circumstances. The quantum of security provided shall usually be commensurate with the magnitude of existent threat perception. As the security and threat perception are essentially co-existent, security is reduced basing on lack of threat perception.
This Court in the case of Katasani Rami Reddy v. Government of Andhra Pradesh1 held that "threat to one's life may be temporary and in such a case continuous security may not be needed. Therefore, whenever personal 1 1998 Crl.L.J.3897 5 security is provided to a person, it must be constantly reviewed by the concerned Superintendent of Police and when on the basis of information available with him, he genuinely feels that the threat has vanished, he may recall the security". Thus, in view of the principle laid down in the above judgment, threat perception changes from time to time and taking into consideration of threat perception as on the date of passing order, the decision was taken. The respondent No.2 in his report, submitted to the State Level Security Review Committee, at present there is "no faction in Pulivendula and the movements of factionists are completely evaporated". Therefore, the SDPO, Pulivendula and Inspector of Police, Pulivendula Circle have been clearly instructed to provide necessary bandobast when the petitioner visits Pulivendula.
The specific contention of the respondent No.2 is that the claim of the petitioner that there is possible threat to his life from several faction leaders belonging to opposite political parties, is not supported by any past attempts to attack on his life and limb by his political rivals. The respondent No.2 also took the same view and submitted threat perception report to the Committee. The prescribed Rules/Guidelines for X, Y, Y+, Z and Z+ category and other protectees, specifically stipulates that "existence of threat to an individual from his/her professional rivals should not be considered the basis for provision of categorized security". Threat is a dynamic phenomenon. It changes its dimension from time-to-time and from place-to-place. This change can be individual specific, situation specific and place specific. The degree of threat may vary from individual to individual and from situation to situation, such as individual's nature of activities, importance in the scheme of decision making and strategic role played in the existing environment. The tendency to continue with the security arrangements even in the absence of any actual threat for extraneous considerations should be avoided.
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Therefore, the claim of the petitioner is not based on any material, more particularly as to the serious threat perception. Moreover, reduction of security cover to the petitioner is based on the Government Order referred above. Thereby this Court cannot interfere with the notice dated 18-06-2019 and pass any order in his favour.
Smt.R.Sudha Rani, learned counsel for the petitioner contended that in view of the threats faced by the petitioner the Court can infer threat perception to extend security cover of 1+1 to the petitioner and if such security cover is not provided to the petitioner there is possibility of meeting same consequences met earlier in the hands of the rival group. The request of the petitioner to continue the same security cover is only to protect his life and liberty guaranteed under Article 21 of the Constitution of India. Apart from that the allegation made by the learned Assistant Government Pleader for Home is suffice to infer that the petitioner is facing severe threat and keeping in view of threat, the SDPO, Pulivendula and Inspector of Police, Pulivendula Circle were instructed to provide necessary bandobast when the petitioner visits Pulivendula. Therefore, this admission is suffice to draw inference that the petitioner is facing severe threat from the opponents. The State is under obligation to protect life and liberty of citizen of India in terms of Article 21 of Constitution of India. Since the respondents failed to provide required security cover of 1+1 to protect the life and liberty of the petitioner being Citizen of India, the Court can exercise power under Article 226 of Constitution of India and direct the respondents to provide necessary security cover i.e. 1+1 by issuing Writ of Mandamus and requested to issue such direction as prayed for.
Learned Special Government Pleader for State drawn the attention of this Court to clauses (1) and (7) of General Guidelines for providing security specified in G.O.Rt.No.655 Home (SC.B) Department dated 13.03.1997, the procedure to be followed for providing security cover, contended that the decision was taken to reduce the security cover only on account of vanishing 7 threat perception based on the report of the concerned officials not otherwise. He also placed reliance on two judgments of this Court in Venkata Satyanarayana vs. Government of A.P2 and Katasani Rami Reddy v. Government of Andhra Pradesh (referred supra). On the basis of the principles laid down in the said judgments, Special Government Pleader contended that threat perception changes from time to time and the security cover provided to the petitioner earlier 1+1 is only on account of his situation; and when he did not contest in the recent election, the question of providing threat perception would not arise, normally. Therefore, taking into consideration of present threat perception report submitted by the Superintendent of Police, the security cover is reduced from 1+1 on account of changed circumstances and requested to dismiss the writ petition.
Considering rival contentions and perusing the material available on record, the point that arises for consideration in this writ petition is as follows:
"Whether the petitioner is facing severe threat requiring security cover 1+1? If not, whether reducing security cover from 1+1 vide notice in C.No.20/R1- DSW/KDP/2019 dated 18.06.2019 is in violation of any statutory provision or fundamental right guaranteed under Article 21 of the Constitution of India? If so, whether the respondents be directed to provide security cover of 1+1 based on the present circumstances?"
Point:-
The facts narrated above are not in dispute except to the extent of decrease of threat perception on account of changed circumstances and the same is reported by the Superintendent of Police, YSR Kadapa District to the State Level Security Review Committee constituted under clause (e) of G.O.Rt.No.655 (referred supra). The State level security review committee comprising of Joint Director S.I.B., Deputy Director, S.I.B., D.I.G. (Security), 2 AIR 1998 AP 184 8 D.I.G. (Intelligence), Joint Secretary (Protocol) and I.G.P. (Grey Hounds) as members and I.G.P. (intelligence) as Nodal Authority/ Governor will meet twice a year in order to perform the function of providing security, based on assessment of threat perception and also to consider fresh applications in accordance with the guidelines contained in G.O.Rt.No.655 (referred supra). The said guidelines are silent as to the time gap between two sittings specified in clause (e) of the G.O. In the absence of any specific time gap between two sittings specified in clause (e) of the G.O.Rt.No.655 (referred supra)., there is every possibility of exercising the power by committee depending upon the circumstances either to provide security to the concerned or to deny the security to the persons, at the instance of political hierarchy or due to their patronage with politicians.
Therefore, clause (e), which deals with constitution of State Level Security Review Committee without fixing duration between two sittings, appears to give unbridled power to such committee to hold sittings twice in a year whenever they like, such confirmation of unbridled power on them may lead to serious consequences. Therefore, specific duration is to be fixed between first sitting and the other sitting in a year.
The facts narrated in the writ petition show that there was lot of threat perception to the petitioner. Though, the respondents contended that the threat perception report was called for from the Superintendent of Police for review of the security cover being provided to various persons, the said report is not placed on record before this Court along with the counter to verify the exact report submitted by the concerned Superintendent of Police to the authority. But this Court has no independent mechanism or expertise to find out as to whether there is any threat perception to the life of the petitioner. The petitioner did not specify from whom there is such threat to his life, liberty and property, but made specific allegations against the present Chief Minister of Andhra Pradesh and 9 the members of the opponent political party. Political party is not an identifiable body, but it consists of number of persons.
Hence, it is difficult for the petitioner to specify the name of any individual or few persons in a group, on the basis of such non-disclosure of name of any individual and it is difficult to accept the contention of respondent No.2. Providing security cover to the individual citizen is nothing but a burden to the State and the State cannot be burdened with the liability of providing armed escort/gun-man to such of those persons who indulge in factions and group rivalry, unless it is clearly established that there is direct threat to their life from known and identified persons or group of persons. Even then it would not be possible for the State machinery to provide adequate security to each and every individual who on their own conduct gets involved or implicated in criminal cases. It is true that the State is duty bound to protect the threatened group from such assaults. Failure to give adequate protection may well amount to failure to perform its constitutional as well as statutory obligations. It is true that the State must act impartially and carry out its legal obligations to safeguard the life, health and well-being of the people residing in the State without being inhibited by local politics. (vide N.H.R.C. v. State of Arunachal Pradesh3).
The Division Bench of High Court of Andhra Pradesh at Hyderabad in G.Subas Reddy v. State of Andhra Pradesh4, on reference by the Single Judge as to exercise of power of judicial review under Article 226 of the Constitution of India to compel the authorities to provide security to all the persons who are either leading factions or actively participating in the factions, laid down certain principles for the guidance of the authorities concerned in the matter of providing security to the persons concerned. One of the principles laid 3 (1996) SCR 278 4 1997 (1) ALD (Crl.) 19 10 down is under item No.(5), which will be applicable to the present case.
Principle (5) reads as under:
"(5) Individual or individuals, who apprehend threat to peace and to his or their lives can approach the competent authority at the first instance at the district level and make application for deployment of special force for maintaining peace and for protection of his or their lives and liberty. On such application being made, the competent authority shall be duty bound to promptly make suitable orders without any delay. In case the application is rejected by the district authority, the applicant shall have the right to make application before the superior authority in the hierarchy as indicated above, the last being before the Government of the State. The applicant/ applicants for such security or deployment of Special Police force shall, however, be responsible for the cost as envisaged under the Acts aforementioned and the Government shall have no authority at all to make any expense upon such special force from and out of the revenue of the State."
In Katasani Rami Reddy v. Government of Andhra Pradesh (referred supra) the learned Single Judge, taking note of the principles laid down by the Division Bench in G.Subas Reddy v. State of Andhra Pradesh (referred supra), held as follows:
"While following the principles laid down by the Division Bench, I will add further that, the questions whether security is to be provided to the individual or not by the State is dependent upon the threat perception with regard to that individual, and what is the amount of threat and whether the threat is real or imaginary, and in case there is threat, what is the degree of the threat to an individual's life, cannot be considered either by this Court or by any other agency other than the police force itself. Police is the competent authority and it is equipped with facilities like intelligence services to come to a conclusion about threat perception of an individual. Therefore, whenever an application is made before a District Superintendent of Police by an individual for providing personal security to him, while disposing of such an application the District Superintendent of Police should invariably record his finding with regard to the threat perception. Once such a finding is recorded, it will be open for such an 11 individual to agitate the matter further, if the concerned Superintendent of Police does not come to correct finding with regard to threat perception. This will also enable the District Superintendent of Police to decide as to how much personal security is needed by an individual. Otherwise, unless he knows the level of the threat he cannot be able to decide the matter. It is also well known that, some times threat to one's life can remain life long depending upon the circumstances and the incidents which are relatable with respect to such an individual, but some times threat to one's life may be temporary and in such a case continuous security may not be needed. Therefore, whenever personal security is provided to a person it must be constantly reviewed by the concerned Superintendent of Police and when on the basis of information available with him he genuinely feels that the threat has vanished, he may recall the security."
Even in Venkata Satyanarayana v. Government of A.P (referred supra) and in R.Venkateswara Rao v. State of A.P5, this Court took similar view.
In P.R.Muralidharan and Ors. v. Swami Dharmananda Theertha Padar6 the Apex Court held as follows:
It is one thing to say that in a given case a person may be held to be entitled to police protection, having regard to the threat perception, but it is another thing to say that he is entitled thereto for holding an office and discharging certain functions when his right to do so is open to question. A person could not approach the High Court for the purpose of determining such disputed questions of fact which were beyond the scope and purport of the jurisdiction of the High Court while exercising writ jurisdiction as it also involved determination of disputed questions of fact.
The facts of cases filed for providing security cover vary from person to person. No straight jacket formula is fixed for providing security cover. However, it is the duty of the authority to enquire into threat perception of individual, 5 1999 (4) ALD 432 6 2006 (4) SCC 501 12 taking into consideration of the family background and involvement in any cases and the threats faced by the individuals and consequences of such threats during past, getting themselves involved in any incident due to faction or otherwise, and find out whether the threat is real or imaginary and if the threat is imaginary, the authorities are not under obligation to provide security cover to the individual. Even in the G.O.Rt.No.655 (referred above), the State enumerated the circumstances for providing security cover known as "General Guidelines for providing security", are as follows:
"1. While it is the duty of the State to protect every citizen, specific security cover to any individual can be provided on his threat perception.
2. A private person may be provided individual security on threat perception only on advance payment basis subject to availability of manpower with the unit officer concerned.
3. Constitutional Functionaries and Statutory Functionaries have to be provided security at State's cost, based on threat perception.
4. The security to categorized persons such as those who are in X, Y and Z category should be provided security at State's cost.
5. If protection is sought by political leaders during election period, theymay be given security at State's cost during the election period only.
6. A person having criminal background should not be given security except when the criminal case is closed or acquitted against him. Further, in case there is a genuine threat from naxalites of PWG or in case he is holding public office, then specific permission from I.G.P. Intelligence, who is the Nodal Authority, Should be taken before providing him.
7. In respect of factional groups, security should not be given to the affected parties since provision of security to one faction and ignoring requests of other faction is not proper and wherever it is felt necessary to give security to such person, the reasons for doing so shall be recorded by the competent authority.
8. Any person who has become a target of extremist by virtue of helping the State by giving some information etc., and there by invited the wrath of the extremists can be provided personal security officers at State's cost as it is a social obligation of the State. Such provision of security should be reviewed once in every 6 months I the Security Review Committee by the Nodal Authority.
9. Leaders of Political parties who do not occupy any "Public" office recognized by law are not entitled for protection at the cost of the State.13
10. Senior officers of the State depending on threat perception can be provided protection at State's Cost by the State level Security Review Committee/ Competent authority.
11. The security given by the unit officer or by the Nodal Authority will be up to a maximum period of 3 months. Fresh threat perception report should be called for every 3 months and action taken as per the report. A copy of the Threat Perception Report should be sent by the Unit Officers to Inspector General of Police (Intelligence).
12. In exceptional cases, a temporary security cover to those who do not fall under any of the above categories can be provided by the Nodal Authority for a maximum period of 1 month. After this period, regular threat perception report should be called for and action taken as per the procedure and after obtaining orders of Government.
13. The personal security officers given to the subjects should be rotated one in 3 months in order to ensure proper fitness and training in weapons and tactics."
Learned Special Government Pleader mainly contended that as per guideline No.1 though it is the duty of the State to protect every citizen, specific security cover to any individual can be provided on his/her threat perception. Similarly, in respect of faction groups, security should not be given to the affected parties since provision of security to one faction and ignoring requests of other faction is not proper and wherever it is felt necessary to give security to such person, the reasons for doing so shall be recorded by the competent authority (vide guideline No.7 referred supra).
In the facts of the present case, the contention of the State is that the family of the petitioner is involved in faction and faction is between two (2) groups in the village and surrounding area. But there is absolutely nothing to substantiate this contention that the petitioner or their family members, who are alive or died, are the factionists. Mere branding a person as a factionist is not sufficient and there must be sufficient material to describe such individual as factionist, to deny the security cover, taking advantage of guideline No.7 of the guidelines referred supra. No doubt, series of incidents narrated in the petition would disclose that there are two rival groups in the area where the petitioner is residing and the petitioner's family suffered.
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When no incident was reported either on account of rivalry between two groups or factionism, decreasing security cover to the petitioner from 1+1 is justifiable reason and it is based on threat perception report submitted to the State Level Security Review Committee.
Yellow Book deals with Security and other facilities to be provided to VVIPs/VIPs including MLAs and MPs. As on date, the petitioner is not a VVIP or VIP neither he is an MLA nor M.P to claim security cover as provided in Yellow Book, but the petitioner is an ordinary citizen like any other citizen of India. When security cover of 1+1 is provided when he was facing threat, the security shall be withdrawn in terms of guidelines issued in Yellow Book.
But taking into consideration of earlier incidents, the respondents provided security cover of 1+1. Learned counsel for the petitioner contend that the respondents themselves admitted that the SDPO, Pulivendula and Inspector of Police, Pulivendula circle were instructed to provide necessary bandobast when the petitioner visits Pulivendula. This allegation does not amount to judicial admission and bandobast is different from providing security cover to the petitioner on account of threat perception. Bandobast is only to avoid untoward incident on account of visit of such person or individual because of his family background. What amount of security cover is to be provided is depending upon the decision taken by State Level Security Review Committee.
Therefore, position based security cover was withdrawn and consequently, the respondents cannot be compelled to provide same security even after the changed circumstances. Providing security cover is only to protect the life of individual and the same cannot be utilized as a tool to exert threat on other rival groups and it is not a label of burocracy. Therefore, the Court cannot assess the threat perception of individual and cannot draw such inference from the undisputed facts narrated by the parties. Even assuming that there is a threat to the life and liberty of the petitioner, providing 1+1 security cover is sufficient to protect the individual from such threats and the petitioner 15 cannot claim security cover, which is being provided to VVIPs and VIPs in terms of Yellow Book even after demitting office as MLA and Cabinet Minister. Therefore, taking into consideration of the circumstances, providing security cover of 1 + 1 to the petitioner by the State is based on the decision taken by the State Level Security Review Committee constituted under clause (e) of G.O.Rt.No.655 (referred above). This Court while exercising power under Article 226 of the Constitution of India cannot sit over an appeal against the decision taken by the State Level Security Review Committee and compel them to provide necessary security cover to the petitioner. When the Committee based on the threat perception report, assessed the threat perception and took decision, in the absence of any material to establish that there is a serious threat to the life of the petitioner, it is difficult to issue a direction to the respondents to provide security cover of 1+1, as existed prior to 18-06-2019 as the petitioner is neither MLA nor Cabinet Minister to compel the State to provide such security cover.
The jurisdiction of Court under Article 226 of Constitution of India is limited and such power can be exercised only in certain circumstances which are enumerated in West Bengal Central School Service Commission v. Abdul Halim7 wherein the Apex Court reiterated the following principles of judicial review.
It is well settled that the High Court in exercise of jurisdiction Under Article 226 of the Constitution of India does not sit in appeal over an administrative decision. The Court might only examine the decision making process to ascertain whether there was such infirmity in the decision making process, which vitiates the decision and calls for intervention Under Article 226 of the Constitution of India.
7 2019 (9) SCALE 573 16 In any case, the High Court exercises its extraordinary jurisdiction Under Article 226 of the Constitution of India to enforce a fundamental right or some other legal right or the performance of some legal duty. To pass orders in a writ petition, the High Court would necessarily have to address to itself the question of whether there has been breach of any fundamental or legal right of the Petitioner, or whether there has been lapse in performance by the Respondents of a legal duty. The High Court in exercise of its power to issue writs, directions or orders to any person or authority to correct quasi-judicial or even administrative decisions for enforcement of a fundamental or legal right is obliged to prevent abuse of power and neglect of duty by public authorities.
In exercise of its power of judicial review, the Court is to see whether the decision impugned is vitiated by an apparent error of law. The test to determine whether a decision is vitiated by error apparent on the face of the record is whether the error is self-evident on the face of the record or whether the error requires examination or argument to establish it. If an error has to be established by a process of reasoning, on points where there may reasonably be two opinions, it cannot be said to be an error on the face of the record, as held by this Court in Satyanarayan v. Mallikarjuna reported in AIR 1960 SC
137. If the provision of a statutory Rule is reasonably capable of two or more constructions and one construction has been adopted, the decision would not be open to interference by the writ Court. It is only an obvious misinterpretation of a relevant statutory provision, or ignorance or disregard thereof, or a decision founded on reasons which are clearly wrong in law, which can be corrected by the writ Court by issuance of writ of Certiorari.
The sweep of power Under Article 226 may be wide enough to quash unreasonable orders. If a decision is so arbitrary and capricious that no reasonable person could have ever arrived at it, the same is liable to be struck down by a writ Court. If the decision cannot rationally be supported by the materials on record, the same may be regarded as perverse. 17
However, the power of the Court to examine the reasonableness of an order of the authorities does not enable the Court to look into the sufficiency of the grounds in support of a decision to examine the merits of the decision, sitting as if in appeal over the decision. The test is not what the Court considers reasonable or unreasonable but a decision which the Court thinks that no reasonable person could have taken, which has led to manifest injustice. The writ Court does not interfere, because a decision is not perfect."
Yet, issuance of Writ of Mandamus is purely discretionary and the same cannot be issued as a matter of course.
The petitioner also claimed consequential relief of Writ of Mandamus, but such relief cannot be granted as a matter of course as held in State of Kerala v. A.Lakshmi Kutty8, the Hon'ble Supreme Court held that a Writ of Mandamus is not a writ of course or a writ of right but is, as a rule, discretionary. There must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, therefore, the Court will only enforce the performance of statutory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance. The existence of a right is the foundation of the jurisdiction of a Court to issue a writ of Mandamus.
In Raisa Begum v. State of U.P.,9 the Allahabad High Court has held that certain conditions have to be satisfied before a writ of mandamus is issued. The petitioner to claim writ of mandamus must show that he has a legal right to compel the respondent to do or abstain from doing something. There must be in the petitioner a right to compel the performance of some duty cast on the 8 1986 (4) SCC 632 9 1995 All.L.J.534 18 respondents. The duty sought to be enforced must have three qualities. It must be a duty of public nature created by the provisions of the Constitution or of a statute or some rule of common law.
Writ of mandamus cannot be issued merely because, a person is praying for. One must establish the right first and then he must seek for the prayer to enforce the said right. If there is failure of duty by the authorities or inaction, one can approach the Court for a mandamus. The said position is well settled in a series of decisions.
In State of U.P. and Ors. v. Harish Chandra and Ors.10 the Apex Court held as follows:
"10. ...Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition."
In Union of India v. S.B. Vohra11 the Supreme Court considered the said issue and held that 'for issuing a writ of mandamus in favour of a person, the person claiming, must establish his legal right in himself. Then only a writ of mandamus could be issued against a person, who has a legal duty to perform, but has failed and/or neglected to do so.
In Oriental Bank of Commerce v. Sunder Lal Jain12 the Supreme Court held thus:
"The principles on which a writ of mandamus can be issued have been stated as under in The Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr.:
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(1996) 9 SCC 309 11 (2004) 2 SCC 150 12 (2008) 2 SCC 280 19 Note 187 - Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed.
Note 192 - Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty.
Note 196 - Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the well settled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concerned-an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the existing 20 facts, and with due regard to the consequences which will result. It is in every case, a discretion dependent upon all the surrounding facts and circumstances."
When a Writ of Mandamus can be issued, has been summarised in Corpus Juris Secundum, as follows:
"Mandamus may issue to compel the person or official in whom a discretionary duty is lodged to proceed to exercise such discretion, but unless there is peremptory statutory direction that the duty shall be performed mandamus will not lie to control or review the exercise of the discretion of any board, tribunal or officer, when the act complained of is either judicial or quasi- judicial unless it clearly appears that there has been an abuse of discretion on the part of such Court, board, tribunal or officer, and in accordance with this rule mandamus may not be invoked to compel the matter of discretion to be exercised in any particular way. This principle applies with full force and effect, however, clearly it may be made to appear what the decision ought to be, or even though its conclusion be disputable or, however, erroneous the conclusion reached may be, and although there may be no other method of review or correction provided by law. The discretion must be exercised according to the established rule where the action complained has been arbitrary or capricious, or based on personal, selfish or fraudulent motives, or on false information, or on total lack of authority to act, or where it amounts to an evasion of positive duty, or there has been a refusal to consider pertinent evidence, hear the parties where so required, or to entertain any proper question concerning the exercise of the discretion, or where the exercise of the discretion is in a manner entirely futile and known by the officer to be so and there are other methods which it adopted, would be effective."
(emphasis supplied) 21 Condition for the issue of Writ of Mandamus: For the issue of this writ the following conditions are required to be fulfilled.
(1) Public duty -- The person or authority against whom this writ is sought to be issued must have public duties to perform and there must have been failure on his part in performance of his duties. The duty will be public duty if it is created by a Statute or rule of common law. Thus, the duty imposed by the Constitution, Statute, common law or rules or orders having the force of law is regarded public duty.- It cannot be issued to enforce the private duties. Thus it cannot be issued for the enforcement of the obligations arising out of a contract." For the issue of this writ it is necessary that the authority against whom it is issued must be a public authority. It may be issued even against a private body if the duty cast upon it is of a public nature. However, it cannot be issued against a private person or private body which does not perform public duty but performs only private duties.
(2) Duty to be mandatory -- The authority or the person against whom the writ is sought to be issued must have some public duties to perform, the performance of the duties by him must be imperative or mandatory and not discretionary and there must be failure on his part in the performance of the duties. If the authority or person is bound to perform the duty, the duly will be taken as a mandatory duty. If the duty is merely discretionary, the writ of mandamus cannot be issued to enforce it. For example, if by a rule the Government is given a discretion to grant Dearness Allowance to its employees, the writ of mandamus cannot be issued to compel the Government to grant the Dearness Allowance. If the discretion is exercised bona fide and not arbitrarily, the mandamus is not issued. But if the discretion is exercised arbitrarily or maliciously or without applying the mind or on the irrelevant consideration, the mandamus will lie. If the authority is under duty to exercise its discretion but he does not exercise discretion, the Court may issue mandamus asking the authority to act according to law and exercise its discretion. In a case 22 the Supreme Court has held that even if the duty is discretionary a limited mandamus can be issued directing the public authority to exercise the discretion with a reasonable time in accordance with law. The writ of mandamus cannot be issued to provide for reservation.
(3) Petitioner's legal right to compel the performance of the duty -- The petitioner should have legal right to compel the authority or the person against whom he seeks the issue of the writ of mandamus to perform his public duty. The petitioner, thus, should have legal right to compel the performance of the public duty cast on the opponent. Thus he must have legal right to compel the authority concerned to perform his public duty or to refrain from doing something (4) Demand of the performance and its refusal -- For the issue of the mandamus it is necessary that the petitioner has called upon the authority concerned to perform its public duty and the authority concerned has refused to do so.
Thereafter, he submitted that in order to characterize a decision of the administrator as "irrational" the court has to hold, on material, that it is a decision "so outrageous" as to be in total defiance of logic or moral standards. He further stated that the test is to see whether there is any infirmity in the decision making process and not in the decision itself.
In view of the law laid down by various Courts referred supra, one must show existing right or failure of public officer to discharge public duty, or the decision of public authority is irrational/outrageous. The petitioner's security cover is reduced, not totally taken away, based on threat perception report placed before the State Level Security Review Committee, and since the date of death of petitioner's husband in the year 2005, no untoward incident occurred. As such the decision of the State cannot be said to be irrational or outrageous and the act of the State do not violates fundamental right 23 guaranteed under Article 21 of the Constitution of India. Hence, I am of the view that in the circumstances narrated above, following the law, no direction to provide security cover or restore the security cover as existed as on the date of general election, be given.
On an overall consideration of the facts and circumstances of the case, removing security cover of 1+1 based on decision taken by the State Level Security Review Committee cannot be altered by this Court while exercising extraordinary jurisdiction under Article 226 of the Constitution of India.
In view of my foregoing discussion, I find no merit in the contention of the learned counsel for the petitioner to issue a Writ of Mandamus as prayed for and the writ petition is devoid of any merit. Consequently, the writ petition is liable to be dismissed.
In the result, the writ petition is dismissed. No costs.
The miscellaneous petitions pending, if any, shall also stand closed.
__________________________________ JUSTICE M.SATYANARAYANA MURTHY Date: 03-01-2020 IS 24 THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY WRIT PETITION NO.9976 OF 2019 Date: 03-01-2020 IS