Madras High Court
Dravida Munnetra Kazhagam (Dmk) vs Government Of Tamil Nadu on 11 August, 2017
Author: M.Duraiswamy
Bench: M.Duraiswamy
Reserved on : 08.08.2017 Delivered on : 11.08.2017 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.08.2017 CORAM THE HON'BLE Mr. JUSTICE M.DURAISWAMY W.P.No.19639 of 2017 and W.M.P.Nos.21210 of 2017 Dravida Munnetra Kazhagam (DMK) rep by R.Girirajan, Legal Wing Secretary, Anna Arivalayam, No.367 & 369, Anna Salai, Teynampet, Chennai 600 018. ... Petitioner Vs. 1.Government of Tamil Nadu, rep by Home Secretary, Secretariat, Chennai 9. 2.The Director General of Police, Government of Tamil Nadu, Kamarajar Salai, Chennai 4. 3.The District Collector, Salem District, Salem. 4.The Superintendent of Police, Salem District, Salem. ... Respondents Petition filed under Article 226 of The Constitution of India praying to issue a writ of mandamus forbearing the respondents and their subordinate officials or any other officials tracing power under them from anyway and in any manner preventing or interfering or interrupting the visit of party's working President Mr.M.K.Stalin to anywhere in the State of Tamil Nadu for the purpose of visiting the water bodies under desilt process by the petitioner party's cadre. For Petitioner : Mr.R.Shanmugasundaram, Senior Counsel and Mr.N.R.Elango, Senior Counsel for Mr.R.Neelakandan For Respondents : Mr.S.T.S.Murthi, Additional Advocate General assisted by Mr.E.Balamurugan, Additional Government Pleader O R D E R
The petitioner, Dravida Munnetra Kazhagam, represented by its Legal Wing Secretary, has filed the above Writ Petition to issue a writ of mandamus forbearing the respondents and their subordinate officials from in any manner preventing or interfering or interrupting the visit of party's working President Mr.M.K.Stalin to anywhere in the State of Tamil Nadu for the purpose of visiting the water bodies under desilt process by the petitioner party's cadre.
2.The brief case of the petitioner is as follows:
(i)According to the petitioner, due to the prevailing dry weather in the State, it is imperative to desilt water-bodies so that they are able to hold water through the rest of the year. Since the State Government has not undertaken any desilting of water-bodies in the State, the party's Working President Mr.M.K.Stalin, Leader of the Opposition, Tamil Nadu Legislative Assembly, requested the party cadres to desilt the water-bodies like ponds, tanks, etc in the State, so that the people may not face water scarcity and agriculture would not be adversely affected.
(ii)According to the petitioner, as requested by the Working President, in many places across the State, ponds and tanks have been desilted by the party cadres. The petitioner has also stated that the Working President is touring the State to inspect the desilted ponds and tanks and to appreciate the efforts of party cadres and has so far visited Chennai, Kanchipuram, Thoothukudi and most recently, Tiruvannamalai, where a pond has been desilted by the party cadres. Fazed by the enormous support from the people of the State for the party's desilting campaign, the State Government and the Ruling Party have adopted various methods using machinery of the State Government and the District Administration to thwart the campaign.
(iii)When the Working President was tavelling to Konganapuram, Edapadi Taluk, Salem District, via Coimbatore, by car to Salem from Coimbatore to inspect the Kacharayankuttai Tank near Konganapuram, which has been recently desilted by the party cadres and to interact with the public on various social issues, his car was stopped by the police near Kaniyur Toll Plaza and he, along with other party cadres were forcibly taken to a Marriage Hall and detained. Later, an order, passed by the Assistant Commissioner of Police, Salem City, denying permission for holding a human chain protest demanding withdrawal of NEET exam, was produced and used as justification for detaining Mr.M.K.Stalin and preventing his visit to Kacharayankuttai Tank.
(iv)According to the petitioner, the human chain protest was in no way connected with his visit to Konganapuram, a sub-urban area in Salem District. The order passed by the Assistant Commissioner of Police is the subject matter in a Writ Petition in W.P.No.19473 of 2017, in which this Court had granted an order of interim stay on 27.07.2017.
(v)According to the petitioner, due to the illegal detention, the Working President was prevented from reaching Salem and interacting with the public and DMK cadres. The human chain protest to be held in Salem, Namakkal and Erode Districts were also cancelled. As a result, he was forced to abandon his visit and return to Chennai.
(vi)According to the petitioner, the Ruling Party, the District Administration, Police and Officials of the State Government acted to prevent his visit to the desilted Kacharayankuttai Tank is an apparent act of political retaliation as the tank is located in the constituency represented by the Hon'ble Chief Minister and his visit would only highlight the lackadaisical attitude of the State Government towards water management.
(vii)The petitioner has given a representation to the respondents on 28.07.2017 informing them that the Leader of the Opposition would visit Kacharayankuttai Tank and also requested them to instruct the Officials not to interfere with his visit.
(viii)According to the petitioner, freedom of speech, movement and assembly, being fundamental rights, cannot be arbitrarily restricted by the State and any restriction to be valid under Part III of the Constitution of India must be justified under the specific heads under Article 19 as held in a catena of decisions of the Hon'ble Supreme Court of India. Further, the right to life and liberty of a person can be restricted only under a fair, just and reasonable procedure established under law. The attempt to prevent the Opposition Party Leader's visit by the Police and other District Administrative Officials would be violative of the provisions of the Constitution of India. In these circumstances, the petitioner has filed the Writ Petition.
3.The brief case of the 3rd respondent is as follows:
(i)According to the 3rd respondent, the District Collector, the Writ Petition has been filed with malafide intention and a vindictive motive to gain political mileage by interfering with the administrative and public measures undertaken by the Government of Tamil Nadu. The relief sought for in the Writ Petition is omnibus and extremely vague and granting any such relief to the petitioner would create serious law and order issue throughout the State of Tamil Nadu and would in turn cause huge damage to the public and the Government.
(ii)The desilting of the water-bodies throughout the State of Tamil Nadu so as to increase their storage capacity has been undertaken by the Government of Tamil Nadu under the launch of the Kudimaramathu works since the month of March 2017. Since the work was not carried out for a long time, the storage capacity of the water-bodies have diminished by a great extent. Since the silt deposited in such water-bodies are rich in nutrients and can be used as a manure in agriculture and also can be put to several other uses, the Government adopted the scheme of desilting of water-bodies to allow farmers and other eligible persons to take the silt from such water-bodies for free thereby restoring the storage capacity.
(iii)For the purpose of implementing the same, the Government of Tamil Nadu passed orders to amend Rule 12(2) and 12(2-A)(a) of the Tamil Nadu Minor Mineral Concession Rules 1959 and in turn issued Government Order in G.O.Ms.No.50, Industries (MMC.1) Department dated 27.04.2017 stipulating that any person engaged in the making of pots or any registered Pottery Labourers Co-operative Society for making pots, the public for bonafide domestic purposes and the farmers for agricultural purposes shall be allowed to quarry clay, silt, savudu and gravel free of charges from the beds of tanks, channels and reservoirs under the control of the Public Works Department or Rural Development and Panchayat Raj after obtaining prior permission from the concerned District Collector.
(iv)Further, the 3rd respondent has stated that subsequently, the relevant Clause was amended so as to give powers to the concerned Tahsildars to give permission to eligible persons for quarrying the silt from the tank beds. The 3rd respondent has stated that around 2333 applications have been received from various persons for all tanks and all water courses in Edapaddi Taluk covered under G.O.Ms.No.50 dated 27.04.2017 by the Tahsildar, Edapaddi and necessary permissions have been given to the persons to quarry the silt from the tank beds.
(v)With regard to Kacharayankuttai, Erumapatti Village, only the agriculturists of the locality have applied for granting permission to take the silt from the Kacharayankuttai Tank. The petitioner is trying to hijack the scheme launched by the Government for public welfare. The petitioner party is trying to unjustly enrich themselves by using the Government scheme for their private gain.
(vi)Considering the present position of agitation and unrest prevailing at the Erumapatti Village, Edapaddi Taluk, it is just and necessary that the petitioner party's Working President Mr.M.K.Stalin is not permitted to visit Kacharayankuttai Tank. The relief sought for in the instant Writ Petition is an omnibus relief and grant of such relief without any infringement of any fundamental right of the petitioner party's Working President would act as a free ticket given to them to enter into any part of the State at any time unmindful of the law and order situation and public unrest that may prevail there and thereby would entitle them to create further breach of law and order. In these circumstances, the 3rd respondent prayed for dismissal of the Writ Petition.
4.The brief case of the 4th respondent is as follows:
(i)Apart from reiterating the averments stated in the counter filed by the 3rd respondent, the 4th respondent, the Superintendent of Police has also stated that FIRs have been registered against several unwarranted agitations undertaken by the men of the petitioner's party on 26.07.2017 and 27.07.2017. The petitioner party gathered in hundreds on the Salem-Coimbatore National Highway and staged a Road Roko in protest of the desilting taking place at Kacharayankuttai. One of the cadre of the party threatened to kill himself in public by climbing on a Cell Phone Tower on 25.07.2017 if no permission was granted to quarry the silt from Kacharayankuttai. After a long period of struggle to rescue him, the fire service and rescue authorities were able to bring him down and later he was sent to the hospital for treatment.
(ii)While atmosphere was already tense throughout the District and agitations have cropped up at several pockets in the town, Leader of the Opposition also wanted to visit Kacharayankuttai in Erumapatti Village, Edapaddi where already a tussle between two groups is going on. To prevent any untoward incident or law and order collapse at the above said location, a communication was sent by the Sankagiri Deputy Superintendent of Police on 26.07.2017 to the District Secretary of the Party. However, the said person declined to receive the said communication. Despite the same, Mr.M.K.Stalin made a public announcement on 26.07.2017 that he would visit the Kacharayankuttai on 27.07.2017 in contravention to the communication sent by the Deputy Superintendent of Police without any permission from the appropriate authorities.
(iii)It is patently clear that the intention of Mr.M.K.Stalin and the petitioner party's cadres is only to thwart the Government Scheme and disrupt public peace and tranquility at the said locality. It is the top most duty of the police Department to maintain law and order in the Society and hence, as a precautionary measure to prevent any untoward incident in the said locality, steps were taken by the Police Department and their officers are totally within the powers conferred on them by law and hence, the petitioner party cannot have any grievance in respect of the same. In these circumstances, the 4th respondent prayed for dismissal of the Writ Petition.
5.Heard Mr.R.Shanmugasundaram, learned Senior Counsel, Mr.N.R.Elango, learned Senior Counsel appearing for the petitioner and Mr.S.T.S.Murthi, learned Additional Advocate General appearing for the respondents.
6.Mr.R.Shanmugasundaram, learned senior counsel appearing for the petitioner submitted that the Leader of the Opposition was prevented by the respondents from visiting Kacharayankuttai Tank, Konganapuram, Edapaddi Taluk, which is violative of Article 19 of the Constitution of India, which affects the fundamental right to life and liberty of a person. Further, the learned senior counsel submitted that the Leader of the Opposition is being prevented from visiting Konganapuram only for the reason that the said place comes within the Assembly Constituency of the Hon'ble Chief Minister. That apart, the learned senior counsel also submitted that the 4th respondent foisted false cases against the cadres of the petitioner party only to find a reason for preventing the Leader of the Opposition from entering Konganapuram in Edapaddi Taluk.
7.Countering the submissions made by the learned senior counsel appearing for the petitioner, Mr.S.T.S.Murthi, learned Additional Advocate General appearing for the respondents submitted that the Government had issued a Government Order in G.O.Ms.No.50 dated 27.04.2017 giving power to the concerned Tahsildar to give permission to eligible persons to quarry the silt from the tank beds and also submitted that the Tahsildar, Edapaddi Taluk is also considering the applications submitted by the agriculturists to take silt from the Kacharayankuttai Tank. Further, the learned Additional Advocate General submitted that the police had registered several cases against the party cadres for committing theft of silt from the tank bed. The learned Additional Advocate General further submitted that in the event of the Leader of the Opposition visiting Kacharayankuttai Tank, it would create law and order problem in the locality, therefore, he should not be allowed to visit Kacharayankuttai Tank.
8.On a careful consideration of the materials available on record and the submissions made by Mr.R.Shanmugasundaram, learned senior counsel appearing for the petitioner and Mr.S.T.S.Murthi, learned Additional Advocate General appearing for the respondents, it could be seen that the petitioner party represented by its Legal Wing Secretary has filed the Writ Petition seeking for issuance of writ of mandamus forbearing the respondents and their subordinate officials from in any manner preventing or interfering or interrupting the visit of party's working President Mr.M.K.Stalin, Leader of the Opposition to anywhere in the State of Tamil Nadu for the purpose of visiting the water bodies under desilt process by the petitioner party's cadre.
9.It is the case of the petitioner that due to the prevailing dry weather in the State, the petitioner party had decided to desilt the water-bodies ahead of the monsoon so that they are able to hold water through the rest of the year. The petitioner has contended that since the State Government has not undertaken any desilting of water-bodies in the State, the petitioner party's Working President Mr.M.K.Stalin, who is the Leader of the Opposition, Tamil Nadu Legislative Assembly, requested the party cadres to help desilting the water-bodies like ponds, tanks, etc in the State so that people may not face water scarcity and agriculture would not be adversely affected. Further, the petitioner contended that heeding to his appeal, in many places across the State, ponds and tanks have been desilted by the petitioner party cadres. In order to inspect the desilted ponds and tanks and to appreciate the efforts of the party cadres, Mr.M.K.Stalin visited various places where a pond has been desilted by the party cadres. When the petitioner was planning to visit Kacharayankuttai Tank, Konganapuram, which comes within the Assembly Constituency of Edapaddi from where the Hon'ble Chief Minister was elected, he was prevented from entering Konganapuram and he was detained and let off in the evening. An order was also passed by the Assistant Commissioner, Salem City denying permission for holding human chain protest demanding withdrawal of NEET exam was produced and citing the said order, the Leader of the Opposition was prevented from inspecting Kacharayankuttai Tank. According to the petitioner, the human chain protest was in no way connected to his visit to Kacharayankuttai Tank, Konganapuram, which was part of the party's desilting campaign. The petitioner contended that the order was passed and used by the respondents to detain the Leader of the Opposition and the human chain protest was to occur at a different place and time. The order passed by the Assistant Commissioner of Police has been challenged before this Court in a Writ Petition in W.P.No.19473 of 2017 wherein this Court had granted an order of interim stay on 27.07.2017. The respondents 3 & 4 have contended that various criminal cases were registered against the petitioner party cadres for committing theft of desilted sand in the tank bed and further, contended that if Mr.M.K.Stalin is allowed to inspect the Kacharayankuttai Tank, it would cause law and order problem in the locality. Further, they have stated that there was Road Roko on 26.07.2017 and 27.07.2017 on the Salem-Coimbatore National Highway in protest of the action taken against the Leader of the Opposition.
10.On a reading of the counter affidavits filed by the District Collector and the Superintendent of Police, the respondents 3 & 4 respectively, it could be seen that the 4th respondent Police had registered 35 cases against 35 persons, who are alleged to be the petitioner party's cadres for committing theft of desilted sand. The respondents 3 & 4 have also stated that if Mr.M.K.Stalin is permitted to visit Kacharayankuttai Tank in Konganapuram, it would cause disturbance to law and order in the locality.
11.From the materials produced before this Court, it is clear that absolutely there was no law and order problem in the locality till Mr.M.K.Stalin was detained by the police and prevented from visiting Kacharayankuttai Tank on 27.07.2017. The present Writ Petition was filed on 28.07.2017 and most of the cases were registered by the 4th respondent police subsequent to the filing of the Writ Petition. The 4th respondent, Superintendent of Police has not explained as to whether any complaint was registered prior to 26.07.2017 and whether there was any theft of the silt prior to 26.07.2017. The respondents 3 & 4 have also spoken about the passing of Government Order in G.O.Ms.No.50 dated 27.04.2017. It cannot be disputed that the Government is empowered to pass any Government Order to regularize the granting of permission to the persons to quarry the silt from the tank beds in accordance with law. Equally, the police can also take action against any person indulging in illegal or unlawful activity disrupting law and order. It is also the responsibility of the police to maintain law and order, but, using law and order as a reason, they cannot prevent the personal liberty of a citizen. Admittedly, the 4th respondent has not registered any case against Mr.M.K.Stalin and it is also not the case of the respondents 3 & 4 that he instigated the party cadres to disturb the law and order in the locality. When nothing was said against Mr.M.K.Stalin for disturbing the law and order in the locality, the issue that has to be decided now is whether in such circumstances a person can be restrained from entering a particular place.
12.The personal liberty is a fundamental right and can be circumscribed only by some process sanctioned by law. So far as the right to personal liberty is concerned, it is ensured by providing that no one shall be deprived of personal liberty, except according to the procedure prescribed by law. The expression personal liberty is a comprehensive one and the right to move freely is an attribute of personal liberty. The freedom to move freely is carved out of personal liberty. The freedom under Article 19, 21, 22 and 31 are exclusive each Article enacting a code relating to the protection of distinct rights. The personal liberty is a reservation to the individual of certain fundamental reasonable expectations involved in life in civilized society and a freedom from arbitrary and unreasonable exercise of the power and authority of those who are designated or chosen in a political organized society to adjust that society to individuals. Personal liberty subjected to any coercion in any manner that it does not admit to legal justification. The expression personal liberty must be so interpreted as to avoid overlapping between Article 21 and 19(1). The expression personal liberty in Article 21 is the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of a man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19. The phrase personal liberty is very wide and includes all possible rights which go to constitute personal liberty including those which are mentioned in Article 19. The right of free movement is a vital element of personal Liberty. Under Article 19 of the Constitution of India all citizens shall have the right to move freely throughout the Territory of India.
13.The learned Additional Advocate General contended that the Leader of the Opposition can visit any place in the State of Tamil Nadu, except Konganapuram in Edapaddi Taluk. When the respondents are permitting the Leader of the Opposition to visit all places in the State of Tamil Nadu, he should also be permitted to visit Kacharayankuttai Tank, Konganapuram. If he is prevented from visiting the said place without assigning any legal and valid reasons, it affects the personal liberty of the individual, which cannot be permitted by the Court of law.
14.The issue involved in this Writ Petition is not with regard to whether the petitioner party is desilting the water-bodies and tanks or whether the State Government is desilting the water-bodies and tanks in the State of Tamil Nadu. The issue involved in this Writ Petition is whether Mr.M.K.Stalin, Leader of the Opposition can be prevented by the respondents from inspecting the water-bodies and tanks in the State of Tamil Nadu, which affects his personal liberty. Therefore, I am not going into the aspect as to who is desilting the water-bodies and tanks in the State of Tamil Nadu. The said finding is also unnecessary for deciding the present Writ Petition. Since the averments stated by the respondents 3 & 4 as to who is carrying on the desilting work is a question of fact, the said issue cannot be decided in the Writ Petition under Article 226 of the Constitution of India. Even assuming that the State Government is desilting the water-bodies and tanks in the State of Tamil Nadu, a person cannot be prevented from visiting or inspecting the said water-bodies and tanks since the water-bodies and tanks does not belong to any individual.
15.Admittedly, there was no case registered against Mr.M.K.Stalin by the respondent Police so far while inspecting the water-bodies and tanks. That being the case, preventing him from visiting Kacharayankuttai Tank, Konganapuram is against the provisions of Article 19 of the Constitution of India. When the respondents are saying that the Leader of Opposition can visit any place in the State of Tamil, except Konganapuram, it only proves the malafide intention of the respondents 3 & 4 in not permitting him to visit Konganapuram. Admittedly, Konganapuram is not a prohibited area for restraining the Leader of the Opposition from entering the place.
16.In these circumstances, I am of the view that the respondents should not prevent Mr.M.K.Stalin from visiting any place in the State of Tamil Nadu, for inspecting water-bodies, tanks etc. However, since the respondents have stated that if Mr.M.K.Stalin inspect water-bodies and tanks, it would create law and order problem, I am of the view that the number of persons accompanying Mr.M.K.Stalin, Leader of the Opposition can be restricted to 25. Therefore, Mr.M.K.Stalin is permitted to visit and inspect the water-bodies and tanks in the State of Tamil Nadu accompanied by 25 persons, with prior information to the concerned District Collector and the Superintendent of Police. The petitioner shall send a written communication to the concerned District Collector and the Superintendent of Police at least two days prior to the visit of the Leader of the Opposition. The petitioner shall also ensure that no untoward incident or unpleasant incidents disrupting public peace and tranquility happens at the time of visit of Mr.M.K.Stalin. It is the duty of the concerned District Collector and the Superintendent of Police to give sufficient police protection to maintain law and order at the time of inspection by the Leader of the Opposition. In these circumstances, the respondents 1 & 2 are directed to give suitable directions to the respective District Collectors and the Superintendent of Police/Commissioner of Police for giving adequate police protection at the time of visit of Mr.M.K.Stalin, Leader of the Opposition.
17.With these observations, the Writ Petition is disposed of. No costs. Consequently, the connected miscellaneous petition is closed.
Index : No 11.08.2017
Internet : Yes
va
To
1.The Home Secretary,
Government of Tamil Nadu,
Secretariat, Chennai 9.
2.The Director General of Police,
Government of Tamil Nadu,
Kamarajar Salai, Chennai 4.
3.The District Collector,
Salem District, Salem.
4.The Superintendent of Police,
Salem District, Salem.
M.DURAISWAMY, J.
va
Order made in
W.P.No.19639 of 2017 and
W.M.P.Nos.21210 of 2017
11.08.2017