Calcutta High Court (Appellete Side)
Bharatiya Janata Party vs State Of West Bengal & Ors on 7 December, 2018
Author: Biswanath Somadder
Bench: Biswanath Somadder
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Biswanath Somadder
And
The Hon'ble Justice Arindam Mukherjee
MAT 1522 of 2018
in
CAN 9643 of 2018
Bharatiya Janata Party, West Bengal
Vs.
State of West Bengal & Ors.
For the appellant/applicant: Mr. Anindya Mitra, Sr. Advocate
Mr. Saptansu Basu, Sr. Advocate
with
Mr. Phiroze Eduilji
Mr. Sarajit Roy Choudhury
Mr. Kumar Jyoti Tewari
Mr. Rajdeep Biswas
Mr. Brajesh Jha
Mr. Tarun Jyoti Tewari
Mr. Radha Mohan Roy
Mr. Subhankar Chakraborty
Mr. Ajit Mishra
Ms. Mrinalini Majumdar
Mr. Arijit Majumdar
Mr. Debasis Saha
Mr. Dhiraj Trivedi
Mr. Narendra Gupta
Mr. Ravi Ranjan Kumar
Mr. Pradip Kr. Mondal ... Advocates
For the State: Mr. Kishore Datta, Ld. AG
Mr. Abhrotosh Majumdar, Ld. AAG
Mr. Joytosh Majumdar, GP
with
Mr. Sirsanya Bandopadhyay
Mr. Ashtha Sharma
Mr. Arka Kumar Nag ... Advocates
2
Heard on : 7th December, 2018.
Judgment on : 7th December, 2018.
Biswanath Somadder, J.
By consent of the parties, the appeal is treated as on day's list and taken up for consideration along with the application for stay.
The instant appeal arises out of an interim order passed yesterday (i.e., 6th December, 2018) by a learned Single Judge in WP 24263 (W) of 2018 (Bharatiya Janata Party vs. State of West Bengal & Ors.). By the said order, the learned Single Judge has kept the writ petition pending for further hearing on 9th January, 2019, while issuing certain directions, which read as follows:-
"In the said conspectus, I am of the opinion that the reliefs, as prayed for in the present writ petition, cannot be granted at this stage. In my opinion reports need to be called for from respective Superintendents of Police of the respective districts all over the State which shall be prepared upon giving an opportunity of hearing to the District President or the District Secretary of the petitioner in the respective districts of the State.
The petitioner would be at liberty to file a supplementary affidavit placing orders passed by the District Magistrate placing orders passed by the District Magistrate and Superintendent of Police by way of a supplementary affidavit in course of this week and supply a copy of the same to the learned advocates on record appearing for the State respondents. The respondents shall peremptorily file an opposition dealing with the averments made in the writ petition as well as the supplementary affidavit within a period of seven days thereafter.
List this matter for further consideration in the daily supplementary list of this Court on 9th January, 2019.3
In the meantime, the Superintendents of Police of the respective districts are directed to grant an opportunity of hearing to the District President or the District Secretary of the petitioner in the respective districts and to take a decision as to whether permission can be granted to the petitioner to hold the rally in their respective districts and to communicate such decision to the petitioner. Such exercise shall be completed peremptorily by 21st December, 2018. The said decisions shall be produced before this Court on the returnable date.
Needless to observe the rally shall stand deferred till the next date of hearing."
The instant appeal has been preferred by the writ petitioner, namely, Bharatiya Janata Party, West Bengal.
There appears to be two primary reasons for moving the present appeal. The first; by keeping the writ petition pending for further hearing on 9th January, 2019, the learned Single Judge - in effect - has refused the final reliefs as sought for by the appellant/writ petitioner in the writ petition. The second reason is that while the learned Single Judge has issued an order of restraint upon the appellant/writ petitioner from holding the rally - which shall stand deferred till the next date of hearing - it tantamounts to passing of an order in the nature of a mandatory injunction against the writ petitioner in its own writ petition.
At first, we need to visit certain facts which are relevant for the purpose of adjudication of the instant case.
The writ petitioner/ Bharatiya Janata Party, West Bengal, is the West Bengal unit of the Bharatiya Janata Party which is a recognised political party 4 within the meaning of the Representation of People Act, 1951. A programme was conceived by the appellant/writ petitioner to organise three "Yatras" under the banner, "Ganatantra Bachao Jaytra". The said "Yatras" are supposed to cover all forty-two (42) Lok Sabha constituencies in West Bengal and touch every assembly seat of the West Bengal Legislative Assembly. The first "Yatra" is scheduled to start from Cooch Behar today (i.e., on 7th December, 2018), the second from Ganga Sagar on 9th December, 2018 and the third from Birbhum on 14th December, 2018.
The Principal Secretary, Department of Home and Hill Affairs, was approached by the Vice-President of the West Bengal unit of the Bharatiya Janata Party as far back as on 29th October, 2018, requesting him to allow a small delegation of the State Bharatiya Janata Party to meet the Principal Secretary on 5th November, 2018, or earlier, as per his convenience, to place the programme itineraries and other details. The broader purpose was to apprise the Principal Secretary about the gamut of the programme and to prepare the modalities of relevant permissions and support from the administration.
Another letter to the same authority (this time, described as the Home Secretary) was written by the Vice-President of the West Bengal unit of the Bharatiya Janata Party on 5th November, 2018. In this letter, a similar prayer for appointment with him was made for the purpose of apprising the Home Secretary 5 about the detailed plan of the political programme - "Yatra" - across West Bengal during the months of December, 2018 and January, 2019. The meeting with the Home Secretary was to pursue with the State administration for the required permissions (if any) for the proposed peaceful political programme. In the said letter dated 5th November, 2018, it has been further stated to the effect that since there was no response from the Home Secretary's end in respect of the letter dated 29th October, 2018, a request was made to arrange a meeting immediately, definitely within 9th November, 2018.
A further letter was written to the same authority, again by the Vice- President of the West Bengal unit of the Bharatiya Janata Party on 12th November, 2018, essentially seeking, inter alia, for a meeting urgently within the next two or three days in order to apprise the administration of the Government of West Bengal of the proposed political programme of the "Yatra". A request was also made for coordination about the details of the "Yatra" and for required administrative permissions (if any). The Home Secretary was requested to hold a meeting within the next two or three days with confirmation of the time and date within 12th November, 2018, itself.
Thereafter, on 20th November, 2018, another letter appears to have been issued by the Vice-President of the West Bengal unit of the Bharatiya Janata Party addressed to the Home Secretary again, this time intimating the Home 6 Secretary about some changes in the overall plan of the "Yatra" itinerary and also attaching the revised synopsis of the "Yatra" programme and the revised detail programme of each of the three "Yatras". In the said letter dated 20th November, 2018, the Home Secretary was requested to initiate process of administrative support to carry out the programme peacefully with due coordination with the local police and administration. A meeting was again requested to be arranged between the office of the Home Secretary and the representatives of the West Bengal unit of the Bharatiya Janata Party for a meaningful coordination.
In the meanwhile, one letter was addressed to the Director General of Police, West Bengal, by the Vice-President of the West Bengal unit of the Bharatiya Janata Party on 14th November, 2018, giving the details of the three "Yatras" covering the entire State, which were proposed to be held in the months of December, 2018 and January, 2019.
On 20th November, 2018, another letter was addressed to the Director General of Police, West Bengal, by the Vice-President of the West Bengal unit of the Bharatiya Janata Party referring to the earlier letter dated 14th November, 2018 and intimating the Director General of Police of the changes in the overall plan of the "Yatra" itinerary. In the said letter dated 20th November, 2018, the revised synopsis of the "Yatra" programme and a revised detail programme of each "Yatra" was also attached.
7
The other letter on record is a letter dated 23rd November, 2018, issued by the Vice-President of the West Bengal unit of the Bharatiya Janata Party addressed to the Chief Secretary, Government of West Bengal. The subject matter of this letter is a peaceful political programme, "Yatra", covering the entire State of West Bengal in the months of December, 2018 and January, 2019. Attention of the Chief Secretary was drawn to the details of the "Yatra" programme and also intimating him that the administration had already been informed about the democratic, peaceful, mass contact programme through the office of the Home Secretary and the Director General of Police with all relevant details. In the said letter dated 23rd November, 2018, an appointment for a meeting with the Chief Secretary was sought for on or before 26th November, 2018, at any time convenient to the Chief Secretary for a discussion on modalities of coordination between the political party and the State administration.
A similar letter was issued on the same date, i.e., 23rd November, 2018, again by the Vice-President of the West Bengal unit of the Bharatiya Janata Party addressed to the Director General of Police, West Bengal.
It also appears from the supplementary affidavit used by the appellant/writ petitioner pursuant to the leave granted by the learned Single Judge on 5th December, 2018 that the appellant/writ petitioner had written letters to the Superintendent of Police, Dakshin Dinajpur (on 29th November, 2018), the 8 Superintendent of Police, Jhargram (on 3rd December, 2018), Commissioner of Police, Asansol - Durgapur Police Commissionerate (on 14th November, 2018), Commissioner of Police, Siliguri Police Commissionerate (on 14th November, 2018), Commissioner of Police, Barrackpore Police Commissionerate (on 14th November, 2018), Commissioner of Police, Bidhannagar Police Commissionerate (on 14th November, 2018), Commissioner of Police, Chandannagar Police Commissionerate (on 14th November, 2018), Commissioner of Police, Howrah Police Commissionerate (on 14th November, 2018), and Commissioner of Police, Kolkata Police Commissionerate (on 14th November, 2018).
None of the letters referred above were replied to, at any stage. We also find from the records that a letter dated 28th November, 2018, was issued by the Additional Chief Secretary to the Governor of West Bengal - on the instruction of the Hon'ble Governor - to the Chief Secretary, forwarding two representations received from the appellant/writ petitioner by the Hon'ble Governor regarding the three "Yatras". The fate of this letter is also not known.
Consequently, the appellant/writ petitioner filed the W. P. 24263 (W) of 2018 on 30th November, 2018, praying for the following principal reliefs:-
"(A) A Writ in the nature of Mandamus directing the respondent authorities as follows:-9
i) to direct the respondents to grant co-
operation/permission/administrative support to organise three yatras in terms of the representations so that he can organise the yatras peacefully;
ii) to direct the Respondents to act in aid of the yatras schedule on 7th, 9th and 14th December, 2018 so that the petitioner can exercise its democratic right as per Constitution of India.
(B) A Writ in the nature of Certiorari be issued directing the Respondents to transmit all papers and documents relating to this case so that on perusal of the same, a conscionable justice may be administered thereon;"
The interim relief sought for by the appellant/writ petitioner is contained under prayer (D), which reads as follows:-
"(D) An order of Mandatory injunction be passed directing the respondent authorities to give permission/co-operation/ administrative support to the petitioner to hold the three yatras as per representation made before them;"
After the instant writ petition was filed, the learned Single Judge initially took up the writ petition for consideration on 5th December, 2018 (i.e. day before yesterday) and passed the following order:-
"Let the affidavit of service and the supplementary affidavit filed by the petitioner be kept on record.
Mr. Mitra, learned senior advocate appearing for the petitioner submits that the Bharatiya Janata Party had decided to organise three Yatras under the banner of 'Ganatantra Bachao Yatra' on and from 7th of December, 2018, which will cover 42 Lok Sabha constituencies of West Bengal. Accordingly, representations were submitted to the concerned authorities detailing the time scheduled and the routes and seeking assistance to organise the said Yatras peacefully. The first of such 10 representation was submitted on 14th November, 2018 and thereafter reminders were issued but no opportunity of hearing was granted and no decision was communicated by the authorities.
Mr. Datta, learned Advocate General appearing for the State respondents submits that the petitioner had not approached the competent authority and as such, the allegation of in action as levelled is not sustainable. However, he submits that the petitioner's prayer would be considered by the competent authority and a decision would be taken and he would be apprising this Court about such decision tomorrow.
In view thereof, list the matter for further consideration in the daily supplementary list of this Court at 10.30 a.m. on 06.12.2018"
Thereafter, on 6th December, 2018, the learned Single Judge proceeded to pass the impugned order which is the subject matter of challenge in the present proceeding.
To avoid prolixity, we are not setting out in details the entire text of the order passed by the learned Single Judge, relevant portion whereof has been quoted hereinbefore at the outset. Even if one goes through the operative portion of the order - which is ad interim in nature - it will be clear that keeping the writ petition for further consideration on 9th January, 2019, will virtually render the writ petition infructuous or merely an academic exercise. The reason is, if one looks at the proposed programme of the appellant/writ petitioner for holding the "Yatras" in three segments as per their revised itinerary, it will clearly show that more than three-fourths of the proposed scheduled dates for holding of the "Yatras" would be over by then.
11
In the facts of the instant case, the learned Single Judge ought to have taken note of a glaring and uncontroverted fact and that is, between 29th October, 2018 and 23rd November, 2018, or, even till date, neither the Director General of Police nor the Principal Secretary, Department of Home and Hill Affairs (also referred to as the Home Secretary) or for that matter, the Chief Secretary, Government of West Bengal, ever responded to any of the communication made by the Bharatiya Janata Party, West Bengal, being the appellant/writ petitioner. It would have been a different matter altogether had there been any response or any action from anyone of them. However, we need not go into this issue at this stage since we are confining ourselves only to the question of grant of ad interim relief, as the present appeal is an Intra-Court Mandamus Appeal.
The second aspect of the matter is whether the learned Single Judge could have passed an order of mandatory injunction against the appellant/writ petitioner in its own writ petition. There was no plausible or justifiable reason for the leaned Single Judge to make the observation, "Needless to observe that the rally shall stand deferred till the next date of hearing" after holding, "...... I am of the opinion that the reliefs, as prayed for in the present writ petition, cannot be granted at this stage." This observation, which is in the nature of a mandatory injunction upon the appellant/writ petitioner - in its own writ petition -was wholly unnecessary in the facts of the instant case. The learned Single Judge - in 12 the facts of the instant case - was well within his right to refuse any ad interim relief to the writ petitioner as prayed for. This refusal would have been enough. However, by proceeding further to injunct the writ petitioner in its own writ petition - especially after opining that the reliefs as prayed for in the present writ petition could not be granted "at this stage" - the learned Single Judge has proceeded to fall into a grave error of law. This mandatory injunction upon the writ petitioner in its own writ petition in the absence of any pleadings to that effect, could not have been passed.
We find that the three "Yatras" are scheduled to cover all forty-two (42) Lok Sabha constituencies in the State and are not restricted to any particular district or districts.
The letter of the District Magistrate, Cooch Behar, dated 5th December, 2018 addressed to the Additional Chief Secretary to the Government of West Bengal, Department of Home and Hills Affairs, which was taken notice of by the learned Single Judge states, inter alia, - "Mr. Amit Shah, an M.P. of BJP, Mr. S. S. Ahluwalia, MOS, Electronic & IT, GoI, Mr. Biplab Deb, Chief Minister of Tripura, Mr. Sarbananda Sonewal, Chief Minister of Assam, Mr. Kailash Vijaybarjiya, Mr. Mukul Roy, Mr. Dilip Ghosh, MLA & Ms. Roopa Ganguly, M.P. will hold a meeting and Rath Yatra on 7th December, 2018 without permission at or nearby Cooch Behar and such exercise of them and their associates may be backed by communal forces."
13
The letter of the Superintendent of Police, DIB, Cooch Behar, also dated 5th December, 2018, addressed to the Director General & Inspector General of Police (West Bengal), which was also taken notice of by the learned Single Judge states, inter alia, "The current programme of BJP has generated huge apprehension and scare amongst the common people and it is apprehend [sic; apprehended] that conduct of such a programme will further worsen the situation and the communal climate."
The above two letters were written by district level officials to their respective higher authorities and as such we are of the view that all the issues raised - which may have serious consequences all over the State - are required to be considered by the highest officials of the State, instead of the authorities as directed by the learned Single Judge.
We also find that the Additional Chief Secretary to the Hon'ble Governor had forwarded the two representations of the appellant/writ petitioner to the Chief Secretary of the State, the fate of which was not taken into consideration by the learned Single Judge.
In such circumstances as stated above, we propose to modify the order dated 6th December, 2018, passed by the learned Single Judge as follows:-
The Chief Secretary, Government of West Bengal, the Principal Secretary, Department of Home & Hills Affairs and the Director General of 14 Police, Government of West Bengal, shall meet the authorised representatives of the appellant/writ petitioner (not exceeding three) latest by next Wednesday (12.12.2018) and take a decision in the matter supported with cogent reasons and communicate the same to the appellant/writ petitioner by next Friday (14.12.2018).
Since no affidavits have been called for, allegations made in the application for stay are deemed to be not admitted by the respondents.
The appeal and the application for stay stand disposed of accordingly.
Urgent photostat certified copy of this judgment, if applied for, be given to the learned advocates for the parties.
(Biswanath Somadder, J.) I agree.
(Arindam Mukherjee, J.) PP/pg/sm/asraf .