Gujarat High Court
Daxin Gujarat Murtikar Sangathan vs State Of Gujarat & on 31 August, 2016
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SCA/14393/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14393 of 2016
With
SPECIAL CIVIL APPLICATION NO. 14394 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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DAXIN GUJARAT MURTIKAR SANGATHAN....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
SPECIAL CIVIL APPLICATION NO. 14393 of 2016
MR BC DAVE, ADVOCATE with MR BHUSHAN OZA for the Petitioner(s) No. 1
MR KUNAL B DAVE, ADVOCATE for the Petitioner(s) No. 1
Ms. MANISHA LAVKUMAR SHAH, GOVERNMENT PLEADER with MR AMIT
BAROT, AGP for the Respondent(s) No. 1
SPECIAL CIVIL APPLICATION NO. 14394 of 2016
MR BC DAVE, ADVOCATE with MR BHUSHAN OZA for the Petitioner(s) No. 1
MR KUNAL B DAVE, ADVOCATE for the Petitioner(s) No. 1
Ms. MANISHA LAVKUMAR SHAH, GOVERNMENT PLEADER with MR VR
JANI, AGP, for the Respondent(s) No. 1
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C/SCA/14393/2016 JUDGMENT
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 31/08/2016
ORAL JUDGMENT
Both the present petitions are filed by the petitioners under Articles 14, 19, 21 and 226 of the Constitution of India as well as for challenging the notifications under sec. 144 of the Criminal Procedure Code dated 21.6.2016 and 20.7.2016, on the grounds stated in the memo of petitions.
2. Heard learned counsel Shri BC Dave as well as learned counsel Shri Bhushan Oza appearing for the petitioners and learned Government Pleader Ms. Manisha Lavkumar Shah appearing with learned AGP Shri Amit Barot as well as learned AGP Shri VR Jani.
3. Learned counsel Shri Dave referred to the notification and submitted that the Jt. Commissioner of Police has issued the notification which is exceeding the jurisdiction and the power. He emphasised that the provisions of sec. 144 of CrPC for issuance of such notification is for 2 months whereas it is for more than 2 months exceeding the duration. He also submitted that the right of the petitioners is also violated and successive issuance of such notification may not be permitted. In support of his submission has referred to and relied upon the observations made by Hon'ble Apex Court in a judgment reported in (1983) 4 SCC 522 in the case of Acharya Jagdishwaranand Avadhuta and ors. v. Commissioner of Police, Calcutta and anr. He also submitted that it affects the rights of the petitioner to carry on trade or business as the making of such idols with plaster of paris (PoP) or clay making it limited Page 2 of 10 HC-NIC Page 2 of 10 Created On Fri Sep 02 03:15:26 IST 2016 C/SCA/14393/2016 JUDGMENT qua the height cannot be prohibited or restricted. He submitted that if such restrictions are imposed, it could affect their fundamental right and he also referred to the judgment of the co-ordinate bench of the High Court (Coram: Abhilasha Kumari, J.) in Special Civil Application No. 6750 of 2011 dated 25.8.2011 and referred to the observations made therein and submitted that the present petition may be allowed.
4. Learned counsel Shri Bhushan Oza supported the submissions made by learned counsel Shri Dave and submitted that the right to life under Art. 21 gives the right to make such idols and earn their livelihood for which there cannot be any restriction as to the manner or the height of such idols. He submitted that both the material to be used like POP or clay cannot be restricted or prohibited and also the height of the idols cannot be restricted. He further submitted that it is also offending Art. 14 inasmuch as if it is made in certain areas there is a notification under sec. 144 whereas in another area there is no such restriction and therefore it affects the right of the petitioners who are making such idols and have a right to transport and sell elsewhere also where there is no such prohibition or restriction by any such notification issued under sec. 144 of CrPC. Learned counsel Shri Oza referred to the background of facts and submitted that any such restrictions affect the fundamental right to carry on trade or business. Lastly learned counsel Shri Oza has stated that at least for this year where they have started making such idols since long, if that notification is implemented it may adversely affect them. They have also voiced their apprehension about the action that may be taken under sec. 188 of CrPC. He has also stated that this is without prejudice to the rights of the petitioners to challenge the fresh notification which has been issued.
5. Learned Government Pleader Ms. Shah referred to the papers as well as the affidavit-in-reply filed by the Collector. She submitted that Page 3 of 10 HC-NIC Page 3 of 10 Created On Fri Sep 02 03:15:26 IST 2016 C/SCA/14393/2016 JUDGMENT the submissions with regard to violation of fundamental right is misconceived and submitted that it is always subject to reasonable restrictions. She submitted that there is no total prohibition or ban either on use of POP or sale and marketing of such idols. However, she submitted that depending upon the exigencies in respective districts such notifications are issued and therefore there cannot be any universal application. Learned Government Pleader Ms. Shah has also submitted that the right of the petitioner has to be considered vis-a-vis public interest or the right of the society as a whole. She submitted that about 40,000 such idols of POP are immersed in the water and therefore the Corporation has been making arrangement of artificial water bodies where the immersion could take place which in turn will be collected and taken to the high sea. She pointedly referred to the observations made in the order of the National Green Tribunal, Bhopal Bench, on this issue directing the State Governments to issue some guidelines. She submitted that it has been specifically observed with regard to the possible damage which has been considered. Similarly, learned Government Pleader Ms. Shah referred to the observations made in the order of the National Green Tribunal produced at Annexure-R/1 to the affidavit-in-reply in Special Civil Application No. 14394 of 2016. She has emphasized the observations made in para 49 which reads as under:
"We expect that the Pollution Control Boards or the State Government would also decide and set out norms/benchmark for the heights of Pop idols which are to be ultimately immersed, in accordance with the nature of the immersion places, even though PoP is not found to be an "environment pollutant". For example, the idols to be immersed into sea water may not be of more than 8- 10 ft. height and the idols to be immersed in ponds may not be of more than 5 ft. height, so on and so forth. So also, the local bodies may be required to create artificial ponds, in the absence of appropriate water resources like ponds, lakes, etc. for temporary purpose of immersion of PoP idols."Page 4 of 10
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6. As regards the authority or jurisdiction of the Commissioner, she has referred to the notification at Annexure R/2 dated 8.11.1982 and submitted that the Commissioner of Police or Jt. Commissioner of Police or Superintendent of Police are empowered by this notification to exercise the powers under sec. 144 of CrPC. She submitted that on the aspect of duration also depending upon the exigencies the notification has been issued afresh for which there cannot be any objection. Learned Government Pleader Ms. Shah, therefore, submitted that the present petitions may not be entertained.
7. In rejoinder, learned counsel Shri Oza submitted that let there be some kind of either statutory provision in the form of law or uniform guidelines and till then the exercise of power under sec. 144 is not justified. He submitted that at lest for the present year where the petitioners have already made the idols may not have to suffer and some suitable observations/directions may be given.
8. In view of these rival submissions, it is required to be considered whether the present petitions deserve consideration.
9. The first aspect as regards the jurisdiction or authority of the Commissioner of Police or Jt. Commissioner of Police to issue such notification is squarely answered in view of the notification dated 8.11.1982 produced with the affidavit-in-reply filed by the State.
10. Another facet of the submission which has been emphasised referring to the right to earn livelihood under Art. 21 and Art 14 require a closer scrutiny. In fact, such submissions are thoroughly misconceived inasmuch as there is no prohibition, restriction on their right to earn livelihood while making such idols or selling or transporting them. Again, there cannot be any fundamental right to make idols or a thing of a Page 5 of 10 HC-NIC Page 5 of 10 Created On Fri Sep 02 03:15:26 IST 2016 C/SCA/14393/2016 JUDGMENT particular material only of a particular size or height inasmuch as there could be a reasonable restriction. It is well accepted that the right under Art. 19 of freedom of trade or business cannot be claimed in absolute terms as it is always subject to reasonable restrictions as envisaged while framing the Constitution. Further, there is no restriction or prohibition to earn livelihood and if with the passage of time such right is required to be regulated it would also not offend Art. 19 or 21. An example can be cited with reference to the right to earn livelihood by hawking which is also considered vis-a-vis the right of the public and public nuisance and it has been well accepted that it has to be subject to reasonable restrictions while accepting the right of such people to earn their livelihood by street vending or hawking.
11. Therefore, such submissions which have been made in absolute terms claiming the right that the idols of PoP could be made or it can be of a particular height which is not restricted in certain areas and it is restricted in certain areas by issuance of such notifications under sec. 114 of CrPC and therefore it violates Art. 14 is throughly misconceived. In fact, it depends upon the exigencies as well as the relevant factors like nuisance, possible damage to natural water bodies and therefore there is no restriction or prohibition. All that is provided is that the idols of PoP could be immersed in a particular place created for that purpose by the Corporation which in turn will collect such debris or remains of such immersion and carry to high sea or other place so that it is disposed of. Again, for that the Corporation or the authority has to create such artificial water bodies which may have some limited area and therefore depending upon the technical aspects the restriction may have been placed on the size of the idols. Further, as stated in the affidavit-in-reply, there may be high tension wire passing on the road and when such big idols are being transported it will not be in public interest and therefore considering the aspect of public safety, public interest and/or public Page 6 of 10 HC-NIC Page 6 of 10 Created On Fri Sep 02 03:15:26 IST 2016 C/SCA/14393/2016 JUDGMENT nuisance necessary guidelines have been issued by the National Green Tribunal which have been referred to and in fact it is on the basis of such directions issued the State authorities have taken positive steps in public interest and no fault could be found. In fact, it is a matter of change of mindset or attitude which is required to be considered that when the judicial or quasi-judicial authority having examined the relevant aspects have issued broad guidelines and also issued directions for the steps or measures to be taken by the authority in public interest the same is questioned on issues like fundamental right or unreasonable restrictions. It has been observed, "43. Incidentally, we may mention here that immersion of idols must not diminish obeisance for the Gods/Goddesses. One who has seen mutilated PoP idols resurging on surface of the sea water, after the high-tide is over, will not forget the pathetic sight and plight of the PoP idols, which were at the centre of worshipping/Pandals before a few hours prior to the immersion thereof. The sight of such mutilated idols, some of them having broken hands, some of them having partly beheaded bodies, some of them having loss of legs, etc. give serious jolt to the religious sentiments of the prudent spectators.
We do not see any reason why the idols of Gods/Goddesses should not have sanctity and due respect even after the immersion. We mean to say, the after\math of the immersion should not result into colossal disrespect to the idols of Gods and Goddesses on account of adoption of improper immersion process. One cannot be oblivious of the fact that when head of a soldier is found chopped at the hands of the enemy, the public sentiments are seriously hurt. And, it is a justified reaction as well as most natural reaction of the citizens. It does not stand to reason, therefore, that religious sentiments also will not be hurt to see the beheaded or otherwise mutilated idols of Gods/Goddesses which come on surface of the water at the shore of the sea, ponds or other water bodies as a result of backlash or reverse water waives. Needless to say, therefore, that it would be in the interest of the public to avoid the hurting of religious sentiments by regulating immersion process and use of the PoP for making/manufacturing of idols of Gods/Goddesses.
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47. We also direct the said PCBs to examine whether the immersion of PoP made idols, in fact, cause nuisance, though the PoP by itself may not be a water pollutant. After conducting such scientific study by appointing an Expert Committee, the Pollution Control Board or the Central Government or the State Government may issue appropriate directions in accordance with the powers available under section 33-A of the Water Act, in order to control water pollution or to avoid the nuisance caused on account of immersion of the PoP made idols."
12. Therefore, as there cannot be any fundamental right in absolute terms as sought to be canvassed, the submissions are misconceived. In fact, it is not a case of total prohibition or restriction but rather a matter of regulating such rights. It is well-settled that such fundamental rights are also to be considered and balanced with other claims or public interest. Therefore, when there are conflicting or competing rights or claims made by an individual or a group vis-a-vis public interest or the society as a whole, balance has to be maintained by suitable regulations so that, on one hand, the rights are not taken away and at the same time the interest of the society or pubic interest is also taken care of.
13. Again, what can be said to be reasonable restriction would depend upon the facts of each case as well as the situation. The word 'reasonable restriction' cannot be have any universal application but at the same time it will have a reference to the perception of a reasonable man with his approach towards an issue. In the facts of the case when such aspects have been considered pursuant to the order of the National Green Tribunal at Annexure-R/1 to the affidavit in reply filed by the State in SCA No. 14394 of 2016, it cannot be questioned.
14. It is in this background the restriction or issuance of notification under sec. 144 of CrPC cannot be said to be without jurisdiction or authority. The reliance placed on the judgment of the Hon'ble Apex Page 8 of 10 HC-NIC Page 8 of 10 Created On Fri Sep 02 03:15:26 IST 2016 C/SCA/14393/2016 JUDGMENT Court in the case of Acharya Jagdishwaranand Avadhuta and ors. (supra) is also required to be read in background of the facts stated therein as it was with regard to issuance of such notification from 1979 to 1982 prohibiting the procession which may have some bearing on a particular right or observance with regard to the tenets of a particular religion. It is in this background the observations have been made. Therefore, it has to be read in its entirely in the context of the facts to see that it will not have any bearing.
15. The submission made by learned counsel Shri Oza that there is a judgment of the co-ordinate Bench (Coram: Abhilasha Kumari, J.) in SCA No. 6750 of 2011 it is required to be stated that observation has been made with regard to prohibition on the use of PoP but it is not total prohibition as stated by learned Government Pleader.
16. In any view of the matter, the same judgment was carried by way of LPA No. 1305 of 2011 by the State and the Hon'ble Division Bench (Coram: Bhaskar Bhattacharya, CJ & JB Pardiwala, J.) vide order dated 14.9.2012 has clearly observed that they have not entered into the merits of the case as the appeal has become infructuous. However, it has been made clear, "...It is, however, made clear that disposal of this appeal will not stand in the way of the appellant in issuing fresh Notification in accordance with law, if it is found in the opinion of respondent No.2 that there is sufficient ground for exercise of power under Section 144 of the Criminal Procedure Code, or that an urgent situation had arisen, of a nature demanding immediate prevention by way of a speedy remedy, warranting a conclusion that use of Plaster of Paris in preparation of idols of Gods and Goddesses and their immersion in rivers and other water bodies had resulted in Page 9 of 10 HC-NIC Page 9 of 10 Created On Fri Sep 02 03:15:26 IST 2016 C/SCA/14393/2016 JUDGMENT imminent danger to human life, health and safety."
17. Thus, expressly the Hon'ble Division Bench has reserved such powers. At the cost of repetition it is stated that there is no total ban or prohibition either qua the use of material like PoP or making, selling, or transport of any such idols. All that is done is it is regulated for the purpose of immersion which in turn may have a bearing on the technical aspects like the size of the pond or artificial water body which may be created by the Corporation for immersion of idols made of PoP which in turn require some regulation with regard to the size which cannot be said to be arbitrary which would call for any interference by the court in exercise of the concept of judicial review.
18. Therefore, both the present petitions cannot be entertained and deserve to be dismissed and accordingly stand dismissed. Notice discharged.
(RAJESH H.SHUKLA, J.) FURTHER ORDER After the order was dictated after the hearing was concluded, learned counsel Shri Oza has requested for stay of the operation of the order which is declined.
(RAJESH H.SHUKLA, J.) (hn) Page 10 of 10 HC-NIC Page 10 of 10 Created On Fri Sep 02 03:15:26 IST 2016