Madras High Court
Vinayagar Chathurthi Madhyakuzhu vs S. Sudalaiyandi on 28 June, 2019
Author: S.Manikumar
Bench: S.Manikumar, Subramonium Prasad
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28/6/2019
CORAM
THE HON'BLE MR.JUSTICE S.MANIKUMAR
AND
THE HON'BLE MR.JUSTICE SUBRAMONIUM PRASAD
Review Application SR.No.74443 of 2019
W.M.P.No.17204 of 2019
Vinayagar Chathurthi Madhyakuzhu
rep. By its Trustee
Mr.C.Parameswaran
Chennai 600 002. ... Petitioner
Vs.
1. S. Sudalaiyandi
2. The Secretary to Government of Tamil Nadu
Public (Law and Order) Department
Fort St. George
Chennai 600 009.
3. The Director General of Police
Chennai 4.
4. The Commissioner of Police
Greater Chennai
Vepery
Chennai 600 007. ... Respondents
http://www.judis.nic.in
2
Review Petition filed under Order XLVII Rule 1 and 2 r/w. Section
114 of C.P.C., to review the order passed by this Court, in W.P.No.22911
of 2018, dated 5/9/2018.
For petitioner ... Mr.K.Sridhar
for Mr.G.Karthikeyan
For Respondents ... Mr.E.Manoharan
Additional Government Pleader
for R.R.3 to 4.
ORDER
(Order of the Court was made by S.Manikumar, J.) Vinayagar Chathurthi Madhakuzhu, review petitioner, has sought for review of the order, dated 5/9/2018, made in W.P.No.22911 of 2018.
2. Before adverting to the grounds of review, we deem it fit to consider few decisions of the Hon'ble Supreme Court, on the aspect of review,
(i) The Hon'ble Supreme Court in Lily Thomas v. Union of India, reported in 2000 (6) SCC 224, while considering the scope of review and the limitations imposed on its exercise under, Article 137 of the Constitution of India, held as follows:
http://www.judis.nic.in 3 “52. The dictionary meaning of the word "review" is the act of looking, offer, something again with a view to correction or improvement. It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakershi & Ors. Vs. Pradyunmansinghji Arjunsinghji [AIR (1970) SC 1273], held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice.
If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice nothing would preclude the Court from rectifying the error. This Court in S.Nagaraj & Ors.etc. Vs. State of Karnataka & Anr.etc. [1993 Supp. (4) SCC 595] held:
"19. Review literally and even judicially means re- examination or re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made.
http://www.judis.nic.in 4 Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice. In Raja Prithwi Chand Law Choudhury v. Sukhraj Rai [AIR 1941 FC 1] the Court observed that even though no rules had been framed permitting the highest Court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords. The Court approved the principle laid down by the Privy Council in Rajunder Narain Rae v. Bijai Govind Singh (1836) 1 Moo PC 117 that an order made by the Court was final and could not be altered:
'...nevertheless, if by misprision in embodying the judgments, by errors have been introduced, these Courts possess, by Common Law, the same power which the Courts of record and statute have of rectifying the mistakes which have crept in.... The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have however gone a step further, and have corrected mistakes introduced through inadvertence in the http://www.judis.nic.in 5 details of judgments; or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies.” Basis for exercise of the power was stated in the same decision as under:
'It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of last resort, where by some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard.' Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by this Court was specifically provided by Article 137 of the Constitution. Our Constitution- makers who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Article 137 of the Constitution. And clause (c) of Article 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order XL had been framed empowering this Court to review an order in civil proceedings on grounds analogous to http://www.judis.nic.in 6 Order XLVII Rule 1 of the Civil Procedure Code. The expression, for any other sufficient reason in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order XL Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of process of Court. The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice."
The mere fact that two views on the same subject are possible is no ground to review the earlier judgment passed by a Bench of the same strength.
53. This Court in M/s.Northern India Caterers (India) Ltd. Vs. Lt.Governor of Delhi [AIR 1980 SC 674] considered the powers of this Court under Article 137 of the Constitution read with Order 47 Rule 1 CPC and Order 40 Rule 1 of the Supreme Court Rules and held:
"It is well settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling http://www.judis.nic.in 7 character make it necessary to do so. Sajjan Singh v. State of Rajasthan, (1965) 1 SCR 933 at p.948. For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing. G.L. Gupta v. D.N. Mehta, (1971) 3 SCR 748 at p.760. The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice. O.N.Mohindroo v. Dist. Judge, Delhi, (1971) 2 SCR 11 at p.27. Power to review its judgments has been conferred on the Supreme Court by Art.137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made under Art.145. In a civil proceeding, an application for review is entertained only on a ground mentioned in O. XLVII, Rule 1 of the Code of Civil Procedure and in a criminal proceeding on the ground of an error apparent on the face of the record. (Order XL, R.1, Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. Chandra Kanta v. Sheikh Habib (1975) 3 SCR 935."
54. Article 137 empowers this Court to review its http://www.judis.nic.in 8 judgments subject to the provisions of any law made by Parliament or any rules made under Article 145 of the Constitution. The Supreme Court Rules made in exercise of the powers under Article 145 of the Constitution prescribe that in civil cases, review lies on any of the ground specified in Order 47 Rule 1 of the Code of Civil Procedure which provides:
"Application for review of judgment -(1) Any person considering himself aggrieved -
(a) by a decree or order from which an appeal is allowed, but from which, no appeal has been preferred.
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order."
Under Order 40 Rule 1 of the Supreme Court Rules no review http://www.judis.nic.in 9 lies except on the ground of error apparent on the face of the record in criminal cases.” Though the reported judgment deals with the powers of the Hon'ble Supreme Court under Article 137 of the Constitution of India, principles enunciated apply to the exercise of powers by a High Court, when review of a judgment is sought for.
(ii) In Aribam Tuleshwar Sharma v. Aibam Pishak Sharma , reported in AIR 1979 SC 1047, the Hon'ble Supreme Court held that, "there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. http://www.judis.nic.in 10 But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate court to correct all manner of errors committed by the subordinate court."
(iii) In yet another decision in Rajindersingh v. Lt. Governor reported in 2005 (13) SCC 289, at paragraph Nos.15 and 16, the Hon'ble Supreme Court held that law is well settled that the power of judicial review of its own order by the High Court inheres in every Court of plenary jurisdiction to prevent miscarriage of justice. Power of judicial review extends to correct all errors to prevent miscarriage of justice. It was further held that Courts should not hesitate to review their own earlier order, when there exists an error on the face of record and the interest of justice so demands in appropriate cases.
(iv) In Union of India v. Kamal Sengupta reported in 2008 (8) SCC 612, the Hon'ble Supreme Court, at Paragraphs 14 and 15, held that, "14. At this stage it is apposite to observe that where a review is sought on the ground of discovery of new matter http://www.judis.nic.in 11 or evidence, such matter or evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justiciae. Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the Court earlier.
15. The term `mistake or error apparent' by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. To put it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the Court/Tribunal on a point of fact or law. In any case, while exercising the power of review, the concerned Court/Tribunal cannot sit in appeal over its judgment/decision."
http://www.judis.nic.in 12
(v) By referring to various decisions of the Hon'ble Apex Court as well as this Court, a Hon'ble Division Bench of this Court, in Infant Jesus Teacher Training vs. M.Manikandan (Rev.Appn.No.38 of 2010 in W.A.No.1145 of 2009, dated 31.08.2010), considered the scope of review and at paragraphs 14, 31 and 32, held as follows:-
“14.Considering the scope of review jurisdiction and holding "mistake or error apparent on the face of the record must be self evident and does not require a process of reasoning, in Parsion Devi v. Sumitri Devi, ((1997) 8 SCC
715), the Supreme Court has held as under:
"7. It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Thungabhadra Industries Ltd. v. Govt. of A.P.(AIR 1964 SC 1372 = (1964) 5 SCR 174) (SCR at p. 186) this Court opined:
“What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an error apparent on the face of the record. The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an error apparent on the face of the http://www.judis.nic.in 13 record, for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by error apparent. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error.” ......
31. The review proceeding is not by way of an appeal. Holding that the review must be confined to error apparent on the face of the record and re-appraisal of the entire evidence on record for finding the error would amount to exercise of Appellate Jurisdiction, which is not permissible, in Meera Bhanja v. Nirmala Kumari Choudhury, (1995) 1 SCC 170, the Supreme Court held as under:
"8. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1, CPC. In connection with the limitation of the powers of the court under Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma ((1979 (4) SCC 389), speaking through Chinnappa Reddy, J., has made the following pertinent observations: (SCC p. 390, para 3) “It is true as observed by this Court in Shivdeo Singh v. State of http://www.judis.nic.in 14 Punjab (AIR 1963 SC 1909), there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate court.
9. Now it is also to be kept in view that in the impugned judgment, the Division Bench of the High Court has clearly observed that they were entertaining the review petition only on the ground of error apparent on the face of the record and not on any other ground. So far as that aspect is concerned, it has to be kept in view that an error apparent http://www.judis.nic.in 15 on the face of record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions. We may usefully refer to the observations of this Court in the case of Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale (AIR 1960 SC 137), wherein, K.C. Das Gupta, J., speaking for the Court has made the following observations in connection with an error apparent on the face of the record:
“An error which has to be established by a long- drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ."
32. As held by the Hon'ble Supreme Court in AIR 1960 SC 137, (SATYANARAYAN LAXMINARAYAN HEGDEVS. MALLIKARJUN BHAVANAPPA TIRUMALE), the error must be apparent on the face of the record i.e., error must be self- evident and not which has to be established by a long drawn process of reasoning or which has to be searched. In other words, it must be an error and it must be one which must be http://www.judis.nic.in 16 manifest on the face of the record. Under the guise of review, parties are not entitled to rehearing of the same issue. An error can be said to be apparent on the face of the record only if such error is patent and can be located without any elaborate argument and without any scope for controversy with regard to such error, which stares at the face even by a mere glance of the judgement. The said position of law is reiterated in the decisions reported in (1997) 8 SCC 715, DELHI ADMINISTRATION VS. GURDIP SINGH UBAN AND OTHERS (2001(1) MLJ 45 (SC)), KERALA STATE ELECTRICITY BAORD VS. HITECH ELECTROTHERMICS HYDROPOWER LTD. AND OTHERS ((2005) 6 SCC 651), HARIDAS DAS VS. USHA RANI BANK (2006(4) SCC 78) and STATE OF WEST BENGAL AND OTHERS VS. KAMAL SENGUPTA ((2008) 8 SCC 612).”
3. Keeping in mind the well settled propositions of law, set out supra, we deem it further to consider the grounds of review.
4. Earlier, when one Mr.S.Sudalaiyandi, a practising Advocate, has filed W.P.No.22911 of 2018, to call for the records, in G.O.Ms.No.598, Public (Law & Order.B) Department, dated 9/8/2018, and to quash Condition Nos.1 (i), (iii) and 15, as unconstitutional and violative of http://www.judis.nic.in 17 Articles 14, 25 and 26 of the Constitution of India, after considering the rival submissions of the parties therein, we passed a detailed order. Paragraph Nos.18 to 24 of the order made in W.P.No.22911 of 2018 are reproduced hereunder:-
“18. Writ petitioner has no constitutional or statutory right, to infringe the rights of a land owner, without his written consent, to install any idol, much less vinayagar statue in front of his house. If there is infringement of a right to property, owner of the property, can always bring it to the notice of the law enforcing authority, or any other competent authority, as the case may be to protect his right to property. Apprehension of the petitioner that cases would be registered against a person, installing vinayakar idol, in front of his house, cannot be countenanced.
19. Certainly, if the land is a public land, it requires permission from the local bodies concerned / Highways or the department. Petitioner has no statutory or constitutional right, to install any idol, much less, vinayakar idol, without, No Objection Certificate from the local body / Highways or Department. For the abovesaid reasons, challenge to Guideline No.1(i) has to fail and accordingly, we hold that the same, as not, unconstitutional of Articles 25 and 26 of the Constitution http://www.judis.nic.in 18 of India.
20. Guideline No.1(iii), states that any organizer intending to install any idol should obtain a "No Objection Certificate from the Fire and Rescue Services", to the effect that temporary structures erected should adhere to the fire safety standard. Said aspect has been consider by the Hon'ble Division Bench.
21. As per Guideline No.15, Vinayakar Idols installed in the public places for worships should be taken out for immersion within five days from the date of installation.
22. In support of the above, petitioner has contended that in Maharastra, it is for a longer period.
Time period that idol must be installed in a particular day, and should be immersed within a specified period cannot be ascertained, in a writ. If the petitioner contends that a minimum of ten days is required, then, substantiating facts, circumstances and evidence, it could be done only in a suit. Nothing has been produced that the time period, is an indicative part of religion, for which, a protection order has to be granted.
23. State is under the obligation to maintain public peace, tranquility, regulation of traffic and control of pollution, which factors have been taken note of, while framing the guidelines, got installation of vinayakar idols, worship and immersion thereof. Condition No.15 of the http://www.judis.nic.in 19 guidelines cannot be said to be violative of Articles 25 & 26 of the Constitution of India. What is stated as regards period and practice in the State of Maharastra cannot be imported to State of Tamil Nadu. For illustration, Durga Pooja is celebrated for 8 days in West Bengal, and not in Tamil Nadu. There is no violation of Article 14 of the Constitution of India.
24. Contention of the learned counsel for the petitioner that Government Order viz., G.O.Ms.No.598, Public, (Law & Order.B) Department dated 09.08.2018, ought to have been issued, restricting only to the registered organisations / bodies, cannot be countenanced, for the reason that, any person, intending to install and immerse vinayakar idols thereof, can do so, and restricting the same only to the registered bodies, would be violative of Article 14 of the Constitution of India. Hon'ble Division Bench of this Court, in the common order made in W.P.Nos.21953 and 22240 of 2017 dated 23.08.2017, has already considered all the issues regarding, public peace, tranquility, public safety, regulation of traffic, safety measures, contemplated under the regulations of TANGEDCO and directed the authorities, to issue the guidelines.” http://www.judis.nic.in 20
5. Contending inter alia that W.P.No.22911 of 2018 has been filed, without making Hindu Munnani Organisation, as one of the respondents, in the said writ petition and proper facts have not been pleaded, Vinayagar Chathurthi Madhyakuzhu, represented by its Trustee, Mr.C.Parameswaran, has filed Review Petition Sr.No.74443 of 2019, seeking permission, to review the decision, made in W.P.No.22911 of 2018, on the following grounds:-
(i) The petitioner in W.P.No.22911 of 2018, has not properly placed the facts before this Court and it becomes necessary to place the entire facts and other legal issues before this Court, for better appreciation.
(ii) The grievance of the petitioner organisation is genuine and reasonable, needs to be considered by this Court, for proper appreciation of the issues.
(iii) Contention that Vinayagar idols are installed, on public streets and pavements, without any permission, flouting the pollution norms and causing traffic obstruction is far from truth. In fact, the police permission is obtained for each idol installed and also for the sound amplifiers and lights. If any idol is installed without police permission, the police will automatically remove the idol without even any notice.
(iv) Impugned order in W.P.No.22911 of 2018 that http://www.judis.nic.in 21 after obtaining police permission, another permission from Chennai Municipal Corporation is not practical. When the application has been given five days prior to the Police Commissioner and when the Police Commissioner grants permission, another application before the Municipal Corporation for permission will take another few days.
(v) In addition to the permission from Police Commissioner and City Municipal Corporation, clearance of the Fire Safety Authorities will take further time. This Court, ought to have considered that, clearance of fire safety authorities for thousands of idols which are temporary in nature could never be implemented for one simple reason, the fire services does not have enough man power.
(vi) Permission from pollution control authorities have to be obtained also cannot be implemented practically, since the pollution control board does not have enough man power to do that.
(vii) This Court ought to have seen that getting approval or permission from various authorities such as municipal corporation, police, fire service and pollution control authorities is certainly an indirect ban on celebration of Vinayagar Chathurthi as a public function, which is nothing but interfering with religious rights.
(viii). When there is no enough man power to give permission in the Corporation, fire service department and http://www.judis.nic.in 22 the pollution control board, getting permission from all these authorities can never happen.
(ix). The impugned order that, idols should be made of pure clay is also an impractical one, since necessary quantity of clay to make thousands of idols that too with huge heights is certainly not available. Further, the idols made of clay will start cracking within a day or two.
(x). The order that the height of idol should not exceed ten feet is certainly interfering with the religious rights providing under Article 25 of the Constitution of India.
6. In addition to the above, Mr.K.Sridhar, learned counsel for the review petitioner submitted that the review petitioner has not committed any political crime and that constitutional rights guaranteed under Article 25 and 26, cannot be curtailed. He further added that the review petitioner, ought to have been heard before the Government Order is issued. On the above grounds and submissions, learned counsel for the petitioner seeks review.
Heard Mr.K.Sridhar, learned counsel for the petitioner and perused the materials available on record.
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7. Petitioner, Vinayagar Chathurthi Madhyakuzhu, is a third party, to the writ petition, in W.P.No.22911 of 2018 and contending inter alia that the writ petitioner, Mr.S.Sudalaiyandi, in W.P.No.22911 of 2018 has not put forth full particulars of the difficulties faced in Vinayagar Chathurthi Madhyakuzhu and that the review petitioner ought to have been made a party therein, instant review petition is filed with W.M.P.No.17204 of 2019, to grant leave.
8. On the averments and submissions, the following issues have to be answered.
(i) Whether the review petitioner, ought to have been made as a party respondent, in W.P.No.22911 of 20918, filed as a public interest writ petition.
9. Issue is clearly covered by the principle of Dominus litis that the writ petitioner in W.P.No.22911 of 2018, has a right to choose against whom, he can file a writ petition. Order impugned in W.P.No.22911 of 2018, is G.O.Ms.No.598, Public (Law & Order-B) Department, dated 09.08.2018, issued by the Government of Tamil Nadu. The respondents in http://www.judis.nic.in 24 W.P.No.22911 of 2018, were the Secretary to the Government of Tamil Nadu, Public (Law and Order) Department, Chennai; Director General of Police, Chennai and Commissioner of Police, Greater Chennai, Vepery, Chennai, respondents 2 to 4, and in our view that they are necessary and proper parties to the lis. Review petitioner cannot as a matter of right, demand that they ought to have impleaded as one of the respondents in W.P.No.22911 of 2018. We deem it fit to consider few decisions,
(i) In Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar reported in AIR 1963 SC 786, Hon'ble Supreme Court held that a necessary party is one without whom, no order can be made effectively, a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.
(ii) In the case before us, the necessary party is the State Government and the officials of the Police Department are the necessary and proper parties to implement the Government Order. Thus, they have been rightly impleaded as party respondents and in the light of the http://www.judis.nic.in 25 decisions considered and the principles of law or the the principle of “Dominus Iitis”, we are of the view that there is no need to implead the writ petitioner.
(iii) In Management, Ratan Muni Jain Inter College and another v. III Additional Civil Judge, Agra reported in AIR 1995 All 7, the Hon'ble Allahabad High Court, while dealing with the principle of ‘Dominus Litis’, held as follows:
“The theory of dominus litus should not be over stretched in the matter of impleading of parties, because it is the duty of the Court to ensure that if for deciding the real matter in dispute, a person is necessary party, the Court can order such person to be impleaded. Merely because the Plaintiff does not choose to implead a person is not sufficient for rejection of an application for being impleaded. The provisions of Order 1 Rule 10 (2) Code of Civil Procedure are very wide and the powers of the Court are equally extensive. Even without an application to be impleaded as a party, the Court may, at any stage of the proceedings order that the name of any party, who ought to have been joined whether as Plaintiff or Defendant or whose presence before the Court may be necessary in order to enable the court effectually and completely to adjudicate http://www.judis.nic.in 26 upon and settle all the questions involved in the suit, be added.”
(iv) In Mumbai International Airport (P) Ltd., v. Regency Convention Centre and Hotels (P) Ltd., reported in 2010 (7) SCC 417, the Hon'ble Supreme Court held as follows:
“The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order 1 Rule 10(2) of the Code of Civil Procedure (“the Code”, for short), which provides for impleadment of proper or necessary parties.
10. In the light of the decisions considered, it is the prerogative of a party to file a petition, by arraying necessary and proper parties to the lis. Contention to the contra, made in this review petition is rejected.
http://www.judis.nic.in 27
11. The second issue raised by the learned counsel for the petitioner to be considered is that opportunity of hearing should have given to the review petitioner or for the matter any other person likely to be affected before issuing G.O.Ms.No.598, Public (Law & Order.B) Department, dated 9/8/2018. Entry I to List II (State List) of the 7th Schedule to the Constitution of India deals with public order. Public Order, public safety are the exclusive domain of the State Government and in the case on hand, the Director General of Police, State of Tamil Nadu and Commissioner of Police, Chennai City, are the authorities to enforce the Government Order. For enforcing the Government Order, they have to given free hand. There is no perversity, arbitrariness or unreasonableness, in the Government Order.
12. At this juncture, we are also deem it fit to consider few decisions on public order, public safety and the authority of government to pass appropriate orders, in exercise of the powers conferred, under Article 162 of the Constitution of India, which states about the extent of executive power of the State. Article 162 of the Constitution of India, reads thus:-
http://www.judis.nic.in 28 “Extent of executive power of State – Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws:
Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof.”
13. Reading of Entry I to List II (State List) of the 7th Schedule to the Constitution of India and Article 162 of the Constitution of India makes it abundantly clear that Government of Tamil Nadu is empowered to issue executive orders which shall extend to the matters with respect to which the legislature of the State has power to make laws.
14. In Hochtief Gammon v. State of Orissa [(1975) 2 SCC 649 :
1975 SCC (L&S) 362 : AIR 1975 SC 2226], the Hon'ble Mr. Justice A.Alagiriswami, writing the judgment for a three-Judge Bench of this Court, explained the limitation on the powers of the executive in the http://www.judis.nic.in 29 following words, “13. The executive have to reach their decisions by taking into account relevant considerations. They should not refuse to consider relevant matter nor should they take into account wholly irrelevant or extraneous consideration. They should not misdirect themselves on a point of law. Only such a decision will be lawful. The courts have power to see that the executive acts lawfully.”
15. In Secretary, A.P.D. Jain Pathshala v. Shivaji Bhagwat More reported in 2011 (13) SCC 99, the Hon'ble Supreme Court, at Paragraph 25, held thus, “25. Article 162 of the Constitution, no doubt, provides that subject to the provisions of the Constitution, the executive power of a State shall extend to the matters upon which the legislature of the State has competence to legislate and are not confined to matters over which legislation has been already passed. It is also well settled that so long as the State Government does not go against the provisions of the Constitution or any law, the width and amplitude of its executive power under Article 162 cannot be circumscribed; and if there is no enactment covering a particular aspect, the Government could carry on the http://www.judis.nic.in 30 administration by issuing administrative directions or instructions, until the legislature makes a law in that behalf.”
16. In Accountant General, State of Madhya Pradesh v. S.K.Dubey reported in 2012 (4) SCC 578, the Hon'ble Supreme Court, at Paragraph 31, held as follows:
"31. Subject to the provisions of the Constitution, the executive power of a State extends to the matters with respect to which the legislature of the State has power to make laws. This is what is provided in Article 162 of the Constitution. In other words, the executive power of the State executive is coextensive with that of the State Legislature.”
17. Though Mr.K.Sridhar, learned counsel for the review petitioner submitted that Government of Tamil Nadu, ought to have put the petitioner, on notice, before issuing G.O.Ms.No.598, Public (Law & Order.B) Department, dated 9/8/2018, and that the said G.O., infringes the right, under Article 25 and 26 of the Constitution of India. The said submission cannot be countenanced in law, for the reason that State is not obligated in the matter of public order, public safety, security, to http://www.judis.nic.in 31 issue notice, to any individual. State Government is empowered to issue orders, on the above subjects.
18. Police has a duty to maintain public order. Their powers cannot be curtailed, unless it is shown that exercise of such power is arbitrary, capricious and manifestly illegal, contrary to any statute or constitution of India, which on the facts and circumstances of this case, not substantiated by the review petitioner. In the light of the above discussion, we reject the contention of the learned counsel for the petitioner.
19. As regards the alleged violations of rights guaranteed, under Article 25 & 26 of the Constitution of India, we deem it fit to extract the provisions:-
“25. Freedom of conscience and free profession, practice and propagation of religion – (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
(2). Nothing in this article shall affect the operation of http://www.judis.nic.in 32 any existing law or prevent the State from making any law -
a. regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
b. providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
Explanation I – The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
Explanation II- In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.
26. Freedom to manage religious affairs – Subject to public order, morality and health, every religious denomination or any section thereof shall have the right -
a. to establish and maintain institutions for religious and charitable purposes;
b. to manage its own affairs in matters of religion; c. to own and acquire movable and immovable property; and d. to administer such property in accordance with law.” http://www.judis.nic.in 33
20. Contention that there is a violation of constitutional rights stated supra, has already been addressed, in our decision, made in W.P.No.22911 of 2018, dated 5/9/2018. Relevant portions are extracted supra.
21. Sum and substance of the petitioner in the review petition is the difficulties expressed in getting permission from various authorities. Opening sentence of Article 25 of the Constitution of India is that freedom of conscience and free profession, practice and propagation of religion, is subject to public order and health to the other provisions of part III of the Constitution of India. Thus, rights guaranteed under Article 25 of the Constitution of India, is subject to public order.
23. In the case on hand, rights exercised guaranteed Article 25 of the Constitution, is not wholly prohibited. Exercise of rights in the matter of taking idols and immersion is only regulated, which the Government is empowered to do so. Religious practice is not prohibited. Difficulties expressed in getting permission, cannot be a reason to quash http://www.judis.nic.in 34 G.O.Ms.No.598, Public (Law & Order.B) Department, dated 9/8/2018.
24. Let us consider the meaning of "public order". Though in State of U.P and another vs. Sanjai Pratap Gupta Alias Pappu and others, reported in (2004) 8 SCC 591, the Hon'ble Supreme Court dealt with a case of a detenue, as to whether, his activities amounted to prejudicial to public order, warranting detention, the Hon'ble Apex Court explained the difference of law and order and public order. At paragraph Nos.7 to 13, the Hon'ble Supreme Court, observed as hereunder:-
"7. The crucial issue is whether the activities of the detenu were prejudicial to public order. While the expression “law and order” is wider in scope inasmuch as contravention of law always affects order, “public order” has a narrower ambit, and public order could be affected by only such contravention which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of “law and order” and “public order” is one of degree and extent of the reach of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it http://www.judis.nic.in 35 prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of public, it could raise problem of law and order only. It is the length, magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps to distinguish it as an act affecting “public order” from that concerning “law and order”. The question to ask is: “Does it lead to disturbance of the current life of the community so as to amount to a disturbance of public order or does it affect merely an individual leaving the tranquillity of the society undisturbed?” This question has to be faced in every case on its facts.
8. “Public order” is what the French call “ordre publique” and is something more than ordinary maintenance of law and order. The test to be adopted in determining whether an act affects law and order or public order, is: does it lead to disturbance of the current life of the community so as to amount to disturbance of the public order or does it affect merely an individual leaving the tranquillity of the society undisturbed? (See Kanu Biswas v. State of W.B. [(1972) 3 SCC 831 : 1973 SCC (Cri) 16 : AIR 1972 SC 1656] )
9. “Public order” is synonymous with public safety and http://www.judis.nic.in 36 tranquillity: “it is the absence of disorder involving breaches of local significance in contradistinction to national upheavals, such as revolution, civil strife, war, affecting the security of the State” [Ed.: See Supdt., Central Prison v. Ram Manohar Lohia, (1960) 2 SCR 821 at p.
839.] . Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum, which includes at one end small disturbances and at the other the most serious and cataclysmic happenings. [See Ram Manohar Lohia (Dr.) v. State of Bihar [(1966) 1 SCR 709 : 1966 Cri LJ 608] .]
10. “Public order”, “law and order” and the “security of the State” fictionally draw three concentric circles, the largest representing law and order, the next representing public order and the smallest representing security of the State. Every infraction of law must necessarily affect order, but an act affecting law and order may not necessarily also affect public order. Likewise, an act may affect public order, but not necessarily the security of the State. The http://www.judis.nic.in 37 true test is not the kind, but the potentiality of the act in question. One act may affect only individuals while the other, though of a similar kind, may have such an impact that it would disturb the even tempo of the life of the community. This does not mean that there can be no overlapping, in the sense that an act cannot fall under two concepts at the same time. An act, for instance, affecting public order may have an impact that it would affect both public order and the security of the State. (See Kishori Mohan Bera v. State of W.B. [(1972) 3 SCC 845 : 1973 SCC (Cri) 30], Pushkar Mukherjee v. State of W.B. [(1969) 1 SCC 10 : (1969) 2 SCR 635], Arun Ghosh v. State of W.B. [(1970) 1 SCC 98 : 1970 SCC (Cri) 67 :
(1970) 3 SCR 288] and Nagendra Nath Mondal v. State of W.B. [(1972) 1 SCC 498 : 1972 SCC (Cri) 227] )
11. The distinction between “law and order” and “public order” has been pointed out succinctly in Arun Ghosh case [(1970) 1 SCC 98 : 1970 SCC (Cri) 67 : (1970) 3 SCR 288] . According to that decision the true distinction between the areas of “law and order” and “public order” is “one of degree and extent of the reach of the act in question upon society”. The Court pointed out that: (SCC p. 100, para 3) “An act by itself is not determinant of its own gravity. In its quality it may not differ from another but in its potentiality it may be very http://www.judis.nic.in 38 different.” (See Babul Mitra v. State of W.B. [(1973) 1 SCC 393 : 1973 SCC (Cri) 353] and Milan Banik v. State of W.B. [(1974) 4 SCC 504 : 1974 SCC (Cri) 540] )
12. The true distinction between the areas of law and order and public order lies not merely in the nature or quality of the act, but in the degree and extent of its reach upon society. Acts similar in nature, but committed in different contexts and circumstances, might cause different reactions. In one case it might affect specific individuals only, and therefore touches the problem of law and order only, while in another it might affect public order. The act by itself, therefore, is not determinant of its own gravity. In its quality it may not differ from other similar acts, but in its potentiality, that is, in its impact on society, it may be very different.
13. The two concepts have well-defined contours, it being well established that stray and unorganised crimes of theft and assault are not matters of public order since they do not tend to affect the even flow of public life.
Infractions of law are bound in some measure to lead to disorder but every infraction of law does not necessarily result in public disorder. Law and order represents the largest scale within which is the next circle representing public order and the smallest circle represents the security of State. “Law and order” comprehends disorders of less http://www.judis.nic.in 39 gravity than those affecting “public order” just as “public order” comprehends disorders of less gravity than those affecting “security of State”. (See Kuso Sah v. State of Bihar [(1974) 1 SCC 185 : 1974 SCC (Cri) 84], Harpreet Kaur v. State of Maharashtra [(1992) 2 SCC 177 : 1992 SCC (Cri) 370], T.K. Gopal v. State of Karnataka [(2000) 6 SCC 168 :
2000 SCC (Cri) 1037] and State of Maharashtra v. Mohd. Yakub [(1980) 3 SCC 57 : 1980 SCC (Cri) 513 : (1980) 2 SCR 1158].)"
25. In view of the above discussion and decisions of the Hon'ble Supreme Court, there is no error apparent on the face of the record and the decision made in W.P.No.22911 of 2018, does not call for any review. We are of the view that petitioner has not made out a prima case, to grant leave in W.M.P.No.17204 of 2019 and hence, the same is dismissed.
S.MANIKUMAR, J.
AND http://www.judis.nic.in 40 SUBRAMONIUM PRASAD, J.
mvs
26. Accordingly, Review Petition in SR.No.74443 of 2019 is rejected. No costs. Petition filed to dispense with the production of original order, made in W.P.No.22911 of 2018, dated 5/9/2018 is ordered.
(S.M.K.,J) (S.P.,J) 28th June 2019 mvs.
Index: Yes Internet: Yes To
1. The Secretary to Government of Tamil Nadu Public (Law and Order) Department Fort St. George Chennai 600 009.
2. The Director General of Police Chennai 4.
3. The Commissioner of Police Greater Chennai Vepery Chennai 600 007.
Review Application SR.No.74443 of 2019 W.M.P.No.17204 of 2019 http://www.judis.nic.in