Madras High Court
C.Muthukaruppan vs The Commissioner Of Police on 18 September, 2012
Author: S.Manikumar
Bench: S.Manikumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18/09/2012 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P(MD)No.12341 of 2012 and M.P.(MD).No.1 of 2012 C.Muthukaruppan .. Petitioner Vs. 1.The Commissioner of Police, Madurai City, Madurai. 2.The Assistant Commissioner of Police, Law and Order, Thallakulam Range, Madurai-2. 3.The Inspector of Police, Sellur Police Station, Madurai City. .. Respondents PRAYER Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus, calling for the records relating to the impugned order passed by the 2nd respondent in his proceedings in Na.Ka.No.02/VS/MLR/AC-TKM/L&)/2012, dated 15.09.2012, quash the same and direct the 2nd and 3rd respondents to give permission for placing the idol of Lord Ganesh on 19.09.2012 and permit to take procession with the idol on 21.09.2012. !For petitioner ... Mr.P.T.Ramesh Raja ^For respondents ... Mr.A.K.Baskaran Pandian Special Government Pleader :ORDER
Mr.A.K.Baskara Pandian, learned Special Government Pleader takes notice for the respondents.
2. By way of lunch motion, the petitioner has sought for interference of an order, dated 15.09.2012, passed by the Assistant Commissioner of Police, Law and Order, Tallakulam Range, Madurai, the second respondent herein, rejecting the request of the petitioner to keep Vinayagar idol at a specified place and to take out a procession with the said statue on 21.09.2012.
3.According to the petitioner, he is affiliated to a political party and doing public service. Taking note of Vinayagar Chathurthi festival, he had proposed to place a statue of Lord Ganesh in a land, belonging to one Mr.Mani on 18.09.2012, which is adjacent to Kamatchiamman Temple. He had also proposed to take out a procession with the statue on 21.09.2012 and as per his estimation, only 30 to 50 people would participate in the procession. Therefore, in order to get permission, the petitioner made a representation dated 06.09.2012 to the Inspector of Police, Sellur Police Station, Madurai City.
4. The petitioner has further submitted that while considering the request, the Inspector of Police, Sellur Police Station, Madurai City, third respondent, sought for details of the route of the proposed procession and directed the petitioner to furnish a list of persons, who would assist the police. According to the petitioner, the directions of the Inspector of Police, Sellur Police Station, Madurai City, were duly complied with, and that a list of persons to assist the Police, was also furnished on 07.09.2012. When the petitioner was expecting orders, granting permission for placing the statue and for the procession on 21.09.2012, vide impugned order dated 15.09.2012, the Assistant Commissioner of Police, Law and Order, Tallakulam Range, Madurai, has rejected the request of the petitioner, on the ground that if any permission is granted, it would cause inconvenience to the public and traffic, and that there is a possibility of law and order problem.
5. Assailing the correctness of the order of the Assistant Commissioner of Police, Law and Order, Tallakulam Range, Madurai, Mr.P.T.Ramesh Raja, learned counsel for the petitioner submitted that keeping an idol inside a compound land, owned by one Mr.Mani cannot be denied and that rejection of the request to take out a procession on the ground that there is a possibility of law and order problem, besides causing disturbance to the traffic and public, is purely out of imagination and without any basis.
6. According to the learned counsel for the petitioner, when the representation, dated 06.09.2012, was submitted, the Assistant Commissioner of Police, Law and Order, Tallakulam Range, Madurai, the second respondent, only asked the petitioner to furnish the details of the route, for the procession and further directed him to furnish a list containing ten names for rendering assistance to the Police, which has also been done, as early as on 07.09.2012 and on this context, he drew the attention of this Court to page No.3 of the typed set of papers, enclosed along with the writ petition. According to him, about 160 idols have been permitted to take out procession on a particular route and that the petitioner cannot be discriminated, on the ground that there is likelihood of law and order problem. Lastly, he submitted that when the application was made on 05.09.2012, the respondents have deliberately delayed the consideration of the petition and just few days before the festival, on 15.09.2012, the Assistant Commissioner of Police, Law and Order, Tallakulam Range, Madurai, has passed orders, denying the request to take out a procession. According to him, delay is willful.
7. Heard the learned counsel for the parties and perused the materials available on record.
8. Before adverting to the facts of this case, this Court deems it fit to consider a decision in Rama Muthuramalingam Vs. The Deputy Superintendent of Police, Tiruvarur District, reported in 2004(5) CTC 554, wherein the Hon'ble Division Bench of this Court, while explaining the scope of judicial review on administrative action and on the aspect of adjudicating an order pertaining to maintenance of law and order, at paragraph Nos.10 & 11 has held as follows;
10. Maintenance of law and order is ordinarily an executive function and it is ordinarily not proper for the judiciary to interfere in this matter. The administrative authorities have expertise in law and order problems through their long experience and training, and the Courts should not ordinarily interfere in such type of matters. The judiciary must therefore exercise self- restraint and not try to interfere with the functions of the executive or the legislature. By exercising self-restraint it only enhances its prestige.
11. This Court should not ordinarily interfere in administrative matters, since the administrative authorities are specialists in matters relating to the administration. The Court does not have the expertise in such matters, and ordinarily should leave such matters to the discretion of the administrative authorities. It is only in rare and exceptional cases, where the Wednesbury principle applies, that the Court should interfere, vide Tata Cellular v. Union of India , 1994 (6) SCC 651; Om Kumar v. Union of India , 2001 (2) SCC 386, etc.
9. It is also worthwhile to extract the judgments considered by the Hon'ble Division Bench, which runs from paragraph Nos.12 to 14 as follows;
"12. In Haryana Financial Corporation and another v. Mis Jagdamba Oil Mills and another , 2002 (1) CTC 503 : 2002 (1) UPLBEC 937 ( vide paragraph 10) the Supreme Court observed:
"If the High Court cannot sit as an appellate authority over the decisions and orders of quasi-judicial authorities, it follows equally that it cannot do so in the case of administrative authorities. In the matter of administrative action, it is well known that more than one choice is available to the administrative authorities. They have a certain amount of discretion available to them. They have a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred, ( per Lord Diplock in Secretary of State for Education and Science v. Metropolitan Borough Counsel of Tameside , 1977 AC 1014). The Court cannot substitute its judgment for the judgment of administrative authorities in such cases. Only when the action of the administrative authority is so unfair or unreasonable that no reasonable person would have taken that action, the Court can intervene. To quote the classic passage from the judgment of Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation , 1947 (2) ALL ER 680:
"It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with the discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters, which he is bound to consider. He must exclude from his consideration matters, which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably.' Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority.
13. In Tata Cellular v. Union of India , AIR 1996 SC 11 ( vide paragraph
113) the Supreme Court observed:
(1) The modern trend points to judicial restraint in administrative action. (2) The Court does not sit as a Court of appeal over administrative decisions but merely reviews the manner in which the decision was made. (3) The Court does not have the expertise to correct an administrative decision.
If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise, which itself may be fallible. In the same decision the Supreme Court observed that judicial review is concerned with reviewing not the merits of the decision but the decision making process (the Wednesbury principle). See also Pramod Kumar Misra v. Indian Oil Corporation , 2002 (4) AWC 3221, State of Kerala v. Joseph Antony , 1994 (1) SCC 301, etc.
14. As Lord Denning observed:
"This power to overturn executive decisions must be exercised very carefully, because you have got to remember that the executive and the local authorities have their very own responsibilities and they have the right to make decisions. The Courts should be very wary about interfering and only interfere in extreme cases, that is, cases where the Court is sure they have gone wrong in law or they have been utterly unreasonable. Otherwise you would get a conflict between the Courts and the Government and the authorities, which would be most undesirable. The Courts must act very warily in this matter. (See 'Judging the World' by Garry Sturgess and Philip Chubb).
In our opinion judges must maintain judicial self-restraint while exercising the powers of judicial review of administrative or legislative decisions."
10. On the aspect as to whether, who would be the competent authority to decide on matters relating to public order, the Hon'ble Division Bench, at paragraph Nos.28 to 34 has held as follows;
"28. The question arises, who is to determine the matter relating to Public Order?
The answer is given in Entry 1 to List II (State List) of the 7th Schedule to the Constitution, which states that public order is a matter within the jurisdiction of the State. Article 162 of the Constitution states:
"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."
29. It is thus evident that public order is a matter within the domain of the State Legislature and the State Executive. That being so, it is not proper for the Judiciary to interfere in matters relating to public order, unless there is violation of some constitutional or statutory provision. There are various considerations for the administration in this matter and the Court should not ordinarily interfere with administrative decisions in this connection. It must be remembered that certain matters are by their very nature such as had better be left to the experts in the field instead of the Courts themselves seeking to substitute their own views and perceptions as to what is the best way to deal with the situation. In the present case, this Court should not interfere in a matter which relates to the administration, which is in the best position to know about the public order. What public order problem would arise if speeches are permitted or prohibited in connection with the arrest of Sankarachariyar and other incidental matters? How should the problem be tackled? It is the administration that best knows these problems and their solution. This Court should therefore exercise self-restraint and should not embarrass the administrative authorities in this connection.
30. Before parting with this case we would like to briefly comment on the subject of judicial restraint while reviewing statutes or administrative decisions. We feel justified in making these comments because the times which this country is passing through requires clarification of the role of the judiciary vis-a-vis the executive and the legislature.
31. Under our Constitution the Judiciary, the Legislature and the Executive have their own broad spheres of operation. It is important that these organs do not encroach on each others proper spheres and confine themselves to their own, otherwise there will always be danger of a reaction. Of the three organs of the State, it is only the judiciary which has the right to determine the limits of jurisdiction of all these three organs. This great power must therefore be exercised by the judiciary with the utmost humility and self- restraint.
32. The judiciary must therefore exercise self-restraint and eschew the temptation to act as a super legislature or a Court of Appeal sitting over the decisions of the administrative authorities. By exercising self-restraint it will enhance its own respect and prestige. Of course, if a decision clearly violates some provision of the law or Constitution or is shockingly arbitrary in the Wednesbury sense, it can be struck down, but otherwise it is not for this Court to sit in appeal over the wisdom of the legislature or the executive. The Court may feel that a better decision could have been taken or some other course of action could have been adopted by the legislature or executive, but on this ground it cannot strike down the law or the administrative decision. The legislature and the executive authorities in their wisdom are free to choose different methods of solving a problem and the Court cannot say that this or that method should have been adopted. As Mr. Justice Cardozo of the U.S. Supreme Court observed in Anderson v. Wilson , 289 U.S. 20:
"We do not pause to consider whether a statute differently conceived and framed would yield results more consonant with fairness and reason. We take this statute as we find it."
In our opinion the same principle will apply to administrative decisions also.
33. It must never be forgotten that the administrative authorities have wide experience in administrative matters. No Court should therefore strike down an administrative decision solely because it is perceived by it to be unwise. A Judge cannot act on the belief that he knows better than the executive on administrative matters, because he can never be justifiably certain that he is right. Judicial humility should therefore prevail over judicial activism in this respect.
34. Judicial restraint is consistent with and complementary to the balance of power among the three independent branches of the State. It accomplishes this in two ways. First, judicial restraint not only recognizes the equality of the other two branches with the judiciary, it also fosters that equality by minimizing interbranch interference by the judiciary. In this analysis, judicial restraint may also be called judicial respect, that is, respect by the judiciary for the other coequal branches. In contrast, judicial activisms unpredictable results make the judiciary a moving target and thus decreases the ability to maintain equality with the co-branches. Restraint stabilizes the judiciary so that it may better function in a system of interbranch equality."
11. In the light of the principles of law enunciated by the Hon'ble Division Bench, let me now address the contentions of the learned counsel for the petitioner. Though the learned counsel for the petitioner has contended that the land owner Mr.Mani has granted permission to keep a Vinayagar idol at Door No.146, Nagammal Compound, Thathaneri Main Road, Arulthaspuram, Madurai-18, and that the petitioner has intended to take out procession with the idol, on 21.09.2012 and also submitted that a list containing the details of persons, who would render assistance to the Police, was furnished to the Inspector of Police, Sellur Police Station, Madurai City, on 07.09.2012, perusal of the enclosure at page 3 of the typed set of papers does not contain, the details as to when, and who had furnished the details. To whom it has been furnished is not known. No credence can be given to the said enclosure. Nevertheless, it is besides the main point and what has to be considered by this Court is whether the petitioner has any legal or statutory right to insist that permission should be given to him and that the decision taken by the Assistant Commissioner of Police, Tallakulam Police Station, Madurai, is arbitrary and without any basis.
12.The reasons assigned by the Assistant Commissioner of Police, Law and Order, Tallakulam Range, Madurai, for rejecting the request of the petitioner to take out a procession cannot be said to have been made without any basis. Maintenance of law and order is an executive function and it is not for this Court to interfere in their decision, unless it is shown to be patently illegal. The petitioner, who claims to be a member affiliated to a political party, cannot simply describe a decision of a responsible Police Officer in the rank of an Assistant Commissioner of Police, Law and Order, Tallakulam Range, Madurai, as an imagination.
13. As rightly observed by the Hon'ble Division Bench, the Police, who in the day-to-day affairs, deal with many matters including law and order problems and with their experience and training, in the matter of dealing with religious, communal and particularly in the matter of granting permission, taking out any procession, through a particular route or upto a particular point, etc. are all well versed and have the expertise in taking appropriate decisions. As observed by the Bench it is not the domain of this Court to interfere with the administrative and executive decision, in the matter relating to maintenance of law and order and matters relating to public order.
14. Though the decision in Rama Muthuramalingam Vs. The Deputy Superintendent of Police, Tiruvarur District, reported in 2004(5) CTC 554, relates to a conduct of meeting, the principles of law restated by the Hon'ble Division Bench, in the matter relating to interference with any administrative or executive decision, pertaining to maintenance of law and order or public order, squarely applies to the facts of this Case.
15. The contention of the petitioner that about 160 idols have been permitted to take out procession on a particular route and that the petitioner alone has been discriminated is not substantiated by placing any materials and hence, there is no violation of Article 14 of the Constitution of India.
16.As regards the contention that having received a list of names, the third respondent has intentionally delayed in passing of the orders on 15.09.2012, this Court is of the view that when a petition requesting permission to take out a procession in a particular route sought for, the Police, who has a primary duty to maintain law and order, has to take into consideration the likelihood of inconvenience to public, traffic, law and order problem or public order and such other aspects, have to collect information, from various sources and for that process certainly, time is required. In such view of the matter, there is no inordinate delay. The contention that there was an intentional delay to deny the legitimate expectation of the petitioner to take out a procession cannot be accepted. There is no constitutional or statutory or legal right, for the petitioner to take out procession in any particular route. It is for the authorities, who are conferred with the duties and responsibilities to maintain law and order or public order, to take a appropriate decision, depending upon various factors, such as maintenance of communal harmony, law and order, traffic, inconvenience to the public, etc. and that the above factors are only illustrative. No valid grounds have been made out to term the impugned order as arbitrary or against any constitutional provision.
17. In view of the above, the writ petition is dismissed. Consequently, connected miscellaneous petition is also dismissed. No costs.
gcg To
1.The Commissioner of Police, Madurai City, Madurai.
2.The Assistant Commissioner of Police, Law and Order, Thallakulam Range, Madurai-2.
3.The Inspector of Police, Sellur Police Station, Madurai City.