Madras High Court
T.Lajapathi Roy vs The District Collector on 7 March, 2019
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.03.2019
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
WP(MD)Nos.5392 & 5477 of 2019
and
WMP(MD)Nos.4284 & 4358 & 4359 of 2019
T.Lajapathi Roy ... Petitioner in both cases
Vs.
1.The District Collector,
O/o. District Collectorate,
Madurai.
2.The World Tamil Sangam,
Rep.by its Assistant Director,
Dr.Thangaraj Salai,
Madurai – 625 020. ... Respondents in
WP(MD)No.5392 of 2019
3.The World Tamil Sangam,
Rep.by its Director (Incharge),
Dr.Thangaraj Salai,
Nearby Government Law College, Madurai,
Madurai – 625 020. ...Respondent
in WP(MD)No.5477 of 2019
Prayer in WP(MD)No.5392 of 2019 : Writ Petition is filed under
Article 226 of the Constitution of India, to issue a Writ of Mandamus,
to direct the respondent no.2 to provide the hall vis World Tamil
http://www.judis.nic.in
2
Sangam Hall for Tamil book release function scheduled on
08.03.2019 at 05.30 P.M within the time period stipulated by this
Court.
Prayer in WP(MD)No.5477 of 2019 : Writ Petition is filed under
Article 226 of the Constitution of India, to issue a Writ of Certiorarified
Mandamus, to call for the records pertaining to the impugned
proceedings in Thiruvalluvarandu 2050/vilambi/massi-Na.Ka.No.
81/2019 dated 06.03.2019 on the file of the respondent and quash
the same as illegal and consequently directing the respondent to
permit the petitioner to conduct the book release function in the
conference hall of the respondent on 08.03.2019 from 05.30 P.M to
09.00 P.M.
In both cases :
For Petitioner : Mr.G.Prabhurajadurai
for S.Rajasekar
For Respondents : Mr.K.Chellapandian,
Additional Advocate General assited
by Mr.M.Karuppasamy,
Government Advocate
COMMON ORDER
The writ petitioner is a practicing lawyer. He is also a writer. His latest Book is about the Nadar community. It is titled “History of Nadars – Black or Saffron ?” On 18.02.2019, he approached the http://www.judis.nic.in 3 second respondent World Tamil Sangam, Madurai for permission to use their conference hall for hosting the book release function on 08.03.2019.
2.The Manager, World Tamil Sangam informed the petitioner's representative that their conference hall was available on the said date. Thereupon, on instructions, the petitioner's representative handed over a sum of Rs.25,000/- vide cheque no.358365 dated 18.02.2019 towards hall rent and a further sum of Rs.15,000/- vide cheque no.358366 dated 19.02.2019 towards air conditioning charges. The cheques were drawn on Canara Bank, Tallakulam Branch in favour of the Director, World Tamil Sangam. Thereafter, the Manager entered the petitioner's name in the hall booking register. The petitioner went ahead with making other arrangements such as printing the invitation card for the function, booking flight tickets for the special guests etc., While so, he was orally informed on 05.03.2019 that permission for conducting the book release function stood denied. This led to the filing of WP(MD)No.5392 of 2019 seeking issuance of a Writ of Mandamus for direction to the http://www.judis.nic.in 4 World Tamil Sangam to provide the hall to the writ petitioner for the aforesaid purpose.
3.When the matter was taken up for hearing on 06.03.2019, the Government counsel informed the court that rejection order had already been passed by the second respondent. Hence, WP(MD)No. 5477 of 2019 came to be filed assailing the validity of the rejection order bearing Na.Ka.No.81 of 2019 dated 06.03.2019 issued by the second respondent in WP(MD)No.5392 of 2019. Since both the writ petitions pertain to the same subject matter, they are disposed of by a common order.
4.The learned counsel appearing for the writ petitioner characterized the impugned order as violative of Article 14 and 19 of the Constitution of India. He pointed out that in the proposed function a book is going to be released. Its publication has not been banned. It is not obscene. It is neither a religious nor a caste event as portrayed in the impugned order. It is all about the struggle of the Nadar community for their social upliftment. The learned counsel for http://www.judis.nic.in 5 the petitioner placed reliance on the decisions reported in (1989) 2 SCC 574 S.Rangarajan vs. P.Jagjivan Ram), 2013 (1) CTC 686 (N.V.Sankaran alias Gnani vs. the State of Tamil Nadu), AIR 1984 Calcutta 268 (Usha Uthup vs. State of W.B) and AIR 1981 Kerala 242 (T.V.Anandan v. State of Kerala).
5.Per contra, the learned Additional Advocate General appearing for the respondents submitted that the petitioner cannot insist that the second respondent must offer their hall for conducting the event in question. It is true that the second respondent had booked the conference hall in the name of the writ petitioner and he had also collected the necessary charges. But, when the authorities came to know that the event is likely to generate controversy, the second respondent chose to pass the impugned order withdrawing the permission earlier granted. He pointed out that the petitioner can as well conduct the function in a private place of his choice and that a Government building ought not to be used for furthering his partisan objectives. He also expressed his apprehension that in view of the heat generated by the book, there could be issues regarding http://www.judis.nic.in 6 the safety and security of the building also. He denied that the second respondent has acted unreasonably.
6.There was also a strong intervention at the instance of two private persons supporting the stand of the second respondent. Advocates Shri.Karthikeya Venkatachalapathi and Shri.Neelamegam vehemently contended that the book is highly objectionable and is intended to advance the cause of conversion of Nadars to Christianity. The social condition of the Nadars was horrible in the 19th century. The Christian missionaries targeted this community and succeeded in winning over a substantial chunk. Nadar women were then not permitted to wear blouses or cover their upper body. When the issue was taken to court, it is said that the court gave a verdict that the Nadar women who convert to Christianity can cover their upper body while the hindu Nadars should not. Such a decision was rendered by the colonial court only to strengthen the agenda of the Christian missionaries.
http://www.judis.nic.in 7
7.The intervenors submitted that Nadars community is a great community which had risen literally from the ashes like the mythical Phoenix Bird. Due to the stellar role played by spiritual leaders like Ayya Vaigundar and various community leaders, the Nadar community focussed more on economic progress. They realized that without economic progress, there will not be any social progress. They established institutions like “Nadar Mahamai Fund' which was the precursor for levy of sales tax in Tamil Nadu. Today, Nadars are leaders in every field. Shiv Nadar the founder of HCL is the most shining example. The great leader Shri.Kamarajar also belonged to this community. If a roll call of honour is to be drawn, it would be fairly a long list. The counsel stated that a person who is both a woman and a Nadar is heading the State Unit of B.J.P in Tamil Nadu and that the only representative from Tamil Nadu in the Union Cabinet also belongs to the said community and hence, the petitioner is politically motivated and has come out with a book with a provocative title.
http://www.judis.nic.in 8
8.When the court expressed its view that there should be a free trade in ideas, the intervenors submitted that such an approach may be acceptable in a mature democracy and that in a country like India it may not be feasible. According to him, the fundamental right of freedom of speech and expression is not absolute but subject to restrictions. The intervenor counsel is actually echoing the following speech made by a Member in the Constituent Assembly (Shri.Algu Rai Shastri).
“Many friends have attacked its provisions on the grounds that the fundamental rights conferred by this article have been taken away by the limitations imposed therein. I feel that along with freedom responsibility is essential. The friends who urge that the rights given in this article have been taken away under the sub-clauses (2), (3), (4), (5) and (6), have not taken have not taken into consideration the people who will elect members to the legislatures which have been authorised under these provisions to apply these restrictions, and the people who would compose these legislatures. I submit that those who would sit in the legislatures would be representatives of the people and they will impose only those restrictions which they consider proper. Such restrictions would be in the interest of the people. Only http://www.judis.nic.in 9 those restrictions will be imposed which would be necessary in the interest of public health, unavoidably necessary for the maintenance of public peace and desirable from the viewpoint of public safety. No restriction will be imposed merely to destroy the liberties of the people. Freedom is a great art--even greater than the art of music and dancing. One who is adept in music or dancing keeps his voice under control and maintains restraint and control over his bodily movement, and on the movement of his feet. He has to move in accordance with certain recognised rules of music and dancing. He cannot sing and dance out of tune and time, in an unrestrained manner. He remains fully bound to the rules. Full freedom is being conferred upon us but it can never mean that we should not be under any restrictions whatsoever. Freedom of speech does not mean
----------------------
*[ ] Translation of Hindustani speech.
that we can give expression to whatever comes to our mind without observing any limitation or rule in this respect. In legislatures we have to follow certain rules and regulations. We are here as the representatives of the sovereign people but even then there are hundreds http://www.judis.nic.in 10 of restrictions upon us. Freedom by its nature implies limitations and restrictions.
`KAVIHIN ARTH AKHAR BAL SANCHA, KARTAL TAL GATIHIN NAT NACHA' The dancer dances to the measure of clapping. The poet is bound by the significance of words. A dancer dances according to certain fixed timings and never makes a false movement. His movements are in harmony with the tal. When an ation or a community attains freedom, it begins to bear agreat responsibility on its shoulders. We cannot therefore say that the restrictions that have been imposed will retard our progress.”
9.I have carefully considered the rival contentions. It is not in dispute that the premises of the World Tamil Sangam, Madurai are being allowed to be utilized for hosting private functions, of course on payment of charges. The petitioner has needlessly embarrassed me by enclosing the program schedule of a function conducted in the very same conference hall in which I was one of the chief guests. My initial reaction was to recuse myself from hearing this case. But I decided to cast aside my personal feelings and take up the matter on merits. This was primarily because the function itself is to be held tomorrow, ie, 08.03.2019.
http://www.judis.nic.in 11
10.The impugned order of rejection sets out two reasons. The first reason is that persons who are opposed to the Government are to take part in the function as special guests. It is true that the meeting is to be addressed by a prominent political leader belonging to the opposition D.M.K party. Thiru.Suba.Udhayakumar an anti nuclear energy activist is also scheduled to participate. This cannot be a ground at all for denying permission to the petitioner. While the building was put up by using government funds and it does belong to the government, it does not belong to the ruling party. In a democracy there will be both ruling party and opposition. Elections are periodically conducted to give an opportunity to the people to bring changes in the Government.
11.It is not in dispute that the government has not issued any Government Order or policy circular regulating the norms for renting out the building or the conference hall in question. No guidelines have been laid down. The second respondent could not have therefore distinguished between the government and opposition. The second respondent has given an unreasonable reason for http://www.judis.nic.in 12 denying the permission to the petitioner. The approach of the second respondent is patently anti democratic.
12.The other ground is that the event appears to be religious and caste oriented. Again, I am unable to agree. The petitioner has authored a book giving his perspective on the history of Nadars. One may wonder whether the social past of a community can be stereotyped into particular categories. One may even think whether the past can be painted with a specific colour or hue. It is quite possible that the history of Nadars is neither wholly black nor saffron. It may be shaded with a colour that defies a label. These are all matters of individual opinion. The petitioner is therefore definitely entitled to put forth his view point. One may agree or not agree with his “take” on the history of Nadars. But then, those who disagree with the author have to come up with a counter narrative and presentation. They cannot seek to stifle or restrain the petitioner from putting forth his view point. The second respondent being a governmental body ought to stay neutral in such matters. They cannot side with the persons protesting against the book. http://www.judis.nic.in 13
13.As rightly contended by the learned counsel appearing for the petitioner, the courts have consistently upheld the right to freedom of speech and expression. In the present case, the petitioner's rights under Article 19(1)(a) of the Constitution of India as well as Article 19(1)(b) are involved. When the local office bearers of Rashtriya Swayamsevak Sangh were given permission to use a government high school under Rule 15 of Kerala Education Rules and sanction so accorded was cancelled without assigning any reason, the Hon'ble Kerala High Court in the decision reported in AIR 1981 Kerala 242 (T.V.Anandan vs. State of Kerala) intervened in favour of the petitioner therein. The Hon'ble Kerala High Court held as under :
“The Government and their Officers have a duty to act in a just and fair manner. Government cannot pick and choose the persons with whom they will deal. If the Government don't want to allow public functions to be held in Government schools, they can frame rules accordingly and deny permission to all. But if they are giving permission to some, they can-not deny the same to others arbitrarily. The discretion in this regard should not result in discrimination. The freedom of expression and the http://www.judis.nic.in 14 freedom of assembly form part of the freedom of conscience. These fundamental rights guaranteed by the Constitution of India can only be subject to reasonable restrictions. If the activities of an organisation are a threat to the security of the State, the State has the power not to allow it to function. Its activities can very well be banned.
If there is a valid ban, then such an organisation cannot complain that its fundamental rights are infringed if it is denied the privileges and patronage extended to others by the State. But as long as an organisation is allowed to continue its activities, if it is denied privileges like the use of Government school buildings for public functions which other organisations are allowed, it will not only result in hostile discrimination but the fundamental rights guaranteed under the Constitution will also be infringed. Rule 15A inserted by Notification dated 24-10-1979 cannot improve matters. Simply because the Government is given the power to issue directions it cannot be said that the Government have the power to discriminate between organisation and organisation and prevent some from using Government school buildings for their public functions. So, as long as the Rashtriya Swayamsevak Sangh is allowed to function in this State they cannot be denied permission to use Government school buildings for their public functions when other http://www.judis.nic.in 15 similar organisations are given permission.”
14.When Mrs.Usha Uthup was denied permission to stage her performance in a building belonging to the Government, the Calcutta High Court interfered in her favour. The Hon'ble Calcutta High Court in the decision reported in AIR 1984 Calcutta 268 (Usha Uthup vs. State of W.B) held as follows :
“In this context it may be mentioned that any particular political party has a right under the law to make its views known to the public and the use of a public Hall, which is used for holding meetings, cannot arbitrarily or unreasonably be denied to such party for the dissemination of its views at long as it is done peaceably without inflaming the audience to violence. If another party, or the party in power, which does not subscribe to the views of the political party holding the meeting, tries to prevent, disrupt or obstruct the meeting, then the fundamental right of the freedom of speech and expression is reduced to a mere mockery. The interrupters of the meeting like the interrupters of the petitioner's performance, could be said to be the destroyers of the freedom of speech and expression.” http://www.judis.nic.in 16
15.Justice K.Chandru in his well known decision reported in 2013(1) CTC 686 (N.V.Sankaran alias Gnani vs. The State of Tamil Nadu) struck down some of the provisions of Tamil Nadu Dramatic Performances Act, 1954 and the rules framed therein as ultra vires and violative of Article 14 and 19 of the Constitution because they mandated that a play enacted in Chennai or in Districts requires prior permission of Commissioner of Police or District Collector. His Lordship observed that the authorities were neither mandated to write a speaking order nor to give opportunity to those concerned before prohibiting a play. Vesting of such uncanalised and absolute discretion in authorities who may not follow a uniform yardstick is erroneous. Moreover, time is essence when play is sought to be enacted in public place and no time has been stipulated for grant of approval. It may affect the parties prejudicially.
16.The fear expressed by Justice K.Chandru has turned out to be true in this case, of course in a different context. The function in question is scheduled to be held on 08.03.2019. The petitioner had approached the second respondent as early as on 18.02.2019 and also remitted the charges. The impugned order of rejection was http://www.judis.nic.in 17 passed on 06.03.2019. The petitioner was not given any opportunity before the impugned order of rejection was passed. Thus, there has been a clear violation of the principles of natural justice also. The second respondent has behaved in an arbitrary and unreasonable manner.
17.The learned counsel for the petitioner also relied on the celebrated decision of the Hon'ble Supreme Court reported in (1989) 2 SCC 574 (S.Rangarajan vs. P.Jagjivan Ram). A film known as “Ore Oru Gramathile” was made opposing the reservation policy of the Government. “U” certificate was granted by the Censor Board. But, the Madras High Court in a writ proceedings revoked the the said certificate. The decision of the Madras High Court was set aside by the Hon'ble Supreme Court. The Hon'ble Supreme Court observed that the fundamental freedom under Article 19(1)(a) can be reasonably restricted only for the purposes mentioned in Articles 19(2) and the restriction must be justified on the anvil of necessity and not the quicks and of convenience or expediency. Open criticism of Government policies and operations is not a ground for restricting expression. We must practice tolerance to the views of others. http://www.judis.nic.in 18 Intolerance is as much dangerous to democracy as to the person himself.
18.I must also cite the decision of the Hon'ble Supreme Court reported in (2015) 5 SCC 1 (Shreya Singhal vs. Union of India). The Hon'ble Supreme Court upheld the right to freedom of speech and expression in ringing terms. One may profitably refer to the decision of the Hon'ble First Bench of the Madras High Court reported in (2016) 4 CTC 561 (S.Tamilselvan vs. Government of Tamilnadu).
19.The case on hand is squarely covered by the principles laid down in the aforesaid decisions. The order impugned in WP(MD)No. 5477 of 2019 stands quashed. The writ petitions stand allowed. The second respondent is directed to permit the petitioner to host the book release function as originally scheduled. No costs. Consequently, connected miscellaneous petitions are closed. I may end on this note. Whether the past is black or saffron, let the future be rosy.
07.03.2019 Skm http://www.judis.nic.in 19 To
1.The District Collector, O/o. District Collectorate, Madurai.
2.The Assistant Director, The World Tamil Sangam, Dr.Thangaraj Salai, Madurai – 625 020.
3.The Director (Incharge), the World Tamil Sangam, Dr.Thangaraj Salai, Nearby Government Law College, Madurai, Madurai – 625 020.
http://www.judis.nic.in 20 G.R.SWAMINATHAN, J.
Skm WP(MD)Nos.5392 & 5477 of 2019 and WMP(MD)Nos.4284 & 4358 & 4359 of 2019 07.03.2019 http://www.judis.nic.in