Calcutta High Court (Appellete Side)
Bharatiya Janata Party vs State Of West Bengal & Ors on 6 December, 2018
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
1
6.12.2018
m No.03
ourt No.15
vijit Mitra
W.P. No. 24263 (W) of 2018
Bharatiya Janata Party
- Versus -
State of West Bengal & Ors.
Mr. Anindya Mitra, Sr. Adv.,
Mr. Saptangsu Basu, Sr. Adv.,
Mrs. Chandrayee Alam,
Mr. Phiroze Eduilji,
Mr. Sarajit Roy Choudhury,
Mr. Kumar Jyoti Tewari,
Mr. Rajdeep Biswas,
Mr. Brajesh Jha,
Mr. Tarun Jyoti Tewari,
Mr. Radha Mohan Roy,
Mr. Subhankar Chakraborty,
Mr. Ajit Mishra,
Ms. Mrinalini Majumdar,
Mr. Arijit Majumdar,
Mr. Debasis Saha
... For the petitioner
Mr. Kishore Datta, ld. A.G,
Mr. Abhratosh Majumdar, ld. A.A.G,
Mr. Sirsanya Bandopadhyay,
Mr. Arka Kumar Nag
... For the State
Mr. Anand Grover, Sr. Adv.,
Ms. Ashtha Sharma
... For the Respondent Nos.3 to 5
Records reveal that the petitioner is the West Bengal Unit of a political party. It undertakes various political programmes in the State of West Bengal. As per the decision of State and Central leaders of the Bharatiya Janata Party (in short, BJP) a programme was undertaken to organize three yatras under the banner of "Ganatantra Bachao Jaytra". The said yatras would cover all 42 Lok Sabha constituencies in West Bengal and it will touch every assembly seat of West Bengal Legislative Assembly. The first yatra will start from Cooch Behar on 7th December, 2018, the second will start from Gangasagar on 9th December, 2018 and the third will start from Birbhum on 14th 2 December, 2018. Such decision was, first communicated to the Principal Secretary, Department of Home and Hill Affairs on 29th October, 2018. Thereafter, repeated reminders were issued but the same were not responded to. Aggrieved thereby, the petitioner has preferred the present writ petition praying for the following reliefs:
A) A Writ in the nature of Mandamus directing the respondent authorities as follows :
i) to direct the respondents to grant co-
operation/permission/administrative support to organize three yatras in terms of the representations so that he can organize the yatras peacefully;
ii) to direct the Respondents to act in aid of the yatras schedule on 7th , 9th and 14th December, 2018 so that the petitioner can exercise its democratic right as per Constitution of India;
B) A Writ in the nature of Certiorari be issued directing the Respondents to transmit all papers and documents relating to this case so that on perusal of the same, a conscionable justice may be administered thereon; C) Rule Nisi in terms of prayer (A) and (B) above;
D) An order of Mandatory Injunction be passed directing the respondent authorities to give permission/co-operation/administrative support to the petitioner to hold the three yatras as per representation made before them; E) Ad-interim order in terms of prayers (D) above.
F) Any other or further order or orders and/or direction or directions as to Your Lordships may deem fit and proper.
Records further reveal that the writ petition was affirmed on 30th November, 2018 and the returnable date in the Presentation Form was stated to be 4th December, 2018. However, the matter was mentioned before this Court on 3rd December, 2018. The matter was listed on 4th December, 2018 and was heard on 5th December, 2018.
In course of hearing on 5th December, 2018, Mr. Dutta, learned Advocate General appearing for the respondent nos.1 and 2 submitted that the petitioner's prayer would be considered by the competent authority and a decision would be taken and he would be apprising this Court about such decision on 6th December, 2018. 3
Today, Mr. Dutta has placed before this Court a letter dated 5th December, 2018 issued by the District Magistrate, Cooch Behar to the Additional Chief Secretary to the Government of West Bengal, Department of Home and Hill Affairs. The contents of the said letter are as follows:
"Mr. Amit Shah, an M.P. of BJP, Mr. S.S. Ahluwalia, MOS, Electronic & IT, GOI, Mr. Biplab Deb, Chief Minister of Tripura, Mr. Sarbananda Sonewal, Chief Minister of Assam, Mr. Kailash Vijaybarjiya, Mr. Mukul Roy, Mr. Dilip Ghosh, MLA and Ms. Roopa Ganguly, M.P. will hold a meeting and Rath Yatra on 7th December, 2018 without permission at or nearby Cooch Behar and such exercise of them and their associates may be backed by communal forces. It appears from Intelligence police inputs that there is every apprehension that this exercise will instigate serious communal disharmony which may cause deep fault lines and violence in civil society resulting harm to property and even to life.
Under such circumstances permission could not be provided."
Mr. Dutta has also placed before this Court a letter issued by the Superintendent of Police, D.I.B. Cooch Behar to the Director General & Inspector General of Police, West Bengal. The contents of the said letter are as follows:
"Information received indicates that BJP is planning to organize a public rally cum "Ratha Yatra" in Cooch Behar District on 07-12-2018 which will be also attended by people from outside state.
The programme includes procession and meeting and mobilization of large number of people. Senior leaders of BJP are also coming from Delhi and other States.
Cooch Behar, as a district is highly sensitive one because there has been a history of communal clashes involving arsons, riots and loss of lives etc. in the past.
The current programme of BJP has generated huge apprehension and scare amongst the common people and it is apprehend that conduct of such a programme will further worsen the situation and the communal climate.
Information indicates that some communal provocateurs and rowdy elements have already become active and they have designs to create disturbance in the backdrop of this programme. In the background of overall communal scenario and happenings around the country and also because of the ill designs of the communal provocateurs in the district there has been an alarming incident of assault and attempted lynching by "Gorakshak" of persons of different community carrying cow meat which has generated huge tension and apprehension in the locality. On this issue vide kotwali PS Case No. 738/18 dated 01-12-2018 u/s 143/341/325/307/379/506 IPC has been started and 3 (three) persons have been arrested.
In the context above I am of the firm opinion that permission should not be granted to such programme."4
The copies of the said letters were handed over by Mr. Dutta to Mr. Mitra, learned senior advocate appearing for the petitioner, when the matter was taken up for hearing today. In view thereof, the petitioner did not get an opportunity to bring same on record by way of an affidavit.
Mr. Mitra, learned senior advocate appearing for the petitioner submits that maintenance of law and order is the inherent duty of the Government. But, demonstrations, rallies, meetings have not been restrained by law, as long as they are within the limits of public law and order. Immediately upon taking the decision to organize such rally, the same was communicated to the police personnel. The first communication was on 29th October, 2018. Thereafter, representations were submitted on 5th November, 2018, 14th November, 2018, 20th November, 2018 and lastly on 23rd November, 2018. None of the said representations were responded to and as such the petitioner was constrained to approach this Court. Supplementary affidavit filed by the petitioner be kept on record.
He further submits that the respondents did not communicate any final decision nor did call the petitioner to deliberate upon the issue and no regulatory measures were also suggested and as such the only intent of the State was to prevent the petitioner from holding the said rally. Due to such inhibition on their part, the petitioner is not in a position to organize the rally. Such denial tantamounts to infringement of the petitioner's constitutional right. In support of his argument, Mr. Mitra has has placed reliance upon a judgment delivered by the Hon'ble Division Bench of this Court in the case of State of West Bengal & Ors. vs. Debjit Sarkar, wherein the Hon'ble Court was pleased to observe that the right to hold a rally cannot be denied. However, such rally 5 must be held peacefully without causing any inconvenience to the members of the public at large and without restricting their movements in any manner. The Court permitted the rally to be held subject to some conditions specified in the said judgment. He submits that similar directions should be passed in the present matter as the said judgment is binding upon this Court.
He further argues that the sole intent of the State respondents is to stall the rally on unfounded grounds and they were even reluctant to inform such grounds to the petitioner, who had been submitting repeated representations. Having not responded to the said representations, the respondents have failed to discharge their obligations and such action warrants interference of this Court.
Per contra, Mr. Dutta submits that the decision of the concerned District Magistrate and the Superintendent of Police cannot be challenged on the basis of the averments made in the present writ petition. The same needs to be brought on record and challenged by the petitioner by submitting an appropriate application.
Drawing the attention of this Court to Regulations 30, 30A and 31 of the Police Act, 1861, the Regulations 131 to 142 of the Police Regulation of Bengal and Sections 62A, 62B and 62C of the Kolkata Police Act, Mr. Dutta argues that a procedure has been prescribed in details as to how permission to hold such rally is required to be obtained and the officer competent to grant such permission. Such procedure has not been followed by the petitioner.
Placing reliance upon the contents of the letters dated 5th December, 2018, Mr. Dutta submits that there is a serious apprehension of breach of peace and that the rally would instigate serious communal disharmony which would be an impossibility for the 6 police authorities to control, more so, when the rally is due to commence on and from 7th December, 2018 at 10 am.
According to him, there is no arbitrariness or unreasonableness in the decision taken by the competent authority and as such no interference is called for in exercise of this Court's discretionary jurisdiction.
According to him the judgment delivered in the case of Debjit Sarkar (Supra) is clearly distinguishable on facts and has no manner of application in the instant case.
In support of his arguments Mr. Dutta has placed reliance upon the judgments delivered in the case of (1988) 4 SCC 534 : Bharat Sing & ors. vs. State of Haryana & Ors., (2013) 5 SCC 252 : Kalinga Mining Corporation vs. Union of India & ors., (2008) 9 SCC 161 : Bachan Singh vs. Union of India & Ors. and (2006) 2 SCC 541.
Mr. Grover, learned senior advocate appearing for the respondent nos. 3 to 5 submits that permission has been denied on the grounds of apprehension of breach of peace and the apprehension of instigation of serious communal disharmony. Such grounds should not be taken lightly. In the event any untoward incident happens, who would be responsible? Such incidents would be affecting the public at large. There may be loss of life and property. Such situation, may not be effectively controlled by the police authorities in view of the time constraint and the nature of the rally which would be for a period of more than a month from 7th December, 2018 to 16th January, 2019 and it would be passing through 42 constituencies in the State of West Bengal covering all the districts. In view thereof, the Court should be slow to interfere at this stage. The Court cannot ignore the issue of apprehension of loss of life and property involving communal disharmony, furthermore, when there had been intelligence police inputs to that effect. In support of such contention he has placed reliance upon the judgment 7 delivered in the case of State of Karnataka & anr. Vs. Dr. Praveen Bhai Thogaria reported in (2004) 4 SCC 684.
Placing reliance upon Regulation 30 of the Police Act Mr. Mitra, in reply, submits that permission could not have been denied without issuance of a show cause notice. A decision taken without issuance of show cause notice and without grant of an opportunity of hearing is not sustainable and is void. The orders placed before this Court were passed without prior notice and without grant of any opportunity of hearing. The Court should thus ignore the said orders which are void. The mechanism under the Regulations cited by the learned Advocate General would reveal that it is the responsibility of the police authorities to take all regulatory measures and in the event there is any breach of peace, the procedure laid down is to approach the concerned Magistrate by way of an application under Section 144 of the Code of Criminal Procedure.
Heard the learned senior advocates appearing for the respective parties and considered the materials on record.
It is true that protests, rallies, demonstrations cannot be restricted by law, as long as they are within the limits of public law and order. It is the inherent duty of the State to maintain such law and order for which they can impose restrictions. It is also true that State cannot by law abridge or take away the rights of assembly by prohibiting the assembly in public place or public street. It can only make regulations in aid of right of assembly of each citizen and can impose reasonable restriction in the interest of public order.
In the instant case, the rally would be commencing from 10 am tomorrow from the district of Cooch Behar. The rally will continue thereafter to different districts as 8 indicated in the documents at pages 21 to 40 of the writ petition. It is the argument of the petitioner that the Court should not consider the mere apprehension which has been expressed in the orders as produced before this Court. Such apprehension is not based upon appropriate materials.
However, it is the duty of the Court to ascertain from the facts and circumstances as to whether there may be any threat of loss of life or the property of the people at large. For such determination, the nature of the rally needs to be taken into consideration. The rally which has been sought to be organized is not for a period of mere two or three days, it would be continuing for more than a month and would be covering all the districts of the State. Merely on the basis of an undertaking given by a learned advocate on behalf of the petitioner that the rally would be all throughout peaceful, permission to hold such rally cannot be hastily granted. It cannot be ignored that in the event any untoward incident occurs, it would be an impossibility to control the law and order situation. Today, at 4 pm if an order is passed upon the police authorities to make sufficient arrangement and to allow the rally to commence, the same may not be effectively implemented in view of the time constraint.
The petitioner has relied upon the judgement delivered by the Hon'ble Division Bench of this Court in the case of Debjit Sarkar (supra). In that case the court was considering a rally which would be for a period of seven days. It is well settled that even a slight distinction in fact or an additional fact may make a lot of difference in decision making process.
In the said conspectus, I am of the opinion that the reliefs, as prayed for in the present writ petition, cannot be granted at this stage. In my opinion reports need to be called for from respective Superintendents of Police of the respective districts all over 9 the State which shall be prepared upon giving an opportunity of hearing to the District President or the District Secretary of the petitioner in the respective districts of the State.
The petitioner would be at liberty to file a supplementary affidavit placing orders passed by the District Magistrate and Superintendent of Police by way of a supplementary affidavit in course of this week and supply a copy of the same to the learned advocates on record appearing for the State respondents. The respondents shall peremptorily file an opposition dealing with the averments made in the writ petition as well as the supplementary affidavit within a period of seven days thereafter.
List this matter for further consideration in the daily supplementary list of this Court on 9th January, 2019.
In the meantime, the Superintendents of Police of the respective districts are directed to grant an opportunity of hearing to the District President or the District Secretary of the petitioner in the respective districts and to take a decision as to whether permission can be granted to the petitioner to hold the rally in their respective districts and to communicate such decision to the petitioner. Such exercise shall be completed peremptorily by 21st December, 2018. The said decisions shall be produced before this Court on the returnable date.
Needless to observe the rally shall stand deferred till the next date of hearing. After the order is passed in open court, Mr. Tewary, learned advocate appearing for the petitioner prays for stay of operation of the impugned order.
Such prayer is considered and refused.
Photostat plain copy of this order, duly counter-signed by the Assistant Registrar (Court), be given to the learned advocates for the parties on their usual undertaking. 10
(Tapabrata Chakraborty, J.)