Calcutta High Court (Appellete Side)
State Of West Bengal & Others vs Bharatiya Janata Party & Others on 21 December, 2018
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
21.12.2018
Unlisted
Court No.1
Pd/ap/
ac/sn
M.A.T. No. 1673 of 2018
With
C.A.N. 10440 of 2018
State of West Bengal & Others
-versus-
Bharatiya Janata Party & Others
Mr. Kishore Datta, Ld. Advocate General,
Mr. Abhratosh Majumdar, Ld. Addl. Advocate General,
Mr. Bhaskar Prasad Vaisya,Ld. AGP,
Mr. Sirsanya Bandopadhyay, Jr. Standing Counsel,
Ms. S. Shaw,
Mr. Arka Kumar Nag,
Mr. Malay Singh,
Mr. Subrata Ghosh,
Mr. Sk. Md. Masud,
Mr. Samir Kumar Ghosh,
Mr. Bhaskar Chakraborty,
Mr. Dwarikanath Mukherjee,
Mr. Rakesh Singh,
Mr. Ratul Biswas,
Mr. Ranjan Saha,
Mr. Sanatan Panja,
Mr. Joydip Basu,
Ms. Sangita Roy,
Mr. Arindam Chatterjee,
Ms. Lipika Chatterjee,
Mr. Rajaram Banerjee,
Mr. Bijoybrata De,
Mr. Mirza Kamruddin,
Mr. Joydip Banerjee,
Mr. Abhishek Banerjee,
Mr. Manil Lal De,
Mr. Biswabrata Basu Mallick,
Mr. Sabyasachi Mondal,
Ms. Supriya Chatterjee,
Mr. Pinaki Bhattacharya,
Mr. Tapas Adhikary,
Mr. Pratik Bose,
Mr. Pritam Chaudhury,
Mr. somnath Naskar,
Ms. Sanjukta Samanta,
Mr. Mrinmoy Sahu,
Mr. Tapas Mondal,
Ms. Rupsha Chakraborty,
Mr. Nilam Singh,
Mr. Sanat Biswas,
Mr. Ashis Guha,
Mr. Abhra Majumdar,
Mr. Ayanabha Raha,
Mr. Tarak Karan,
Mr. Imtiaz Ahmed,
Mr. Jyoti Prakash Chatterjee,
Mr. Manas Sadhu,
Mr. Partha Basu,
Mr. Rabiul Islam,
Mr. Sagnik Chatterjee,
Mr. Sidhartha Chatterjee,
Mr. Taleh Masud Siddique,
Ms. Sonal Sinha,
Mr. Swapan Banerjee,
... For the Appellant Nos.1,2 & 3.
Mr. Abhishek Manu Singhvi, Sr.Adv.
Ms. Aastha Sharma
Mr. Suhaan Mukhlerji
Mr. Nilotpal Chatterjee
Mr. Amit Bhandari
Mr. Kajal Dalal
....For the Appellant Nos. 4&5.
Mr. S. K. Kapur, Sr. Advocate,
Mr. Saptangsu Basu, Sr. Advocate,
Mr. Smarajit Roy Chowdhury,
Mr. Phiroze Edulji,
Mr. Rajdeep Biswas,
Mr. Brajesh Jha,
Mr. Tarun Jyoti Tewari,
Mr. Subassis Das Gupta,
Mr. Subhas Ray,
Mr. Gautam Sardar,
Mr. Pradip Kumar Mondal,
Mr. Soumen Sarkar,
Mr. Ajit Misra,
Ms. Mainalini Majumdar,
Mr. C. S. Jha,
Mr. Soumen Bhattacharya,
Ms. Debjani Ghosal,
Mr. Pramod Kumar Darolia,
Ms. Debjani Ghoshal,
Mr. Daya Sankar Mishra,
Mr. Ravi Ranjan Kumar,
Mr. Manabendra Bandopadhyay,
Mr. Chirantan Dan,
Mr. Debasis Saha,
Mr. Partha Ghosh,
Mr. Subhojit Seal. ... For the respondent No.1.
Re : ASTA 29 of 2018 (Stay) On the oral prayer made by the learned Advocate General, West Bengal, to transpose the proforma respondent Nos.2 and 3, namely, the Director General of Police and Additional Director General of Police (Law & Order) as appellant Nos.4 and 5, leave is granted to the appellants to transpose the aforesaid two respondents as appellant Nos.4 and 5.
This is an application arising out of an appeal preferred against a judgment and order passed in the writ application. The operative portion of which is quoted below:
"Applying the proposition of law to the facts of the present case, I am of the opinion that it would be appropriate to permit the petitioner to organise the yatras/rallies, as prayed for. The impugned order dated 15th December, 2018 is, accordingly, set aside.
The petitioner, through its learned advocate, undertakes before this Court that:
a) the petitioner shall inform the Superintendent of Police of the concerned district in which the yatra/rally shall enter, at least 12 hours before entering the concerned district;
b) the petitioner will ensure conducting the yatra/rally in an orderly fashion, in a peaceful manner and abiding by all ecological norms;
c) the yatra/rally shall not impede the normal movement of vehicular traffic;
d) the yatra/rally shall be held in consonance with the rules and regulations governing and regulating the traffic system.
It is made clear that the petitioner shall abide by every just direction of the State administration and the petitioner shall also be vicariously liable for any wrongful loss and damage to the public.
The police administration shall deploy adequate police force to ensure that there is no breach of law and order.
With the above observations and directions, the writ petition is disposed of. There shall, however, be no order as to costs.
After the order is passed, Mr. Datta, learned Advocate General appearing for the State respondents, prays for stay of operation of the order. Such prayer is considered and rejected.
Photostat plain copy of this order, duly counter-signed by the Assistant Registrar (Court), be given to the learned advocates appearing for the parties on their usual undertakings."
This matter has a chequered history.
The respondent no.1 submitted application to various authorities of the State of West Bengal for undertaking a programme to organize three Yatras under the banner of "Ganatantra Banchao Yatra" by a communication dated October 29, 2018. The above application was followed by number of reminders. Since the respondent no.1 did not receive any reply to the above application, they filed an application under Article 226 of the Constitution of India in the matter of Bharatiya Janata Party - Vs. The State of West Bengal & Ors. (In Re:
W.P. No. 24263 (W) of 2018).
The learned Single Judge passed an order dated December 6, 2018 in the above writ application keeping the writ petition pending.
Being aggrieved by that order, an appeal was preferred by the respondent no.2 before a Division Bench of this Court in the matter of Bharatiya Janata Party, West Bengal - Vs. The State of West Bengal & Ors. (In Re: M.A.T. No.1522 of 2018 with CAN 9643 of 2018).
By an order dated December 7, 2018, the above appeal was disposed of modifying the order dated December 6, 2018 passed by the learned Single Judge in the above writ application and the operative portion of the above order is quoted below:
"In such circumstances as stated above, we propose to modify the order dated 6th December, 2018, passed by the learned Single Judge as follows: The Chief Secretary, Government of West Bengal, the Principal Secretary, Department of Home & Hills Affairs and the Director General of Police, Government of West Bengal, shall meet the authorised representatives of the appellant/writ petitioner (not exceeding three) latest by next Wednesday (12.12.2018) and take a decision in the matter supported with cogent reasons and communicate the same to the appellant/writ petitioner by next Friday (14.12.2018).
Since no affidavits have been called for, allegations made in the application for stay are deemed to be not admitted by the respondents. The appeal and the application for stay stand disposed of accordingly. Urgent photostat certified copy of this judgment, if applied for, be given to the learned advocates for the parties."
In compliance of the above order, the Secretary (Co-ordination), Home and Hill Affairs, Government of West Bengal, by a forwarding letter dated nil communicated the decision taken by the State Government to the President of the respondent no.1. The above order is quoted below:
"Decision taken by the State Government In terms of the order of the Hon'ble Division Bench of the Calcutta High Court in MAT 1522 of 2018 In compliance with the order passed by the Hon'ble Division Bench of the Calcutta High Court, in MAT 1522 of 2018 dated 10th December, 2018, the undersigned met the representatives nominated by the Bharatiya Janata Party on 13-12-2018 at 17.30 hours in the Conference Room of Lalbazar, Kolkata.
At the said meeting, the representatives of the BJP stated that they would go ahead with Rath Yatra and/or 'Ganatantra Banchao Yatra' in the same sequence which they had earlier fixed. According to the schedule earlier submitted by the BJP, they plan to hold a total of 158 meetings across West Bengal. The three segments of Yatra would involve some religious sites and move simultaneously for at least 34 days. The representatives could not, however, give details of the exact dates and venues of the meetings they propose, or clearly state who would address each meeting.
We have obtained intelligence inputs from D.Ms., CPs and SPs and also the assessment of the Intelligence Branch.
We have heard the representatives of the BJP and carefully examined their submissions and all other aspects of the matter.
The areas proposed to be covered by the Yatra are, because of publicity and propaganda, gradually turning into communally sensitive pockets. Intelligence reports indicate that public perception is that the religious overtones of the Yatra will be turned into communal propaganda. Intelligence reports also indicate that in several districts, organisations with overtly communal agenda such as the RSS, Bajrang Dal and VHP would actively join the Yatra. There is grave apprehension of major breach of peace and communal violence during and in the aftermath of the Yatra.
The large convoy of the Yatra would create a chaotic situation and grave disruption of traffic on arterial roads and highways. Furthermore, during the period cited, major festivals and events are scheduled, requiring a heavy deployment of the resources of the Government including Police Force.
We are therefore of the opinion that, for the reasons which have been elaborately mentioned hereinabove, it is not possible to allow the Yatra as proposed by the BJP.
Regarding the numerous meetings proposed by the BJP, as stated above, in the absence of the details required, it is not possible to determine which part of the programme is purely political and which is communal. Permission for a particular meeting, will be decided solely by the District Authorities on case to case basis as per the provision of Section 30 of Police Act, 1861. Therefore, for each meeting proposed, the BJP may apply afresh before the relevant District Authorities with all requisite details.
(sd.) (sd.) (sd.)
DG&IG of Police Pr. Secy. Chief Secretary"
Home & Hill Affairs
The above order was the subject matter of challenge in the writ application, which gives rise to this appeal in the matter of Bharatiya Janata Party - Vs. The State of West Bengal & Ors. (In Re: W.P. No. 25614 (W) of 2018). The above writ application was disposed of by an order dated December 20, 2018 setting aside the order impugned to that writ application as also with the directions, which have already been quoted hereinabove. It is submitted by the learned Advocate General appearing on behalf of the appellant nos.1 to 3 that no opportunity was given to his clients to file affidavit-in-opposition in that writ application for the purpose of disclosing the relevant materials before the Court.
It is the contention of the learned Advocate General that 36 intelligence reports were obtained from the districts, which will be covered by the members of the respondent no.1 during the said Yatra. According to him, the same were the basis of the decision taken in compliance of the order passed by the Division Bench in the earlier appeal. The same was not considered by the learned Single Judge consequent upon the objection raised by the learned counsel appearing on behalf of the respondent no.1 on the ground that no copy of the same had been handed over to them for their consideration although, the appellants claimed those to be privileged documents and those intelligence report need not be served upon the respondent no.1. Showing the aforesaid 36 reports in a sealed cover, it is argued before us that not even the seal of the cover was opened by the learned Single Judge.
The next contention of the learned Advocate General is that Administrative Order does not require assigning of any reason. Reliance is placed by the learned Advocate General on the decision of Wasiuddin Ahmed vs. District Magistrate, Aligarh, U.P. and others reported in 1981 (4) SCC 521 and on the decision of State of Karnataka & Anr. Vs. Dr. Praveen Bhai Thogadia reported in (2004) 4 SCC
684. Appearing on behalf of the appellant nos.4 and 5, a prayer is made by Mr. Abhishek Manu Singhvi, to allow him to address the Court on the aforesaid appellants on the ground that the sheet-anchor of the decision taken by the State Government in compliance of the order passed by the Division Bench in the earlier appeal are 36 reports obtained by the police authorities from different districts. According to him, those reports had been prepared taking into consideration the respective districts, its villages and the respective police stations and those were prepared taking into account the ground reality. Therefore, according to him, the judgment impugned to this appeal and the findings made therein, are not based on materials on record. It is also the submission of Mr. Singhvi that there was no complete ban on the rally or meetings of the respondent no.1. Taking into consideration that the said Yatra will continue for 39 days after starting from three points of different districts of the State, the same could not be permitted from the logistical point of view. It is also submitted by him that the said Yatra will cover, as proposed, a number of highways and areas where people of different religious communities reside.
During the movement of the said Yatra, reception would be held at several points on entering new village and district. Therefore, taking into consideration all the aforesaid realities and areas to be covered by the entire convoy, the aforesaid districtwise 36 reports were prepared, which formed the basis of the order dated December 15, 2018.
It is the submission of Mr. Singhvi that Article 19 of the Constitution of India does not stand in the way insofar as, imposing reasonable restrictions on the fundamental rights of the citizens of India were concerned. Reliance is placed by Mr. Singhvi on the decision of State of Karnataka & Anr. Vs. Dr. Praveen Bhai Thogadia reported in (2004) 4 SCC 684 and on the decision of Mazdoor Kisan Shakti Sangathan - Vs. - Union of India reported in 2018 SCC Online (SC) 724 in support of his submissions.
Appearing on behalf of the respondent no.1, it is submitted by Mr. S.K. Kapur, learned Senior Advocate that the order impugned to this writ application is itself bad due to the reason that the decision has been taken by the Government of West Bengal, instead of the committee. According to him, by virtue of the judgment and order dated December 7, 2018 passed in the matter of Bharatiya Janata Party, West Bengal - Vs. The State of West Bengal & Ors. (In Re: M.A.T. No. 1522 of 2018 with CAN 9643 of 2018), a Division Bench of this Court directed three men committee consisting of three Government Statutory dignitaries to take a decision. According to him, the decision was taken by them at the dictation of the State Government which was not permissible in the letter and sprit of the aforesaid judgment and order. It is also submitted by him that though it is submitted by Mr. Singhvi that there was no complete ban, it was the policy of the Government not to allow the respondent no.1 to raise its voice in the State of West Bengal.
Relying upon a decision of Hindustan Motors Limited vs. T.N. Kaul, reported in 1971 CLJ 181, it is submitted by Mr. Kapur that supply of a copy of the documents, which is to be relied upon by the authority to arrive at a conclusion, is a condition precedent for relying upon the same before a Court of law.
Reliance is also placed by Mr. Kapur on the decision of S.P. Gupta & Ors. vs. President of India & Ors. reported in AIR 1982 SC 149.
We have heard the learned Counsel appearing for the respective parties at length so far as this application is concerned and we have given our anxious consideration to the facts and circumstances of this case. It is the settled principles of law that a decision must be taken by the authority on the basis of the reasons. The reasons may not be reflected in detail in the forwarding letter or the decision which is communicated to the authority but in course of judicial review contemporaneous documents may be produced before the Court which formed the basis of the decision of the authority. Moreover, in a petition under Article 226 of the Constitution of India, where a prayer for issuance of a Writ of certiorari has been made for quashing the decision dated December 15, 2018, the appellants were permitted to produce the relevant records.
It appears from the order impugned to the writ application, amongst others, that the consideration was mainly intelligence inputs from the District Magistrates, Commissioners of Police, Superintendents of Police as also the assessment of Intelligence Branch. It is also not in dispute that a comprehensive report from the different districts were produced before the learned Single Judge. Admittedly due to the objection raised on behalf of the respondent No.1, those were not taken into consideration for arriving at a conclusion. At this juncture, we may take into consideration few observations made by the learned Single Judge with regard to the mode of function of the body of three high dignitaries of the appellants. According to the learned Single Judge, the State Government wanted to stop the yatras/rallies on the basis of vague inputs. According to the learned Single Judge, the names of the concerned districts were not disclosed and even without any report pertaining to the other districts the restriction was imposed which were neither reasonable, nor based on materials on record and the respondent No.1 had been mechanically denied permission to organise yatras/rallies. Thereafter, the leaned Single Judge took into consideration a communication dated December 6, 2018 in respect of a single district and dealt with that communication. On the basis of the aforesaid observations, amongst others, the learned Single Judge arrived at a decision that the State proposed to impose restriction on the exercise of fundamental rights which was not free from arbitrariness.
The decision of Hindustan Motors Limited (supra) relates to a right as prescribed in the statute. In view of the above distinguishable facts and circumstances, the above decision does not help the respondent No.1 in anyway. So far as the decision of S.P. Gupta (supra) is concerned, it relates to a settled principle of law in the matter of service jurisprudence. According to our considered view, it has no bearing on the issue involved in this appeal. After considering the aforesaid aspect of the matter, we are of the considered view that without considering the intelligence reports of 31 police districts and 5 commissionerates obtained from the District Magistrates, Commissioners of Police, Superintendents of Police as also the assessment of Intelligence Branch, which were made available before the learned Single Judge, the learned Judge ought not to have arrived at a conclusion that the appellants had imposed the total prohibition without any data.
The order of the learned Single Judge was not based on materials on record or, in other words, the relevant facts and materials were not taken into consideration for arriving at the ultimate conclusion. In view of the above, the order impugned to this appeal requires consideration de novo taking into consideration the aforesaid intelligence inputs. Since no other point is required to be considered in this appeal, this appeal is treated as on day's list and the same is taken up for hearing. We have however not gone into the merits of the case.
In reply to the query of the Court whether the respondent No.1 was ready to start the yatras/rallies from tomorrow, they informed us that the same may be deferred to enable the appellants to impose further restrictions, if the appellants decided to impose further restriction.
The order impugned to this appeal stands quashed and set aside on the ground discussed hereinabove.
It is necessary to point out that the materials for consideration before the learned Single Judge including the 36 aforesaid intelligence reports received from the District Magistrates, Commissioners of Police, Superintendents of Police as also the assessment of Intelligence Branch, should have been taken into consideration.
Relying on a report from the Superintendent of Police, Birbhum, it is submitted by Mr. Singhvi that upon consideration of the above reports and a few others, the same could be handed over to the respondent No.1, provided the learned Single Judge found it necessary and permissible, although Mr. Singhvi claims privilege over those documents.
The writ application is remanded back to the learned Single Judge for consideration of the limited questions as to whether there were adequate materials on record to arrive at the conclusion that it was not possible to allow the yatras/rallies as proposed by the respondent No.1, with the hope and trust that the writ application will be disposed of expeditiously. This appeal and the application are disposed of accordingly. There will be, however, no order as to costs.
Later.
A prayer is made by Mr. S.K. Kapur for stay of operation of the order and the same stands rejected.
Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Debasish Kar Gupta, C.J.) (Shampa Sarkar, J.) 15