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2007 DIGILAW 92 (CAL)

GANESH CHAKRABORTY v. STATE OF WEST BENGAL

2007-02-14

DIPANKAR DATTA

body2007
( 1 ) THE two petitioners are residents of Singur, in the district of Hooghly. They claim to be members of the Krishi Banchao Committee, consisting of the people of Singur who have been protesting the action of the State Govt. in acquiring agricultural lands in Singur for the purpose of setting up of TATA small Car Project'. They have approached this Court in its Writ Jurisdiction questioning the validity and/or propriety of a prohibitory order under Section 144 of the Code of Criminal Procedure (hereafter the Code) promulgated by the sub-Divisional Magistrate, Chandernagore, respondent No. 3 herein, on 4. 2. 07 to be effective till midnight of 14. 2. 07. ( 2 ) BEFORE adverting to the contents of the impugned order and the rival submissions advanced at the Bar, certain facts may be noted. ( 3 ) BY notification dated 21. 7. 06 the Collector, Hooghly had issued notification under Section 4 of the Land Acquisition Act, 1894 (hereafter the said Act) conveying that lands as mentioned in the Schedule therein (being lands in different mouzas within Singur Police Station)were needed to be taken at the public expense for a public purpose, viz. employment generation and socio economic development of the area by setting up TATA Small Car Project and accordingly, inter alia, objections were called for from owners of the lands in question. Thereafter it appears that declaration in terms Section 6 of the said act was published on 28. 9. 06. Since the lands to be acquired for the TATA small Car Project were predominantly agricultural lands, there has been widespread violence in the district of Hooghly leading to loss of human lives and damage to property. The political parties of the State are at loggerheads on this issue, - while the ruling party is in favour of acquisition of agricultural lands for setting up industrial projects, the opposition are against it totally. This apparent conflict is yet to be resolved. It, however, appears that to diffuse the tension prevailing in the locality and to prevent further loss of life and damage to property, prohibitory orders under Section 144 of the Code have been promulgated for the area under Singur Police Station between 30. 11. 06 and 20. 12. 06, 20. 12. 06 and 30. 12. 06, 30. 12. 06 and 20. 1. 07, 20. 1. 07 and 28. 1. 07. 11. 06 and 20. 12. 06, 20. 12. 06 and 30. 12. 06, 30. 12. 06 and 20. 1. 07, 20. 1. 07 and 28. 1. 07. The impugned order is the 5th in the series of prohibitory orders issued under Section 144 of the Code in respect of the area under Singur Police Station. ( 4 ) BARE perusal of the order impugned would reveal that the same is purportedly based on a report of the Offtcer-in-Charge of Singur Police Station dated 4. 2. 07. It appears therefrom that it was reported by the said Officer-in-Charge that there had been attempts to damage Government property and incidents of abuses and sporadic manhandling by different rival groups in and around the land owned and possessed by West Bengal Industrial Development corporation Ltd. (hereafter the Corporation), and that on 4. 2. 07, fencing of the land owned and possessed by the Corporation had been damaged, bombs and stones were hurled and police personnel had been injured. Impressed by the materials placed before him that the building situation warrants immediate drawing up of order under Section 144 of the Code so as to prevent loss of human life, damage to property and breach of peace, and to protect the civil rights of the people of the locality at a time when the Secondary and Higher secondary Examinations are round the corner, the respondent No. 3 promulgated the impugned order whereby people either residing in or coming from outside into Singur Police Station area were prohibited from holding any meeting, rally, procession, demonstration, obstruction, squatting, etc. of whatever form in the singur Police Station area. ( 5 ) MR. Bandopadhyay, learned Counsel for the petitioners has raised the following points : 1]. factual details warranting an order under Section 144 of the Code have neither been disclosed in the order nor in the counter affidavit of the respondents ; 2]. statements in the counter-affidavit are not supported by documentary evidence. 3]. recital in the impugned order that land was possessed and owned by the Corporation is incorrect having regard to the fact that land had been acquired for TATA Small Car Project ; 4]. order had been passed under Section 144 to protect the private interest of the Tatas in the guise of public interest ; 5]. 3]. recital in the impugned order that land was possessed and owned by the Corporation is incorrect having regard to the fact that land had been acquired for TATA Small Car Project ; 4]. order had been passed under Section 144 to protect the private interest of the Tatas in the guise of public interest ; 5]. if the land acquired for TATA Small Car Project is sought to be protected, recourse ought to have been taken under Section 145 of the Code and recourse to Section 144 thereof was impermissible ; 6]. the rights of the petitioners guaranteed by Articles 19 (1) (b), (c) and (d) of the Constitution stand abrogated by reason of the impugned order ; 7]. having regard to the fact that prohibitory orders under Section 144 of the Code had been passed on four earlier occasions, the present order of prohibition to be effective from 4. 2. 07 to 14. 2. 07 is repetitive in nature and hence not sustainable in law ; and 8]. the action of the respondents impugned herein is dehors the provisions of Section 144 of the Code. ( 6 ) HE has relied on the decisions of the Supreme Court reported in air 1981 SC 2198 : Gulam Abbas v. State of U. P. (para 23), AIR 1984 SC 51 : Acharya Jagdishwaranand Avadhuta v. Commr. of Police (paras 14 and 15)and AIR 1988 SC 2181 : Bharat Singh v. State of Haryana (para 13) in support of his submissions. ( 7 ) PER contra, learned Additional Advocate General, appearing forthe state has questioned the maintainability of the writ petition on the ground of existence of an alternative remedy. Further, he has submitted that the order impugned does not suffer from any infirmity and as such this Court would be loath to interfere with the same. He has submitted that the respondent No. 3 on analysis of the volatile situation prevailing in the area in question was satisfied that the situation warrants promulgation of a prohibitory order and accordingly in exercise of power conferred by Section 144 of the Code, he has passed the impugned order. He has placed reliance on the decision of the Apex Court reported in (2004)4 SCC 684 : State of Karnataka v. Dr. He has placed reliance on the decision of the Apex Court reported in (2004)4 SCC 684 : State of Karnataka v. Dr. Praveen Bhai Thogadia and has submitted that matters relating to law and order being the domain of the administration, and the administrative authority having assessed the situation and passed an order depending upon the peculiar needs and necessities within his special knowledge substitution of his view by the Writ Court is not warranted acting as appellate authority. ( 8 ) WHILE dealing with the contentions urged on behalf of the petitioners, he has disputed that there is no disclosure of factual situation in the order impugned. He submits that the respondent No. 3 having perceived apprehension of breach of peace and loss of life, damage to property and invasion of civil rights of the general peace-loving public, there was immediate need to promulgate an order under Section 144 of the Code and there was no other alternative open to the respondent No. 3. It is his further submission that this Court has been unnecessarily troubled by the petitioners and the writ petition being without any substance and/or merit is liable to be dismissed. ( 9 ) IN reply, learned Counsel for the petitioners has contended that since there is a dispute with regard to the lands acquired for the TATA Small car Project, the prohibitory order could not have been made applicable in respect of the entire area under Singur Police Station in abrogation of the rights of the petitioners and other villagers guaranteed under Article 19 of the Constitution of india. He has also submitted that prohibitory order under Section 144 of the code has been promulgated not for the interest of the general public but to save the TATA Small Car Project and hence this amounts to abuse of power by the administrative authority. He has accordingly prayed for quashing of the order impugned. ( 10 ) IN course of hearing, this Court had enquired from the learned counsel for the State as to whether the report of the Off icer-in-Charge, Singur police Station, which purportedly formed the basis of the impugned prohibitory order, had been annexed to the counter affidavit or not. Since it was not annexed, a copy of the report was placed before this Court with copy thereof to the petitioners. Since it was not annexed, a copy of the report was placed before this Court with copy thereof to the petitioners. Before concluding his argument, learned Counsel for the petitioners invited the attention of this Court to the report of the Officer-in-Charge. It was addressed to the respondent No. 3, through the Circle Inspector, Tarakeswar and the Sub-Divisional Police Officer, Chandernagore, Hooghly (hereafter said S. D. P. O. ). On the left-hand side margin of the report two hand-written notes appear, one dated 4. 2. 07 of the Circle Inspector, Tarakeswar, Hooghly forwarding the report through the said S. D. P. O. with the recommendation for passing of necessary order, as prayed for, and the other one dated 5/2 of the S. D. P. O. Chandernagore with the endorsement "forwarded and recommended". Learned counsel submits that since the said S. D. P. O. had forwarded the report of the officer-in-Charge to the respondent No. 3 with recommendation only on 5. 2. 07, no report or complaint or application was before him on 4. 2. 07 and as such no order could have been passed on 4. 2. 07, unless of course the authority was predetermined to promulgate the prohibitory order. ( 11 ) THIS Court had then called upon learned Counsel for the State to produce the report of the Officer-in-Charge in original. The same has been handed over to this Court after closing of Court hours on 13. 2. 07 with explanations of the said S. D. P. O. (addressed to the S. D. O) and the respondent No. 3 (addressed to the Additional Advocate General) both dated 13. 2. 07, which shall be dealt with at a later stage of this judgment. ( 12 ) THE objection regarding maintainability of the writ petition on the ground of existence of efficacious alternative remedy raised by learned Counsel for the State stands overruled in view of the law laid down by the Apex Court in its decision reported in AIR 1971 SC 33 : L. Hirday Narain v. Income Tax officer (para 13) and the petition, in which a complaint of infringement of fundamental rights has been made, is held to be maintainable in view of the law laid down in Gulam Abbas (supra ). ( 13 ) IN view of the law laid down in Dr. ( 13 ) IN view of the law laid down in Dr. Praveen Bhai Thogadia (supra)by the Apex Court, for interfering with an order passed under Section 144 of the code, a concrete case has to be made out "1. of abuse or exercise of sweeping powers for extraneous considerations by the authority concerned ; 2. that the authority has acted at the behest of those in power for political victimization ; and 3. that the order is patently illegal and without jurisdiction or has been passed with ulterior motives, but, normally interference should be the exception rather than the rule and, appreciating that the decision as to the need and necessity to take prohibitory actions, is to be taken by the administrative authority the Court must leave it to the discretion of those entrusted with the duty of maintaining law and order and would not in such matters substitute its view for that of the competent authority. " ( 14 ) KEEPING in mind the above, this Court proceeds to consider as to whether a case has been made out for interference or not. ( 15 ) THIS Court is of the view that the last point urged by learned Counsel for the petitioners is required to be considered first, for if that point succeeds, there would be no necessity to discuss the other points. ( 16 ) THE impugned prohibitory order, as noticed earlier, is based on the report of the said Officer-in-Charge. The same was addressed to the respondent no. 3 but was to be routed through the Circle Inspector, Tarakeswar and the said S. D. P. O. In the counter affidavit (para 13) affirmed by the incumbent in the office of the Sub-Divisional Magistrate, Chandernagore, the stand of the respondents is as follows : "*** On 4th February, 2007, the Officer-in-Charge of this Singur Police station requested him to promulgate an order under Section 144 of the criminal Procedure Code. In a complaint the said Officer-in-Charge informed him that on 28th January, 2007, the agitated mob damaged the fencing of the West Bengal Industrial Development Corporation and moreover, there was heavy tension in different places. Even on 4th february, 2007, the agitated mob after forming unlawful assemble hurled bombs, fired from arms and attached the Police personnels. Even it was stated further that the agitated mobs were continuously trying to create serious law and order problems. Even on 4th february, 2007, the agitated mob after forming unlawful assemble hurled bombs, fired from arms and attached the Police personnels. Even it was stated further that the agitated mobs were continuously trying to create serious law and order problems. Naturally, for the best interest of preservation of public peace and tranquility the present respondents had to pass an order on 4th February, 2007" . ( 17 ) IN view of the fact that the said S. D. P. O. forwarded and recommended the complaint/report of the said Officer-in-Charge on 5. 2. 07, question that arises in the circumstances is how and on what basis did the respondent No. 3 on 4. 2. 07 proceed to form an opinion that immediate preventive action is called for. On the basis of the materials placed, this Court is enable to accept the version in the counter affidavit as true and correct and, on the contrary, this Court is inclined to hold that for exercise of power under Section 144 of the code by the respondent No. 3, neither the condition precedent was fulfilled nor was the foundation laid. The respondent No. 3 by promulgating the impugned order on 4. 2. 07 abused his powers for extraneous considerations. This Court further holds that the impugned order was a pre-determined and pre-judged act of the respondent No. 3. A concrete case for interference having been made out, this Court holds the impugned prohibitory order to be an act of executive highhandedness as a consequence of which the petitioners' rights guaranteed by Article 19 of the Constitution have been unreasonably restricted. The impugned order, accordingly, stands quashed. ( 18 ) THIS Court, before parting, would like to advert to another aspect of the matter. Alongwith the report of the Officer-in-Charge in original, purported explanations of the incumbents in the offices of the said S. D. P. O. and the respondent No. 3, both dated 13. 2. 07, have been furnished to this Court. Since these purported explanations could not be made over to learned Counsel for the petitioners, this Court initially was reluctant to consider it. However, having glanced through the same, this Court is unable to accept the explanations furnished which have not found place in the counter-affidavit filed on behalf of the respondents, and appears to have been tendered by the officers concerned after judgment on this petition was reserved. However, having glanced through the same, this Court is unable to accept the explanations furnished which have not found place in the counter-affidavit filed on behalf of the respondents, and appears to have been tendered by the officers concerned after judgment on this petition was reserved. Writ petitions are decided on the basis of affidavit evidence. What is not there in an affidavit of the concerned officer (s) cannot be looked into. To the mind of this Court, the explanations furnished are nothing but afterthought. This conclusion of the Court is fortified by the fact that the respondent No. 3 in the impugned prohibitory order has referred to incidents of damage caused to the fencing of land owned and possessed by the said Corporation, although the fact remains, the report of the officer-in-Charge dated 4. 2. 07 neither makes any reference to any land being owned and possessed by the said Corporation which was subjected to damage nor is there anything on record which could even, prima facie, prove that the lands acquired for the TATA Small Car Project have now become the lands of the Corporation. ( 19 ) FOR the reasons aforesaid, this writ petition succeeds. However, there shall be no order for costs. ( 20 ) BE it recorded that this Court has not examined the other points raised on behalf of the petitioners since it was not found necessary to do so. ( 21 ) THE explanations of the said S. D. P. O. and the respondent No. 3 and the original complaint of the said Officer-in-Charge with the endorsements of the said S. D. P. O. and the Circle Inspector be returned to the learned Counsel for the State. However, copies thereof, duly countersigned by the Assistant registrar (Court) be retained with the records.