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2009 DIGILAW 4552 (MAD)

K. Karunthamalai v. District Collector

2009-10-28

D.MURUGESAN, S.NAGAMUTHU

body2009
D.Murugesan,J:-The instances of questioning the administration in regulating procession on a particular route to maintain law and order are not new for the Court, as it had seen number of such challenges. One of such challenge is by the petitioner, claiming to be the President of Maravar Sangam, Mandalamanickam Village, as espoused before this Court in this writ petition. 2.Pasumpon Muthuramalinga Thevar's 102nd Jayanthi is to be held on 30th October, 2009 at his birth village, namely Pasumpon. Pasumpon Muthuramalinga Thevar was an icon in the political life in Southern Tamil Nadu, later on recognised as such in the national stream. He had adopted a simple and strict life style and interacted with all caste people in local communities. Pillars of Pasumpon Muthuramalinga Thevar's political thought were among spiritualism and nationalism. Muthuramalinga Thevar's Jayanthi to be held on 30.10.2009 has given cause for the petitioner to approach this Court for a direction to the respondents to permit the villagers belonging to Mandalamanickam village to worship Muthuramalinga Thevar statue in the said village, while they come back from Usilampatti to Pasumpon via. Madurai, Kariapatti, Thiruchuli, Muthuramalingapuramputhur, Mandalamanickam, Kamuthi, Kottai Medu, before they reach Pasumpon Village. 3.According to the petitioner, he is a freedom fighter and he and the villagers had been conducting Thevar Jayanthi and Guru Pooja function every year on 30th October for the last 47 years. The practice hitherto adopted was that the villagers, presently numbering 60, will leave Mandalamanickam village to Usilampatti, through Muthuramalingapuramputhur, on 28th October, they take Torch from Usilampatti and come back to their village on 29th October only through Muthuramalingapuramputhur and after having darshan at Muneeswaran Temple and Muthuramalinga Thevar Statue in their village, they leave to Pasmpon Village. This year, the respondents are not allowing the villagers to go to Usilampatti via.Muthuramalingapuramputhur and again from Usilampatti to their village through Muthuramalingapuramputhur on the ground of anticipated law and order problem. There is no reason exist for such an apprehension and if the route is diverted, the procession had to further cover 60 kilometres more, resulting in hardship. 4.According to the learned counsel for the petitioner Mr.M.Ramadhas, inasmuch as the right to take out a procession is considered to be a fundamental right under Article 19 of the Constitution of India, such a right cannot be restricted without even there being any opportunity given to the petitioner. 4.According to the learned counsel for the petitioner Mr.M.Ramadhas, inasmuch as the right to take out a procession is considered to be a fundamental right under Article 19 of the Constitution of India, such a right cannot be restricted without even there being any opportunity given to the petitioner. The practice hitherto adopted for over a period of 47 years cannot, all of a sudden, be curtailed. Hence learned counsel for the petitioner would submit that the procession shall be permitted to pass through Muthuramalingapuramputhur this year as well and the petitioner is, in fact, prepared to give an undertaking on behalf of himself and the villagers in whole for ensuring peace during the procession in order to maintain law and order. 5.In response to the notice, the District Collector, Ramanathapuram District, has filed a counter affidavit. It is averred therein that as the processions are to be taken from various Districts like Madurai, Theni, Pudukkottai, Sivagangai, Tiruneveli, Tuticorin and Virudhunagar, a coordination meeting, consisting of the District Collectors, Superintendents of Police, Regional Transport Officers of the above seven Districts and all the District Level Officers of Ramanathapuram District, was held on 08.10.2009. In the said meeting, it was decided to allow Thevar's Jayanthi Rally and Mulaippari till 29.10.2009. During the meeting, various strategies for ensuring peaceful conduct of Thevar Jayanthi Celebrations were discussed and it was also unanimously decided that all processions, including Jothi Rally and carrying of Mulaippari pots, would be allowed till 29.10.2009, considering the security aspect and free flow of traffic. In so far as allowing the procession through Muthuramalingapuramputhur village, in view of the incident that had taken place during October, 2008 i.e. during Thevar Jayanthi Celebrations held last year, the committee found that in view of the criminal cases pending at the instance of both the people belonged to Thevar Community as well as Scheduled Caste, it was decided not to allow the procession through Muthuramalingapuramputhur Village. That decision was also taken keeping in mind some of the representations made by scheduled caste people of Muthuramalingapuramputhur Village that such procession should not be allowed to be taken through their village as it would create law and order problem. 6.A counter affidavit has also been filed on behalf of the Superintendent of Police, Ramanathapuram District, the 2nd respondent herein, wherein a similar stand has been taken. 6.A counter affidavit has also been filed on behalf of the Superintendent of Police, Ramanathapuram District, the 2nd respondent herein, wherein a similar stand has been taken. An additional counter affidavit has also been filed by the Superintendent of Police, Ramanathapuram District, which we place on record. 7.One of the villagers of Muthuramalingapuramputhur has also filed a petition to implead himself in the writ petition. The said petition came to be filed with the averment that the members of scheduled caste community used to pay respect and homage to their community leader, namely Immanuel Sekaran, by taking a procession from their village to Paramakudi during September of each year and the usual customary route is that the procession should pass through Mandalamanickkam village to reach Paramakudi. In view of the incident that occurred during October, 2008, some members of Mandalamanickam Village opposed such a procession being taken through their village during September, 2009. Therefore, the villagers of Muthuramalingapuramputhur agreed not to take out the procession through Mandalamanickam village to go to Paramakudi, in a Peace Committee Meeting that was held on 04.09.2009. It was understood that as a measure to maintain law and order, the procession to be taken during Thevar Jayanthi should not also be allowed to pass through Muthuramalingapuramputhur village. If any such procession is allowed to pass through Muthuramalingapuramputhur, it may lead to law and order problem. 8.Learned Special Government Pleader appearing for the respondents would submit that the procession, which is sought to be taken by the villagers of Mandalamanickam, is not allowed to pass through Muthuramalingapuramputhur only keeping in mind the maintenance of law and order and which action was due to certain untoward occurrence that had taken place during the last year's Thevar Jayanthi Celebrations, resulting in registration of cases on either side. He would further submit that it is not as if the petitioner had to travel a further distance of 60 kilometres but, the difference in distance is only 20 kilometres. He would further submit that it is not as if the petitioner had to travel a further distance of 60 kilometres but, the difference in distance is only 20 kilometres. Learned Special Government would also submit that the right of the villagers of Mandalamanickam to worship Muneeswaran Temple and Thevar Statue in their village, before or after they take Torch from Usilampatti, is not in any way curtailed, except a deviation made in the route for the procession and hence Article 19 of the Constitution of India cannot be pressed into service, particularly when the law enforcing authorities are bound to ensure peace and public order and for that purpose they are entitled to take a decision as to the route. 9.We have considered all the respective submissions. 10.The first contention of the petitioner is that the right of the people of Mandalamanickam village to worship Pasumpon Muthuramalinga Thevar's statue in Mandalamanickam Village while coming from Usilampatti to Pasumpon via.Madurai has been restricted. We may point out that, there is no such restriction imposed by the respondents. The counter affidavits filed on behalf of the District Collector and the Superintendent of Police disclose that the villagers are to enter Mandalamanickam Village from Usilampatti, while they proceed towards Pasumpon. The said submission on restriction was placed based on Article 19 of the Constitution of India. Of course, the petitioner may have some grievances, if a total restriction for entering into that village to offer prayer to Pasumpon Muthuramalinga Thevar Statue and worship Muneeswaran Temple is imposed. That is not the case, which is factually available before us. Hence, the grievance that the petitioner's right guaranteed under Article 19 of the Constitution of India is curtained is not well founded. This takes us to the next question as to whether by asking the petitioner to take a diverted route their right as guaranteed under Article 19 of the Constitution is infringed. In this context, we may refer to Section 41 of the Chennai City Police Act. This takes us to the next question as to whether by asking the petitioner to take a diverted route their right as guaranteed under Article 19 of the Constitution is infringed. In this context, we may refer to Section 41 of the Chennai City Police Act. 11.The provisions of Section 41 (1) of the Chennai City Police Act, 1888, which is also applicable for the District Administration, empowers the police authorities to regulate assemblies, meeting and processions in public places, including prescription of routes by which and the times at which such processions shall pass and keep order in public places and prevent obstructions on the occasion of such assemblies, meetings and processions. This power of the law enforcing authorities is not disputed. While sub-section(1) of Section 41 relates to the power of the Commissioner to grant permission, sub-section(2) to Section 41 relates to the power of the Commissioner to prohibit any procession, if such prohibition is necessary for preservation of public peace or public safety. For such a permission, the person who intends to take out such procession shall make an application to the authority and a procedure is also contemplated before grant of such permission. 12.A careful reading of the above provisions of the Act would show that the power to regulate the procession given to the authorities concerned, though is not absolute but, has to be exercised reasonably. While exercising the said power, the authorities must keep in their mind as to the public order and for that matter the anticipated law and order problem that may occur enroute. The decision of the authority must be reasonable and the test of reasonableness is that whether it is arbitrary or of an excessive nature so as to go beyond the requirement of the interest of general public and whether there exists a direct and proximate nexus or reasonable connection between the restrictions imposed and the purpose for which such restrictions are imposed. Article 19 of the Constitution of India can be invoked only when there is a permanent restriction directly infringing a fundamental right. However, the said Article cannot be made applicable in the event of prohibition is made for a procession on a particular route and when such prohibition is only to regulate the procession in the interest of general public and to maintain public order. However, the said Article cannot be made applicable in the event of prohibition is made for a procession on a particular route and when such prohibition is only to regulate the procession in the interest of general public and to maintain public order. A decision prohibiting such procession, which is otherwise in the form of regulation, cannot be considered to be violation of Article 19 of the Constitution of India. 13.The submission of the learned counsel for the petitioner that even a deviation of a route would offend the fundamental right guaranteed under Article 19 of the Constitution of India, in our opinion, is on misconception, as identifying the route for procession is mere regulation which ought to be regulated by the authorities, of course, reasonably and not arbitrarily. The right guaranteed under Article 19 of the Constitution of India cannot be claimed as an absolute right and such right is subject to reasonable restriction in the form of regulations. Therefore, the 1st contention of the petitioner that the right hitherto enjoyed to take out a procession from their village Mandalamanickam to Usilampatti and from Usilampatti to Mandalamanickam through Muthuramalingapuramputhur cannot be taken away since such action offends Article 19, cannot be accepted. Any decision taken by the authorities in public interest, which is paramount and such decision stand scrutiny of reasonableness, the Court cannot substitute its own reason while exercising the power of judicial review and should leave decision to the authorities discretion. The only concern of the Court would be that at the guise of exercise of the power, the authorities should not act either by imposing unreasonable restrictions or acting contrary to the fairness. In this context, we may refer to a Division Bench decision of this Court in Vinayaga Chathurthi Madhya Kuzhu v. State of Tamil Nadu, reported in 1997 MLJ (Crl.) (Vol.XLI) page 142. ; 1997 1 MLJ 142 14.As far as the right of the villagers to take out procession on a particular route is concerned, we may point out that the villagers as such are not before this Court. The petitioner, who claims to be the president of Maravar Sangam of Mandalamanickam Village, alone is before this Court. ; 1997 1 MLJ 142 14.As far as the right of the villagers to take out procession on a particular route is concerned, we may point out that the villagers as such are not before this Court. The petitioner, who claims to be the president of Maravar Sangam of Mandalamanickam Village, alone is before this Court. Even otherwise, when the question of such right is considered, in our opinion and particularly as has been pointed out by the Apex Court in more than one case, the liberty of an individual to do as he pleases, even in innocent matters, must yield to the common good. In other words, the police power of the State is founded on the theory that when there is conflict between the rights of individual and the interest of the society, the interest of the society must prevail. We may usefully refer the judgment of the Apex Court reported in 2004(2) CTC 690 - Commissioner of Police and Others vs. Acharya Jagadishwarananda Avadhuta and another, wherein the Apex Court has held that in an organized society, there cannot be any individual right which is injurious to the community as a whole. Of course, the Supreme Court had also cautioned that the power of the Police is not absolute and must not be arbitrary or oppressive and the police power must be exercised for preservation of the community from injury. The Apex Court had further observed that what our Constitution attempts to do is to strike a balance between individual liberty and social control. 15.Keeping the above in mind, the facts of the present case must be considered. Of course, this Court cannot hold that the petitioner or the villagers, as the case may be, have no right to take out a procession during the Thevar Jayanthi as has been practised by them for almost 47 years. Factually, such practice is not curtailed in any manner for this year as well. The practice, as could be seen from the affidavit, is that they used to leave the village on 28th October of every year from their village to Usilampatti, of course via. Muthuramalingapuramputhur, and thereafter taking Torch from Usilampatti they again come back to their village through the same Muthuramalingapuramputhur village to worship in Muneeswaran and Muthramalinga Thevar Statue in their village before leaving for Pasumpon Village. Muthuramalingapuramputhur, and thereafter taking Torch from Usilampatti they again come back to their village through the same Muthuramalingapuramputhur village to worship in Muneeswaran and Muthramalinga Thevar Statue in their village before leaving for Pasumpon Village. 16.When such a procession was allowed to be taken during Muthramalinga Thevar Jayanthi Celebrations last year, there were some untoward incidents in Muthuramalingapuramputhur, resulting in law and order problem which ultimately led to registration of case in Crime No.272 of 2008 on the file of Tiruchuli Police Station, Virudhunagar District, for the offences punishable under Sections 147, 148, 448, 379(NP) IPC read with Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act read with Section 3 of TNPPDL Act. That complaint was preferred at the instance of some of alleged affected scheduled caste people. Equally, a counter complaint was also preferred by Thevar Community people which was also registered in Crime No.273 of 2008 on the file of the very same police station for the offences punishable under Sections 147, 148, 341, 323 and 336 IPC. Learned Special government Pleader, on instructions, submitted that charge sheets have been filed in both the cases and in respect of Crime No.272 of 2008 the charge sheet has been taken on by the Court and such cognizance was not taken in respect of the other case. As the matters are pending before the concerned court, we are not expressing any opinion as to the offences in which respective villagers have been implicated. We had referred to the above aspects only to impress in our order as to some sort of law and order problem that had occurred during the last year's Thevar Jayanthi Procession when it was taken through Muthuramalingapuramputhur village, where majority residents belong to Scheduled Caste and Scheduled Tribe communities. 17.There is one more aspect. The people of Muthuramalingapuramputhur also used to take out a procession in the month of September every year from their village to Paramakudi via. Mandalamanickam Village, where majority of the residents belong to Thevar community, to celebrate Guru Pooja of their leader Immanuel Sekaran. In view of the earlier occurrence, which we have referred to above, Virudhunagar District Administration convened a Peace Committee Meeting on 04.09.2009, particularly in view of the fact that the villagers of Mandalamanickam Village had objected the villagers of Muthuramalingapuramputhur to take out the procession through their village to Paramakudi. In view of the earlier occurrence, which we have referred to above, Virudhunagar District Administration convened a Peace Committee Meeting on 04.09.2009, particularly in view of the fact that the villagers of Mandalamanickam Village had objected the villagers of Muthuramalingapuramputhur to take out the procession through their village to Paramakudi. In the said Peace Committee Meeting, the members of scheduled caste community had preferred to take out the procession in an alternative route to reach Paramakudi, without touching Mandalamanickam Village. It appears that such a gesture was shown by those members only expecting similar gesture from the villagers of Mandalamanickam village not to take out the procession through their village at the time when Thevar Jayanthi Torch is carried on during Thevar Guru Pooja. These are some of the aspects which had weighed in the minds of the law enforcing machinery to divert the route, which, according to our view, is not either unreasonable or oppressive as indicated by the Apex Court. In Acharya Jagadishwarananda Avadhuta's case, the Apex Court has also recognised the power of the police authorities to prescribe the routes by which and the times at which such processions may pass, in order to keep the public places and prevent obstructions on the occasion of such processions. 18.The only question remains to be considered is whether the diverted route will cause hardship to the villagers of Mandalamanickam. In the wake of the rival submissions, though it is not 60 kilometres diversion and only 20 kilometres, certainly it is an additional distance to be covered by the villagers of Mandalamanickam on both ways from Mandalamanickam to Usilampatti and Usilampatti to Mandalamanickam village. But, this hardship must yield to the public order. We are told that the villagers of Mandalamanickam can go to Kamuthi and take Manvillakku and other routes, either through Tiruchuli or through Aruppukkottai, to reach Madurai and Usilampatti and vice versa, without touching Muthuramalingapuramputhur. It is not as if they are totally prevented from entering into their village to worship Muneeswaran Temple and the statue of Muthuramalinga Thevar. 19.In view of the past experience, the regulation regarding diversion of the route cannot be found fault. At the same time, we are conscious of the fact that the villagers of Mandalamanickam had been taking out this procession in question only through Muthuramalingapuramputhur village for all these years. 19.In view of the past experience, the regulation regarding diversion of the route cannot be found fault. At the same time, we are conscious of the fact that the villagers of Mandalamanickam had been taking out this procession in question only through Muthuramalingapuramputhur village for all these years. Had the Court been given sufficient time, it would have explored the possibility of convening another peace committee meeting between the two villagers to sort out their differences, if any, and to come to an amicable settlement. For the said reason as well, we are not inclined to interfere with the alternative route suggested by the respondents for this year. The petitioners are entitled to take out the procession from Mandalamanickam to Usilampatti and Usilampatti to Mandalamanickam in any other route, except touching Muthuramalingapuramputhur village for this year. Insofar as the ensuing year is concerned, we expect the District Administration to convene such a Meeting well in advance, preferably during the Month of August and we also expect both the villagers will come to terms to enjoy their respective rights to enter into respective villages. In fact, such an exercise could have been carried on by the District Administration when earlier peace committee meeting was held on 04.09.2009 or subsequently when the Collectors met on 08.10.2009. But that is past and we must only think of the future. 20.Hence we are not inclined to grant the relief sought for by the petitioner to take out the procession from Mandalamanickam village to Usilampatti via Muthuramalingapuramputhur village again from Usilampatti to Mandalamanicakm via Muthuramalingapuramputhur village during this year and we clarify that the members of petitioner village are entitled to take out the procession for this year on any other route, except passing through Muthuramalingapuramputhur village. We also expect that the members of both the community should keep in their mind the fundamental duty which is enshrined in Article 51(A)(e) of the Constitution of India to conduct themselves to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities. 21.With the above observation, the writ petition is disposed of. No order as to costs. Connected M.P.(MD)No.1 of 2009 is closed.