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2017 DIGILAW 79 (CAL)

Sasanka Sekhar Dey v. State of West Bengal

2017-01-13

JOYMALYA BAGCHI

body2017
JUDGMENT : 1. The petitioners have again approached this Court on being refused permission for holding annual drill as a part of Makar Sankranti Utsab on behalf of their organisation by the State authorities. By an earlier order dated January 11, 2017 in W.P. 531(W) of 2017, this Court directed the respondent No.2, namely, Commissioner of Police to consider the representation of the petitioners for grant of permission for holding such drill at Bhukailash Maidan or Brigade parade ground within 24 hours of receipt of such application. 2. Pursuant to such order, the petitioner No.1 made a representation to the respondent No.2 which, however, came to be dealt with by respondent No.3 and such permission was declined. The reasons for declining permission to the petitioners' organisation are set out hereinbelow : "In so far as Brigade Parade Ground is concerned, this is to inform you that the Gangasagar Mela Transit Camp, as in earlier years, has commenced in the Maidan area and its surroundings from 8th instant and shall continue till 18th January, 2017. You are suely aware that lakhs of Gangasagar-bound pilgrims from different parts of the country congregate in the transit camp area during this period which necessitate elaborate police arrangements. Thousands of Gangasagar-bound vehicles also remain parked in the entire Maidan area. The crowd and the number of vehicles swell to its maximus on 13th and 14th January, the latter being the holy day of "Makar Sankranti". The police arrangements are accordingly further escalated on these days. Keeping in view the law and order commitments and attendant security considerations towards ensuring the safe and smooth passage for the lakhs of Gangasagar-bound pilgrims stationed in the Maidan area and its surroundings, the proposed event by RSS ON 14th January in the Brigade Parade around, situated in the heart of the Maidan area, and likely to be attended by about 4000 participants in the presence of Sarsanghchalak Shri Mohan Ji Bhagwat (a Z+ category protectee) as intimated to this office, is not advisable under any circumstances. As regards Bhukailash Maidan, the other proposed venue for the event, please be informed that the place can accommodate at most a strength of 500 people while the number of participants, as intimated in the memo under reference, would be 4000. The consequent space crunch will inevitably cause possibilities of over crowding and a stampede. As regards Bhukailash Maidan, the other proposed venue for the event, please be informed that the place can accommodate at most a strength of 500 people while the number of participants, as intimated in the memo under reference, would be 4000. The consequent space crunch will inevitably cause possibilities of over crowding and a stampede. Further, the dimensions of tire ground are such, with entry and exit points not being wide enough, that there is neither any scope of putting and effective evacuation plan in place nor there is adequate space for Emergency Service vehicles like fire tenders or ambulances to negotiate in the event of exigencies. It is precisely due to such inescapable security constraints that there is no precedence of any meeting of the proposed scale at Bhukhailash Maidan, more so in the presence of high security protectees. In sum, in the interest of general security and public order, you are, therefore, asked not to organize the proposed meeting at either of the proposed venues on 14th January, 2017 and to defer the same to a subsequent date under intimation to this office well in advance.” 3. Mr. Anindya Kumar Mitra, learned senior counsel appearing on behalf of the petitioners submits that the impugned order of rejection is perverse inasmuch as it merely records the opinion of the respondent authorities, but does not give reasons in arriving at such conclusion. Drawing my attention to the finding that Bhukailash Maidan can accommodate 500 people only, he submits that the area of the said place would accommodate a large number of persons. He relies on a Google Map in support of such contention. He further submits that the rejection of permission with regard to the Brigade Parade Ground is far more evasive and non-specific in nature. No doubt, pilgrims have assembled for Gangasagar mela in and around the Maidan, but assemblage of such pilgrims is no justification to deny permission to the petitioners' organisation which is seeking to organise an annual drill on Makar Sankranti eve at Brigade Parade Ground. He further submits that there is no specific assessment made as to number of police personnel deployed for Makar Sankranti pilgrims and the inability of the State to permit the function of the petitioners' organisation is clearly based on mere surmise and conjecture. 4. Mr. He further submits that there is no specific assessment made as to number of police personnel deployed for Makar Sankranti pilgrims and the inability of the State to permit the function of the petitioners' organisation is clearly based on mere surmise and conjecture. 4. Mr. Mitra relies on an unreported decision of a Division Bench of this Court in Mat No.46 of2017 wherein permission had been granted by the Court to hold a mela although such prayer had been turned down by the local municipality. 5. On the other hand, the learned Advocate General submits that the assessment as to law and order is a subjective one and the Courts cannot substitute its opinion in place and stead of the law enforcement agencies. He relies on a Supreme Court report in Ram Manohar vs. State of Bihar, A.I.R 1966 S.C. 740 in support of such contention. He further submits that due to heavy assemblage of men and vehicular traffic in the Maidan during Gangasagar mela there is shortage of police personnel and accordingly it would be difficult to manage a spectacle as the annual drill as proposed by the petitioners' organization which naturally would attract public attention. He further submits that unlike the order under challenge before the Hon'ble Division Bench of this Court, the police authorities had requested the organisers to defer the function to a more convenient date. He also submits that holding of the drill at Bhukailash Maidan has been objected to not only on the ground of capacity but also due the situs of the open space which is in a densely populated area and there is difficulty for maneuvering for emergency services like, fire tenders and ambulances therein. 6. In reply, Mr. Mitra submits that his clients are ready and willing to undertake that there would be no assemblage of people apart from the invitees to the annual drill, which is 4000 in number. He further submits that the apprehension of the police authorities are fanciful and not based on relevant materials as the petitioners' organisation seeks to hold a disciplined drill of the invitees to the function and nothing more. He further submits that the apprehension of the police authorities are fanciful and not based on relevant materials as the petitioners' organisation seeks to hold a disciplined drill of the invitees to the function and nothing more. He submits that it was wholly within the knowledge of the police authorities that the sentiments of organisation are attached the subject day, Damely, Makar Sankranti Day and holding the annual drill as a celebration on such auspicious day in the purpose of the assemblage which cannot be deferred. In support of such submission he indicates that the permission of the army authorities who are the in-charge of the Brigade Parade Ground have been asked for and granted for that specified date alone. 7. At the outset, I note with extreme displeasure the conduct of the respondent No.2 in not complying with the earlier order passed by this Court wherein I had called upon the said respondent to consider the representation of the petitioner No. 1. Rules of business of the State cannot override an order passed by this Court calling upon an officer to consider the representation as had been done in the instant case. In terms of the aforesaid order of this Court, the petitioner No.1 had duly made a representation to the respondent No.2, who was also represented by his learned counsel in. the earlier proceeding before this Court. Therefore, I conclude that the respondent No.2 was fully aware of the order passed by this Court and the direction contained therein which called upon him to consider the said representation. There is also no whisper in the impugned order as to why and under what circumstances, the respondent No.2 failed or neglected to consider such representation and the same was considered by another officer, namely, the respondent No.3. 8. Under such circumstances, prima facie, I am of the opinion that such act on the part of the respondent No.2 is an wilful, deliberate and contumacious violation of the order dated January 11, 2017. As such, I issue a suo motu rule of contempt upon him. Such Rule is returnable by two weeks hence. Although the impugned order passed by the respondent No.3 ought to be set aside on the aforesaid ground alone, I have examined the order on its own merits. 9. As such, I issue a suo motu rule of contempt upon him. Such Rule is returnable by two weeks hence. Although the impugned order passed by the respondent No.3 ought to be set aside on the aforesaid ground alone, I have examined the order on its own merits. 9. The issue which falls for decision is whether the impugned order amounts to an unreasonable restriction on the right of the petitioners to hold a peaceful assembly for the purpose of celebrating Makar Sankranti day by way of an annual drill. Pursuant to the order passed by this Court, prayer was made before the respondent authorities for holding such annual drill either at Brigade Parade Ground or Bhukailash Maidan. While the prayer for Bhukailash Maidan appears to have been turned down on the ground of lack of capacity to accommodate 4000 persons and the difficulty of arranging for movement of emergency service vehicles like fire tenders and ambulances, the prayer for Brigade Parade Ground holding that it is rebutted "not advisable" under any circumstances to hold the annual drill in view of the fact that there is assemblage of Gangasagar pilgrims near the maid an and large police arrangements have to be made for such purpose. In conclusion the authorities have proposed that the petitioners' organisation may hold the drill on any other subsequent date. 10. With regard to proposal of holding the annual drill on another day, I am of the opinion that the same is a decision of the petitioners' organisation and it appears from the submission made at the Bar that a sentiment of the organisation attached to the particular day, namely, Makar Sankranti day and it intends to hold the annual drill on that date itself. On such premise it has been argued that the prayer for postponement of the annual drill is contrary to the very object and purpose of the organisation to hold such drill and that the permission of the army authorities have been obtained for that day alone keeping such sentiment in mind. 11. It is for the organisation to decide the day it chooses to hold the function for its members. However, it is also wholly within the power of the State to decline permission for such public assemblage but only if the assemblage causes an imminent apprehension as a breach of public order or safety in the area. 11. It is for the organisation to decide the day it chooses to hold the function for its members. However, it is also wholly within the power of the State to decline permission for such public assemblage but only if the assemblage causes an imminent apprehension as a breach of public order or safety in the area. From such premise I have examined the reasons given by the State in not permitting the organization in holding its annual drill at Brigade Parade Ground on January 14, 2017. The crux of the reason is that there is an assemblage of Gangasagar bound pilgrims at a nearby place and a large deployment of police personnel had to be made on such score. However, there is no application of mind to the issue that the function proposed to be held by the petitioners' organization is only by invitation alone. Admittedly, there is no difficulty in accommodating the number of invitees, that is, four thousand in number at Brigade Parade ground although the same in the organization of the State to decline the prayer of the petitioners. If the assemblage of invitees to the function is not for an unlawful, purpose (which is not the case of the respondents), then such assemblage at a public place ought not to be restrained until and unless there is an imminent threat to the breach of public order. Even then, the restraint must be just and reasonable balancing the interest of the individual with that of public safety. It must not only the reasonable but also least invasive and minimal. In Ramlila Maidan Incident, In Re: (2012)5 SCC 1 , the Court held: "58.............. the requirements of existence of sufficient ground and need for immediate prevention or speedy remedy is of prime significance. In this context, the perception of the officer recording the desired/contemplated satisfaction has to be reasonable, least invasive and bona fide. The restraint has to be reasonable and further must be minimal. Such restraint should not be allowed to exceed the constraints of the particular situation either in nature or in duration. The most onerous duty that is cast upon the empowered officer by the legislature is that the perception or threat to public peace and tranquillity should be real and not quandary, imaginary or a mere likely possibility." 12. Such restraint should not be allowed to exceed the constraints of the particular situation either in nature or in duration. The most onerous duty that is cast upon the empowered officer by the legislature is that the perception or threat to public peace and tranquillity should be real and not quandary, imaginary or a mere likely possibility." 12. The apprehension expressed in the impugned order are general and omnibus in nature, namely, assemblage of persons for Gangasagar Mela at a nearby place and police arrangement deployed for such purpose. In the city of Kolkata one can take note of judicial notice of fact that on several occasions in the past more than one public assemblage have been permitted simultaneously at short distances. For example, during Pujas a large number of Puja celebrations of Mammoth proportions have been permitted by the police authorities cheek by jowl with demur. On the other hand, the factual matrix of the instant case portrays a much better position. The petitioners' organization had not pressed an open assembly but one which is altered only on invitation and the activities at the assembly has also been specifically delineated. Chance of disorderly behaviour in such assemblage of specified invitees for a physical drill only dues not appear to be substantial to whittle down the fundamental rights of the petitioners. Therefore, I am of the opinion that the reasons given by the respondent authorities in declining the permission to the petitioners in holding the annual drill for its invitee members at Brigade Parade ground are vague and speculative in nature. Nothing has been placed on record from the facts of the case that there is an imminent threat to breach of public order, if the petitioners' organization is permitted to hold its annual drill at the Brigade Parade ground. 13. Under such circumstances I am constrained to quash the impugned order dated January 12, 2017 passed by the respondent no. 3 not only on the ground that the same is not in consonance with the direction passed by this Court in WP. 531(W) of 2017 but also on its merits. 14. In AIR 1966 SC 740 (supra) the Apex Court dealt with an order of preventive detention and held that the Court could not go into the sufficiency of reasons for passing such order. 531(W) of 2017 but also on its merits. 14. In AIR 1966 SC 740 (supra) the Apex Court dealt with an order of preventive detention and held that the Court could not go into the sufficiency of reasons for passing such order. In the instant case, I have examined as to whether the impugned order is a unreasonable restriction on the right of the petitioners to hold an assemble which naturally involve the 'balancing test' of proportionately and therefore, the Court is not precluded for examining the reasons given in the impugned order in that perspective unlike in an detention order. 15. In the factual matrix of this case when the respondent authorities have declined the prayer of the petitioner for permission on unreasonable and unfounded surmises and conjectures disclosing a closed in the matter, I am of the opinion that no worthwhile purpose would be served in remanding the matter for fresh consideration by the State authorities, however, in view of the aforesaid factual matrix of the case which docs not disclose any imminent threat of breach of public order or tranquility, in permitting the petitioners organization to hold annual drill of its invitee members, as aforesaid, I direct respondent Nos.2 and 3 to permit the petitioners' organization to hold annual drill at Brigade Parade ground of its invitee members only not more than four thousand in number on January 14, 2017 between 2 p.m. to 6 p.m. Such permission, however, shall be subject to the following conditions as follows: (a) The petitioner No.3, who is the organizing Secretary of Kolkata Mahanagar Unit, Rashtriya Swayamsevak Sangha, shall swear an affidavit for himself and as well as on behalf of other petitioners, and members of the Sangha and the Sangha itself and undertake that no person other than the invitee shall be permitted to participate or assemble in an around the area where the aforesaid annual drill shall take place and that the petitioners and other members of the organization shall not cause any breach of law and order during the said programme and shall render all assistance to law enforcement agencies in that matter. In the said affidavit the deponent on behalf of himself, other petitioners and members of the Sangha and the Sangha itself undertake to be vicariously liable for any loss or damage that may be caused to the public due to violence or unlawful activity, if any, during such assemblage. Copy of the affidavit shall also enclose the names and addresses of the invitees of the programme. Copy of the affidavit shall be furnished to respondent No.3 not later that 2 p.m. on January 14, 2017. (b) The petitioners as well as their organization shall be vicariously liable for any wrongful loss or damage to the public which may be caused due to holding of such assemblage. (c) The police authorities shall be at liberty to remove any person who is not an invitee, from the site where the function shall be held and shall not permit anyone to assemble there as mere onlookers of the drill which shall be performed by the invitees of the petitioners' organization. (d) The respondent Nos. 2 and 3 shall ensure that there shall be deployment of adequate number of police force for the purpose of ensuring that there is no breach of law and order at the site and that no assemblage of persons apart from the invitees take place during the annual drill. 16. Needless to mention that such debarment shall not stand in the way of the fair reporting of the incident by the press in accordance with law. 17. The writ petition is accordingly allowed to the aforesaid extent. 18. There will be no order as to costs. 19. Let photostat plain copies of this order duly countersigned by the Assistant Court Officer be handed over to the learned advocates for the parties for taking steps in the matter.