Calcutta High Court (Appellete Side)
Nabendu Kumar Bandyopadhyay vs State Of West Bengal And Others on 20 July, 2022
43 20.07.2022
PA(SS)
WPA(P) 326 of 2022
Nabendu Kumar Bandyopadhyay
Vs.
State of West Bengal and Others
Mr. Swatarup Banerjee,
Mr. Lokenath Chatterjee,
Mr. Sukanta Ghosh,
Mr. Ramen Bose,
Mr. Partha Chakaborty,
Mr. Subit Majumder,
Ms. Hasi Saha,
Ms. Tanusree Ghosh,
Mr. Subhajit Das,
Ms. Aishwarya Rajyashree, Advocates
... for the petitioner
Mr. S.N. Mookherjee, ld. AG
Mr. A. Ray, ld. GP
Md. T.M. Siddiqui,
Mr. D. Ghosh,
Mr. Yash Singhi, Advocates
... for the State
Mr. Saptanshu Basu, Sr. Advocate
Mr. Sanjay Basu,
Mr. Piyush Agarwal,
Ms. Shrivalli Kajaria,
Ms. Utsha Dasgupta, Advocates
... for the respondent No.12
Mr. Billwadal Bhattacharyya, Ld. Assistant Solicitor
General of India
Mr. Kallol Mondal, Advocate
... for the CBI
In this public interest petition, at the instance of a
member of the ruling political party at the Centre, an
issue has been raised about the statement by the
respondent No.12 Chief Minister of West Bengal on 28th
June, 2022 while addressing a public gathering in
Asansol and declaring 21st June, 2022 as a day of Jihad
against the petitioner's political party. It is also disclosed
that on 21st of July, 2022, every year the ruling party in
the State organizes a rally calling the Martyrs Day
(Shahid Divas). It is alleged that such a statement has
been made and political workers of the respondent No.
12 party have been incited to display violence against the
members of petitioner's political party and that there is
great apprehension of violence as an attempt has been
made to instigate a particular community to commit
violence against the supporters of the petitioner's
political party. The earlier instance of post-poll violence
after the Assembly election on 2nd of May, 2021 has been
highlighted and Full Bench judgment of this Court dated
19th of August, 2021 in WPA(P) 142 of 2021 in the case
of Susmita Saha Dutta vs. The Union of India and Ors.
and other connected petitions has been relied upon in
support of the plea of apprehension of violence on 21st of
July, 2022. A plea has also been raised that though the
complaint was made by the petitioner but no action has
been taken.
Learned Counsel for the petitioner has raised a
submission that on account of the provocative speech of
the respondent No.12, there is apprehension of violence,
therefore, similar protective order be passed as was
passed by this Court on 15th of June, 2022 in WPA(P)
258 of 2022 in the case of Niladri Saha vs. The State of
West Bengal and Others. He has also referred to various
documents enclosed with the petition in support of his
plea.
Learned Advocate General has raised a
preliminary objection that as required by Rule 26 of the
Rules of High Court at Calcutta Relating to Applications
Under Article 226 of the Constitution (for short, 'the
Rules'), no advance notice has been served upon the
State and the service of notice to the Advocate General
cannot be treated to be proper service in view of the
Division Bench judgment in matter of State of West
Bengal & Ors. vs. Arjun Kumar Izaddar & Ors.
reported in (2005) 3 CHN 603 and Single Bench
judgment in the matter of Sanjit Jana vs. State of West
Bengal and Others reported in 2012 SCC OnLine Cal
2240. He has submitted that no advance notice of 48
hours has been served, therefore, the petition should be
dismissed. He has also raised an objection that there is
no pleading of breach of any fundamental right in the
writ petition and that the speech of one political party
against another political party is not actionable and that
in the writ petition it has been projected as if ruling
party in the State is for one particular community and
the petitioner's party is for another community which is
not correct and it is only a phrase which was used in the
political speech and proper arrangements for traffic
movement and police have been made. Questioning the
maintainability of the petition, he has also placed
reliance upon the judgment of the Hon'ble Supreme
Court in the matter of Tehseen Poonawalla vs. Union of
India and Another reported in (2018) 6 SCC 72 and in
the matter of Rajiv Ranjan Singh 'Lalan' (VIII) and
Another vs. Union of India and Others reported in
(2006) 6 SCC 613. He has also submitted that another
writ petition being WPA(P) 296 of 2022 in the case of
Nazia Elahi Khan vs. The State of West Bengal and
Others was filed which was adjourned because affidavit
was not filed.
Leared Counsel for the respondent No.12 has also
questioned the maintainability of the petition by
submitting that writ petition for political cuase cannot be
maintained and that no proper notice to respondent No.
12 was served and there is no prayer for dispensation for
service of notice in the petition. In support of this, he has
placed reliance upon the judgment of the Hon'ble
Supreme Court in the matter of Dattaraj Nathuji
Thaware vs. State of Maharashtra and Others reported
in (2005) 1 SCC 590 and the judgment in the matter of
Kushum Lata vs. Union of India and Others reported
in (2006) 6 SCC 180.
We have heard the learned Counsel for the
parties.
During the course of argument, it has not been
disputed that a rally of large gathering is going to be
organized tomorrow on 21st of July, 2022 on the
occasion of the Martyrs Day (Shahid Divas). The
utterance made by the respondent No. 12 about the
Jihad against a particular political party have not been
disputed. In this view of the matter, the only concern of
this Court at this stage is about the maintenance of
peace and law and order during the gathering and the
rally which is going to the held on 21st of July, 2022 and
its aftereffects. This Court is not required to go into the
political rivalry between the two political parties.
So far as the preliminary objection about non-
service of advance notice in terms of the Rule 26 of the
Rules is concerned, this Rule requires service of 48
hours advance notice for interim order and when the
State is a party the notice is required to be served on
Legal Remembrancer/Government Pleader, therefore, we
find substance in the argument of the learned Advocate
General based upon the judgments of this Court in the
matter of Arjun Kumar Izaddar & Ors. (supra) and
Sanjit Jana (supra) that proper 48 hours advance
notice has not been served upon the State.
The proviso to Rule 26 empowers the Court to
allow moving of the application and entertaining the
prayer for interim relief without such advance notice by
recording reasons. In the present case, there is an
urgency as the rally and gathering is to take place
tomorrow and the petitioner cannot be directed to wait
for 48 hours as that would render the petition
infructuous. That apart, the concerned respondents are
duly appearing in the matter and they have also raised
their submissions, therefore, non-compliance of Rule is
now a mere technicality. The petitioner in prayer 'a' of
the writ petition has sought dispensation of requirment
of Rule 26, hence in the circumstances of the case and
for the reasons recorded above, we allow the prayer 'a'.
So far as the objection raised by the respondents
about the maintainibility of the petition based upon the
judgment of the Hon'ble Supreme Court in the matter of
Tehseen Poonawalla (supra), in the matter of Rajiv
Ranjan Singh 'Lalan' (VIII) and Another (supra), in the
matter of Kushum Lata (supra) and in the matter of
Dattaraj Nathuji Thaware (supra) on the ground that it
is a politically motivated petition raising personal dispute
is concerned, we again make it clear that we do not
indend to go into any of the politically motivated
allegation in the petition and the oral argument
advanced in this regard.
In the public interest, this Court is entertaining
this petition for the limited purpose to ensure that peace
and law and order is maintained during the forthcoming
gathering and rally tomorrow in which lacs of people are
expected to gather.
At the earlier occasion, when after some unruly
persons had destroyed public property in the name of
protest against the unwanted comment against one
person, this Court by the order dated 13th of June, 2022
passed in WPA(P) 258 of 2022 in the case of Niladri Saha
vs. The State of West Bengal and Others considering the
issue of large gathering and disturbance of peace had
issued following directions:
"In the meanwhile we express hope that the
State authorities will take all possible steps to
ensure that no untoward incident takes place and
peace is maintained. In case, the State Police is
unable to control the situation at any place then
State authorities will take immediate steps to call
the central forces. Concerned State authorities will
also collect the video footage of the incident so that
the miscreants can be identified and appropriate
action can be taken against them. Learned
Advocate General will also make the stand of State
clear on the issue of grant of compensation to
those who have suffered loss of property in the
untoward incidents."
The above directions were further modified by this
Court by order dated 15th of June, 2022. Hence, we
express hope that with the object to prevent any
untoward incident and to maintain peace and law and
order, the State authorities will duly take into account
and comply with the above directions in the present case
also.
The petition is accordingly disposed of.
(Prakash Shrivastava, C.J.)
(Rajarshi Bharadwaj, J.)
