Manab Jati Kalyan Foundation And ... vs The State Of West Bengal And Others
2023 Latest Caselaw 5567 Cal

                      In the High Court at Calcutta
                     Constitutional Writ Jurisdiction
                              Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya

                           WPA No. 17704 of 2023

               Manab Jati Kalyan Foundation and another
                                  Vs.
                  The State of West Bengal and others

     For the petitioners           :     Mr. Tarunjyoti Tewari,
                                         Mr. Sandip Ray,
                                         Mr. Hiranmoy Debnath,
                                         Ms. Polly Banerjee,
                                         Ms. Paramita Dey

     For the State                  :    Mr. Ratul Biswas,
                                         Mr. Chandan Kumar Mondal

     For the respondent nos.5 to 7 :     Mr. Jishnu Chowdhury,

Mr. Chayan Gupta, Mr. Sandip Dasgupta, Mr. Saaqib Siddiqui

Hearing concluded on : 18.08.2023

Judgment on : 25.08.2023

Sabyasachi Bhattacharyya, J:-

1. The petitioner no.1 is an organization having office in New Town,

Kolkata and petitioner no.2 is its Chairman.

2. The present application has been filed against the refusal to the

petitioners to hold „Durga Utsab 2023‟ in the „New Town Mela

Ground‟, which is an expanse of property used for the purpose of

holding different fairs.

3. The respondent-authorities have raised several objections which

according to the petitioners are flimsy pretexts to refuse permission to

the petitioners.

4. Learned counsel for the petitioner relies on Article 14 of the

Constitution of India. It is argued that the petitioners have equal right

as others to hold a Durga Puja Festival in the said Mela Ground. It is

submitted that in the previous year as well, when the petitioners had

moved court against refusal to hold Durga Puja Festival in a bus-

stand complex, the court had directed an alternative ground in the

vicinity to be provided. The respondents had provided the New Town

Mela Ground itself to the petitioners for holding such Puja. As such,

it is argued, there cannot be any fetter on the part of the respondents

in granting such permission to the petitioners. It is submitted that

other cultural events are regularly being held there, including a

celebration at the behest of the spouse of the Chairman, NKDA (New

Town Kolkata Development Authority).

5. It is submitted that huge emotion is attached with the celebration of

Durga Puja. However, although the petitioners have made a

representation on February 28, 2023 and several representations and

reminders thereafter, the respondent-Authorities have turned a deaf

ear thereto.

6. Accordingly, this Court had to be moved and upon a specific direction

dated July 13, 2023 passed in WPA No.12767 of 2023, the application

of the petitioners was decided and refused by a "reasoned order" dated

July 21, 2023.

7. It is argued that one of the grounds of refusal is that the Mela Ground

is surrounded by dense residential zone. However, permission to hold

Puja has been given to several other entities in the nearby areas and

in the City Square Area which is also situated very close thereto,

which are surrounded by more residences than the Mela Ground. In

fact, the Mela Ground is a designated place for holding festivals and

fairs and is not surrounded by residential accommodations.

8. It is submitted that during the Durga Puja festival, several entities

hold public Puja Festivals to make the heritage festival a success.

Hence, other Pujas nearby cannot be a ground for refusal.

9. It is further argued that the respondents allege that the petitioners‟

registered office is at Kalyani. However, the mere fact that the

petitioners have an office in Kalyani does not fetter the right of the

petitioners to hold a Puja in the New Town area in any manner. That

apart, it is argued that the petitioners have an intellectual wing of the

petitioner no.1-Association within New Town.

10. Learned counsel cites a copy of the order of court dated September 23,

2022, whereby a direction was given to the respondents to provide an

alternative plot to the petitioners, upon which the New Town Mela

Ground had been given to the petitioners.

11. Learned counsel for the NKDA argues that nobody can have a right to

hold worship and provide offerings in a particular place.

12. It is submitted that the petitioners cannot claim as a matter of right

the entitlement to hold Puja on the plot-in-question.

13. Insofar as the previous occasion was concerned, it was not the NKDA

but the HIDCO which allotted the said plot. Moreover, the same was

done as an one-time measure, in deference to the direction of the

Court and not by designating the Mela Ground as a Puja area.

14. It is vehemently argued by the NKDA that the Mela Ground has never

been used for organizing any other Puja by any entity and is not

meant to be so used.

15. It is submitted that permissions to hold fairs are given only at times

when there are no other ongoing public festivals.

16. As opposed to such occasion, the time when the petitioners intend to

hold the Durga Puja would coincide with Durga Puja Festivals being

held all over the State. In fact, several other organizers have been

given the permission to hold Durga Puja in close vicinity of the Mela

Ground itself. The authorities, it is submitted, are within their

jurisdiction to consider the pros and cons of giving such permissions

and nobody has a right to claim entitlement to hold Puja, thereby

putting public order at peril.

17. It is submitted that there would be utter pandemonium if the Mela

Ground is used by the petitioners during the relevant period for

organizing a Puja, since there would be huge footfall in the other Puja

pandals held in the close vicinity, which would disrupt traffic and

safety and security of residents and commuters beyond repair.

18. Learned counsel for the NKDA cites Dr. M. Ismail Faruqui and others

Vs. Union of India and others, reported at (1994) 6 SCC 360, where the

Supreme Court had held that Article 25 of the Constitution does not

contain any reference to property unlike Article 26 of the Constitution.

The right to practice, profess and propagate religion guaranteed under

Article 25 of the Constitution does not necessarily include the right to

acquire or own or possess property or does not extend to the right of

worship at any and every place of worship so that any hindrance to

worship at a particular place per se may infringe the religious freedom

guaranteed under Articles 25 and 26 of the Constitution. The

protection under Articles 25 and 26, it was held, is to religious

practice which forms and essential and integral part of the religion. A

practice may be a religious practice but not an essential and integral

part of practice of that religion. While offer of prayer or worship is

religious practice, its offering and every location where such prayers

can be offered would not be an essential or integral part of such

religious practice unless the place has a particular significance for

that religion so as to form an essential or integral part thereof.

19. In the same light, learned counsel cites Dr. Mahesh Vijay Bedekar Vs.

State of Maharashtra, reported at 2016 SCC OnLine Bom 8894, where

a Division Bench of the Bombay High Court reiterated the principles

laid down in Dr. M. Ismail Faruqui (supra), observing further that by no

stretch of imagination, the right conferred by Article 25 will extend to

celebrating such festivals and functions on streets and foot-ways

unless offering prayers or worship at a particular place is proved to

be an essential part of a particular religion by reason of the particular

significance of that place.

20. In another judgment of the same Division Bench of the Bombay High

Court reported at 2016 SCC OnLine Bom 9422, between the same

parties, which is also cited, the same principle was reiterated.

21. Learned counsel for the NKDA also cites a judgment of a learned

Single Judge of the Madras High Court reported at 2012 SCC OnLine

Mad [O.R.A. Abubakar Gani Vs. State of Tamil Nadu] where Dr. M.

Ismail Faruqui (supra) was followed.

22. Learned counsel also cites a Division Bench judgment of the

Allahabad High Court reported at 2019 SCC OnLine All 7000

[Bajrangpuri Ram Leela Committee, Bajrangpuri Machhariya Road,

Naubasta, District Kanpur Nagar through its President Ram Vishal

Shukla Vs. State of U.P. through District Magistrate, Kanpur and others]

where the Court, inter alia, observed that it found no reason to allow

any religious activity to be performed in public places, like parks,

playgrounds and open spaces, etc.

23. Learned counsel also places reliance on the New Town Kolkata

Development Authority Act, 20017 (for short, "the NKDA Act").

Chapter IX of which contains provisions relating to streets and public

places. By relying on the same, it is sought to be impressed that all

public streets, parking or transportation terminal squares, parks and

gardens, etc. are vested in the NKDA and under its control, to be

regulated in accordance with the provisions of the Act.

24. Upon hearing learned counsel for the parties, there does not appear to

be any specific bar in the NKDA Act, cited by the respondents, for

holding any Durga Puja Festival in a mela ground.

25. Although the respondents have vociferously harped on the fact that

the Mela Ground has never been used for a Durga Puja Festival and

no permission has ever been given for such purpose, such statement

is belied by the act of the respondent-Authorities in the last year,

where similar permission was given to the petitioners, pursuant to an

order of the Court. Although the Court had directed an alternative

place in the vicinity to be given, the HIDCO itself had offered the mela

ground as a designated Puja ground.

26. The NKDA Act, cited by the said Authority is of the year 2007 and, as

such, was very much in force last year. In the order dated September

23, 2022 passed in WPA No.21781 of 2022, the HIDCO Authorities,

represented by the same lead counsel as now appearing for the NKDA,

had stated that it had no objection in the event the petitioners

organize the Puja on another plot of the HIDCO than where they

intended to, designated for such purpose (emphasis supplied) on

payment, subject to fulfillment of all requisite conditions by the

petitioners. On instruction, learned counsel, then appearing for the

HIDCO, had submitted that permission can be granted in an

appropriate zone near the ECO Park. It was submitted that the Rules

of the HIDCO prohibit any large gathering or any Puja to be held in a

bus terminus, which was the intended place of the petitioners then;

however, such Puja can be held in places designated for such purposes

(emphasis supplied).

27. It was observed by the Court that since the HIDCO Authorities had

fairly assured that an alternative plot shall be provided to the

petitioners, subject to compliance of all formalities by the petitioners

and payment of due charges, as near the location-in-question as

possible, the writ petition was disposed of by granting liberty to the

petitioners to apply for permission at any of the alternative locations

as mentioned in the printed list to be handed over by learned counsel

for the HIDCO. As per the grounds offered by the HIDCO, the New

Town Mela Ground was chosen by the petitioners.

28. It is relevant to mention here that the NKDA was a party thereto and

was represented at the time of passing the order. The NKDA never

took any objection to such arrangement or submission by the HIDCO.

29. In the list of options, the New Town Mela Ground was one of the

options which was availed of by the petitioners and the Durga Puja

was held therein. There is nothing in the arguments of the

respondents to indicate that any untoward incident happened on such

occasion.

30. That apart, the argument of the respondent-Authorities regarding the

petitioners not having any choice to hold worship or organize religious

offerings wherever they wish, falls flat, in view of the implicit character

of the Durga Puja Festival held in the State of West Bengal. As is

public knowledge, the Durga Puja Festival is not confined merely to

the worship or religious offerings component of the incarnation of

feminine power but also a melting pot of different cultures. People

from all over the state, the country and even from abroad, come to

West Bengal purely for the purpose of observing the fanfare and the

cultural milieu in the state during Durga Puja Festivals. Hence, there

is as much an element of ceremony, cultural programmes, festival and

fanfare involved as religious worship. In such sense, the Durga Puja

Festival is much more secular in nature than a pure religious

performance of a particular community and cannot, thus, be

narrowed down to being a mere „religious offering‟ of a particular

community.

31. Seen in such context, let us examine the judgments cited by the

respondents. The plinth of the ratio of the cited judgments is the

rights conferred under Articles 25 and 26 of the Constitution of India.

It was observed by the Supreme Court and different High Courts of

the country that Article 25 does not confer the right on a person to

perform worship in whichever place the person chooses, particularly

in public parks, roads, foot-paths, etc.

32. The primary distinguishing feature in the present case is that the site

at which the Durga Puja Festival is sought to be held by the

petitioners is not a street or a foot-path or even a playground but a

specifically designated ground for holding fairs. Even the name "New

Town Mela Ground" contains the term "Mela" which signifies "fair".

33. Thus, the premise of the argument of the respondents that the ground

cannot be used for a Durga Puja Festival is erroneous. No intelligible

or reasonable differentia has been made out by the respondent-

Authorities between a Durga Puja Festival and ordinary fairs or other

festivals designated to be held on the Mela Ground. Both entail huge

footfall and gathering of crowds including parking of vehicles of the

people who come to visit.

34. The respondents seek to argue that when permission to hold fairs are

given, no other similar festivals or occasions are being organized in the

nearby areas, which allows the traffic flow to remain normal.

However, such argument is absolutely baseless, since during a Puja

Festival, it is a common feature in the entire State that there are

numerous huge Durga Pujas organized by several entities quite close

each other. In fact, the Kolkata Police and administration have been

lauded from several quarters for their law enforcement during the Puja

times. Several checks and bounds and measures are put in place

during the said few days to control traffic and congestion of people,

even other than ensuring safety and security features. Hence, no

extra burden would be placed on the overcrowding by a single Puja

being organized. In fact, the petitioners had applied for observing the

Puja in the month of February this year. It is only the respondent-

Authorities whose lackadaisical attitude and negligence over the

matter caused the considerable delay in the petitioners obtaining

permission.

35. The delay of about six months was occasioned primarily due to the

authorities sitting tight over the matter and cannot be attributed to

the petitioners.

36. Nothing has been shown by the authorities or even argued to indicate

that, after the petitioners‟ application in the month of February, 2023

no other Puja in the area has been permitted to be organized. Hence,

the refusal of the particular application of the petitioners to hold Puja

in a validly designated place for organizing public fairs is patently

mala fide and arbitrary and does not pass the Wednesbury test of

reasonableness.

37. The guiding light of the judgments cited by the respondents is Dr. M.

Ismail Faruqui (supra). In the said case, the stress was on Article 25,

which confers the right to practise, profess and propagate religion. It

was held by the Supreme Court and the High Courts, following the

said judgment, that the said Article does not confer any right to

worship at any place of worship unless specific significance of the

place in particular is shown to be an essential part of the religion.

38. The basis of such argument in the present case is erroneous, since the

petitioners do not assert their right under Article 25, in view of the

semi-secular nature of a Durga Puja Festival, which is not only about

providing offerings to the feminine incarnation of power but also to

provide a common meeting ground for people from all cross-sections of

society, irrespective of caste, creed, gender and religion.

39. As opposed to the said cases, the stress in the petitioners‟ case is on

Articles 14 and 19 of the Constitution of India.

40. Article 14 of the Constitution of India confers the right to equality

before the law to all persons. In view of other organizers being

permitted to hold public fairs on the ground-in-question, which is

designated for such purposes, there is no plausible reason why the

petitioners‟ plea for holding a Durga Puja Festival there can be

refused. All the more so, since the respondents themselves have

provided the said ground last year to the petitioners, as a designated

ground, as reflected in their own submission before the Court,

recorded in the year dated September 23, 2022 passed in WPA

No.21781 of 2022.

41. Moreover, other organizers applying after the petitioner have also been

accorded permission to hold Durga Puja festivities in the vicinity of the

Mela Ground.

42. The respondents have also taken a flimsy pretext that the petitioner

no.1-Organization is primarily based in Kalyani. Such argument,

however, cannot be accepted. Apart from the petitioners‟ plea that

they have a wing situated in New Town, the cause title of the present

writ petition itself shows that an office of the petitioner no.1 is

situated within New Town. That apart, on a larger logic, the mere fact

that a person resides or has office elsewhere cannot be a deterrent for

permitting him to organize a festival on a public property by a public

organization, on a plot specifically designated for holding public

functions.

43. Such concept itself has been abhorred in the spirit of the Constitution.

Article 19 of the Constitution guarantees that all citizens have the

right to assemble peacefully and without arms and to move freely

throughout the territory of India. The specific purpose of such rights

shall be frustrated if people are refused permission by public

authorities on the ground of their residing elsewhere, unless there is a

specific intelligible reason for such discrimination or a policy decision

in that regard, also based on intelligible criteria.

44. Of course, there can be reasonable classifications or restrictions in

place, by particular authorities regarding certain activities which are

required to be confined to people of a particular area only. However,

nothing of such sort, applicable to a Durga Puja Festival on a public

Mela ground, has been pleaded or argued by the respondents.

45. In Mansur Hasan And Others Vs. Muhammad Zaman And Others,

reported at AIR 1925 PC 36, the Privy Council was dealing with a

religious procession on the streets. It was observed there that persons

of whatever section are entitled to conduct religious processions

through public streets in such a manner so that they do not interfere

with ordinary use of such streets by the public and subject to such

directions as the Magistrate may lawfully give to prevent obstructions

of the thoroughfare or breaches of the public peace.

46. However, in the present case, a Mela Ground is supposed to be

property equipped and located to handle crowd and parking issues as

well as traffic congestions. Since it has been established and admitted

that several fairs are held on the said Ground and it is a well-known

and admitted fact that several Pujas have been permitted to be

organized in the year 2023 in the vicinity, within New Town itself,

there can be no reason why there would be interference with the

ordinary use of the said ground specifically due to the petitioners

holding a Puja there.

47. It is nobody‟s case that the petitioners will flout laws and regulations

regarding public peace, noise pollution and/or norms as otherwise

prevalent and applicable to the other Puja organizers. In fact, there is

no allegation that the petitioners violated any law when they organized

a similar Puja on the self-same ground last year.

48. The petitioners are also agreeable to pay full charges, as sanctioned

by law and procedure, for observing the said festival. Hence, nothing

in the law can prevent the petitioners from getting such permission.

In fact, the refusal by the respondent-Authorities is palpably violative

of Articles 14 and 19, in particular Articles 19(1)(b) and 19(1)(d) of the

Constitution, as well as arbitrary, mala fide and unreasonable.

49. Accordingly, WPA No.17704 of 2023 is allowed, thereby setting aside

the order passed by the respondent-Authorities under Memo

No.7454/CEO/NKDA/2023 dated July 21, 2023 and directing the

respondent-Authorities to grant permission to the petitioners to

organize and celebrate the Durga Puja Festival for the year 2023 at

the New Town Mela Ground, subject to the petitioners paying the

requisite charges and complying with the necessary formalities for

such purpose.

50. There will be no order as to costs.

51. Urgent certified server copies, if applied for, be issued to the parties

upon compliance of due formalities.

( Sabyasachi Bhattacharyya, J. )

Later

At this juncture, a stay of operation of the impugned order is

sought for. However, keeping in view the extreme urgency of the

matter, since there are only about 50 days left for the Puja being

organized, such prayer is refused.

( Sabyasachi Bhattacharyya, J. )