Calcutta High Court (Appellete Side)
Purulia Chamber Of Trade & ... vs The State Of West Bengal & Ors on 19 September, 2023
19.09.2023
Item No.16 & 21
RP/PG
Ct. No.1
WPA(P) 503 of 2023
Purulia Chamber of Trade & Industry
Vs.
The State of West Bengal & Ors.
With
WPA(P) 510 of 2023
Dr. Goutam Mahato
Vs.
The State of West Bengal & Ors.
Mr. Abhratosh Majumdar, Sr. Adv.
Mr. Kausheyol Roy
for the petitioner in WPA(P) 503 of 2023
Mr. Kishore Dutta, Sr. adv.
Mr. Niloy Sengupta
Mr. S. Ganguly
Mr. Soumen Chatterjee
... for the petitioner in WPA(P) 510 of 2023
Mr. S.N. Mookherjee, Sr. Adv, Ld. AG
Mr. Supratim Dhar
... for the State
1. By these two public interest litigation the
petitioners seek for more or less identical relief.
The reason for filing these two writ petitions is on
account of agitation which is to be commenced
from 20th September, 2023 onwards and the said
agitation is to be for an indefinite period by an
organisation called Adibasi Kudmi Samaj, a
registered society, which is impleaded as 13 th
respondent in W.P.A. (P) 503 of 2023 and the office
bearers of the said samaj are being impleaded as
the respondent nos.6 to 10 in W.P.A(P) 510 of
2023.
2. The proposed agitation which has been planned by
the said organisation on 20 th September, 2023
onwards would have a severe impact on the
movement of the public as well as other activities
particularly in four districts of West Bengal,
namely, Bankura, Jhargram, Purulia and West
Midnapore. Since the proposal is to block the
movement of trains, several of which are plying
inter-States, the agitation will have an impact in
the states of Jharkhand, parts of State of Orissa
and parts of State of Chattishgarh. The demand of
the said organisation and its office bearers is for
including the Kudmi community in the Scheduled
Tribe list. Earlier a public interest litigation was
filed before this Court seeking for such direction
and the Court pointed out that in a public interest
litigation a Constitutional Court exercising
jurisdiction under Article 226 of the Constitution of
India cannot issue any direction for including any
community in the list of Scheduled Tribe and if at
all the organisation or members of the community
are aggrieved, their grievance has to be redressed
before the appropriate forum. In these writ
petitions the focus is on the effect of proposed
agitation on the entire society.
3. It is pointed out that similar protest was conducted
by the said organisation and its members in
September 2022 and April 2023 and it is stated
that Indian Railways had suffered a monetary loss
of Rs.60 crore apart from huge loss to the public
exchequer and untold hardship to the citizens of
those districts, who were directly affected and
many of whom were indirectly affected on account
of the said agitation. In anticipation of the
agitation, 39 trains had been cancelled by the
South Eastern Railways. A list of 39 trains has
been published by the South-Eastern Railway.
What was happening in the past agitation which
had been conducted in September 2022 and April
2023 has undoubtedly not redressed the grievance
of the Kudmi Samaj or its members. Therefore, in
such a situation would it be justifiable on the part
of the Kudmi Samaj and its members to resort to
one more such agitation that too for an indefinite
period. At this juncture, it would be beneficial to
take note of the decisions of the Hon'ble Supreme
Court in the case of Communist Party of India
(M) - Versus - Bharat Kumar [(1998) 1 SCC 201].
The challenge before the Hon'ble Supreme Court
was to a decision of the High Court of Kerala in the
case of Bharat Kumar K. Palich & Anr. - Versus -
State of Kerala & Ors. O.Ps. Nos.7551` of 1994
dated 28th July, 1997. The Hon'ble Supreme
Court held that the judgment of High Court of
Kerala does not call for any interference. It was
pointed out by the Hon'ble Supreme Court that it
was satisfied with the distinction drawn by the
High Court between a "Bandh" and a call for
general strike or "Hartal" is well made out with
reference to the effect of "Bandh" on the
fundamental rights of other citizens.
4. In All India Anna Dravida Munietra Kazhagam
- Versus - Chief Secretary, Government of
Tamil Nadu and Ors. reported in [(2009) 5 SCC
452, wherein the Hon'ble Supreme Court after
taking note of the decision in Communist Party of
India (M) (supra) held that the call given by the
political parties is a call for "Bandh" and not strike
or "Hartal" and accordingly orders were passed
taking note of the principle that neither can
anybody give a call for "Bandh" nor can the same
be enforced.
5. At this juncture, it would be relevant to take note of
the decision of the High Court of Kerala in the case
of Bharat Kumar (supra), which was affirmed by the
Hon'ble Supreme Court in Communist Party of
India (M) (supra) wherein it was held that no
political party or organisation can claim that it is
entitled to paralyse the industry and commerce in
the entire State or nation and is entitled to prevent
the citizens not in sympathy with its view point,
from exercising their fundamental rights or from
performing their duties for their own benefit or for
the benefit of the State or the nation. Such a claim
was held to be unreasonable and cannot be
accepted as a legitimate exercise of a fundamental
right by a political party or those comprising it.
6. The petitioners are very clear in their mind that
they are not opposing any peaceful form of protest
but they are concerned about the large-scale
impact that the agitation would be on the proposed
call given by the association said to commence
from 20th September, 2023.
7. In Amit Sahni (Shaheen Bagh. In Re.) - Versus -
Commissioner of Police and Ors. reported in
[(2020) 10 SCC 439], the Hon'ble Supreme Court
while appreciating the existence of the right to
peaceful protest against a legislation held public
ways and public spaces cannot be occupied in
such a manner and that too indefinitely. In the
said case, it was found that it was not even one of
protest taking place in an undesignated area, but
was a blockage of a public way which caused grave
inconvenience to commuters. The Hon'ble Supreme
Court held that such kind of occupation of public
ways, whether at the site in question or anywhere
else for protests is not acceptable and
administration ought to take action to keep the
areas clear of encroachments of obstructions.
Further it was held that the High Court should
have monitored the matter rather than disposing of
the writ petition and creating a fluid situation.
8. In a decision of High Court of Gauhati in Lower
Assam Inter, District Stage Carriage Bus
Owner's Association - Versus - State of Assam
& Ors. reported in [(2019) 5 Gauhati Law
Reports 642], the Hon'ble Court held that road
blockades and rail blockades are nothing but
variants of "Bandh"; therefore, those are also illegal
and unconstitutional.
9. Having noted the above legal position, all that can
be said is that the protest, which has been
scheduled to be held from 20th September, 2023 is
illegal and unconstitutional. The said Samaj or the
members of the Samaj have no vested right in
blocking the roadways and railways causing
inconvenience to several citizens not only confined
to the four districts of West Bengal but also the
three neighbouring States.
10. As pointed out earlier, the two agitations, which the
said Samaj and its members had conducted in
September, 2022 and April, 2023 had not given
them the desired result for which they had planned
and conducted the protest. Therefore, the short
question would be should they be permitted to do
so for the third occasion that too, for an indefinite
period?
11. Our prima facie view is that the Samaj and its
members should not be permitted to hold the
public at ransom by calling for an indefinite protest
commencing from 20th September, 2023. Having
held so, the issue would be how best the situation
has to be monitored.
12. The learned Advocate General, on instruction,
would submit that adequate measures have been
adopted and additional forces have been
requisitioned and the situation is seriously being
taken into consideration so that no untoward
incident happens. However, the endeavour of the
State should be to ensure that the roads and
railways are not blocked. It is a matter of great
concern that the South-Eastern Railway had to
cancel 39 trains. Imagine the plight of people, who
had booked their journey in those trains. Some of
whom may have to travel for medical emergencies
or for other exigencies relating to employment,
education, etc.
13. Thus, we are of the prima facie view that the Samaj
and its members cannot hold innocent citizens to
ransom by seeking to hold an indefinite protest by
blocking the railways and the roadways.
14. In the light of the above, we direct the State
Government to deploy additional forces including
specialised forces and if necessary, forces from the
neighbouring States of Jharkhand, Orissa and
Chattisgarh may also be requisitioned by the State
Government so that the influx of the protesters to
the core area of the protest is prevented. Checks
and balances need to be maintained. The roads
leading to the proposed site, where the protest is
being scheduled to be conducted can be closely
monitored and the flow of traffic can be
prevented/restricted, unauthorised use of vehicles,
goods carriages for transportation of passengers
shall be prevented and / or other steps incidental
to the same shall be adopted by the State
Government.
15. The Railway Protection Force shall also be
sensitised and if additional deployment is required
in the railway stations, the same shall also be
requisitioned.
16. Apart from taking note of the above measure for
controlling the law and order situation, the
protesters need to be sensitised as to what is the
forum before which they will have to agitate their
grievance.
17. As mentioned earlier, this Court had declined to
entertain a prayer for declaring the particular
community as a Scheduled Tribe Community by
way of a public interest litigation by observing that
the relief has to be sought before an appropriate
forum. This aspect of the matter should be known
to the people, who joined the protest. Many of
whom may not be fully aware about the
implications of the protest and the consequences
thereof. This can be done by way of public address
system or by the use of social media. The leaders
of the Samaj can be called for discussion and they
may be impressed that such form of protest, as
proposed by them, would cause immense hardship
to innocent citizens apart from causing huge loss to
the State exchequer.
18. All effective steps shall be taken by the State
Government and, if in their opinion, additional
deployment of force is required, they can also
requisition the Central Government for deployment
of Central forces so as to work in tandem with the
State forces to ensure that the public of the four
districts as well as the neighbouring States are in
no manner put to difficulty or inconvenience on
account of the protest announced to be conducted
from 20th September, 2023.
19. At this juncture, it would be beneficial to refer to
the observations of the Hon'ble Supreme Court in
Amit Sahni (Shaheen Bagh. In Re.) (supra),
wherein the Hon'ble Supreme Court held that it is
the responsibility of the respondent authorities to
take suitable action, but then such suitable action
should produce results.
20. List these matters on 9th October, 2023.
(T.S. SIVAGNANAM)
CHIEF JUSTICE
(HIRANMAY BHATTACHARYYA, J.)
