Jharkhand High Court
Hanumant Katha Aayojan Samiti vs The State Of Jharkhand Through The ... on 29 January, 2024
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 6943 of 2023
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Hanumant Katha Aayojan Samiti, having its office at Medininagar, P.O. & P.S.
Medininagar, District- Palamau .... Petitioner(s).
Versus
1.The State of Jharkhand through the Deputy Commissioner, Palamau
2.The Sub Divisional Officer, Sadar Medininagar, Palamau
3.The Superintendent of Police, Palamau ... Respondent(s).
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CORAM : SRI ANANDA SEN, J.
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For the Petitioner(s) : Mr. Rishabh Kaushal, Advocate
For the Respondents : Mr. Sachin Kumar, AAG-II
Mr. Rohit, AC to AAG-I
.........
08 /29.01.2024: Heard, the learned counsel for the parties.
2. Petitioner by filing this writ petition initially had prayed for a direction
upon the respondent-authorities to take appropriate action pursuant to their
application, seeking consent and permission, for organizing a "Hanumant
Katha" from 10.02.2024 to 15.02.2024 in Medininagar, District- Palamau.
3. It is their case that as the respondents had not taken any steps and were
sitting tight over the application they were forced to approach this Court for
the necessary direction as originally prayed for.
4. During the pendency of the writ petition a supplementary counter
affidavit was filed. In the said counter affidavit, the respondents-State has
produced an order being Memo No.24 dated 10.01.2024, by which the
permission sought for by the petitioner for organizing that "Hanumant
Katha", was rejected. The petitioner thus challenged the said order by filing
an amendment application. The amendment application was allowed and
amended writ petition is also filed.
5. The State has also file a second supplementary counter affidavit. Thus
this matter has been listed today for final disposal of the writ application.
6. Learned counsel for the petitioner submits that no substantive ground
has been assigned while passing the impugned order, refusing to grant
permission to the petitioner to organize the said congregation. It is his
contention that the ground mentioned therein are non-est in the eyes of law
which does not fall within the purview of Article 19(3) of the Constitution of
India. It is his submission that restriction, as envisaged by Article 19(3) of
the Constitution of India, can only be imposed to restrict the right, which
has been conferred by the Constitution under Article 19(1)(b) of the
Constitution of India. The impugned order does not fall in that category. He
submits that so far as the infrastructure is concerned, the petitioner
organization is ready to provide necessary and adequate infrastructure at
the venue. He states that even if the State is expecting two lakhs persons per
day to attend the congregation, whereas sitting arrangements of sixty
thousands persons has been made, the said capacity can be increased, as per
the place where the congregation is to be conducted in an area having 250
acres of space. He submits that necessary volunteer will be placed and
parking space will be specified and they will ensure installation of CCTV
cameras and other basic facilities /amenities which the person attending the
congregation may need.
7. The Additional Advocate General, Mr. Sachin Kumar submits that a
similar type of congregation was held at Patna and there was a chaotic
situation there, thus, the State apprehends that there will be a similar law
and order problem, if this congregation is allowed to be held. He submits
that they are estimating 3 - 4 lakhs people visiting the congregation per day
but the sitting arrangement has been made only for sixty thousand persons.
He further submits that there is necessity to install temporary CCTV cameras
and provide volunteers, considering the huge number of devotees, who will
be attending the congregation. There is also a necessity of proper parking
space and other facilities like mobile-toilets etc. which also needs to be
provided. Since there is nothing in the plan submitted by the petitioner
before the respondents, their application seeking permission was rejected.
8. The petitioner herein, is organizing a congregation for "Hanumant
Katha". They want to organize the same in Medininagar, Palamau. The said
congregation would be from 10.02.2024 to 15.02.2024, which will be
addressed by Shri Dhirendra Krishna Shastri (Bageshwar Dham Sarkar). The
petitioner approached the respondents for grant of permission, which was
rejected by the impugned order.
9. Since the order of refusal has been passed by the State authority, I am
testing the validity of the order in the touch stone of the judgment passed by
the Hon'ble Supreme Court and also in terms of the Constitution of India.
10. Part-III of the Constitution of India confers Fundamental Right to the
citizen of the country. Article 19 of the Constitution deals with the protection
of certain rights regarding freedom of speech etc.
Article 19(1)(b) is the fundamental right to assemble peacefully
without arms. Thus Article 19(1)(b) gives right to the citizen of India to form
an assembly peacefully without arms. This right is not unfettered. This right
has some restrictions which are enshrined in Article 19(3) of the Constitution
of India. Article 19(3) of the Constitution of India reads as follows:-
"19(3) Nothing in sub-clause (b) of the said clause shall affect the operation of
any existing law in so far as it imposes, or prevent the State from making any law
imposing, in the interests of 4[the sovereignty and integrity of India or] public
order, reasonable restrictions on the exercise of the right conferred by the said
sub-clause."
11. After careful examination of Article 19(3) of the Constitution of India,
I find that the right to assemble peacefully without arms is not absolute or
unrestricted right. The State can restrict any type of assembly, if the same is
against the interest of the sovereignty and integrity of India or is against the
public order. This means if due to the assembly there is threat to the
sovereignty and integrity of the country or the assembly will cause public
disorder, there can be restrictions
12. Thus, the ground for restricting or limiting the right conferred under
Article 19(1)(b) of the Constitution of India can only be on the restrictions
mentioned in Article 19(3) of the Constitution of India. No other restrictions
can be imported in Article 19(3) of the Constitution of India to refuse or
restrict any assembly which is being organized peacefully without arms.
13. In the instant case an order has already been passed rejecting the
application of the petitioner, by which the petitioner sought permission to
hold this congregation /assembly. The reasons have been mentioned in the
impugned order itself. The reasons as put forth in the impugned order is
that there is a possibility of problem of law and order, if this congregation is
allowed to be held.
In the impugned order, admittedly the ground for rejecting
permission, is not the ground covered in Article 19(3) of the Constitution of
India. The issue of threat to the sovereignty and integrity of India or "public
order" has to be the ground to deny permission, but the ground which the
respondents have taken is of "law and order problem". There is difference
between "law and order" and "public order".
14. The Hon'ble Supreme Court in the case of Ameena Begum vs. State of
Telangana and Others, reported in (2023) 9 SCC 587, in details dealt with the
difference between "law and order" and "public order". The Hon'ble
Supreme Court has concluded that the difference is vast. Every breach of
law does not lead to public disorder. It is necessary to quote some of the
paras of the aforesaid judgment wherein the Hon'ble Supreme Court relied
upon the various earlier judgments in this issue:-
36. It is trite that breach of law in all cases does not lead to public disorder. In a
catena of judgments, this Court has in clear terms noted the difference between
"law and order" and "public order".
"37. We may refer to the decision of the Constitution Bench of this Court in
Ram Manohar Lohia v. State of Bihar, where the difference between "law and
order" and "public order" was lucidly expressed by Hon'ble M. Hidayatullah.J
(as the Chief Justice then was) in the following words: (SCR pp.745-46. Paras
54-55)
54. .... Public order if disturbed, must lead to public disorder. Every
breach of the peace does not lead to public disorder. When two drunkards
quarrel and fight there is disorder but not public disorder. They can be
dealt with under the powers to maintain law and order but cannot be
detained on the ground that they were disturbing public order. Suppose
that the two fighters were of rival communities and one of them tried to
raise communal passions. The problem is still one of law and order but it
raises the apprehension of public disorder. Other examples can be
imagined. The contravention of law always affects order but before it can
be said to affect public order, it must affect the community or the public
at large. A mere disturbance of law and order leading to disorder is thus
not necessarily sufficient for action under the Defence of India Act but
disturbances which subvert the public order are....
55.It will thus appear that just as "public order" in the rulings of this
Court (earlier cited) was said to comprehend disorders of less gravity
than those affecting "security of State", "law and Order" also
comprehends disorders of less gravity than those affecting "public order".
One has to imagine three concentric circles. Law and order represents the
largest circle within which is the next circle representing public order
and the smallest circle represents security of State. It is then easy to see
that an act may affect law and order but not public order just as an act
may affect public order but not security of the State."
38. For an act to qualify as a disturbance to public order, the specific activity
must have an impact on the broader community or the general public, evoking
feelings of fear, panic, or insecurity. Not every case of a general disturbance to
public tranquility affects the public order and the question to be asked, as
articulated by Hon'ble M. Hidayatullah, C.J. in Arun Ghosh v. State of W.B. in
this (SCC p. 100, para 3)
"3..... Does it [the offending act] lead to disturbance of the current of life
of the community so as to amount a disturbance of the public order or
does it affect merely an individual leaving the tranquility of the society
undisturbed?"
40. In the process of quashing the impugned order, the Hidayatullah, C.J. while
referring to the decision in Ram Manohar Lohia also ruled: (Arun Ghosh case,
SCC pp. 99-100, para 3)
3..... Public order was said to embrace more of the community than law
and order. Public order is the even tempo of the life of the community
taking the country as a whole or even a specified locality. Disturbance of
public order is to be distinguished from acts directed against individuals
which do not disturb the society to the extent of causing a general
disturbance of public tranquility. It is the degree of disturbance and its
effect upon the life of the community in a locality which determines
whether the disturbance amounts only to a breach of law and order......
It is always a question of degree of the harm and its effect upon the
community..... This question has to be faced in every case on facts. There
is no formula by which one case can be distinguished from another."
15. Thus, it is clear that if an offence committed against some individuals,
the same will not fall within the category of disturbance of the "public
order". Where due to some act, public at large is adversely affected by
criminal activities of group of persons, such conduct may be said to disturb
the "public order".
16. In the instant case the respondents in the impugned order has only
mentioned that there would be a law and order problem without describing
the nature and its extent thereof. During course of argument they have taken
a plea about shortage of sitting arrangement, parking space and shortage of
volunteers to manage the crowd. These grounds even if are accepted to be
existing are not "law and order problem", far less disturbance of "public
order". These at best can be said to be infrastructural short comings.
17. These grounds are not at all valid grounds to restricts this petitioner to
organize the said congregation or to refuse permission.
18. Learned counsel for the State submits that in their supplementary
counter affidavit and counter affidavit, the other grounds have been
mentioned, but surprisingly they also do not relate to the restrictions as
envisaged in Article 19(3) of the Constitution. Furthermore, he submits that
temporary infrastructure has to be constructed and volunteers are to be
deployed. In Patna, similar type of congregation led to chaotic situation
because of huge public presence. He also submits that there is some
intelligence input that here also similar chaotic situation may arise.
These grounds taken in the counter affidavit cannot be looked into as
the same are not part of the impugned order.
19. In the case of Mohinder Singh Gill v. Chief Election Commission, New
Delhi (1978) 1 SCC 504 : AIR 1975 SC 851 it has been held that when a
statutory functionary makes an order based on certain grounds, its validity
must be judged by the reasons so mentioned and cannot be supplemented
by fresh reasons in the shape of affidavit or otherwise.
Further, the Hon'ble Supreme Court in the case of East Coast Railway
v. Mahadev Appa Rao, reported in (2010) 7 SCC 678 at para 9 has held as
under:-
"9.There is no quarrel with the well-settled proposition of law that an order passed by
a public authority exercising administrative/executive or statutory powers must be
judged by the reasons stated in the order or any record or file contemporaneously
maintained. It follows that the infirmity arising out of the absence of reasons cannot
be cured by the authority passing the order stating such reasons in an affidavit filed
before the court where the validity of any such order is under challenge......."
Thus these grounds urged by the respondents during argument,
which are not part of the impugned order, cannot be looked into.
20. Learned counsel further refers the judgment passed by the Hon'ble
Supreme Court in the case of K. Phanindra Reddy, I.A.S. and Others vs. G.
Subramanian, reported in 2023 SCC OnLine SC 402 and also in the case of
Himat Lal K. Shah vs. Commissioner of Police, Ahmedabad and Another,
reported in (1973) 1 SCC 227 in support of his contention that the State can
impose restrictions.
21. There is no doubt that the respondents can impose restriction, but
ground for such restrictions should be in consonance with the grounds
mentioned in Article 19(3) of the Constitution. Further the judgment which
the learned counsel for the State is referring to i.e. K. Phanindra Reddy
(supra) and Himat Lal (supra), the Court has allowed holding of meetings.
22. Considering what has been held above, the impugned order dated
10.01.2024 passed by the District Magistrate-cum-Deputy Commissioner,
Palamau refusing permission for the congregation of "Hanumant Katha" is
quashed as the same is not in consonance with Article 19(3) of the
Constitution of India. The instant writ petition is allowed.
23. The petitioner is directed to give a detailed plan indicating the sitting
arrangement viz-a-viz the number of devotees expected to attend the
congregation per day to the respondent- authorities, and they will also make
necessary arrangement, so as to ensure the minimum basic
facilities/amenities are provided to the devotees, who will attend the said
congregation. Accordingly, the instant writ petition is allowed.
R.S. (ANANDA SEN, J.)
