All India Trinamool Congress And ... vs The State Of Tripura And Others
2021 Latest Caselaw 1016 Tri

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                        HIGH COURT OF TRIPURA
                          _A_G_A_R_T_A_L_A_
                            WA No.266 of 2021
All India Trinamool Congress and another
                                                         ......... Appellant(s)

                                       Versus

The State of Tripura and others
                                                         ........ Respondent(s)

For Appellant(s)          :     Mr. S. Lodh, Advocate,
                                Mr. K. Roy, Advocate.
For Respondent(s)             : Mr. S.S. Dey, Advocate General,
                                Mr. D. Bhattacharya, G.A.,
                                Mr. S. Saha, Advocate,
                                Ms. Ayantika Chakraborty, Advocate.

        HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
         HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY

                                 _O_ R_ D_ E_ R_
04/10/2021
(Akil kureshi, CJ)

Heard learned counsel for the appellants and learned

Advocate General appearing for the State on advance copy. Looking to

the issues involved we have proceeded to dispose of the appeal finally

with the consent of both sides.

The appeal is filed by the original petitioner, a political

party. In the writ petition the prayer was for a direction to the state

authorities to allow the petitioner to organize a protest rally on 22 nd

September, 2021 against what the petitioner alleged were "terrible attacks

and inhuman vandalism inflicted on media houses". The petitioner had

first approached the SDPO, Sadar, Agartala under a letter dated

11.09.2021 seeking permission for holding the rally on 15.09.2021 which

was rejected by a letter dated 13.09.2021 on the ground of law and order

situation. On 13.09.2021 the petitioner wrote to SDPO and offered to

reschedule the rally on 16th September, 2021. Permission for this was also

refused by the SDPO on 13.09.2021. On 14.09.2021 the petitioner again

wrote to SDPO seeking permission to hold the rally on 22nd September,

2021. On 18th September, 2021 the petitioner wrote to the Director

General of Police and reiterated the request for holding the rally on 22nd

September, 2021. When no permission was granted by the authorities, the

petitioner filed the said petition and prayed for a direction noted above.

This petition was taken up by the learned Single Judge on

20th September, 2021. It was placed for further hearing on 21st September,

2021. On 21st September, 2021 the State Government produced a copy of

the order dated 20th September, 2021 passed by the District Magistrate &

Collector, West Tripura in which in exercise of powers under Section 144

of Cr.P.C, he prohibited all meetings, procession, public gathering by any

political party in Sadar Police Sub-Division (West and East Police station

areas) with effect from 6 am, 21st September, 2021 till midnight of 4th

November, 2021. The learned Single Judge thereupon passed the

judgment dated 21.09.2021 dismissing the petition which is challenged in

this appeal. Perusal of the judgment would show that the learned Single

Judge has examined the legality and propriety of the order of the District

Magistrate & Collector, West Tripura dated 20th September, 2021. The

learned Judge has reproduced the entire order and formed an opinion that

it is part of the policy decision of the government and with respect to

which the powers of the Court are very limited. The learned Judge

observed that the District Magistrate & Collector, West Tripura had

issued the order based on intimation conveyed to him by the

Superintendent of Police, West Tripura under letter dated 18.09.2021

requesting him not to permit any political parties to hold meetings/

processions till completion of the Dewali festivals since there is serious

apprehension of breach of peace and increasing threat of 3rd wave of

Covid-19. Perusal of the record as well as the impugned judgment would

show that the said order dated 20th September, 2021 passed by the District

Magistrate was not in challenge in the writ petition. Learned Advocate

General, however, stated that the counsel for the petitioner had insisted on

the Court examining the legality of the order. Though the judgment does

not reflect any such request or insistence, in our opinion, it makes no

difference even if the learned Advocate General is correct in his

statement. We would elaborate on this aspect somewhat later. For the

time being, we may reproduce the relevant portion of the judgment of the

learned Single Judge as under :

"I have perused the said prohibitory order dated 20.09.2021, and have given my due consideration. From the said prohibitory order it appears that the government has considered the various aspects on the eve of Durga puja, the greatest festival of the State. They have shown the reasons as to why this prohibitory order has been issued. I find that the Government has apprehension of causing serious breach of peace and also has considered the issue out of the 3rd wave of Covid-19. The government has also apprehended deterioration of law and order situation in Sadar police Sub-division, if at this moment it permits organizing of any procession, meetings or public gathering within this area.

xxx xxx xxx Learned counsels appearing for the petitioners have submitted that the government has actuated with malice in issuing the said prohibitory order dated 20.09.2021 and it is aimed only to restrain them from organizing any rally in the city of Agartala. The learned counsels further submit that they may be given an opportunity to submit representation to the authority concerned for granting permission to organize protest rally on any future date. In my opinion, seeking permission to organize rally and submission of representation in this regard entirely depends upon the petitioners. They have the liberty to pursue their cause with the appropriate authorities; and the Court's order is not necessary for such purpose. Accordingly, the petitioners may approach again to the authorities concerned, if they so desire, and in that case, the respondents shall act in accordance with law.

xxx xxx xxx

Here, I find that the District Magistrate & Collector, West Tripura District has issued the said prohibitory order based on an intimation conveyed to him by the Superintendent of Police, West

Tripura vide his letter dated 18.09.2021 whereby, he made a proposal to the D.M. & Collector not to permit any political parties for holding meeting/procession/pubic gathering till completion of Diwali festival as according to SP, West Tripura District, there is serious apprehension of breach of peace, and in view of increasing threat from the 3rd wave of Covid-19. The said order was also intended to be issued to prevent any mischief which may be committed by any political parties, and may result in sporadic clashes between political groups affecting the law and order situation of the State.

Being the order dated 20.09.2021 is a matter of policy decision of the Government, intending to achieve a definite object and purpose, according to me, the Court cannot invade the jurisdiction vested upon the executives under the Constitution. I am in full agreement with Mr. Deb, learned senior counsel appearing for the petitioners that organizing a peaceful rally is a fundamental right as enshrined under Article-19 (1) (a) (b) of the Constitution of India. However, according to me, the group of rights as enshrined under the scheme of Article-19 as listed under Clauses (a) to (g), though, recognized as fundamental rights, but, do not stand on a common pedestal which is clear from the inclusion of Clauses (2) to (6). The Common thread that runs throughout Clauses (2) to (6) is that the operation of any existing law or enactment by the statement or any law which imposes reasonable restrictions to achieve certain objects, is saved. In view of this, the State legislature or its executives can impose all reasonable restrictions to achieve certain objects and in the case in hand, the object, the executives intended to achieve is to prevent breach of peace (law and order) in and around the city of Agartala i.e. in Sadar Sub-Division and also to take precautionary measures to prevent the deadly corona virus in the crowded city of Agartala.

In view of this, interference with the policy decision of the State respondents as indicated in the prohibitory order dated 20.09.2021, in my opinion, is unwarranted and thus, this Court cannot pass any

direction permitting the petitioners to organize rally as prayed for by them by way of filing the present writ petition.

Accordingly, the instant writ petition stands dismissed. A copy of the prohibitory order dated 20.09.2021 shall form a part of this record."

The above quoted portion of the judgment of the learned

Single Judge leaves no manner of doubt that in the impugned judgment

the legality of the order passed by the District Magistrate & Collector on

20th September, 2021 was tested and upheld. In our view, without a

challenge, without pleadings, without matching prayers and without full

consideration of all factual and legal aspects, the order of the District

Magistrate & Collector should not have been upheld, nor could it have

been set aside. The learned Advocate General may not be perturbed by

this order since the outcome is favourable to the Government, surely if

the learned Judge had proceeded to quash the order, the respondents

would have certainly argued before us that an order which was never

challenged could never have been set aside. We do not think that a

reverse logic can apply because the outcome of the exercise is favourable

to one side. The principle remains the same and must be applied

irrespective of the outcome of the litigation.

That apart, we do not think that the appellant-original

petitioner can get any relief in this appeal. The sole prayer in the writ

petition was for a direction to the authorities to permit a procession cum

rally on 22nd September, 2021. Quite apart from the fact that the event

having passed, the clock cannot be put back; unless and until the

petitioner succeeds in having the prohibitory order of the District

Magistrate & Collector dated 20th September, 2021 stayed or set aside, no

such permission can be granted. Whatever be the practical difficulties or

compulsions, if the petitioner was desirous of pursuing the prayer for

permission to hold the rally on a given date, the petitioner had to have

brought the order of the District Magistrate & Collector dated 20th

September, 2021 on record and challenged it formally.

In the result, this appeal is disposed of with the declaration

that the findings and observations of the learned Single Judge upholding

the order of the District Magistrate & Collector dated 20th September,

2021 are obliterated. However, no relief can be granted in favour of the

petitioner for permission to hold the rally as originally requested or

otherwise.

Appeal is disposed of accordingly. Pending application(s), if

any, also stands disposed of.

(S.G. CHATTOPADHYAY), J                            (AKIL KURESHI), CJ



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