Nagai Thiruvalluvan and Others vs State of Tamil Nadu and Others

W.P. (MD) No. 13685 of 2013 is filed by the petitioner to quash the order dated 16.8.2013 insofar as para 11, with consequential direction to permit all vehicles to Nelkattumseval Village, Sivagiri Taluk, Tirunelveli District, to pay homage to Freedom Fighter Ondiveeran on his death anniversary scheduled to be held on 20.8.2013. The petitioner is claiming to be the General Secretary of Tamil Puligal, formed to improve and develop the Socio-Economic status of the people of suppressed community, particularly, Arunthathiar community, contending that the said organisation headed by him could participate on every occasion of memorable day of Thiru Ondiveeran, Freedom Fighter, who fought for freedom along with Freedom Fighter Thiru Pulithevar, and when he applied for permission to pay homage to the said Freedom Fighter Ondiveeran on his death anniversary day, scheduled to be held on 20.8.2013 at Nelkattumseval Village, Sivagiri Taluk, Tirunelveli District, a conditional permission was granted prohibiting the entry of vehicles from other States or other Districts and the said condition is challenged, with a consequential prayer as stated supra. W.P. (MD) No. 14415 of 2013 is filed to revoke the prohibitory order dated 19.8.2013 passed by the District Magistrate/District Collector, Tirunelveli, u/s 144 of Cr.P.C. from 6.00 p.m. on 19.8.2013 to 6.00 p.m. on 2.9.2013, and allow the petitioner and other people to celebrate the birth anniversary of Freedom Fighter Thiru. Pulithevan at Nelkattumseval Village, Sivagiri Taluk, Tirunelveli District.

W.P. (MD) No. 14600 of 2013 is filed challenging the rejection of permission, issued by the Inspector of Police, Sivagiri, with further direction to the said officer to give permission to conduct public meeting on 1.9.2013 at Sivagiri Gandhi Memorial Auditorium from 7.00 p.m. to 10.00 p.m. on the occasion of 290th Birth anniversary of Freedom Fighter Thiru. Pulithevan.

W.P. (MD) No. 13685 of 2013 was moved as Lunch Motion on 19.8.2013 for admission. Mr. K. Chellapandian, learned Additional Advocate General, taking notice on behalf of the respondents, produced the order passed u/s 144 of Cr.P.C. in Roc. No. C3/32630/2013 dated 19.8.2013 stating that the said order will come into force from 6. p.m. on 19.8.2013 to 6. p.m. on 2.9.2013. In view of the said order passed stating various reasons to pass such an order, the said writ petition was posted for further hearing on 21.8.2013.

W.P. (MD) No. 14415 of 2013 was filed on 26.8.2013 and came up for admission on 29.8.2013, and the said writ petition was directed to be posted on 30.8.2013 along with W.P. (MD) No. 13685 of 2013.

W.P. (MD) No. 14600 of 2013 came up for admission on 30.8.2013. Learned Additional Advocate General took notice for the respondents.

As the issue raised in all these writ petitions are in respect of prohibitory order passed u/s 144 Cr.P.C., or the orders passed based on the said prohibitory order, these writ petitions are heard together.

The respective learned counsels appearing for the petitioners submitted that during previous years, without any restrictions, people were allowed to visit and pay homage on the death anniversary of Ondiveeran, Freedom Fighter, and on the Birth Anniversary of Pulithevan, Freedom Fighter, and this year the impugned prohibitory order was passed by the District Magistrate/District Collector on 19.8.2013, which affects their rights to pay respect to their departed leaders during the death anniversary/birth anniversary, and therefore the impugned orders in the writ petitions are to be set aside, particularly the prohibitory order issued u/s 144 of Cr.P.C. and the restrictions imposed in allowing the vehicles and conducting memorial day meeting.

The learned Additional Advocate General on the other hand submitted that the Superintendent of Police, Tirunelveli; Revenue Divisional Officer, Tenkasi; and the Tahsildar, Sivagiri, have submitted separate reports and stated that a large number of persons belonging to various political parties and organisation of Tamil Puligal had proposed to organise a public meeting on the same day at Sankarankoil; that in the year 2011 during the said function SC Arunthathiar community people arrived in large numbers in about 400 vehicles and made lot of disturbances enroute; that all the vehicles passed through villages belonging to other communities, the volunteers and activists raised several objectionable slogans, which instigated the persons belonging to the other communities; that several vehicles were parked in patta lands belonging to other community people, resulting in damage to standing crops and fields, which caused tense atmosphere between SC Arunthathiar and other community people; that in the year 2012, number of persons in about 680 vehicles came to attend the function and persons were travelling in the roof tops and Boards of vehicles, defying Police Orders; that there were violations and untoward incidents and the police registered three cases in K.V. Nallur Police Station and Sankarankoil Town Police Station, and if this year such memorial day and birth day celebrations are allowed to be proceeded by all groups, there would be law and order problem and to avoid disturbance to public tranquility, the District Collector/District Magistrate thought fit to promulgate orders u/s 144 Cr.P.C., only to prevent the entry of Tourist Motor Cabs, Tourist Maxi Cabs, All India Tourist Motor Cabs, All India Tourist Maxi Cabs and Omni buses and other Tourist Vehicles including Stage carriage with temporary or special permits carrying volunteers intending to participate in both Ondiveeran and Pulithevan anniversaries at Nelkattumseval Revenue Village of Sivagiri Taluk, Tirunelveli District. Learned Additional Advocate General further submitted that the regular stage carriage vehicles, Tourist Vehicles plying to other places, Goods carriages, vehicles with students pertaining to local schools and colleges, vehicles carrying essential commodities, regular omni buses are not prevented and if anyone requires exemption, permission of the Collector or Superintendent of Police, Tirunelveli, may be obtained by applying in advance and giving required details. The said order was passed taking note of the ground reality as well as previous antecedents of both groups. The learned Additional Advocate General further submitted that the order having been passed with due application of mind with an intention to maintain law and order, petitioners cannot be granted permission to bring persons in vehicles from other Districts and other States and no one is preventing the petitioners to give respect to the departed leaders. The learned Additional Advocate General also submitted that the order was issued on 19.8.2013, which will have effect from 6. p.m. as the death anniversary of the said Thiru. Ondiveeran fell on 20.8.2013 and was ordered to be in force till 2.9.2013 as the birth anniversary of Thiru. Pulithevan falls on 1.9.2013 and prayed for dismissing the writ petitions.

We have perused the order passed by the District Magistrate/District Collector, Tirunelveli dated 19.8.2013, imposing prohibitory order as well as the other impugned orders, which are challenged in these writ petitions.

The point for consideration in these writ petitions are as to whether the petitioners can challenge the order issued u/s 144 of the Cr.P.C. and the restrictions imposed in bringing the other State and District vehicles in conducting public meeting on 1.9.2013.

In the impugned order dated 19.8.2013, all the statements made by the learned Additional Advocate General are found.

The object of Section 144 Cr.P.C. empowering the District Magistrate/District Collector to pass orders is a preventive measure to preserve public peace and tranquility, without lapse of time, acting emergently, if warranted. It is a paramount duty of the Law Enforcing agency to keep the societal needs by even overriding temporary private rights, keeping in view the public interest. Section 144 reads as follows:

Power to issue order in urgent cases of nuisance or apprehended danger.--(1) In cases where, in the opinion of a District Magistrate, a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this Section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by Section 134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot, or an affray.

(2) An order under this Section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex parte.

(3) An order under this Section may be directed to a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area.

(4) No order under this Section shall remain in force for more than two months from the making thereof:

Provided that, if the State Government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any affray, it may, by notification, direct that an order made by a Magistrate under this Section shall remain in force for such further period not exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired, as it may specify in the said notification.

(5) Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this Section, by himself or any Magistrate subordinate to him or by his predecessor-in-office.

(6) The State Government may, either on its own motion or on the application of any person aggrieved, rescind or alter any order made by it under the proviso to sub-section (4).

(7) Where an application under sub-section (5) or sub-section (6) is received, the Magistrate, or the State Government, as the case may be, shall afford to the applicant an early opportunity of appearing before him or it, either in person or by pleader and showing cause against the order; and if the Magistrate or the State Government, as the case may be, rejects the application wholly or in part, he or it shall record in writing the reasons for so doing.

In exercise of that power vested with the District Collector, Tirunelveli, the said authority thought fit to issue a prohibitory order u/s 144 Cr.P.C. by order dated 19.8.2013. In the said order several reasons are stated to promulgate the prohibitory order. None of the petitioners are in a position to dispute the law and order problem arose in the year 2011 and 2012; registration of criminal cases; damage to standing crops and fields resulting in tense atmosphere between SC Arunthathiar and other communities; and the visit of several thousand persons in hundreds of vehicles.

The Superintendent of Police, Tirunelveli, in his report dated 18.8.2013 has reported that this year more than 15,000 persons may attend the memorial day of Thiru. Ondiveeran, by using more than 1500 vehicles and there are information that some miscreants are planning to instigate violence and spread communal tension, and thus there is serious and grave possibility of pubic order disturbance, caste clash, danger to public peace and tranquility, which have to be prevented. The Revenue Divisional Officer, Tenkasi and Tahsildar, Sivagiri, also submitted separate reports on 18.8.2013. The Law Enforcing Agency and the Revenue Officials having reported the likelihood of disturbance of public order, caste clash, etc., in the two anniversaries, the District Magistrate/District Collector, after satisfaction and recording reasons, issued the prohibitory order u/s 144 Cr.P.C.

When apprehension of disturbance of public peace and tranquility is made out based on Intelligence Report, the District Magistrate is bound to exercise the power available u/s 144(2) to meet the emergent situation. Such an exercise of power is necessary as maintenance of public peace and tranquility is the sovereign function of the State. The right conferred under Article 19(1)(b) and (d) of the Constitution of India, viz., ''to assemble peaceably and without arms'' and ''to move freely throughout the territory of India'', are subject to restrictions imposed under Article 19(3) of the Constitution of India, and no one can claim it as an absolute right. In the decision reported in Ramlila Maidan Incident Vs. Home Secretary, Union of India (UOI) and Others, the Hon''ble Supreme Court held that freedom of speech, right to assemble and demonstrate by holding dharnas and peaceful agitations are the basic features of democratic system and preventive steps should be founded on actual and prominent threat endangering public order and tranquility, and the State is to exercise the said power with caution and free from arbitrariness. In the decision reported in James Martin Vs. State of Kerala, wherein restriction to conduct hartai/bundh was questioned, the Hon''ble Supreme Court emphasised the duty of the Government to prevent hartal or bundh or strike and in paragraph 24 held thus,

24..............in the name of hartal or bandh or strike no person has any right to cause inconvenience to any other person or to cause in any manner a threat or apprehension of risk to life, liberty and property of any citizen or destruction of life and property, and the least to any government or public property. It is high time that the authorities concerned take serious note of this requirement while dealing with those who destroy public property in the name of strike, hartal or bandh.

The decision taken by the District Magistrate/District Collector in exercise of powers conferred u/s 144 Cr.P.C., in similar circumstance was upheld by the Hon''ble Supreme Court in the decision reported in State of Karnataka and Another Vs. Dr. Praveen Bhai Thogadia, . In the said judgment in paragraph 6 it is held that Court should not normally interfere in matters relating to law and order, which is primarily the domain of the administrative authorities concerned. In paragraph 6 it is held thus,

Courts should not normally interfere with matters relating to law and order which is primarily the domain of the administrative authorities concerned. They are by and large the best to assess and to handle the situation depending upon the peculiar needs and necessities within their special knowledge. Their decision may involve to some extent an element of subjectivity on the basis of materials before them. Past conduct and antecedents of a person or group or an organisation may certainly provide sufficient material or basis for the action contemplated on a reasonable expectation of possible turn of events, which may need to be avoided in public interest and maintenance of law and order. No person, however big he may assume or claim to be, should be allowed, irrespective of the position he may assume or claim to hold in public life, to either act in a manner or make speeches which would destroy secularism recognised by the Constitution of India. Secularism is not to be confused with communal or religious concepts of an individual or a group of persons. It means that the State should have no religion of its own and no one could proclaim to make the State have one such or endeavour to create a theocratic State. Persons belonging to different religions live throughout the length and breadth of the country. Each person, whatever be his religion, must get an assurance from the State that he has the protection of law freely to profess, practise and propagate his religion and freedom of conscience. Otherwise, the rule of law will become replaced by individual perceptions of one''s own presumptions of good social order. Therefore, whenever the authorities concerned in charge of law and order find that a person''s speeches or actions are likely to trigger communal antagonism and hatred resulting in fissiparous tendencies gaining foothold, undermining and affecting communal harmony, prohibitory orders need necessarily to be passed, to effectively avert such untoward happenings.

In paragraph 8 the Supreme Court further held that unless the order passed is patently illegal and without jurisdiction or with ulterior motive and on extraneous consideration, normally there cannot be any interference, as the Court cannot substitute its view for that of the competent authority.

Similar prohibitory order issued by the District Collector, Tirunelveli, when agitations were launched in Radhapuram Taluk of Tirunelveli District, while opposing the commissioning of atomic power plant at Kudankulam was challenged before this Court, the First Bench of this Court upheld the said order in the decision reported in P. Pugalenthi v. State of Tamil Nadu 2012 WLR 425 : LNIND 2012 MAD 4317. The judgment of the Supreme Court reported in In Re Ramlila Maidan Incident v. Home Secretary, Union of India (supra) and the judgment in State of Karnataka v. Dr. Praveen Bhai Thogadia (supra), were followed by the First Bench of this Court, and in paragraph 17 it is held thus, 17.................the power u/s 144 is an executive power and for exercise of such powers, there must be sufficient ground for proceeding and the next aspect would be immediate prevention or speedy remedy is desirable and the order is required to be in writing by directing any person to abstain from a certain Act or to take certain order with respect of certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent or tends to prevent obstructions, annoyance or injury to any person lawfully employed or danger to human life, health or safety or a disturbance of the public tranquillity or a riot or an affray.

Applying the said principle stated in the above said judgments to the facts of these cases and the detailed order giving reasons for passing the prohibitory order u/s 144 Cr.P.C., by the District Magistrate/District Collector, Tirunelveli, and other orders prohibiting entry of vehicles and conduct of meeting, we are of the view that the petitioners have not made out any case to interfere in the impugned orders, which are challenged in these writ petitions, and consequently all the writ petitions are dismissed. No costs. Connected miscellaneous petitions are also dismissed.