Calcutta High Court (Appellete Side)
The State Of West Bengal & Ors vs Joint Platform Of Doctors & Anr on 23 December, 2024
Author: Harish Tandon
Bench: Harish Tandon
Form No.J(2)
sayandeep
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Harish Tandon
And
The Hon'ble Justice Hiranmay Bhattacharyya
MAT 2345 of 2024
With
CAN 1 of 2024
The State of West Bengal & ors.
Vs.
Joint Platform of Doctors & anr.
For the appellant : Mr. Kalyan Bandyopadhyay, Sr. Advocate
Mr. Sirsanya Bandyopadhyay, J. S.C.
Ms. Amrita Panja Moulick, Advocate
Mr. Arka Kumar Nag, advocate
Mr. Rahul Singh, Advocate
For the respondents : Mr. Bikash Ranjan Bhattachasryya, Sr. Advocate
Mr. Samim Ahmmed, Advocate
Ms. Saloni Bhattacharya, Advocate
Mr. Enamul Islam, Advocate
Heard on : 23.12.2024.
Judgment on : 23.12.2024. Harish Tandon , J:
1. The point is raised in the instant appeal on the scope and the
jurisdiction of the writ court in entertaining the writ petition assailing
the decision of the executive in declining to grant permission to hold
in sit-in-demonstration at Dorina Crossing, Esplanade, Kolkata. The
prelude to the litigation is required to be adumbrated before we
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embark our journey on the peripheral of the points raised by learned
senior advocate appearing for the appellant.
2. The respondent No. 1 is Joint Forum of Doctors and the respondent
No. 2 is one of its member who approached the police authorities for
permission to hold peaceful protest raising certain grievances relating
to an unfortunate and barbaric incident of R.G. Kar Medical College
and Hospital at the night of August 9, 2024. The entire nation was
shocked with such incident and the civil societies came forward
raising a concern not only on the safety and security of the Doctors,
interns or the medical staffs but also for an appropriate step to be
taken to impart justice to such victim.
3. The respondents have decided to hold a peaceful sit-in-demonstration
at Dorina Crossing, Esplanade, Kolkata for bringing the real person
within the clutches of the law and to generate the awareness amongst
the common people in this regard. Admittedly, the permission is
declined by the police authorities on 16th December, 2024 citing a
reason that because of the ensuing Christmas eve and the new year
eve, large number of people from different parts of the State and the
city of Kolkata visit the place where the proposed peaceful sit-in-
demonstration is sought to be held by the respondents and there is
every possibility that congestion would be created because of the
same causing inconvenience and/or difficulties to the peoples who
celebrate such festival.
4. The writ petition came to be filed claiming various reliefs and the
primary relief being that they should be permitted to continue with
the demonstration at Dorina Crossing, Esplanade, Kolkata without
any undue influence by the police authorities by setting up necessary
infrastructure and the designated demonstration site and be treated
equally with the other political parties and organizations who have
organized the protest rallies and/or demonstration by setting up the
stage.
3
5. The Single Bench passed an interim order allowing the peaceful sit-in-
demonstration by the respondents and the place where the
demonstration would take place is 50ft. away from the main crossing.
The Single Bench further ensured that there is no difficulty to the
commuters or the peoples in celebrating the festival of Christmas and
restricted the numbers to 200 to 250 at a time. The Single Bench
further ensured that the entire area should be guarded by the
guardrails which would engulf the followers and the protestors and
will also eradicate any congestion with the assembly of common
people.
6. The State has come up in the instant appeal flagging an issue that the
Court should not usurp the power of the administrative authorities in
taking a decision in the administrative fiat and if plausible or
reasonable grounds have been assigned in the administrative order, it
calls a minimal interference in the judicial side. The Judgment of the
Apex Court in the case of Union of India and Others vs. Modiluft
Ltd. Reported in (2003)6 SCC 65, State of U.P. and Others Vs.
Modern Transport Co., Ludhiana reported in (2002)9 SCC 514,
State of U.P. And Others vs. Ram Sukhi Devi reported in (2005)9
SCC 733 and a Division Bench Judgment of Madras High Court in
case of Rama. Muthuramalingam, State Propaganda Committee
Member, Thanthai Periyar Dravidar Kazhagam, No. 31, Nagraja
Lyer Colony, South Fourth Street, Mannargudi, Tiruvarur District
vs. The Deputy Superintendent of Police, Mannnargudi, Tiruvarur
District and Others reported in (2004)5 CTC 554 are cited before
us. In support of the contention that the High Court cannot sit as an
appellate authority over the decision and orders of the administrative
authorities as the maintenance of law and order is ordinarily an
executive function and it would not be proper on the part of the Court
to transgress into such domain.
7. We have no quarrel to the proposition laid down in the above noted
reports. There is a separation of three organs envisaged in the
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Constitution of India and its powers and functions are also well
defined. The transgression and/or overlapping amongst the three
organs is always eschewed and care and protection are always
envisaged so that all the three organs can act independently in
discharge of their solemn duties. The Courts have imposed self-
restraint in entering into the arena of an administrative functions
unless and until it fails on the test of reasonability (Wednesbury
principle).
8. The aforesaid reports have further taken into account the interim
order passed in a proceedings which would impliedly render the final
relief to be granted to the party without affording an opportunity to
the adversary to portray its view and/or decision in relation to the
facts pleaded therein.
9. Such broad principles of law is well settled and does not require any
dissent therefrom yet none of the Judgments have foreclosed the
powers of the writ Court in passing an interim order solely on the plea
that it would tantamount to granting the final relief. The aforesaid
notion shall be fructified with the observations of the Apex Court in
case of Modern Transport Co., Ludhiana (supra) in the following:
“3. There is nothing to indicate that any notice was issued
and adequate opportunity given to the appellants herein to
file a reply in opposition to the writ petition. The copy of the
order filed also does not indicate any counsel being present
on behalf of the appellants herein. Without giving any reason
whatsoever, orders were passed by the High Court directing
the release of the truck and the goods. This was the only
prayer in the writ petition which, in effect, stood allowed by
the impugned order dated 17.11.2000.”
(emphasis supplied)
10. In case of Ram Sukhi Devi (supra), the Apex Court though held that
the Court should ordinarily not pass an interim order which would
impact the final relief but does not rule out the power of the Court in
absolute term but highlighted that in such event, there should be a
better reason based on a prima facie case, the balance of convenience
and inconvenience and the irreparable loss and injury and above all
on the public interest in the following:
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“8. To say the least, approach of the learned Single Judge
and the Division Bench is judicially unsuvstainable and
indetensible. The final relief sought for in the writ petition
has been granted as an interim measure. There was no
reason indicated by learned Single Judge as to why the
government order dated 26-10-1998 was to be ignored.
Whether the writ petitioner was entitled to any relief in the
writ petition has to be adjudicated at the time of final
disposal of the writ petition. This Court has on numerous
occasions observed that the final relief sought for should not
be granted at an interim stage. The position is worsened if
the interim direction has been passed with stipulation that
the applicable government order has to be ignored. Time and
again this Court has deprecated the practice of granting
interim orders which practically give the principal relief
sought in the petition for no better reason than that of a
prima facie case having been made out, without being
concerned about the balance of convenience, the public
interest and a host of other considerations. [See CCE v.
Dunlop India Ltd.¹ (SCC at p. 265), State of Rajasthan v.
Swaika Properties² (SCC at p. 224), State of U.P. v.
Visheshwar³, Bharatbhushan Sonaji Kshirsagar (Dr.) v.
Abdul Khalik Mohd. Musa, Shiv Shankar v. Board of
Directors, U.P. SRTCS and Commr./Secy. to Govt. Health
and Medical Education Deptt. Civil Sectt. v. Dr. Ashok Kumar
Kohli.] No basis has been indicated as to why learned Single
Judge thought the course as directed was necessary to be
adopted. Even it was not indicated that a prima a facie case
was made out though as noted above, that itself is not
sufficient. We, therefore, set aside the order passed by
learned Single Judge as affirmed by the Division Bench and
without expressing any opinion on the merits of the case we
have interfered primarily on the ground that the final relief
has been granted at an interim stage without justifiable
reasons. Since the controversy lies within a very narrow
compass, we request the High Court to dispose of the mutter
as carly as practicable, preferably within six months from
the date of receipt of this judgment.”
(emphasis supplied)
11. The Division Bench of Madras High Court in Rama.
Muthuramalingam, State Propaganda Committee Member,
Thanthai Periyar Dravidar Kazhagam, No. 31, Nagraja Lyer
Colony, South Fourth Street, Mannargudi, Tiruvarur District
(supra) in unequivocal term held that ordinarily the interference
against the administrative order should be avoided but if it offends
the test of reasonability, there is no fetter on the part of the Court to
grant it in the following:
“11. This Court should not ordinarily interfere in
administrative matters, since the administrative authorities
are specialists relating to the administration. The Court
6does not have the expertise in such matters, and ordinarily
should leave such matters to the discretion of the
administrative authorities., It is only in rare and exceptional
cases, where the Wednesbury principle applies, that the
Court should interfere, vide Tata Cellular v. Union of India,
1994 (6) SCC 651; Om Kumar v. Union of India, 2001 (2)
SCC 386, etc.”
12. The law enunciated in the above report as discerned from its
meticulous meaning, there is no ambiguity in our mind that the Court
should be slow and circumspect in interfering with the administrative
decisions unless it fails the test of reasonability. It is also not a rule
of universal application that the Court cannot pass an interim order
of a nature as it would tantamount to granting the final relief if the
facts and circumstances is so evident and imminent from the record
and the test of balance of convenience and inconvenience and the
irreparable loss and injury would cause impairment to the right, the
Court may pass an interim order at the interlocutory stage but after
providing reasons in support thereof.
13. We are conscious that the order which is bereft of reasons cannot be
regarded as an order in the eye of law. The reason is the heart and
soul of any order without which it cannot survive. There is no fetter
on the part of the appellate Court to provide reasons, in the event, the
appellate Court found that the ultimate decision appears to be
correct. The question hinges on the right of civil society to hold
demonstration which is peaceful and non-violent being one of the
facets of the fundamental rights guaranteed under the Constitution.
14. As indicated above, the issue pertains to an unprecedented,
unfortunate and unimaginable incident happened in the R.G. Kar
Medical College and Hospital and the investigation was entrusted
upon the CBI in one of the public interest litigation filed before this
Court. Subsequently, the Apex Court has initiated suo moto
proceedings and it appears that the prayer for injuncting restraining
the people of the country to make a peaceful protest at the behest of
the State was declined therein which would be evident from the order
dated 22nd August, 2024 in the following:
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“9.Mr. Kapil Sibal, senior counsel appearing on behalf of the
State of West Bengal and the Kolkata police submits that
while this Court has permitted peaceful protest, the order
should not be misconstrued to mean that the authorities are
precluded from exercising their regulatory powers in
accordance with law. This Court has not injuncted the State
from exercising such lawful powers as are entrusted in
terms of the law. However, we categorically reaffirm that
peaceful protest should not be disturbed or disrupted, and
the State shall not take any precipitate action against those
who are peacefully protesting against the incident which
took place at RG Kar Medical College Hospital.”
15. Every citizen of a country has a right to make a peaceful protest
provided a sufficient safeguard is taken in this regard which does not
encroach upon the rights of the people at large. There has been a
nationwide protest in relation to such unprecedented incident and the
Doctors forum being a responsible citizen of the country are aware
that any protest which would cause inconvenience or encroach upon
the rights of the parties are not acceptable. Every citizen of the
country has a right to make a peaceful protest and, therefore, while
refusing to grant such permission, the authorities must also bear in
mind the other past incidents where the permission was granted.
Though Mr. Bandyopadhyay, learned senior advocate highlights that
in the past there has been a congestion in an around the area where
the protest was held but there has been several other incidents where
the permission was granted and the inconvenience to the public has
been seen.
16. We thus do not think that there is any justification in the stand of the
police authorities in refusing to grant permission but equally we
cannot overlook that the respondents themselves in the writ petition
indicated that there will be only a gathering of 100 peoples but in the
impugned order, the learned Judge has increased it to 200 to 250
people. The Court cannot substitute its own view and pass an order
which is neither pleaded nor prayed for by the parties.
17. Apart from the same, we find that the Single Bench has taken all care
so as to eradicate any congestion or inconvenience or disturbances in
a free movement of the vehicles and the people on the eve of
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Christmas festival and have directed the guardrails to be put in and
around the stage. We have been given the video photograph taken at
the site where the protest is ongoing and we do not find any
disruption in the traffic or disturbances and/or inconvenience having
created to the commuters at the said locality.
18. We thus modify the order to the extent that instead of 200 to 250
people should be restricted to 100 as prayed for by the respondents.
We appreciate the steps having taken by the police administration so
that there is no disruption in the peaceful protest by providing an
adequate securities and we hope and trust that it would continue
until 26th December, 2024. Apart from the modification as indicated
above, the other portion of the impugned order is not interfered with.
Since the matter is returnable by the Single Bench on 13th January,
2025, the Single Bench is requested to decide the matter on the point
to be taken before it.
19. For abundant protection, we made it clear all the points available to
the parties shall not be treated as concluded in the instant Judgment
and if any such point is taken, the Single Bench is free to take a
decision without being influenced by any observations made
hereinabove.
20. Accordingly, the appeal and the connected application are disposed
of.
21. Urgent photostat certified copy of this order, if applied for, be given to
the learned Advocates for the parties on the usual undertakings.
(Harish Tandon, J.)
(Hiranmay Bhattacharyya, J.)