1 in the High Court of Judicature at Madras Dated
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1 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.09.2018 CORAM: THE HON'BLE MR.JUSTICE S.MANIKUMAR AND THE HON'BLE MR.JUSTICE SUBRAMONIUM PRASAD WP.No.22911 of 2018 and WMP No.26806 of 2018 S.Sudalaiyandi ... Petitioner vs. 1. The Secretary to the Government of Tamil Nadu, Public (Law and Order) Department, Fort St. George, Chennai - 600 009. 2. The Director General of Police, Chennai - 4. 3. The Commissioner of Police, Greater Chennai, Vepery, Chennai - 600 007. ... Respondents WRIT Petition filed under Article 226 of the Constitution of India, praying for the issuance of a writ of certiorari, to call for the records in G.O.Ms.No.598 dated 09.08.2018 on the file of public (law and orders B) Department and to quash the conditions imposed to celebrate worship of Vinayagar idols and immersion stated at guidelines 1(i), (iii) and 15 are concerned . For Petitioner : Dr.G.Krishnamurthy For Respondents : Mr.T.N.Rajagopalan http://www.judis.nic.in Government Pleader 2 ORDER (Order of the Court was made by S.MANIKUMAR, J) Mr.S.Sudalaiyandi, a practicing advocate has filed the instant writ petition, for a writ of certiorari, to call for the records in G.O.Ms.No.598, Public, (Law & Order.B) Department dated 09.08.2018 and to quash the Condition Nos. 1(i), (iii) and 15, as unconstitutional and violative of Articles 14, 25 & 26 of the Constitution of India. 2. At the outset Dr.G.Krishnamurthy, learned counsel for the petitioner submitted that the petitioner is satisfied with all other conditions, set out in the guidelines regarding installation and worship of vinayakar idol, and also immersion thereof, except the conditions stated supra. 3. Guidelines have been issued with a view to maintain public peace, tranquility, public safety, regulation of traffic and control of pollution. 1(i), (iii) and 15 of the guidelines stated to be violative of Articles 14, 25 and 26 of the Constitution of India, and impugned, in this writ petition, are extracted hereunder. (1) Any organiser intending to install Vinayakar Idol should apply in a prescribed format (as in Form-I) to the Assistant Commissioners of Police concerned, where there are Police Commissionerates, and RDO / Sub-Collector in all other cases, at least a month in advance along with No Objection Certificates (NOCs) obtained from http://www.judis.nic.in (i) Land owner concerned. If the proposed land is a public 3 land, NOC from the Local Bodies concerned/ Highways or the Department concerned should be obtained; (ii) ...... (iii) Fire and Rescue Services to the effect that temporary structures erected adhere to the fire safety standards; ...... (15) Vinayakar Idols installed in the public places for worship should be taken out for immersion within five days from the date of installation. 4. Contentions of the writ petitioner are that getting permission from the land owner concerned, would be difficult, as no land owner would grant permission, to put up a stage for Vinayagar idols, in front of his house and that police may register false cases. It would be practically impossible for any organiser, intending to instal vinayagar idol to obtain NOC from the local bodies concerned / Highways or the Department, because due to political pressure, local bodies would not grant permission. 5. Guideline No.1(iii), states that NOC from the Fire and Rescue Services to the effect that temporary structures erected, adhere to the fire safety standards, which according to the writ petitioner, are not required to be obtained, in view of other safe guards provided therefor, in the guidelines dated 09.08.2018, and that the same would be a financial burden, on the organisations. The above are the submissions, as regards the constitutional validity to Guideline Nos.1(i) and (iii). http://www.judis.nic.in 4 6. As regards Guideline No.15 stated supra, Dr.G.Krishnamurthy, learned counsel for the petitioner submitted that immersion cannot be restricted to five days, and it would be against the Constitutional and religious rights of Hindus, as compared to others, and therefore, it is violative of Article 14 of the Constitution of India. 7. Added further, Dr.G.Krishnamurthy, learned counsel for the petitioner made submissions that in the State of Maharastra celebration is done for 10 days, but State of Tamilnadu, has restricted the period, Vinayagar Chathurti to Vinayagar Visirajana. 8. Learned counsel for the petitioner further submitted that permission to instal and immerse vinayakar idols, should be granted only to the registered bodies or organisers and the societies, and not for all. 9. We have heard Dr.G.Krishnamurthy, learned counsel for the petitioner and perused the materials available on record. 10. Yesterday, we considered, W.P.No.22805 of 2018, wherein, the petitioner therein, has sought for a writ of mandamus, directing respondents 1 to 8 therein, to follow the order made in W.P.Nos.21953 and 22240 of 2017 dated 23.08.2017. In the said writ petition, reference has http://www.judis.nic.in 5 been made to public interest writ petitions, filed by Dr. K.R.Ramaswamy alias Traffic Ramaswamy and another writ petition, W.P.No.22240 of 2017, filed by one Mr.Subash. 11. W.P.No.21953 of 2017, has been filed for a mandamus, directing respondents 1 to 10 therein, to consider, and pass appropriate orders, on the representation dated 11.08.2017. 12. This Court deems it fit to consider a decision in Rama Muthuramalingam Vs. The Deputy Superintendent of Police, Tiruvarur District, reported in 2004 (5) CTC 554, wherein the Hon'ble Division Bench of this Court, while explaining the scope of judicial review on administrative action and on the aspect of adjudicating an order pertaining to maintenance of law and order, at paragraph Nos.10 & 11 has held as follows; "10. Maintenance of law and order is ordinarily an executive function and it is ordinarily not proper for the judiciary to interfere in this matter. The administrative authorities have expertise in law and order problems through their long experience and training, and the Courts should not ordinarily interfere in such type of matters. The judiciary must therefore exercise self- restraint and not try to interfere with the functions of the executive or the legislature. By exercising self-restraint it only enhances its prestige. 11. This Court should not ordinarily interfere in administrative matters, since the administrative authorities are http://www.judis.nic.in 6 specialists in matters relating to the administration. The Court does 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." We deem it fit to extract the judgments considered by the Hon'ble Division Bench, which runs from paragraph Nos.12 to 14 as follows; "12. In Haryana Financial Corporation and another v. Mis Jagdamba Oil Mills and another , 2002 (1) CTC 503 : 2002 (1) UPLBEC 937 ( vide paragraph 10) the Supreme Court observed: "If the High Court cannot sit as an appellate authority over the decisions and orders of quasi-judicial authorities, it follows equally that it cannot do so in the case of administrative authorities. In the matter of administrative action, it is well known that more than one choice is available to the administrative authorities. They have a certain amount of discretion available to them. They have a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred, ( per Lord Diplock in Secretary of State for Education and Science v. Metropolitan Borough Counsel of Tameside , 1977 AC 1014). The Court cannot substitute its judgment for the judgment of administrative authorities in such cases. Only when the action of the administrative authority is so unfair or unreasonable that no reasonable person would have taken that action, the Court can intervene. To quote the classic passage from the judgment of Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation , 1947 (2) ALL ER http://www.judis.nic.in 680: "It is true the discretion must be exercised reasonably. Now 7 what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with the discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters, which he is bound to consider. He must exclude from his consideration matters, which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably.' Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority." 13. In Tata Cellular v. Union of India reported in AIR 1996 SC 11 (vide paragraph 113) the Supreme Court observed: (1) The modern trend points to judicial restraint in administrative action. (2) The Court does not sit as a Court of appeal over administrative decisions but merely reviews the manner in which the decision was made.