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M.A.T. No. 1673 0£2018

With

C.A.N. 10440 0£2018

State of"Weat Bengal & Others -1renua-

Bharatiya Janata Party & Others

Mr. K1shore Datta, Ld. Advocate General, l\1r Abhratosh Majumdar, Ld. Addi. Advocate General, Mr Bhaskar Prasad Vau,yn,Ld AGP. Mr. Sirsanya Bandopadhyay, Jr Standing Counsel, Ms. S. Shaw, Mr Arka Kumar Nag, Mr. Malay Singh, Mr. Subrata Ghosh, Mr. Sk. Md. Masud, Mr Samir Kumar Ghosh, Mr. Bhaskar Chakraborcy, Mr. Owarikanath Mukherjee, Mr. Rakesh Singh, Mr . Ranil Biswas, Mr. Ranjan Saha, Mr. Sanatan Panja. Mr. Joydip Basu. Ms. Sangita Roy, Mr Arindam Chattel')Ce, 1\1s Lipika Chatterjee, Mr. Rajaram Banerjee, Mr Bijoybrat.a De, Mr. Mirza Kamruddin, Mr. Joyd1p Banerjee, Mr. Abhishek Banerjee, Mr. Manil Lal De, Mr. Bis\vabrata Basu Mallick, Mr. Sabyasachi Monda!, Ms. Supriya Chatterjee, Mr. Pinaki Bhattacharya, Mr. Tapas Adhikary, Mr. Pratik Bose, �1r. Pritam Chaudhury, �1r. somnalh Naskar, �1s. SanJukta Samanta, Mr. Mrinmoy Sahu,Mr. Tapas Monda!,

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Ms. Rupsha Chakraborty,

�- Nilam Singh,)J_

Bar & Bench (www.barandbench.com)

1k Sanat m. .....Mr.AshisOuJia. Mr. Abhra Majumc1ar Mr. Ayanabha Raha,'Mr. Tarak Karan,Mr. lmtiaz Ahmed,Mr. Jyoti Prabsh Chatterjee, Mr. Manas Sadhu, Mr. Panha Basu, Mr . Rabiul Islam, Mr . Sagnik Challcrjcc, Mr. Sidhartha Chatterjee, !',fr. Talch Masud Siddique, t.1s. Sona! Sinha,Mr. Swapan Banerjee,

... For the Appellant Nos. 1,2 & 3

Mr Abhishek Mnnu Singhvi, Sr.Adv. Ms. Aastha Shanna Mr. Suhaan Mukhlerji Mr. Nilotpal Chatterjee Mr. Amit Bhandari 1',1r. Kaja! Dalal

.... For the Appellant Nos. 4&5.

Mr. S. K. Kapur, Sr. Advocate. Mr. Saptangsu Basu, Sr. Advocate, Mr. Smarajit Roy Chowdhury, Mr. Phiroze Edulji, Mr. Rajdecp Biswas, Mr. Brajesh Jha, Mr. Tarun Jyoti Tewan, Mr. Subassis Das Gupta, Mr. Subhas Ray, Mr. Gautam Sardar, Mr. Pradip Kumar Monda!, Mr. Soumen Sarkar, Mr. Ajit Misra, Ms. Mainalini Majumdar, Mr. C. S. Jha, Mr. Soumen Bhattacharya, Ms. Debjani Ghosal, Mr. Pramod Kumar Darolia, Ms. Debjani Ghoshal, Mr. Daya Sankar Mishra, Mr RaVJ Ranjan Kumar, Mr. Manabendra Bandopadhyay, Mr. Chirantan Dan, Mr. Debasis Saha, Mr. Partha Ghosh, Mr. Subhojit Seal. ... For the respondent No.l


B•; AB1'A 29 of WI (8tayt

On the oral prayer made by lhe learned AdvocateGeneral, West Bengal, lo transpose lhc proforma

respondent Nos.2 and 3, namdy, Lhc Otrec\or Ocnc:ral of

Police and Additional Director Cen"ral of Pohcc II.aw &

Order) ns appellant No$.4 and s, leave is granted 10 the

appellunUJ to tmnspo...: the aforesaid two rc&pondents as

appellant Nos.4 and S.

This is an application arising out of an appeal

preferred against a judgment and order passed m the

writ application. The operative portion of which is quoted

below:

•Applying the proposition of law 10 the facts of Che

present case, I am of the opinion that it would be

appropriate to permit the petitioner to o,yanise the

yatras/rallies, as prayed for. The impugned order dated

J 5Jh December, 2018 is, accordingly, set aside.

The petitioner, through its learned advocate,

undertakes before this Court that.:

a) the petitioner shall inform the Supenntendent of

Police of the concerned district in which the

yatra/ rally shall enter, at least 12 hours. before

entering the concerned district;

b) the petitioner will ensure conducting the yatra/ rally

in an orderly fashion, in a peaceful manner and

abiding by all ecological norms;

c) the yatra/ rally shall not impede the normal

movement of vehicular traffic;

d) the yatra/rally shall be held in consonance with the

rules and regulations governing and regulating the

traffic system.

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eNl1' JUSt cfiw..doft o/ lliePfllitlonttr shall also be WCIU'>OII""loss and dam.age to the public

The police admlnistraticn shall .,..,police force lo ensure that rhere i4 no breach oforder.

With the aboue observations and diredion&. riv tri

petition is disposed of.

There shall. however, be no order as 10 coals. .After the order is passed, Mr. Datta, leczr>*f

Advocote General appearing for the Slate respondenls,

prays for sray of operation of rhe order.

Such prayer is considered and rejected.

Photostat plain copy of l1us order, duly counter

signed by the Assistant Registrar (Court}, be giuen to the

I.earned advocates appcanng for the p arties on their usual

undertakings. •

This matter has a chequered history

The respondent no. I submitted application to

various authonues of the State of West Bengal for

undertaking a programme to organize three Yatras under

the banner of "Ganatantra Banchao Yatra• by a

communication dated October 29, 2018. The above

application \Vas follov.,ed by number of reminders.

Since the respondent no. l did not receive any reply

to the above application, they filed an application under

Article 226 of the Constitution of India in the matter of

Bharatiya Janata Party - Vs. The State of West Bengal &

Ors. (In Re: W.P. No. 24263 (W) of2018),

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The learned SJilate�December 6, 2018 In the above Writlhe writ petition pending.

Being aggrieved by that order, an appeal

prcferrcd by the respondent no.2 before a Division Bench

of this Court in the matter of Bharatiya Janata Party,

West Bengal - Vs The State of We-st Ben(lal & Ors. Un

Re· M.A T No.1522 of2018 with CAN 9643 of2018).

lily an order dated December 7, 2018, lhe above

appeal was disposed of modifying the order dated

December 6, 2018 passed by the leamed Single Judge in

the above writ application and the operative portion of

the above order is quoted below:

« In such circunistances as stated above, we propose

to niodify the order dated 6'" December, 2018, passed by

the learned Single Judge as follows:

11ie Chief Secretary, Govenvnent of West Bengal,

the Principal Secretary, Department of Home & Hills

Affairs and the Director General of Police, Government of

West Bengal, shall meet the auchorised representatives of

the appellant/ ivrit petitioner (no! exceeding three) latest by

next Wednesday (12.12.2018) and take a decision in the

matter supported with cogent reasons and communicate

the same to the appellant/writ petitioner by next Friday

(14.12.2018).

Since no affidavits have been called for, allegations

made in the application for stay are deemed to be not

admitted by the respondents.

The appeal and the application for stay stand

disposed of accordingly.


In co J' mp iancc or the: above order, the 8ecretaty/Co-ordination), Honie and Hill Afrairs, Govc:mment of

\Vest Bengnl, b , q )' a ,orwarding letter dated nil

communicated Lhe decision taken by the State:

Government to lhe Prcsiden l of the respondent no, 1. The

above order is quoted below:

•Decision taken by the State GovemmeniIn terms of the order of the

lfon'III• DtvbJon Bf.acb or tbe C.ic\ltta tUp Cou:rt t.a NAT 1522 ot201a

In oompliantJe wrth the order passed by the Hon 'ble Division

&:ru;h of the Calcutta High Coun, ill MAT 1522 of 2018 dated

J()t• December, 2018, the undersigned met the representatiues

nonunated by the Bharo.trya JaMta Pany on 13·12-2018 at

17,30 hours in the O)nference Room of Lalbazar, Kolkata.

Al the said meeting. Lite represenullwes of the BJP stated

that they would go ahead with Rath Yatra and/ or 'Ganatarura

Bancha.o Yatra • in the same sequence which they had earlier

fixed. According to the schedule earlier submitted by the BJP,

they plan to hold a total of 158 meetings across West Bengal

The three segme,us of Yacra would tnuolue some religious sites

and move simultaneously for at least 34 days. The

representatives oould not, however gwe details of tire exact

dates and uenues of the meetings they propose, or clearly state

who would address each meeting.

We have obtained intelligence inpu!S from D.Ms., CPs and

SPs and also the assessment of the Intelligence Branch.

We haue heard the representatives of the BJP and carefully

exammed their submissions and all other aspects of the mo.tter.

The areas proposed to be covered by the Yatra are, because

of publicity and propaganda, gradually turning into communally

sensitive pockets. ln.te/ligence reports indica1e that public

· n is that the religious overtones of the Yatra will be


tumad l,uo oontmunal �indit:ate lhal In Hllfflll c:/iatrlm, �oommunal agenda &W:h as u.. RSS, BoJrontjwould act111e111 join lhe Yarn,. � la g,awmqjor breach of ,_cw and oommunal ,.....,_ durinf, and kiaftcrmarh of th,• Yatra.

Tl1t, large oo,ux,y of the Yatm would c,.,.,,. a dlaodo

situation and grave dlsn1p1w11 of rraffic on arterial roo44 and

hig/1wa11s. l'urthcnnorc, during rhc ,,.,rlod died, tnJJ)or flt1Jflual$ and evenrs are schl:duled, rt:quiring o heouy deployment of IM

resource., oftht'! Government Including Poli« Force.

IVc aro therefore of lhe opinio11 that, for the rt:a:son.s which

/,ave been e/aboralely men1io11ed /iereillabove, ii is no< poss11>lo

la allow 1he Yatra as proposed by the BJP.

Regarding 1he 11wncrous mectutgs proposed by the BJP, as

s1a1ed al>oue, u1 the absenoe of the detai/3 required, " is not

possible to dctenninc which part of the programme is purely

polrt/cal and which ts communal. Pemussion for a pa,ticular

meeting, will be decided solely by the District Authorilics on

case 10 case basis as per the provision of Section 30 of Police

Act, 1861. Therefore, for each meeting proposed, the BJP may

apply afresh before the releva11t Distriel Authorities with all

requisite details.

fsd.J

DG&IG of Police

(sd.J (sd.J

Pr . Secy. Chief Secretary•

Home & Hill Alf airs

The above order \vas the subject matter of

challenge in the writ application, which gives rise to this

appeal in the matter of Bharatiya Janata Party - Vs. The

State of West Bengal & Ors. (In Re: W.P. No. 25614 (W) of

2018).

The above writ application was disposed of by an

order dated December 20, 2018 setting aside the


appearing on behall of the appolhn

opposition in thnt writ application ror tho

disclosing the relevant materials before the Court.

that 36 intelligence rcport:1 were obtained from the

districts, which will be covered by the members or the

respondent no. I during the said Yatra. According to him,

the same were the basis of the decision taken in

compliance of the order passed by the Division Bench in

the earlier appeal. The same was not considered by the

learned Single Judge consequent upon the objection

raised by the learned counsel appearing on behalf of the

respondent no. I on the ground that no copy of the same

had been handed over to them for their consideration

although, the appellants claimed those to be privileged

documents and those intelligence report need not be

served upon the respondent no. l. Sho\ving the aforesaid

36 repons in a sealed cover, it is argued before us that

not even the seal of the cover was opened by the learned

Single Judge.

The next


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Advocate General on the clcciaion orw. Diatrfct .llagi.tnn., A�reponcd in 1981 14 I sec 521 and on the dN-!uSt<ue 0/ Karnataka ... "" Anr. Va. Dr. l'nl••m .8IMd

Thogadui reported in (20041 4 sec 684.

Appearing on beho.lf of the appellanl nos.4 and 5, a

prayer is made by Mr. Abhishek Manu Singhvi, to allow

him to address the Court on the aforesaid appellanls on

the ground that the sheet-anchor of the decision taken

by the St.ate Government in compliance of the order

passed by the Division Bench in the earlier appeal are 36

reports obtained by the police authorities Crom different

districts. According to him, those reports had been

prepared taking into consideration the respective

districts, its villages and the respective police stations

and those were prepared taking into account the ground

reality. Therefore, according to him, the judgment

impugned to this appeal and the findings made therein,

are not based on materials on record.

It is also the submission of Mr. Singhvi that there

\Vas no complete ban on the rally or meetings of the

respondent no. I. Taking into consideration that the said

Yatra will continue for 39 days after starting from three

points of different districts of the State, the same could

not be permitted from the logistical point of view. It is

also submitted by him that the said Yatra will cover,, u


J>rol)08ed R RUll!ber' ofhigli,.ap �of different rcligi' 0WJ commun1t1ea realdt;.

0 unng the movement of the said Yatra,wouJd be held at several points on entering new viii..,.

Wld district. Tilcrcforc, taking into consideration all the

aforesaid realities and areas to be covered by the entire

convoy, dle aforesaid districtwi�e 36 reports were

prepared, which fonncd the basis of the order dated

December 15, 2018.

It is the submission of Mr Singhvi that Article I 9

of the Constitution of India does not stand in the way

,nsofa.r as. imposing reasonable restrictions on the

fundamental rights of the citizens of India were

concerned. Reliance is placed by Mr. Singhvi on the

decision of State of Kamataka & Anr. Vs. Dr. Pravccn

Bhat Thogadta reported in (2004) 4 sec 684 and on

the decision of Mazdoor Kisan Shakti. Sangathan - Vs.

- Union of India reported in 2018 sec Online (SC) 724

in support of his submissions.

Appearing on behaJf of the respondent no. l, it is

submitted by Mr. S.K. Kapur, learned Senior Advocate

that the order impugned to this \vrit application is itself

bad due to the reason that t.he decision has been taken

by the Government of West Bengal, instead of the

committee. According to him, by virtue of the judgment

and order dated December 7, 2018 passed in the matter

nA,-..tiya Janata Party, West Bengal - Vs. The State

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directed three men U1mrnlt1&Govemment Statutory dignitaries to

dictation of the State Government whk:h WU

permiss,ble in the letter and sprit of the aforeeald

judgment and order. It is also submitted by him that

though it is submitted by Mr. Singhvi that there was no . 1 - r th• Government not tocomplete ban, 1t ,vas the po ,cy o �

allow the respondent no. I to raise its voice in the State of

\Vest Bengal.

Relying upon a decision of Hindustan Motors

Limited vs. T.N. Kaul, reported in 1971 CW 181, it is

submitted by Mr. Kapur that supply of a copy of the

documents, which is to be relied upon by the authority to

arrive at a conclusion, is a condition precedent for relying

upon the same before a Court of law.

Reliance 1s also placed b y Mr. Kapur on the

/ decision of S.P. Gupta & Ors. vs. President of India &

Ors. reported in AJR 1982 SC 149.

We have heard the learned Counsel appearing for

the respective parties at length so far as this application

1s concerned and we have given our

consideration to the facts and circumstanoea


It 1s the settled Principlee or lawmust be taken by the authority on tlM! bii/iitareasons. The rea sons may not be reOeeted in detail Inforwarding letter h .

. or t e dcc1s1on which is communlcaU!dto the authorilv but In cour••·, - of judicial review

contempora neous documents may be produced before

the Court which formed the basis of the decision of the

authority. Moreover, in a petition under Article 226 of the

Constitution of India, where a pr11ycr for issuance of a

Writ of certiorari has been made for quashing the

decision dated December I 5, 20 I 8, the appellants were

permitted to produce the relevant records.

It appears from the order impugned to the ,vrit

application, amongst others, that the consideration ,vas

mainly intelligence inputs from the District Magistrates,

Commissioners of Police, Superintendents of Police as

also the assessment of Intelligence Branch. It is also not

in dispute that a comprehensive report from the different

districts \Vere produced before the learned Single Judge.

Admittedly due to the objection raised on behalf of the

respondent No.l, those were not taken into consideration

for arriving at a conclusion.

At this juncture, ,ve may take into consideration

few observations made by the learned Single Judge with

regard to the mode of function of the body of three high

dignitaries of the appellants. According to the learned


the reatrk:don

imposed wh· hIC were neither reasonable, nor baeed onmaterials on record and the respondent No . I had been

mechanically denied permission to organise

yatras/rallies. Thereafter, the leaned Single Judge 1.00k

into consideration a communication dated December 6,

20 l 8 in respect of a single district and dealt with that

communication. On the basis of the aforesaid

observations, amongst others, the learned Single Judge

arrived at a decision that the State proposed to impose

restriction on the exercise of fundamental rights which

was not free from arbitrariness.

The decision of Hindustan Motors Limited (supra)

relates to a right as prescribed in the statute. In view of

the above distinguishable facts and circumstances, the

above decision does not help the respondent No. l in

anyway.

So far as the decision of S.P. Gupta (supra) 1s

concerned, it relates to a settled principle of la\v in the

matter of service jurisprudence. According to our

considered view, iL has no bearing on the issue involved

in this appeal.

After considering the aforesaid aspect of the

we are of the considered view that


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conaiderina the&nd 5 COmmJl8ioneratetMagistrates Com ... : •• ,_ ' ··-·-....nere of Police,

Police as aJ 80 lhe assessment or In

Wh" h ,c were made available before the

Judge, the learned Judge ought not to have arrived at a

conclusion that the appellants had imposed the total

prohibition without any data.

The order of the learned Single Judge was not

based on materials on record or, an other words, me

relevant facts and materials were not taken into

consideration for arriving at the ultimate conclusion.

In view of the above, the order impugned to this

appeal requires consideration de novo tal<1ng into

consideration the aforesaid intelligence inputs.

Since no other point is required to be considered in

this appeal, this appeal is treated as on day's list and lhe

same is taken up for hearing. \Ve have however not gone

into the merits of the case.

In reply to the query of the Court \vhether lhe

respondent No. l was ready to start the yatras/ rallies

from tomorrow, they informed us that the same may be

deferred to enable the appellants to impose further

restriction.


La

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Oftlcel1Cllae ,_,.°""'1ar-.�--. �'ii-llgnatu,.

It is n eceasaiy to P<>int o COns iderati

Ut that the material$ for on before the !cam .

the 36 cd Single Judge U1cluding

afore · &aid lntclligcn�A repo .. Q

District Magistrates,

- • oo received Crom the

Commissioners or Polu:e,Su penntendents of p olice as also the assessment or

Intelligence Branch, should have been taken into

consideration.

Relying on a report from the superintendent of

Police, Birbhum, it is submitted by Mr. Singhvi that upon

consideration o f the above reports and a few others, the

same could be handed over to the respondent No. l,

provided the learned Single Judge found il necessary and

permissible, although Mr. Singhvi claims privilege over

those documents.

The writ application 1s remanded back to the

learned Single Judge for consideration of the limited

questions as to whether there were adequate materials

on record to arrive at the conclusion that it \vas not

possible to allow the yatras/rallies as proposed by the

respondent No.I, with the hope and trust that the writ

application \vill be disposed of expeditiously.

This appeal and the application are disposed of

accordingly.

There will be, however, no order as to costs.


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Urgt'nt Photo11tat certified copy of lhis order, irapplied for, be given to lhe partie� on pnorlty basis.

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t � :-;r: sJi. IA·l., '>hit ½(<V'I, G:u.p A. , •

-/ fDebulsh Kar Gupta, e.J,I

� � L"'f"'-SM•�, .J .

/ (Shamp/ Sukaz, J,I

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