IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 11.02.2010 Coram: The Honourable Mr.H.L.GOKHALE, CHIEF JUSTICE and The Honourable Mr.Justice K.K.SASIDHARAN Writ Petition No.1012 of 2010 and M.P.Nos.1 of 2010 T.Amirthalingam, S/o Thangavel, D.No.134, Old Pattinam (P.O) Viruthachalam Taluk, Cuddalore District – 606 001. … Petitioner vs. 1. The State, Rep. by its Secretary, Department of Home, Secretariat, Fort.St.George, Chennai – 600 009. 2. The District Collector, Cuddalore District, Cuddalore. 3. The Superintendent of Police, Cuddalore District, Cuddalore. 4. The Revenue Divisional Officer, Viruthachalam, Cuddalore, Cuddalore District. 5. The Tahsildar, Viruthachalam, Cuddalore District. 6. Mr.Thirumal, Inspector of Police, Mangalampettai, Viruthachalam, Cuddalore District. https://hcservices.ecourts.gov.in/hcservices/ 7. C.Dharmalingam, President, Old Pattinam Panchayat, Virudhachalam Taluk, Cuddalore District. 8. Mrs.M.Renu, Ward Member, Old Pattinam Panchayat, Virudhachalam Taluk, Cuddalore District. 9. Mr. Ashokan, Village Administrative Officer, Old Pattinam Panchayat, Virudhachalam Taluk, Cuddalore District. 10. Mr.Rajasekaran, Deputy Superintendent of Police, Virudhachalam, 11. Mr.Abdul Hech, Old Pattinam Panchayat, Virudhachalam Taluk, Cuddalore District (R-11 impleaded as per order dt.28.1.10 passed by Hon’ble CJ & KKSJ in W.P.No.1012/10) 12. A.J.Mohamed Sirajudheen, S/o Abdul Jaleel, No.35, Muslim Street, Pazhaya Pattinam, Virudhachalam Taluk, Cuddalore District. (R-12 impleaded as per order dt.8.2.2010 passed Hon’ble CJ & KKSJ in M.P.No.3/10) … Respondents PRAYER: Petition filed under Article 226 of the Constitution of India praying for the issue of a Writ of Mandamus directing the respondents to re-install the statue of Dr.Ambedkar at the earlier place i.e., in front of Village Library Hall, located at Old Pattinam Village, Virudhachalam Taluk, Cuddalore District. (prayer amended as per order dt.25.01.2010 passed by Hon’ble CJ & KKSJ in M.P.No.2/2010 in W.P.No.1012/10) For Petitioner ::: Mr.S.Purushothoman for Mr.R.Thirumoorthy https://hcservices.ecourts.gov.in/hcservices/ For Respondents 1 to 5, 6, 9 & 10 ::: Mr.P.S.Raman, Advocate General Assisted by Mr.J.Raja Kalifulla, Govt. Pleader For Respondents 7 & 11 ::: Mr.Sirajuddin for M/s.Siraj & Siraj For Respondent 8 ::: Mr.Udayabanu For Respondent 12 ::: Mr.C.Raghunatha Reddy Advocate Commissioners::: Mr.V.P.Sengothuvel Mr.S.Kasi Kumar ::: Mr.V.Vijayan, Registrar (Management), High Court, Madras Member of the Committee O R D E R THE HON'BLE THE CHIEF JUSTICE The present petition is about an unfortunate development in a village in Cuddalore District of State of Tamil Nadu, which we hope should be an eye-opener, and which should not be permitted to occur any where in future. 2. The issue involved in the petition revolves about an unceremonious shifting of the statue of Dr.B.R.Ambedkar, the Founding Father of the Indian Constitution, from the place where it was initially located in that village and the efforts made by the petitioner to bring it back to its original location. 3. The petitioner is a resident of a village by name Pazhaya (Old) Pattinam in Virudhachalam Taluk of Cuddalore District. This village consists of about 700 families out of which nearly half belong to the dalit community. A statue of Dr.B.R.Ambedkar was decided to be erected in this village in front of the Village Panchayat Library by the village panchayat. It is the case of the petitioner that a resolution to that effect was also passed on 15th August, 2008 in the Special Gram Sabha Meeting. A photo copy of the resolution signed by the President of the Village Panchayat Thiru.C.Dharmalingam is annexed at page – 1 of the typed set of papers filed in support of the petition. It is not in dispute that the statue was so erected in the village, though according to the https://hcservices.ecourts.gov.in/hcservices/ petitioner it was erected sometime in August/September, 2008, whereas according to the Tahsildar it was erected in the 1st week of October, 2008. 4 (i). It appears that a section of the villagers, at the instance of the 11th respondent, who happens to belong to a minority religious community, (and who was earlier defeated in the election to the post of President of the Panchayat) started a campaign to shift the statue and to re-locate it on the banks of a village pond near the dalit settlement. The petitioner and the villagers felt very much disturbed by this campaign. When they made enquiries with the fourth and the fifth respondents i.e., the Revenue Divisional Officer and the Tahsildar, they were replied that any opposition to such proposal will result in police custody. This led to the petitioner making a representation to the second respondent/District Collector on 11th January, 2010 that the statue be retained where it is presently situated and should not be shifted due to objection by a few Islamic families. A copy of the representation signed by 114 persons and the acknowledgement issued by the office of the Collector are produced in the typed set of papers. . 4(ii). The petitioner feared that any such action will disturb the communal harmony in that village, and therefore filed the present petition on 19th January, 2010 praying initially that the respondents to the petition be restrained from removing the statue of Dr.Ambedkar and from relocating the same on the banks of the village pond. The petition, as was filed originally, had the following respondents:- (i) The State of Tamil Nadu through Home Secretary, (ii) The District Collector, Cuddalore, (iii)The Superintendent of Police, Cuddalore, (iv) Revenue Divisional Officer, Virudhachalam (v) The Tahsildar, Virudhachalam, and (vi) The Inspector of Police, Virudhachalam The above referred to statements are on the basis of the averments made in paragraphs 5 & 6 of the petitioner’s affidavit filed in support of the petition. The petitioner has produced the photographs showing the statue of Dr.Ambedkar situated near the Village Library Hall, some policemen guarding the same and another photograph showing large number of villagers gathered near the statue. 5. The petition was mentioned before this Court in the forenoon session of 19th January, 2010 for an urgent order in the afternoon. However, with a view to enable the learned Government Pleader to take instructions, it was directed to be notified for admission on 20th January, 2010. 6(i). Mr.G.Purushothoman, learned counsel appeared for the petitioner on 20th January, 2010, and pointed out that there is a fear https://hcservices.ecourts.gov.in/hcservices/ of communal disturbance taking place in the village on account of statue being shifted. He also pointed out that a peace committee meeting, which was convened, had also failed. Learned Government Pleader stated, on instructions, that in the peace committee meeting, it was agreed to re-locate the statue at another place, but some persons had changed their mind. This statement was disputed by the learned counsel for the petitioner. He drew our attention to the statement made in the affidavit in support of the petition that the peace committee meeting had ended in failure. In this scenario, we directed that the petition be listed on 8th February, 2010, and asked the learned Government Pleader to file the affidavit of the Tahsildar. 6(ii) Learned Government Pleader stated at the time of the above hearing on 20th January, 2010 that nothing will happen to the statue, however, he was not ready to make any commitment, and therefore, this Court passed an order on Miscellaneous Petition No.1 of 2010 taken out in this writ petition in the morning of 20th January, 2010 that until further orders, there will be an interim injunction restraining the respondents from removing the statue of Dr.Ambedkar, which has been erected in the village. A further direction was also issued to see to it that no damage is caused to the statue in any manner whatsoever and also to ensure that peace, as well as law and order is maintained in the said village. 7(i). It so happened that Mr.Purushothoman, learned counsel, appeared before this Court once again on 21st January, 2010 and mentioned that in spite of this order passed by the Court in the presence of the Government Pleader, the statue was forcibly shifted in the late evening of 21st January, 2010. This was too shocking to say the least, and hence, we directed the Registry to place the matter before us on 22nd January, 2010. Next day Mr.Purushothoman, filed an affidavit of the petitioner affirmed on 21.01.2010 wherein he stated that the petitioner had orally conveyed the order passed by this Court at about 11.30 a.m. to the fourth and fifth respondents in person, yet on the same day late in the night at about 10.45 p.m. a huge contingent of 200 policemen were deployed around the settlement of dalits. The Deputy Superintendent of Police Thiru.Rajasekaran and the fifth and the sixth respondents were present and inspite of the opposition by the villagers and informing the officers about the passing of the interim order, they proceeded to remove the statue from the place where it was originally situated. Respondents 5 & 6 and Mr.Rajasekaran insisted on tendering of a copy of the court order, which the petitioner could not, since the same was not available with him. The affidavit filed by the petitioner states that the petitioner’s counsel also contacted the third respondent over phone, but that was without any effect. 7(ii). The Earth Mover JCP was brought over there and the statue was removed forcibly from where it was originally installed and https://hcservices.ecourts.gov.in/hcservices/ shifted to the dailt settlement area. Paragraph-7 of the affidavit states that the Deputy Superintendent of Police and the sixth respondent directed the policemen to break the pedestal of the statue and to install the statue at the new place. In the affidavit, it is also stated that the statue was shifted to a place where a pond was situated earlier, and the pond was filled up and the statue was erected over there. Inasmuch as the averments were made against the President of the Panchayat, the President of the Panchayat, the concerned member of the panchayat from that particular ward, the Village Administrative Officer, the Deputy Superintendent of Police were directed to be joined as respondents 7 to 10 and notices were directed to be served on them. The matter was thereafter directed to be listed on 25th January, 2010 after completion of service. 8. on 25th January, 2010, Mr.Purushothoman, learned counsel, moved an amendment petition being M.P.No.2 of 2010 namely, that the respondents be directed to reinstall the statue at the earlier place i.e., in front of the Village Library. The affidavit in support of this amendment petition stated that the statue was removed late in the night of 20th January, 2010, whereas the learned Government Pleader stated that it was shifted in the afternoon and a copy of the order was not received by the authorities concerned. The fact, however, remains that it had been removed after passing of the injunction order, which was passed in the presence of the learned Government Pleader who had stated on instructions that nothing will happen to the statue but had declined to make any commitment. In those circumstances, the petition praying for amendment was allowed. 9. Mr.Udaya Bhanu, learned counsel appeared on 25th January, 2010 for the eighth respondent i.e., a ward member of Old Pattinam Panchayat, and he supported the contentions of the petitioner. He submitted that inspite of vehement opposition by the villagers; the statue had been shifted late in the night. The petitioner filed affidavits of 247 villagers supporting the statement of the petitioner. He has also filed a large number of photographs showing the villagers objecting the removal of the statue, JCP machine being brought to the village and a large number of policemen standing at the place where the statue was re-located. Learned Government Pleader filed counter affidavits on behalf of respondents 5, 6, 9 & 10 explaining their position. Learned Government Pleader also filed a typed set of documents placing on record the various minutes of the Grama Sabha Meetings and other documents, and Minutes Books, about which we will refer to a little later. We recorded all these developments in our order dated 25.01.2010 and asked the Government Pleader to take instructions from the 1st respondent – Home Secretary. 10(i). In view of the nature of the controversy, we were of the view that it will be advisable that a Committee be appointed to visit the concerned village and to make a report to this Court with respect to the various locations in the village, particularly, the place https://hcservices.ecourts.gov.in/hcservices/ where the statue of Dr.Ambedkar was situated earlier, the place where it was shifted subsequently, the office of the Village Administrative Officer or the Library or other conspicuous structures like Temple, Mosque, etc., the houses situated near the earlier place as well as the new place and some particulars of the persons occupying those houses. Hence, by an order dated 28.01.2010 we requested the two learned counsel namely, Mr.V.P.Sengottuvel and Mr.S.Kasikumar to assist the Court and they also readily agreed. Mr.V.Vijayan, Registrar (Management) of this Court was also made a member of the Committee. They were requested to visit the village and make a report. The Revenue Inspector and the Head Surveyor of the Village and a Senior Police Officer, other than respondents 6 and 10, were asked to remain present along with advocate on record of the petitioner to point out the various locations in the village. The Committee was also given liberty to call for all the relevant information and make a report along with a sketch giving the locations of all these places. They were also given liberty to take the photographs of various locations and submit a report. 10(ii). Mr.Sirajudeen, learned counsel, appeared for the President of the Panchayat i.e., the seventh respondent. He pointed out that there is a reference to one Mr.Abdul Hech, who is stated to have represented that the statue be removed and re-located. This was stated in paragraph-4 of the affidavit filed in support of the petition. In that view of the matter, Mr.Abdul Hech was directed to be added as the eleventh respondent. 11. Pursuant to the order passed on 28th January, 2010, the members of the Committee immediately visited the village on 30th January, 2010 and submitted a report before this Court on 1st February, 2010, which material we took on record. Mr.Sirajudeen, learned counsel appearing for the eleventh respondent, sought time to talk to the surpanch of the village, as well as the eleventh respondent whom he was representing, who is incidentally a muthuvalli of the mosque situated in the village, and through whom he wanted to talk to the members of his community. Learned Advocate General also appeared on 1st February 2010 with the learned Government Pleader. Learned Advocate General stated that this unfortunate incident should not have taken place and that the Government will honour the order of injunction passed by this Court and an appropriate affidavit will be filed on behalf of the Government on the next hearing date. We recorded that all of them were trying to explore the possibility of a way out of the present situation. Accordingly, we adjourned the matter to 8th February, 2010 as requested by the learned Advocate General and also by Mr.Sirajudeen. 12(i). On 8th February, 2010, when the matter came up, an affidavit was filed on behalf of the State by Smt.Malathi, Secretary to Government, Home Department. In paragraph-2 of the affidavit, affirmed on 6th February, 2010, she particularly made two statements. https://hcservices.ecourts.gov.in/hcservices/ (a) Firstly, that the removal of the statue of Dr.Ambedkar from the pre-existing location on 20th January, 2010, inspite of the order passed by this Court was an unfortunate development and she regrets for the same. (b) The other one is that the State will ensure that the statue will be re-located and appropriate action will be taken against any official, found to have flouted the orders of the Court in this regard. The said paragraph reads as follows: - “2. I respectfully submit that the removal of the statue of Dr.B.R.Ambedkar from the pre-existing location on 20th January, 2010 despite the orders of this Hon’ble Court granted earlier in the day was unfortunate. I deeply regret for the same. There appears to have been some lack of communication between the various authorities which has resulted in this. I respectfully submit that without going into the merits of the controversy, the State would immediately ensure and re-locate the statue at its pre- existing location. The District Collector, would undertake an enquiry into the circumstances under which the removal took place despite the orders of this Hon’ble Court and take action against any official found to have erred in this regard.” 12(ii) The Home Secretary has further stated in the affidavit that it is the policy of the Government that the statue of the National Leaders and public personalities whether in the field of politics or otherwise cannot and should not be erected in any public place without the prior permission of the Government. She referred to the guidelines already existing in this behalf in G.O.Ms.No.221 dated 20th November, 1998. In paragraph-4 of the affidavit she has stated that the parties concerned should approach the District Collector for permission of placing the statue in the earlier location and the authorities would consider the same and thereafter the Government would pass suitable orders. In paragraph – 5 the Home Secretary prayed that this Court may pass suitable orders in the present petition so that similar instances of installing statues of public figures without the permission of the State Government do not take place, and the submissions made in her affidavit be recorded. 13. In view of the fact that the Home Secretary herself has stated in paragraph-2 that the statue would be re-located, we asked the learned Advocate General as to what was sought to be conveyed by paragraph-4 wherein an application was sought to be made. This is because once the statue is re-located, it would not be proper that for any reason that it would be shifted from that place once again. Learned Advocate General very fairly stated that this was to see to it that necessary procedures are complied with. He assured that the Government and the Collector will act in accordance with the final orders of this Court. We have noted the submission of the learned Advocate General. The learned Advocate General also submitted that it https://hcservices.ecourts.gov.in/hcservices/ will be desirable that appropriate guidelines concerning such issues be passed. 14. We may also note that on 8th February, 2010 one more impleading petition being M.P.No.3 of 2010 was filed by one A.J.Mohamed Sirajudheen, and accepted the same by the order passed on the same day. The submissions in support of this impleading petition were the same as in the affidavit of the President of the Village Panchayat and the Government Officers. His anxiety has been that if some damage is caused to the statue by any one, as it happened earlier, there will be breach of peace and that should not happen. He pointed out that the shifting of the statue was supported by the leader of a political party, who happens to be the Member of Parliament from that very District. 15. Before we deal with the materials on record, and pass final orders, it becomes necessary to refer to G.O.Ms.No.221 dated 20th November, 1998, which (when translated from original Tamil) reads as follows: - “Government of Tamil Nadu Abstract Urban Local Bodies – regarding the erection of statue, memorial pillars, memorial, memorial arch – some orders issued. Municipal Administration and Water Supply (M.A.S) Department G.O.(Rt) No.221 Date:20.11.98 Read with 1. G.O.(Rt) No.1711, Rural Development and Panchayat Raj Department dated 26.10.79. 2. G.O.(Rt) No.193, Municipal Admn. and Water Supply Department dated 23.8.90. 3. G.O.(Rt) No.188, Municipal Admn. and Water Supply Department, dated 21.9.98. O R D E R In the Government Order read first above, instructions had been issued to the local bodies regarding the payment of the amount required for the maintenance of the statue while erecting statues within the limits of the Urban Local Areas. In the order read secondly, orders had been issued regarding the necessity to make the statue with bronze. In the order read thirdly, an order had been issued restraining absolutely the erection of statue. https://hcservices.ecourts.gov.in/hcservices/ 2. In the all Party Meeting that took place on 22.10.98 and 28.10.98 the following decisions were taken regarding the erection of a statue. 1. In future, if any statue to be erected, it should be done only with the prior permission of the Government. 2. The persons who erect the statue have to take charge of its protection and maintenance. 3. The responsibility to maintain the statues already erected and its security lies on the Sangam or Division/Section or the private person who install such statues. 3. On the basis of the decisions taken in the All Party Meeting, it was examined regarding this fact. As a result, the Government alters all the orders issued till now, regarding the erection of statues and issues the following order in respect of the procedures to be followed: 1. The Government sanction should be obtained for the installation of statue, memorial, memorial arch and memorial pillar. 2. The statues, memorial pillar, memorial and memorial arch that had already been erected should be protected The persons who erected that (Sangam, Division/Section or private party) should take up the responsibility of its security and maintenance. 3. If it requires to shift the statues already erected to protective places to prevent from ruining and then return and erect them in the same place, regarding this issue, an order shall be obtained from the Government, and then, the concerned private party or section shall shift the same. 4. The Municipal Commissioner and Director of Town Panchayat are requested to intimate the aforesaid Government order to all local administrations. / By Order of the Governor / S.Malathi Secretary to Government To Secretaries of all Department, Chief Secretariat, Secretar/iat, Chennai.” 16. We have perused the writ petition, the supporting affidavits as well as the affidavits filed by the respondents and by the intervener. We have also gone through the report along with the https://hcservices.ecourts.gov.in/hcservices/ annexures submitted by the Committee and the various typed set of papers and photographs submitted on behalf of the petitioner, government and other parties. We have heard the learned counsel appearing for them at length. 17. Having heard all of them at length, it is seen that according to the petitioner the statue of Dr.B.R.Ambedkar was erected sometime in August/September, 2008 which was so done after a resolution of the Village Panchayat passed on 15th August, 2008. A copy of the resolution signed by the President of the Village Panchayat has been produced along with the petition. Although it is sought to be submitted by the subordinate officers of the government that there was no such resolution, it is not possible to accept such a plea when the statue was located in front of the village library and behind the office of the Village Administrative Officer. It is erected on a 5ft pedestal and the statue was of the height of 7 ft. Surely, it could not have been erected without there being an overwhelming support in the village. 18. The objection from the Revenue Divisional Officer appears to be that it was erected without the permission, meaning thereby perhaps that of the District Collector. He has, therefore, issued a memo on 31st October, 2008 to the Tahsildar of Virudachalam, which records that he had instructed the Tahsildar to see to it that those who erected the statue shift it on their own before 29.10.2008, and since they had not so done, the Tahsildar should re-locate it with the co-operation of the police department to a safer place immediately to maintain law and order. The only document prior to this memo of the Revenue Divisional Officer dated 31.10.2008 is the minute of a Peace Committee meeting conducted on 17.10.2008. In that minute it was recorded that the Peace Committee meeting was held on 17.10.2008, which was presided over by the Tahsildar and participated by the Deputy Superintendent of Police, Virudhachalam, Inspector of Police of that area, Zonal Deputy Tahsildar, and State Deputy Secretary of DPI, a political party. The minute further records that the representatives of DPI expressed their objection to remove the statue and boycotted the