IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 13TH AUGUST 2010 / 22ND SRAVANA 1932 RP.No. 670 of 2010(S) --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.19253/2010 Dated 23/06/2010 .................... REVIEW PETITIONER(S): ADDL.RESPONDENT NO.3 & RESPONDENT NO.1 & 2 ---------------------------------------------------------------- 1. THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE EXECUTIVE ENGINEER, PWD ROADSDIVISION, ERNAKULAM, THRIKKAKKARA P.O., KOCHI - 682 030. 3. THE SUPERINTENDENT OF POLICE (RURAL) ALUVA, ERNAKULAM DISTRICT. BY GOVERNMENT PLEADER SRI.V.C.JAMES RESPONDENT(S): PETITIONER IN THE WPC ------------------------------------ 1. KHALID MUNDAPPILLY, MUNDAPPILLY HOUSE, EDAYAPURAM, ALUVA, P.O.ALUVA. ADDL. 2. BAISIL ATTIPETTY @ BASIL, A.G., ATTIPETTY HOUSE, NAYARAMBALAM P.O., ERNAKULAM DISTRICT PIN 682 509 ADDL. 3. DEJO KAPPAN, S/O. K.C. JOSEPH, AGED 52, RESIDING AT TOC-H ROAD, VYTTILA, ERNAKULAM. ADDL. 4. DR. THANKAM JACOB, W/O. K.B. JACOB, AGED 78 YEARS, 16/475, POWER HOUSE ROAD, THOPPUMPADY, COCHIN 5 ADDL. 5. SHERRY J. THOMAS, AGED 33 YEARS, S/O. M.J. THOMAS, ADVOCATE, HIGH COURT OF KERALA, PRESENTLY RESIDING AT MADATHIPARAMBIL, MARADU P.O., ERNAKULAM DIST. ADDL. 6. POONAM RAHIM, SON OF N.E. KUNJU MOHAMED, NEDIYAPARAMBIL HOUSE, POST VIYYUR, THRISSUR 680 010 ADDL. 7. P.J. LUKA @ WILSON, SON OF P.S. JOSEPH, AGED 46, PARAKULAM HOUSE, KARTHIKAPURAM P.O., KANNUR DIST. 2 ADDL. 8. LEELA MENON, D/O. NEELAKANTHAN KARTHA, AGED 78 YEARS, RESIDING AT 11, "KALIKA" CHERUPARAMBATH ROAD, KADAVANTHRA, ERNAKULAM. ADDL. R2 ,R3, & R4 ARE IMPLEADED AS PER ORDER ON IA NOS. 356,, 358 AND 360 OF 2010 DATED 23.7.2010 ADDL. R5 AND R6 ARE IMPLEADED AS PER ORDER ON I.A.NOS. 363 & 370/2010 DATED 26.7.2010 ADDL. R7 AND R8 ARE IMPLEADED AS PER ORDER ON I.A.NOS. 393 & 407/2010 DATED 30.7.2010 R1 BY ADV. SRI.T.R.RAJAN ADDL. R2 BY ADV. SRI.A.G.BASIL (PARTY-IN-PERSON) ADDL. R3 BY ADV. SRI.JOHNSON MANAYANI ADDL. R4 BY ADV. SMT. PINKU H THALIATH ADDL. R5 BY ADVS. M/S. SRI.P.T.DINESH& SRI.C.N.SAMEER ADDL. R6 BY ADV. SRI.KALEESWARAM RAJ ADDL. R7 BY ADV. SRI.GEORGE MECHERIL ADDL. R8 BY ADV. SRI.SIVAN MADATHIL THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 30/07/2010, THE COURT ON 13.8.2010 PASSED THE FOLLOWING: C .N. RAMACHANDRAN NAIR, & P.S. GOPINATHAN, JJ. -------------------------------------------- R P. No. 670 of 2010 in W. P. C. No. 19253 of 2010 -------------------------------------------- Dated this the 13th day of August, 2010 O R D E R Ramachandran Nair, J. This Review Petition is filed by the Chief Secretary to State Government along with the Executive Engineer, PWD and Superintendent of Police, Alwaye, the respondents in the WPC, for reviewing the judgment of this Court rendered in a public interest litigation filed by the first respondent as WPC No. 19253 of 2010. Petitioner in the Public Interest Litigation is a resident in the Aluva Municipality who produced photographs along with the Petition showing the temporary stage constructed and the political meeting being held on the public road blocking the traffic in front of the railway station, the transport bus-stand being located on the other side of the road opposite to the railway station. Petitioner's case was that holding of public meeting in the road in front of the railway station is a regular feature and the same causes traffic block on a regular basis and so RP 670/2010 2 much so prohibitory orders should be issued against PWD and police authorities from granting permission to hold such meetings in front of the railway station. This Court on seeing the photographs, the genuineness of which is not doubted by the review petitioners, found that stage is constructed partially occupying tarred road and the space for audience is only the tarred road. It is seen that large number of people are sitting on chairs arranged in the tarred portion of the road substantially blocking the road and even preventing access of public to the railway station. After hearing petitioner's counsel we felt that public grievance should be redressed, that too urgently. Since photographs produced established blocking of road which is an illegal act, we felt that there can be no objection from State authorities against this Court passing orders to prevent the illegality. We ourselves have noticed political meetings being held in many busy junctions in the Kochi City substantially, if not fully, blocking traffic for long duration. Besides the travelling public and vehicles being held up in the road, even ambulances and vehicles carrying patients, pregnant women, and even accident victims transported for emergency medical aid to hospitals are stranded on the road on account of the traffic block RP 670/2010 3 caused during public meetings held on road and road margins. Invariably roadside meetings are organised by political parties and trade unions and no official, whether police, PWD, revenue or Municipal authority shows the courage to prevent holding of public meetings on road side. Law enforcing agencies invariably turn out to be spectators, if not victims of road blocks by themselves. Considering the urgent need to protect public interest not only to provide free passage to travelling public over the roads, but by taking into account the ground realities about the conditions of the Kerala roads and the need to protect the lives of sick and accident victims being transported to hospitals and since holding of public meeting on road and road margins was found to be illegal, we allowed the Writ Petition prohibiting the State authorities from granting any permission to hold meetings on public roads and road margins. While allowing the Writ Petition, which was filed in public interest, we felt that not only the residents of Aluva but also the people of the State as a whole should get the benefit of our judgment because public meetings are held not only in front of railway station at Aluva but also in every busy junction in every town, and village in the State, blocking the road. RP 670/2010 4 Since it was a public interest litigation, we felt it our duty to extend the benefit of judgment, that is prohibition against holding of public meetings on road and road margins, to the entire State so that the whole people are benefitted. In fact, the Chief Secretary to Government was impleaded only to ensure implementation of the judgment. 2. The judgment which was pronounced on 23.6.2010 was widely published in the media and in fact media reports confirm that judgment is rather implemented for the last over six weeks and several meetings initially arranged on public roadside where even Ministers were to participate were shifted and held in convenient places outside the road. Even though judgment affects mostly political parties and to some extent trade unions who hitherto were occasionally holding meetings on road side, none of the political parties or trade unions has approached this Court with any Petition to review the judgment. Under this circumstance, we have to only infer that judgment finds general acceptance with the leadership of political parties and trade unions because otherwise they could raise their grievance by filing Review Petitions before this Court. However, strangely the State has filed this Review Petition raising mostly technical objections against RP 670/2010 5 the judgment, such as violation of natural justice, granting relief beyond the scope of the Writ Petition, etc. The additional 2nd respondent impleaded in the R.P. referred to Regulation 253 of the State Secretariat Manual under which only Advocate General or the Government Pleaders are entitled to handle writ cases in the High Court. According to him, the State is answerable as to why the Director General of Prosecution is engaged in a Review Petition filed against the judgment in a writ proceeding in violation of the above Regulation. However, we do not think we should consider this issue because we notice that this is only one of the peculiar features in the filing and prosecution of this Petition by the State. 3. Even though judgments rendered under Art. 226 of the Constitution can be reviewed by the High Court by virtue of the powers available under the very same Article, existence of grounds for review of the judgment are always looked into by referring to Section 114 read with Order XLVII, Rule 1 of CPC. It is a settled position that only persons aggrieved by the judgment are permitted to file Review Petition for reviewing the judgment. When we asked a specific question to the Director General of Prosecutions as to whether the RP 670/2010 6 Government of Kerala or it's officers have ever held any meeting in the public road or road margin or whether they propose to hold in future any meeting in public road or road margin to feel aggrieved by the judgment, the answer is in the negative thereby confirming that State has no genuine grievance in the matter. On our question as to whose interest the State is trying to protect by reviewing our judgment, the DGP does not have any definite answer except to say that political parties, cultural and religious organisations are all aggrieved. When we asked the DGP that even after wide publicity and wide debate of the judgment in visual and print media no political party, cultural or religious organisation so far has approached this Court with any review petition stating any grievance for them, he does not have any answer. 4. A similar public interest litigation reached the Supreme Court from Madras, wherein relief sought for was for a prohibition against holding of meeting at K.K. Rod at Villupuram in Tamil Nadu, which was causing inconvenience to the public. Even though public interest litigation was rejected by the Madras High Court, on appeal, the Supreme Court issued orders to the State of Tamil Nadu to show cause RP 670/2010 7 why orders should not be passed not to block any main street or road. Pursuant to this direction issued by the Supreme Court, the matter was referred to Council of Ministers in Tamil Nadu, which accepted the position that permission cannot be granted for holding meeting in the K.K. Road, Villupuram. In fact, based on the decision of Council of Ministers filed before the Supreme Court, the statement filed was recorded and the Supreme Court dropped the proposal to issue prohibitory orders against State authorities from granting permission to hold meeting, erect stage, etc. blocking the road vide judgment reported in K.K. ROAD MERCHANTS E.A.R.W.A.,TN V. DISTRICT COLLECTOR, T.N.,(2004) 13 SCC 61. Considering the importance of the matter, we asked the DGP whether the matter was referred to Council of Ministers, and whether review is filed based on their decision. However, there was no no such decision by Council of Ministers and the file produced before us shows that the issue is handled in a routine manner wherein the Law Department has given advice about the grounds that could be raised for filing a Review Petition, because according to them there was violation of natural justice and that blanket prohibition cannot be issued by the High Court RP 670/2010 8 extending the relief prayed for in the Writ Petition to the whole of the State. 5. Even though one of the grounds urged on behalf of the State is that order is unenforceable inasmuch as if the order is enforced there is likelihood of law and order problem, the Director General of Police or the Superintendent of Police, the latter being one of the review petitioners, has not come forward with any practical difficulty in implementing the direction contained in the judgment. We have already noticed above that the judgment is followed and even implemented in the State by the police for the last one and a half months and Director General of Police has not come forward with any difficulty in implementing the judgment. When there is general acceptance of the judgment by the people, and when the Government does not have any grievance against the judgment, we do not know what prompted the Govt. to file this Review Petition. In this context, it would not be out of place to mention about the contempt case pending in this Court against an Ex-MLA of the political party which is leading the coalition Government. One of the additional respondents impleaded representing a non-Governmental organisation has, along RP 670/2010 9 with his counter affidavit dated 26.7.2010, produced Annexure A1 newspaper cutting which led to the contempt proceedings against the said ex-MLA. What is stated in Annexure A1 series is that ex-MLA allegedly held a meeting on the road side in violation of the judgment, and incited the public to disobey the judgment and he described the judges who wrote the judgment as "fools". Probably the Government is dragged to the Court with the Review Petition to promote and protect the vested interest of some people. 6. In the normal course, we would have dismissed the Review Petition for the sole reason that review petitioner has no grievance. However, since WPC was disposed of without granting the time requested for by the Government Pleader for the review petitioners to file their objections, we feel Review Petition needs to be decided on merits, i.e., after hearing the objections of the State. Advocate Sri. T. R. Rajan appearing for the first respondent brought to the notice of this Court provisions of various statutes pertaining to construction and maintenance of public roads and contended that the assumption of this Court while issuing the judgment that it is illegal to hold meetings on public roads or road margins is correct and there is no provision in law RP 670/2010 10 authorising holding of meeting on public road or road margin blocking the road, partially or fully. The publicity that the judgment got in the media attracted a lot of parties to this Court and several persons got impleaded in the Review Petition as additional respondents to support the judgment. The addl. respondents impleaded through I.A.Nos. 356, 358,360,363 of 2010 supported the judgment. The additional second respondent impleaded through I.A. No. 356 of 2010 is Sri. Basil Attipetty, an advocate of this Court. Arguing for himself, he referred specifically to the conditions of Vypeen area where only one narrow road passes through in the coastal area in the south-north direction always busy with heavy traffic and according to him the judgment is a great relief to the people of the area. He vehemently opposed the Review Petition and prayed for dismissal of the same with costs. Addl. third respondent impleaded through I.A. No. 358 of 2010 is Sri. Dejo Kappam, the Managing Trustee of Centre for Consumer Education, Pala, for whom Sri. Johnson Manayani appeared and supported the judgment. Addl. 4th respondent impleaded through I.A.No. 360 of 2010 is Dr. Thankam Jacob, who is stated to be a committed social worker and a councilor, for whom advocate Sri. RP 670/2010 11 Pinku H Thaliath appeared. She also supported the judgment. Addl. 5th respondent impleaded through I.A.No. 363 of 2010 is Sri. Sherry J Thomas, who is a practicing lawyer in this Court, for whom advocate Sri. Dinesh P.T., appeared and argued in support of the judgment. Petitioner in I.A. No. 393 of 2010, who is impleaded as additional 7th respondent, not only supported the judgment but wanted this Court to extend the benefit of the judgment to the National Highways passing through Kerala. Advocate Sri. George Mecheril appeared and argued the matter. Addl. 8th respondent impleaded through I.A. No. 407 of 2010, is Leela Menon, a social worker and a journalist by profession for whom Advocate Sri. Sivan Madathil argued the matter supporting the judgment and contended that judgment is of great relief to the public. However, we have not excluded Highways from the scope of directions contained in the judgment and so much so we do not think any separate orders are required in this matter. However, counsel appearing for the addl. 6th respondent impleaded in I.A.No. 370 of 2010 contended that judgment requires atleast partial modification in review proceedings. We do not think respondent impleaded in the RP filed by the State should be permitted to challenge the judgment. RP 670/2010 12 Whoever wanted to challenge the judgment filed Review Petition. So much so, we do not propose to go into the contents of the contention raised by the petitioner in I.A.No. 370 of 2010. 7. The main contention raised by the Director General of Prosecution in support of the Review Petition is that the judgment was rendered in violation of natural justice inasmuch as review petitioners were not heard. Even though WPC was disposed of without waiting for Government Pleader to get instruction from the review petitioners, it is pertinent to note that even now the instruction received by the review petitioners from the Sub Inspector of Police, Aluva Police Station, on the date on which the judgment was pronounced is not produced by the DGP appearing for the State. However, counsel appearing for the first respondent under the Right to Information Act obtained a copy of the instruction furnished by the Sub Inspector of Police for presentation before this Court, which is as follows: Meetings organized by various political parties and others by making temporary stages in front of Railway Station (Railway Square Aluva) usually creating traffic obstructions. The Asst. Executive Engineer, PWD Roads Division, Aluva is the authority to give sanction for making the stage at Railway Square. Sometimes, while making stages for spublic meeting RP 670/2010 13 some parties closed the way to Railway Station also. It causes obstruction to Railway passengers and others. The meeting at the railway square causes long time traffic bloks. Police have to get much more time to remove the traffic blocks. Therefore sanction for making stages and public meetings at Railway Square, Aluva is not desirable. The Police Officer, who has first hand information about meetings and the traffic blocks taking place in the road in front of the Railway Station has stated that it is undesirable to grant permission to hold meetings because such meetings cause long time traffic block and even entry to the Railway Station is blocked and according to him police take long time to clear traffic blocks. We are of the view that if review petitioners were heard, and they honestly produced the instruction received from the police officer, our conclusion in the judgment would not have been different, but would have been supported by materials furnished by the Sub Inspector of Police also. In other words, the instruction from the Sub Inspector of Police which is not produced by the DGP even at this stage, goes against the case of the review petitioners for reviewing the judgment. 8. In any case we proceed to consider the objections raised by the DGP serially, first one being violation of natural justice. "No one RP 670/2010 14 should be condemned unheard", is the essence of principle of natural justice which is alleged to have been violated in this case. When mentioned to the DGP that we have not passed any orders against the State, and all what the Chief Secretary and Government officials are required to do was to prevent an illegality, that is holding of meetings on public road and road margins, the contention of the DGP is that State is bound to protect the fundamental rights of the people particularly political parties, religious and cultural organisations which are stated to be holding meetings on public roads and road margins. Processions may be taken out through road by religious and cultural organisations during festival season. However, they do not hold any meeting on public road. Therefore really the grievance against the judgment is only for the political parties and trade unions and we have no hesitation to hold that Government is trying to protect the interest of political parties and trade unions who do not directly want to approach this Court with any Petition. The court certainly will not be justified in denying natural justice, by assuming that the granting of opportunity will not serve any useful purpose. 9. In this regard counsel for the petitioner, Director General of RP 670/2010 15 Prosecution as well as counsel appearing in the connected R.Ps. referred to judgment of the Supreme Court in VOLGA TELLIS AND OTHERS V. DELHI MUNICIPAL CORPORATION (AIR 1986 SC 180) and contended that even if no purpose will be served by giving notice to the opposite side, the same will not be ground for denying natural justice. However, in this case the denial of natural justice did not lead to any adverse orders against the State. Further what was directed was prevention of holding of meeting on public roads and road margins which was considered to be illegal by this Court. We gave a detailed hearing to the DGP to substantiate that our assumption of holding of meetings on public road and road margins as illegal which is the fundamental basis on which judgment was rendered is incorrect. The Director General of Prosecution by referring to Article 19(1)(a) and (b) contended that the right to hold meetings on public road and road margins emanate from the constitutional right of freedom of speech and expression and to assemble peacefully without arms. Counsel for the first respondent and counsel appearing for the additional respondents vehemently opposed this by stating that the fundamental rights under Article 19(1) are subject to reasonable RP 670/2010 16 restriction provided by law made by the State through any legislation under Article 19(2) of the Constitution. A very important argument raised by the counsel for the respondent is that the fundamental rights of the political parties and the trade unions to assemble and hold meeting on road or road margin should be synchronised with the fundamental right guaranteed to citizens under Article 19(1)(d) to move throughout the territory of India which can be through vehicular traffic through the Highways in the State. Even though several decisions are cited by both sides, we do not think we should refer to all such decisions. However, it is worthwhile to refer to atleast some of the decisions. 10. The Honourable Supreme Court in the case of MUNICIPAL BOARD, MANGALORE V. MAHADEOJI MAHARAJ, (AIR 1965 SC 1147) held that the side lines of Highways are ordinarily included in the road for the maintenance of proper road. The court held that even the structure constructed on road side for installation of statue of Mahatma Gandhi is impermissible. In the decision in RAILWAY BOARD VS. NIRANJAN SINGH (AIR 1969 SC 966), the Supreme Court held that "there is no fundamental right for anyone to hold RP 670/2010 17 meetings in Government premises. The fact that those who work in a public office can go there does not confer on them a right of holding a meeting at that office even if it be the most convenient place to do so. The fact that citizens of a country have a freedom of speech, freedom to assemble peacefully and freedom to form associations or unions does not mean that they can exercise those freedoms in whatever place they please. The exercise of those freedoms will come to an end as soon as the right of someone else intervenes". The Honourable Supreme Court in VOLGA TELLIS & OTHERS VS. DELHI MUNICIPAL CORPORATION (AIR 1986 SC 180) held that "foot paths or pavements are public properties which are intended to serve the convenience of general public. They are not laid for private use and indeed their use for a private purpose frustrates the very object for which they are carved out from portions of public streets". In the decision in HIMAT LAL SHA VS. POLICE COMMISSIONER, AHMEDABAD (AIR 1973 SC 87) also the Supreme Court held that the right to assemble under Article 19(1)(b) does not mean that the right can be exercised at any and every place. The question, therefore, to be considered is whether the roads constructed with margins is for RP 670/2010 18 the public to hold meetings thereon. 11. The Director General of Prosecution does not deny the fact that the roads are not designed leaving any space for holding public meetings. On the other hand, roads are