B G DESHMUKH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) IN this writ petition, the petitioners have prayed for issuance of a writ, order or direction directing the two political parties namely Shiv Sena and Bharatiya Janata Party, who have been impleaded as respondent Nos.4 and 5, to pay damages/compensation to the petitioners and other citizens of Mumbai through a "bandh loss compensation fund for having called for and enforced the "bandh/forcible closure of Mumbai city on 30th July 2003 and having thus flagrantly violated their fundamental rights and freedom, commensurate with the loss caused to the city and its residents and citizens by their wrongful, illegal and unconstitutional acts. The petitioners have also prayed for issuance of a writ, order or direction to the State, director General of Police and commissioner of Police " Respondent Nos.1 to 3 to arrest and prosecute those involved in rail and rasta rokos designed to forcibly stop free movement of road traffic and local trains and assaults on busses, trains, private cars of citizens, ad leaders at whose direction and instance such wrongful acts were carried out, and to take steps in future to prevent such wrongful interference with the constitutionally guaranteed fundamental rights of the citizens by ensuring that no political party or group can by force or intimidation stop or interfere with the road and rail traffic of the free movement of the citizens throughout Mumbai.

(2.) ACCORDING to the petitioners the Supreme Court by its judgment delivered in the case of Communist Party of India (M) vs. Bharat Kumar reported in AIR 1998 SC 184, upheld the decision of the Full Bench of Kerala High Court in Bharat Kumar K. Palicha vs. State of Kerala reported in AIR 1997 Kerala 291, that the organizing of a "bandh by a political party or other organizations, which has the effect of closing down all activities in a city or State by the threat of violence or by actual violence directed both against public and private property and against the vast majority who wish to exercise their right to work, trade, travel or study, violates the fundamental rights of the citizens of the city/State which are guaranteed by Articles 19 and 21 of the Constitution of India. Pursuant to these judgments the petitioner Nos.1 to 4 had earlier filed Writ Petition No.2514 of 2000 where they had joined along with respondent Nos.1 to 3 various political parties including respondent Nos.4 and 5, and had sought orders preventing holding of bandhs in general. The Division Bench comprising of the learned the Chief Justice B.P. Singh (as His Lordship then was) and V.K. Tahilramani J. by its judgment dated 4th July 2001 directed the respondents to act in accordance with the judgment and order of the Supreme Court with regard to the action that must be taken by the State Government when call for a "bandh is made and to take necessary action in accordance therewith. The petitioners complain that notwithstanding the judgment of the Supreme Court of India and of this Court, on 29th July 2003 the respondent Nos.4 and 5 called for an organized the "Mumbai bandh on 30th July 2003, stated to be in consequence of the bomb blast at Ghatkopar. The petitioners have alleged that the "Mumbai bandh call given on 29th July 2003 was followed by the leaders of respondent No.4 and 5 issuing statements containing direct threats and also veiled hints that violence would follow if the citizens did not listen to them and support the call for Mumbai bandh. It is further alleged that the activists and members of respondent Nos.4 And 5 with the intent of enforcing the "Mumbai bandh and forcing the closure of activity and movement in the city, carried on rail and rasta rokos at numerous places, prevented the movement of local trains, BEST buses and private vehicles. They also threatened and assaulted those citizens and used violence, who attempted to travel to work and by such threats and use of violence they succeeded in forcibly closing down almost all industrial and commercial and other activities and travel in the city of Mumbai. The petitioners contend that the police force under the control of respondent Nos.1 to 3 also failed to take appropriate and effective steps to stop and disperse such activities. No steps were taken to arrest, detail or prosecute those who were stopping busses, trains and private vehicles and assaulting the private citizens, who had attempted to venture out, notwithstanding the threat and intimidation.

(3.) THE State, in its counter, in addition to denying the allegation of the Police inaction during the "Mumbai bandh, contended that there were some stray incidents of rasta and rail rokos at various places where the movements of busses, local trains and private vehicles were prevented and obstructed but whenever such incidents were noticed and brought to the notice of the Police, necessary action, including arrest of those involved, has been taken. The Police took all efforts to ensure that there is no interference in road and rail traffic and that the vehicles are not disrupted on the date the "bandh was called. It was contended that it is the primary duty as well as concerned of the Police to try and maintain peace and prevent any law and order situation to arise. The entire problem required tactful and mature handling of the situation as well as of the mob psychology, as the primary concern is to keep and maintain peace and to prevent a law and order problem arising or worsening. It was contended that making of arrest of leaders would be to play into the hands of those leaders, resulting in eruption of unnecessary and continued violence and agitation, as has been seen in the past all over Mumbai. It was contended that many people did not come out of the residences, either due to fear or due to support of the "bandh, which was called to protest against the bomb blast. In either case, there is nothing that Police can do and no matter whatever steps the Government and the Police take, the element of fear is inherent in the minds of public and nothing can change that, this is the reason why the establishments were closed and the Police are on no way responsible for the same. It was contended that when directions have already been given in Writ Petition No.2514 of 2000 and the State has followed these direction and taken appropriate steps, there is no reason why any further directions are required to be given in the present case.