D ANANTHA PRABHU Vs. DISTRICT COLLECTOR
HIGH COURT OF KERALA
D. ANANTHA PRABHU
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(1.) The petitioner, who is the Secretary of the Cochin Branch of the Rashtreeya Sevak Sangh (for short, Sevak Sangh) moves for a mandamus to direct respondents Nos. 1 and 2, the District Collector, Ernakulam, and the City Commissioner of Police, Ernakulam, respectively, to sanction the use of Mike Loud Speakers or such other Amplifier appliances by the petitioner and the organisation be represents. He also prays for a certiorari quashing Ext P2 proceedings of the 1st respondent. By Ext. P2 proceedings dated 15-2-1974 the Ist respondent accorded sanction to use the Durbar Hall Ground in this city for conducting the annual day celebrations of the Sevak Sangh subject to three conditions, the first of which is that "mike, loud speaker etc. should not be used at any time". The petitioner's complaint is against the imposition of this condition, and he seeks the aid of this Court to use mike, loud speakers etc. at the annual day celebrations of the Sevak Sangh to beheld on 10-3- 1974 (it is averred in the petition and submitted at the bar, that the celebrations are decided to be conducted between 5 p. m. and 8.30 p. m. on that day) at the Durbar Hall Ground. Mr. Ramakumar, the learned counsel for the petitioner relies on Art.19(1)(a) and (b) of the Constitution and submits that the fundamental rights guaranteed to citizens by these clauses could be curtailed only in the manner provided for by clauses (2) and (3) of that article. The learned counsel also questions the jurisdiction of the Ist respondent to impose such a condition, and further attacks jurisdiction if any, on the ground that there are no standards or lines to guide and regulate the exercise of jurisdiction. According to the learned Senior Government Counsel who appears on behalf of the respondents, the petitioner has no fundamental right to use mike and loud speakers in the Durbar Hall Ground which is Government property. He submits that administratively the power to regulate the user of the ground is .vested in the Ist respondent, that he can impose any condition in exercise of his power to regulate the user, and can even refuse sanction to hold the celebrations without assigning any reason.
(2.) The primary question that arises for consideration is whether members of the general public have a right to assemble peaceably and without arms (as envisaged in Art.19(1)(b)) in the Durbar Hall Ground. If the answer to the above question is in the affirmative a further question arises regarding the scope of Art.19(1)(a) which guarantees freedom of speech and expression; whether that freedom extends to use of mechanical or other contrivances to amplify sound and how far the State or its officers can regulate or restrict such user. Thirdly, this case raises the question whether in the absence of any guidelines (admittedly there are no rules or regulations or executive orders) the power, If any of the Ist respondent to sanction or not to sanction public assembly and / or the use of mike, loud speakers etc. on Darbar Hall Ground is arbitrary as enabling him to discriminate between persons, without just classification.
(3.) Petitioner in Para.3 of his petition states as follows:-
"The said around had been used on permission by the Sangh itself on many prior occasions in 1958, 1960, 1962 and 1971. The said ground is used not only by religious/ cultural organisations, but also by political parties for holding public meetings. On such occasions Microphone and Loud Speakers are freely used even till mid night. On occasions like the festival in the adjoining Siva temple. Amplifiers are used round the clock for about 7 days. Organisations such as the Chinmaya Mission and the Panthicost Sabha use the ground for religious discourses for continuous days using Loud Speakers usually between 5 and 8 P.M. About 15 days back the Panthicost was conducting one such function continuously for about 20 days".
These averments are substantially admitted in Para.2 and 9 of the counter affidavit of the Ist respondent. In the reply affidavit, In Para.3. the petitioner further states that "the ground has been from time Immemorial used as a public resort". The petitioner filed C.M.P. No. 3355 of 1974 seeking permission to amend the original petition by adding an additional ground B (b) That petition was not opposed and was allowed by me. In Ground B (b) the petitioner states:
"The Durbar Hall ground, Cochin has been from time immemorial used by the Public as matter of right for conducting, festivals, public meetings. Even during the time of the Maharajas the ground was being used as of right by the public for the above mentioned purposes." .
The additional counter affidavit filed by the 1st respondent does not controvert the statement regarding the immemorial user by the public, though if is denied that such user was as of right. The right of the general public to assemble on the ground in question has to be determined with the above admitted or non controverted facts in view.;
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