- (1.) It is the contention of the petitioner that the Respondent No. 1 has been served with notice of hearing of the instant application upon the personal assistant of Respondent No. 1, namely Mr. Dilip Majumdar, who however refused to put his signature at the copy of the letter but assured that the petition will be handed over to Miss. Mamata Banerjee, Respondent No. 1 and the Respondent No. 1 is expected to return at her residence at about 2.00 p.m. The Respondent No. 1A, Mr. Pankaj Banerjee, has not been served. On behalf of the Respondent No. 1B, Mr. D.C. Roy, learned Advocate appears along with Mr. H. Guha Roy. The Respondent Nos. 2 & 3 have been served and represented by Mr. Tapan Dutta, learned Advocate for the State of West Bengal. In view of the urgency, Rule 27 of the writ rules stands dispensed so far as non-appearing respondents are concerned. The petitioner, in person, appears and refers two judgments and decisions of the Full Bench of Kerala High Court, Bharat Kumar K. Palicha & Anr. v. State, reported in AIR 1997 Kerala page 291 which has been affirmed by the Supreme Court and reported in 1998 at Supreme Court Cases (1) Pg. 201. The Supreme Court in a short judgment affirmed the said judgment of Kerala High Court and it has stated that the Kerala High Court has made correct observations so far as paragraphs 12, 13 & 17 of the judgment delivered by the Kerala High Court, which is reported in AIR 1997 Kerala 291. Relevant portion of the paragraph 12 of the Kerala High Court judgment as reported in AIR 1997 Kerala 291 at page 298 is set out here-in-below: "When Article 19(1) of the Constitution guarantees to a citizen the fundamental right referred to therein and when Article 21 confers a right on any person not necessarily a citizen-not to be deprived of his life or personal liberty except according to the procedure established by law, would it be proper for the court throw up its and in despair on the ground that in the absence of any law curtailing such right, it cannot taste the constitutionality of the action? We think not. When properly understood, the calling of a Bandh entails the restriction of the free movement of the citizen and his right to carry on his avocation and if the legislature does not make any law either prohibiting it or curtailing it or regulating it, we think that it is the duty of the court to step into protect the rights of the citizen so as ensure that the freedom available to him are not curtailed by any person or any political organisation. The way in this respect to the courts has been shown by the Supreme court in Bandhua Mukti Morcha v. Union of India reported in AIR 1984 SC 802."
(2.) Relevant portion of the paragraph 13 of the Judgment are also set out below :- "We have already noticed that a call for Bandh holds out a warning to the citizen that if he were to go out for his work or to open his shop, he would be prevented and his attempt to take his vessel on the road will also be dealt with. It is true that theoritically it is for the State to control any possible violence or to ensure that bandh is not accompanied by violence. But our political subservience of the law enforcing agencies and the absence of political will exhibited by those in power at the relevant time, has really lead to a situation where there is no effective attempt made by the law enforcing agencies either to prevent violence or to ensure that those citizens who do not want to participate in the bandh are given the opportunity to exercise their right to work, their right to trade or their right to study. We cannot also ignore the increasing frequency in the calling, holding and enforcing of the State destruction of public and private property. In the face of this reality. we think that when we consider the impact of a bandh on the freedom of a citizen, we are not merely theorising but are only taking note of what happens around us when a bandh is called and a citizen attempts either to defy it or seeks to ignore. We are not in a position to agree with counsel for the respondents that there are no sufficient allegations either in O.P. 7551 of 1994 or in O.P. 12469 of 1995 which would enable us to come to such a conclusion. In fact, the uncontroverted allegations in O.P. 12469 of 1995 are specific and are also supported by some newspaper clippings which though could not be relied on as primary material, could be taken note of a supporting material for the allegations in the Original Petition."
(3.) Kerala High Court, however, has also observed that the general strike and Hartal is different from Bandh. In fact in paragraph 14, the Kerala High Court has observed inter alia as follows :- "It may be true that the political parties and organisers may have a right to call for non-cooperation or to call for a general strike as a form of protest against what they believe to be either an erroneous policy or exploitation. But when exercise of such a right infracts the fundamental right of another citizen who is equally entitled to exercise his rights, the question is whether the right of the political party extend to right of violating the right of another citizen In railway Board, New Delhi, v. Niranjan Singh, reported in AIR 1969 SC 966, the Supreme Court observed :- "The fact that the citizens of this country have freedom of speech, freedom to assemble peaceably and freedom to from associations of unions does not mean that they can exercise those freedoms in whatever place they please. The exercise of those freedoms will come to an and as soon as the right of someone else to hold his property intervenes. Such a limitation is inherent in the exercise of those rights. The validity of that limitation is not to be judged in the tests prescribed by sub-Articles (2) and (3) of Article 19. In other words the contents of the freedoms guaranteed under clauses (a), (b) and (c), the only freedoms with which we are concerned in this appeal, do not include the right to exercise them in the properties belonging to others." "If this be the position and if the call for the bandh and the holding of it entails restriction on the fundamental freedoms of the citizen, it has to be held that no political party has the right to call for a bandh on the plea that it is part of its fundamental right of freedom of speech and expression. Moreover, nothing stands in the way of the political parties calling for a general strike or hartal unaccompanied by express or implied threat of violence to enforce it. It is not possible to accept that the calling of a bandh alone could demonstrate the protest of a political party to a given decision or in a given situation.";