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Judgment
Hon''ble Chief Justice & T.S. Sivagnanam, J.—These writ petitions designed as ''Public interest litigation'' have been filed, praying for
issuance of a writ of Declaration, declaring the action of the respondent, namely, the District Collector, Tirunelveli District, clamping an order u/s
144 CrPC, on the entire Radhapuram Taluk, Tirunelveli District from 3.00 p.m of 19.03.2012 till 3.00 p.m of 02.04.2012 as being null and void
and for a consequential direction to restore normalcy to the Radhapuram Taluk, Tirunelveli District and in particular Idinthakarai. The petitioners
have stated that ""The Hindu"" dated 20.03.2012, reported that a Prohibitory Order u/s 144 CrPC was clamped on Radhapuram Taluk, Tirunelveli
District and the Taluk comprises of about 50 villages and by virtue of such order, the people residing in those villages have been virtually under
house arrest and therefore, a direction has been sought for immediately to lift the Prohibitory Order passed u/s 144 CrPC and allow the people of
Radhapuram Taluk to move freely.
Mr. M.Radhakrishnan, learned counsel appearing for the writ petitioner submitted that the District Collector in the guise of exercising his power
for maintaining public peace and tranquillity, deprived the people of Radhapuram Taluk of their basic and fundamental right to move freely from
one place to another. Further, it is submitted that no material whatsoever was disclosed explaining the necessity of imposing this unreasonable
restriction. There is no reason whatsoever, why a Prohibitory Order should be passed for the entire Taluk. The learned counsel after referring to
Section 144 CrPC, submitted that none of the grounds mentioned under Sub-Section (1) Section 144 have been satisfied and no material has been
placed before the District Collector to arrive at such satisfaction and no untoward incident has been reported in the past eight months when
protests have been going on against the commissioning of the Atomic Power Plant at Koodankulam and the order has been promulgated on the
same evening after the Cabinet of the State Government took a decision. It is further submitted that the procedure contemplated u/s 134 CrPC as
regards service or notification of the order has not been followed and the order passed u/s 144 CrPC has not been made available to the people
and has not been affixed in the area and therefore, there is a serious procedural violation which itself would be sufficient to revoke the order. The
learned counsel placed reliance on the decision of the Constitution Bench of the Supreme Court in Madhu Limaye Vs. Sub-Divisional Magistrate,
Monghyr and Others, and submitted that for action u/s 144 CrPC, there should be urgency of the situation and the emergency must be sudden and
the consequences sufficiently grave and it is submitted that all these aspects are not present warranting passing of the impugned order. The learned
counsel also placed reliance on the decision of the Supreme Court in Gulam Abbas and Others Vs. State of Uttar Pradesh and Others, and
submitted that the power u/s 144 CrPC is intended for preventing disorders, obstructions etc., and such power is conferred on the Executive
Magistrate to perform the function effectively during emergency situation and there is no such emergency situation in Radhapuram Taluk warranting
promulgation of an order u/s 144 CrPC.
Mr. N.G.R.Prasad, learned counsel for the other writ petitioner submitted that the place where the protest is being held, is situated about 15
k.ms. away from the Atomic Plant and there is no reason as to why the entire village should be barricaded and the people of the area have been
deprived of the essential commodities such as milk, water, electricity and the children are unable to commute to the School to attend the
examination, since public transport has been cut off. It is further submitted that any order u/s 144 CrPC is subject to Article 19 & 21 of the
Constitution and by virtue of the impugned order, the fundamental rights of the people of Idinthakarai, have been violated.
Ms.R.Vaigai, learned counsel appearing for the other writ petitioner submitted that in the impugned order, there is no mention of immediate
threat, no mention of any threat to the Atomic Plant and no details have been given as to why immediate action is required. It is further submitted
that the District Collector is aware that no untoward incident had occurred and therefore, could not have passed an order u/s 144 CrPC. It is
further submitted that the impugned order is not available in public domain and none of the activists have been served with the order and the order
cannot prevent any political party from entering the Taluk or prevent any activist from entering the Taluk. It is further submitted that the impugned
order is solely based on presumption and hence, illegal. The learned counsel placed reliance on the recent decision of the Supreme Court in In Re-
Ramlila Maidan Incident vs. Home Secretary, Union of India and others, 2012 (2) SCALE 628 and drawn our attention paragraphs to the
relevant of the judgment.
Mr. A.Navaneethakrishnan, learned Advocate General appearing for the respondents submitted that the order is against persons, who are
dangerous to maintaining tranquillity and peace in Radhapuram Taluk and only those who are protesting or prevented from entering the Taluk and it
is incorrect to state that entire Radhapuram Taluk has been cordoned off and the Prohibitory order is only against those persons entering the Taluk
and opposing commissioning of the Plant and instigating agitation against the Atomic Plant and there is no restriction for any other person to enter
the Taluk. It is further submitted that the allegation that essential commodities have not been supplied, is a false statement and in this regard, the
District Collector, Tirunelveli has issued an official press release, clarifying all issues. It is further submitted that the impugned order being a specific
order passed against anti-social elements, the same cannot be challenged in a public interest litigation and these writ petitions are not maintainable.
Further, it is submitted that the impugned order is only a temporary order for 15 days and preventive in nature and if any person is aggrieved by
such order, remedy has been provided u/s 144 (5) or 144 (6) CrPC and the same cannot be questioned in a Public Interest Litigation. It is further
submitted that the people living inside Radhapuram Taluk, are not affected and it is to prevent anti-social elements from entering the Taluk with a
view to instigate the agitation and such other activities, which would be dangerous and cause disturbance of public tranquillity.
Mr. M. Ravindran, learned Additional Solicitor General, submitted that the Prohibitory order is to prevent untoward incident and preserve
peace and there are two sets of people, namely, a minuscule set of people opposing the Atomic Power Plant and a larger section of people who
are spread over the State, who are demanding the functioning of the Power Plant and these larger group, should be prevented from entering into
the Taluk as it may cause serious law and order problems. The learned Additional Solicitor General placed reliance on the decision of the Supreme
Court in State of Karnataka and Another Vs. Dr. Praveen Bhai Thogadia, and submitted that Court should not normally interfere in matters relating
to law and order and it should be left to the administrative authorities to assess and handle the situation. It is further submitted that there is a great
concern, since unknown persons are entering into the area through the sea route.
In reply Ms. R. Vaigai, the learned counsel submitted that the test laid down in Section 144 CrPC is not mere likelihood, but the Magistrate
must be satisfied that immediate prevention of particular acts is necessary. In this regard, reference was made to paragraph 47 of the judgment in
the case of In Re-Ramlila Maidan, referred supra.
We have elaborately heard the learned counsels appearing for the writ petitioners, the learned Advocate General for the State and the learned
Additional Solicitor General for the Central Government.
On 22.03.2012, when we heard the writ petitions, after taking note of the submissions of the learned counsels that the allegations that essential
supplies have been cut off to the people in the Taluk and after hearing the learned Advocate General, we passed the following interim direction:-
We have heard Mr. M. Radhakrishnan, Mr. N.G.R. Prasad and Ms. R. Vaiagai, learned counsel appearing for the respective writ petitioners,
and Mr. A. Navaneethakrishnan, learned Advocate General appearing for the State and Mr. M.Ravindran, learned Additional Solicitor General
appearing for the Central Government.
These writ petitions, styled as public interest litigations, concern the order passed u/s 144 of the Code of Criminal Procedure in Radhapuram
Taluk of Tirunelveli District. The main grievance expressed by the learned counsel appearing for the respective writ petitioners is that the people of
the Radhapuram Taluk have not been able to move freely and essential supplies such as water, milk and electricity have been denied and further
transport facilities have been cut off, and therefore, immediate directions should be issued to restore these essential supplies. It is, further, stated
that at present, Plus Two examinations are going on in the State and children of the area have been prevented to attend the examinations, since
public transport has been affected. We have also heard the learned counsel appearing for the respective writ petitioners on the other issues
challenging the order passed u/s 144 of the Code of Criminal Procedure. Prayer has been made to suspend the operation of the said order.
Learned Advocate General submitted that the apprehension expressed by the learned counsel appearing for the respective writ petitioners is
incorrect. Order u/s 144 of the Code of Criminal Procedure has been passed only as a preventive measure and it is a temporary order for about
15 days and persons living inside the Taluk are not affected. He submitted that the order has been passed only to prevent anti-social elements from
entering the Taluk for creating or instigating agitations against the functioning of the Nuclear Power Plant at Kudankulam.
4 In this regard, the learned Advocate General had referred to the official press release issued by the District Collector, Tirunelveli, which has been
widely published in the newspapers.
5 As per the press release furnished by the learned Advocate General, the Collector has denied media reports that supply of essential commodities
to Idinthakarai, where the anti nuclear energy protesters had assembled, had been cut off. The Collector has stated that supply of milk, vegetables,
water through tankers continued to the coastal village, and if at all there was any disturbance in maintaining the supply it was only because of the
cutting of roads leading to Idinthakarai and creation of road blockades by the protesters. The Collector has further stated that the District
administration is ready to help the villagers in maintaining supply of essential commodities and is also ready to ply additional buses for the benefit of
students of Idinthakarai appearing for the Plus Two examinations.
6 The statements made by the District Collector, Tirunelveli in his official press release are placed on record. We hope and trust that these
statements are effectively implemented, so that the public of the area do not suffer for want of essential commodities/supplies like water, essential
food commodities, milk for the children etc. However, it is made clear that at the same time, action shall also be taken against the persons, who are
indulging in blocking the roads by putting boulders and pillars, so that there shall be smooth flow of essential supplies. In view of the observations
made herein above, the prayer of suspension of order does not arise.
Put up on 26.03.2012 for orders.
The issues which fall for consideration in these writ petitions are whether the respondent was justified in passing the impugned order u/s 144
Cr.P.C, whether the same satisfies the requirements u/s 144 (1) Cr.P.C and could such order be questioned by way of a public interest litigation,
when persons aggrieved by such order have not questioned the same.
Before we proceed further, it would be necessary to take note of the order dated 19.03.2012, passed by the District Collector, Tirunelveli u/s
144(1) Cr.P.C. The order is in Tamil. The English translation of the same is quoted herein below:-
ORDER OF THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE UNDER 144(1) of Cr.P.C.
Ref: Report of the District Superintendent of Police dated 19.3.2012
The Tamilnadu Government passed orders for taking steps instantaneously to operate the Atomic Power Plant at Koodankulam, on the basis of
the report submitted by the Experts Committee, appointed by the Central Government, regarding the Atomic Power Plant, Koodankulam, the
report submitted by the Expert Committee appointed by the State Government, Since the Government came to be aware of the fact that there is
no possibility for earthquake and Tsunami, after throroughly examining the petition against the Atomic Power Plant and that the Koodankulam
Atomic Power Station has special safety aspects, that the sea organisms will not be affected in any manner, owing to the water discharged from
this Atomic Power Station, that the sources of livelihood of the Fishermen will never be affected, that the Expert Committee appointed by the
Central Government dispelled the suspicions raised by the people of that region in respect of the said plant and that since the Atomic Power Plant
is a very safe one and taking into consideration that the development schemes should be carried out in such a way, that the safety of the people and
the sources of livelihood of the people, should not be affected.
In consequence to the order of the Government, the works of the Atomic Power Plant have started from 19.03.2012.
Under these circumstances, prohibitory order u/s 144(1) of Criminal Procedure Code, is passed for preventing the political parties, Organisations,
Movements and others, from entering the limits of Radhapuram, from 3.00 p.m. on 19.03.2012 to 3.00 p.m. on 02.04.2012, which helps the
''People Movement'' against Atomic energy, and to prevent the activities which will be detrimental to the tranquility of the public at Koodankulam,
to restrain the aforesaid persons from preventing the persons legally employed in Koodankulam Atomic Power Plant from attending to their work,
and in order to give protection to the life and belongings of the public and to prevent the occurrence of any riots and to preserve the peace and the
tranquility of the public, and to prevent them from helping the agitators against the said Power plant and to restrain them from instigating the
agitators.
From the above order, it is seen that the Government of Tamil Nadu had directed the commencement of the Atomic Power Plant at
Koodankulam, after taking note of the reports submitted by the Expert Committee appointed by the Central Government and the Expert
Committee appointed by the State Government, was of the opinion that there is no possibility of any danger to the people and the Expert
Committee appointed by the Central Government, dispelled the apprehension and consequent upon the order of the Government, the Atomic
Power Plant has started functioning from 19.03.2012. Under such circumstances, the Prohibitory order u/s 144(1) CrPC was passed for
preventing political parties, organisations and others who help/assist the movement against Atomic Energy and to prevent such activity which will
be detrimental to the tranquillity of the public at Koodankulam and to prevent such persons from obstructing the employees in the power plant from
attending their duties and in order to give protection to life and properly of the public and with a view to prevent riots and preserve peace and
tranquillity and to prevent such of those persons helping the agitators against the Power Plant and to restrain them from instigating the agitators,
from entering the limits of Radhapuram Taluk from 3.00 p.m. on 19.03.2012 to 3.00 p.m on 02.04.2012.
In these writ petitions, we are not concerned about the establishment of the Power Plant or its functioning. The challenge to the impugned order
is on the ground that it does not satisfy the requirements essential for invoking the power u/s 144(1) CrPC.
In the recent decision of the Supreme Court in the In Re-Ramlila Maidan, referred supra, the scope of an order made u/s 144 CrPC, has been
stated. It has been held that an order passed in anticipation by the Magistrate empowered u/s 144 CrPC is not an encroachment of the freedom
granted under Article 19(1)(a) and 19(1)(b) of the Constitution and it is not regarded as an unreasonable restriction. It is an executive order, open
to judicial review. It has been further held that the entire basis of an action u/s 144 is the urgency of the situation and the power therein is intended
to be availed for preventing disorder, obstructions and annoyance with a view to secure the public weal by maintaining public peace and
tranquillity. The decision of the Supreme Court in case of Gulam Abbas, referred supra, was referred to and stated that preservation of public
peace and tranquillity is the primary function of the Government and the aforesaid power is conferred on the executive and in a given situation a
private right must give in to public interest. That an order u/s 144 CrPC, though primarily empowers the executive authorities to pass Prohibitory
orders vis-a-vis a particular facet, but is intended to serve large public interest. Their Lordship''s further held that the legislative intention to
preserve public peace and tranquillity without lapse of time, acting urgently, if warranted, giving thereby paramount importance to the social needs
by even overriding temporarily, private rights, keeping in view the public interest, a patently inbuilt in the provisions u/s 144 Cr.P.C. After referring
to the decision in Dr.Thogadia''s case (supra), it was observed that Court should not normally interfere with matters relating to law and order which
is primarily the domain of the concerned administrative authorities and they are by and large the best to assess and handle the situation depending
upon the peculiar needs and necessities within their special knowledge. It has been further held that if the authority anticipates an eminent threat to
public order or public tranquillity, it would be free to pass desirable directions within the para meters of reasonable restrictions on the freedom of
individual and the provision is attracted only in emergent situation for the purpose of maintaining public order. The order should be in writing
referring to the facts and stating the reasons for imposition of such restriction. The Supreme Court in Dr.Thogadia''s case, eld that the Court was
not acting as an appellate authority over the decision of the official concerned and unless the order is patently illegal, without jurisdiction or with
ulterior motives and on extraneous consideration of political victimization by those in power, normally interference should be the exception and not
the Rule. The Court cannot in such matters substitute its view for that of the competent authority. The basic requirements for passing an order u/s
144 were held to be as follows:
(i) It is an executive power vested in the officer so empowered;
(ii) There must exist sufficient ground for proceeding;
(iii) Immediate prevention or speedy remedy is desirable;
(iv) An order, in writing, should be passed stating the material facts and be served the same upon the concerned person.
The Constitution Bench held that the gist of the action u/s 144 is the urgency of the situation, its efficacy in the likelihood of being able to
prevent some harmful occurrences and it is possible to act absolutely and even ex parte, the emergency must be sudden and consequences
sufficiently grave. It was further held that there is no general rule that an order under the Section cannot be passed without taking evidence.
Further, it was held that the restraint imposed by the order is temporary and the aggrieved person has an opportunity to have the order rescinded
and there are sufficient safeguard available to the person affected by the order and the restrictions are therefore reasonable and the mere fact that
the power under the section may be abused is no ground to strike it down.
16.As noticed above, the power u/s 144 is an executive power and for exercise of such powers, there must be sufficient ground for proceeding
and the next aspect would be immediate prevention or speedy remedy is desirable and the order is required to be in writing by directing any
person to abstain from a certain Act or to take certain order with respect of certain property in his possession or under his management, if such
Magistrate considers that such direction is likely to prevent or tends to prevent obstructions, annoyance or injury to any person lawfully employed
or danger to human life, health or safety or a disturbance of the public tranquillity or a riot or an affray.
In the impugned order, the District Collector has referred to a report of the District Superintendent of Police, dated 19.03.2012. After
referring to the reports submitted by the Expert Committee appointed by the Central and State Government, wherein it appears they have dispelled
the fear and suspicions raised by the people of that region in respect of the Atomic Power Plant and that it is a safe one, the State Government
issued directions to operate the Power Plant and consequent upon such order, the Power Plant started functioning from 19.03.2012. The District
Collector has stated that under such circumstances, it would be necessary to prevent people who are helping or assisting the agitators/organizations
against Atomic Power Plants from entering Radhapuram Taluk for a period of 15 days from 19.03.2012 to 02.04.2012 and in order to prevent
any incident affecting public tranquillity/public interest and in order to ensure that the persons lawfully employed in the Atomic Power Plant should
not be prevented from attending their duties and to ensure safety for the life and property and to prevent any sought of agitation and riots, it has
been decided that the following category of persons, namely, a) the political parties who are instigating and helping the Koodankulam Atomic
Power Plant protesters'' movement b) other Organisations/Associations and persons who are instigating and helping the #Koodankulam Atomic
Power Plant protesters'' movement# have been prevented from entering the Radhapuram Taluk limit between 3.00 p.m on 19.03.2012 till 3.00
p.m on 02.04.2012. The contention raised by the learned counsels appearing for the petitioners is that the Prohibitory order is in the nature of
cordoning of entire Radhapuram Taluk and no person would be entitled to enter the Taluk and it is an unreasonable restriction offending Article 19
& 21 of the Constitution.
After, we have perused the Prohibitory order, we find that the contentions raised by the petitioners is devoid of any substance. The Prohibitory
order is not against the entire world thereby preventing anybody from entering the boundaries of Radhapuram Taluk. The order is specific and it
has categorized to sections of persons who are assisting and helping the organisation which is protesting against the Atomic Power Plant.
Therefore, we are not persuaded to accept the contention that the order is a vague order thereby preventing anybody from entering the Taluk
limits. We can take judicial notice of fact that for a considerable length of time agitation has been going on at Idinthakarai protesting against the
Koodankulam Atomic Power Plant and it is a matter of common knowledge that recently the State Government passed an order permitting the
commissioning of the Power Plant and news report in this regard were widely publicized. Therefore, in the opinion of the District Collector in order
to prevent any obstruction to the functioning of the Plant or causing any annoyance or injury to the persons employed in the Plant and prevent any
danger to human life and to maintain public tranquillity, the order has been passed by preventing the entry of such persons, political parties,
Organizations and Associations who have been helping and supporting the group/movement which is protesting against the Koodankulam Atomic
Plant. Thus, a particular identified section of the people having been restrained from entering the Taluk limit, the order has to be held to be in
compliance with Section 144 (1) Cr.P.C. As held by Supreme Court in Madhu Limaye, the effect of the order being in the interest of public order
and the interest of the general public, occasions may arise when it is not possible to distinguish between those whose conduct must be controlled
and those whose conduct is clear.
The petitioners would further contend that the impugned Prohibitory order has not been made available in the public domain, copy of which
was produced before this Court by the learned Advocate General. Having held that the Prohibitory order has been passed against an
identifiable/identified group/political party/organisation/ association/person, it is for such aggrieved individual to seek for a copy of such order or to
state that the order was not served in accordance with Section 134 Cr.P.C. Therefore, in our view the petitioners cannot be said to be persons
aggrieved, so as to question the manner of service of the Prohibitory order. Likewise, the order having been passed against identified/identifiable
group, such order cannot be questioned in a public interest litigation more so when the order has been passed stating the material fact and the
Magistrate being satisfied that immediate prevention and speedy remedy is desirable.
Even assuming that the public interest litigant, is a person aggrieved, remedy is available under Sub-Section (5) of Section 144 Cr.P.C., by
moving the Magistrate to rescind or alter the order or move the State Government under Sub-Section (6) of Section 144 Cr.P.C., for rescinding
or altering the order passed under Sub-Section (4) of Section 144 Cr.P.C. As has been held by the Supreme Court there is a complete channel
provided for examining the correctness or otherwise of such an order passed u/s 144 Cr.P.C., and preciously for this reason, the Supreme Court
held that such order falls within the frame work of reasonable restriction.
The learned counsels for the petitioners contended that the order has caused great prejudice to the people of the locality, since supply of
essential commodities were stopped and the people are suffering without water, milk, electricity and transport facilities had been withdrawn.
This contention was considered by us when we passed the interim order noted above. The District Collector in his official press release, had
denied the media reports that the supply of essential commodities had been cut off and stated the the supply of milk, vegetable, water through
tanker continued to coastal village and if at all there was any disturbance in maintaining the supply, it is only because of the cutting of roads leading
to Idinthakarai and creation of road blockades by the protesters. The Collector further stated that the District Administration is ready to help the
villagers in maintaining the supply of essential commodities and also to ply additional buses for the student to attend the examination. This statement
was placed on record with an earnest hope that they are effectively implemented so that the public do not suffer for want of essential commodities.
However, we made it clear that action should be taken against persons blocking the roads and preventing access to the area.
In view of the above, we hold that the impugned order is only a regulation and not a prohibition altogether for avoiding breach of peace.
Therefore, we are not inclined to interfere with the impugned Prohibitory order passed by the Second Respondent. However, it is made clear that
the District Administration shall ensure uninterrupted supply of essential commodities like milk, water and electricity etc., and bus facilities and take
all steps against the persons indulging in activities like digging of the roads, blocking the roads with boulders, pillars etc., by taking action in
accordance with law. It is needless to state that any person aggrieved by the impugned Prohibitory order would be at liberty to avail the remedy
available u/s 144 (5) Cr.P.C., if so advised. For all the above reasons, we find no merit in these writ petitions and they are dismissed subject to the
observations stated above. No costs. Consequently, connected miscellaneous petitions are closed.