Jose M.G. and Others v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 17TH DAY OF JUNE 2020 / 27TH JYAISHTA, 1942** ## **WP(C).No.10542 OF 2020(P)** ## **PETITIONERS:** - **1 JOSE M.G. AGED 52 YEARS S/O. LATE GEORGE, MOOTHEDATH, PUTHUVYPE P.O, ERNAKULAM DISTRICT, PIN-682 508** - **2 BIJU K.T, AGED 47 YEARS S/O. LATE THILAKAN, KANNANGANATTU, OCHANTHURUTHU P.O, ERNAKULAM DISTRICT, PIN-682 508** - **3 SABU C.A, AGED 47 YEARS S/O. LATE ANTONY, CHULLIKKAL HOUSE, PUTHY VYPE P.O, ERNAKULAM DISTRICT,PIN-682 508** - **4 SUNIL JOSEPH P.G, AGED 47 YEARS S/O. P.T.GEORGE, PANDARAPARAMBIL, PUTHUVYPE P.O, ERNAKULAM DISTRICT, PIN-682 508** **BY ADVS. SMT.THANUJA ROSHAN SMT.SMRUTHI SASIDHARAN SRI.JOHN JOSEPH** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY, GOVERNMENT OF KERALA, DEPARTMENT OF HOME AFFAIRS,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,PIN-695 001** - **2 ERNAKULAM DISTRICT COLLECTOR-CUM-DISTRICT MAGISTRATE** **COLLECTORATE, KAKKANAD P.O, ERNAKULAM DISTRICT, PIN CODE-682 030** **3 INDIAN OIL CORPORATION LTD. REPRESENTEDBY ITS SENIOR MANAGER, COCHIN LPG IMPORT TERMINAL SITE OFFICE, PUTHUVYPEEN P.O, ERNAKULAM DISTRICT, PIN CODE-682 508** **4 ELANKUNNAPPUZHA GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, ELANKUNNAPPUZHA GRAMA PANCHAYAT OFFICE, MALIPPURAM P.O, ERNAKULAM DISTRICT, PIN CODE-682 508** ## **OTHER PRESENT:** ## **GP VINEETHA B** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 4- 06-2020, THE COURT ON 17-06-2020 DELIVERED THE FOLLOWING:=** W.P.(C).No.10542/20 3 ## **JUDGMENT** ## **Dated this the 17[th] day of June 2020** - 1.This writ petition is filed seeking the following reliefs:- - i. To call for the records leading to Exhibit P-1 and Exhibit P-2 orders and to issue a writ of certiorari or any other writ, order or direction in the nature of certiorari to quash Exhibit P-2. - ii. To issue any other appropriate writ, order or direction as the Hon'ble Court may deem fit in the facts and circumstances of the case in the interest of justice. - 2.Heard the learned counsel for the petitioners and the learned Government Pleader. - 3.Petitioners, four in number, are residents of Puthuvypu in Vypeen island. They contend that prohibitory orders issued under Section 144 of the Criminal Procedure Code,1973 results in infringement of their fundamental rights, including their rights to livelihood. The petitioners claim to be fishermen. They state that they have necessarily to work in groups to eke out a livelihood. It is submitted that an LPG W.P.(C).No.10542/20 4 terminal was proposed by the 3[rd] respondent Corporation in Puthuvypu which led to widespread protest from the residents of the locality. They contend that the terminal poses a real and imminent threat to the lives of the residents of the locality, which is a thickly populated area. The concerns of the petitioners are expressed in detail in paragraphs 7,8 and 9 of the writ petition. It is stated that an order under Section 144 of the Cr.P.C had been first issued by Exhibit P1 on 15.12.2019. Thereafter, by Exhibit P2 proceedings, it is submitted that a non-speaking order has been passed on 10.2.2020 extending the period of the prohibitory order by six months. The learned counsel for the petitioners submits that the extension of the prohibitory orders without even rendering a speaking order is completely unsustainable and illegal. It is submitted that the fundamental rights of the citizens of an area cannot be lightly dealt with in a casual manner by the Government by extending the orders without stating any reason. W.P.(C).No.10542/20 5 4.The learned counsel for the petitioner places reliance on the decisions of the Apex Court in Jagdishwaranand Avadhuta v. Commissioner of Police, Calcutta [1983 (4) SCC 522], Gulam Abbas v. State of U.P . [1982 (1) SCC 71], Anuradha Bhasin v. Union of India , [W.P. (C) No: 1031/2019], Gulam Nabi Azad v. Union of India [W.P. (C) No: 1164/2019], K. S. Puttaswamy v. Union of India (2017) 10 SCC 1, Mazdoor Kisan Shakti Sangathan v. Union of India & Ors. [WP(C) No. 1153 of 2017]. 5.It is submitted by the learned Government Pleader, on instructions, that the apprehensions raised by the petitioners against the terminal cannot be considered by this Court at this stage, since they are not the subject matter of this writ petition. It is stated that the residents of the locality had approached the National Green Tribunal against the environmental clearance granted to the project and the National Green Tribunal has dismissed their petition. They W.P.(C).No.10542/20 6 had preferred an appeal against the said judgment and the Supreme Court had also dismissed the appeal. 6.With regard to the extension of orders under Section 144 Cr.P.C, it is submitted by the learned Government Pleader that the statute itself provides an efficacious alternate remedy to the petitioners. Section 144(6) specifically provides that any aggrieved person can approach the Government with representations pointing out his objections to the extension of the order and the Government is statutorily bound to issue notice, hear the objector and pass appropriate orders. It is submitted that since the challenges raised by the petitioners are essentially factual in nature, the issue can be considered by the Government under Section 144(6) Cr.P.C. - 7.The 3[rd] respondent enters appearance through counsel as well. 8. I have considered the contentions advanced. Section 144 Cr.P.C specifically states that no order under the section shall W.P.(C).No.10542/20 7 remain in force for more than two months from the making thereof. However, the proviso to sub-section 4 of Section 144 Cr.P.C states that if the State Government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or an affray, it may, by notification, direct that an order made by the Magistrate under that Section shall remain in force for such further period not exceeding six months from the date on which the order made by the Magistrate would have expired. Subsection (6) of Section 144 Cr.P.C states that the State Government may, either on its motion or on the application of any person aggrieved, rescind or alter any order made by it under the proviso to sub-section (4). Sub-section (7) of Section 144 states that where an application made under subsection (5), or sub-section (6) is received, the Magistrate, or the State Government, as the case may be, shall afford to the applicant an early opportunity of appearing before him or it, either in person or by pleader and showing cause against the order, and if the Magistrate or the State Government, as the W.P.(C).No.10542/20 8 case may be, rejects the application wholly or in part, he or it shall record in writing the reasons for so doing. - 9.It is, therefore, clear that even in a case where the period of operation of the order is extended by the State Government as is done in the present case, the petitioners, if aggrieved by the same, have the remedy of approaching the State Government with an application for rescinding the same. The petitioners are entitled to a notice and hearing and the State Government is duty bound to pass a reasoned order.. - 10.In the instant case, I notice that Exhibit P1 order itself refers to violent protest by the residents of the locality. It also states that the petition before the National Green Tribunal seeking cancellation of environment clearance of the project had been dismissed and the order had been affirmed by the Apex Court as well. It is stated that it was in view of the violent protests which occurred in the locality that an order under Section 144 Cr.P.C had to be issued. Exhibit P1 is a speaking order. Exhibit W.P.(C).No.10542/20 9 P2 is only an order passed under the proviso to Section 144(4) Cr.P.C. It refers to Exhibit P1 and a report dated 18.1.2020 of the District Collector, Ernakulam. The decision to extend the prohibitory orders has apparently been taken considering the report of the District Magistrate. In view of the fact that the petitioners have the efficacious remedy of approaching the Government, pointing out their grievances against Exhibit P2, I am of the opinion that it would not be justifiable for this Court to consider the legality or otherwise of Exhibit P2 order in a writ petition at this stage. The contentions raised by the petitioner with regard to the difficulties faced by them by the extension of the prohibitory orders as well as the violation of their rights are matters which can be raised appropriately by the petitioners before the Government as provided under the statute itself. 11.In the above view of the matter, I am not inclined to entertain the writ petition. The petitioners are free to take up the matter before the Government by filing an application as W.P.(C).No.10542/20 10 provided under sub-section 6 of Section 144 Cr.P.C. If they do so, the Government shall consider their representations and pass a speaking order after hearing the petitioners or their representatives by any convenient means, including video conferencing. The writ petition is disposed of accordingly. Sd/- **Anu Sivaraman, Judge** sj W.P.(C).No.10542/20 11 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 PHOTOCOPY OF ORDER NO. DCEKM/1228/2017M2 DATED 15.12.2019. EXHIBIT P2 PHOTOCOPY OF ORDER NO. 437/2020/HOME DATED 10.02.2020** True copy PS to Judge