IN A setback for the Eknath Shinde-led ruling alliance in Maharashtra, the Bombay High Court on Friday allowed the Uddhav Thackeray-led Shiv Sena group to hold its annual rally, Dussehra Melawa, at Shivaji Park on October 5 — even as it pulled up the Brihanmumbai Municipal Corporation (BMC) for “abuse of power” in denying permission for the gathering.
Allowing the Uddhav-led Sena’s plea to set aside the denial of permission, a division bench of Justices Ramesh D Dhanuka and Kamal R Khata also directed the BMC to grant permission to the petitioner to use the venue for preparations and rally-related work from October 2-6.
Besides, the court directed the police to ensure adequate security arrangements while allowing them to record the event on video to check for violations if any by the petitioners, which can be used as grounds for denial of such permission in future.
The bench also rejected an interim application by Mahim MLA Sada Sarvankar, who belongs to Chief Minister Shinde’s faction of the Sena, against the plea by the Uddhav-led group. It said that it was not inclined to express views as to which faction was the real Shiv Sena and that the matter is pending before the Election Commission and the Supreme Court.
The court was informed that the Uddhav-led camp had applied for BMC permission to hold its rally at the venue on August 22 and 26 through Sena MP Anil Desai while Sarvankar had submitted an application on August 30 for his group to hold a rally at the ground on the same date (October 5).
“In our view, impugned order is a clear abuse of power granted to BMC under law. It was clearly on the ground that because an application was filed by another person. It is not a case of the corporation that in the last several decades, law and order situation was created due to Dussehra Melawa. We are satisfied that in this case, BMC has misused the power by refusing grant of permission on flimsy grounds that there was another application and would create a law and order situation,” the bench said.
Appearing for the BMC, Senior Advocate Milind Sathe informed the bench that applications from both factions were received “on behalf of Shiv Sena”. Subsequently, Sathe said, a letter was sent by the BMC to the police on September 21 referring to a brawl between the two Sena factions in Prabhadevi during the Ganesh festival and pointing out that permission for the rally would create law and order problems.
Sathe said that on the same day, the police responded by stating that a law and order situation was probable, based on which the civic body decided to deny permission for the rally.
The court, however, questioned the BMC’s conduct. “BMC lawyer could not explain as to why the applications could not be decided by BMC between August 22 and September 21. Decision was given by BMC after service of petition (by Anil Desai) to them,” it said.
“The sequence of events clearly indicates that the local police submitted a report and decision of BMC was also based on that, and both were given on the same day on September 21. In view of rival claims made by petitioner Desai and Sada Sarvankar, BMC would have obtained reports from police immediately after applications were received. The decision by BMC is not a bona fide decision,” it said.
Desai later said that Uddhav has expressed happiness with the High Court decision. “The expectation is that Dussehra Melawa will take place in a better atmosphere. The High Court has observed that law and order is the agency’s work and they should abide by it,” he said.
Appearing for the petitioner, Senior Advocate Aspi Chinoy and Advocate Joel Carlos had submitted that the right of Shiv Sena to hold “Dussehra Melawa” is recognised by way of practice and by a 2016 Government Resolution (GR) of the state government.
Chinoy argued that the interim application by MLA Sarvankar was “absurd” and said that if the police apprehended a law-and-order situation based on application by an individual, it was “failure of the machinery”.
Arguing for BMC, Sathe said the petitioner had no “indefeasible right” under the Constitution and applications were made to the BMC, which owns the property, and were decided as per law and with rational application of mind.
The bench was informed that in 2010, the High Court had declared the area as a “silence zone” and placed restrictions on its use for non-sporting activities. As per a state government circular issued in 2016, Shivaji Park can be used for non-sporting activities for 45 days a year. Out of 45 days, the ground can be given on 11 days for non-sporting activities of private organisations and individuals, the order stated.
Appearing for Sarvankar, Senior Advocate Janak Dwarakadas submitted that he had the standing to intervene in the case as the petitioner had claimed to be representing the “registered Shiv Sena party” and argued that there is suppression of material facts about the dispute over who the real Shiv Sena is, which was pending before EC and SC.