Bombay High Court: While addressing a Writ Petition challenging the withdrawal of permission for organising a Body Building Competition on the ground of code of conduct issued by the Election Commission of India (‘EC’), the division bench of Sunil B. Shukre* and M.W. Chandwani, JJ. held the impugned communication by Kalyan-Dombivali Municipal Corporation (‘KDMC’) is arbitrary and bad-in-law, which deserves to be quashed and set aside.
The background of the present matter reveals that an officer of KDMC granted permission to the petitioner, a member of Shivsena party, for organising a Body Building Competition on 11-01-2023, when the EC’s code of conduct was still in force. However, the permission was withdrawn by the officer concerned through communication dated 17-01-2023 on the ground of EC’s code of conduct. Since the further communication did not mention an error in the permission granted earlier, or the misconception in understanding the code of conduct, the same was challenged through the present petition.
The Model code of conduct issued by the ECunder Clause 1 of the Chapter ‘General Conduct’ reads as:
“1. General Conduct
“(1) No party or candidate shall include in any activity which may aggravate the existing differences, or create mutual hatred, or cause tension between different castes and communities, religious or linguistic.”
The counsel for KDMC submitted that prior permission was granted erroneously which has been corrected through further communication. The Court, however, rejected the same and reiterated the well settled rule of “What is not stated as a reason or ground for taking a decision cannot be supplied later by way of affidavit-in-reply or as a submission made to the Court.”, while referring to to Mohinder Singh Gill v. Chief Election Commr., (1978) 1 SCC 405.
Further, while referring to the Model code of conduct issued by EC, the Court held that “The code of conduct does not impact in any way an event like a Body Building Competition, a sport, pure and simple, and not an event arousing public feelings or fanning public sentiments”.
The counsel for KDMC emphasised on the aspect of aggravating existing differences between the political parties because of the pamphlet issued by the petitioner which reads as “This Body Building Competition is being organized by Shivsena Shakha (Uddhav Balasaheb Thackeray) of Kalyan-Murbad District”, which may affect the differences between two political groups of the original Shivsena party. However, the Court rejected the idea of a Body Building Competition aggravating the existing differences with the explanation that “It is only those acts which cause annoyance to other group, tend to insult or humiliate other group, spread falsehood or canards, infame religious or communal feelings, or praise one group or community and denigrate other group or community on the ground of caste, religion, community or language would fall within the mischief sought to be suppressed by the aforesaid Clause.”
The Bench also questioned the differences existing between two political groups of original Shivsena as alleged by the petitioner, which could not be proved, thus excluded from the scope of ‘nature of existing differences’ as contemplated under Clause 1 of Chapter “General Conduct”.
The Court also observed that the petitioner was not given any opportunity of being heard by KDMC before withdrawing the permission already granted for organizing Body Building Competition. The Court found it necessary on part of the KDMC officer concerned to issue a ‘Show Cause Notice’ before communicating the cancellation of permission.
The Court considering all the aforementioned factors, quashed and set aside the impugned communication dated 11-01-2023 and held the same arbitrary and bad-in-law.
[Vijay Jagannath Salvi v. Kalyan Dombivali Municipal Corporation, 2023 SCC OnLine Bom 283, judgment dated 20-01-2023]
*Judgment by: Justice Sunil B. Shukre.
Advocates who appeared in this case :
For Petitioner: Advocate R. S. Datar, Advocate Dushyant Pagare , Advocate Druti Datar;
For Respondent: Advocate A. S. Rao,Advocate M. P. Thakur.