JOHN DAYAL’S NOTE The following is the text of the order of the High Court of Orissa, Cuttack delivered by the Honourable Division Bench of Chief Justice Mr. Justice A K Ganguly and Mr. Justice B N Mahapatra on 18 March 2008 and true copy compared by B Patra and given on 20 March 2008 to the counsel All India Christian Council, which had filed a writ petition, putting a stay on the implementation of the Order of the District Collector and District Magistrate of Kandhamal District proclaimed on 11 January 2008 which had affectively banned the Christian church and NGOs from giving relief to the victims of the Anti Christian violence during Christmas week in most of the Kandhamal district once known as the Phulbani district. The All India Christian Counsel, represented by its Orissa Chapter president Rev Pran Parichha, had challenged the Collector’s order on 27th February 2008 through a Public Interest Litigation writ petition. The certified copy of the Honourable High Court Order came too late to help the community during Easter.
The High Court will hear the matter on 3rd April 2008.
The District Collector’s order has also been challenged in the Supreme Court of India by Archbishop Raphael Cheenath of Cuttack-Bhubaneswar Catholic Archdiocese.
The text contained here is only for information. Xerox copies of Court order will perhaps be required by NGOs and Church groups seeking to send relief to the people staying in the Barakhama refugee camp and others affected in the widespread violence. I could post or fax copies of the original if needed.]
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The High Court of Orissa, Cuttack
[Original Jurisdiction Court]
Writ Petition [C] Number 3028 of 2008
Code No. 211000
IN THE MATTER OF:
An application under Article 226 of Constitution of India
And
IN THE MATTER OF:
Public Interest Litigation challenging the arbitrary and unreasonable restrictions and ban imposed against the charitable and religious institutions for carrying our relief operation amongst the victims of communal violence in Kandhamal District or Orissa
And
IN THE MATTER OF:
All India Christian Council, [Orissa Chapter] being represented by its president Rev Pran Parichha, aged about 57 years, son of Late Subhas Chandra Parichha, at Kanika Road, PO Tulasipur, Town/ District Cuttack --- Petitioner
Versus
State of Orissa represented by the Chief secretary to the Government of Orissa, Orissa Secretariat, Bhubaneswar
Principal Secretary to Govt of Orissa, Home Department, Orissa Secretariat, Bhubaneswar
Collector and District Magistrate, Kandhamal, at Po. Phulbani, District Kandhamal
Union of India, being represented by the Secretary, Ministry of Home Affairs, Government of India, New Delhi
--- Opp. Parties
On 18 .3.2008
Heard Counsel for the parties.
On the oral prayer made by the learned counsel for the petitioners, the name of Opposite Party number 5 is deleted from the cause title of the writ petition
Mr. Khuntia, learned counsel for the State, accepts notice on behalf of the opposite parties 1 to 4. Four extra copies of the writ petition be served on him by tomorrow, who will obtain instruction in the matter.
The mater will appear in the list on 3rd April, 2008
Perused the impugned order dated 11.1.2008 annexed as Annexure 3 of the writ petition
This Court makes it clear that the order dated 11.1.2008, shall remain stayed. However, in the matter of distribution of relief materials, all parties involved therein should maintain law and order.
Urgent certified copy of the order be granted on proper application
A free copy of the order be handed over to the learned counsel of the State.
Signed
A K Ganguly
[Chief Justice]
B N Mahapatra, Justice
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Text of aicc writ petition IN THE HIGH COURT OF ORISSA, CUTTACK
(Original Jurisdiction Case)
W.P. (C) No. 3028_______________ of 2008
Code No. 211000
In the matter of :
An application under Article - 226 of Constitution of India.
And
In the matter of :
Public Interest Litigation challenging the arbitrary and unreasonable restrictions and ban imposed against the charitable and religious institutions for carrying out relief operation amongst the victims of communal violence in Kandhamal District of Orissa.
And
In the matter of :
All India Christian Council, (Orissa Chapter) being represented by its President Rev. Pran Ranjan Parichha, aged about 58 years, S/o. Late Subhas Chandra Parichha, At - Kanika Road, P.O. - Tulasipur, Town / Dist - Cuttack. ..... Petitioner
- Vrs. -
1. State of Orissa being represented by the Chief Secretary to Govt. of Orissa, Orissa Secretariate, Bhubaneswar.
2. Commissioner - cum - Secretary to Govt. of Orissa, Orissa Secretariate, Bhubaneswar
3. Collector & Dist. Magistrate, Kandhamal,
At / Po. Phulbani, Dist - Kandhamal.
4. Superintendent of Police, Kandhamal,
At / Po. Phulbani, Dist - Kandhamal.
5. Union of India being represented by the Secretary, Ministry of Home Affairs, Govt. of India, New Delhi.
..... Opp. Parties
The matter out of which the present application arises was not before this Hon’ble Court in the present form.
To,
The Hon’ble Sri A.K. Ganguly, M.A. LL. B. Chief Justice of Orissa High Court and His Lordship’s companion Justices of the said Hon’ble Court.
The humble petition of the petitioner named above ;
Most Respectfully Sheweth :-
1. That the petitioner in this writ application, craves to invoke the extra-ordinary jurisdiction of this Hon’ble Court calling in question the legality, rationality and reasonableness of the Circular dt. 11.01.2008 issued by the Collector & Dist. Magistrate, Kandhamal, imposing a blanket ban on the NGOs and charitable institutions in carrying out relief operation for the victims of communal violence in the Kandamal District of Orissa.
That apart, the petitioner has moved this writ application espousing the causes of suffering victims who have been terribly affected by the outbreak of unprecedented communal violence in the District of Kandhamal and who are not in a position to protect their own rights and interests on account of their poverty, incapacity and ignorance. Moreover, the petitioner in this writ application, has raised a matter of great public importance challenging the arbitrary and unreasonable decision of the opp. parties which has undermined the fundamental rights of the aforesaid victims as guaranteed under Part - III of the Constitution of India and in essence, sought for its enforcement.
2. That All India Christian Council, on whose behalf the petitioner has moved this writ application happens to be a registered Trust with an all - India Jurisdiction bearing Regn. No. ..................... Needless to say that All India Christian Council is a Non-govt. Organizaiton serving people at large in different States. It has opened a State Chapter in the State of Orissa in order to carry out its aims and objectives.
A true copy of the memorandum and aims & objects of the Trust are annexed herewith as Annexure - 1.
3. That it is peritnent to mention here that the Petitioner-Organization namely, All India Christian Council is serving people at the time of natural calamities irrespective of class, creed or religion. It has worked very closely with the Government in reaching the needy and helpless victims at the time of calamities. Be it Gujrat Earthquake or the Super Cyclone of Orissa or Tsunami, All India Christian Council, through its relief arm and one of its major constituents namely Operation Mobilisation India, has sprung into action to help the victims irrespective of their faith or religion. In this respect, the communication of the Commissioner-cum-Secretary to Govt. incharge of Co-ordination with NGOs for Dissaster / Cyclone relief and rehabilitation) is enclosed herewith as Annexure - 2 to show the relief operation undertaken in Orissa on behalf of the Petitioner - Organization.
4. That although the devastating scar of super cyclone has hardly been erased from the Public memories, yet another calamity of similar magnitude, (this time man - made), in the worst form of communal violence, has struck the most backward Kandhamal District of Orissa severely affecting about 1000 families. It all started on the Christmas eve i.e. 24.12.2007 when a pre- planned and organized attack was unleashed against minority christians by some fanatic groups which spread like wild fire across more than 70 villages in Kandhamal District destroying and ransacking several houses, churches, institutions which are mercilessly and monstrously turned into a bonfire much to the delight of the perpetrators of communal violence. The helpless victims including woman and children desperately ran helter - skelter and in order to save their lives they even took shelter in jungles amidst freezing cold. Apparently, the District Administration utterly failed to protect the life and property of the people and succumbed to the communal frenzy of the militant groups. Even today, the confidence of the victims have not been fully restored back and their constitutional guarantees of right to life and livelihood are still in great stake.
5. That in the above backdrop, undisputedly, the aftermath of communal violence in Kandhamal demands a massive relief and rehabilitation measures both by Govt. and non - Govt. agencies which need to be undertaken on an urgent basis without any further loss of time..
But, shockingly enough, the District Administration, instead of ensuring and creating a conducive atmosphere for carrying out the much - needed relief and rehabilitation activities in the affected areas and among the victims, it has arbitrarily and whimsically imposed a blanket ban on the same by issuing a Circular dt. 11.01.2008 restraining the Charitable / religious institutions or NGOs to carry out any kind of relief operation in Kandhamal District among the affected people on their own. Most astonishingly, the circular gives out an impending threat of legal action under the “relevant section of I.P.C. & Cr. P.C” against the institutions violating the instructions contained therein.
A true copy of the said circular dt. 11.01.2008 issued by the collector & Dist. Magistrate, Kandhamal, is annexed herewith as Annexure - 3 for the close scrutiny of this Hon’ble Court.
6. That being confronted with the arbitrary and unreasonable restrictions imposed under Annexure- 3, the Petitioner - Organization approached the Collector & Dist. Magistrate, Kandhamal (O.P. No. 3) by submitting a representation stating inter alia that it has undertaken relief and rehabilitation activities in Orissa during Super cyclone and also it has been extending such reliefs in other parts of the country irrespective of cast, creed and religion. In such circumstances, the Petitioner-Organization and for that matter any such relief agencies, institutions or NGOs should not be restricted to extend their helping hands for the victims at large.
A true copy of the said representation dt. 12. 02. 08 is annexed herewith as Annexure - 4 for the kind perusal of this Hon’ble Court.
7. That though several days have passed in the meantime, the said authority has not given any due attention to the impartial appeal made by the Petitioner - Organization for distribution of reliefs irrespective cast, creed or religion for the victims of the Kandhamal district. As the authorities are sitting over the matter, instead of taking any urgent decision, the petitioner - organization has no alternative than to approach this Hon’ble Court seeking appropriate and efficacious remedy for the benefits of the victims of communal violence in general. Hence, the petitioner - Organization impungs the legality and reasonableness of the Circular dt. 11.01.2008 under Annexure - 3 on the following amongst other ;
G R O U N D S
(A) For that the impugned circular under Annexure - 3 prohibiting the charitable / religious institutions or NGOs to carry out any kind of relief operation in the Dist. of Kandhamal among the affected people on their own, is per se inhuman, unreasonable and arbitrary in as much as it militates against the fundamental rights as well as human rights of the victims who have fallen prey to the unprecedent communal violence.
(B) For that the relief package announced by the Govt. is highly inadequate and does not cover all the basic necessities of the victims. In such an alarming situation, the relief agencies and NGOs like the Petitioner-Organization cannot be blatantly prohibited much less denied to participate in the relief operation because of the simple reason that the extension and distribution of relief to the victims of natural and/or man - made calamities, is purely a philanthropic act and hence it is highly preposterous on the part of O.P. No. 3 to think that such an act would further flare up the communal tension. If at all any such untoward incident takes place, then the Dist. Administration should not feel helpless to control the situation in lieu of deprieving the victims from the healing touch of relief operation.
(C) For that the stipulation and the high-handed insistence made by the Collector (O.P. No. 3) in the impugned circular that if any organization wants to give any relief material, they should give relief for all 1000 families and it should be donated to Dist. Red Cross Branch, which shall only be carrying the relief operation among the various affected people, amounts to gross arbitrariness in as much as no relief package or operation (which pre-supposes charity), can be subjected to ruthless regimentation and furthermore, no relief agencies can be dictated and/or compelled either to give reliefs for all the affected people or not to give at all. Needless to say that the extent of relief would always depend on the limits of economic capacity of each relief agency. As such, the impugned circular issued by the Collector under Annexure - 3, patently suffers from non - application of mind and hence on this ground alone, the same is liable to be struck down by this Hon’ble Court.
(D) For that even otherwise, the open threat of Criminal prosecution under the “relevant section of IPC and Cr. P.C. against the concerned NGOs, religious and charitable institutions, issued under the impugned circular is highly illegal, unfair and chauvinistic in as much as distribution of reliefs to the victims of communal riots cannot be equated with a criminal offence.
(E) For that the Petitioner - Organization has a right to give relief and assistance to the persons in distress and infact, it has undertaken substantial relief operation at the time of supercyclone in Orissa, in Gujrat riots and earthquakes and also during Tsunami. Moreover, the Petitioner - Organization is ready and willing to abide by any just and reasonable guidelines or to any regulatory mechanism ensuring its meaningful participation in the relief operation. In view of this, there is no reason why the Petitioner-Organization should not be allowed to undertake and handle relief operations among the victims in Kandhamal irrespective of caste, creed or religion on humanitarian ground.
(F) For that in the above premises, the impugned circular at Annexure - 3 being highly detrimental and injurious to the victims of communal violence in Kandhamal, the same cannot be allowed to operate any longer and hence it deserves to be set aside by this Hon’ble Court in the larger interest of the victims as well as for enforcement and protection of their fundamental rights enshrined under Article - 14 & 21 of Constitution of India.
(G) For that this is a fit case where this Hon’ble Court ought to invoke the power of judicial review in as much as the impugned circular at Annexure - 3 being highly unreasonable and oppressive, cannot pass
through the test of judicial scrutiny in the touchstone of Articles 14 & 21 of Constitution of India.
(H) For that there being no speedy and efficacious remedy as this, the petitioner begs to invoke the extra-ordinary jurisdiction of this Hon’ble Court seeking appropriate reliefs.
P R A Y E R
Under the above facts and exceptional circumstances of the case, this Hon’ble Court may be graciously pleased to issue Rule Nisi calling upon the Opp. Parties to show cause as to why ;
(i) The impugned circular dt. 11.01.2008 issued by O.P. No. 3 under Annexure - 3 shall not be quashed or set aside ;
(ii) A writ of mandamus shall not be issued against the Opp. Parties commanding them to allow the Petitioner - Organization to carry out the relief operation among the victims of communal violence in Kandhamal District irrespective of cast, creed or religion.
If the Opp. Parties fail to show cause or show insufficient cause, the said Rule be made absolute.
And / or any other orders / directions may be passed in the facts and circumstances of the case.
And for this act of kindness, the petitioner as in duty bound shall ever pray.
Cuttack By the Petitioner through
Date : 26th Feb.2008 Pratap Chandra Chhinchani
Advocate
Affidavit
I, Rev. Pran Ranjan Parichha, aged about 58 years, S/o. Late Subash Ch. Parichha, President of All India Christian Council, Orissa Chapter, At - Kanika Road, P.O. Tulsipur,, P.S. Bidanasi, Town / Dist - Cuttack, do hereby solemnly state and affirm as follows :-
1. That I am the petitioner in the present case.
2. That the facts stated above are true to my knowledge and belief.
Identified by:
Pratap Ch. Chinchani Rev. Dr. Pran Ranjan Parichha
Advocate Deponent.
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