In what came as a shot in the arm for beleaguered leader Uddhav Thackeray, the Bombay High Court on Friday granted permission to the faction of the Shiv Sena headed by him to hold Dussehra rally at the historic Shivaji Park in north-central Mumbai, after holding that the action by the Brihanmumbai Municipal Corporation (BMC) to deny permission to hold the rally to the Sena led by him was “abuse of law”.
Quashing an order passed earlier by the Brihanmumbai Municipal Corporation (BMC) refusing permission to hold the Dussehra rally at Shivaji Park, a HC bench of Justices RD Dhanuka and Kamal Khata noted, “Our view is that decision taken by BMC is not a bonafide decision.”
Granting permission to the Uddhav-led Shiv Sena to hold the annual Dussehra rally at Shivaji Park anywhere between October 2 to 6, 2022, the HC bench observed that the police were at liberty to video-record the rally and in the event of any untoward behaviour, the same could be taken as a ground for refusing permission to the party for its rally next year.
Friday’s development came as a major boost to the Uddhav Thackeray-led Shiv Sena - which headed by the previous Maha Vikas Aghadi (MVA) government - was unseated from power and the Eknath Shinde-Devendra Fadnavis alliance government came to power on June 30 this year.
Virtually pulling up the BMC for denying permission to the Uddhav-led Shiv Sena to hold its annual Dussehra rally at Shivaji Park, the HC bench observed, “The application could not be decided for so long and the police report was called for after the writ petition was served. In our view BMC’s action is a clear process of abuse of law”. “We are invoking powers under Article 226 of the Constitution. In this case, BMC has misused power by refusing to grant permission in view of another application. This case calls for interference and grant of permission. Permission can be granted on various conditions. Petitioner will have to comply with conditions,” the HC bench said.
It may be recalled that in 2016, the BMC commissioner had been directed to allow holding of the Dussehra rally at Shivaji Park, and accordingly, permission was granted till 2019. However, the rally could not be held in 2020 and 2021 due to the Covid-19 pandemic. In its petition, the Uddhav-led Shiv Sena told the High Court that in 2022, as per the procedure, it had applied to BMC on August 26, 2022 for permission to hold the rally on October 5, 2022, However, the permission was not granted despite lapse of more than a month, prompting the Thackeray Sena to approach High Court for appropriate directions.
After the Uddhav Sena moved the High Court, the BMC rejected its application seeking permission for the rally on September 21.
However, in the meanwhile, the Eknath Shinde faction of the Shiv Sena -- through MLA Sada Sarvankar - moved an intervention application opposing the Uddhav Sena’s petition. At the hearing held on Friday, the advocate Aspi Chinoy-appearing for the Thackeray faction of the Sena - made a strong case for the grant of permission to hold the rally saying the Bal Thackeray-led Shiv Sena had been its annual Dussehra rally at the Shivaji Park since the party’s formation in 1966. Chinoy argued that Shiv Sena had a right to hold the Dussehra rally “as a matter of practice in the Government resolution”
Chinoy said rejecting an application filed by Shiv Sena on the ground that there was another application filed by an individual MLA was “perverse and irrational”. “If an individual’s application creates a law and order situation then you preserve law and order. Any MLA wanting to hold at the same spot cannot be a ground for not allowing. Shiv Sena’s right to hold the rally has been recognised by way of practice, since they have been holding it during the last 50 years, custom, tradition and also the resolution issued by the Maharashtra Government in 2016 earmarking the ground to be used for Dussehra Melawa (rally),” Chinoy stated. Senior Advocate Dr Milind Sathe for BMC told the High Court that the Thackeray faction had no right to hold such a rally. He said that the issue that could have been considered was whether the permission was granted in accordance with law or not. “If a permission is rejected, it is a matter of injury. Where is the right?” Sathe, adding that the BMC had not acted arbitrarily by refusing permission to Shiv Sena and granting to others, they had refused permission to all because of law and order situation.
“The right is to assemble peacefully and lawfully and not to hold a rally. That right is not ascertained in the petition” Sathe argued.
Sathe argued the State Government’s resolution of 2016 which enlisted the 45 days when non-sporting events could be conducted on the Shivaji park playground. Citing an example that a local school near Dadar had been granted permission to use the ground for their school function and that had been specifically recorded in the petition, Sathe said that there was no such mention for Shiv Sena’s rally.”The GR grants permission was for Dussehra rally and not Shiv Sena’s Dussehra rally” Sathe said.
On his part, Senior Advocate Janak Dwarkadas, appearing for MLA Sarvankar, sought to give a new dimension to the litigation, saying that hearingsn on the petition be stayed till the issue of “who represents the real Shiv Sena” is resolved either by the Supreme Court or the Election Commission of India. Sarvankar claimed that Thackeray’s faction :is misleading and misrepresenting facts” before the Court as they do not belong to the real Shiv Sena political party. In his intervention application, Sarvankar stated, “As on date, there exists a dispute on who represents the real Shiv Sena and the issue is pending before the Election Commission of India and also the Supreme Court”. The court after hearing all parties rejected the intervention application by Sarvankar and allowed the Thackeray faction’s petition.
Given that the Sena was founded at Shivaji Park in 1966, the party has had an emotion attachment to this ground, Barring an exception in 2005 when the party was forced to cancel its rally owing to very heavy rains, the Sena has unfailingly held dussehra rallies at the Shivaji Park every year since its formation 46 years ago.
