04-06

10.11.2020
Ct. No.16
pg.
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
(Through Video Conference)

WPA 9184 of 2020

Ms. Anasua Bhattacharya

Vs.
State of West Bengal & Ors.
with
WPA 9209 of 2020

Ajay Kumar De
Vs.
Government of West Bengal & Ors.
with
WPA 9256 of 2020

Doctors for Patients & Anr.

Vs.
The State of West Bengal & Ors.

Mr. Rachit Lakhmani

Mr. Indrajeet Dey
Mr. Kushal Das
… For the petitioner in WPA 9184 of 2020

Mr. Bikash Ranjan Bhattacharjee

Mr. Sabyasachi Chatterjee
Ms. Ankani Biswas @ Ankan
Mr. Pintu Karar
… For the petitioner in WPA 9209 of 2020

Mr. Abhijit Chatterjee

Mr. Sayantan Basu
Mr. Subhabrata Das
Mr. Tanmoy Ray
Mr. Abhiroop Dhar
… For the petitioners in WPA 9256 of 2020

Mr. Kishore Datta, Ld. AG

Mr. Abhrotosh Majumdar, Ld. AAG
Mr. T.M. Siddiqui
Mr. Sayan Sinha
… For the State in WPA 9184 of 2020
& WPA 9209 of 2020

Mr. Kishore Datta, Ld. AG

Mr. Sayan Sinha
… For the State in WPA 9256 of 2020
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Mr. N.C. Bihani

Ms. Papiya Banerjee Bihani
… For the respondent no.4

Mr. Anil Kumar Gupta

Mr. Rahul Arya
Mr. Yash Vardhan Deora
Ms. Easha Manchanda
Mr. Yogesh Kumar Sharma
… For the Intervenor

These matters pertain to firecrackers and the

celebrations in the remainder of the festive season. A third

petition has been filed by a trust and a doctor representing

such trust.

In a supplementary affidavit filed in the third

petition, several measures have been indicated for the

State to adopt, both to control the use and display of

firecrackers during the festive season and for controlling

processions and crowd during the Chhat Puja. Several of

the petitioners refer to newspaper articles published, inter

alia, in the Telegraph, Times of India and Anandabazar

Patrika indicating that firecrackers are available and

journalists or other persons posing as intending

purchasers have been assured of guaranteed supply,

whatever may be the order passed by Court or measures

taken by the State to prevent the sale or purchase thereof.

Several pockets in the city, primarily around the

Burrabazar and Chandni Chowk areas, have been specially

referred to in the newspaper articles, where traders

apparently engaged in selling other wares may actually be

selling firecrackers.
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It is made clear that no effort should be spared by

the State, particularly the police, to take immediate

appropriate steps against anyone seeking to sell or

purchase firecrackers or the like or any such material

which emanates smoke and has the propensity to pollute

the air. The risk is far too great for the matter to be left to

chance and the State has assured that every step will be

taken to implement the order of Court and ensure that

there is no bursting or display or the like of firecrackers

and similar items during the festive season, including at

the Kali Puja and Diwali, Chhat Puja and Guru Nanak’s

birthday celebrations.

At the Court’s suggestion that the District

Magistrates and Superintendents of Police of every district

and the Commissioner of Kolkata Police be made

personally accountable if the order for a complete ban on

the sale, purchase and use of firecrackers and the like is

breached, it is submitted on behalf of the State that since

the order has been passed, it is the obligation of the State

to ensure due compliance thereof and it may not be

necessary for the Court to either set up any special task

force for the purpose or make named officials responsible

or liable. The State assures the Court that measures have

already been taken to ensure the complete implementation

of the order and no effort would be spared to see that the

air quality in the State is not polluted and the relevant

order carried out without any breach.

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As for the Chhat Puja, several suggestions have

been made in the supplementary affidavit filed in the third

petition. Indeed, several suggestions have been put forth

on how to implement the prohibition of firecrackers, in the

same affidavit. According to the State, the measures

suggested in the third petition or the supplementary

affidavit therein may not be practical and if specific

directions in such regard were to be issued to the State, it

may be difficult to enforce the same on the ground.

The State says that it intends to advise Chhat Puja

revellers to restrict the number of persons visiting the

water bodies; to ensure that the revellers travel to the

nearest water body available so as to avoid long

processions down the streets; to see that the Covid protocol

is maintained and there is no congregation of large

numbers of persons at any place; and, the use of

firecrackers during the Chhat Puja celebrations is

completely prohibited.

Ordinarily, in matters of the present kind, the

Court has to yield to the executive. It is the executive which

ought to devise measures to take care of the myriad

situations which may arise. It is elementary that the

executive would act for the greater good and in public

interest and, in such course, there may be a minority

which may be adversely affected.

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Accordingly, in view of the submission made on

behalf of the State, only some broad guidelines regarding

the Chhat Puja are indicated:

(i) In the pockets in the State where Chhat Puja

is observed, particularly in and around the cities of

Kolkata, Siliguri, Durgapur and Asansol, the State

should make repeated announcements in the

relevant areas requesting no more than two persons

per family to attempt to visit any water body this

year and for the rest of the family to observe Chhat

Puja from home or in and around home.

(ii) Long drawn processions should not be

allowed and, in any event, the use of music, other

than the dhak or small band, should not be

allowed. Once the revelry that goes with blaring

music is arrested, the processions are expected to

be less.

(iii) Persons intending to travel to a water body

should come in vehicles upon maintaining the

Covid protocol and without jostling with each other

to get a toehold in the vehicle. The wearing of masks

will be mandatory at all stages.

(iv) Even when a vehicle, which may be a small

tempo or lorry or the like comes to a water body or

near the same, all persons should not be permitted

to alight or go to the water body. Representatives

from each vehicle, as may be deemed fit, should be

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allowed to go to the edge of the water body and

perform the rituals in an ecologically friendly

manner.

As far as Subhas Sarovar and Rabindra Sarobar

are concerned, in view of the subsisting order of the

National Green Tribunal, these water bodies will be totally

out of bounds for Chhat Puja celebrations. However, as the

State has indicated that there is a petition of KMDA before

the Supreme Court in such regard, ultimately it is the

order of the Supreme Court that will prevail. However, if no

order is passed on KMDA’s petition by the Supreme Court,

the National Green Tribunal’s order has to be implemented

without exception.

The Kolkata Municipal Corporation and the local

municipal bodies should depute representatives in the

relevant localities for spreading awareness, the need to

exercise self-restraint and to observe the Chhat Puja on a

low-key. Such measures should be undertaken all over the

State where Chhat Puja is observed.

Apart from the above, particularly since local trains

are due to resume on November 11, 2020, the State should

consider whether it may be in the best interest of all to

suspend the operation of local trains on November 14 and

November 15, 2020 and on the day of Jagadhatri Puja or to

manage the running of trains in such manner that people

do not find it convenient to come to the city of Kolkata or

travel to other places of interest on Kali Puja day or visit

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Chandannagar on Jagadhatri Puja day. The State is left

free to make appropriate arrangements with the railway

authorities in such regard. It may be remembered that the

lack of local trains during the Durga Puja celebrations was

one of the principal reasons which avoided crowding

during such time.

Both the Kolkata Police and the State police should

put up telephone numbers on their websites and on

hoardings and boards prominently displayed across the

city and the State, indicating effective numbers where

complaints regarding the bursting of crackers may be

made. Such numbers should be attended to so that the

complaints are immediately addressed without the identity

of the complainants being revealed. The relevant numbers

should be put up on the website and display boards by

November 12, 2020.

In the event the State finds any difficulty in

controlling crowds or in the implementation of this order,

the State is reminded of the authority at its disposal

including the power under Section 144 of the Code of

Criminal Procedure, 1973 to restrict the number of persons

in any particular area. Indeed, it is hoped that the entire

State machinery is geared up to implement the orders

passed in such regard for the greater good of the citizens

and to ensure that the quality of air is not adversely

affected by the acts of a few that may imperil lives.

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The matter will appear before the appropriate

Bench a week after the vacation for reports to be received

from the Commissioner of Police, Kolkata and from the

Director General of West Bengal Police.

Urgent photostat certified copy of this order, if

applied for, be given to the parties, upon compliance of

necessary formalities.

(Sanjib Banerjee, J.)

(Arijit Banerjee, J.)