Bombay High Court grants permission to Uddhav Thackeray faction of Shiv Sena to hold Dussehra rally at Shivaji Park

The Bombay High Court on Friday directed the Brihanmumbai Municipal Corporation to grant permission to Uddhav Thackeray-led faction of the Shiv Sena to hold its annual Dussehra rally at Shivaji Park in Dadar, Mumbai this year. .A bench of Justices RD Dhanuka and Kamal Khata quashed an order passed by the Brihanmumbai Municipal Corporation (BMC) refusing permission to hold the rally. "This unjustified manner of taking decision, is certainly not a bona fide decision of the Municipal Corporation," the Court said.The Court has granted permission to Shiv Sena to hold the rally at Shivaji Park between October 2 to 6, 2022. The Court clarified that police was at liberty to record the entire event and in the event there was any untoward behaviour, the same can be a ground for refusing permission the next year. The Bench observed that BMC could not explain why they did not consider the application between the period of August 22 and September 21, 2022. "In our view, the impugned order passed by the Municipal Corporation clearly shows abuse of its power whilst rejecting the applications filed by the petitioners merely on the grounds that there was another application filed by the applicant and on that account there will be a law and order situation. ...We are satisfied that in this case, the Municipal Corporation has misused its powers by its decision of refusing the application for granting permission on a flimsy ground and that to, after a period of four weeks from the date of receipt of the application and close to the Dusshera festival." the order recorded. .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. The rally was not held in 2020 and 2021 due to the COVID-19 pandemic.The plea pointed out that in 2022, as is procedure, the party applied to BMC on August 26, 2022 for permission to hold the rally on October 5, 2022, however, the same was not granted despite lapse of more than a month. This compelled the petitioner to approach High Court for appropriate directions.After the petition was filed before the High Court, the BMC took a decision rejecting the application. Meanwhile, the Eknath Shinde faction through MLA Sada Sarvankar filed an intervention application opposing the petition. When the matter was taken up for hearing on Friday, advocate Aspi Chinoy for Thackeray faction argued that Shiv Sena has been conducting its annual Dussehra Melawa (Rally) at the Shivaji Park since 1966.He argued that Shiv Sena has a right to hold the Dussehra melawa (rally) as a matter of practice in the government resolution. Chinoy contended that rejecting an application filed by Shiv Sena because 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 recognized by way of practice, since they have been holding it since 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 said that the Thackeray faction has no right to hold such a rally.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 remarked. Sathe emphasized that 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 also pointed out the government resolution of 2016 which enlisted the 45 days when non-sporting events could be conducted on the Shivaji park playground. Sathe gave 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. 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. .Senior Advocate Janak Dwarkadas, appearing for MLA Sarvankar, sought a stay on the hearings of the matter 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."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 intervention application filed by Sarvankar said.The Court after hearing all parties rejected the intervention application by Sarvankar and allowed the Thackeray faction's petition. .[Read order]