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Synopsis

A Division Bench of the Bombay High Court comprising of Justice R.D Dhanuka and Justice Kamal Khata, dismissed an interim application of Sada Sarvankar, and allowed the Uddhav Thackrey-led Shiv Sena to hold a rally on 05.10.2022 at the Shivaji Park, Mumbai.

The Court rejected the argument of Sada Sarvankar that the petitioner had suppressed material facts of who the real Shiv Sena is and litigations pending before the Supreme Court and Election Commission of India. The court in its order stated that the applicant does not have a locus standi, and that the court cannot decide the issues that are pending before the Supreme court and the Election Commission of India.

Senior Advocate Aspi Chinoy argued before the court that Shiv Sena has been conducting rallies at Shivaji Park every year since 1966 except during COVID-19 and the municipal corporation has been granting permission to Shiv Sena every year. He also argued that only because an application is made by another person it cannot be a ground for rejecting the application of Shiv Sena. Further, he argued before the court that it is the right and has been a tradition for Shiv Sena to hold the Dusshera rally. Further that the application cannot be rejected on a flimsy ground of law and order situation.

Senior Advocate Milind Sathe representing the municipal corporation argued that there is no statutory right granted to the petitioner and that there is no legal injury to the petitioner.

The court while setting aside the order of the municipal corporation noted that there was no explanation given as to why the application of the petitioner was not decided in four weeks. Further, the municipal corporation rejected the application of the petitioner on 21st September when the present petition was filed when the corporation was aware that notice will be served to them. The court noted that “this unjustified manner of taking a decision, is certainly not a bona fide decision of the Municipal Corporation.”

The court further also made a note of the fact that:

“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. It is not the case of the Municipal Corporation, that in the past several decades, there was any law and order situation while conducting the Dussehra Melawa by the Petitioners.”

The court while allowing Shiv Sena to hold a rally stated that the police is allowed to make a video recording of the function and if there is any law and order situation because of the petitioner, then it will be a ground for considering the petitioner's applications in future.

 

Case Title: Shiv Sena & Anr. vs. Municipal Corporation of Greater Mumbai & Anr.