Maharashtra Govt Compelled to Withdraw Sec 144 Against Barsu Refinery Protesters, Residents

Refusing to gag protesters and residents from Rajapur over the #Barsu refinery protesters, Justices Revati Deore and Sharmila Deshmukh who were  hearing a petition from eight agriculturalists and protesters had petitioned the Bombay High Court against the prohibitory orders externing them from entering the Rajapur Taluka from April 21 to May 31. As soon as the petition came up for hearing yesterday, the Maharashtra government said it was withdrawing the orders! Senior counsel Mihir Desai and Vijay Hiremath appeared for the petitioners.

Petitioners, situated where protests against the Barsu refinery have been growing stated that the prohibitory orders coercive and an abuse of Section 144 which is at best a temporary provision; on February 12, a local journalist with Mahanagar Times had been brutally killed in the district for allegedly reporting on the refinery and mounting protests against it.

Orders dated April 22 and 25 issued by the Tehsildar, Rajapur on orders of the Maharashtra government under Section 144(2) of the CRPC prohibiting entry of local residents –farmers and agriculturists-- from entering into Taluka Rajapur for a period between April 21 and May 31, 2023 have been withdrawn by the Maharashtra government after eight petitioners petitioned the Bombay High Court. The hearings took place yesterday and today.

Orders were challenged before the Bombay High Court. Eight petitioners who say they have been collectively involved in supporting the village against the proposed location of the Ratnagiri Refinery Petrochemicals Ltd    which is located Bambulwadi, Rajapur Tehsil. The proposed refinery to which there has been a spirited opposition is supposed to consume the land presently with the villages of Kashingewadi, Sagve, Vilye, Dattawadi, Palekarwadi, Katradevi, Karivane, Chouke,     Nanar, Upale, Padve, Sakhar, Taral and Gothivare in Rajapur taluka of Ratnagiri district.

The petitioners, Amol Bole, Nitin Jathar, Pandurang Joshi, Eknath Joshi, Narendra Alias Appan Joshi, Vaibhav Kolvankar and Kamlakar Maruti Gurav residents of Rajapur, Ratnagiri district with some also staying in Mumbai. They have claimed that both their freedom of movement, right to livelihood and freedom to protest are affected by these orders, petitioners claim. Through the orders they were not simply prohibited entry but “banned from posting any post, picture, video on social media which may cause confusion and which may incite a law and order situation in the area.” There was an implicit warning (threat) in the orders to the effect that any failure to abide by the aforesaid conditions will lead to prosecution under Section 188 of the IPC.

Shockwaves ran across Maharashtra at the brutal murder of Shashikant Waghmare a journalist covering the protests at the refinery sire. Media had reported that for two years now, Warishe had been regularly covering issues faced by residents in connection with the setting up of the Ratnagiri refinery and petrochemicals factory.  “He (Waghmare) has been constantly writing about the refinery and the concerns that the villagers had about the project. He wrote extensively on the land acquisition fears of the villagers as well as the concerns of environmentalists,” Sadashiv Kerkar, the editor-in-chief of Mahanagari Times, a  Mumbai- based paper, told The Indian Express.

The immediate trigger for the murder was an article titled ‘Photo of criminal on banner alongside PM, CM and DCM claim farmers protesting against refinery’, where Warishe alleged that Pandharinath Amberkar was a criminal.According to The Indian Express, Amberkar, a real-estate broker, has a history of run-ins with with persons opposed to the setting up of a refinery and petrochemicals factory. In 2020, activist Manoj Mayekar was grievously injured after allegedly being hit by Amberkar’s SUV. Mayekar was in a Kolhapur hospital for two weeks. More recently, Amberkar also assaulted an activist in the court. Police inspector Janardan Parabkar of Rajapur police station told The Indian Express: “Including this murder case, there are three more FIRs registered against him”.

In the present petition before the Bombay High Court petitioners have stated that around January2022, the then chief minister of  Maharashtra wrote a letter to the Central Government proposing a new project side place at Barsu-Solgav-Devache Gothane- Shivane Khurd-Dhopeshwar –called as Barsu Solgav Panchkroshi. It is due to this letter that once  again, villagers had to renew their protests in the area says the petition. Protests intensified in the months of February and March 2023 leading to the imposition of prohibitory orders. Petitioners have been ordered to stay out of their villages and home towns.

Stating that the prohbitory orders are are illegal, mala fide and violate Articles 14, 19 and 21 of the Constitution of India, 1950 and therefore ought to be quashed and set aside. Further, the orders are vaguely worded and therefore can be easily used to harass the Petitioners. It is a letter dated April 21 issued by the Police Inspector, rajapur police station that had led to the orders being issued and details thereof are not available with the aggrieved citizens hence violating settled principles of natural justice since the petitioners were only exercising their fundamental right to protest the proposed Barsu Refinery and Petrochemicals, refinery project based in Taluka Rajapur.

Amol Bole, first petitioner is a resident of Shivne Khurd, taluka Rajapur, Ratnagiri district having been brought up there and engaged in farming. His family is settled in Shivne Khurd and his children are enrolled in village schools there. The second petitioner, Nitin Jathar, is a citizen of India residing in Mumbai and owns agricultural land in Taral village of the same taluka and district from from which he earns his livelihood and is engaged in mango cultivation. He alternates his life between Mumbai and Taral to look after activities necessary for the mango cultivation. Prahlad Joshi the third petitioner resides at Goval Khalchiwadi in Rajapur taluka where he resides with his mother, busy in the occupation of farming. Similarly the other five petitioners are also farmers and residents of the area. More than anything else it will impact on the livelihood of petitioners and hundreds of other families. The proposed location of the Refinery would severely impact farming activities on which the lives of the Petitioners are dependent, thereby violating their right to “practice any profession, or to carry on any occupation, trade of business” guaranteed under Article 19(1)(g) of the Constitution of India, 1950.

Petitioners, like dozens of other residents have been part of peaceful protests ahead of a survey for the proposed petrochemical refinery project in the area namely the Ratnagiri Refinery and Petrochemical in exercise of their right to freedom of speech and expression under Article 19(1)(a), to assemble peacefully and without arms under Article 19(1)(b) and to move freely throughout the territory of India under Article 19(1)(d).

By issuing orders under section 144 (2) of the code of Criminal Procedure, 1973, are trying suppress their freedom of speech and expression to assembly peacefully without arms and also to move freely throughout the territory as guaranteed by Articles 19(a) (b) and (d) under the Constitution of India. The Petitioners state that they are entitled to exercise their rights peacefully and non-violently which they have been doing and exercising of such rights will in no way hamper the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency, or morality, or in relation to contempt of court, defamation or incitement to an offence falling under the restrictions provided under Article 19(2) of the Constitution of India, 1950.

Hence the petitioners have prayed for a quashing and setting aside of these orders.

Legally, by not even hearing the petitioners, the issuance and execution of these orders is in violation of fundamental rights and legal provisions. Such executive diktats are bad in law and have been passed without hearing the Petitioners, and the said orders will deprive the Petitioners of their the livelihood and residence of the Petitioners for more than a month.

As per settled law, a bare reading of Section 144 would indicate that powers under Section 144 Cr.P.C is of a temporary nature, to be exercised in urgent situation of imminent danger, where immediate and speedy remedy is required which is missing in the present case as the prohibition from entry in this case extends for a period of more than one month;           

Petitioners have also argued that it is settled law there are various safeguards which have been read into the powers of governments under Section 144. One such safeguard is that the power can be exercised ex parte only when the emergency is sudden and the consequences are sufficiently grave. Mere possibility of danger is not sufficient to invoke the powers under Section 144 CrPC.

The Supreme Court in Madhu Limaye and Anr vs Sub-Divsional Magistrate held that restrictions on the freedoms can only be imposed on ground of maintaining public order and not on grounds of any law and order problem. The blanket ban on the Petitioners from entering into Rajapur Taluka which condition is excessively prohibitory and infringes their rights under Articles 14, 19, 21, Citing another precedent in their favour, petitioners have stated that the Bombay High Court, in Parshuram Patil and Another v. State of Maharashtra, held that under Section 144(2) of the Cr.Pc. a person cannot be externed from his native place and when such an order is issued it affects fundamental rights under Articles 19 and 21 of the Constitution. In another case, Himmat Lal Shafi v/s Commissioner of Police Ahmedabad, the Supreme Court held that merely because of some untoward incident might have taken place in the past cannot be a ground for not granting permission to hold a public meeting.

The copy of the petition may be read here.