Body Building Competition A Secular, Neutral Activity; Won't Aggravate Differences Between Shiv Sena Factions: Bombay High Court

A division bench of Justice Sunil B. Shukre and Justice M. W. Chandwani, while quashing Kalyan-Dombivli Municipal Corporation’s (KDMC) communication withdrawing the permission, held:

“A Body Building event is, on the other hand, about positivity; about health, about strength, energy and vigour; about spirit of competition. It is something in which any one can participate, irrespective of his caste, creed, religion or political affliation. In a way it is a secular and neutral activity and also an activity which promotes overall welfare of the society. Therefore, such an activity cannot be considered to be an activity which aggravates the existing differences between two political parties”.

The KDMC had granted permission to Vijay Jagannath Salvi to organise a bodybuilding competition at Late Jayanta Nathu Devlekar ground on January 11. When it was granted the code of conduct prescribed by the election commission was already in force. The KDMC on January 17 cancelled the permission on ground of the code of conduct. The communication did not mention that the earlier permission was wrong. 

Advocate for the KDMC submitted that the permission was erroneously given earlier and now has been corrected. The court rejected the contention, observing the ground is not mentioned in the communication revoking permission. 

"It is well settled that what is not stated as a reason or ground for taking a decision cannot be supplied later on by way of affdavit-in-reply or as a submission made to the Court," said the bench.

Even if it is assumed that permission granted can be cancelled on ground of the code of conduct, the court said that the communication is still wrong as the code of conduct does not impact the bodybuilding competition, a sport “pure and simple, and not an event arousing public feelings or fanning public sentiments”.

Under Clause 1 of General Conduct in the Model Code of Conduct issued by the Election Commission of India, activities aggravating existing differences, or creating mutual hatred or causing tension between different castes and communities, religious or linguistic are prohibited.

Advocate R. S. Datar for the petitioner submitted that a bodybuilding competition is not prohibited as it would not lead to aggravating the differences between different groups.

Advocate A. S. Rao for the KDMC submitted that there are already two factions of the Shiv Sena which are at loggerheads and the bodybuilding competition will aggravate the differences between these two factions. The court was told that the event is being organised by Shivsena Shakha (Uddhav Balasaheb Thackeray) of Kalyan-Murbad District.

The court agreed with the petitioner’s submission and said that organising a sports event like body building competition cannot be considered as aggravating existing differences.

“It is only those acts which cause annoyance to other group or which tend to insult or humiliate other group or which spread falsehood or canards or which infame religious or communal feelings or which praise one group or community and denigrate other group or community on the ground of caste, religion, community or language would fall within the mischief … A Body Building event does not, however, fall in any of these categories of acts, which are per se obnoxious; unpleasant; avoidable; even illegal and negative in every sense of the term,” the court held.

The court said the concerned officer of KDMC has not explained the nature of the alleged differences (as contemplated in the Clause 1 of the chapter General Conduct) between the two factions of Shivsena. “In these circumstances, we fnd that the information possessed by the offcer is his ipse dixit; an unfounded belief; a mere hunch and hence is not something which is in the nature of existing differences as contemplated under Clause 1 of Chapter “General Conduct”.”

The court further said that the communication has been issued without giving any opportunity of hearing to the petitioner, who is a member of the Shivsena party.

“Such abrupt, sudden and one sided cancellation of the permission is arbitrary, to say the least. After all, one must fathom that the organizer has gone ahead with making preparations, issuing invitation cards and thereby incurring some expenses in the matter after having received the permission. The invitees to whom the invitations have been sent may also have booked their reservations for travel and accommodation,” the court held.

The court said that the KDMC should have issued a show cause notice to the organiser and given it the opportunity to hear. "In the circumstances, we find that the impugned communication is arbitrary, bad-in-law and deserves to be quashed and set aside," it added.

Case no. – Writ Petition No. 892 of 2023

Case Title – Vijay Jagannath Salvi v. Kalyan Dombivali Municipal Corporation and Anr.

Citation: 2023 LiveLaw (Bom) 70