Kerala High Court
Dr.S.V.Mohammed Haris vs The District Collector Kannur And ... on 8 September, 2020
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 08TH DAY OF SEPTEMBER 2020 / 17TH BHADRA, 1942
WA.No.959 OF 2020
[AGAINST THE JUDGMENT DATED 22.07.2020 IN WP(C)NO.12935/2020(N)]
APPELLANTS/PETITIONERS:
1 DR.S.V.MOHAMMED HARIS,
AGED 62 YEARS,
S/O.KHADER KUNJI, FORSHA,
CIVIL STATION P.O.,
KANNUR -670002.
2 MASHOOD K.P., AGED 55 YEARS,
S/O.ASSU HAJI, RAMLAS, BELLAD ROAD,
KANNUR - 670001.
BY ADVS.SRI.M.SASINDRAN
SRI.I.SREEHARI
RESPONDENTS/RESPONDENTS:
1 THE DISTRICT COLLECTOR KANNUR AND CHAIRMAN,
DDMA, COLLECTORATE, KANNUR - 670001.
2 THE DISTRICT MEDICAL OFFICER (H),
KANNUR, KANNUR - 670001.
3 THE SUB COLLECTOR,
THALASSERY, KANNUR DISTRICT, PIN - 670001.
4 THE TAHSILDAR, TALUK OFFICE, KANNUR - 670001.
5 THE DISTRICT POLICE CHIEF, KANNUR - 670 001.
6 THE KANNUR MUNICIPAL CORPORATION, KANNUR,
REPRESENTED BY ITS SECRETARY, PIN - 670 001.
W.As.959&975/2020 2
R1 TO R5 BY SRI.RANJITH THAMPAN,
ADDL.ADVOCATE GENERAL
SRI.P.NARAYANAN, SENIOR GOVT. PLEADER
R6 BY ADV. SMT.M.MEENA JOHN, SC
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 06-08-
2020, ALONG WITH WA.975/2020, THE COURT ON 08-09-2020
DELIVERED THE FOLLOWING:
W.As.959&975/2020 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 08TH DAY OF SEPTEMBER 2020 / 17TH BHADRA, 1942
WA.No.975 OF 2020
AGAINST THE JUDGMENT DATED 22.07.2020 IN WP(C)
NO.14222/2020(C) OF HIGH COURT OF KERALA
APPELLANTS/PETITIONERS:
1 BALAMANI P., AGED 68 YEARS,
W/O.LATE BALAKRISHNAN, FLAT NO.6 B,
Z PLUS APARTMENT BUILDINGS, KANNUR AMSOM,
KANNUR TALUK, KANNUR DISTRICT.
2 ABDUL RASHEED K., AGED 46 YEARS,
S/O.ABDUSSALAM, FLAT NO.9 C,
Z PLUS APARTMENT BUILDINGS, KANNUR AMSOM,
KANNUR TALUK, KANNUR DISTRICT.
BY ADVS. SRI.M.SASINDRAN
SRI.I.SREEHARI
RESPONDENTS/RESPONDENTS:
1 THE DISTRICT COLLECTOR AND CHAIRMAN,
DISTRICT DISTRICT DISASTER MANAGEMENT
AUTHORITY, KANNUR DISTRICT-670001.
2 THE DISTRICT MEDICAL OFFICER (HEALTH),
KANNUR-670001.
3 THE SUB COLLECTOR,
THALASSERY, KANNUR DISTRICT-670001.
W.As.959&975/2020 4
4 THE TAHSILDAR, TALUK OFFICE,
KANNUR, KANNUR DISTRICT-670001.
5 THE DISTRICT POLICE CHIEF,
KANNUR, KANNUR DISTRICT-670001.
6 THE KANNUR MUNICIPAL CORPORATION,
KANNUR, REPRESENTED BY ITS SECRETARY,
KANNUR DISTRICT-670001.
R1 TO R5 BY SRI.RANJITH THAMPAN,
ADDL.ADVOCATE GENERAL
BY ADV.SRI.P.NARAYANAN, SENIOR GOVT. PLEADER
R6 BY ADV. SMT.M.MEENA JOHN, SC
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 06-08-2020,
ALONG WITH WA.959/2020, THE COURT ON 08-09-2020 DELIVERED
THE FOLLOWING:
W.As.959&975/2020 5
JUDGMENT
Dated this the 8th day of September, 2020 Manikumar, CJ Instant writ appeals are filed against judgment dated 22.07.2020 in W.P.(C) No.12935 & 14222 of 2020, by which, a learned single Judge of this Court dismissed the writ petitions, observing thus:
"28. In view of the objectives sought to be achieved by the Act, 2005, the provisions of the Act shall be read harmoniously and a purposive interpretation has to be given to the provisions. During disasters, situations may arise which make it infeasible, unviable and impracticable for the Authorities under the Act to make an order of requisition in writing for procuring resources, premises or vehicles. Such situations may arise due to time constraints, due to immediate non-availability of persons or information as to the whereabouts of persons and a host of other reasons which are special to disasters and which cannot be foreseen during normal times. Therefore, it will be open to the District Authority to invoke Section 34 and procure use of amenities including buildings from any authority or person even without formal requisition and take such other steps as may be required or warranted to be taken in such situations. Ext.P3 proceedings of the respondents are therefore not liable to be interfered with.
29. The argument of the petitioners that the source of power for taking over the building is Ext.P5, cannot be W.As.959&975/2020 6 accepted. Ext.P5 is only guidelines laid down by the Local Self Government Department of the Government of Kerala. Such guidelines cannot be construed in the manner statutory provisions are construed. In the present case, Ext.P3 has been issued invoking the powers under the Disaster Management Act. An order validly made in accordance with the Disaster Management Act, 2005, cannot be interfered with even if there has been any transgression of any guidelines laid down by the Government. This is especially so when the action of the respondents cannot be treated as arbitrary, malafide or violating any statutory provision.
30. The take-over is made by the DDMA in exercise of the powers under the Act, 2005. As regards taking over of residential buildings, such course is permissible under the Act. In view of the purpose for which the take-over is resorted to, proximity of CFTC to Hospital being the prime consideration, the action of the respondents in selecting the building in question which is proximate to Kannur District Hospital, ignoring other types of buildings which are farther, cannot be found fault with. Even if the take-over is as part of capacity building measure, the seriousness of the pandemic and imminence of the requirement also justify the action of the respondents. Non-issuance of a formal requisition, selection of a residential building and urgency with which the District Authority acted, do not singularly or together, constitute malafides, as alleged by the petitioners.
In the circumstances, this Court does not find any arbitrariness, illegality or malafide on the part of the respondents in issuing Ext.P3 proceedings or in the action W.As.959&975/2020 7 pursuant thereto. The writ petitions are accordingly dismissed."
2. Facts leading to the filing of instant writ appeals are that,-
challenging Order No. DCKNR/3383/2020/DMI dated 28.06.2020 passed by the District Collector, Kannur, under the Disaster Management Act, 2005, W.P.(C) Nos.12935 & 14222 of 2020 have been filed.
3. First petitioner in W.P.(C) No.12935 of 2020 is one of the co-owners of land in which a flat complex has been constructed and he is the owner of one of the flats. Second petitioner is the builder and since No Objection Certificate has not been received so far and construction of Sewage Treatment Plant was not in order, the completion certification has not been issued by the Municipal Corporation.
4. Almost all the flats have been transferred to different persons by executing sale deeds. About eleven flats have already been finished completely and owners of the flats, who are residing elsewhere, on account of their employment, have planned to come and occupy the buildings.
5. Appellants/petitioners in W.P.(C) No.14222 of 2020 are two of the residents of a residential apartment, viz., Z Plus Apartments, situated in Kannur City. The first petitioner has been residing in Flat No. 6 B in the 6th floor of the above said apartments and the second petitioner has been W.As.959&975/2020 8 residing in Flat No. 9 C in 9 th Floor, along with his wife and 3 daughters for the last 2 years. Exhibits-P1 and P2 are the sale deeds executed by the builder on behalf of petitioners 1 and 2, transferring their rights over the respective flats, including the undivided right in the land.
6. While so, the District Collector, Kannur, first respondent in both Writ Appeals, issued order dated 28.06.2020 taking over the flat complex, for converting it as a Covid First Line Treatment Centre (CFLTC). Exhibit-
P4 in W.P.(C) No.12935 of 2020 is the Government order dated 25.05.2020, by which, CFLTC have been introduced under the Disaster Management Act, 2005, and the type of buildings, which could be taken over, has been stated therein. According to the appellants, in the type of buildings, enumerated in Clause 3 of Government order dated 25.05.2020, residential flats are not included. In Spite of that, the first respondent, without issuing any notice and even without verifying the feasibility and suitability of the building, for converting as CFLTC, has issued order dated 28.06.2020, which is on a Sunday, and on the very same day, by evening, the officers came with a huge Police force, evicted the inmates therein, and taken over the building.
7. Despite the fact that when more than 350 beds were vacant in Government hospitals located nearby, three Covid patients were immediately brought into the building, which is not completed, and not W.As.959&975/2020 9 been made hygienic. Though there was no sewage treatment plant in the building, fire NOC was issued. Action of the first respondent in issuing Exhibit-P3 order dated 28.06.2020 is absolutely arbitrary and illegal.
8. According to the appellants, the project for introducing CFLTC is a part of capacity building for accommodating Covid patients, in the event of an increase in the number of patients in the district. In Spite of the fact that there is no imminent danger or disaster like overnight flood or landslide, first respondent has taken over the residential building by issuing Exhibit-P3 order dated 28.06.2020, without prior notice.
9. Before the writ court, the Law Officer attached to the office of the first respondent, has filed a counter affidavit. The first respondent in both the appeals, who is the District Collector, Kannur, is an eo-nominee party and filing of the counter affidavit on his behalf by another person is absolutely impermissible and, therefore, the counter affidavit itself is not liable to be accepted.
10. In the counter affidavit, it was contended that a meeting was convened on 27.06.2020 in the Chambers of Additional District Magistrate, Kannur and Mr. Mashoob, 2nd appellant in W.A. No.959 of 2020, as well as the Manager of the Apartment Mr. P.V.Sandeep, participated in the meeting. It was further stated there are four Covid hospitals in which, the bed strength is 1159, and the vacant bed space as on the date was W.As.959&975/2020 10
351.Though admitted so, the counter affidavit further proceeded to say that three patients were brought to the centre admittedly near to the District Hospital, where number of beds were vacant. It was also stated that, in the meeting the 2nd appellant has stated that the flats are transferred to different owners and intimation has to be given to them.
However stating that the 2nd respondent did not furnish the address of the flat owners on the same day, on 28.06.2020 (Sunday), Exhibit-P4 order has been issued.
11. In the reply affidavit, appellants have stated that there was no such meeting on 27.06.2020 for the purpose of handing over and the 2 nd respondent has gone to the Collectorate, requesting to make payment for the hotel already acquired by the first respondent.
12. When the discussion was going, in the matter of compensation, a question was asked about the flats to be taken over, and a specific reply was given that the flats are already transferred to the owners. The above fact is admitted in the counter affidavit also.
13. Along with the reply affidavit, appellants in W.A. No.959/2020, have produced Exhibits-P6 to P10, to show that the number of buildings in the category enumerated in Government order dated 25.05.2020 [Ext.P4 in W.P.(C):12935/2020] were already available in the city.
14. There is a hotel of the 2nd appellant's family, within a reach of W.As.959&975/2020 11 500 metres, and another hotel, within another 300 metres. These hotels were once taken over by the District Collector and are the type of buildings enumerated in Exhibit-P4 Government order.
15. Appellants have further contended that out of 102 buildings, 50 of them taken over, were released. Exhibit-P11 in W.P.(C) No.12935 of 2020 is the news item published in Mathrubhumi daily dated 12.07.2020, which would show that subsequently, in collaboration with the Aster MIMS Hospital, a project has been evolved to convert different hotels as Covid First Line Treatment Centre's and, therefore, taking over of the residential complex ought to have been avoided.
16. Appellants have further stated that their right to live as owners of flats, is taken away and they are practically thrown to streets. Section 65 of the Disaster Management Act, 2005 mandates issuance of request, in writing, before taking over, and the said provision has been flagrantly violated by the first respondent, while taking over the building. Hence, W.A. No.959 of 2020 has been filed.
17. Appellants in W.A. No.975 of 2020 have stated that out of 47 flats, interior works of 11 have been completed, and in other flats, interior works are going on. According to them, almost all the flats are handed over to the respective owners.
18. Appellants further stated that the Municipal Corporation has not W.As.959&975/2020 12 issued occupancy certificate to the building, on account of non-issuance of fire NOC, and the sewage treatment plant is not constructed as per the specifications. The waste from the toilet goes to a single pit and the work of the sewage treatment plant is nearing completion. Since the appellants have no other place to reside, they have occupied the flats, after completing the interior works, as well as the household equipment. They are permanently residing in the above said flats.
19. While so, in the evening of 28.06.2020 (Sunday), a set of officers along with about 200 policemen came to the premises and directed the appellants to vacate their flats. Electricity connection was disconnected and the functioning of the lift was stopped. The appellants/petitioners in W.P.(C).No. 14222 of 2020 were directed to vacate the flats immediately. Though the appellants have requested the officers to permit them to stay there, as they have no other place to go, the officers have not heeded to their request and the appellants were directed to leave the place immediately.
20. The first appellant in W.A. No.975 of 2020, by late night, reached the house of a relative at Thalassery and in view of the present pandemic situation, the relative was initially reluctant to accommodate him, but having regard to the plight of the first appellant, provided accommodation. The first appellant is aged 68 years and there is no one W.As.959&975/2020 13 to look after him. There is no place to go also.
21. Appellants have further contended that their eviction was based on an order dated 28.06.2020 (Exhibit-P4), which states that for the purpose of converting it as a Covid First Line Treatment Centre, the building is taken over.
22. Treatment Centres are introduced and the guidelines appended to the order dated 25.05.2020, enumerate the type of buildings which could be taken over as Covid First Line Treatment Centres. As per the guidelines, the buildings are "Hostels, Hotels, Closed Hospitals, Lodges, Resorts, Ayurvedic Hospitals, Training Centres, Schools, Colleges, Auditoriums, Community Halls, buildings of the religious and community organisations." Residential flats are not included in the buildings which could be taken over for the Covid First Line Treatment Centres.
23. Appellants have further stated that perusal of Exhibits-P5 to P10 in W.P.(C) No.14222 of 2020 would show that there are number of buildings in the city, categorised in the Government order dated 25.05.2020, produced as Exhibit-P3 in the said writ petition, for taking over. They have also stated that about 102 buildings, earlier taken over by the first respondent for being converted as Covid First Line Treatment Centres, were released and taking over of residential flats is impermissible, after releasing those buildings. Exhibit-P11 news item W.As.959&975/2020 14 published in Mathrubhumi daily would also show that on 12.07.2020, the authorities concerned have decided to collaborate with Aster MIMS Hospital and to convert different hotels as CFLTC.
24. Appellants have further contended that Government order dated 28.06.2020 (Exhibit-P4 herein) is arbitrary, since it has been issued without prior notice, depriving the right of the appellants to live in the flats owned by them. Even in the case of disaster, Section 65 of the Disaster Management Act, 2005 mandates a request before proceeding to issue orders, for taking over a building. The District Collector is bound by Exhibit-P4 Government order dated 28.06.2020, more so when there are buildings available, as enumerated in Exhibit-P3, and issuance of Exhibit-
P4 order, for taking over a residential building, without assigning any reason, is absolutely illegal. Hence, the appellants filed W.P.(C) No.14222 of 2020.
25. Before the writ court, the District Law Officer, Kannur, on behalf of respondent No.1, has filed a counter affidavit, contending as under:
(a) It is not correct to say that all the purchasers have occupied the building. Only two families were there in the apartment complex that too, temporarily. The District Collector, Kannur, in exercise of powers, conferred under Sections 34 and 65 of the Disaster Management Act, 2005, had taken possession of the residential apartment building for the purpose of functioning as CFLTC. The unnumbered apartment building is located in Ward Number 3, Block 22 in RS No.1042/5 in W.As.959&975/2020 15 Kannur 1 Amsom, in Kannur Karar Desom, Kannur Taluk, Kannur District. The building with 47 flat rooms, including a common area, has been taken over by the District Magistrate and Chairman of District Disaster Management Authority, Kannur, on 28.06.2020 as per Ext.P3 order. The Tahsildar, Kannur, has taken over the building on the same day itself, as directed by the 1 st respondent and handed over the building to District Medical Officer, Kannur, to run it as a CFTC. As the district was in dire need of facilities to accommodate patients, the District Medical Officer, Kannur, took possession of the building immediately and started functioning as a CFTC. Three Covid suspected patients were admitted there and their treatment is continuing.
(b) It is further contended that Kannur District is expecting an alarming increase in the number of Covid positive cases. As more and more people are coming to the district, both from abroad and from other States, their testing, quarantine and treatment are becoming difficult.
Moreover, patients declared positive after the Rapid Anti body Test, being conducted in the Kannur Airport for all passengers, who are coming from abroad, also need to be accommodated in appropriate care centres. At present, four hospitals in Kannur district are handling Covid positive cases. It has to be noted that these hospitals should also cater to those in need of medical help due to non-Covid ailments. The Bed strength of these Hospitals and admitted positive cases as on 4.7.2020 are detailed below:
Sl. Name of Availability No. of No. of Total Remaining Remarks No. Hospital of bed positive persons bed space space patients under observa
-tion 1 DCTC 450 138 147 285 165 Anjarakandy 2 Govt.Medi- 200 8 56 64 136 cal College, Kannur W.As.959&975/2020 16 3 District 46 19 5 24 22 Hospital, Kannur 4 Govt. 53 19 21 40 13 Hospital, Thalassery
(c) First respondent has further contended that to manage the rising number of Covid positive cases, District Administration, Kannur has already proposed setting up facilities named as Covid First Line Treatment Centres (CFTCs). These buildings are situated near to designated Covid Treatment Centre, Anjarakandy, Government Medical College, Pariyaram, and Government Hospital, Kannur. The First Line Treatment Centres identified so far include Government buildings like DIET Building, Kannur, PWD Rest House, Kannur, Sports Hostel, Kannur, and Ayurveda Medical College, Pariyaram. Due to non-availability of more such Government buildings, the administration has also taken over the following private buildings -
Malabar Institute of Technology Anjarakandy, Kannur, and IRC, Pariyaram. The District Administration has also identified many buildings in the Taluk Headquarters to be converted as Covid Treatment Centres. In Kannur District, Government owned Hostel buildings are old and are in dilapidated condition. So, those buildings are not fit to be converted as Covid Treatment Centres. The "Z Plus Apartment'' is, therefore, an ideal building to be converted as Covid-19 Line Treatment Centre. If the health condition of any patient deteriorates, she/ he can be moved immediately to District Hospital, as the building is situated very near to Government Headquarters Hospital (50 meters away from Government Hospital). Moreover, we are also facing an acute shortage of Health Staff. If this building is made available for us, it can be managed with the available staff in the District Headquarters Hospital.
W.As.959&975/2020 17(d) First respondent has further contended that District Headquarters Hospital is one of the Covid Treatment Centre in Kannur, with available 46 bed space. All these were filled with Covid positive cases and later, some of the beds became vacant on discharge of patients. Moreover, total persons under surveillance (both institution and house) will come to 22861 as on 01.07.2020. Kannur Airport is receiving around 1000 passengers daily and since Antibody Test is done at Airport, around 20% of people have to be shifted to Covid Treatment Centre till their confirmatory test results come. Per day the respondents are getting 25 positive cases. This will definitely increase the load on all the hospitals. So CFTC started to be attached to each Hospital and should be very near to it.
(e) In order to immediately address pressing medical issues and to meet any shortage of medical facilities in the near future, the District Administration went in search of suitable buildings to be converted as CFTC in Kannur District near to the existing designated Covid Hospitals and the Govt. Hospitals managing the Covid patients and has identified 'Z Plus Apartments' as suitable space nearly 50 metres away from the District Headquarters Hospital to admit Covid positive case as a 1st Line Treatment Centre. This Centre itself can admit nearly 275 Covid suspected patients.
(f) The Additional District Magistrate along with Dr. Ismail, RMO, District Hospital Kannur, Lisna Puthusseri, Assistant Engineer, Kannur Corporation, Biju P.V., Assistant Executive Engineer, Kannur Corporation, C.V. Prakashan, Tahsildar, Kannur have inspected the 'Z Plus Apartment' building on 25.06.2020. The Security Person present there, with the permission of the petitioners, opened the Gate and showed all the rooms in the 2nd and 3rd floors of the building. Again, on 26.07.2020, a team attached to the office of the District Medical W.As.959&975/2020 18 Officer, Kannur, along with the Tahsildar, Kannur, and the Deputy Tahsildar, Kannur, after informing the petitioners, visited the Apartment Complex and inspected some of the flat rooms. The building is an unoccupied building and two families, temporarily residing there, were shifted to their residence before taking possession of the building. Only after their inspection, it was decided to conduct a meeting in the Chamber of Additional District Magistrate to discuss the further action.
(g) It was further contended that the averments of the petitioners that they did not have any notice of taking over before issuance of order dated 28.06.2020 is absolutely incorrect. The contention that the owners of the apartments were not given sufficient time to remove their valuables in the buildings is not correct and denied. It is further contended that following the visit of the District Administration and the inspection, a meeting was convened in the Chamber of the Additional District Magistrate, Kannur, on 27.06.2020, to discuss the taking over of this building. Second petitioner Mr. Mashood, the builder and P.V. Sandeep, the Manager of the Apartment were present in the meeting and they had agreed to take over this apartment immediately, to be used as a Covid First Line Treatment Centre. The Builder, the 2 nd petitioner in the writ petition, had not raised any objection in the meeting regarding the taking over of the apartment. However, he stated that many of the flats were already registered in favour of individual owners and some of them are residing abroad. He also promised in the meeting to make available the details of individual owners of the flats. But, he has not furnished any details as promised.
(h) Respondent No.1 has taken over the building, by exercising the power vested on him under Sections 34 and 65 of the Act. The order dated 28.06.2020 does not violate Article 300 A of the Constitution. The District Administration has already taken over 102 buildings, including lodges, for accommodating persons coming to Kannur from W.As.959&975/2020 19 other parts of India and abroad. The keys of all these buildings were returned to the owners of the buildings consequent to the decision of the Government to have Home Quarantine for expatriates returning to the State. Many of those buildings are now functioning as paid quarantine centres. Hence, taking over these buildings after evicting quarantine persons is a difficult task. The non-availability of other spacious buildings near the Covid Hospitals that can be made functional as First Line Treatment Centres is a matter of grave concern which led the District administration to take over the present building.
(I) To substantiate the above said contentions, the first respondent has relied on the decision in State of Kerala v. Biju Ramesh (2016 KHC 436), wherein it is held that Section 65 does not indicate that the said power is to be exercised by the authorities only when actual disaster has happened. The power to requisition of resources can be exercised for the purpose of prompt response or when it is needed or likely to be needed for the purpose of rescue operations. The first respondent has also relied on the decision in Syndicate Bank v. Ramachandran Pillai & Others [(2011) 15 SCC 398] and sought for dismissal of the writ petition.
26. Writ court, on evaluation of the pleadings, submissions, and considering the statutory provisions under the Disaster Management Act, 2005, dismissed the writ petitions by a common judgment dated 22.07.2020, as stated above.
27. Mr. M. Sasindran, learned counsel for the appellants in both the appeals, submitted as under:
W.As.959&975/2020 20A. Writ court ought to have held that the procedural requirement enumerated in Section 65 of the Disaster Management Act, 2005 is violated and, therefore, the order is illegal. When the statutes specifically prescribe issuance of a requisition in writing before proceeding to pass orders of taking over, the first respondent is bound to follow the procedure. Such a procedure is prescribed for the reason that by taking over the building, if it is residential, it is taking away the fundamental right of the citizen. The failure on the part of the first respondent is, therefore, fatal. Learned counsel for appellant submitted that interference of this court is called for when such a procedure is violated.
B. Every action of the State should conform to the principles of natural justice. The spreading of Covid-19 pandemic is not a disaster, which has come overnight, on account of a flood or landslide. The procedure or provisions in the Disaster Management Act, 2005, if at all permits to act without notice, it could be only in such a disastrous situation and such power cannot be brought in, in the case of a capacity building or meeting a situation which may gradually arise. Therefore, when an order, detrimental to the interest of a citizen, is issued, the first respondent is bound to issue notice, otherwise the order would be unfair. According to the learned counsel, law has to be applied in the contentions of the situations prevailing from March, 2020.
C. When the Government issues an order prescribing guidelines for exercising a statutory power that is binding on the subordinate authorities. The Executive Officers, exercising such power, should not act arbitrarily or capriciously. In Spite of such a guideline, in utter disregard to the same ,order dated 28.06.2020 has been issued.W.As.959&975/2020 21
D. A lady aged 68 years, has been thrown to streets in the evening on a Sunday. She had no place to go and is now at the mercy of a relative. They are reluctant to retain the first appellant therein on account of the present situation. The right to life of the appellants under Article 21 of the Constitution of India is infringed, and the said right not to be deprived of the property saved by authority of law guaranteed under Article 300 A of the Constitution of India, are flagrantly violated.
E. Reliance on Section 34 of the Disaster Management Act, 2005, for justifying order dated 25.05.2020 is a misplaced one. Section 34 is a general provision, in the event of threatening disaster situation or disaster. Writ court failed to take note of the fact that there is a specific provision for taking over the premises under Section 65 of the Disaster Management Act, 2005, and, in the case on hand, the situation envisaged in Section 34 is not present.
F. Taking over the building was for capacity building and not for meeting any threatening disaster occurred over night like flood or landslide etc. When Section 65 of the Act, 2005 is a specific provision dealing with taking over of the buildings, that specific provision will prevail. When the specific provision mandates issuance of a requisition in writing, taking over of the building can only be in such a manner.
G. It is well settled that when the Statute prescribes a thing to be done in a particular manner, it should be done in that manner only. When the action of the authority would result in deprivation of the fundamental right, following the procedure prescribed in the statutes becomes more compulsory. When Covid-19 pandemic has been there for the last about 4 months and the Government W.As.959&975/2020 22 were preparing for meeting the situation of worsening of the pandemic, taking over of the building without notice and without following the procedure is nothing, but arbitrariness and unreasonable.
H. Order dated 25.05.2020 envisages a Covid First Line Treatment Centre and for that purpose, guidelines are prescribed. The CFLTC is not the term used in the statute and it is the creature of the Government order. When the first respondent followed one part of the Government order that is, introduction of Covid First Line Treatment Centres, the later part of the same order is also applicable to the respondents, otherwise it would amount to approbate and reprobate, which is not permissible. The arbitrary action on the part of the first respondent has to be interfered with by the writ court.
I. The principle reiterated in the impugned judgment that sacrifice in the interest of individuals for the sake of family etc, is true but, there should arise a situation for such sacrifice. When the sacrifice is not needed, the appellants cannot be asked to suffer by taking away their right to life in their own house and it cannot be said to be for the welfare of the society. When the Government enumerates the buildings, excluding the residential buildings, and when the requirement can be met by taking over other buildings, the principle reiterated by the learned single Judge is not applicable in the case on hand.
28. Referring to the observation of the learned single Judge at the time when the interlocutory application for stay was taken up, the manner in which the flat owners were directed to be vacated, and taking support W.As.959&975/2020 23 from the judgment of the Bombay High Court in Riddhi Agrawal & Ors. v.
State of Maharashtra [Writ Petition (ST) No.5579 of 2020 and connected cases], learned counsel for the appellants submitted that principles of natural justice ought to have been followed.
29. Learned counsel for the appellants further submitted that Sections 34 and 65 of the Disaster Management Act, 2005 have to be given effect to, in the context of facts and circumstances of the case.
30. Placing reliance on the unreported judgment 22.07.2020 of the Bombay High Court in Riddhi Agrawal's case (cited supra), learned counsel for the appellants further submitted that when the Municipal Council, Ambernath, addressed a communication to the builder therein for his response regarding requisitioning the flats in the premises, the builder informed the Municipal Council that the flats have been sold to third parties, possession notices have been issued and hence, it is not possible to give possession of those flats. However, an order of requisition was passed. When the correctness of the same was tested, taking note of the right of third parties, the order impugned therein was set aside and that the Collector therein was directed to consider the factual aspects. According to the learned counsel for the appellants, the procedure to be followed is to give a prior notice before taking over. He further submitted that any administrative order affecting the rights of a person should satisfy the test W.As.959&975/2020 24 of reasonable opportunity, and in the case on hand, having regard to the right to property enshrined under Article 300 A of the Constitution of India, the appellants ought to have been given prior notice and an opportunity to object to the same,.
31. Learned counsel for the appellants further submitted that though the appellants did not agree to handover the buildings, erroneously in the Writ Appeals, it is stated that they have consented for the same. In this regard, he invited our attention to the reply affidavit filed in W.P.(C) No.12935/2020. According to the learned counsel, there is no suppression on the part of the appellants. He further contended that the builder had gone to the office of ADM, to collect the compensation amount and to substantiate the said contention, our attention was invited to paragraph II of the minutes, wherein there is a reference to the builders' statement.
32. Per contra, placing reliance on the decision in Syndicate Bank v. Ramachandran Pillai & Others [(2011) 15 SCC 398], Mr. Ranjith Thampan, learned Additional Advocate General, submitted that the guidelines appended to the order dated 25.05.2020 [Exhibit-P4 in W.P.(C) No.12935/2020], issued by Government of Kerala, enumerating certain places, Hostels, Hotels, Closed Hospitals, Lodges, Resorts, Ayurvedic Hospitals, Training Centres, Schools, Colleges, Auditoriums, Community Halls, buildings of the religious and community organisations, cannot W.As.959&975/2020 25 restrict the powers of the competent authorities under Sections 34 and 65 of the Disaster Management Act, 2005, to pass an order of requisition and the guidelines issued in Exhibit-P4 order dated 25.05.2020 do not have the force of law. According to him, with respect to the building requisitioned, 250 beds are provided.
33. Learned Additional Advocate General further submitted that there are a large number of patients from Kannur, Kozhikode, Wayanad districts and the building is located within 50 metres from the District Medical Centre.
34. Learned Additional Advocate General further submitted that Sections 34 and 65 of the Disaster Management Act, 2005 empower the District Collector to issue directions, to pass an order of requisition in writing, and the same does not contemplate a prior notice. He further submitted that, even taking it for granted, but not admitted that a prior notice is contemplated, both the builder and the manager of the builder were specifically informed on the previous day about taking over the building as CFLTC, and that the appellants have suppressed the said fact in the statement of facts, in the writ petitions.
35. Inviting our attention to the decision of the Hon'ble Delhi High Court in Erose Grand Resorts & Hotels Private Ltd., v. Government of NCT of Delhi and others [W.P.(C) No.3531/2020], learned Additional W.As.959&975/2020 26 Advocate General submitted that when action of the District Magistrate/Chairperson of the District Disaster Management Authority, District East, was questioned by the Hotels, going through the statutory provisions and the urgent need to provide Covid Treatment Centres, the order of requisition was sustained.
36. Inviting our attention to Entry 42 List III Schedule VII of the Constitution of India, the Additional Advocate General further submitted that the word "Acquisition" is for a permanent purpose, whereas, the word "Requisition" is for a temporary domain, by the Government.
37. Referring to the meaning of the word "Requisition" in Section 6(4)(a) of the Bombay Land Requisition Act, 1948, learned Additional Advocate General submitted that 'acquisition' and 'requisition' are different, and the powers of the State Government to pass an order in writing requisition of any property for any public purpose, and applied in the case of H. D. Vora v. State Of Maharashtra & Ors [(1984) 2 SCC 337], is applicable to the case on hand.
38. Learned Additional Advocate General further submitted that the National Executive Committee, State Executive Committee or District Authority, in exercise of the powers under Sections 34 and 65(1) of the Disaster Management Act, 2005, are empowered to pass an order in writing, requisition such resources or premises or such vehicle, as the W.As.959&975/2020 27 case may be, and make such orders as may appear to it to be necessary or expedient,in connection with the requisitioning, and no prior notice is required.
39. Mr. Ranjith Thampan, learned Additional Advocate General, further submitted that as regards the interim order dated 30.06.2020 passed by this Court, writ court was not aware of the fact that prior to the passing of the interim order, there was a meeting, in which, the builder and the Mayor have participated.
40. The Disaster Management Act, 2005 does not contemplate prior notice for taking over a building, and even taking it for granted that prior notice is contemplated, it would not be possible to issue notices to all the 45 flat owners and hear them before passing the order.
41. According to the Additional Advocate General, situation in Kozhikode, Wayanad and Calicut was worsening due to Covid-19 pandemic, and an order under Sections 34 and 65 of the Disaster Management Act was imminent, and thus issued.
42. Learned Additional Advocate General further submitted that what is stated in Section 65 of the Disaster Management Act is an order in writing, as regards requisition, and not a notice. It is not a request.
43. Similar provisions are there in the DisasterManagement Act, 2005, empowering the State/District Authority to issue orders. By referring W.As.959&975/2020 28 to Chapter XI Section 70 of the Act, learned Additional Advocate General submitted that the National Authority shall prepare once in every year, in such form and at such time as may be prescribed, an annual report giving a true and full account of its activities during the previous year and copies thereof shall be forwarded to the Central Government and that Government shall cause the same to be laid before both Houses of Parliament within one month of its receipt.
44. He further submitted that similarly, the State Authority shall prepare once in every year, in such form and at such time as may be prescribed, an annual report giving a true and full account of its activities during the previous year and copies thereof shall be forwarded to the State Government and that the Government shall cause the same to be laid before each House of the State Legislature where it consists of two Houses, or where such Legislature consists of one House, before that House.
45. Referring to the Minutes of the meeting recorded in the Chambers on 27.06.2020 at 11 p.m., under the Chairmanship of the Additional District Magistrate, regarding acquisition of the subject building as Covid-19 First Line Treatment Centres [Exhibit-R1(b) in W.A. No.959 of 2020], learned Additional Advocate General further submitted that a prior notice was given to the builder, Manager and others, who have W.As.959&975/2020 29 participated in the meeting, for taking over the subject building, for converting the same as CFLTC before the meeting was convened.
46. Refuting the contentions of the appellants that there were several Government Hospitals with sufficient beds to accommodate Covid-
19 patients, learned Additional Advocate General submitted that though, several beds were available, 50% of the beds are earmarked for Covid First Line Treatment Centres, and therefore, it cannot be contended that all the beds are available only for Covid-19 patients.
47. Inviting our attention to the notwithstanding clause in Section 72 of the Disaster Management Act, 2005, learned Additional Advocate General submitted that action of the 1st respondent in taking over the building has an overriding effect on other laws. Inviting our attention also to the location of the building, now converted as a CFLTC, learned Additional Advocate General submitted that it is located within 50 metres away from the Government Hospital, which is a therapy centre.
48. Heard learned counsel for the respective parties and perused the material available on record.
49. Government have issued, G.O.(MS) No.955/2020/LSGD dated 25.05.2020, prescribing guidelines for formation of CFLTC and the same is extracted hereunder:
W.As.959&975/2020 30"GOVERNMENT OF KERALA Abstract Local Self Government Department - detailed guidelines for Formation and conduct of Covid First Line Treatment Centre (CFTC).
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(D.C) Department GO (MS) No.955/2020/LS.G.D. Dated, Thiruvananthapuram 25/05/2020
-------------------------------------------------------------------------------------- Ref: 1. G.O.(MS).No.55/2020/LSGD dated 20.03.2020
2. G.O.(Rt).No.710/2020/LSGD dated 25.03.2020 ORDER Covid First Line Treatment Centres (CFTC) are health care centre, which are set up to prevent Covid 19 prepared by Local Self Government Department and Health Department together. CFTC's are set up with a purpose with necessary facilities to avoid affecting the present public health system if any community spread happens.
2. Requirement for commencement of Covid First Line Treatment Centres will have to be decided after a discussion between District Disaster Management Authority and the Health Department. Local Self Government Institutions should make preparations to start the Centres with 48 hours early warning.
3. Orders issued for detailed guidelines issued for formation and conduct of Covid First Line Treatment Centres.
By the Order of the Governor Sarada Muraleedharan IAS Principal Secretary File No.LSGD-DC1/213/2020-LSGD Covid First Line Treatment Centre (CFTC) Guidelines What is meant by CFTC?
A Covid First Line Treatment Centre is a health care centre formed to face community spread of Covid 19. Covid First Line Treatment Centres are formed with a purpose to avoid any influence on the public health system in case of community spread of Covid 19.
There will be two sections for every covid frontline treatment centres.
W.As.959&975/2020 31i. Ward for patients.
ii. The rooms with bathroom and toilet to accommodate Covid suspects in isolation of rooms, one room for each person should be made available. iii. Wards of Covid patients and the rooms of Covid suspects shall not be nearby. Separate entries are required to the ward of Covid patient and the rooms of Covid suspects.
Approach
1. The Local Self Government Institutions shall identify and finalise the list of buildings after a discussion with the District Collector.
2. The Health Department in consultation with the Disaster Management Authority as per the request of a expert committee shall decide in which centre a Covid First Line Treatment Centre should start.
3. A Covid First Line Treatment Centre should be near to the Regional PHC/CHC/Taluk Health Centres. Below are the types of buildings which can be taken over for commencement of Covid First Line Treatment Centres.
• Hostels •Hotels • Hospitals which are not functioning.
• Lodges, Resorts, Ayurveda Centres.
• Training Centres.
• Schools, Colleges, • Auditoriums • Community Halls, • Buildings of Religious Organisation
4. Administration of the Covid First Line Treatment Centres will be responsibility of the Medical Officers of Primary Community Health Centres of the respective Local Self Government Institution.
5. It is the responsibility of the Health Department to ensure the availability of medical equipments and service of medical staff as per the Order No.31/F2/2020/Health dated 28.03.2020.
6. It shall be the duty of the Health Department that what should be the Covid protocol and to ensure it is strictly followed Covid First Line Treatment Centres.
7. It is the duty of the respective Local Self Government Institution to ensure the day to day conduct of the Covid First Line Treatment Centres is met and its cleanliness availability of food, all other physical preparations except treatment, equipments for treatment, medicines.
8. Whereas in emergency situations as per the government directions medicines/ medical equipment can be given to the Covid First Line Treatment Centres.
II. Administrative system of Covid First Line Treatment Centres Conduct of the Covid First Line Treatment Centres will be the duty of the Local Self W.As.959&975/2020 32 Government Institutions. A managing committee should be formed for the smooth functioning of Covid First Line Treatment Centres and to create physical facilities on time.
Structure Chairperson, Chairman of the Local Self Government Institution. Vice Chairperson, Standing Committee Chairperson of Health and Education.
Convenor, Medical Officer holding the charge (PHC/CHC/Taluk health centres) Joint Convenor, Nodal Officer decided by the Local Self Government Institution.
Ward Member / Councilor of the location where CFTC is functioning, Secretary/Health Inspector of the Local Self Government Institution conducting Covid First Line Treatment Centre.
Responsibilities i. To manage the day to day activities of the Covid First Line Treatment Centres and to ensure all physical facilities.
ii. To solve day to day problems.
iii. To decide necessary things to buy and to take steps to buy the necessary things.
iv. Preparation for removal of waste scientifically to provide workers for cleaning (in the ratio of 10:1 between patient and cleaning workers).
v. To provide food for workers, patients, Covid suspects those who are in isolation.
vi. To make available when a service is required by the Doctor in emergency situation.
vii. To ensure collection of resources.
Viii. To ensure security system of Covid First Line Treatment Centre.
Nodel Officer A staff of the Local Self Government Institution who can co-ordinate these things with a voluntary attitude should be entrusted and he / she should be relieved from all other duties of the LSGI.
Nodel Officer - Responsibilities i. to take steps to implement the decision of the management committee.
ii. to keep inventory/ stock.
W.As.959&975/2020 33iii. to provide persons for cleaning.
iv. to ensure that waste is removed.
v. to ensure that food is available.
vi. to make available reports to the concerned persons.
vii. to start and operate a joint account of the management committee.
viii. to prepare and keep the account of the management committee. ix. to keep the minutes of the management committee meetings after getting the sanction.
x. to ensure that all guidelines regarding Covid 19 is strictly followed in the Covid First Line Treatment Centre.
xi. to involve after the direction of the management committee and to find fund for day to day functioning of the CFTC, to find resources and solve the shortage of physical facilities. To take steps to inform the Local Self Government Institution in writing about the same.
Charge Officers A officer of the Local Self Government Institution always be present at CFTC for the above purpose officers of the Local Self Government Institution can be deployed on shift basis. The above person should report to the Nodel Officer.
Office Arrangement i. Matters regarding the functioning of the CFTC should be kept under the control of the Nodel Officer of the Local Self Government Institution.
ii. The service and wage procedures of the staff of the CFTC and its files and documents should be operated by the Section Office of the Nodel PHC / CHC/ Taluk Hospital.
iii. The documents regarding the service and salary of the cleaning workers which are deployed by the Local Self Government Institution shall be operated by the Local Self Government Institution.
iv. Every file of the all categories of the employees including the employees of the CFTC will be under the control of Medical Officer who is having the responsibility of the CFTC.
v. A office space shall be given to the CFTC Management and the Nodal Officer.
III. When identifying the buildings W.As.959&975/2020 34 While identifying buildings for CFTC's below given instructions shall be considered.
i. the buildings shall be suitable for persons with symptoms who can stay the isolation with rooms with attached toilet. Likewise 160 persons can be accommodated in a centre.
ii. the building shall be identified maximum near to the PHC/CHC Taluk Health Care Centre.
iii. nearby building can be set up only if facility is not available in the isolation care ward in the identified ward.
iv. by identifying the buildings it should be ensured that water, electricity, transport facilities are available.
v. the location of the building to be reachable through ambulance and facility for parking.
vi. Covid patients ward and the isolation rooms cannot be 2 Cores and separate entry for the patient ward and isolation rooms are required.
Buildings to be found i. The Local Self Government Institutions is the authority responsible to identify the buildings for CFTC(as per the decision of the District Disaster Management Authority) if for one Village is one building respective grama panchayats, block panchayat, Jilla panchayats, municipalities as to identify the buildings).
ii. For managing the disaster the buildings should be made available for free of cost. if there is any difficulty further steps can be taken after the discussion with the District Collector.
iii. the details of the identified buildings and the facilities available there the local self government institutions shall inform the District Collector in writing regarding the procedures.
IV. Physical facility required for CFTC Like above mentioned local self government institutions is the responsible authority who are bound to prepare physical facilities for CFTC. Grama panchayat can also use the service of block. In the CFTC in the below given facilities are required.
The building should have the capacity for accommodating minimum 50% and maximum 150% for treatment and isolation. Separate entry for isolation ward and Covid patient ward are required in the building.
Facility to conduct OP from morning till evening.
W.As.959&975/2020 35 Internet facility and landline phone conducting telemedicine. Minimum one ambulance for each CFTC.
Facility for arranging general wards those who are under treatment. Facility for nursing room, doctors room, observation room, rest rooms, pharmacy, store, front office.
Waste bins for collecting bio - non bio waste in every room and wards.
Plates, jugs for eating and collecting drinking water. Front office facility.
Facility to make available food.
Electricity and water without interruption. Other boards with direction Details of centres for reference symptoms of critical condition shall be exhibited.
Facility for cleaning and washing as per the guidelines. Facility for parking the vehicles road facility (facility for entry of ambulance) Should be maximum near to the health care centre (PHC, CHC, Taluk hospital) If necessary it should be able to arrange accommodation facilities for the staff including the doctors and nurses.
V. Purchase and Mobilisation Cash or in-kind donation to CFTC facility must be accepted or facilities must be provided on condition that the goods be purchased and returned. When preparing such a physical facility, its availability, utilization and return should be carefully prepared and kept in a specific format.
i. Soap, oil, cleaning supplies and lotions should be purchased as donations.
ii. Appendix 10 lists the items to be purchased in this connection. iii. If it not received as donation as per G.O. (MS).No.59/2020/LSGD dated 31.3.2020 those things can be bought.
iv. The CFTC Management Committee should list all the materials required for the operation of the CFTC. When such a listing is made, the items that can be collected or purchased directly by the Management Committee and those to be made available by the local body should be listed separately.
v. The CFTC must decide whether to purchase anything other than what it can raise with or without donations. The Management Committee may accept the required amount as a donation. Amounts received in this manner should be deposited in the Joint Bank Account of the Chairman of the Management Committee and the Nodal Officer. The amount should be utilized as per the decision of the Management Committee. Its revenue and W.As.959&975/2020 36 expenditure account should be passed by the Management Committee and submitted to the concerned Local Self Government Institution once in two weeks.
vi. ln this way, the CFTC should list the items that cannot be purchased and submit it to the local body. Arrangements should be made for it to be procured and made available by the local body.
vii. All the physical facilities required to start a CFTC should be provided by the local bodies themselves.
VI. Finance In addition to the funds (donations) raised by the respective Local Self Government Institutions for the running of the CFTC, the Gram Panchayats, Municipalities and Municipal Corporations can use their own, development funds, State Disaster Relief Fund and other government funds. These must be used in accordance with the terms of such funds.
Block and District Panchayats should set aside funds to assist CFTCS started by Grama Panchayats. Block / District Panchayats can provide a maximum of Rs. 10 lakhs to a CFTC for this purpose.
Block and District Panchayats should set aside funds to assist CFTCS started by Grama Panchayats. Block / District Panchayats can provide a maximum of Rs. 10 lakhs to a CFTC for this purpose.
VII. Facilities required in isolation rooms Isolation rooms at CFTC must have the facilities listed below.
i. Bath - Toilets should be attached rooms.
ii. There should be separate utensils and glasses for eating and drinking water.
iii. There should be jugs to store drinking water.
iv. There should be separate bins for dumping organic and inorganic waste.
v. There should be facilities like bed, mattress, pillow, blanket, blanket, fan etc. vi. Must have mobile charging system.
Vii. There should be a system for hanging and storing clothes (cupboard, shelf etc).
viii. Facilities should be provided to avoid mosquito infestation. ix. The chart for recording cleaning information should be W.As.959&975/2020 37 displayed in the toilet and outside the room.
VIII. Facilities in Covid 19 Ward i. Covid wards in CFTCS should have the following facilities. ii. There should be separate wards for women and men. iii. Toilets and baths should be provided as required so that they can be used by those undergoing treatment in the ward. iv. There should be separate utensils and glasses for eating and drinking water.
v. There should be a jug near each bed to store drinking water. v. There should be separate bins for disposal of inorganic waste and organic waste.
v. There should be beds, mattresses, sheets, blankets and a fan. vii. The beds should be spaced two meters apart. viii. A single box should be provided on each bed to store medication and personal information.
ix. Must have mobile charging facility.
x. It is better to have a facility like TV.
xi. There should be facilities to avoid mosquito infestation.
xii. The chart for recording daily cleaning in the ward and toilet should be displayed.
IX. Regarding other physical facilities In addition to the isolation rooms and wards, the physical facilities required at CFTC are as follows:
• Front office • Doctors Consulting Room • Observation Room • Nursing Station • Pharmacy . Store • Staff Room • Doctors Room (including Toilet) • For Nurse's Room (including toilet) • To others, including volunteers [Including separate toilets for women and men) • Public toilet Front Office CFTC should be located in the front office closest to the entrance The front office should have the following settings:
i. Facilities such as chairs, drinking water, fan and break the chain to seat W.As.959&975/2020 38 at least 20 people in compliance with the physical distance requirements.
ii. Facility to go to the front office after washing your hands.
iii. Counter with table and chair facilities for registration facility.
iv. Board that clearly displays information about cftc's teaching facility.
v. Mic announcement system that can be made available at all notified locations Doctors room The doctor's consulting room should be at least 3 m long and 2 m wide. The room should be equipped with a doctor's chair, a table, a patient's stall and two other chairs. A wash basin that still holds water for the doctor to wash his or her hands should be attached to the corner of the room. Liquid soap, sanitizer and disposable paper towel / tissue paper should be kept near the wash basin. A high bed and a pedestal for the patient should be provided. There should be a fan and light as needed.
Observation Room The observation room should be arranged in such a way that the beds from four to six are placed at least one and a half meters from each other prematurely and the attic toilet facility is large enough so that the doctors and nurses can move freely. It is best if the room is directly accessible from the nursing doctor's consulting room. Special arrangements should be made for hand washing. Rooms should be arranged in such a way as to ensure privacy, Necessary furniture, equipment and inspection should be available.
Nursing Station.
There must be at least 10 m away from the patient's ward with the nursing station. The ward should be where it comes from. The ward should be fully visible. The nursing station should be a place where 5 nurses can work together at the same time. Pharmacy There should be shelves for storing medicines safely, a refrigerator, a chair for he pharmacist to sit on, a large table and a bin for public waste. There should be shelves with enough space to arrange medicines systematically. There should also be a facility for storage of medicines.
Store There should be two types of storage facilities i. Place for keeping cleaning materials ii. Place to store other things.W.As.959&975/2020 39
Staff Room Separate rest facilities for doctors, nurses and other health workers. Special facility for wearing and changing PPE Toilets All isolation rooms should have a bath and toilet attached.
Common toilets will be sufficient for wards and there should be separate toilets for men and women.
There should be separate toilet facilities for staff and volunteers.
There should be a public toilet facility that everyone can use.
Napkin deposit facility.
Make sure there is a cup of water and a bucket of cleaning equipment in the toilet.
Women's toilets and women's wards should have napkin vending machines and napkin disposal facilities.
X. Waste Disposal System Following are the guidelines to be followed in relation to sanitary waste treatment in First Line Treatment Centres in connection with Covid -19 Organic waste i. Organic waste from food stalls and isolation wards should be treated separately ii. These should be stored in separate bins.
iii. Care should be taken to dispose of the organic waste generated in the isolation wards and rooms.
iv. All these should be safely buried in the respective places. Pit / compost / thumboor Full compost can be disposed of in any of these samples.
v. Make sure that the gray water coming from here goes to the stock pit Medical waste i. Waste generated from here should be recycled at source and treated as medical waste and public waste. ii. Medical impurities such as mask gloves should be treated with a 1% W.As.959&975/2020 40 bleach solution or sodium hypochlorite solution. iii. Special care should be taken not to mix other medical waste that comes as part of the treatment with the above mentioned wastes. iv. Special care should be taken of items used by those who are in isolation and items used by health workers in the isolation ward.
Collection and processing i. Separate bins can be placed in each room to store used masks and gloves ii. Dispose of other medical waste in separate bins iii. Dispose of sanitary waste in other bins iv. Store in separate bins for disposal of clothing used by those who are in isolation and safety gear used by healthcare providers. v. When collecting medical waste, make sure that it is free. This waste treatment is through the Department of Health vi. When collecting waste from the wards, special care should be taken not to mix it vii. Garbage collected from wards should be removed only with double layered bags viii. Medical waste should be transferred to collection vehicles aS soon as it is stored. In case of non-operation, a safe deposit box should be set up at the respective CFTCS for collection of Covid waste only.
ix. Waste generated only from the isolation ward should be accurately recorded.
x. Necessary bins can be set up to collect waste. xi. By no means do I want to convey that I recommend for the mother to be inactive xii. Waste storage areas should also be cleared at regular intervals xiii. Medical waste should not be stored for more than 48 hours under any circumstances.
xiv. Waste collection bins should be disinfected daily with hypochlorite solution.
Waste transportation i. You will need to enter into agreements with licensed agencies to treat medical waste that is stored in such a manner.
ii. When carrying medical waste, it must ensure the complete safety of those who handle it and the general public.
iii. Care should be taken to disinfect the vehicles used to transport waste W.As.959&975/2020 41 from here.
iv. Specially trained groups can be utilized for waste collection v. Special protective shields should be provided to those handling Covid waste.
vi. Do not carry other disinfected items in garbage trucks for any reason vii. If possible, the medical waste disposal containers here should be labeled as Covid waste.
viii. Prior to removal of medical waste from the source, the location, date and type of waste should be recorded.
ix. Care should be taken not to carry waste in hairy vehicles Inorganic Waste Inorganic wastes such as plastics that do not mix with coir waste can be washed separately and returned to the MCF. Plastic covers, bottles, packets and cardboard boxes from the pharmacy should be kept in a safe place.
Ensure proper color coding of bins / containers used for waste collection Yellow - The pill cover should be deposited in the yellow cover of the pill.
Chemical wastes such as yellow - yellow liquids such as blood should also be deposited in the yellow non-chlorinated plastic cover.
Red-IV tubes, catheters, urinal bags, syringes, etc. should be placed in a red box.
White - Sharp ones should be deposited in white containers Blue glass and metal waste should be deposited in blue containers To the special attention of the local self-government institution Provide facilities for disposal of inorganic wastes in Thumpur Muzhi / pit / bio compost model.
Prepare the necessary contract with the Department of Health for the transfer of medical waste to a licensed agency.
The cleaning process It is imperative to ensure that the premises, rooms, wards and other areas of the CFTC are kept clean and tidy.
a. To ensure the safety of the person engaged in cleaning, the availability of gowns, aprons, masks, gloves, shoes used only in wards and rooms, floor cleaning equipment and other surfaces should be ensured. Ward W.As.959&975/2020 42 items should not be used in the room for any reason. b. Hand washing facilities and sanitary facilities should be available for employees and those around them who need to clean their hands frequently.
Isolation Room i. The general hygiene of the isolation room should be ensured. Surfaces that may come into contact with the person sitting in the isolation room should be cleaned daily with 1% sodium hypochlorite.
ii. Toilet surfaces should be cleaned with a standard bleaching solution. Toilet works are to be disposed of and used.
iii. Clothes used by the person with the isolation should be washed and cleaned with ordinary laundry soap after disinfection.
Ward of the sick Surfaces that are likely to be touched frequently in the ward should be cleaned daily with two to one percent hypochlorite. The floor of the ward, the area under the beds and the corners should be wiped clean once a day with disinfectant water.
Toilet surfaces for men and women are usually bleached solution/ phenolic and should be wiped clean with disinfectant.
Isolation rooms and areas other than the ward Touch surfaces and floors in commonly used areas, waiting areas, corridors, doctors' rooms, observation rooms, nurses' rooms, pharmacies and other rooms should be kept disinfected daily.
Hand Washing Facility The wash basin, water tap and soap should be read at the entrance to the front office at CFTC. Facilities for hand washing can be arranged at required places in the corridor.
Equipping cleaning assistants Once the persons in charge of cleaning the CFTC have been appointed, they should be given special training.
Topics to be trained Covid -19 spread and disease Cleaning method and intervals Regarding handling and storage of cleaning materials and equipment W.As.959&975/2020 43 The importance of safety harnesses - the way they should be worn - the way they should be disassembled Things to look out for when collecting and disposing of waste in isolation rooms and wards The role of cleaners in disease control.
The importance of assigning only trained people to the cleaning work.
Food Facility Arrangements should be made to feed those who are in isolation and those who are in treatment. Food should be available from the existing community kitchen. Where this is not possible, a community kitchen model should be set up in conjunction with the CFTC.
Seek the help of existing volunteers to prepare and cook the food Facilitate access to clean drinking water.
Bins for re-storage of organic and non-organic waste should be made available at the place of preparation of food.
Volunteering CFTC is a public health care center. Volunteering should also be considered as a resource enemy in execution. To this end, the local self- governing body should select suitable volunteers from the currently listed volunteers.
Volunteers are usually needed for the following activities. In the registry / front office Computer / Tata Entry Electrical/ Plumbing Cooking/ Distribution Cleaning Process Purchase of goods Counseling Ambulance driving Security system General organization Many of these are not needed full time. Call and let the groom be ready Volunteering is required for all categories, Responsibilities • Function to set up CFTC • Delivery of food • Cooking food • Delivery of goods as per CFTC Management/ Docors instructions • Providing guidance and comfort to the family members of those W.As.959&975/2020 44 undergoing diagnostic treatment • Ensuring the safety of the CFTC • Provision of services as requested by the Management Committee and the Doctor • Necessary support activities in the organization for the nodal officer"
50. Proceedings of the Chairman, District Management Authority & District Collector, Kannur dated 28.06.2020, is extracted hereunder:
"PROCEEDINGS OF THE CHAIRMAN, DISTRICT DISASTER MANAGEMENT AUTHORITY & DISTRICT COLLECTOR, KANNUR (Present: Subhash T.V. IAS) Sub: Covid 19 outbreak- Medical emergency - setting up of Covid 1st line treatment centre in Kannur District - Orders issued.
Ref: 1. Guidelines issued by the Health & Family Welfare Department.
2. Request of DMO in the Disaster Management meeting.
Order No. DCKNR / 3383 / 2020 DM1, dated 28.06.2020 WHEREAS the Covid-19 outbreak is affecting the whole world and so many positve cases are reported in Kerala State and is increasing day by day. In the past few days a large number of positive cases were reported and the number of confirmed cases is very huge in Kannur District. Similar situation is there in neighbouring Kasaragode District and cases have also been reported from boarding Mahe and Coorge District in Karnataka.
As per G.O-49/ 2020/ GAD dated 23.03.2020, Government of Kerala has invoked Epidemic Diseases Act 1897, along with enabling provisions of Disaster Management Act 2005.
At present, Government Medical College Pariyaram, Kannur Medical College, Anajarkandy have been declared as designated Covid Hospitals along with District Hospital Kannur and General Hospital, Thalassery also managing Covid patients. All these Hospitals are now facing shortage of sufficient beds to admit Covid positive patients and the situation is alarming in Kannur District due to Increase In Dengue and Lepto cases along with Covid.W.As.959&975/2020 45
Moreover the District Administration Kannur is expecting an increase in Covid positive cases, since Rapid Antibody Test is conducted at Kannur International Airport for all passengers irrespective of their Districts or States. This is expected to put loads on districts' capacity of beds in designated hospitals and hence more beds will be need in the immediate future to tackle this pandemic. To tackle the urgent situation and emergency no other way except to take over some buildings to run as Covid 1 st line treatment centres.
Considering the above face and circumstances I, Subash T.V. IAS, District Collector Chairman DDMA in exercise of the powers conferred under Sec 34 & 65 of the Disaster Management Act, 2005, and relevant provisions under Epidemic Diseases Act, 1897 hereby directs to take over building named 'Z Plus Apartment Building' comprised in Ward 3 Block 22 in RS No 1042/5 in Kannur amsom, in Kannur Karar Desom. Kanur Taluk, Kannur District along with 18 Flat rooms and common area to function it as Covid 1st Line treatment centre. The Tahsildar, Kannur shall take further steps to evict illegal residents staying in the building and handed over the keys of all the Flats to the DMO Kannur. The District Medical Officer is delegated the power to run the apartment as Covid 1 st Line Treatment centre with immediate effect. KSEB is hereby directed to check the Power supply. Secretary, Corporation Kannur has to take steps to allot temporary building number, Executive Engineer KWA has to ensure uninterrupted water supply, Executive Engineer PWD Buildings has to ensure Physical Fitness of the building and to make necessary arrangements for fixing adequate number of fans and lights, Divisional Officer Fire & Rescue, Kannur has to check the building and ensure the safety of the building. The Apartment building will be under the control of District Administration until further orders.
SD/-
CHAIRMAN, DDMA & DISTRICT COLLECTOR, KANNUR"
51. List of Hospitals in Kannur city area is extracted hereunder:
LIST OF PRIVATE HOSPITALS IN KANNUR CITY 1 Sree Chand Hospital, SN Park, Kannur.
2 Fathima Hospital, South Bazar.
3 Ashirvad Hospital, Thavakkara, Kannur.W.As.959&975/2020 46
4 West Coast Hospital, Bellard Road, Kannur. 5 Ashoka Hospital, South Bazar, Kannur.
6 Raslock Hosptial, Thavakkara, Kannur. 7 Speciality Hospital, Thana, Kannur.
8 Chaithanya Hospital, Thalap, Kannur.
9 JJS Hospital, South Bazar, Kannur.
10 Madhava Rao Scindia Hospital, Talap, Kannur. 11 Mother and Child Hospital, South Bazar, Kannur. 12 Dhanalakshmi Hospital, Thana, Kannur. 13 Koyili Hospital, Chettipeedika, Kannur. 14 AKG Hospital, South Bazar, Kannur.
15 Kimst Hospital, South Bazar, Kannur.
16 Aster Mims Hospital, Chala.
52. List of Hotels taken over by the District Collector for quarantine purpose earlier and most of which are already released, is reproduced:
LIST OF HOTELS TAKE OVER FOR QUARANTINE RINNING AND RELEASED Broad Beans, Thavakkara, Kannur Released K.K.Residency, Thavakkara, Kannur Released Royal Omars, Thavakkara, Kannur Released Central Avenue, Thavakkara, Kannur Released Sky Palace, Thavakkara, Kannur Released Arafa Lodge, Araat Road, Kannur Released Parkans Hotel, Thavakara, Kannur Released PVS Tourist Home, SN Part Road,Kannur Released Savoy, SN Park Road, Kannur Released Meridian Palace, Bellard Road, Kannur Released Rainbow, Bellard Road, Kannur. Released Sweety International, Released Muneeswaram Kovil Junction, Kannur Star Inn,Opp Railway Station, Kannur Released Blur Nile Residency, Fort Road, Kannur Released Omars Inn, Station Road, Kannur Released Centaure Tourist Home, MA Road, Kannur Released Payyambalam Sreekrishna Beach Resorts Released Palliyamoola, Kannur.
Pranavam Beach Resort, Released
Payyambalam, Kannur.
Kanaka Beach Resort, Released
Payyambalam, Kannur
W.As.959&975/2020 47
Ashokam Beach Resort, Released
Payyambalam, Kannur
Arabian Beach Resort, Released
Payyambalam, Kannur
53. Lists of Hostels within 5 kilometres, hotels near to the District Hospital, Auditoriums nearby in Kannur area are extracted hereunder:
LIST OF HOSTELS IN KANNUR CITY Kenz Men's Hostel,Thavakkara, Kannur, Kerala - 670 001.
Ph: 09400531648 Faraag Men's Hostel, Bellard Road, Kannur Best Home Care Mens Hostel, Puzhathi Housing Colony, Kannur, Kerala - 670 002.
Chinmaya Men Hostel, Pallikkunnu, Kannur, Kerala - 670 002.
Shade Men's Hostel, Shade Mens Hostel, Near Kavitha Theatre Behind Victory Inn, Thalap, Kannur, Kerala - 670 002.
Absam Hostel Gents, South Bazar, Puzhathi Housing Colony, Kannur, Kerala - 670 002.
Oasis Boys Hostel Parakandy, Manjappalam, Kannur, Kerala - 670 014.
Ph: 9777682682.
Rashid Hostel, Thalap, Kannur, Kerala - 670 001, Ph: 09895838583 Seven days executive mens hostel, Onden Road, Padanapalam, Kannur, Kerala - 670 003.
LIST OF HOTELS NEAR TO THE DISTRICT HOSPITAL Central Avenue, Thavakkara, Kannur Malabar Residency, Thavakkara, Kannur Green Park Residency, Thavakkara, Kannur Royal Omars, Thavakkara, Kannur Broad Omars, New Bustand, Thavakkara, Kannur Sky Palace, Thavakara, Kannur.
Hotel Rainbow, Bellard Road, Kannur. Blue Nile, Fort Road, Kannur Sea Breeze Inn, SN Part, Kannur.
Sree Krishna Beach Resort, Palliyamoola, Kannur.
LIST OF RESORTS IN THE PAYYAMBALA, KANNUR CITY Pranavam Beach Resort Ashokam Beach Resort W.As.959&975/2020 48 Kanaka Beach Resort Marmara Beach Resort Arabian Beach Resort AUDITORIUM NEARBY Dinesh Auditorium Address: Puzhathi Housing Colony, Kannur, Kerala 670002 Phone: 0497 271 2945 Rubco Auditorium Address: Rubco House, South Bazar, Kannur, Kerala 670002 Phone: 0497 271 1134 Navaneetham Auditorium Address: Talap, Kannur, Kerala 670002 Phone: +971 50 834 5218 Amani Auditorium Address: South Bazaar Dhanalakshmi Road Kannur, Kannur, Kerala 670005, Phone: 0497 271 2338.
Sadhoo Kalyana Mandapam Address: Thana, Kannur, Kerala 670012 Phone: 0497 276 0218 Sahana Auditorium Address: South Bazar, Kannothchal, Kannur, Kerala 670002 Exora Conventions | Best Auditorium in Kannur Address: Near Thalap Mixed UP School, Talap, Kannur, Kerala 670002, Phone: 098950 24644 Kannur University Cherussery Auditorium Located in: Kannur University Address: Thavakkara, Kannur, Kerala 670012 E K Nayanar Academy Address: Burnacherry, Kannur, Kerala 670013 Perkans Auditorium & Hotel Address: Thavakkara, Kannur, Kerala 670002 Phone: 0497270 0559 NNS Auditorium.
Address: Thayyil - Marakkarkandy Rd, Kodaparamba, Kannur, Kerala- 670003, Phone: 04972734499 W.As.959&975/2020 49 Vishveshwarya Memorial Hall Address: Burnacherry, Kannur, Kerala 670003 Phone: 098953 32367 St. Michael's School Auditorium Address: Kannur, Kerala 670001 Phone: 0497 276 1565."
54. Minutes of the meeting convened in the Chambers of the Additional District Magistrate, Kannur on 27.6.2020 reads thus:
"Minutes of the meeting held in the Chamber on 27.06.2020 at 11 am under the Chairmanship of the Additional District Magistrate regarding the acquisition of buildings as Kovid-19 First Line Treatment Centers.
The meeting started at exactly 11 o'clock. The President welcomed everyone. The ADM said the meeting was convened on the basis of the recommendations of the Covid 19 review meeting held by the District Collector on the evening of 26.06.20. The number of Covid victims rising every day is a matter of concern. The ADM said that the meeting was convened to convert the flat into a first line treatment center.
Builders Sri. Sandeep and Sri. Mashood informed that the flat's have already been registered and 2 people have started living there. The builders said that the flats could be released only with the permission of the flat owners as their registration process was over and it was difficult to contact them directly as many of them were abroad. ADM directed to hand over the records of transfer of flats, contact numbers and address to Kannur Tahsildar on 27.062020 at 6 pm. Informed the builders.
Kannur District Hospital RMO said that due to lack of space in the district hospital at present, it is not possible to admit new Covid patients. The RMO said acquisition of the flat was beneficial as it is closer to the district hospital. Covid patients W.As.959&975/2020 50 can be treated. The occupants of the flat would not face any health problems.
KSEB informed that a current connection can be provided to the building using one meter connection.
The building will have to be taken over as there is an emergency situation and the existing occupants will not be inconvenienced.
The meeting opined that it would provide an opportunity to change the style and that it would be appropriate for other owners to take over the building without difficulty.
Considering the current state of emergency, the meeting unanimously decided to take over the building on a wartime basis.
The meeting ended at 12.00 noon.
Sd/- Additional District Magistrate Kannur"
55. Before adverting to the submissions advanced, let us consider the statutory provisions.
56. Disaster Management Act, 2005 is an Act to provide effective management of disasters and for matters connected therewith or incidental thereto. It has come into force on 28.07.2006 as the Central Government may, by notification in the Official Gazette appointed; and different dates may be appointed for different provisions of this Act and for different States, and any reference to commencement in any provision of W.As.959&975/2020 51 this Act, in relation to any State, shall be construed as a reference to the commencement of that provision in that State.
57. Section 2(a) of the Act defines "affected area" to mean an area or part of the country affected by a disaster. Section 2(d) of the Act defines "disaster" to mean a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man made causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area.
58. Section 2(f) of the Act defines "District Authority" to mean the District Disaster Management Authority constituted under sub-section (1) of Section 25 of the Act. Section 2(g) of the Act defines "District Plan" to mean the plan for disaster management for the district prepared under Section 31. Section 2(e) of the Disaster Management Act, 2005, defines "disaster management" to mean a continuous and integrated process of planning, organising, coordinating and implementing measures which are necessary or expedient for--
(i) prevention of danger or threat of any disaster;
(ii) mitigation or reduction of risk of any disaster or its severity or consequences;
(iii) capacity-building;
W.As.959&975/2020 52(iv) preparedness to deal with any disaster;
(v) prompt response to any threatening disaster situation or disaster;
(vi) assessing the severity or magnitude of effects of any disaster;
59. Section 2(h) of the Act defines "local authority" which includes Panchayati Raj institutions, municipalities, a district board, cantonment board, town planning authority or Zila Parishad or any other body or authority, by whatever name called, for the time being invested by law, for rendering essential services or, with the control and management of civic services, within a specified local area.
60. Section 2(i) of the Act defines "mitigation" to mean measures aimed at reducing the risk, impact or effects of a disaster or threatening disaster situation.
61. Section 2(m) of the Act defines "preparedness" to mean the state of readiness to deal with a threatening disaster situation or disaster and the effects thereof. Section 2(n) of the Act defines "prescribed" to mean means prescribed by rules made under this Act. Section 2(p) of the Act defines "resources" to include manpower, services, materials and provisions.
62. Section 2(q) of the Act defines "State Authority" to mean the State Disaster Management Authority established under subsection (1) of W.As.959&975/2020 53 section 14 and includes the Disaster Management Authority for the Union territory constituted under that section.
63. Section 2(r) of the Act defines "State Executive Committee" to mean the Executive Committee of a State Authority constituted under sub-
section (1) of Section 20
64. Section 2(s) of the Act defines "State Government" to mean the Department of Government of the State having administrative control of disaster management and includes Administrator of the Union territory appointed by the President under article 239 of the Constitution. Section 2(t) of the Act defines "State Plan" to mean the plan for disaster management for the whole of the State prepared under Section 23.
65. Chapter II of the Disaster Management Act deals with the National Disaster Management Authority. Section 3 under Chapter II deals with the establishment of National Disaster Management Authority and it reads as under:
"(1) With effect from such date as the Central Government may, by notification in the Official Gazette appoint in this behalf, there shall be established for the purposes of this Act, an authority to be known as the National Disaster Management Authority.
(2) The National Authority shall consist of the Chairperson and such number of other members, not exceeding nine, as may be prescribed by the Central Government and, unless the rules W.As.959&975/2020 54 otherwise provide, the National Authority shall consist of the following:--
(a) the Prime Minister of India, who shall be the Chairperson of the National Authority, ex officio;
(b) other members, not exceeding nine, to be nominated by the Chairperson of the National Authority.
(3) The Chairperson of the National Authority may designate one of the members nominated under clause (b) of sub- section (2) to be the Vice-Chairperson of the National Authority.
(4) The term of office and conditions of service of members of the National Authority shall be such as may be prescribed."
66. Section 6 of the Disaster Management Act deals with powers and functions of National Authority and it reads thus:
(1) Subject to the provisions of this Act, the National Authority shall have the responsibility for laying down the policies, plans and guidelines for disaster management for ensuring timely and effective response to disaster.
(2) Without prejudice to generality of the provisions contained in sub-section (1), the National Authority may --
(a) lay down policies on disaster management;
(b) approve the National Plan;
(c) approve plans prepared by the Ministries or Departments of the Government of India in accordance with the National Plan;
(d) lay down guidelines to be followed by the State Authorities in drawing up the State Plan;
(e) lay down guidelines to be followed by the different Ministries or Departments of the Government of India for the purpose of integrating the measures for prevention of disaster or the mitigation of its effects in their development plans and projects;
(f) coordinate the enforcement and implementation of the policy and plan for disaster management;W.As.959&975/2020 55
(g) recommend provision of funds for the purpose of mitigation;
(h) provide such support to other countries affected by major disasters as may be determined by the Central Government;
(i) take such other measures for the prevention of disaster, or the mitigation, or preparedness and capacity building for dealing with the threatening disaster situation or disaster as it may consider necessary;
(j) lay down broad policies and guidelines for the functioning of the National Institute of Disaster Management.
(3) The Chairperson of the National Authority shall, in the case of emergency, have power to exercise all or any of the powers of the National Authority but exercise of such powers shall be subject to ex post facto ratification by the National Authority.
67. Chapter III of the Act, 2005 deals with State Disaster Management Authorities. Section 14 of the Act reads thus:
"14. Establishment of State Disaster Management Authority- (1) Every State Government shall, as soon as may be after the issue of the notification under sub-section (1) of section 3, by notification in the Official Gazette, establish a State Disaster Management Authority for the State with such name as may be specified in the notification of the State Government.
(2) A State Authority shall consist of the Chairperson and such number of other members, not exceeding nine, as may be prescribed by the State Government and, unless the rules otherwise provide, the State Authority shall consist of the following members, namely:--
(a) the Chief Minister of the State, who shall be Chairperson, ex officio;W.As.959&975/2020 56
(b) other members, not exceeding eight, to be nominated by the Chairperson of the State Authority;
(c) the Chairperson of the State Executive Committee, ex officio.
(3) The Chairperson of the State Authority may designate one of the members nominated under clause (b) of sub-section (2) to be the Vice-Chairperson of the State Authority.
(4) The Chairperson of the State Executive Committee shall be the Chief Executive Officer of the State Authority, ex officio:
Provided that in the case of a Union territory having Legislative Assembly, except the Union territory of Delhi, the Chief Minister shall be the Chairperson of the Authority established under this section and in case of other Union territories, the Lieutenant Governor or the Administrator shall be the Chairperson of that Authority:
Provided further that the Lieutenant Governor of the Union territory of Delhi shall be the Chairperson and the Chief Minister thereof shall be the Vice-Chairperson of the State Authority.
(5) The term of office and conditions of service of members of the State Authority shall be such as may be prescribed.
68. Section 19 of the Act deals with Guidelines for minimum standard of relief by State Authority and the same reads thus:
"19. Guidelines for minimum standard of relief by State Authority.--The State Authority shall lay down detailed guidelines for providing standards of relief to persons affected by disaster in the State:
Provided that such standards shall in no case be less than the minimum standards in the guidelines laid down by the National Authority in this regard."W.As.959&975/2020 57
"20. Constitution of State Executive Committee.--(1) The State Government shall, immediately after issue of notification under sub-section (1) of section 14, constitute a State Executive Committee to assist the State Authority in the performance of its functions and to coordinate action in accordance with the guidelines laid down by the State Authority and ensure the compliance of directions issued by the State Government under this Act.
(2) The State Executive Committee shall consist of the following members, namely:--
(a) the Chief Secretary to the State Government, who shall be Chairperson, ex officio;
(b) four Secretaries to the Government of the State of such departments as the State Government may think fit, ex officio.
(3) The Chairperson of the State Executive Committee shall exercise such powers and perform such functions as may be prescribed by the State Government and such other powers and functions as may be delegated to him by the State Authority.
(4) The procedure to be followed by the State Executive Committee in exercise of its powers and discharge of its functions shall be such as may be prescribed by the State Government."
69. Section 21 of the Act deals with Constitution of sub-committees by the State Executive Committee and the same reads thus:
"21. Constitution of sub-committees by State Executive Committee.--(1) The State Executive Committee may, as and when it considers necessary, constitute one or more sub- committees, for efficient discharge of its functions.W.As.959&975/2020 58
(2) The State Executive Committee shall, from amongst its members, appoint the Chairperson of the sub-committee referred to in sub-section (1).
(3) Any person associated as an expert with any sub-
committee may be paid such allowances as may be prescribed by the State Government."
70. Section 22 of the Act deals with functions of the State Executive Committee and the same reads thus:
"22. Functions of the State Executive Committee- (1) The State Executive Committee shall have the responsibility for implementing the National Plan and State Plan and act as the coordinating and monitoring body for management of disaster in the State.
(2) Without prejudice to the generality of the provisions of sub-section (1), the State Executive Committee may--
(a) coordinate and monitor the implementation of the National Policy, the National Plan and the State Plan;
(b) examine the vulnerability of different parts of the State to different forms of disasters and specify measures to be taken for their prevention or mitigation;
(c) lay down guidelines for preparation of disaster management plans by the departments of the Government of the State and the District Authorities;
(d) monitor the implementation of disaster management plans prepared by the departments of the Government of the State and District Authorities;
(e) monitor the implementation of the guidelines laid down by the State Authority for integrating of measures for prevention of disasters and mitigation by the departments in their development plans and projects;W.As.959&975/2020 59
(f) evaluate preparedness at all governmental or non-
governmental levels to respond to any threatening disaster situation or disaster and give directions, where necessary, for enhancing such preparedness;
(g) coordinate response in the event of any threatening disaster situation or disaster;
(h) give directions to any Department of the Government of the State or any other authority or body in the State regarding actions to be taken in response to any threatening disaster situation or disaster;
(i) promote general education, awareness and community training in regard to the forms of disasters to which different parts of the State are vulnerable and the measures that may be taken by such community to prevent the disaster, mitigate and respond to such disaster;
(j) advise, assist and coordinate the activities of the Departments of the Government of the State, District Authorities, statutory bodies and other governmental and non-governmental organisations engaged in disaster management;
(k) provide necessary technical assistance or give advice to District Authorities and local authorities for carrying out their functions effectively;
(l) advise the State Government regarding all financial matters in relation to disaster management;
(m) examine the construction, in any local area in the State and, if it is of the opinion that the standards laid for such construction for the prevention of disaster is not being or has not been followed, may direct the District Authority or the local authority, as the case may be, to take such action as may be necessary to secure compliance of such standards;
(n) provide information to the National Authority relating to different aspects of disaster management;
(o) lay down, review and update State level response plans and guidelines and ensure that the district level plans are prepared, reviewed and updated;
(p) ensure that communication systems are in order and the disaster management drills are carried out periodically;
W.As.959&975/2020 60(q) perform such other functions as may be assigned to it by the State Authority or as it may consider necessary."
71. Section 23 of the Disaster Management Act deals with State Plan and the same reads thus:
"23. State Plan.--(1) There shall be a plan for disaster management for every State to be called the State Disaster Management Plan.
(2) The State Plan shall be prepared by the State Executive Committee having regard to the guidelines laid down by the National Authority and after such consultation with local authorities, district authorities and the people's representatives as the State Executive Committee may deem fit.
(3) The State Plan prepared by the State Executive Committee under sub-section (2) shall be approved by the State Authority. (4) The State Plan shall include,--
(a) the vulnerability of different parts of the State to different forms of disasters;
(b) the measures to be adopted for prevention and mitigation of disasters;
(c) the manner in which the mitigation measures shall be integrated with the development plans and projects;
(d) the capacity-building and preparedness measures to be taken; (e) the roles and responsibilities of each Department of the Government of the State in relation to the measures specified in clauses (b), (c) and (d) above;
(f) the roles and responsibilities of different Departments of the Government of the State in responding to any threatening disaster situation or disaster.
(5) The State Plan shall be reviewed and updated annually.W.As.959&975/2020 61
(6) Appropriate provisions shall be made by the State Government for financing for the measures to be carried out under the State Plan.
(7) Copies of the State Plan referred to in sub-sections (2) and (5) shall be made available to the Departments of the Government of the State and such Departments shall draw up their own plans in accordance with the State Plan."
72. Section 24 of the Act deals with the powers and functions of the State Executive committee in the event of threatening disaster situation and the same reads thus:
"24. Powers and functions of State Executive Committee in the event of threatening disaster situation.--For the purpose of, assisting and protecting the community affected by disaster or providing relief to such community or, preventing or combating disruption or dealing with the effects of any threatening disaster situation, the State Executive Committee may--
(a) control and restrict, vehicular traffic to, from or within, the vulnerable or affected area;
(b) control and restrict the entry of any person into, his movement within and departure from, a vulnerable or affected area;
(c) remove debris, conduct search and carry out rescue operations;
(d) provide shelter, food, drinking water, essential provisions, health-care and services in accordance with the standards laid down by the National Authority and State Authority;
(e) give direction to the concerned Department of the Government of the State, any District Authority or other authority, within the local limits of the State to take such measure or steps for rescue, evacuation or providing immediate relief saving lives or property, as may be necessary in its opinion;W.As.959&975/2020 62
(f) require any department of the Government of the State or any other body or authority or person in charge of any relevant resources to make available the resources for the purposes of emergency response, rescue and relief;
(g) require experts and consultants in the field of disasters to provide advice and assistance for rescue and relief;
(h) procure exclusive or preferential use of amenities from any authority or person as and when required;
(i) construct temporary bridges or other necessary structures and demolish unsafe structures which may be hazardous to public;
(j) ensure that non-governmental organisations carry out their activities in an equitable and nondiscriminatory manner;
(k) disseminate information to public to deal with any threatening disaster situation or disaster;
(l) take such steps as the Central Government or the State Government may direct in this regard or take such other steps as are required or warranted by the form of any threatening disaster situation or disaster."
73. Section 34 of the Disaster management Act, 2005 speaks about the powers and functions of District Authority in the event of any threatening disaster situation or disaster and the same reads thus:
"34. Powers and functions of District Authority in the event of any threatening disaster situation or disaster.--For the purpose of assisting, protecting or providing relief to the community, in response to any threatening disaster situation or disaster, the District Authority may--
(a) give directions for the release and use of resources available with any Department of the Government and the local authority in the district;
(b) control and restrict vehicular traffic to, from and within, the vulnerable or affected area;
(c) control and restrict the entry of any person into, his movement within and departure from, a vulnerable or affected area;W.As.959&975/2020 63
(d) remove debris, conduct search and carry out rescue operations;
(e) provide shelter, food, drinking water and essential provisions, healthcare and services;
(f) establish emergency communication systems in the affected area;
(g) make arrangements for the disposal of the unclaimed dead bodies;
(h) recommend to any Department of the Government of the State or any authority or body under that Government at the district level to take such measures as are necessary in its opinion;
(i) require experts and consultants in the relevant fields to advise and assist as it may deem necessary;
(j) procure exclusive or preferential use of amenities from any authority or person;
(k) construct temporary bridges or other necessary structures and demolish structures which may be hazardous to public or aggravate the effects of the disaster;
(l) ensure that the non-governmental organisations carry out their activities in an equitable and non-discriminatory manner;
(m) take such other steps as may be required or warranted to be taken in such a situation."
74. Section 65 deals with the power of requisition of resources, premises, vehicles etc., for rescue operations, etc., and it reads thus:
"(1) If it appears to the National Executive Committee, State Executive Committee or District Authority or any officer as may be authorised by it in this behalf that--
(a) any resources with any authority or person are needed for the purpose of prompt response;
(b) any premises are needed or likely to be needed for the purpose of rescue operations; or W.As.959&975/2020 64
(c) any vehicle is needed or is likely to be needed for the purposes of transport of' resources from disaster affected areas or transport of resources to the affected area or transport in connection with rescue, rehabilitation or reconstruction, such authority may, by order in writing, requisition such resources or premises or such vehicle, as the case may be, and may make such further orders as may appear to it to be necessary or expedient in connection with the requisitioning.
(2) Whenever any resource, premises or vehicle is requisitioned under sub-section (1), the period of such requisition shall not extend beyond the period for which such resource, premises or vehicle is required for any of the purposes mentioned in that sub-section.
(3) In this section,--
(a) "resources" includes men and material resources;
(b) "services" includes facilities;
(c) "premises" means any land, building or part of a building and includes a hut, shed or other structure or any part thereof;
(d) "vehicle" means any vehicle used or capable of being used for the purpose of transport, whether propelled by mechanical power or otherwise."
75. Section 72 of the Act deals with Act to have overriding effect and the same reads thus:
"The provisions of this Act, shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act."
76. Thrust of the submission of learned counsel for the appellants is that there is violation of the principles of natural justice, in not furnishing a W.As.959&975/2020 65 notice in writing to the appellants by the District Collector, Kannur, respondent No.1, before an order of requisition was passed under Section 65(1)(c) of the Disaster Management Act, 2005.
77. Section 34 of the Disaster Management Act, 2005, as well as the guidelines issued in the order dated 25.05.2020 [Exhibit-P4 in W.P.(C) No.12935/2020] speak only about capacity management and not taking over of a residential building. There are other issues as well, which we deem it fit to consider in the later portions of this judgement.
78. Before adverting to the above, let us consider what the words 'acquisition' and 'requisition' mean:
"In the Constitution Of India, Entries, Acquisition and Requisition are made. Entry 42 in List III of the VII Schedule to the Constitution deals with Acquisition and Requisition. The words are separated by a Conjunction "and", meaning thereby they have different meanings.
(I) As per Black's Laws Dictionary, Ninth Edition, pg.26 "Acquisition" means "acquisition-
1. The gaining of possession or control over something<acquisition of the target company's assets>
2. Something acquired< a valuable acquisition>"
Black's Law Dictionary defines 'acquire' as : To gain by any means, usually by one's own exertions; to get as one's own; to obtain by search, endeavour, investment, practice, or purchase; receive or gain in whatever W.As.959&975/2020 66 manner; come to have.
(II) As per the Law Lexicon, 3 rd Edition, "Acquisition"
means thus:-
"Acquisition- Gaining of Possession or control. In India, if the State acquires property for a public purpose under statutory powers, this is described 'as the acquisition of land. The act of getting or of becoming the owner of any property: the act by which one acquires or procures Property in anything [S. 2( 1)(a), Arms Act (54 of 1959), S. 73(2), T.P. Act (4 of 1882), S. 803 (5)(a): Income-tax Act (43 of 1961) and Art. 11, Const.] The act by which a person acquires the property in a thing. The word "acquisition" as used in S. 23, Land Acquisition Act (1 of 1894), includes the purpose for which the land is taken as well as the actual taking. (Collector of Dinajpore v. Girja Nath Roy, (1898) ILR 25 Cal 346)"
(III) As per the Law Lexicon, 3 rd Edition, "Acquisition' and 'Requisition'" means "Acquisition'' and 'Requisition'- Acquisition means acquiring of entire title of expropriated owner. Requisition involves merely taking of domain or control over property without acquiring rights of ownership for temporary duration. It cannot be continued indefinitely. H.D. Vora v. State of Maharashtra, AIR 1984 SC 866, 869; Grahak Sanstha Manch v. State of Maharashtra, AIR 1994 SC 2319, 2327:
(1994) 4 SCC 192."
The concept of acquisition has an air of permanence and finally there is transference of the title of the original holder to the acquiring authority or the) Government. The concept of requisition merely involves taking of domain or control over property without acquiring rights of ownership. From the very nature of things, it is only of a temporary duration. Brij Narain v. Union of India, AIR 1988 Del 116, 119. [Income Tax Act (43 of W.As.959&975/2020 67 1961), S. 4]"
(iv) In Chiranjit Lal Chowdhuri vs. The Union of India (UOI) and Ors. [ AIR 1951 SC 41] the Hon'ble Supreme Court dealt with the meaning of "acquisition" made it clear that acquisition referred to acquisition of the entire interest of the previous holder by transfer of title i.e., of ownership right. The relevant paras as follows:
"51. It cannot be disputed that acquisition means and implies the acquiring of the entire title of the expropriated owner, whatever the nature or extent of that title might be. The entire bundle of rights which were vested in the original holder would pass on acquisition to the acquirer leaving nothing in the former. In taking possession on the other hand, the title to the property admittedly remains in the original holder, though he is excluded from possession or enjoyment of the property. Article 31(2) of the Constitution itself makes a clear distinction between acquisition of property and taking possession of it for a public purpose, though it places both of them on the same footing in the sense that a legislation authorising either of these acts must make provision for payment of compensation to the displaced or expropriated holder of the property."
79. Now, let us consider the meaning of the word "requisition", in the context of Land Acquisition and Requisition laws. It is well known that if a Statute has not defined an expression or word, external aid from similar laws can be taken, if there is a pari materia provision in other laws.
The guiding principles as regards, what is pari materia, have been considered by the Hon'ble Supreme Court in some decisions, which we deem fit to consider as hereunder:
(I) In Sutherland, in 'Statutory Construction', 3rd Edition, Vol. 2, at p. 535, states as under:W.As.959&975/2020 68
"Statutes are considered to be in pari materia - to pertain to the same subject matter-when they relate to the same person or thing, or to the same class of persons or things, or have the same purpose or object."
The learned author, further states, at p. 537 :
"To be in pari materia, statutes need not have been enacted simultaneously or refer to one another."
Again, at p. 544, it is stated :
"When the legislature enacts a provision, it has before it all the other provisions relating to the same subject matter which it enacts at that time, whether in the same statute or in a separate act. It is evident that it has in mind the provisions of a prior act to which it refers, whether it phrases the later act as an amendment or an independent act. Experience indicates that a legislature does not deliberately enact inconsistent provisions when it is cognizant of them both, without expressly recognizing the inconsistency."
The canon of construction, under these circumstances, is stated by the author, at p. 531 :
"Prior statutes relating to the same subject matter are to be compared with the new provision; and if possible by reasonable construction, both are to be so construed that effect is given to every provision of each. Statutes in pari materia although in apparent conflict, are so far as reasonably possible construed to be in harmony with each other."
(ii) In Craies, on 'Statute Law', 6th Edition, at p. 133, it is stated as under:
"Where Acts of Parliament are in pari materia, that is to say, are so far related to from a system or code of legislation, the rule as laid down by the twelve judges in Plamer's Case (1785) 1 Leach C. C. 4th ed.. 355, is that such Acts 'are to be taken together as forming one system, and as interpreting and enforcing each other. In the American case of United Society v. Eagle Bank (1829) 7 Conn. 475, Hosmer J. said : 'Statutes are in pari materia which relate to the same person or thing or to the same class of persons or things....."
(iii) In Maxwell on 'The Interpretation of Statutes', 11 th Edition, W.As.959&975/2020 69 p. 153, the principle is stated thus :
"An author must be supposed to be consistent with himself, and, therefore, if in one place he has expressed his mind clearly, it ought to be presumed that he is still of the same mind in another place, unless it clearly appears that he has changed it. In this respect, the work of the legislature is treated in the same manner as that of any other author, and the language of every enactment must be construed as far as possible in accordance with the terms of every other statute which it does not in express terms modify or repeal.... It cannot be assumed that Parliament has given with one hand what it has taken away with the other."
(iv) In Ahmedabad Pvt. Primary Teachers' Association v. Administrative Officer and Ors. [(2004) 1 SCC 755] the Hon'ble Supreme Court considered the doctrine of pari materia and held thus:
"On the doctrine of 'pari materia', reference to other statutes dealing with the same subject or forming part of the same system is a permissible aid to the construction of provisions in a statute."
80. Having regard to the pronouncement of law in Ahmedabad Pvt. Primary Teachers' Association case (supra), let us consider as to how, in an enactment, viz., Bombay Land Acquisition Act, 1948, the word "Requisition" has been defined. Section 4(5) of the said Act, reads thus:
"(5).'to requisition' means in relation to any land to take possession of the land or to require the land at the disposal of the (State) Government."
81. Section 5 of the said Act, reads thus:
"5. Requisition of land. - (1) If in the opinion of the [State] Government it is necessary or expedient so to do, the [State] Government may by order in writing requisition any land for [any public purpose]:
Provided that no building or part thereof wherein W.As.959&975/2020 70 the owner, the landlord or the tenant, as the case may be, has actually resided for the continuous period of six months immediately preceding the date of the order shall be requisitioned under this section.
(2) Where any building or part thereof is to be requisitioned under sub-section (1) the [State] Government shall make such enquiry as it deems fit and make a declaration in the order of requisition that the owner, the landlord or the tenant, as the case may be, has not actually resided therein for a continuous period of six months immediately preceding the date of the order and such declaration shall be conclusive evidence that the owner, landlord or tenant has not so resided."
82. In H.D. Vora v. State of Maharashtra and Ors. [(1984) 2 SCC 337], the petitioner therein filed an appeal, by way of a Special Leave, raising a question of law as to whether an order of requisition of the premises can be continued for an indefinite period of time or it must necessarily be of temporary duration. The Hon'ble Supreme Court, with reference to Entry 42 of List III in the Constitution of India, explained the conceptual difference between Acquisition and Requisition, and at paragraph 6, held thus:
"6.................There is a basic and fundamental distinction recognised by law between requisition and acquisition. The Constitution itself in Entry 42 of List III of the Seventh Schedule makes a distinction between acquisition and requisitioning of property. The original Article 31 Clause (2) of the Constitution also recognised this distinction between Compulsory acquisition and requisitioning of property. The two concepts, one of requisition and the other of acquisition are totally distinct and independent. Acquisition means the acquiring of the entire title of the expropriated W.As.959&975/2020 71 owner whatever the nature and extent of that title may be. The entire bundle of rights which was vested in the original holder passes on acquisition to the acquirer leaving nothing to the former Vide : Observations of Mukherjee,. J. in Chiranjitlal's case. The concept of acquisition has an air of permanence and finality in that there is transference of the title of the original holder to the acquiring authority. But the concept of requisition involves merely taking of "domain or control over property without acquiring rights of ownership"
and must by its very nature be of temporary duration.
If requisitioning of property could legitimately continue for an indefinite period of time, the distinction between requisition and acquisition would tend to become blurred, because in that event for all practical purposes the right, to possession and enjoyment of the property which constitutes a major constituent element of the right of ownership would be vested indefinitely without any limitation of time in the requisitioning authority and it would be possible for the authority to substantially take over the property without acquiring it and paying full market value as compensation under the Land Acquisition Act, 1894. We do not think that the government can under the guise of requisition continued for an indefinite period of time, in substance acquire the property, because that would be a fraud on the power conferred on the government. If the government wants to take over the property for an indefinite period of time, the government must acquire the property but it cannot use the power of requisition for achieving that object. The power of requisition is exercisable by the government only for a public purpose which is of a transitory character. If the public purpose for which the premises are required is of a perennial or permanent character from the very inception, no order can be passed requisitioning the premises and in such a case the order of requisition, if passed, would be a fraud upon the statute, for the government would be requisitioning the premises when really speaking they want the premises for acquisition, the object of taking the premises being not transitory but permanent in character. Where the purpose for which the premises are required is of such a character that from the very inception it can never be served by requisitioning the premises but can be achieved only by acquiring the property which would be the case where the purpose is of a permanent character or likely to W.As.959&975/2020 72 subsist for an indefinite period of time, the government may acquire the premises but it certainly cannot requisition the premises and continue the requisitioning indefinitely."
83. The Disaster management Act, 2005, is an Act to provide for the effective management of disasters and for matters connected therewith or incidental thereto. Section 2 of the Act, 2005 deals with definition's and the same reads thus:
"2. Definitions.-- In this Act, unless the context otherwise requires,-
(a) xxxxxxxxxxx
(b) xxxxxxxxxxx
(c) xxxxxxxxxxx
(d) "Disaster" means a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man made causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area.
(e) "disaster management" means a continuous and integrated process of planning, organising, coordinating and implementing measures which are necessary or expedient for-- (i) prevention of danger or threat of any disaster; (ii) mitigation or reduction of risk of any disaster or its severity or consequences; (iii) capacity-building; (iv) preparedness to deal with any disaster; (v) prompt response to any threatening disaster situation or disaster;
(vi) assessing the severity or magnitude of effects of any disaster; (vii) evacuation, rescue and relief; (viii) rehabilitation and reconstruction;
(f) xxxxxxxxxxx
(g) xxxxxxxxxxx
(h) xxxxxxxxxxx
(i)"mitigation" means measures aimed at reducing the risk, impact or effects of a disaster or threatening disaster W.As.959&975/2020 73 situation;
(j) xxxxxxxxxxx
(k) xxxxxxxxxxx
(l) xxxxxxxxxxx
(m)"preparedness" means the state of readiness to deal with a threatening disaster situation or disaster and the effects thereof;"
84. A combined reading of the definitions in Section 2 of the Disaster Management Act, 2005, make it clear about the nature of the Act, promptitude in which the authorities are mandated to act on various factors contained in Section 2(e) of the Act, viz., Disaster Management, measures to be taken, reduction of risk, impact or effects of disaster or threatening disaster situation.
85. Right to property is no more a fundamental right. But right to live is a right guaranteed under Article 21 of the Constitution of India. Safety and security of the people is the paramount importance of Disaster Management Act, 2005. In the case on hand, the alarming spread of Covid-19 is explained in the counter affidavit.
86. Preventive measures, degree of disaster management and preparedness to ensure prompt and adequate treatment, as per the Health protocol is the mandate of the Disaster Management Act, 2005. The Act envisages constitution of Authorities/Committees etc., at National / State / District level.
87. Interpretation of the expression "order in writing" requires to be W.As.959&975/2020 74 addressed as to whether it conveys a meaning, "request in writing".
Whether under Section 65(1)(c) of the Disaster Management Act, 2005, the competent authority is mandated to issue any notice to the owner of the premises, before taking over, and if not done, whether it amounts to violation of natural justice? The expression used in Section 65(1)(c) of the Disaster Management Act, 2005, states "order in writing, requisition of such resources or premises", whether it would be appropriate to read, the same as "requisition in writing" or to say, "request in writing". If the expression is read and interpreted as contended by the learned counsel for the appellants, whether it would amount to substitution?
88. In the interpretive process, whether the courts can add, alter, substitute or delete, we deem it fit to consider a few decisions.
(i) In CIT v. Badhraja and Company reported in 1994 Supp (1) SCC 280, the Hon'ble Apex Court held that an object oriented approach, however, cannot be carried to the extent of doing violence to the plain meaning of the Section used by rewriting the Section or substituting the words in the place of actual words used by the legislature.
(ii) In Dadi Jagannadham v. Jammulu Ramulu reported in (2001) 7 SCC 71, the Hon'ble Supreme Court held thus:-
"13. We have considered the submissions made by the parties. The settled principles of interpretation are that the court must proceed on the assumption that the legislature did not make a mistake and that it did what it intended to do. The court must, as far as possible, adopt a construction which will carry out the obvious intention of the legislature.W.As.959&975/2020 75
Undoubtedly if there is a defect or an omission in the words used by the legislature, the court would not go to its aid to correct or make up the deficiency. The court could not add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result. The court cannot aid the legislature's defective phrasing of an Act, or add and mend, and, by construction, make up deficiencies which are there."
(iii) In Institute of C.A. of India v. Ajit Kumar Iddya reported in AIR 2003 Kant. 187, the Karnataka High Court held that, "So far as the cardinal law of interpretation is concerned, it is settled that if the language is simple and unambiguous, it is to be read with the clear intention of the legislation. Otherwise also, any addition/subtraction of a word is not permissible. In other words, it is not proper to use a sense, which is different from what the word used ordinarily conveys. The duty of the Court is not to fill up the gap by stretching a word used. It is also settled that a provision is to be read as a whole and while interpreting, the intention and object of the legislation have to be looked upon. However, each case depends upon the facts of its own."
(iv) In Sanjay Singh v. U.P. Public Service Commission reported in (2007) 3 SCC 720, the Hon'ble Supreme Court held that, -
"It is well settled that courts will not add words to a statute or read into the statute words not in it. Even if the courts come to the conclusion that there is any omission in the words used, it cannot make up the deficiency, where the wording as it exists is clear and unambiguous. While the courts can adopt a construction which will carry out the obvious intention of the legislative or the rule-making authority, it cannot set at naught the legislative intent clearly expressed in a statute or the rules."
(v) In Phool Patti v. Ram Singh reported in (2009) 13 SCC 22, the Hon'ble Supreme Court held thus:
"9. It is a well-settled principle of interpretation that the court cannot add words to the statute or change its W.As.959&975/2020 76 language, particularly when on a plain reading the meaning seems to be clear."
89. In the backdrop of the statutory provisions of the Disaster Management Act, 2005, let us consider a few decisions on the interpretation of statutes:
(i) In the words of Tindal, C.J., in Sussex Peerage case [(1844) 11 Cl & F 85] "If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves so alone in such cases best declare the intent of the lawgiver.
(ii) In Nairin v. University of St. Andrews reported in 1909 AC 147, the Hon'ble Court held that, "Unless there is any ambiguity it would not be open to the Court to depart from the normal rule of construction which is that the intention of the Legislature should be primarily gathered from the words which are used. It is only when the words used are ambiguous that they would stand to be examined and construed in the light of surrounding circumstances and constitutional principle and practice.
(iii) In Ram Rattan v. Parma Nand reported in AIR 1946 PC 51, the Hon'ble Mr.S.R.Das, held as follows:
"The cardinal rule of construction of statutes is to read the statutes literally, that is, by giving to the words their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning, the Court may adopt the same. But if no such alternative construction is possible, the Court must adopt the ordinary rule of literal interpretation. In the present case, the literal construction leads to W.As.959&975/2020 77 no apparent absurdity and therefore, there can be no compelling reason for departing from that golden rule of construction."
(iv) In Poppatlal Shah v. State of Madras reported in AIR 1953 SC 274, the Hon'ble Supreme Court held that, "It is settled rule of construction that to ascertain the legislative intent all the constituent parts of a statute are to be taken together and each word, phrase and sentence is to be considered in the light of the general purpose and object of the Act itself."
(v) In Rao Shiv Bahadur Singh v. State, reported in AIR 1953 SC 394, the Hon'ble Supreme Court held that, "While, no doubt, it is not permissible to supply a clear and obvious lacuna in a statute, and imply a right of appeal, it is incumbent on the Court to avoid a construction, if reasonably permissible on the language, which would render a part of the statute devoid of any meaning or application."
(vi) What is the spirit of law, Hon'ble Mr. Justice S.R.Das in Rananjaya Singh v. Baijnath Singh reported in AIR 1954 SC 749, said that, "The spirit of the law may well be an elusive and unsafe guide and the supposed spirit can certainly not be given effect to in opposition to the plain language of the Sections of the Act."
(vii) In Hari Prasad Shivashanker Shukla v. A.D.Divikar reported in AIR 1957 SC 121, the Hon'ble Apex Court held thus:
"It is true that an artificial definition may include a meaning different from or in excess of the ordinary acceptation of the word which is the subject of definition; but there must then be compelling words to show that such a meaning different from or in excess of the ordinary meaning is intended, Where, within the framework of the ordinary acceptation of the word, every single requirement of the definition clause is fulfilled, it W.As.959&975/2020 78 would be wrong to take the definition as destroying the essential meaning of the word defined."
(viii) In Kanai Lal Sur v. Paramnidhi Sadhukhan reported in AIR 1957 SC 907, the Hon'ble Supreme Court held thus:
"It must always be borne in mind that the first and primary rule of construction is that the intention of the Legislature must be found in the words used by the Legislature itself. If the words used are capable of one construction only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act.
The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise. When the material words are capable of two constructions, one of which is likely to defeat or impair the policy of the Act whilst the other construction is likely to assist the achievement of the said policy, then the courts would prefer to adopt the latter construction.
It is only in such cases that it becomes relevant to consider the mischief and defect which the, Act purports to remedy and correct."
(ix) In Attorney-General v. HRH Prince Ernest Augustus of Hanover reported in (1957) 1 All.ER 49, Lord Somervell of Harrow has explained the unambiguous, as "unambiguous in context".
(x) In State of W.B., v. Union of India reported in AIR 1963 SC 1241, the Hon'ble Apex Court held that in considering the expression used by the Legislature, the Court should have regard to the aim, object and scope of the statute to be read in its entirety.
(xi) In State of Uttar Pradesh v. Dr.Vijay Anand Maharaj reported W.As.959&975/2020 79 in AIR 1963 SC 946, the Supreme Court held as follows:
"But it is said, relying upon certain passages in Maxwell on the Interpretation of Statutes, at p, 68, and in Crawford on "Statutory Construction' at p. 492, that it is the duty of the Judge "to make such construction of a statute as shall suppress the mischief and advance the remedy," and for that purpose the more extended meaning could be attributed to the words so as to bring all matters fairly within the scope of such a statute even though outside the letter, if within its spirit or reason. But both Maxwell and Crawford administered a caution in resorting to such a construction. Maxwell says at p.68 of his book:
"The construction must not, of course, be strained to include cases plainly omitted from the natural meaning of the words."
Crawford says that a liberal construction does not justify an extension of the statute's scope beyond the contemplation of the Legislature.
The fundamental and elementary rule of construction is that the words and phrases used by the Legislature shall be given their ordinary meaning and shall be constructed according to the rules of grammar. When the language is plain and unambiguous and admits of only one meaning, no question of construction of a statute arises, for the Act speaks for itself. It is a well recognized rule of construction that the meaning must be collected from the expressed intention of the Legislature."
(xii) In Namamal v. Radhey Shyam reported in AIR 1970 Rajasthan 26, the Court held as follows:
"It was observed by Pollock C. B. in Waugh v. Mid- dleton, 1853-8 Ex 352 (356):-- "It must, however, be conceded that where the grammatical construction is clear and manifest and without doubt, that construction ought to prevail, unless there be some strong and obvious reason to the contrary. But the rule adverted to is subject to this condition, that however plain the apparent grammatical construction of a sentence may be, if it be properly clear from the contents of the same document that the apparent grammatical construction cannot be the true one, then W.As.959&975/2020 80 that which, upon the whole, is the true meaning shall prevail, in spite of the grammatical construction of a particular part of it." And substantially the same opinion is expressed by Lord Selborne in Caledonian Ry, v. North British Ry. (1881) 6 AC 114 (222):-- "The mere literal construction of a statute ought not to prevail if it is opposed to the intentions of the legislature as apparent by the statute, and if the words are sufficiently flexible to admit of some other construction by which, that intention can be better effectuated." Again Lord Fitzgerald in Bradlaugh v. Clarke, (1883) 8 AC 354 at p. 384 observed as follows:-- "I apprehend it is a rule in the construction of statutes that in the first instance the grammatical sense of the words is to be adhered to. If that is contrary to, or inconsistent with, any expressed intention or declared purpose of the statutes, or if it would involve any absurdity, repugnance, or inconsistency, the grammatical sense must then be modified, extended, or abridged, so far as to avoid such an inconvenience, but no further." 11. Maxwell in his book on Interpretation of Statutes (11 th Edition) at page 226 observes thus:--
"The rule of strict construction, however, whenever invoked, comes attended with qualifications and other rules no less important, and it is by the light which each contributes that the meaning must be determined. Among them is the rule that that sense of the words is to be adopted which best harmonises with the context and promotes in the fullest manner the policy and object of the legislature. The paramount object, in construing penal as well us other statutes, is to ascertain the legislative intent and the rule of strict construction is not violated by permitting the words to have their full meaning, or the more extensive of two meanings, when best effectuating the intention. They are indeed frequently taken in the widest sense, sometimes even in a sense more wide than etymologically belongs or is popularly attached to them, in order to carry out effectually the legislative intent, or, to use Sir Edward Cole's words, to suppress the mischief and advance the remedy."
(xiii) In Inland Revenue Commissioner v. Joiner reported in W.As.959&975/2020 81 (1975) 3 All. ER 1050, it has been held that normally a statutory provision consists of a general description of some factual situation and the legal consequences ensuing from it. Whether the general description is wide or narrow, it will have some limits. The question before a court of law in dealing with a statute is whether the factual situation proved before it falls within the general description given in the statute. A real difficulty in determining the right answer can be said to arise from an "ambiguity" in the statute. It is in this sense that the words, "ambiguity" and "ambiguous" are widely used in judgments.
(xiv) In Commissioner of Sales Tax v. M/s.Mangal Sen Shyamlal reported in 1975 (4) SCC 35 : AIR 1975 SC 1106, the Hon'ble Apex Court held thus:
"A statute is supposed to be an authentic repository of the legislative will and the function of a court is to interpret it "according to the intent of them that made it". From that function the court is. not to resile. It has to abide by the maxim, "ut res magis valiat quam pereat", lest the intention of the legislature may go in vain or be left to evaporate into thin air."
(xv) In C.I.T., Madras v. T.Sundram Iyengar (P) Ltd., reported in (1976) 1 SCC 77, the Hon'ble Supreme Court held that, if the language of the statute is clear and unambiguous and if two interpretations are not reasonably possible, it would be wrong to discard the plain meaning of the words used, in order to meet a possible injustice.
(xvi) If the words are precise and unambiguous, then it should be accepted, as declaring the express intention of the legislature. In Ku.Sonia Bhatia v. State of U.P., and others reported in 1981 (2) SCC 585 : AIR 1981 SC 1274, the Hon'ble Supreme Court held W.As.959&975/2020 82 that a legislature does not waste words, without any intention and every word that is used by the legislature must be given its due import and significance.
(xvii) In LT.-Col. Prithi Pal Singh Bedi v. Union of India reported in (1983) 3 SCC 140, at Paragraph 8, the Hon'ble Supreme Court held as follows:
"8. The dominant purpose in construing a statute is to ascertain the intention of the Parliament. One of the well recognised canons of construction is that the legislature speaks its mind by use of correct expression and unless there is any ambiguity in the language of the provision the Court should adopt literal construction if it does not lead to an absurdity. ..........If the literal construction leads to an absurdity, external aids to construction can be resorted to. To ascertain the literal meaning it is equally necessary first to ascertain the juxtaposition in which the rule is placed, the purpose for which it is enacted and the object which it is required to subserve and the authority by which the rule is framed. This necessitates examination of the broad features of the Act."
(xviii) In Philips India Ltd., v. Labour Court reported in 1985 (3) SCC 103, the Hon'ble Apex Court, at Paragraph 15, held as follows:
"(15) No cannon of statutory construction is more firmly, established than that the statute must be read as a whole.
This is a general rule of construction applicable to all statutes alike which is spoken of as construction ex visceribus actus. This rule of statutory construction is so firmly established that it is variously styled as 'elementary rule' (See Attorney General v. Bastow [(1957) 1 All.ER 497]) and as a 'settled rule' (See Poppatlal Shall v. State of Madras [1953 SCR 667 : AIR 1953 SC 274]). The only recognised exception to this well-laid principle is that it cannot be called in aid to alter the meaning of what is of itself clear and explicit. Lord Coke laid down that: 'it is the most natural and genuine exposition of a statute, to construe one part of a statute by another part of the same statute, for that best expresseth meaning of the makers' (Quoted with approval in Punjab Breverages Pvt. Ltd. v. Suresh Chand W.As.959&975/2020 83 [(1978) 3 SCR 370 : (1978) 2 SCC 144 : 1978 SCC (L&S) 165])."
(xix) In Narendra H.Khzurana v. Commissioner of Police reported in 2004 (2) Mh.L.R. 72, it was held that, it must be noted the proper course in interpreting a statute in the first instance is to examine its language and then ask what is the natural meaning uninfluenced by the considerations derived from previous state of law and then assume that it was property intended to leave unaltered. It is a settled legal position, therefore, that the Courts must try to discover the real intent by keeping the direction of the statute intact.
(xx) In Nyadar Singh v. Union of India reported in AIR 1988 SC 1979, the Hon'ble Apex Court observed that ambiguity need not necessarily be a grammatical ambiguity, but one of the appropriateness of the meaning in a particular context.
(xxi) It is a well settled law of interpretation that "when the words of the statute are clear, plain or unambiguous, ie., they are reasonably susceptible to only one meaning, the Courts are bound to give effect to that meaning irrespective of consequences. Reference can be made to the decision of the Hon'ble Apex Court in Nelson Motis v. Union of India reported in AIR 1992 SC 1981."
(xxii) In M/s.Oswal Agro Mills Ltd., v. Collector of Central Excise and others reported in 1993 Supp (3) SCC 716 = AIR 1993 SC 2288, the Hon'ble Apex Court held thus:
"where the words of the statute are plain and clear, there is no room for applying any of the principles of interpretation, which are merely presumption in cases of ambiguity in the statute. The Court would interpret them as they stand."
(xxiii) In Nasiruddin v. Sita Ram Agarwal reported in (2003) 2 W.As.959&975/2020 84 SCC 577, the Hon'ble Supreme Court held as follows:
"35. In a case where the statutory provision is plain and unambiguous, the court shall not interpret the same in a different manner, only because of harsh consequences arising therefrom....
The court's jurisdiction to interpret a statute can be invoked when the same is ambiguous. It is well known that in a given case the court can iron out the fabric but it cannot change the texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of the provision is plain and unambiguous. It cannot add or subtract words to a statute or read something into it which is not there. It cannot rewrite or recast legislation. It is also necessary to determine that there exists a presumption that the legislature has not used any superfluous words. It is well settled that the real intention of the legislation must be gathered from the language used. ....But the intention of the legislature must be found out from the scheme of the Act."
(xxiv) In Indian Dental Association, Kerala v. Union of India reported in 2004 (1) Kant. LJ 282, the Court held that, "The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention expressed in the Acts themselves. The object of all interpretation is to discover the intention of Parliament, "but the intention of Parliament must be deduced from the language used", for it is well-accepted that the beliefs and assumptions of those who frame Acts of Parliament cannot make the law. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. Where the language of an Act is clear and explicit, the Court must give effect to it, whatever may be the consequences, for in that case the words of the statute speak the intention of the Legislature. Where the language is plain and admits of but one meaning, the task of interpretation can hardly be said to arise. The decision in a case calls for a full and fair application of particular statutory language to particular facts as found. It is a corollary to the general rule of literal construction that nothing is to be added to W.As.959&975/2020 85 or taken from a statute unless there are adequate grounds to justify the inference that the Legislature intended something which it omitted to express. A construction which would leave without effect any part of the language of a statute will normally be rejected."
(xxv) In Nathi Devi v. Radha Devi Gupta reported in AIR 2005 SC 648, the Hon'ble Apex Court held that,-
"The interpretation function of the Court is to discover the true legislative intent, it is trite that in interpreting a statute the Court must, if the words are clear, plain, unambiguous and reasonably susceptible to only one meaning, give to the words that meaning, irrespective of the consequences. Those words must be expounded in their natural and ordinary sense. When a language is plain and unambiguous and admits of only one meaning no question of construction of statute arises, for the Act speaks for itself. Courts are not concerned with the policy involved or that the results are injurious or otherwise, which may follow from giving effect to the language used. If the words used are capable of one construction only then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. In considering whether there is ambiguity, the Court must look at the statute as a whole and consider the appropriateness of the meaning in a particular context avoiding absurdity and inconsistencies or unreasonableness which may render the statute unconstitutional."
In Nathi Devi's case, it was further held that, "It is equally well-settled that in interpreting a statute, effort should be made to give effect to each and every word used by the Legislature. The Courts always presume that the Legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. A construction which attributes redundancy to the legislature will not be accepted except for compelling reasons such as obvious drafting errors."
(xxvi) In Justice G.P. Singh's Principles of Statutory Interpretation (11th Edn., 2008), the learned author while referring to judgments of W.As.959&975/2020 86 different Courts states (at page 134) that procedural laws regulating proceedings in court are to be construed as to render justice wherever reasonably possible and to avoid injustice from a mistake of court. He further states (at pages 135 and 136) that:
"Consideration of hardship, injustice or absurdity as avoiding a particular construction is a rule which must be applied with great care. "The argument ab inconvenienti", said LORD MOULTON, "is one which requires to be used with great caution".
(xxvii) In State of Jharkhand v. Govind Singh reported in (2005) 10 SCC 437, the Hon'ble Supreme Court held as under:
"12. It is said that a statute is an edict of the legislature. The elementary principle of interpreting or construing a statute is to gather the mens or sententia legis of the legislature.
13. Interpretation postulates the search for the true meaning of the words used in the statute as a medium of expression to communicate a particular thought. The task is not easy as the "language" is often misunderstood even in ordinary conversation or correspondence. The tragedy is that although in the matter of correspondence or conversation the person who has spoken the words or used the language can be approached for clarification, the legislature cannot be approached as the legislature, after enacting a law or Act, becomes functus officio so far as that particular Act is concerned and it cannot itself interpret it. No doubt, the legislature retains the power to amend or repeal the law so made and can also declare its meaning, but that can be done only by making another law or statute after undertaking the whole process of law-making.
14. Statute being an edict of the legislature, it is necessary that it is expressed in clear and unambiguous language.....
15. Where, however, the words were clear, there is no obscurity, there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for the court to innovate or take upon itself the task of amending or altering the statutory provisions. In that situation the W.As.959&975/2020 87 judges should not proclaim that they are playing the role of a lawmaker merely for an exhibition of judicial valour. They have to remember that there is a line, though thin, which separates adjudication from legislation. That line should not be crossed or erased. This can be vouchsafed by an alert recognition of the necessity not to cross it and instinctive, as well as trained reluctance to do so. (See Frankfurter: Some Reflections on the Reading of Statutes in Essays on Jurisprudence, Columbia Law Review, p. 51.)
16. It is true that this Court in interpreting the Constitution enjoys a freedom which is not available in interpreting a statute and, therefore, it will be useful at this stage to reproduce what Lord Diplock said in Duport Steels Ltd. v. Sirs [(1980 (1) All.ER 529] (All ER at p. 542c-d):
"It endangers continued public confidence in the political impartiality of the judiciary, which is essential to the continuance of the rule of law, if judges, under the guise of interpretation, provide their own preferred amendments to statutes which experience of their operation has shown to have had consequences that members of the court before whom the matter comes consider to be injurious to the public interest."
(xxviii) In Vemareddy Kumaraswamy Reddy v. State of A.P., [(2006) 2 SCC 670], the Hon'ble Supreme Court held thus, "12. It is said that a statute is an edict of the legislature. The elementary principle of interpreting or construing a statute is to gather the mens or sententia legis of the legislature. It is well-settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous."
(xxix) In A.N.Roy Commissioner of Police v. Suresh Sham Singh [AIR 2006 SC 2677], the Hon'ble Apex Court held thus:
"It is now well settled principle of law that, the Court cannot change the scope of legislation or intention, when the language of the statute is plain and unambiguous. Narrow and pedantic construction may not always be given effect to. Courts should avoid a construction, which would reduce the legislation to W.As.959&975/2020 88 futility. It is also well settled that every statute is to be interpreted without any violence to its language. It is also trite that when an expression is capable of more than one meaning, the Court would attempt to resolve the ambiguity in a manner consistent with the purpose of the provision, having regard to the great consequences of the alternative constructions."
(xxx) In Adamji Lookmanji & Co. v. State of Maharastra reported in AIR 2007 Bom. 56, the Bombay High Court held that, when the words of status are clear, plain or unambiguous, and reasonably susceptible to only meaning, Courts are bound to give effect to that meaning irrespective of the consequences. The intention of the legislature is primarily to be gathered from the language used. Attention should be paid to what has been said in the statute, as also to what has not been said.
(xxxi) In State of Haryana v. Suresh reported in 2007 (3) KLT 213, the Hon'ble Supreme Court held thus:
"One of the basic principles of Interpretation of Statutes is to construe them according to plain, literal and grammatical meaning of the words. If that is contrary, to or inconsistent with any express intention or declared purpose of the Statute, or if it would involve any absurdity, repugnancy or inconsistency, the grammatical sense must then be modified, extended or abridged, so far as to avoid such an inconvenience, but no further. The onus of showing that the words do not mean what they say lies heavily on the party who alleges it must advance something which clearly shows that the grammatical construction would be repugnant to the intention of the Act or lead to some manifest absurdity."
(xxxii) In Visitor Amu v. K.S.Misra reported in (2007) 8 SCC 594, the Hon'ble Supreme Court held thus:
"It is well settled principle of interpretation of the statute that it is incumbent upon the Court to avoid a construction, if reasonably permissible on the language, which will render a part of the statute devoid of any W.As.959&975/2020 89 meaning or application. The Courts always presume that the legislature inserted every part thereof for a purpose and the legislative intent is that every of the statute should have effect. The legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature will not be accepted except for compelling reasons. It is not a sound principle of construction to brush aside words in a statute as being in apposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute."
(xxxiii) In Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd., reported in (2008) 4 SCC 755, the Hon'ble Supreme Court, at paragraphs 52, 54, 55 and 56, held as follows:
"52. No doubt ordinarily the literal rule of interpretation should be followed, and hence the court should neither add nor delete words in a statute. However, in exceptional cases this can be done where not doing so would deprive certain existing words in a statute of all meaning, or some part of the statute may become absurd."
(xxxiv) In Mohd. Shahabuddin v. State of Bihar, reported in (2010) 4 SCC 653, the Hon'ble Supreme Court held thus:
"179. Even otherwise, it is a well-settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous. The language employed in a statute is a determinative factor of the legislative intent. If the language of the enactment is clear and unambiguous, it would not be proper for the courts to add any words thereto and evolve some legislative intent, not found in the statute. Reference in this regard may be made to a recent decision of this Court in Ansal Properties & Industries Ltd. v. State of Haryana [(2009) 3 SCC 553]
180. Further, it is a well-established principle of statutory interpretation that the legislature is specially precise and careful in its choice of language. Thus, if a statutory provision is enacted by the legislature, which prescribes a condition at one place but not at some other place in the same provision, the only reasonable interpretation which can be resorted to by the courts is that such was the intention of W.As.959&975/2020 90 the legislature and that the provision was consciously enacted in that manner. In such cases, it will be wrong to presume that such omission was inadvertent or that by incorporating the condition at one place in the provision the legislature also intended the condition to be applied at some other place in that provision."
(xxxv) In Satheedevi v. Prasanna reported in (2010) 5 SCC 622, the Hon'ble Supreme Court held as follows:
"12. Before proceeding further, we may notice two well- recognised rules of interpretation of statutes. The first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself. If the words used are capable of one construction, only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise--Kanai Lal Sur v. Paramnidhi Sadhukhan [AIR 1957 SC 907]
13. The other important rule of interpretation is that the court cannot rewrite, recast or reframe the legislation because it has no power to do so. The court cannot add words to a statute or read words which are not there in it. Even if there is a defect or an omission in the statute, the court cannot correct the defect or supply the omission - Union of India v. Deoki Nandan Aggarwal [1992 Supp (1) SCC 323] and Shyam Kishori Devi v. Patna Municipal Corpn. [AIR 1966 SC 1678]"
(xxxvi) In Sri Jeyaram Educational Trust & Ors., v. A.G.Syed Mohideen & Ors. [2010 CIJ 273 SC (1)], it was held thus:
"6. It is now well settled that a provision of a statute should have to be read as it is, in a natural manner, plain and straight, without adding, substituting or omitting any words. While doing so, the words used in the provision should be assigned and ascribed their natural, ordinary or popular meaning. Only when such plain and straight reading, or ascribing the natural and W.As.959&975/2020 91 normal meaning to the words on such reading, leads to ambiguity, vagueness, uncertainty, or absurdity which were not obviously intended by the Legislature or the Lawmaker, a court should open its interpretation tool kit containing the settled rules of construction and interpretation, to arrive at the true meaning of the provision. While using the tools of interpretation, the court should remember that it is not the author of the Statute who is empowered to amend, substitute or delete, so as to change the structure and contents. A court as an interpreter cannot alter or amend the law. It can only interpret the provision, to make it meaningful and workable so as to achieve the legislative object, when there is vagueness, ambiguity or absurdity. The purpose of interpretation is not to make a provision what the Judge thinks it should be, but to make it what the legislature intended it to be."
(xxxvii) In Delhi Airtech Services (P) Ltd. v. State of U.P., [(2011) 9 SCC 354], the Hon'ble Supreme Court, while dealing with a provision under Section 17(3-A) of the Act, held thus:
"Therefore, the provision of Section 17(3-A) cannot be viewed in isolation as it is an intrinsic and mandatory step in exercising special powers in cases of emergency. Sections 17(1) and 17(2) and 17(3-A) must be read together. Sections 17(1) and 17(2) cannot be worked out in isolation.
55. It is well settled as a canon of construction that a statute has to be read as a whole and in its context. In Attorney General v. Prince Ernest Augustus of Hanover [1957 AC 436], Lord Viscount Simonds very elegantly stated the principle that it is the duty of court to examine every word of a statute in its context. The learned Law Lord further said that in understanding the meaning of the provision, the Court must take into consideration "not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern that the statute was intended to remedy."(All ER p. 53 I)
57. These principles have been followed by this Court in its Constitution Bench decision in Union of India v. Sankalchand Himatlal Sheth [1977 (4) SCC 193]. At SCC p. 240, Bhagwati, J. as His Lordship then was, in a concurring opinion held that words in a statute cannot be W.As.959&975/2020 92 read in isolation, their colour and content are derived from their context and every word in a statute is to be examined in its context. His Lordship explained that the word context has to be taken in its widest sense and expressly quoted the formulations of Lord Viscount Simonds, set out above."
90. Let us also consider a few decisions on purposive interpretation and purpose construction, which are extracted hereunder:
(i) In Indian Handicrafts Emporium and Ors. v. Union of India (UOI) and Ors. [(2003) 7 SCC 589], the Supreme Court held thus:
"97. The question, however, would remain as to what would happen to the property in question. In our opinion, the answer must be found out by reading all the provisions in their entirety.
98. It is now well-settled that for the purpose of interpretation of statute the entire statute is to be read in entirety. The purport and object of the Act must be given its full effect.
99. Furthermore, in a case of this nature, principles of purposive construction must come into play.
100. In Chief Justice of A.P. v. L.V.A. Dikshitulu [1979] 1SCR 26 , this Court observed:
"The primary principle of interpretation is that a Constitutional or statutory provision should be construed "according to the intent of they that made it" (Coke). Normally, such intent is gathered from the language of the provision. If the language or the phraseology employed by the legislation is precise and plain and thus by itself proclaims the legislative intent in unequivocal terms, the same must be given effect to, regardless of the consequence that may follow. But if the words used in the provision are imprecise, protean or evocative or can reasonably bear meanings more than one, the rule of strict grammatical construction ceases to be a sure guide to reach at the real legislative intent. In such a case, in order to ascertain the W.As.959&975/2020 93 true meaning of the terms and phrases employed, it is legitimate for the Court to go beyond the arid literal confines of the provision and to call in aid other well-recognised rules of construction, such as its legislative history, the basis scheme and framework of the statute as a whole, each portion throwing light, on the rest, the purpose of the legislation, the object sought to be achieved, and the consequence that may flow from the adoption of one in preference to the other possible interpretation."
101. In Kehar Singh v. State (Delhi Admn.) [1989 CriLJ 1] , this Court held:
"During the last several years, the 'golden rule' has been given a go-by. We now look for the "intention" of the legislature or the 'purpose' of the statute. first, we examine the words of the statute. If the words are precise and cover the situation on hand, we do not go further. We expound those words in the natural and ordinary sense of the words. But, if the words are ambiguous, uncertain or any doubt arises as to the terms employed, we deem it as our paramount duty to put upon the language of the legislature rational meaning. We then examine every word, every section and every provision. We examine the act as a whole. We examine the necessity which gave rise to the Act. We look at the mischiefs which the legislature intended to redress. We look at the whole situation and not just one-to-on relation. We will not consider any provision out of the framework of the statute. We will not view the provisions as abstract principles separated from the motive force behind. We will consider the provisions in the circumstances to which they owe their origin. We will consider the provisions to ensure coherence and consistency within the law as a whole and to avoid undesirable consequence."
102. In District Mining Officer v. Tata Iron & Steel Co. [(2001) 7 SCC 358], this Court stated:
"A statute is an edict of the legislature and in W.As.959&975/2020 94 construing a statute, it is necessary, to seek the intention of its maker. A statute has to be construed according to the intent of them that make it hand the duty of the court is to act upon the true intention of the legislature. If a statutory provision is open to more than one interpretation, the court has to choose that interpretation which represents the true intention of the legislature. This task very often raises difficulties because of various reasons, inasmuch as the words used may not be scientific symbols having any precise or definite meaning and the language may be an imperfect medium to convey one's thought or that the assembly of legislatures consisting of persons of various shades of opinion purport to convey a meaning which may be obscure. It is impossible even for the most imaginative legislature to forestall exhaustively situations and circumstances that may emerge after enacting a statute where its application may be called for. Nonetheless, the function of the courts is only to expound and not to legislate. Legislation in a modern State is actuated with some policy to curb some public evil or to effectuate some public benefit. The legislation is primarily directed to the problems before the legislature based on information derived from past and present experience. It may also be designed by use of general words to cover similar problems arising in future. But, from the very nature of things, it is impossible to anticipate fully in the varied situations arising in future in which the application of the legislation in hand may be called for and words chosen to communicate such indefinite referents are bound to be in many cases, lacking in clarity and precision and thus giving rise to controversial questions of construction. The process of construction combines both literal and purposive approaches. In other words, the legislative intention i.e. the true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the W.As.959&975/2020 95 mischief and its remedy to which the enactment is directed."
103. In State of A.P. v. Mc. Dowell Company [1996] 3 SCR 721, this Court held:
"An enactment cannot be struck down on the ground that Court thinks it unjustified. The Parliament and the Legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the need of the people and what is good and bad for them. The Court cannot sit in judgment over their wisdom. In this connection, it should be remembered that even in the case of administrative action, the scope of judicial review is limited to three grounds viz., (i) unreasonableness, which can more appropriately be called irrationality, (ii) illegality and (iii) procedural impropriety (See Council of civil Services Union v. Minister for the civil Services 1985 AC 374, which decision has been accepted by this Court as well). The applicability of doctrine of proportionality even in administrative law sphere is yet a debatable issue. (See the opinions of Lords Lowry and Ackner in R. v. Secretary of State for the Home Department Ex- parte Bring, 1991 AC 696. It would be rather odd if an enactment were to be struck down by applying the said principle when its applicability even in the administrative law sphere is not fully and finally settled."
104. In High Court of Gujarat and Anr. v. Gujarat Kishan Mazdoor Panchayat and Ors.[ 2003] 2 SCR 799, this Court noticed:
"37. In Reserve Bank of India v. Peerless Co. reported in [1987] 2 SCR 1, this Court said:-
"Interpretation must depend on the text and the context. They are the basis of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we W.As.959&975/2020 96 know why it was enacted. With this knowledge, the statute must be read, first a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute maker, provided by such context, its scheme, the sections, clauses, phrases, and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to any as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation, Statutes have to be construed so that every word has a place and everything is in its place..."
38. In "The Interpretation and Application of Statutes" by Reed Dickersen, the author at page 135 has discussed the subject while dealing with the importance of context of the statute in the following terms:-
"...The essence of the language is to reflect, express, and perhaps even effect the conceptual matrix of established ideas and values that identifies the culture to which it belongs. For this reason, language has been called 'conceptual map of human experience'."
39. The purport and object of the Statute is to see that a Tribunal becomes functional and as such the endeavours of the Court would be to see that to achieve the same, an interpretation of Section 10 of the Act be made in such a manner so that appointment of a President would be possible even at the initial constitution thereof.
40. Such a construction is permissible by taking recourse to the doctrine of strained construction, as has been succinctly dealt with by Francis Bennion in his Statutory Interpretation. At Section W.As.959&975/2020 97 304, of the treatise; purposive construction has been described in the following manner:-
"A purposive construction of an enactment is one which gives effect to the legislative purpose by -
(a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose (in this Code called a purposive-and-
literal construction), or
(b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called a purposive-and-strained construction)
41. In DPP v. Schildkamp (1971) AC 1, it was held that severance may be affected even where the 'blue pencil' technique is impracticable.
42. In Jones v. Wrotham Park Settled Estates (1980) AC 74, the law is stated in the following terms:-
"..I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction, even where this involves reading into the Act words which are not expressly included in it. Kammins Ballrooms Co. Ltd. v. Zenith Investments (Torquay) Ltd. 1971 AC 850 provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence W.As.959&975/2020 98 overlooked, and so omitted to deal with an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed."
43. In Principles of Statutory Interpretation of Justice G.P. Singh, 5th Edition, 1992, it is stated:
"The Supreme Court in Bangalore Water Supply v. A. Rajappa (1978)ILLJ349SC approved the rule of construction stated by DENNING, L.J. while dealing with the definition of 'Industry in the Industrial Disputes Act, 1947. The definition is so general and ambiguous that BEG, C.J. said that the situation called for "some judicial heroics to cope with the difficulties raised".
K. IYER, J., who delivered the leading majority judgment in that case referred with approbation the passage extracted above from the judgment of DENNING, L.J. in Seaford Court Estates Ltd. v. Asher. But in the same continuation he also cited a passage from the speech of LORD SIMONDS in the case of Magor & St. Mellon's R.D.C. v. Newport Corporation, 1951(2) All ER 839 as if it also found a part of the judgment of DENNING, L.J. This passage reads: "The duty of the court is to interpret the words that the legislature has used. Those words may be ambiguous, but, even if they are, the power and duty of the Court to travel outside them on a voyage of discovery are strictly limited." As earlier noticed LORD SIMONDS and other Law W.As.959&975/2020 99 Lords in Magor and St. Mellon's case were highly critical of the views of DENNING, L.J. However, as submitted above, the criticism is more because of the unconventional manner in which the rule of construction was stated by him. In this connection it is pertinent to remember that although a court cannot supply a real casus omissus it is equally clear that it should not so interpret a statute as to create a casus omissus when there is really none."
45. In Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Presiding Officer, Labour Court, Chandigarh and Ors. (1990) IILLJ 70 SC, this Court held:
"The court has to interpret a statute and apply it to the facts. Hans Kelsen in his Pure Theory of Law. (p. 355) makes a distinction between interpretation by the science of law or jurisprudence on the one hand and interpretation by a law-applying organ (especially the court) on the other. According to him "jurisprudential interpretation is purely cognitive ascertainment of the meaning of legal norms. In contradistinction to the interpretation by legal organs, jurisprudential interpretation does not create law". "The purely cognitive interpretation by jurisprudence is therefore unable to fill alleged gaps in the law. The filling of a so-
called gap in the law is a law-creating function that can only be performed by a law-applying organ; and the function of creating law is not performed by jurisprudence interpreting law.
Jurisprudential interpretation can do no more than exhibit all possible meanings of a legal norm. Jurisprudence as cognition of law cannot decide between the possibilities exhibited by it, but must leave the decision to the legal organ who, according to the legal order, is authorised to apply the law".
According to the author if law is to be W.As.959&975/2020 100 applied by a legal organ, he must determine the meaning of the norms to be applied : He must 'interpret' those norms (p. 348).
Interpretation therefore is an intellectual activity which accompanies the process of law application in its advance from a higher level to a lower level. According to him, the law to be applied is a frame. "There are cases of intended or unintended indefiniteness at the lower level and several possibilities are open to the application of law." the traditional theory believes that the statute, applied to a concrete case, can always supply only one correct decision and that the positive-legal 'correctness' of this decision is based on the statute itself. This theory describes the interpretative procedure as if it consisted merely in an intellectual act of clarifying or understanding; as if the law- applying organ had to use only his reason but not his will, and as if by a purely intellectual activity, among the various existing possibilities only one correct choice could be made in accordance with positive law. According to the author : "The Legal act applying a legal norm may be performed in such a way that it conforms (a) with the one or the other of the different meanings of the legal norms, (b) with the will of the norm-
creating authority that is to be determined somehow, (c) with the expression which the norm-creating authority has chosen, (d) with the one or the other of the contradictory norms; or (e) the concrete case to which the two contradictory norms refer may be decided under the assumption that the two contradictory norms annul each other. In all these cases, the law to be applied constitutes only a frame within which several applications are possible, whereby every act is legal that stays within the frame."
46. In S. Gopal Reddy v. State of Andhra Pradesh [1996 CriLJ 3237], this Court observed:
W.As.959&975/2020 101"It is a well-known rule of interpretation of statutes that the text and the context of the entire Act must be looked into while interpreting any of the expressions used in a statute. The courts must look to the object which the statute seeks to achieve while interpreting any of the provisions of the Act. A purposive approach for interpreting the Act is necessary."
108. The doctrine of purposive construction, thus, must be applied in a situation of this nature.
111.It is true that right to property is a human right as also a constitutional right. But it is not a fundamental right. Each and every claim to property would not be property right."
(ii) In Lalit Mohan Pandey v. Pooran Singh and Ors. [(2004) 6 SCC 626], the Hon'ble Supreme Court observed thus:
"55. It is trite that for the purpose of interpretation a statute is to be read in its entirety and all efforts must be made to give effect to the statutory scheme. [See High Court of Gujarat and Anr. v. Gujarat Kishan Mazdoor Panchayat and Ors, JT 2003 (3) SC 50 Indian Handicrafts Emporium and Ors. v. Union of India and Ors. AIR 2003 SC 3240, Ameer Trading Corporation Ltd. v. Shapoorji Data Processing Ltd. AIR 2004 SC 355 Ashok Layland v. State of Tamil Nadu and Anr. MANU/SC/0020/2004 State of West Bengal and Ors. v. Sujit Kumar Rana MANU/SC/0049/2004, Deepak Girishbhai Soni and Ors. v. United India Insurance Co. Ltd. Baroda MANU/SC/0246/2004 and Secretary, Department of Excise & Commercial Taxes and Ors. v. Sun Bright Marketing (P) Ltd. Chhattisgarh and Anr. (2004) 3 SCC
185.
57. Francis Bennion in his treatise 'Statutory Interpretation' at page 810 described purposive construction in the following manner:-
"A purposive construction of an enactment is one which gives effect to the legislative purpose by -W.As.959&975/2020 102
(a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose (in this Code called a purposive-and-literal construction), or
(b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called a purposive-and-strained construction)."
(iii) In New India Assurance Company Ltd. v. Nusli Neville Wadia and Ors. [(2008) 3 SCC 279], the Hon'ble Supreme Court observed as under:
"52. Barak in his exhaustive work on 'Purposive Construction' explains various meanings attributed to the term 'purpose'. It would be in the fitness of discussion to refer to Purposive Construction in Barak's words:
"Hart and Sachs also appear to treat 'purpose' as a subjective concept. I say 'appear' because, although Hart and Sachs claim that the interpreter should imagine himself or herself in the legislator's shoes, they introduce two elements of objectivity: First, the interpreter should assume that the legislature is composed of reasonable people seeking to achieve reasonable goals in a reasonable manner; and second, the interpreter should accept the non-rebuttable presumption that members of the legislative body sought to fulfill their constitutional duties in good faith. This formulation allows the interpreter to inquire not into the subjective intent of the author, but rather the intent the author would have had, had he or she acted reasonably.
(Aharon Barak, Purposive Interpretation in Law (2007) at pg. 87)"
53. In Bharat Petroleum Corporation Ltd. v.
Maddula Ratnavalli and Ors. [(2007) 6 SCC 81], this W.As.959&975/2020 103 Court held:
"The Parliament moreover is presumed to have enacted a reasonable statute (see Breyer, Stephen (2005): Active Liberty:
Interpreting Our Democratic Constitution, Knopf (Chapter on Statutory Interpretation -
pg. 99 for Reasonable Legislator
Presumption)."
54. The provisions of the Act and the Rules in this case, are, thus required to be construed in the light of the action of the State as envisaged under Article 14 of the Constitution of India. With a view to give effect thereto, the doctrine of purposive construction may have to be taken recourse to. [See AIR2007SC1971 :
Oriental Insurance Co. Ltd. v. Brij Mohan and Ors.]"
(iv) In Afcons Infrastructure Ltd. and Ors. v. Cherian Varkey Construction Co. (P) Ltd. and Ors. [(2010) 8 SCC 24], the Hon'ble Supreme court observed thus:
"20. The principles of statutory interpretation are well settled. Where the words of the statute are clear and unambiguous, the provision should be given its plain and normal meaning, without adding or rejecting any words. Departure from the literal rule, by making structural changes or substituting words in a clear statutory provision, under the guise of interpretation will pose a great risk as the changes may not be what the Legislature intended or desired. Legislative wisdom cannot be replaced by the Judge's views. As observed by this Court in somewhat different context:
"6........"When a procedure is prescribed by the Legislature, it is not for the court to substitute a different one according to its notion of justice. When the Legislature has spoken, the Judges cannot afford to be wiser." (See: Shri Mandir Sita Ramji v. Lt. Governor of Delhi (1975) 4 SCC 298.)"
21. There is however an exception to this general rule. Where the words used in the statutory provision are vague and ambiguous or where the plain and normal meaning of its words or grammatical construction thereof would lead to confusion, absurdity, repugnancy W.As.959&975/2020 104 with other provisions, the courts may, instead of adopting the plain and grammatical construction, use the interpretative tools to set right the situation, by adding or omitting or substituting the words in the Statute. When faced with an apparently defective provision in a statute, courts prefer to assume that the draftsman had committed a mistake rather than concluding that the Legislature has deliberately introduced an absurd or irrational statutory provision. Departure from the literal rule of plain and straight reading can however be only in exceptional cases, where the anomalies make the literal compliance of a provision impossible, or absurd or so impractical as to defeat the very object of the provision. We may also mention purposive interpretation to avoid absurdity and irrationality is more readily and easily employed in relation to procedural provisions than with reference to substantive provisions.
21.1 Maxwell on Interpretation of Statutes (12 th Edn., page 228), under the caption 'modification of the language to meet the intention' in the chapter dealing with 'Exceptional Construction' states the position succinctly:
"Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the legislature could not possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning. Where the main object and intention of a statute are clear, it must not be reduced to a nullity by W.As.959&975/2020 105 the draftsman's unskillfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used.
This Court in Tirath Singh v. Bachittar Singh AIR 1955 SC 830 approved and adopted the said approach."
21.2 In Shamrao V. Parulekar v. District Magistrate, Thana, Bombay AIR 1952 SC 324 this Court reiterated the principle from Maxwell:
"12...............if one construction will lead to an absurdity while another will give effect to what commonsense would show was obviously intended, the construction which would defeat the ends of the Act must be rejected even if the same words used in the same section, and even the same sentence, have to be construed differently. Indeed, the law goes so far as to require the Courts sometimes even to modify the grammatical and ordinary sense of the words if by doing so absurdity and inconsistency can be avoided."
21.3 In Molar Mal v. Kay Iron Works (P) Ltd. 2004 (4) SCC 285 this Court while reiterating that courts will have to follow the rule of literal construction, which enjoins the court to take the words as used by the Legislature and to give it the meaning which naturally implies, held that there is an exception to that rule. This Court observed:
"12............That exception comes into play when application of literal construction of the words in the statute leads to absurdity, inconsistency or when it is shown that the legal context in which the words are used or by reading the statute as a whole, it requires a different meaning."
21.4 In Mangin v. Inland Revenue Commission [1971 (1) All. ER 179] the Privy Council held:
".......The object of the construction of a statute, W.As.959&975/2020 106 be it to ascertain the will of the legislature, it may be presumed that neither injustice nor absurdity was intended. If, therefore, a literal interpretation would produce such a result, and the language admits of an interpretation which would avoid it, then such an interpretation may be adopted."
21.6 Justice G.P. Singh extracts four conditions that should be present to justify departure from the plain words of the Statute, in his treatise "Principles of Statutory Interpretation" (12th Edn. - 2010, LexisNexis - page 144) from the decision of the House of Lords in Stock v. Frank Jones (Tipton) Ltd. 1978 (1) All ER 948:
"...a court would only be justified in departing from the plain words of the statute when it is satisfied that (1) there is clear and gross balance of anomaly; (2) Parliament, the legislative promoters and the draftsman could not have envisaged such anomaly and could not have been prepared to accept it in the interest of a supervening legislative objective; (3) the anomaly can be obviated without detriment to such a legislative objective; and (4) the language of the statute is susceptible of the modification required to obviate the anomaly."
(v) In Abhiram Singh and Ors. v. C.D. Commachen (Dead) by L.Rs. and Ors. [(2017) 2 SCC 629], the Hon'ble Supreme court observed thus:
"36. The conflict between giving a literal interpretation or a purposive interpretation to a statute or a provision in a statute is perennial. It can be settled only if the draftsman gives a long-winded explanation in drafting the law but this would result in an awkward draft that might well turn out to be unintelligible. The interpreter has, therefore, to consider not only the text of the law but the context in which the law was enacted and the social context in which the law should be interpreted. This was articulated rather felicitously by Lord Bingham of Cornhill in R. v. Secretary of State for Health ex parte Quintavalle [2003] UKHL 13 when it W.As.959&975/2020 107 was said:
"8. The basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed. But that is not to say that attention should be confined and a literal interpretation given to the particular provisions which give rise to difficulty. Such an approach not only encourages immense prolixity in drafting, since the draftsman will feel obliged to provide expressly for every contingency which may possibly arise. It may also (under the banner of loyalty to the will of Parliament) lead to the frustration of that will, because undue concentration on the minutiae of the enactment may lead the court to neglect the purpose which Parliament intended to achieve when it enacted the statute. Every statute other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish, or effect some improvement in the national life. The court's task, within the permissible bounds of interpretation, is to give effect to Parliament's purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment."
37. In the same decision, Lord Steyn suggested that the pendulum has swung towards giving a purposive interpretation to statutes and the shift towards purposive construction is today not in doubt, influenced in part by European ideas, European Community jurisprudence and European legal culture. It was said:
"21........ the adoption of a purposive approach to construction of statutes generally, and the 1990 Act [Human Fertilisation and Embryology Act 1990] in particular, is amply justified on wider grounds. In Cabell v. Markham (1945) 148 F 2d 737 Justice Learned Hand explained the merits of purposive interpretation, at p.739:W.As.959&975/2020 108
"Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.
The pendulum has swung towards purposive methods of construction. This change was not initiated by the teleological approach of European Community jurisprudence, and the influence of European legal culture generally, but it has been accelerated by European ideas: see, however, a classic early statement of the purposive approach by Lord Blackburn in River Wear Commissioners v. Adamson (1877) 2 App Cas 743, 763. In any event, nowadays the shift towards purposive interpretation is not in doubt. The qualification is that the degree of liberality permitted is influenced by the context, e.g. social welfare legislation and tax statutes may have to be approached somewhat differently."
[Emphasis supplied].
To put it in the words of Lord Millett: "We are all purposive constructionists now."
38. In Bennion on Statutory Interpretation (Sixth Edition (Indian Reprint) page 847) it is said that:
"General judicial adoption of the term 'purposive construction' is recent, but the concept is not new. Viscount Dilhorne, citing Coke, said that while it is now fashionable to talk of a purposive construction of a statute the need for such a construction has been recognized since the seventeenth century.12 In fact the recognition goes considerably further back than that. The difficulties over statutory interpretation belong to the language, and there is unlikely to be W.As.959&975/2020 109 anything very novel or recent about their solution........ Little has changed over problems of verbal meaning since the Barons of the Exchequer arrived at their famous resolution in Heydon's Case (1584) 3 Co. Rep 7a. Legislation is still about remedying what is thought to be a defect in the law. Even the most 'progressive' legislator, concerned to implement some wholly normal concept of social justice, would be constrained to admit that if the existing law accommodated the notion there would be no need to change it. No legal need that is ...."
39. We see no reason to take a different view.
Ordinarily, if a statute is well-drafted and debated in Parliament there is little or no need to adopt any interpretation other than a literal interpretation of the statute. However, in a welfare State like ours, what is intended for the benefit of the people is not fully reflected in the text of a statute. In such legislations, a pragmatic view is required to be taken and the law interpreted purposefully and realistically so that the benefit reaches the masses.
Of course, in statutes that have a penal consequence and affect the liberty of an individual or a statute that could impose a financial burden on a person, the Rule of literal interpretation would still hold good.
76. Extending the above principle further one can say that if two constructions of a statute were possible, one that promotes the constitutional objective ought to be preferred over the other that does not do so.
77. To somewhat similar effect is the decision of this Court in State of Karnataka v. Appa Balu Ingale and Ors. [1995] Supp. 4 SCC 469 where this Court held that as the vehicle of transforming the nation's life, the Court should respond to the nation's need and interpret the law with pragmatism to further public welfare and to make the constitutional animations a reality. The Court held that Judges should be cognizant of the constitutional goals and remind themselves of the purpose of the Act while interpreting any legislation, the Court said:
W.As.959&975/2020 110"35. The judges, therefore, should respond to the human situations to meet the felt necessities of the time and social needs; make meaningful the right to life and give effect to the Constitution and the will of the legislature. This Court as the vehicle of transforming the nation's life should respond to the nation's needs and interpret the law with pragmatism to further public welfare to make the constitutional animations a reality. Common sense has always served in the court's ceaseless striving as a voice of reason to maintain the blend of change and continuity of order which is sine qua non for stability in the process of change in a parliamentary democracy. In interpreting the Act, the judge should be cognizant to and always keep at the back of his/her mind the constitutional goals and the purpose of the Act and interpret the provisions of the Act in the light thus shed to annihilate untouchability; to accord to the Dalits and the Tribes right to equality; give social integration a fruition and make fraternity a reality."
82. I would, however, add that such a construction is not only warranted upon the application of the purposive test of interpretation but also on textual interpretation. A literal interpretation does not exclude a purposive interpretation of the provisions whether in relation to a taxing statute or a penal statute. In IRC v. Trustees of Sir John Aird's Settlement [ 1984 CH 382 :
(1983) 3 All ER 481 (CA)], the Court observed as follows:
... Two methods of statutory interpretation have at times been adopted by the court. One, sometimes called literalist, is to make a meticulous examination of the precise words used. The other sometimes called purposive, is to consider the object of the relevant provision in the light of the other provisions of the Act--the general intendment of the provisions. They are not mutually exclusive and both have their part to play even in the interpretation of a taxing statute."
88. It is an overriding duty of the Court while W.As.959&975/2020 111 interpreting the provision of a statute that the intention of the legislature is not frustrated and any doubt or ambiguity must be resolved by recourse to the Rules of purposive construction. In Balram Kumawat v. Union of India [2003(7) SCC 628], this Court observed as follows:
"26. The courts will therefore reject that construction which will defeat the plain intention of the legislature even though there may be some inexactitude in the language used. [See Salmon v.
Duncombe (AC at p.634).] Reducing the legislation futility shall be avoided and in a case where the intention of the legislature cannot be given effect to, the courts would accept the bolder construction for the purpose of bringing about an effective result. The courts, when Rule of purposive construction is gaining momentum, should be very reluctant to hold that Parliament has achieved nothing by the language it used when it is tolerably plain what it seeks to achieve. [See BBC Enterprises v. Hi-Tech Xtravision Ltd. (All ER at pp. 122-23).]"
91. Ordinarily acquisition or requisition is done by following the procedure contemplated under the Land Acquisition Act and Requisition laws. But, in the case on hand, Disaster Management Act, 2005, being a special enactment, such procedure is not prescribed and the action of the authority is protected by a notwithstanding provision, Section 72 of the Disaster Management Act, 2005 which reads thus.
"72. Act to have overriding effect.--The provisions of this Act, shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act."W.As.959&975/2020 112
92. On the above conclusion, we deem it fit to consider as to what the notwithstanding clause/non obstante clause, mean, in the following decisions:
(i) In State of West Bengal v. Union of India reported in [1964] 1 SCR 371, it is observed as under:
"The Court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire statute; it must compare the clause with the other parts of the law and the setting in which the clause to be interpreted occurs."
(ii) In Union of India v. I.C. Lala reported in AIR 1973 SC 2204, the Hon'ble Supreme Court held that non obstante clause does not mean that the whole of the said provision of law has to be made applicable or the whole of the other law has to be made inapplicable. It is the duty of the Court to avoid the conflict and construe the provisions to that they are harmonious.
(iii) In Union of India v. G.M. Kokil reported in AIR 1984 SC 1022, the Hon'ble Supreme Court, at Paragraph 10, held thus:
"It is well-known that a non-obstante clause is a legislative device which is usually employed to give overriding effect to certain provision over some contrary provision that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions."
(iv) In Chandavarkar Sita Ratna Rao v. Ashalata S. Guram reported in 1986 (4) SCC 447, at paragraph 67, the Hon'ble Supreme Court held as follows:
"67. A clause beginning with the expression "notwithstanding anything contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force, or in any contract" is more often than not appended to a section in W.As.959&975/2020 113 the beginning with a view to give the enacting part of the section in case of conflict an overriding effect over the provision of the Act or the contract mentioned in the non- obstante clause. It is equivalent to saying that in spite of the provision of the Act or any other Act mentioned in the non-obstante clause or any contract or document mentioned the enactment following it will have its full operation or that the provisions embraced in the non- obstante clause would not be an impediment for an operation of the enactment. See in this connection the observations of this Court in The South India Corporation (P) Ltd., v. The Secretary, Board of Revenue, Trivandrum & Anr., AIR 1964 SC 207 at 215- [1964] 4 SCR 280."
(v) In Vishin N. Kanchandani v. Vidya Lachmandas Khanchandani (AIR 2000 SC 2747), at paragraph 11, the Hon'ble Supreme Court held as follows:
"There is no doubt that by non-obstante clause the Legislature devices means which are usually applied to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other statute. In other words such a clause is used to avoid the operation and effect of all contrary provisions. The phrase is equivalent to showing that the Act shall be no impediment to measure intended. To attract the applicability of the phrase, the whole of the section, the scheme of the Act and the objects and reasons for which such an enactment is made has to be kept in mind."
(vi) In ICICI Bank Ltd., v. SIDCO Leathers Ltd., [(2006) 10 SCC 452], the Hon'ble Supreme Court, held as follows:
"34. Section 529-A of the Companies Act no doubt contains a non-obstante clause but in construing the provisions thereof, it is necessary to determine the purport and object for which the same was enacted. ......
36. The non-obstante nature of a provision although may be of wide amplitude, the interpretative process thereof must be kept confined to the legislative policy W.As.959&975/2020 114 .......
37. A non-obstante clause must be given effect to, to the extent the Parliament intended and not beyond the same.
38. Section 529-A of the Companies Act does not ex facie contain a provision (on the aspect of priority) amongst the secured creditors and, hence, it would not be proper to read there into things, which the Parliament did not comprehend."
(vii) In Central Bank of India v. State of Kerala reported in (2009) 4 SCC 94, the Hon'ble Supreme Court, at paragraphs 103 to 107, held as follows:
"103. A non obstante clause is generally incorporated in a statute to give overriding effect to a particular section or the statute as a whole. While interpreting non obstante clause, the Court is required to find out the extent to which the legislature intended to do so and the context in which the non obstante clause is used. This rule of interpretation has been applied in several decisions."
(viii) In State Bank of West Bengal v. Union of India [(1964) 1 SCR 371], it was observed that:
"68. ...... the Court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire statute; it must compare the clause with the other parts of the law and the setting in which the clause to be interpreted occurs."
(ix) In Madhav Rao Jivaji Rao Scindia v. Union of India and another [(1971) 1 SCC 85], Hidayatullah, C.J. observed that,-
"The non obstante clause is no doubt a very potent clause intended to exclude every consideration arising from other provisions of the same statute or other statute but "for that reason alone we must determine the scope" of that provision strictly. When the section containing the said clause does not refer to any particular provisions which it intends to override but refers to the provisions of the statute generally, it is not W.As.959&975/2020 115 permissible to hold that it excludes the whole Act and stands all alone by itself. A search has, therefore, to be made with a view to determining which provision answers the description and which does not."
(x) In R.S. Raghunath v. State of Karnataka and another [(1992) 1 SCC 335], a three-Judge Bench referred to the earlier judgments in Aswini Kumar Ghose v. Arabinda Bose [AIR 1952 SC 369], Dominion of India v. Shrinbai A. Irani [AIR 1954 SC 596], Union of India v. G.M. Kokil [1984 (Supp.) SCC 196], Chandravarkar Sita Ratna Rao v. Ashalata S. Guram [(1986) 4 SCC 447] and observed as follows:
"......... The non-obstante clause is appended to a provision with a view to give the enacting part of the provision an overriding effect in case of a conflict. But the non-obstante clause need not necessarily and always be co-extensive with the operative part so as to have the effect of cutting down the clear terms of an enactment and if the words of the enactment are clear and are capable of a clear interpretation on a plain and grammatical construction of the words the non-obstante clause cannot cut down the construction and restrict the scope of its operation. In such cases the non- obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the legislature by way of abundant caution and not by way of limiting the ambit and scope of the Special Rules."
(xi) In A.G. Varadarajulu v. State of Tamil Nadu [(1998) 4 SCC 231], the Hon'ble Apex Court relied on Aswini Kumar Ghose's case, and while interpreting non obstante clause, contained in Section 21-A of Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 held thus:-
"It is well settled that while dealing with a non obstante clause under which the legislature wants to give an overriding effect to a section, the court must try to find out the extent to which the legislature had intended to give one W.As.959&975/2020 116 provision overriding effect over another provision. Such intention of the legislature on this behalf is to be gathered from the enacting part of the section. In Aswini Kumar Ghose v. Arabinda Bose [AIR 1952 SC 369], Patanjali Sastri, J. observed thus:
"The enacting part of a statute must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously;"
93. Though Mr. M. Sasindran, learned counsel for the appellants, relied on the decision of the Hon'ble Bombay High Court in Riddhi Agrawal & Ors. vs. State of Maharashtra & Ors. Etc.., [W.P.(ST) No. 5579 of 2020, Dated 22nd July, 2020] and contended that the said judgement was rendered, quashing an order of requisition, when third party rights have not been considered, and that there is similarity of facts to the case on hand, we are not inclined to accept the said contention, for the reason that in Riddhi Agrawal's case, the Bombay High Court has not considered, as to whether the expression "by order in writing, requisitioning resources or premises', means a request in writing.
Moreover, in the case on hand, except two flat owners, other flat owners were not residing in the flats, when the District Collector/Chairperson of the District Disaster Management Authority passed the order dated 28-06- 2020 [Exhibit-P3 in W.P.(C) No.12935/2020], when there was urgent need to take over the building.
W.As.959&975/2020 11794. Though, Mr. M. Sasindran learned counsel for the appellants, contended that there were many hotels and hostels available, and that several hotels and other premises, taken over have been released, and in such circumstances, subject building ought not to have been taken over, we are not inclined to accept the said contention, for the reason that Covid-19 cases in Kannur district has been increasing and that the subject building located within 50 metres from the District Medical Centre is required to be taken over.
95. In Eros Grand Resorts and Hotels Pvt. Ltd. v. Government of NCT of Delhi and Ors. [W.P.(C) No.3531/2020, dated 17.06.2020], the petitioner therein filed a petition challenging the order dated 12.06.2020 issued by the District Magistrate/Chairperson of the District Disaster Management Authority, District East (hereinafter referred to as the 'DDMA'), requisitioning the hotel of the petitioner, for converting it into the extended COVID-19 hospital, wherein the medical services shall be provided by the linked identified COVID private hospital for the purpose of housing and treatment of persons during the current COVID-19 pandemic.
96. Though, in the decision cited supra, several grounds were raised on the competence of authority, non payment of compensation, taking over the hotel, when there was an offer made by the Municipal Corporation of Delhi, and most importantly, there was no emergent W.As.959&975/2020 118 situation, and applying the said dictum to the facts and circumstances of instant writ appeals, before us learned counsel of appellants contended that there is no emergent circumstances to take over the building, particularly, when the Government of Kerala have released other hotels and auditoriums. We deem it fit to consider what the Hon'ble Delhi High Court, on the facts and circumstances of the case, observed in the decision cited supra, and ordered in paras 17 &18, which read as under:
"17. As far as the offer made by the Municipal Corporations are concerned, the respondents are duty bound to consider the same, however, it cannot be said that until such offer is considered by the respondents, Impugned Order would stand vitiated.
18. On the issue of the competence of the District Magistrate to issue the Impugned Order, as submitted by the learned ASG, the same has been issued in matter of emergency and would be taken up for ratification before the District Authority in terms of Section 26(2) of the Act. Prima facie, at this stage, I do not agree with the submission of the learned senior counsel for the petitioner that the Impugned Order has not been passed in a state of emergency. The ever rising number of persons infected by the COVID virus and the stress on medical infrastructure is not hidden. In fact, the very offer of MCD relied upon by the petitioner is an acknowledgment of such emergent need of infrastructure."
97. Keeping in mind what the Hon'ble Supreme Court, under Article 141 of the Constitution of India, has said and binding on us, we state that Courts must give effect to the intent and purport for which the Legislature has enacted the law. While considering the effectiveness of a provision, W.As.959&975/2020 119 effort should be made, in giving effect to the intention of the Legislature, and for the said purpose, it is necessary to ascertain the object of the Disaster Management Act, 2005, which the Legislature seeks to achieve.
98. In Syndicate Bank v. Ramachandran Pillai and Ors. [(2011) 15 SCC 398], the appellant Bank issued notice to the tenant Ramachandran Pillai under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, terminating the monthly tenancy and calling upon him to vacate the premises. The Estate Officer directed eviction and it was confirmed by the Appellate Authority. Based on the guidelines issued by the Central Government, to prevent arbitrary use of powers to each of the genuine tenants from evicting from the premises, under the control of public sector undertakings/financial institutions, the High Court allowed the revision and directed the bank to review. Correctness of the same was tested before the Hon'ble Supreme Court. The Hon'ble Apex Court, at para 6, held thus:
"6. If any executive instructions are to have the force of statutory rules, it must be shown that they were issued either under the authority conferred on the Central Government or a State Government or other authority by some Statute or the Constitution. Guidelines or executive instructions which are not statutory in character, are not 'laws', and compliance thereof can not be enforced through courts. Even if there has been any violation or breach of such non-statutory guidelines, it will not confer any right on any member of the public, to seek a direction in a court of law, for compliance with such guidelines. An order validly made in accordance with a statute (as in this case, the Public Premises Act), cannot be interfered with, even W.As.959&975/2020 120 if there has been any transgression of any guidelines, except where it is arbitrary or malafide or in violation of any statutory provision. These are well settled principles (See: Union of India v. S.L. Abbas 1993 (4) SCC 357, Chief Commercial Manager, South Central Railway, Secundrabad v. G. Ratnam 2007 (8) SCC 212, and State of U.P. v. Gobardhan Lal 2004 (11) SCC 402)."
99. Though Mr. M. Sasindran, learned counsel for the appellants, submitted that when the Government have issued order dated 25.05.2020, by which, CFLTCs are introduced under the Disaster Management Act, 2005, prescribing guidelines for exercising a statutory power, which is binding on the authorities, and further contended that when residential buildings are not included, the order dated 28.06.2020 has been issued taking over the residential building, which is an arbitrary exercise of power by the District Collector/Chairperson of the District Disaster Management Authority, whereas, relying on the decision of the Hon'ble Apex Court in Syndicate Bank v. Ramachandran Pillai and Ors. [(2011) 15 SCC 398], Mr.Ranjith Thampan, learned Additional Advocate General, submitted that the guidelines do not have statutory force, this Court cannot totally ignore the guidelines, but deems it fit to have a closer scrutiny. Government have issued G.O.(MS) No.955/2020/LSGD dated 25.05.2020, for formation and conduct of Covid First Line Treatment Centre (CFTC), wherein it is stated as under:
"Covid First Line Treatment Centres (CFTC) are health care centre, which are set up to prevent Covid 19 prepared W.As.959&975/2020 121 by Local Self Government Department and Health Department together. CFTC's are set up with a purpose with necessary facilities to avoid affecting the present public health system if any community spread happens.
2. Requirement for commencement of Covid First Line Treatment Centres will have to be decided after a discussion between District Disaster Management Authority and the Health Department. Local Self Government Institutions should make preparations to start the Centres with 48 hours early warning."
100. Covid First Line Treatment Centre (CFTC) is defined thus.
"What is meant by CFTC?
A Covid First Line Treatment Centre is a health care centre formed to face community spread of Covid 19. Covid First Line Treatment Centres are formed with a purpose to avoid any influence on the public health system in case of community spread of Covid-19."
101. G.O.(MS) No.955/2020/LSGD dated 25.05.2020 further states as under:
"Approach
1. The Local Self Government Institutions shall identify and finalise the list of buildings after a discussion with the District Collector.
2. The Health Department in consultation with the Disaster Management Authority as per the request of a expert committee shall decide in which centre a Covid First Line Treatment Centre should start.
3. A Covid First Line Treatment Centre should be near to the Regional PHC/CHC/Taluk Health Centres. Below are the types of buildings which can be taken over for commencement of Covid First Line Treatment Gentres.
• Hostels •Hotels W.As.959&975/2020 122 • Hospitals which are not functioning.
• Lodges, Resorts, Ayurveda Centres.
• Training Centres.
• Schools, Colleges, • Auditoriums • Community Halls, • Buildings of Religious Organisation"
102. Heading "Approach" shows that certain types of buildings can be taken over, for commencement of CFTC. Government order further states that the Local Self Governments, after discussion with the District Collector/ Chairperson of the District Disaster Management Committee, can take over the buildings. There is no prohibition in the said Government order dated 25.05.2020 for taking over a residential building, for commencing CFTC. As regards the location of the building, the Government order dated 25.05.2020 states that, while identifying the buildings for CFTCs, the following instructions shall be considered.
i. The buildings shall be suitable for persons with symptoms who can stay in isolation with rooms with attached toilets. Likewise 160 persons can be accommodated in a centre. ii. The building shall be identified maximum near to the PHC/CHC Taluk Health Care Centre.
iii. Nearby buildings can be set up only if a facility is not available in the isolation care ward in the identified ward. iv. By identifying the buildings, it should be ensured that water, electricity, transport facilities are available. v. Location of the building is to be reachable through W.As.959&975/2020 123 ambulance and there shall be facility for parking. vi. Covid patients ward and the isolation rooms cannot be Rs.2 Cores and separate entry for the patient ward and isolation rooms are required."
103. As regards the buildings to be found, the Government order states as under:
"i. The Local Self Government Institutions is the authority responsible to identify the buildings for CFTC(as per the decision of the District Disaster Management Authority) if for one Village is one building respective grama panchayats, block panchayat, Jilla panchayats, municipalities as to identify the buildings).
ii. For managing the disaster the buildings should be made available for free of cost. if there is any difficulty further steps can be taken after the discussion with the District Collector. iii. The details of the identified buildings and the facilities available there the local self government institutions shall inform the District Collector in writing regarding the procedures."
104. If the guidelines have to be construed as non-statutory, then the question to be decided is, whether the discretion conferred on the District Magistrate/District Disaster Management Authority has been properly exercised or not. While testing the correctness of the administrative action, the court has to consider whether:
(I) The discretion conferred up on the statutory authority has been properly exercised.
(II) Exercise of such discretion is in consonance with the provisions of the act.
(III) While taking a decision the authority has taken into consideration the purport and object of the act."W.As.959&975/2020 124
105. While testing the correctness of an administrative action, Court has to consider, (i) whether the discretion conferred upon a statutory authority had been properly exercised; (ii) whether exercise of such discretion is in consonance with the provisions of the Act; (iii) whether, while taking a decision, the authority has taken into consideration the purport and object of the Act.
106. On the aspect of discretion, let us consider a few decisions.
(i) In Suman Gupta and others v. State of Jammu and Kashmir and others reported in (1983) 4 SCC 339, the Hon'ble Supreme Court while explaining as to how administrative discretion should be exercised, at paragraph No.6, held as follows:
"The exercise of all administrative power vested in public authority must be structured within a system of controls informed by both relevance and reason - relevance in relation to the object which it seeks to serve, and reason in regard to the manner in which it attempts to do so. Wherever the exercise of such power affects individual rights, there can be no greater assurance that protecting is a valid exercise than its governance by these twin tests. A stream of case law radiating from the now well known decision in this Court in Maneka Gandhi v. Union of India reported in (1978) 1 SCC 248 has laid down in clear terms that Article 14 of the Constitution is violated by powers and procedures which in themselves result in unfairness and arbitrariness. It must be remembered that our entire constitutional system is founded in the rule of law, and in any system so designed it is impossible to conceive of legitimate power which is arbitrary in character and travels beyond the bounds of reason."
In the above reported judgement, the Hon'ble Apex Court further held as under:
W.As.959&975/2020 125"We do not doubt that in the realm of administrative power the element of discretion may properly find a place, where the statute or the nature of the power intends so. But there is a well recognised distinction between an administrative power to be exercised within defined limits in the reasonable discretion of designated authority and the vesting of an absolute and uncontrolled power in such authority. One is power controlled by law countenanced by the Constitution, the other falls outside the Constitution altogether."
(ii) Reiterating as to how the discretionary power has to be exercised, the Hon'ble Supreme Court in Sant Raj and another v. O.P.Singla and others reported in (1985) 2 SCC 349, held as under:
"Whenever, it is said that something has to be done, within the discretion of the authority, then that something has to be done, according to the rules of reason and justice and not according to private opinion, according to law and not humour. It is to be not arbitrary, vague and fanciful but legal and regular and it must be exercised within the limit to which an honest man to the discharge of his office ought to find himself. Discretion means sound discretion guided by law. It must be governed by rule, not by humour, it must not be arbitrary, vague and fanciful."
(iii) In Fasih Chaudhary v. Director General, Doordarshan and others reported in 1989 1 SCC 89, the Hon'ble Supreme Court held that exercise of discretion should be legitimate, fair and without any aversion, malice or affection. Nothing should be done which may give the impression of favouritism or nepotism. While fair play in action in such matters is an essential requirement, "free play in the joints" is also a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere as the present one.
(iv) While considering, a litigation arising out of Bangalore Development Authority Act, 1976, the Hon'ble Supreme Court in Bangalore Medical Trust v. B.S.Muddappa and others reported in (1991) 4 SCC 54, held as under:
"Discretion is an effective tool in administration. It provides an option to the authority concerned to adopt one or the other alternative. But a better, proper and legal exercise of discretion is one where the authority examines the fact, is aware of law W.As.959&975/2020 126 and then decides objectively and rationally what serves the interest better. When a statute either provides guidance or rules or regulations are framed for exercise of discretion then the action should be in accordance with it. Even where statutes are silent and only power is conferred to act in one or the other manner, the Authority cannot act whimsically or arbitrarily. It should be guided by reasonableness and fairness. The legislature never intends its authority to abuse the law or use it unfairly. Where the law requires an authority to act or decide, 'if it appears to be necessary' or if he is 'of opinion that a particular act should be done' then it is implicit that it should be done objectively, fairly and reasonably. In a democratic set up the people or community being sovereign the exercise of discretion must be guided by the inherent philosophy that the exercise of discretion is accountable for his action. It is to be tested on an anvil of rule of law and fairness or justice particularly if competing interests of members of society is involved. Decisions affecting public interest or the necessity of doing it in the light of guidance provided by the Act and rules may not require intimation to the person affected yet the exercise of discretion is vitiated if the action is bereft of rationality, lacks objective and purposive approach. Public interest or general good or social betterment have no doubt priority over private or individual interest but it must not be a pretext to justify the arbitrary or illegal exercise of power. It must withstand scrutiny of the legislative standard provided by the statute itself. The authority exercising discretion must not appear to be impervious to legislative directions. The action or decision must not only be reached reasonably and intelligibly but it must be related to the purpose for which power is exercised. No one however high can arrogate to himself or assume without any authorization express or implied in law a discretion to ignore the rules and deviate from rationality by adopting a strained or distorted interpretation as it renders the action ultra virus and bad in law."
(v) In Shiv Sagar Tiwari v. Union of India and others reported in (1997) 1 SCC 444, the Hon'ble Supreme Court held that the discretionary power has to be exercised to advance the performance, to subserve for which the power exists.
(vi) In Rakesh Kumar v. Sunil Kumar reported in (1999) 2 SCC 489, the Hon'ble Supreme Court held that administrative action/quasi-judicial function is W.As.959&975/2020 127 the duty of the authority to give reasons/record reasons/and it should be a speaking order.
(vii) In A.P. Aggarwal v. Govt. of NCT of Delhi reported in (2000) 1 SCC 600, the Hon'ble Supreme Court held as under:
"The conferment of power together with a discretion which goes with it to enable proper exercise of the power and therefore it is coupled with a duty to shun arbitrariness in its exercise and to promote the object for which the power is conferred which undoubtedly is public interest and not individual or private gain, whim or caprice of any individual."
(viii) In State of NCT of Delhi v. Sanjeev, reported in (2005) 5 SCC 181, the Hon'ble Supreme Court explaining the scope of judicial review of executive action has held as follows:
"15. One of the points that falls for determination is the scope for judicial interference in matters of administrative decisions. Administrative action is stated to be referable to a broad area of governmental activities in which the repositories of power may exercise every class of statutory function of executive, quasi-legislative and quasi-judicial nature. It is trite law that exercise of power, whether legislative or administrative, will be set aside, if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary (see State of U.P. v. Renusagar Power Co.). At one time, the traditional view in England was that the executive was not answerable where its action was attributable to the exercise of prerogative power. Professor de Smith in his classical work Judicial Review of Administrative Action, 4 th Edn. at pp.285-87 states the legal position in his own terse language that the relevant principles formulated by the courts may be broadly summarised as follows:
"The authority in which discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it; it must not act under the dictates of another body or disable itself from exercising discretion in each individual case. In the purported exercise of its discretion, it must not do what it has been forbidden to do, nor must W.As.959&975/2020 128 it do what it has not been authorised to do. It must act in good faith, must have regard to all relevant considerations and must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. These several principles can conveniently be grouped in two main categories: (i) failure to exercise discretion, and (ii) excess or abuse of discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account, and where an authority hands over its discretion to another body it acts ultra vires."
(ix) In Indian Railway Construction Co. Ltd. v. Ajay Kumar reported in (2003) 4 SCC 579, at paragraphs Nos.14 & 15, the Hon'ble Supreme Court explained the manner in which discretionary power has to be exercised, while discharging an administrative function and held that in matters relating to administrative functions, if a decision is tainted by any vulnerability as such illegality, irrationality and procedural impropriety, Courts should not hesitate to interfere, if the action falls within any of the categories stated supra. The relevant portion reads thus:
"14. The present trend of judicial opinion is to restrict the doctrine of immunity from judicial review to those class of cases which relate to deployment of troops, entering into international treaties etc. The distinctive features of some of these recent cases signify the willingness of the courts to assert their power to scrutinize the factual basis upon which discretionary powers have been exercised. One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground is "illegality", the second "irrationality", and the third "procedural impropriety". These principles were highlighted by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service (commonly known as CCSU case). If the power has been exercised on a non-consideration or non-application of mind to relevant factors, the exercise of power will be regarded as manifestly erroneous. If a power (whether legislative or W.As.959&975/2020 129 administrative) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated. (See CIT v. Mahindra and Mahindra Ltd.) The effect of several decisions on the question of jurisdiction has been summed up by Grahame Aldous and John Alder in their book Applications for Judicial Review, Law and Practice thus:
"There is a general presumption against ousting the jurisdiction of the courts so that statutory provisions which purport to exclude judicial review are construed restrictively. There are, however, certain areas of governmental activity, national security being the paradigm, which the courts regard themselves as incompetent to investigate, beyond an initial decision as to whether the Government's claim is bona fide. In this kind of non-justiciable area judicial review is not entirely excluded, but very limited. It has also been said that powers conferred by the Royal Prerogative are inherently unreviewable but since the speeches of the House of Lords in Council of Civil Service Unions v. Minister for the Civil Service this is doubtful. Lords Diplock, Scarman and Roskill appeared to agree that there is no general distinction between powers, based upon whether their source is statutory or prerogative but that judicial review can be limited by the subject-matter of a particular power, in that case national security. Many prerogative powers are in fact concerned with sensitive, non-justiciable areas, for example, foreign affairs, but some are reviewable in principle, including the prerogatives relating to the civil service where national security is not involved. Another non-justiciable power is the Attorney-General's prerogative to decide whether to institute legal proceedings on behalf of the public interest." (Also see Padfield v. Minister of Agriculture, Fisheries and Food)
15. The court will be slow to interfere in such matters relating to administrative functions unless decision is tainted by any vulnerability enumerated above: like illegality, irrationality and procedural impropriety. Whether the action falls within any of the categories has to be established. Mere assertion in that regard would not be sufficient."W.As.959&975/2020 130
(x) In Union of India v. Kuldeep Singh [(2004) 2 SCC 590], the Hon'ble Supreme Court, while testing the correctness of the judgment rendered under the Narcotic Drugs and Psychotropic Substances Act, 1985, and the discretion to be exercised by the High Court, explained the principles governing the mode of exercise of the discretionary power for public functionaries as follows:
"20. When anything is left to any person, judge or Magistrate to be done according to his discretion, the law intends it must be done with sound discretion, and according to law. In its ordinary meaning, the word "discretion" signifies unrestrained exercise of choice or will; freedom to act according to one's own judgment; unrestrained exercise of will; the liberty or power of acting without control other than one's own judgment. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. Discretion is to discern between right and wrong; and therefore, whoever hath power to act at discretion, is bound by the rule of reason and law.
21. Discretion, in general, is the discernment of what is right and proper. It denotes knowledge and prudence, that discernment which enables a person to judge critically of what is correct and proper united with caution; nice discernment, and judgment directed by circumspection; deliberate judgment; soundness of judgment; a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.
22. The word "discretion" standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste;evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking. The word in itself implies vigilant circumspection and care; therefore, where the legislature concedes discretion it also imposes a heavy responsibility. "The discretion of a judge is the law of tyrants; it is always unknown. It is different in different men. It is casual, and depends upon constitution, temper and passion. In the best it is often times caprice; in the worst it is every vice, folly, and passion to which human nature is liable,"W.As.959&975/2020 131
said Lord Camden, L.C.J., in Hindson and Kersey reported in (1680) 8 HOW St Tr 57.
23. If a certain latitude or liberty is accorded by a statute or rules to a judge as distinguished from a ministerial or administrative official, in adjudicating on matters brought before him, it is judicial discretion. It limits and regulates the exercise of discretion, and prevents it from being wholly absolute, capricious, or exempt from review."
107. Reading of Section 65(c) of the Act, 2005, with other provisions of the Act, makes it clear that Section 65(c) of the Act confers power on the competent authorities coupled with a duty in all promptitude. If any premises are needed or likely to be needed for rescue operations, such authority may, by order in writing, requisition such resources or premises or such vehicle, as the case may be, and may make such further orders as may appear to it to be necessary or expedient in connection with the requisitioning. In this context, at the risk of repetition, let us consider the decision in Shiv Sagar Tiwari v. Union of India and others reported in (1997) 1 SCC 444, wherein the Hon'ble Apex Court held that, the discretionary power has to be exercised to advance the performance, to sub-serve for which the power exists.
108. Now, let us consider, as to whether exercise of power under Section 65(2) of the Statute is simpliciter or coupled with a duty? While examining Section 65(c) of the Act, giving due consideration to the object, purpose, and the entire provisions of the Disaster Management Act, 2005 W.As.959&975/2020 132 observance and above all, the need to take immediate action, for requisitioning the premises, we are of the view that exercise of power under Section 65(c) of the Act, is coupled with a duty and can be exercised to promote the object and purpose of the Act. In this context, it is useful to consider the following decisions:
"(i) LORD CAIRNS said in Julius v. Lord Bishop of Oxford, (1874-80) 5 AC 214 : 1847-80 All England Reporter 43 HL, considered in State (Delhi Admn.) v. I.K. Nangia and Another, [AIR 1979 SC 1977 : (1980) 1 SCC 258], held thus:-
"There may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something, in the conditions under which it is to be done, something in the title of the persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so."
(emphasis supplied)
(ii) Maxwell on Interpretation of Statutes, 11th Edn. at Page 231, referred to in State (Delhi Admn.) v. I.K. Nangia and Another (supra) case is reproduced hereunder:-
"Statutes which authorise persons to do acts For the benefit of others, or, as it is sometimes said, for the public good or the advancement of justice, have often given rise to controversy when conferring the authority in terms simply enabling and not mandatory. In enacting that they "may" or "shall, if they think fit", or, "shall have power", or that "it shall be lawful" for them to do such acts, a statute appears to use the language of mere permission, but it has been so often decided as to have become an axiom that in such cases such expressions may have-to say the least-a compulsory force, and so W.As.959&975/2020 133 could seem to be modified by judicial exposition."
(emphasis supplied)
(iii) In L.Hirday Narain v. Income Tax Officer, Bareilly [(1970) 2 CC 355, at paragraph 13, it is held as follows:
"13. x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x If a statute invests a public officer with authority to do an act in a specified set of circumstances, it is imperative upon him to exercise his authority in a manner appropriate to the case when a party interested and having a right to apply moves in that behalf and circumstances for exercise of authority are shown to exist. Even if the words used in the statute are prima facie enabling the Courts will readily infer a duty to exercise power which is invested in aid of enforcement of a right - public or private - of a citizen."
110. As regards eminent domain, let us consider a few decisions
(i) In Jilubhai Nanbhai Khachar and Ors. v. State of Gujarat and Ors. [(1995) Supp. (1) SCC 596], the Hon'ble Supreme Court with regard to "eminent domain" observed thus:
"33.................. Eminent domain is in the nature of a compulsory purchase of the property of the citizen for the purpose of applying to the public use." In 'Black's Law Dictionary' 6th edition, at p. 523 'eminent domain' is defined as 'the power to take private property for public use by the state, municipalities and private persons or corporations authorities to exercise functions of public character, in United States the power of eminent domain is founded in both the Federal (Fifth Amendment) and State Constitutions. The Constitution gives the power to take for public purpose and prohibits the exercise of the power of eminent domain without just compensation to the owners of the property which is taken. The process of exercising the power of eminent domain is commonly referred to as 'condemnation' or 'expropriation'.
34.The right of eminent domain is the right of the sovereign State, through its regular agencies, to reassert , either temporarily or permanently, its W.As.959&975/2020 134 dominion over any portion of the soil of the State including private property without its owner's consent on account of public exigency and for the public good. Eminent domain is the highest and most exact idea of property remaining in the government, or in the aggregate body of the people in their sovereign capacity. It gives the right to resume possession of the property in the manner directed by the Constitution and the laws of the State, whenever the public interest requires it. The term 'expropriation' is practically synonymous with the term "eminent domain".
(ii) In Chiranjit Lal Chowdhuri v. Union of India [1950]1SCR869] the Hon'ble Supreme Court held that "eminent domain is a right inherent in every sovereign to take and appropriate private property belonging to individual citizens for public use." Relevant paragraphs are as follows;
"50. It is a right inherent in every sovereign to take and appropriate private property belonging to individual citizens for public use. This right, which is described as eminent domain in American law, is like the power of taxation, an offspring of political necessity, and it is supposed to be based upon an implied reservation by Government that private property acquired by its citizens under its protection may be taken or its use controlled for public benefit irrespective of the wishes of the owner.
Article 31(2) of the Constitution prescribes a two- fold limit within which such superior rights of the State should be exercised. One limitation imposed upon acquisition or taking possession of private property which is implied in the clause is that such taking must be for public purpose. The other condition is that no property can be taken, unless the law which authorises such appropriation contains a provision for payment of compensation in the manner laid down in the clause. So far as article 31(2) is concerned, the substantial question for our consideration is whether the impugned legislation authorises any act amounting to acquisition or taking possession of private property within the meaning of W.As.959&975/2020 135 the clause." (emphasis supplied)
(iii) In K.T. Plantation Pvt. Ltd. and Ors. v. State of Karnataka [(2011) 9 SCC 1], the Hon'ble Supreme court observed thus:
"168. Article 300A proclaims that no person can be deprived of his property save by authority of law, meaning thereby that a person cannot be deprived of his property merely by an executive fiat, without any specific legal authority or without the support of law made by a competent legislature. The expression 'Property' in Article 300A confined not to land alone, it includes intangibles like copyrights and other intellectual property and embraces every possible interest recognised by law.
180. Deprivation of property within the meaning of Article 300A, generally speaking, must take place for public purpose or public interest. The concept of eminent domain which applies when a person is deprived of his property postulates that the purpose must be primarily public and not primarily of private interest and merely incidentally beneficial to the public. Any law, which deprives a person of his private property for private interest, will be unlawful and unfair and undermines the rule of law and can be subjected to judicial review. But the question as to whether the purpose is primarily public or private, has to be decided by the legislature, which of course should be made known.
181. The concept of public purpose has been given fairly expansive meaning which has to be justified upon the purpose and object of statute and the policy of the legislation. Public purpose is, therefore, a condition precedent, for invoking Article 300A.
190. Article 300A would be equally violated if the provisions of law authorizing deprivation of property have not been complied with. While enacting Article 300A Parliament has only borrowed 102 Article 31(1) [the "Rule of law" doctrine] and not Article 31(2) [which had embodied the doctrine of Eminent Domain]. Article 300A enables the State to put restrictions on the right to property by law. That law W.As.959&975/2020 136 has to be reasonable. It must comply with other provisions of the Constitution. The limitation or restriction should not be arbitrary or excessive or what is beyond what is required in public interest. The limitation or restriction must not be disproportionate to the situation or excessive.
191.The legislation providing for deprivation of property under Article 300A must be "just, fair and reasonable" as understood in terms of Articles 14, 19(1)(g), 26(b), 301, etc. Thus in each case, courts will have to examine the scheme of the impugned Act, its object, purpose as also the question whether payment of nil compensation or nominal compensation would make the impugned law unjust, unfair or unreasonable in terms of other provisions of the Constitution as indicated above.
202. Acquisition of property for a public purpose may meet with lot of contingencies, like deprivation of livelihood, leading to violation of Article 21, but that per se is not a ground to strike down a statute or its provisions. But at the same time, is it the law that a Constitutional Court is powerless when it confronts with a situation where a person is deprived of his property, by law, for a private purpose with or without providing compensation? For example, a political party in power with a massive mandate enact a law to acquire the property of the political party in opposition not for public purpose, with or without compensation, is it the law, that such a statute is immune from challenge in a Constitutional Court? Can such a challenge be rejected on the ground that statute does not violate the Fundamental Rights (due to deletion of Article 19(1)(f)) and that the legislation does not lack legislative competence? In such a situation, is non- availability of a third ground as propounded in State of A.P. and Ors. v. Mcdowell and Co. and Ors. [(1996) 3 SCC 709], is an answer?
205. Plea of unreasonableness, arbitrariness, proportionality, etc. always raises an element of subjectivity on which a court cannot strike down a statute or a statutory provision, especially when the W.As.959&975/2020 137 right to property is no more a fundamental right. Otherwise the court will be substituting its wisdom to that of the legislature, which is impermissible in our constitutional democracy.
221.We, therefore, answer the reference as follows:
(a) xxxxxxxxx
(b) xxxxxxxxx
(c) xxxxxxxx
(d) xxxxxxx
(e) Public purpose is a pre-condition for deprivation of a person from his property under Article 300A and the right to claim compensation is also inbuilt in that Article and when a person is deprived of his property the State has to justify both the grounds which may depend on scheme of the statute, legislative policy, object and purpose of the legislature and other related factors."
110. The expression in Section 65(c) of the Disaster Management Act, 2005, which empowers the authority to take over the premises, by an order in writing, is sought to be interpreted by the learned counsel for the appellants, to mean that there must be a request in writing, an opportunity of being heard to be given, and then only, a decision can be taken.
111. In the above context, we deem it fit to consider a few decisions on the principles of natural justice, as to whether in each case, where there is an administrative decision or action, prior notice has to be given or whether there is any exception to the same.
(i) In D.D. Basu, in his book on Administrative law, Sixth Edition, 2004 at pg. 288 states thus:
"(a) Where the statute classifies different situations W.As.959&975/2020 138 and while, in some cases, it makes it obligatory to give a hearing to the party to be affected by the proposed order, in some other specified circumstances, such as an emergency or the avoidance of public injury, no such hearing is required because of the nature of the exceptional situation." [Basu, Durga Das, Administrative Law, Sixth Edition, 2004 at pg. 288] (emphasis supplied)
(ii) In Union of India (UOI) and Ors. v. Tulsiram Patel and Ors. (1985) 3 SCC 398, the Hon'ble Supreme Court held thus:
"97. Though the two rules of natural justice, namely, nemo judex in, causa sua em audi alteram part, have now a definite meaning and connotation in law and their content and implications are well understood and firmly established they are nonetheless not statutory rules. Each of these rules yields to and changes with the exigencies of different situations. They do not apply in the same manner to situations which are not alike. These rules are not case in a rigid mould nor can they be put in a legal strait-jacket. They are not immutable but flexible. These rules can be adapted and modified by statutes and statutory rules and also by the Constitution of the Tribunal which has to decide a particular matter and rules by which such Tribunal is governed.
There is no difference in this respect between the law in England and in India. It is unnecessary to refer to various English decisions which have held so. It will suffice to reproduce what Ormond, L.J., said in Norwest Hoist Ltd. v. Secretary of State for Trade and Ors. L.R. [1978] 1 Ch. 201, (at page 227):
"The House of Lords and this Court have repeatedly emphasised that the ordinary principles of natural justice must be kept flexible and must be adapted to the circumstances prevailing in any particular case.
One of the most important of these circumstances, as has been said throughout the W.As.959&975/2020 139 argument, is, of course, the provisions of the statute in question : in this case Sections 164 and 165 of the Companies Act 1948."
101. Not only, therefore, can the principles of natural justice be modified but in exceptional cases they can even be excluded. There are well-defined exceptions to the nemo judex in causa sua rule as also to the audi alteram partem rule. The nemo judex in causa sua rule is subject to the doctrine of necessity and yields to it as pointed out by this Court in J. Mohapatra and Co. and Anr. v. State of Orissa and Anr. [1985]1SCR322: 334-5. So far as the audi alteram partem rule is concerned, both in England and in India, it is well established that where a right to a prior notice and an opportunity to be heard before an order is passed would obstruct the taking of prompt action, such a right can be excluded. This right can also be excluded where the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provisions warrant its exclusion; nor can the audi alteram partem rule be invoked if importing it would have the effect of paralysing the administrative process or where the need for promptitude or the urgency of taking action so demands, as pointed out in Maneka Gandhi's case at page
681................"
(emphasis supplied)
(iii) In Automotive Tyre Manufacturers Association v. The Designated Authority and Ors. [(2011) 2 SCC 258], the Hon'ble Supreme Court held thus:
"65. More often than not, it is not easy to draw a line demarcating an administrative decision from a quasi- judicial decision. Nevertheless, the aim of both a quasi- judicial function as well as an administrative function is to arrive at a just decision. In A.K. Kraipak and Ors. v. Union of India and Ors. (1969) 2 SCC 262, this Court had observed that the dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasi- judicial power, regard must be had to: (i) the nature of the power conferred; (ii) the person or persons on whom it is conferred; (iii) the framework of the law conferring W.As.959&975/2020 140 that power; (iv) the consequences ensuing from the exercise of that power and (v) the manner in which that power is expected to be exercised. (emphasis supplied)
77. It is trite that rules of "natural justice" are not embodied rules. The phrase "natural justice" is also not capable of a precise definition. The underlying principle of natural justice, evolved under the common law, is to check arbitrary exercise of power by the State or its functionaries. therefore, the principle implies a duty to act fairly i.e. fair play in action. In A.K. Kraipak (supra), it was observed that the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice.
80. It is thus, well settled that unless a statutory provision, either specifically or by necessary implication excludes the application of principles of natural justice, because in that event the Court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of a statute, particularly when the order has adverse civil consequences which obviously cover infraction of property, personal rights and material deprivations for the party affected. The principle holds good irrespective of whether the power conferred on a statutory body or Tribunal is administrative or quasi-judicial. It is equally trite that the concept of natural justice can neither be put in a strait-jacket nor is it a general rule of universal application.
Undoubtedly, there can be exceptions to the said doctrine. As stated above, the question whether the principle has to be applied or not is to be considered bearing in mind the express language and the basic scheme of the provision conferring the power; the nature of the power conferred and the purpose for which the power is conferred and the final effect of the exercise of that power. It is only upon a consideration of these matters that the question of application of the said principle can be properly determined. (See: Union of India v. Col. J.N. Sinha and Anr. (1970) 2 SCC 458.)"
(emphasis supplied) W.As.959&975/2020 141
112. Doctrine of Necessity makes it imperative and the Disaster Management Act, 2005, is designed, empowering the competent authority, to take a decision, immediately to the situation, to prevent the disaster of spreading of COVID-19, and in the case on hand, to provide immediate treatment to the COVID-19 patients, and for that purpose, to find a place, which according to the respondents, the subject building, 50 metres away from the District Medical Centre.
113. If the object and purpose of the Disaster Management Act, 2005 have to be achieved, then, Doctrine of Necessity should be allowed in its full play and latitude, otherwise, the provisions of the Disaster Management Act, 2005 would lose their rigour.
114. Disaster Management Act, 2005, is a special enactment dealing with effective management of disaster and for matters connected therewith or incidental thereto. If the provisions of the Disaster Management Act are to be interpreted in the manner suggested by the appellants, then it would be a long drawn process of serving notices to all the owners or persons interested on the premises, opportunity of hearing or considering their representations on the notices, before passing an order. When there is an urgent and imminent need to take over the premises, for public purpose mandated under the Act, then there should be an exception to the principles of natural justice.
W.As.959&975/2020 142115. If the contentions of learned counsel for the appellants have to accepted, that Section 65(c) of the Disaster Management Act envisages a notice in writing before taking over possession and obligates the authority specified therein to pass an order, then it would cause only a stalemate situation, in providing immediate treatment to the Covid-19 patients and keeping them in a safe place. Needless to state, in many Statutes, Legislature has used the expression, notice in writing followed by an objection/reply/explanation, within a time frame, and thereafter, pass an order, depending upon the issues to be considered under the statutes.
Whereas, under Section 65 of the Act, the Legislature has used the expression "order in writing, requisitioning such resources or premises or such vehicle, as the case may be, and may make such further orders as may appear to it to be necessary or expedient in connection with the requisition". Notice in Oxford Dictionary means "Notification or warning of something, especially to allow preparations to be made". Order means an authoritative command or instruction. Material on record discloses that in the meeting held on 27.06.2020, in the presence of the builder, manager and others, proposal of the Local Self Government to take over possession of the building has been discussed and the Disaster Management/District Disaster Management Authority has passed the impugned order dated 28.06.2020.
W.As.959&975/2020 143116. Obligation to serve notice is not provided in the Disaster Management Act, 2005. Whether a breathing / reasonable time could have been given, depends upon the facts and circumstances of each case.
117. The contention that the appellants were not given notice before passing Exhibit-P3 order dated 28.06.2020 and taking over the building for the purpose of converting it as CFLTC, is not valid. We are of the view that . the appellants were properly informed before passing the impugned order. The petitioner in W.P.(C) No.12935 of 2020, the builder of the apartments and the manager have participated in the meeting held on 27.06.2020.
118. Contention of the appellants that respondents have violated the procedure contemplated under Section 65 of the Disaster Management Act, 2005, which requires issuance of a written request/notice to the owner of the building is not acceptable. As rightly contended by Mr. Ranjith Thampan, learned Additional Advocate General such a contention appears to be on an erroneous interpretation of the expression "order of requisition" as provided in Section 65(c) of the Act. What is actually contemplated under Section 65 is that, if it appears to the authority that any resources or premises which are needed for the purpose of management of the disaster, such authority can by order in writing "requisition such resources or premises". The requisition of resources or W.As.959&975/2020 144 premises means taking over the control or management or possession of resources or premises for a temporary period. The words "order in writing, requisitioning such resources or premises" contained in Section 65 of the Act cannot, at any stretch of imagination, be interpreted to mean a written request or notice preceding the order taking over the possession.
119. As rightly contended by the learned Additional Advocate General, there is a basic and fundamental distinction recognized by law between requisition and acquisition. A distinction has been made between acquisition and requisitioning of property in Entry 42 of List Ill in the Seventh Schedule of the Constitution of India. The original Article 31 Clause (2) of the Constitution of India has also recognized this distinction between compulsory acquisition and requisitioning of property. The concept of requisition involves merely taking of "domain or control over property without acquiring rights of ownership" and must by its very nature be of temporary duration. Therefore, in view of Entry 42 List III of the Constitution and the judgment of Hon'ble Apex Court in H.D. Vora v. State of Maharashtra and Others [(1984) 2 SCC 337], requisition of resources/premises can only be interpreted to mean that taking over of the temporary control/possession and management of the building by an order in writing.
W.As.959&975/2020 145120. Giving due consideration to the object and purpose of the Disaster Management Act, 2005, and the decisions considered above, we are of the view that the Government order dated 28.06.2020 [(Ext.P3 in W.P.(C) No.12935 of 2020], satisfies all the requirements of Section 65(c) of the Disaster Management Act. Section 65 does not contemplate issuance of a notice before an 'order of requisition' of the resources or premises. It only requires that the order of requisition should be in writing.
121. Contention alleging violation of constitutional rights guaranteed under Articles 21 and 300 A of the Constitution of India is rejected.
122. As rightly contended by the respondents, the Disaster Management Authority, though being the lowest level of authority, is the prime authority in implementing the provisions of the Act and the plans prepared at the National / State / district levels respectively.
123. Sections 33, 34 and 65 of the Disaster Management Act, 2005 empower the first respondent to take adequate measures for preventing the spread of Covid-19, provide adequate,and prompt treatment, find out buildings for accommodating Covid-19 patients. Section 65(c) of the Act does not provide notice and hearing of any objection before taking action.
124. As rightly contended by the respondents, no materials have been produced by the appellants before us to show that the order of requisition dated 28.06.2020 [(Exhibit-P3 in W.P.(C) No.12935 of 2020] W.As.959&975/2020 146 passed by the Chairman of the District Disaster Management Authority, is mala fide, except by stating that COVID-19 pandemic, is not a disaster, which has come over a night, on account of a flood or landslide and that the authority could have heard the appellants and also confirmed on the availability of the buildings. At this juncture, It is also to be noted that during the period of pandemic the authorities are expected to take appropriate decisions, depending upon the increase or decrease in the number of Covid-19 patients, persons to be quarantined etc.
125. Government and other authorities under the Disaster Management Act, 2005, as guardians of life, have to be given the latitude to decide as to when and what building is required to be taken over, for providing immediate treatment to Covid-19 patients. Mandate of the Constitution of India is to safeguard the life of citizens, as compared to the distress, if any, caused to others, in the case on hand, taking over the building. Action of respondent No.1 in taking over the building is in accordance with the provisions of the Disaster Management Act, 2005.
126. In State of Kerala & Others v. Dr. Biju Ramesh reported in ILR 2016 (2) Kerala 449), a Hon'ble Division Bench of this Court held that, a reading of Section 65 does not indicate that the said power is to be exercised by the authorities only when actual disaster has happened. The power of requisition of resources can be exercised for the purpose of W.As.959&975/2020 147 prompt response or when it is needed or likely to be needed for the purpose of rescue operation. The exercise of power under Section 65 is towards achieving the object of disaster management.
127. In In re Travancore Devaswom Board - Pulumeedu Tragedy reported in [2011 (3) KLT 865], a Hon'ble Division Bench of this Court observed as follows:
"Looking at the definition of 'disaster' in paragraph 2(d) of the DM Act, 'disaster' means a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man made causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area. 'Disaster management' means a continuous and integrated process of planning, organising, coordinating and implementing measures which are necessary or expedient for (i) prevention of danger or threat of any disaster; (ii) mitigation or reduction of risk of any disaster or its severity or consequences; (iii) capacity - building; (iv) preparedness to deal with any disaster; (v) prompt response to any threatening disaster situation or disaster; (vi) assessing the severity or magnitude of effects of any disaster; (vii) evacuation, rescue and relief; and (viii) rehabilitation and reconstruction. The first and foremost element of disaster management is prevention of danger or threat of any disaster. The Disaster Management Authority is envisaged to be a body which can perceive the danger which could, in all probability, be in the offing. Anticipation of a disaster or a threat of a disaster are matters which have to be perceived by those involved in the process which means that persons of competence, capability, responsibility and commitment who have a flair for identifying the possibilities of danger and threats of danger, will have to man such authorities and such authorities should have a team which would be able to smell a problem in anticipation. Otherwise, in almost every accident or disaster, that limb of S.2(e) of the W.As.959&975/2020 148 DM Act will necessarily fail. Disaster management will only be mitigation or reduction or severity or consequences and other matters which may arise for management only after the mishap occurs or commences its activity. The laudable object of DM Act has been demonstrated to have totally failed in relation to the management of Pullumedu issue in terms of the provisions of the DM Act."
128. We finally have a duty to consider as to whether Exhibit-P3 dated 28.06.2020 in W.P.(C) No.12935 of 2020, satisfies the test of Judicial review. In this regard, we deem it fit to consider a few decisions on judicial review of administrative action/decision, as the case may be, which are extracted hereunder:
"(i) The principle of "Wednesbury unreasonableness" or irrationality, classified by Lord Diplock as one of the grounds for intervention in judicial review, was lucidly summarised by Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., reported in (1948) 1 KB 223 : (1947) 2 All ER 680 as follows:
"...the court is entitled to investigate the action of the local authority with a view of seeing whether it has taken into account matters which it ought not to take into account, or conversely, has refused to take into account or neglected to take into account matters which it ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that the local authority, nevertheless, have come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere."
(ii) In Council of Civil Service Unions v. Minister for the Civil Service, reported in (1984) 3 All ER 935, Lord Diplock enunciated W.As.959&975/2020 149 three grounds upon which an administrative action is subject to control by judicial review, viz. (i) illegality (ii) irrationality and (iii) procedural impropriety, as follows:
"By "illegality" he means that the decision-maker must understand correctly the law that regulates his decision- making power and must give effect to it, and whether he has or has not, is a justiciable question; by "irrationality"
he means "Wednesbury unreasonableness". It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided, could have arrived at it; and by "procedural impropriety"
he means not only failure to observe the basic rules of natural justice or failure to act with procedural fairness, but also failure to observe procedural rules that are expressly laid down in the legislative instrument by which the tribunal's jurisdiction is conferred, even where such failure does not involve any denial of natural justice."
(iii) In Shri Sitaram Sugar Co. Ltd. and Ors. v. Union of India (UOI) and Ors. [(1990) 3 SCC 223], the Hon'ble Supreme Court observed thus:
"56.The Court has neither the means nor the knowledge to re-evaluate the factual basis of the impugned orders. The Court, in exercise of judicial review, is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence. In the words of Justice Frankfurter of the U.S. Supreme Court in Railroad Commission of Texas v. Rowan & Nichols Oil Company, 311 US 570, 85 L. ed. 358:
"Nothing in the Constitution warrants a rejection of these expert conclusions. Nor, on the basis of intrinsic skills and equipment, are the federal courts qualified to set their independent judgment on such matters against that of the chosen state authorities.... When we consider the limiting conditions of litigation the adaptability of the judicial process only to issues W.As.959&975/2020 150 definitely circumscribed and susceptible of being judged by the techniques and criteria within the special competence of lawyers it is clear that the Due Process Clause does not require the feel of the expert to be supplanted by an independent view of judges on the conflicting testimony and prophecies and impressions of expert witnesses."
This observation is of even greater significance in the absence of a Due Process Clause.
57. Judicial review is not concerned with matters of economic policy. The Court does not substitute its judgment for that of the legislature or its agents as to matters within the province of either. The Court does not supplant the "feel of the expert" by its own views. When the legislature acts within the sphere of its authority and delegates power to an agent, it may empower the agent to make findings of fact which are conclusive provided such findings satisfy the test of reasonableness. In all such cases, judicial inquiry is confined to the question whether the findings of fact are reasonably based on evidence and whether such findings are consistent with the laws of the land. As stated by Jagannatha Shetty, J. in M\s. Gupta Sugar Works, (supra):
"......the court does not act like a chartered accountant nor acts like an income tax officer. The court is not concerned with any individual case or any particular problem. The court only examines whether the price determined was with due regard to considerations provided by the statute. And whether extraneous matters have been excluded from determination."
(iv) In State of U.P. v. Johri Mal, reported in (2004) 4 SCC 714, the Hon'ble Supreme Court observed thus:
"The scope and extent of power of the judicial review of the High Court contained in Article 226 of the Constitution of India would vary from case to case, the nature of the order, the relevant statute as also the W.As.959&975/2020 151 other relevant factors including the nature of power exercised by the public authorities, namely, whether the power is statutory, quasi-judicial or administrative. The power of judicial review is not intended to assume a supervisory role or don the robes of the omnipresent. The power is not intended either to review governance under the rule of law or do the courts step into the areas exclusively reserved by the suprema lex to the other organs of the State. Decisions and actions which do not have adjudicative disposition may not strictly fall for consideration before a judicial review court."
(v) In Rameshwar Prasad v. Union of India, reported in (2006) 2 SCC 1, the Hon'ble Supreme Court observed thus:
"A person entrusted with discretion must, so to speak, direct himself properly in law. He must call his attention to matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules he may truly be said to be acting unreasonably. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority.
It is an unwritten rule of law, constitutional and administrative, that whenever a decision-making function is entrusted to be subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote."
(vi) In Jayrajbhai Jayantibhai Patel v. Anilbhai Jayanitbhai Patel, reported in (2006) 8 SCC 200, the Hon'ble Supreme Court in Para 18 observed as under:--
"18. Having regard to it all, it is manifest that the power of judicial review may not be exercised unless the administrative decision is illogical or suffers from procedural impropriety or it shocks the conscience of the court in the sense that it is in defiance of logic or moral standards but no standardised formula, universally applicable to all cases, can be evolved. Each case has to be considered on its own facts, W.As.959&975/2020 152 depending upon the authority that exercises the power, the source, the nature or scope of power and the indelible effects it generates in the operation of law or affects the individual or society. Though judicial restraint, albeit self-recognised, is the order of the day, yet an administrative decision or action which is based on wholly irrelevant considerations or material; or excludes from consideration the relevant material; or it is so absurd that no reasonable person could have arrived at it on the given material, may be struck down. In other words, when a Court is satisfied that there is an abuse or misuse of power, and its jurisdiction is invoked, it is incumbent on the Court to intervene. It is nevertheless, trite that the scope of judicial review is limited to the deficiency in the decision-making process and not the decision."
The following passage from Professor Bernard Schwartz's book Administrative Law (Third Edition) aptly echo's our thoughts on the scope of judicial review:
"Reviewing courts, the cases are now insisting, may not simply renounce their responsibility by mumbling an indiscriminate litany of deference to expertise. Due deference to the agency does not mean abdication of the duty of judicial review and rubber- stamping of agency action: [W]e must accord the agency considerable, but not too much deference; it is entitled to exercise its discretion, but only so far and no further."
Quoting Judge Leventhal from Greater Boston Television Corp. v. FCC, 444 F. 2d 841 (D.C. Cir. 1970), he further says:
"...the reviewing court must intervene if it "becomes aware...that the agency has not really taken a 'hard look' at the salient problems, and has not genuinely engaged in reasoned decision-making..."
(vii) In Ganesh Bank of Kurundwad Ltd. v. Union of India, reported in (2006) 10 SCC 645, the Hon'ble Supreme Court in Paras 50 and 51 observed as under:
W.As.959&975/2020 153"15. The court will be slow to interfere in such matters relating to administrative functions unless decision is tainted by any vulnerability enumerated above; like illegality, irrationality and procedural impropriety. Whether action falls within any of the categories has to be established. Mere assertion in that regard would not be sufficient.
50. There should be judicial restraint while making judicial review in administrative matters. Where irrelevant aspects have been eschewed from consideration and no relevant aspect has been ignored and the administrative decisions have nexus with the facts on record, there is no scope for interference. The duty of the court is (a) to confine itself to the question of legality; (b) to decide whether the decision making authority exceeded its powers (c) committed an error of law (d) committed breach of the rules of natural justice and (e) reached a decision which no reasonable Tribunal would have reached or (f) abused its powers. Administrative action is subject to control by judicial review in the following manner:
(i) Illegality.- This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury
unreasonableness.
(iii) Procedural impropriety.
51. ...........Professor De Smith in his classical work "Judicial Review of Administrative Action" 4 th Edition at pages 285-287 states the legal position in his own terse language that the relevant principles formulated by the Courts may be broadly summarized as follows.
The authority in which discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it; it must not act under the dictates of another body or disable itself from exercising discretion in each individual case. In the purported exercise of its discretion, it must not do what it has been forbidden to do, nor must it do what it has W.As.959&975/2020 154 not been authorized to do. It must act in good faith, must have regard to all relevant considerations and must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. These several principles can conveniently be grouped in two main categories: (I) failure to exercise a discretion, and
(ii) excess or abuse of discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account, and where an authority hands over its discretion to another body it acts ultra vires."
(viii) In Bank of India v. T. Jogram reported in (2007) 7 SCC 236, the Hon'ble Supreme Court has held that it is well settled principle of law that Judicial review is not against the decision, but is against the decision making process.
(ix) In Jagdish Mandal v. State of Orissa and Ors. [(2007) 14 SCC 517], the Hon'ble Supreme Court held thus:
"22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and malafides. Its purpose is to check whether choice or decision is made 'lawfully' and not to check whether choice or decision is 'sound'. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out.
The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes.W.As.959&975/2020 155
The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold............................"
(x) In State of Maharashtra v. Prakash Prahland Patil reported in (2009) 12 SCC 159, the Hon'ble Supreme Court, at paragraphs 5 and 6, held as follows:
"5. The scope for judicial review has been examined by this court in several cases. It has been consistently held that the power of judicial review is not intended to assume a supervisory role or don the robes of omnipresent. The power is not intended either to review governance under the rule of law nor do the courts step into the areas exclusively reserved by the supreme lex to other organs of the State. A mere wrong decision, without anything more, in most of the cases will not be sufficient to attract the power of judicial review. The supervisory jurisdiction conferred upon a court is limited to see that the authority concerned functions within its limits of its authority and that its decisions do not occasion miscarriage of justice.
6. The courts cannot be called upon to undertake governmental duties and functions. Courts should not ordinarily interfere with a policy decision of the State. While exercising power of judicial review the court is more concerned with the decision making process than the merit of the decision itself."
(xi) In All India Railway Recruitment Board v. K. Shyam Kumar [(2010) 6 SCC 614], the Hon'ble Supreme Court, held as follows:
"22. Judicial review conventionally is concerned with the question of jurisdiction and natural justice and the Court is not much concerned with the merits of the decision but W.As.959&975/2020 156 how the decision was reached. In Council of Civil Service Unions v. Minister of State for Civil Service, (1984) 3 All ER 935 the (GCHQ Case) the House of Lords rationalized the grounds of judicial review and ruled that the basis of judicial review could be highlighted under three principal heads, namely, illegality, procedural impropriety and irrationality. Illegality as a ground of judicial review means that the decision maker must understand correctly the law that regulates his decision making powers and must give effect to it. Grounds such as acting ultra vires, errors of law and/or fact, onerous conditions, improper purpose, relevant and irrelevant factors, acting in bad faith, fettering discretion, unauthorized delegation, failure to act etc., fall under the heading "illegality". Procedural impropriety may be due to the failure to comply with the mandatory procedures such as breach of natural justice, such as audi alteram partem, absence of bias, the duty to act fairly, legitimate expectations, failure to give reasons etc.
23. Ground of irrationality takes in Wednesbury unreasonableness propounded in Associated Provincial Picture Houses Limited v. Wednesbury Corporation, (1947) 2 All ER 680, Lord Greene MR alluded to the grounds of attack which could be made against the decision, citing unreasonableness as an 'umbrella concept' which covers the major heads of review and pointed out that the court can interfere with a decision if it is so absurd that no reasonable decision maker would in law come to it. In GCHQ Case (supra) Lord Diplock fashioned the principle of unreasonableness and preferred to use the term irrationality as follows:
"By 'irrationality' I mean what can now be succinctly referred to as "Wednesbury's unreasonableness", ....... It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."
24. In R. v. Secretary of State for the Home Department ex parte Brind, (1991) 1 All ER 720, the House of Lords re-examined the reasonableness of the W.As.959&975/2020 157 exercise of the Home Secretary's discretion to issue a notice banning the transmission of speech by representatives of the Irish Republican Army and its political party, Sinn Fein. Court ruled that the exercise of the Home Secretary's power did not amount to an unreasonable exercise of discretion despite the issue involving a denial of freedom of expression. House of Lords however, stressed that in all cases raising a human rights issue proportionality is the appropriate standard of review.
25. The House of Lords in R (Daly) v. Secretary of State for the Home Department, (2001) 2 AC 532 demonstrated how the traditional test of Wednesbury unreasonableness has moved towards the doctrine of necessity and proportionality. Lord Steyn noted that the criteria of proportionality are more precise and more sophisticated than traditional grounds of review and went on to outline three concrete differences between the two:--
(1) Proportionality may require the reviewing Court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions.
(2) Proportionality test may go further than the traditional grounds of review in as much as it may require attention to be directed to the relative weight accorded to interests and considerations. (3) Even the heightened scrutiny test is not necessarily appropriate to the protection of human rights.
Lord Steyn also felt most cases would be decided in the same way whatever approach is adopted, though conceded for human right cases proportionality is the appropriate test.
26. The question arose as to whether doctrine of proportionality applies only where fundamental human rights are in issue or whether it will come to provide all aspects of judicial review. Lord Steyn in R. (Alconbury Development Limited) v. Secretary of State for the W.As.959&975/2020 158 Environment, Transport and the Regions, (2001) 2 All ER 929 stated as follows:--
"I consider that even without reference to the Human Rights Act, 1998 the time has come to recognize that this principle (proportionality) is part of English administrative law not only when Judges are dealing with Community acts but also when they are dealing with acts subject to domestic law. Trying to keep the Wednesbury principle and proportionality in separate compartments seems to me to be unnecessary and confusing".
Lord Steyn was of the opinion that the difference between both the principles was in practice much less than it was sometimes suggested and whatever principle was applied the result in the case was the same.
27. Whether the proportionality will ultimately supersede the concept of reasonableness or rationality was also considered by Dyson Lord Justice in R. (Association of British Civilian Internees: Far East Region) v. Secretary of State for Defence, [2003] QB 1397 and stated as follows:--
"We have difficulty in seeing what justification there now is for retaining Wednesbury test ..... but we consider that it is not for this Court to perform burial rights. The continuing existence of the Wednesbury test has been acknowledged by House of Lords on more than one occasion. A survey of the various judgments of House of Lords, Court of Appeals, etc. would reveal for the time being both the tests continued to co- exist."
28. Position in English Administrative Law is that both the tests that is. Wednesbury and proportionality continue to co-exist and the proportionality test is more and more applied, when there is violation of human rights, and fundamental freedom and the Wednesbury W.As.959&975/2020 159 finds its presence more on the domestic law when there is violations of citizens ordinary rights. Proportionality principle has not so far replaced the Wednesbury principle and the time has not reached to say good bye to Wednesbury much less its burial.
29. In Huang case, (2007) 4 All ER 15 (HL), the House of Lords was concerned with the question whether denial of asylum infringes Article 8 (Right to Respect Family Life) of the Human Rights Act, 1998. House of Lords ruled that it was the duty of the authorities when faced with individuals who did not qualify under the rules to consider whether the refusal of asylum status was unlawful on the ground that it violated the individual's right to family life. A structured proportionality test has emerged from that decision in the context of the violation of human rights. In R (Daly) (supra) the House of Lords considered both common law and Article 8 of the convention and ruled that the policy of excluding prisoners from their cells while prison officers conducted searches, which included scrutinizing privileged legal correspondence was unlawful.
30. Both the above-mentioned cases, mainly concerned with the violation of human rights under the Human Rights Act, 1998 but demonstrated the movement away from the traditional test of Wednesbury unreasonableness towards the test of proportionality. But it is not safe to conclude that the principle of Wednesbury unreasonableness has been replaced by the doctrine of proportionality.
31. Justice S.B. Sinha, as His Lordship then was, speaking for the Bench in State of U.P. v. Sheo Shanker Lal Srivastava, (2006) 3 SCC 276 after referring to the judgment of the Court of appeal in Huang v. Secretary of State for the Home Department, (2005) 3 All ER 435, R. v. Secretary of State of the Home Department, ex parte Daly, (2001) 3 All ER 433 (HL) opined that Wednesbury principle may not now be held to be applicable in view of the development in constitutional law and held as follows:--
W.As.959&975/2020 160"24. While saying so, we are not oblivious of the fact that the doctrine of unreasonableness is giving way to the doctrine of proportionality.
25. It is interesting to note that the Wednesbury principles may not now be held to be applicable in view of the development in constitutional law in this behalf. See, for example, Huang v. Secy. of State for the Home Deptt. wherein referring to R. v. Secretary of State of the Home Department, ex parte Daly, it was held that in certain cases, the adjudicator may require to conduct a judicial exercise which is not merely more intrusive than Wednesbury, but involves a full-blown merit judgment, which is yet more than ex p. Daly, requires on a judicial review where the court has to decide a proportionality issue."
32. Sheo Shanker Lal Srivastava case was later followed in Indian Airlines Ltd. v. Indian Airlines Ltd. v. Prabha D. Kanan, (2006) 11 SCC 67. Following the above mentioned two judgments in Jitendra Kumar v. State of Haryana, (2008) 2 SCC 161, the Bench has referred to a passage in HWR Wade and CF Forsyth on Administrative Law, 9th Edition. (2004), pages 371- 372 with the caption "Goodbye to Wednesbury" and quoted from the book which reads as follows:--
"The Wednesbury doctrine is now in terminal decline but the coup de grace has not yet fallen, despite calls for it from very high authorities" and opined that in some jurisdictions the doctrine of unreasonableness is giving way to doctrine of proportionality."
33. Indian Airlines Ltd.'s case and Sheo Shanker Lal Srivastava's case (supra) were again followed in State of Madhya Pradesh v. Hazarilal, (2008) 3 SCC 273 and the Bench opined as follows:--
"Furthermore the legal parameters of judicial review have undergone a change.
Wednesbury principle of unreasonableness W.As.959&975/2020 161 has been replaced by the doctrine of proportionality.".
34. With due respect, we are unable to subscribe to that view, which is an overstatement of the English Administrative Law.
35. Wednesbury principle of unreasonableness as such has not been replaced by the doctrine of proportionality though that test is being applied more and more when violation of human rights is alleged. H.W.R. Wade & C.F. Forsyth in the 10th Edition of Administrative Law (2009), has omitted the passage quoted by this court in Jitender Kumar case and stated as follows:
"Notwithstanding the apparent persuasiveness of these views the coup de grace has not yet fallen on Wednesbury unreasonableness. Where a matter falls outside the ambit of 1998 Act, the doctrine is regularly relied upon by the courts. Reports of its imminent demise are perhaps exaggerated." (emphasis applied).
36. Wednesbury and Proportionality-Wednesbury applies to a decision which is so reprehensible in its defiance of logic or of accepted moral or ethical standards that no sensible person who had applied his mind to the issue to be decided could have arrived at it. Proportionality as a legal test is capable of being more precise and fastidious than a reasonableness test as well as requiring a more intrusive review of a decision made by a public authority which requires the courts to 'assess the balance or equation' struck by the decision maker. Proportionality test in some jurisdictions is also described as the "least injurious means" or "minimal impairment" test so as to safeguard fundamental rights of citizens and to ensure a fair balance between individual rights and public interest. Suffice to say that there has been an overlapping of all these tests in its content and structure, it is difficult to compartmentalize or lay down a straight jacket formula and to say that Wednesbury has met with its death knell is too tall a statement. Let us, however, recognize the fact that the current trend seems to favour proportionality test but W.As.959&975/2020 162 Wednesbury has not met with its judicial burial and a state burial, with full honours is surely not to happen in the near future.
37. Proportionality requires the Court to judge whether action taken was really needed as well as whether it was within the range of courses of action which could reasonably be followed. Proportionality is more concerned with the aims and intention of the decision- maker and whether the decision-maker has achieved more or less the correct balance or equilibrium. Courts entrusted with the task of judicial review has to examine whether decision taken by the authority is proportionate, i.e. well balanced and harmonious, to this extent court may indulge in a merit review and if the court finds that the decision is proportionate, it seldom interferes with the decision taken and if it finds that the decision is disproportionate i.e. if the court feels that it is not well balanced or harmonious and does not stand to reason it may tend to interfere.
38. Leyland and Anthony on Textbook on Administrative Law (5th edn. OUP, 2005) at p.331 has amply put as follows:
"Proportionality works on the assumption that administrative action ought not to go beyond what is necessary to achieve its desired results (in every day terms, that you should not use a sledgehammer to crack a nut) and in contrast to irrationality is often understood to bring the courts much closer to reviewing the merits of a decision".
39. Courts have to develop an indefeasible and principled approach to proportionality till that is done there will always be an overlapping between the traditional grounds of review and the principle of proportionality and the cases would continue to be decided in the same manner whichever principle is adopted. Proportionality as the word indicates has reference to variables or comparison, it enables the Court to apply the principle with various degrees of intensity and offers a potentially deeper inquiry into the reasons, projected by the decision maker."
W.As.959&975/2020 163(xii) In Union of India v. Rajasthan High Court reported in (2017) 2 SCC 599, the Hon'ble Supreme Court, at paragraph 13, while discussing the scope of judicial review, held as follows:
"13. ........The powers under Article 226 are wide - wide enough to reach out to injustice wherever it may originate. These powers have been construed liberally and have been applied expansively where human rights have been violated. But, the notion of injustice is relatable to justice under the law. Justice should not be made to depend upon the individual perception of a decision maker on where a balance or solution should lie. Judges are expected to apply standards which are objective and well defined by law and founded upon constitutional principle. When they do so, judges walk the path on a road well-travelled. When judicial creativity leads judges to roads less travelled, in search of justice, they have yet to remain firmly rooted in law and the Constitution. The distinction between what lies within and what lies outside the power of judicial review is necessary to preserve the sanctity of judicial power. Judicial power is respected and adhered to in a system based on the rule of law precisely for its nuanced and restrained exercise. If these restraints are not maintained the court as an institution would invite a justifiable criticism of encroaching upon a terrain on which it singularly lacks expertise and which is entrusted for governance to the legislative and executive arms of government. Judgments are enforced, above all, because of the belief which society and arms of governance of a democratic society hold in the sanctity of the judicial process. This sanctity is based on institutional prestige. Institutional authority is established over long years, by a steadfast commitment to a calibrated exercise of judicial power. Fear of consequences is one reason why citizens obey the law as well as judicial decisions. But there are far stronger reasons why they do so and the foundation for that must be carefully preserved. That is the rationale for the principle that judicial review is confined to cases where there is a breach of law or of the Constitution."W.As.959&975/2020 164
(xiii) In Royal Medical Trust v. Union of India reported in (2017) 16 SCC 605, the Hon'ble Supreme Court, on the scope of judicial review, held as follows:
"The principle of judicial review by the constitutional courts have been lucidly stated in many an authority of this Court. In Tata Cellular v. Union of India17, dealing with the concept of Judicial Review, the Court held:--
"Lord Scarman in Nottinghamshire County Council v. Secretary of State for the Environment proclaimed: 'Judicial review' is a great weapon in the hands of the judges; but the judges must observe the constitutional limits set by our parliamentary system upon the exercise of this beneficial power." Commenting upon this Michael Supperstone and James Goudie in their work Judicial Review (1992 Edn.) at p. 16 say: "If anyone were prompted to dismiss this sage warning as a mere obiter dictum from the most radical member of the higher judiciary of recent times, and therefore to be treated as an idiosyncratic aberration, it has received the endorsement of the Law Lords generally. The words of Lord Scarman were echoed by Lord Bridge of Harwich, speaking on behalf of the Board when reversing an interventionist decision of the New Zealand Court of Appeal in Butcher v. Petrocorp Exploration Ltd. 18-3-1991." Observance of judicial restraint is currently the mood in England. The judicial power of review is exercised to rein in any unbridled executive functioning. The restraint has two contemporary manifestations. One is the ambit of judicial intervention; the other covers the scope of the court's ability to quash an administrative decision on its merits. These restraints bear the hallmarks of judicial control over administrative action."
(xiv) In Kerala State Beverages (M and M) Corporation Limited and Ors. v. P.P. Suresh and Ors. [(2019) 9 SCC 710], the Hon'ble Supreme Court held thus;
"26. The challenge to the order dated 07.08.2004 by which the Respondents were deprived of an opportunity of being considered for employment is on the ground of violation of Articles 14, 19 and 21 of the W.As.959&975/2020 165 Constitution of India. Lord Diplock in Council of Civil Service Unions and Ors. v. Minister for the Civil Services4, held that the interference with an administrative action could be on the grounds of 'illegality', 'irrationality' and 'procedural impropriety'. He was of the opinion that 'proportionality' could be an additional ground of review in the future. Interference with an administrative decision by applying the Wednesbury's principles is restricted only to decisions which are outrageous in its defiance of logic or of accepted moral standards that no sensible person who applied his mind to the question to be decided could have arrived at it."
28. In Om Kumar v. Union of India AIR 2000 SC 3689, this Court held as follows:
"By 'proportionality', we mean the question whether, while regulating exercise of fundamental rights, the appropriate or least restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the Court will see that the legislature and the administrative authority 'maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve'. The legislature and the administrative authority are, however, given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not, is for the Court. That is what is meant by proportionality."
In this case, M. Jagannadha Rao, J. examined the development of principles of proportionality for review of administrative decision in England and in India. After referring to several judgments, it was held that the proportionality test is applied by the Court as a primary reviewing authority in cases where there is a violation of Articles 19 and 21. The proportionality test can also be applied by the Court in reviewing a decision where the challenge to administrative action is on the ground W.As.959&975/2020 166 that it was discriminatory and therefore violative of Article 14. It was clarified that the principles of Wednesbury have to be followed when an administrative action is challenged as being arbitrary and therefore violative of Article 14 of the Constitution of India. In such a case, the Court would be doing a secondary review.
29. While exercising primary review, the Court is entitled to ask the State to justify the policy and whether there was an imminent need for restricting the fundamental rights of the claimants. In secondary review, the Court shows deference to the decision of the executive.
30. Proportionality involves 'balancing test' and 'necessity test'.[Coimbatore District Central Co- operative Bank v. Coimbatore District Central Cooperative Bank Employees Association and Anr. (2007) 4 SCC 669] Whereas the balancing test permits scrutiny of excessive and onerous penalties or infringement of rights or interests and a manifest imbalance of relevant considerations, the necessity test requires infringement of human rights to be through the least restrictive alternatives.[Judicial Review of Administrative Action (1955) and Wade & Forsyth: Administrative Law (2005) (2007) 4 SCC 669]
31. An administrative decision can be said to be proportionate if:
(a) The objective with which a decision is made to curtail fundamental rights is important;
(b) The measures taken to achieve the objective have a rational connection with the objective; and
(c) The means that impair the rights of individuals are no more than necessary.
(xv) In Municipal Council, Neemuch v. Mahadeo Real Estate and Ors. Reported in (2019) 10 SCC 738, the Hon'ble Supreme Court observed thus:
"13. In the present case, the learned Judges of the Division Bench have arrived at a finding that such a W.As.959&975/2020 167 sanction was, in fact, granted. We will examine the correctness of the said finding of fact at a subsequent stage. However, before doing that, we propose to examine the scope of the powers of the High Court of judicial review of an administrative action. Though, there are a catena of judgments of this Court on the said issue, the law laid down by this Court in the case of Tata Cellular v. Union of India reported in (1994) 6 SCC 651 lays down the basic principles which still hold the field. Paragraph 77 of the said judgment reads thus:
77. The duty of the court is to confine itself to the question of legality. Its concern should be:
1. Whether a decision-making authority exceeded its powers?
2. Committed an error of law?
3. Committed a breach of the Rules of natural justice?
4. Reached a decision which no reasonable tribunal would have reached or,
5. Abused its powers.
Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:
(i) Illegality: This means the decision-
maker must understand correctly the law that regulates his decision-making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety.
The above are only the broad grounds but it does not Rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the W.As.959&975/2020 168 Home Department, ex Brind, (1991) 1 AC 696, Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, 'consider whether something has gone wrong of a nature and degree which requires its intervention'.
14. It could thus be seen that the scope of judicial review of an administrative action is very limited. Unless the Court comes to a conclusion, that the decision maker has not understood the law correctly that regulates his decision-making power or when it is found that the decision of the decision maker is vitiated by irrationality and that too on the principle of "Wednesbury Unreasonableness" or unless it is found that there has been a procedural impropriety in the decision-making process, it would not be permissible for the High Court to interfere in the decision making process. It is also equally well settled, that it is not permissible for the Court to examine the validity of the decision but this Court can examine only the correctness of the decision-making process.
15. This Court recently in the case of West Bengal Central School Service Commission v. Abdul Halim reported in [AIR 2019 SC 4504] had again an occasion to consider the scope of interference Under Article 226 in an administrative action.
"31. In exercise of its power of judicial review, the Court is to see whether the decision impugned is vitiated by an apparent error of law. The test to determine whether a decision is vitiated by error apparent on the face of the record is whether the error is self-evident on the face of the record or whether the error requires examination or argument to establish it. If an error has to be established by a process of reasoning, on points where there may reasonably be two opinions, it cannot be said to be an error on the face of the record, as held by this Court in Satyanarayan v. Mallikarjuna reported in AIR 1960 SC 137. If the provision of a statutory Rule is reasonably capable of two or more constructions and one construction W.As.959&975/2020 169 has been adopted, the decision would not be open to interference by the writ Court. It is only an obvious misinterpretation of a relevant statutory provision, or ignorance or disregard thereof, or a decision founded on reasons which are clearly wrong in law, which can be corrected by the writ Court by issuance of writ of Certiorari.
32. The sweep of power Under Article 226 may be wide enough to quash unreasonable orders. If a decision is so arbitrary and capricious that no reasonable person could have ever arrived at it, the same is liable to be struck down by a writ Court. If the decision cannot rationally be supported by the materials on record, the same may be regarded as perverse.
33. However, the power of the Court to examine the reasonableness of an order of the authorities does not enable the Court to look into the sufficiency of the grounds in support of a decision to examine the merits of the decision, sitting as if in appeal over the decision. The test is not what the Court considers reasonable or unreasonable but a decision which the Court thinks that no reasonable person could have taken, which has led to manifest injustice. The writ Court does not interfere, because a decision is not perfect."
23. ..............As discussed hereinabove, the High Court, while exercising its powers of judicial review of administrative action, could not have interfered with the decision unless the decision suffers from the vice of illegality, irrationality or procedural impropriety."
129. Testing the correctness of the order dated 28.06.2020 of the District Collector and the Chairman of the Disaster Management Authority, on the principles of law enunciated on judicial review on administrative action/decision, in the above said decisions, we do not find any illegality, irregularity and procedural impropriety in the order.
W.As.959&975/2020 170130. Going through the material on record, submissions and decisions, we are of the view that the writ court, in proper perspective, has rightly rejected the contentions raised by the appellants, upholding the order passed by the District Collector, Kannur, respondent No.1.
For the foregoing reasons, we sustain the impugned judgment dated 22.07.2020 in W.P.(C) Nos.12935 and 14222 of 2020 and dismiss the Writ Appeals. No costs.
Sd/-
S. MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P. CHALY JUDGE Krj //TRUE COPY// P.A. TO C.J.