Delhi High Court
Eros Grand Resorts & Hotels Pvt Ltd. vs Government Of Nct Of Delhi And Anr. on 17 June, 2020
Equivalent citations: AIRONLINE 2020 DEL 869
Author: Navin Chawla
Bench: Navin Chawla
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision : 17.06.2020
+ W.P.(C) 3531/2020
EROS GRAND RESORTS & HOTELS PVT LTD.
..... Petitioner
Through: Mr.Maninder Singh, Sr. Adv.
with Mr.P.S.Bindra, Adv.
versus
GOVERNMENT OF NCT OF DELHI AND ANR.
..... Respondents
Through: Mr.Sanjay Jain, ASG with
Mr.Gautam Narayan, ASC
for GNCTD with Mr.Adithya
Nair, Adv.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (Oral)
This hearing has been held by Video Conferencing.
WP(C) 3531/2020
1. Issue notice. Notice is accepted by Mr.Gautam Narayan, learned Additional Standing Counsel for the Government of NCT of Delhi. He prays for and is granted four weeks to file WP(C) No.3531/2020 Page 1 the counter affidavit(s). Rejoinder(s), if any, be filed within three weeks thereafter.
2. List the petition on 11th August, 2020.
CM 12548/20201. The present petition challenges 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.
2. The learned senior counsel for the petitioner submits that the Impugned Order dated 12.06.2020 has been issued without jurisdiction. He submits that under Sections 30 and 65 of the Disaster Management Act, 2005 (hereinafter referred to as the 'Act'), it is only the "District Authority", as defined in Section 2(f) and constituted under section 25(2) of the Act, empowered to pass such an order. He submits that the Impugned Order having been issued by the District Magistrate/Chairman of the DDMA, is ex facie without jurisdiction and authority.
3. The learned senior counsel for the petitioner further submits that in terms of Section 66 of the Act, compensation is WP(C) No.3531/2020 Page 2 to be paid to the person whose property is being requisitioned. In the Impugned Order, there is no mention of any compensation being paid to the petitioner thereby vitiating the Impugned Order. He submits that the property of the petitioner cannot be requisitioned without payment of adequate compensation. He places reliance on the judgment of the Supreme Court in Vidya Devi vs. State of Himachal Pradesh & Ors., 2020 2 SCC 569.
4. He further submits that the Impugned Order even otherwise does not reflect any application of mind inasmuch as there is nothing to show on record the consideration of the relevant factors like the feasibility of the hotel being used as a Covid Hospital; availability of doctors and nursing staff; availability of the staff with the hotel in question, etc. by the District Magistrate before issuing the Impugned Order.
5. He further submits that there are shops on the ground floor of the hotel building and the rooms are being provided in the hotel only from the fifth floor of the building and therefore, the building itself is not feasible of being used as a Covid hospital.
6. The learned senior counsel for the petitioner relying upon the Press Report dated 11.06.2020 submits that the Municipal Corporation(s) of Delhi have offered the Community Centers, Stadiums and other properties under their jurisdiction for setting up temporary hospitals to treat patients. He submits that the WP(C) No.3531/2020 Page 3 Impugned Order does not reflect any application of mind to such an offer and in any case, before taking over the property of the petitioner, the respondents should have considered the offer made by the Municipal Corporation(s).
7. Replying to the submission of the learned ASG that the Impugned Order has been passed exercising emergency powers by the Chairperson of the DDMA and would be placed for ratification before the DDMA in terms of Section 26(2) of the Act, the learned senior counsel for the petitioner submits that as the DDMA does not have an elected representative of the Local Authority as defined in Section 2(h) of the Act and as mandated in Section 25(2)(b) of the Act, presently there is no DDMA in existence in the eyes of law and any such ratification would be of no consequence. He submits that in fact it is mandatory for such Authority to be inclusive of the elected representative of the Local Authority, who, in fact, is to act as the co-chairperson of such Authority. He places reliance on the judgment of the Supreme Court in Bondu Ramaswamy and Ors. vs. Bangalore Development Authority & Ors. (2010) 7 SCC 129, to contend that this is also the Constitutional mandate.
8. The learned senior counsel for the petitioner further submits that the Impugned order does not, in any case, reflect that the same has been passed in any state of emergency. He places reliance on the judgment of the Supreme Court in WP(C) No.3531/2020 Page 4 Mahender Pal and Ors. vs. State of Haryana and ors. (2009) 14 SCC 281. He submits that there was, in fact, no emergency to issue the Impugned Order inasmuch as on the earlier occasion, when similar orders were challenged by the other hotels, the respondents realizing the lack of power of the District Magistrate to issue such order had got those orders ratified from the District Authority, though that ratification was also not in accordance with law. He submits that in the absence of any emergency, the District Magistrate could not have passed the impugned order.
9. On the other hand, the learned ASG submits that due to an extraordinary rise in the number of persons infected with Covid-19, desperate measures have been taken for enhancing the caring facilities to such patients. In this endeavour, due to such emergent situation, the respondents have passed similar orders requisitioning various hotels in the city. He submits that the order shall be put for the ratification of the DDMA duly appointed under the Act.
10. He further submits that this Court while considering similar challenge with respect to two other hotels in W.P. (C) 3342/2020 and W.P(c) 3397/2020 had requested Professor Randeep Guleria, Director- AIIMS and Dr.V.K.Paul, Member- Niti Ayog to visit those hotels and give a report on the advisability/feasibility of the same being used as Covid hospitals. Such report has been submitted to this Court and the WP(C) No.3531/2020 Page 5 respondents had agreed to follow the same in letter and spirit. He further submits that therefore, most of the concerns of the petitioner herein would have been addressed in the report, however, if some still remain, the petitioner would be at liberty to file a representation in this regard before the Committee appointed by the Lt. Governor vide his order dated 12.06.2020 and the same shall be considered by the said Committee.
11. On the question of compensation, he submits that the compensation would be payable to the petitioner in lines with the general order as has been passed with respect to other hotels. In any case, a specific order detailing the compensation payable to the petitioner shall be passed before taking over the hotel under the Impugned Order.
12. I have considered the submissions made by the learned counsels for the parties. Judicial notice has to be taken of the extraordinary rise in number of persons in the city suffering from the Covid-19 virus. Such times would require certain drastic measures to be taken by the Government to control the situation. It has to be best left to the experts to frame the policy and implement the same in such times. The Central Government has issued „Guidelines for prevention of transmission and Disinfection of hotels/lodging facility where suspect/confirmed Covid-19 cases have housed‟. It has also issued 'Guidance document on appropriate management of suspect/confirmed cases of Covid-19‟, providing that hotels can WP(C) No.3531/2020 Page 6 be used as Covid-Care Centre(s). There is no challenge to these Guidelines in the present petition.
13. As noted hereinabove, in relation to two other hotels, this Court had appointed a Committee of two eminent doctors and requested the Committee to visit the hotels and to report on the advisability/feasibility of the hotels being converted into Covid hospitals. The Committee in its report had given various suggestions, which the respondents submit would be fully followed even in the case of the petitioner herein. As far as any other suggestions/objections of the petitioner are concerned, as offered by the learned ASG, the petitioner shall be free to file the same in form of a representation before the Committee/sub- Committee appointed by the Lt. Governor and such Committee/sub-Committee shall consider the same. In fact, as is evident from the Press Release dated 12.06.2020, reproduced hereinbelow, this Committee has been appointed for the purpose of advising the DDMA on various aspects of COVID- 19 management and on measures to ramp up medical infrastructure.
"Hon‟ble Lt. Governor Delhi, Sh. Anil Baijal today constituted an advisory committee of eminent experts under section 17 of DDMA Act to advise the Delhi Disaster Management Authority (DDMA) on various aspects of COVID-19 management.
The committee is comprised of eminent experts of varied fields i.e. Sh. Krishna Vatsa, Member NDMA, WP(C) No.3531/2020 Page 7 Sh. Kamal Kishore, Member NDMA, Prof. Balram Bhargava, DG-ICMR, Dr. Randeep Guleria, Director, AIIMS, Dr. Ravindran, Addl. DDG (DGHS) and Dr. Surjit Kumar Singh, Director, NCDC.
The expert committee will give their opinion on various challenges being faced in Delhi in prevention of spread of COVID-19 and measures to ramp up medical infrastructure. The committee would also provide examples from global and national best practices.
Hon‟ble Lt. Governor stated that the efforts being made by DDMA needs to be bolstered by concerted planning, use of latest technology, efficient monitoring and seamless coordination amongst various agencies to overcome the challenge."
14. It is, therefore, directed that the Committee appointed by the Lt. Governor or any sub-Committee thereof shall consider the representation of the petitioner, if made, within a period of two days of its receipt and communicate its decision to the parties. In case any recommendation is made by the Committee/sub-committee, the same shall be implemented by the respondents.
15. 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.
WP(C) No.3531/2020 Page 8
16. 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.
17. As far as the question of constitution of the District Authority, there is no such challenge made in the petition. This Court therefore, restrains itself from making any comment thereon.
18. As far as the issue of compensation is concerned, as submitted by the learned ASG, the Impugned Order shall not be given effect to till such time the respondents issue an order clearly providing for compensation to the petitioner. If the petitioner is aggrieved of the said order, it shall be always open to the petitioner to challenge the same in accordance with law.
WP(C) No.3531/2020 Page 9
19. In view of the above, I find no merit in the interim application. The same is disposed of in terms of the observations/directions given hereinabove.
NAVIN CHAWLA, J
JUNE 17, 2020
RN
WP(C) No.3531/2020 Page 10