Bombay High Court
Dr Sanjay Lakhe Patil vs The State Of Maharashtra And 3 Others on 12 December, 2018
Author: M.S. Sonak
Bench: A.S. Oka, M.S. Sonak
DSS 1/21 oocj-wp-2315-17.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2315 OF 2017
Dr. Sanjay Lakhe Patil ... Petitioner
V/s.
The State of Maharashtra and ors. ... Respondents.
Mr. R.M. Pawar for the Petitioner.
Mr. A.B. Vagyani, GP with Mr. Y.S. Khochare, AGP
for the Respondent - State.
CORAM : A.S. OKA AND M.S. SONAK, JJ.
DATE OF RESERVING THE ORDER : 1st November 2018
DATE OF PRONOUNCING THE ORDER : 12th December 2018.
ORDER :(PER M.S. SONAK, J.) 1] By order dated 19th January 2018 detailed directions were issued in the context of compliance with the various provisions of the Disaster Management Act, 2005 (DMA).
2] Some of the directions issued included, inter alia the following: -
"(D) The State Government is directed to constitute a District Disaster Management Authority for Districts of Mumbai and Suburban Mumbai, as expeditiously as possible and, in any case, on or before 31st January 2018;
(E) The District Disaster Management Authorities are directed to discharge their functions consistent with the provisions of Section 30(1) of the DMA in general, and the provisions of Section 30(2) of the DMA in particular;::: Uploaded on - 12/12/2018 ::: Downloaded on - 27/12/2018 05:48:42 :::
DSS 2/21 oocj-wp-2315-17.doc (F) The District Disaster Management Authorities are directed to undertake the exercise of reviewing and updating of the respective District Plans consistent with the provisions of Section 31(4) of the DMA. Such exercise shall be undertaken as expeditiously as possible, and in any case, within a period of six months from today, by taking into consideration the statutory provisions of the DMA, as also the observations in this Order;
(H) The State Government, as well as the State and District Authorities are directed to issue appropriate GRs/Circulars to the local Authorities to ensure compliance with the provisions of Section 41 of the DMA..
GRs/Circulars have to indicate that the local Authorities have to periodically report compliance to the District Authorities;
(I) The State Government is directed to constitute funds as contemplated by Section 48 of the DMA, if not already constituted, within a period of three months from today. Further, the State Government is directed to ensure that the funds established are made available to the State Executive Committee, the State Authority and the District Authority, consistent with the provisions of Section 48(2) of the DMA. Further, the State Government is directed to make provisions in its Annual Budget for funds for the purposes of carrying out activities and programms set out in the Disaster Management Plans, consistent with the provisions of Section 49(2) of the DMA. This exercise is to be completed within six months from today."
3] Despite, several opportunities, it was noticed that there is no compliance with the aforesaid directions in letter and spirit. Therefore, in the particular context of constitution and functioning of Disaster Management Authorities for Mumbai City ::: Uploaded on - 12/12/2018 ::: Downloaded on - 27/12/2018 05:48:42 ::: DSS 3/21 oocj-wp-2315-17.doc and Mumbai Sub-Urban areas, we were, by order dated 6 th April 2018 constrained to issue a contempt notice to the Additional Chief Secretary. Besides, by detailed order dated 6 th April 2018, we also pointed out the prima facie breaches and urged compliance taking into consideration importance of the subject. 4] By further order dated 15th June 2018, we noted some compliance regards some of the directions and granted time to the State Government to file further affidavit of compliance on or before 20th July 2018. Some additional affidavits were filed on behalf of the State Government, but, there was hardly any progress in the matter of compliances, particularly on the issue of the functioning of the Disaster Management Authorities and the establishment of funds obligated by Section 48 of the DMA. 5] Therefore, on 7th September 2018, we were constrained to make the following order:
"1 We direct the State Government to place on record copies of the minutes of meeting of the State Disaster Management Authority as well as the District Disaster Management Authority for Mumbai and Mumbai Suburbs held in January 2018 till the date, for perusal of the Court. Place the petition under the caption of "directions" on next Friday i.e. 14th September 2018.::: Uploaded on - 12/12/2018 ::: Downloaded on - 27/12/2018 05:48:42 :::
DSS 4/21 oocj-wp-2315-17.doc Section 48 of the Disaster Management Act, 2005 contemplates creation of four categories of funds. Though the State Government has claimed that funds have been created, nothing is placed on record to show whether the funds have been credited with any amounts. Even the documents in respect of the same shall be placed on record on the next Friday.
2 Though it is not recorded in the orders dated 29 th August 2018 and 5th September 2018, the matter was adjourned to show whether the meetings of the State Disaster Management Authority and the District Level Authorities in the District Mumbai were held. On the last date, we were shown the minutes of the meeting which was convened by the Municipal Commissioner of the Municipal Officers. Even as of today, the State is unable to produce the minutes of the District Level Disaster Management Authorities for Mumbai and Mumbai Suburban Districts. On 5th September 2018, we had put the State to notice to show whether any funds are available in the statutory funds created under Section 48 of the Disaster Management Act, 2005. However, the State is unable to show whether any amount has been transferred to four statutory funds.
3 The contention raised by the State Government is that there is no mandate in the said Act of 2005 that the meeting of the State Level Authority and District Level Authority are required to be held regularly or at frequent intervals. The State will have to explain as to how very large number of statutory functions entrusted to the State Level Authority and District Level Authority can be discharged without regular meetings being held. It is in this context that we have issued the aforesaid directions."
6] Shri. Shrirang Gholap, Under Secretary, Relief and Rehabilitation Department, Government of Maharashtra filed an affidavit in the context of compliances. It states that the last ::: Uploaded on - 12/12/2018 ::: Downloaded on - 27/12/2018 05:48:42 ::: DSS 5/21 oocj-wp-2315-17.doc meeting of the State Disaster Management Authority was held on 29th May 2018 and thereafter, no further meetings have been held. This is, to say the least, quite distressing. There are serious issues like flooding of urban areas and drought in rural areas facing the State. The DMA has been enacted to provide for requisite institutional mechanisms for drawing up and monitoring the implementation of the disaster management plans, ensuring for prevention and mitigating effects of disasters and for undertaking a holistic, coordinated and prompt response to any disaster situation. For a number of years, the authorities as contemplated under the DMA were not even constituted by the State Government. Now that such Authorities have been substantially constituted in pursuance of the directions issued in the present petition, there is complete inaction and total lethargy when it comes to the functioning of such Authorities. This is evident from the fact that hardly one meeting and that too, as a matter of formality has been held by the State Disaster Management Authority on 29th May 2018.
7] Since on the basis of materials placed on record, we were of the prima facie opinion that the District Level Disaster ::: Uploaded on - 12/12/2018 ::: Downloaded on - 27/12/2018 05:48:42 ::: DSS 6/21 oocj-wp-2315-17.doc Management Authorities for Mumbai and Mumbai Sub-Urban Districts had not held even a single meeting, we issued directions for placing on record the minutes of meetings if held. 8] On 14th September 2018, an affidavit was filed on behalf of the State Government. It states that meetings of the two District Management Authorities were held on 11th July 2018. From the perusal of the minutes, we found that the minutes did not pertain to any meetings held by Disaster Management Authorities, but rather, they were minutes of the meeting convened by Disaster Management Department of the Mumbai Municipal Corporation. There was also no satisfactory compliance with the provisions of Sections 48 and 49 of the DMA in the context of establishing disaster response funds and disaster mitigation funds.
9] Therefore, on 14th September, we made a detailed order on the aforesaid two aspects and directed the Government Pleader to invite the attention of the Chief Secretary of the State to the observations relating to the lethargy on the part of the State Government in implementation of the provisions of DMA. ::: Uploaded on - 12/12/2018 ::: Downloaded on - 27/12/2018 05:48:42 :::
DSS 7/21 oocj-wp-2315-17.doc 10] In paragraph 1 of the order dated 14th September 2018,
this is what we were constrained to observe regards the functioning or rather non-functioning of the Disaster Management Authorities.
"The learned Government Pleader has tendered an affidavit of Shri Shrirang Gholap, Under Secretary, Relief and Rehabilitation Department, Government of Maharashtra. It records that the last meeting of the State Disaster Management Authority was held on 29th May 2018. Thus, there is no further meeting held after 29 th May 2018. Considering the powers and functions of the State Disaster Management Authority, we are surprised to note that after 29th May 2018 not a single meeting has been held. Now, coming to the meetings of the District Level Disaster Management Authorities for the Mumbai and Mumbai Suburban districts, admittedly, no meeting of both the district authorities has been held from the date of their constitution i.e. 19th April 2018. The affidavit of the State Government tendered today relies upon the meeting held on 11th July 2018. The said meeting was convened by the Disaster Management Department of the Mumbai Municipal Corporation. It is recorded in the minutes of the meeting that the Chairpersons and the members of the District Level Authorities of Mumbai and Mumbai Suburban were invited to attend the meeting which was presided over by the Hon'ble Guardian Minister. Though Exhibit-D which refers to this meeting states that a list of members present is annexed to the said document, in fact, it is not annexed. Exhibit-D shows that the difficulties which arose in Mumbai due to heavy rains in June-July of this year were discussed and certain directions were issued. Thus, essentially, the said meeting was convened by the Disaster Management Department of the Municipal Corporation. Section 27 of the Disaster Management Act, 2005 (for short "the said Act of 2005") contemplates that the District Authority shall meet as and when necessary and at such ::: Uploaded on - 12/12/2018 ::: Downloaded on - 27/12/2018 05:48:42 ::: DSS 8/21 oocj-wp-2315-17.doc time and place as the Chairperson may think fit. The powers and functions of the District Disaster Management Authorities have been set out in section 30. Clause (xi) of sub-section (2) of section 30 of the said Act reads thus:
30. Powers and functions of District Authority.
--
(1) ..... ..... ..... ..... ..... ..... ..... ..... (2) Without prejudice to the generality of the provisions of sub-section (1), the District Authority may--
..... ..... ..... ..... ..... ..... ..... .....
(xi) review the preparedness measures and give directions to the concerned departments at the district level or other concerned authorities where necessary for bringing the preparedness measures to the levels required for responding effectively to any disaster or threatening disaster situation;
What happens in the city of Mumbai every year in monsoon is well-known. The District Authorities are expected to review capabilities for responding to any disaster or threatening disaster situation in the district. After reviewing the state of preparedness measures, the District Authorities are expected to give directions to the concerned departments for bringing the preparedness measures to the levels required for responding to any disaster or threatening disaster situation. The Members and the Chairperson of the District Authority in Mumbai cannot deny that the city faces disaster in different areas due to water logging during every monsoon. Considering the functions of the District Authorities as can be seen from section 30, perhaps it was a duty of the District Level Authorities in Mumbai to hold meetings before commencement of monsoon so that a review of preparedness measures could have been taken and directions could have been issued for bringing the preparedness measures to the levels required for responding any disaster situation. Clause (xiv) of sub- ::: Uploaded on - 12/12/2018 ::: Downloaded on - 27/12/2018 05:48:42 :::
DSS 9/21 oocj-wp-2315-17.doc section (2) of section 30 is regarding setting up, maintaining, reviewing and upgrading the mechanism for early warnings and dissemination of proper information to public. Even this function is extremely relevant in the context of city of Mumbai considering what happens every year during monsoon".
11] Similarly, in paragraph 6 of the order dated 14 th September 2018, this is what we were constrained to observe regards non- establishment of the Disaster Response Funds and the Disaster Mitigation Funds, as mandated by the DMA.
"6. The affidavit tendered today is not satisfactory as far as it deals with compliance to section 48 of the said Act of 2005. We direct the State Government to file an affidavit setting out whether the State Disaster Response Fund and State Disaster Mitigation Fund have separate bank accounts and whether any amount is lying in the said accounts to the credit of the said funds. The affidavit will give breakup of the amounts distributed to the District Disaster Respond Fund and District Disaster Mitigation Fund. Sub-section (1) of section 49 provides that it was an obligation of the State to provide funds. Therefore, the affidavit will state whether after creation of funds, any specific amounts have been transferred to the said funds".
12] Finally, on 1st November 2018, we passed an order indicating that a very detailed order is required to be passed dealing with the aspect of the functioning or rather non- functioning of the Disaster Management Authorities and the constitution of two funds.
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DSS 10/21 oocj-wp-2315-17.doc 13] In the context of the functioning of the Disaster
Management Authorities for Mumbai and Mumbai Sub-Urban Areas, initially affidavits were filed to state that the meetings of such authorities were held on 27th April 2018. After we issued directions to place on record the minutes of such meetings, what was placed on record were the minutes of meeting of Pre- monsoon Preparedness 2018 held by the Disaster Management Department of the Municipal Corporation of Greater Mumbai (MCGM). Obviously, the Disaster Management Department of the MCGM and the Disaster Management Authorities constituted under the DMA are different and distinct and the meetings held by the Disaster Management Department of MCGM cannot be passed of as meetings of the Disaster Management Authorities constituted under the DMA.
14] From the perusal of the minutes as well, it was apparent that a number of constituents of the Disaster Management Authorities were neither invited nor were present for such meeting. The meeting, it appears, was a routine meeting held by the Disaster Management Department of the MCGM, perhaps to take stalk of the Pre-monsoon Preparedness. It is extremely ::: Uploaded on - 12/12/2018 ::: Downloaded on - 27/12/2018 05:48:42 ::: DSS 11/21 oocj-wp-2315-17.doc unfortunate that affidavits were filed to state that the meetings of Disaster Management Authorities were held, when it is apparent that no such meetings were ever held on 27 th April 2018. It is also extremely unfortunate that the meetings of the Disaster Management Department of the MCGM were attempted to be passed off as meetings of the Disaster Management Authorities. Even otherwise, the perusal of the minutes of the meeting of Pre-monsoon Preparedness 2018 held on 27 th April 2018 indicate the lack of seriousness which the authorities are expected to observe in dealing with the issue of Disaster Management and compliances with the statutory mandates of DMA.
15] After we made orders on 7th September 2018 and 14th September 2018, Smt. Medha Gadgil, Additional Chief Secretary, Relief and Rehabilitation Department, Government of Maharashtra filed an "affidavit in compliance" on 31st October 2018. In this affidavit, the following statements have been made with regard to the meetings of the State Disaster Management Authority (SDMA) and District Disaster Management Authorities for Mumbai and Mumbai Sub-Urban areas.
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DSS 12/21 oocj-wp-2315-17.doc "8. I say that with regard to the meeting of the State Disaster Management Authority (SDMA), the last meeting of the State Disaster Management Authority was held on 29th May, 2018. The minutes of the same have already been submitted to Hon High Court. I further say that the Hon Chief Minister's office has been requested to allot a date for the conduct of the next meeting of the State Disaster Management Authority at the earliest.
9. I say that as per the directions of the Hon High Court, separate district disaster management authorities have been created for the districts of Mumbai City and Mumbai Suburban. The meetings of the District Disaster Management Authority were held under the chairmanship of the respective chairpersons on 5 th October 2018. The minutes of the said meetings are at Exhibit D". 16] From the aforesaid, it is evident that the SDMA has not had the time to even meet and discharge the responsibilities enjoined upon it under the DMA since 29 th May 2018. It is not and perhaps, it cannot be the case of the State that the issues of severe water scarcity and other mandate or natural disaster are not plaguing the State. However, it is apparent tht the SDMA is virtually not functioning or in any case, not functioning with the seriousness which is expected of it under the DMA. 17] Insofar as the functioning of the District Disaster Management Authorities for Mumbai City and Mumbai Suburban ::: Uploaded on - 12/12/2018 ::: Downloaded on - 27/12/2018 05:48:42 ::: DSS 13/21 oocj-wp-2315-17.doc areas is concerned, the position is even worse. Initially, as noted earlier, the minutes of the meeting of the Pre-monsoon Preparedness 2018 held by the Disaster Management Department of the MCGM were attempted to be passed off as minutes of the meeting of the Disaster Management Authorities. After we were constrained to make strong observations on this issue, the Additional Chief Secretary, has made a statement in paragraph 9 of her affidavit dated 31 st October 2018 to the effect that the meetings of the Disaster Management Authorities were held on 5th October 2018 and the minutes are placed at Exhibit-D. It appears to us that the Additional Chief Secretary has not even bothered to peruse the minutes with the view to satisfy herself as to whether this constitutes compliance with the directions issued by the Court from time to time and whether, the holding of such meetings amounts to compliance with the provisions of DMA.
18] From the material placed on record, it appears that the Ex Officio Chairperson, District Disaster Management Authority, Mumbai Suburbs & Additional Municipal Commissioner, Western ::: Uploaded on - 12/12/2018 ::: Downloaded on - 27/12/2018 05:48:42 ::: DSS 14/21 oocj-wp-2315-17.doc Suburbs convened "debriefing meeting" with its Committee Members, other stakeholders and Officials of MCGM to discuss issues relating to Monsoon 2018 on 5th October 2018 at 1600 hrs, at the Disaster Management Conference Hall, Municipal Head Office, Mumbai.
19] The minutes of this meeting, which are styled as "Debriefing Meeting" has dealt with, in the most superficial manner the issues relating to water logging complaints, land slides areas identified by Geographical Surveys of India, Tree fall incidents in Mumbai, Mumbai specific weather prediction/information, Central Railways, CBRN Emergencies Review and Progress of low pressure developed in Arabian Sea. 20] Surprisingly, on the same date, the Ex-Officio Chairman, District Disaster Management Authority, Mumbai and Additional Municipal Commissioner, City conveyed yet another debriefing meeting with its Committee members, other stakeholders and officials of MCGM to discuss issues relating to Monsoon 2018 at ::: Uploaded on - 12/12/2018 ::: Downloaded on - 27/12/2018 05:48:42 ::: DSS 15/21 oocj-wp-2315-17.doc 1630 hrs in the Disaster Management Conference Hall, Municipal Head Office, Mumbai.
21] This means that this second meeting was convened merely 30 minutes after the first meeting of the District Disaster Management Authority for Suburban area. Again, from the perusal of the minutes of the two meetings, we find that the seven issues which were discussed in the meeting held at 4.00 p.m. were once again discussed at the meeting held at 4.30 p.m. The minutes of the second meeting are virtually identical. As regards the first meeting, the minutes state that the same was held by the District Disaster Management Authority 'Mumbai Suburban' and the minutes of the second meeting indicate that it was held by the District Disaster Management Authority 'Mumbai City". Except for this difference, the minutes of the two meetings are virtually same and indicate the same casualness with which the issues relating to Disaster Management are being dealt with in the two districts. Holding such meetings is nothing but a farce.
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DSS 16/21 oocj-wp-2315-17.doc 22] We are constrained to observe that this is nothing but
paying lip service to the provisions of the DMA. It is apparent that pursuant to several orders and directions from this Court, the State, has, quite reluctantly, constituted District Disaster Management Authorities for Mumbai City and for Mumbai Suburban areas. But these authorities, are not at all made functional or in any case, are functioning in an most unsatisfactory manner. This is apparent from the fact that no meetings of these authorities were never held for a long time and even an attempt was made to pass off the meetings held by Disaster Management Authorities, MCGM as the meetings of the Disaster Management Authorities. Even later on, the meetings purportedly held on 5th October 2018, are nothing but a superficial attempt to portray that the Disaster Management Authorities are in fact functional, when, it is apparent that they are neither conscious nor discharging the functions which they are enjoined to discharge in terms of salutary provisions of DMA. 23] The same is position when it comes to the constitution of the funds as contemplated by Section 48 of the DMA. Section 48 ::: Uploaded on - 12/12/2018 ::: Downloaded on - 27/12/2018 05:48:42 ::: DSS 17/21 oocj-wp-2315-17.doc of the DMA reads as follows:
"48 Establishment of funds by State Government --
(1) The State Government shall, immediately after notifications issued for constituting the State Authority and the District Authorities, establish for the purposes of this Act the following funds, namely :--
(a) the fund to be called the State Disaster Response Fund;
(b) the fund to be called the District Disaster Response Fund;
(c) the fund to be called the State Disaster Mitigation Fund;
(d) the fund to be called the District Disaster Mitigation Fund.
(2) The State Government shall ensure that the funds established:-
(i) under clause (a) of sub-section (1) is available to the State Executive Committee;
(ii) under sub-clause (c) of sub-section (1) is available to the State Authority;
(iii) under clauses (b) and (d) of sub-section (1) are available to the District Authority."
24] From the affidavits filed on record all that has been stated is that the State Government has initiated the process of creation of separate District Disaster Response Fund for each of the District in the State to ensure that the fund is at the disposal of the District Authority as per the mandate of DMA. Thereafter, the some statements have been made with regard to movement of files / proposals and it is finally stated that after getting ::: Uploaded on - 12/12/2018 ::: Downloaded on - 27/12/2018 05:48:42 ::: DSS 18/21 oocj-wp-2315-17.doc approval required district-wise allocation under the funds shall be made by the Department . This is hardly any compliance with the statutory provisions of DMA or for that matter the writs issued by us for compliance with the provisions of the DMA. 25] Insofar as the State Disaster Response Fund is concerned, all that is stated is that the same has been constituted in public account under head 8121-122 and allocation is made under major 2245. However, there is no clear indication as to whether the fund as contemplated by Section 48 as at all been established by providing a separate bank account in the name of and under control of concerned authority, which could be available for use in the case of an emergency or disaster. According to us, merely making a provision for the budget or even providing a separate budget head will not constitute compliance with the mandate of section 48 of the DMA. 26] The position with regard to the State Disaster Mitigation Fund and the District Disaster Mitigation Funds, is also no different. From the affidavits filed, we are not satisfied that there ::: Uploaded on - 12/12/2018 ::: Downloaded on - 27/12/2018 05:48:42 ::: DSS 19/21 oocj-wp-2315-17.doc is compliance with the mandate of section 48 of DMA in letter and spirit.
27] According to us, section 48 of DMA contemplates establishment of the specified funds and casts on obligation upon the State Government to ensure that the funds so established are available to the State Executive Committee or the State Authority or the District Authority as the case may be for immediate use in case of emergencies or disasters. The entire purpose for establishment of such funds is to make available to the State Executive Committee or to the State or the District Authorities funds to immediately respond to disasters or to mitigate effect of the disasters. Therefore, taking into consideration the object and reasons for enactment of DMA, it may not be sufficient to merely create such funds on paper or to merely assign some budget head to such funds and on such basis plead that there is compliance with the provisions of section 48 of the DMA.
28] It is pertinent to note that there is a separate provision created in section 49 of the DMA, which obligates every ministry ::: Uploaded on - 12/12/2018 ::: Downloaded on - 27/12/2018 05:48:42 ::: DSS 20/21 oocj-wp-2315-17.doc or departments of the State to make provisions in its annual budgets, for funds for the purposes of carrying out the activities and programmes set out in its disaster management plan. This indicates that mere creation of funds as contemplated under section 48 of DMA on paper or allocation of a budget head to such funds, is not sufficient compliance with the mandate of section 48 of the DMA. The purpose of enactment of DMA is to provide for requisite institutional mechanism for drawing up and monitoring the implementation of the disaster management plans, ensuring measures by various wings of Government for prevention and mitigating effects of disasters and for undertaking a holistic, coordinated and prompt response to any disaster situation. If, the provisions of sections 48 and 49 are to be interpreted in manner suggested by the State Government, then, such a interpretation, will not further establishment of institutional mechanism for prevention and mitigation effects of disasters and for undertaking a holistic, coordinated and prompt response to any disaster situation.
29] Therefore, we are constrained to note that there is at
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present, no proper implementation of the mandates of sections 48 and 49 of DMA.
30] Accordingly, we once again direct the Chief Secretary, State of Maharashtra to ensure that the directions issued by us in our order dated 19th January 2018 as also the subsequent orders are duly complied with in letter and spirit. We direct the Chief Secretary to file affidavit of compliance, after he is himself satisfied about compliances, on or before 31 st January 2019. The reason why we have given a longer date is because we expect that in the meanwhile the Chief Secretary will take the necessary measures to ensure compliances. In fact, this is a fit case to issue a notice of contempt. Today, we are refraining from issuing such notice. But, if by 31 st January 2019, there is no compliance made, action will have to be initiated for aggravated contempt.
31] Place the petition for considering the affidavit of the Chief Secretary before the Bench to which this petition is specially assigned on 1st February 2019 for directions.
(M. S. SONAK, J.) (A.S.OKA, J.)
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