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(iii) of the Act, 2005 recommending special provisions to be made for widows and orphans and ex gratia to be provided to the kith and kin of those losing life not just because of COVID-19 infection but also due to harsh lockdown restrictions.

13. The petitioner’s case further is that the grants/contributions by individuals and institutions should be credited into the National Disaster Response Fund (NDRF) under Section 46 of the Act, 2005 and NDRF should be utilized for meeting the ongoing COVID-19 crisis. All the contributions made by the individuals and institutions in relation to COVID-19 are being credited into the PM CARES Fund and not in NDRF, which is clear violation of Section 46 of the Act, 2005. The NDRF is subject to CAG Audit and PM CARES Fund is not subject to CAG Audit. Petitioner’s case further is that the Centre may be directed to utilize NDRF for the purpose of drawing assistance to fight against COVID-19 and all the contributions/grants from individuals and institutions be credited to the NDRF in terms of Section 46(1)(b) rather than to PM CARES Fund and all the Fund Collected in the PM CARES Fund till date may be directed to be transferred to the NDRF.

16. Shri Dushyant Dave, learned senior counsel appearing for the petitioner referring to the pleadings of the petitioner made in the writ petition contends that Centre was obliged to prepare a National Plan for Disaster Management specifically for COVID-19. Shri Dave does not dispute that National Plan under Section 11 has been framed in November, 2019 but he submits that said Plan is neither comprehensive nor covers management of pandemic, i.e., COVID-19. Shri Dave submits that power given in a Statute is to be exercised in the same manner. Shri Dave further submits that there is a serious problem in implementing the National Plan, 2019. Shri Dave has taken us to certain portion of Plan of November, 2019, which has been filed as Annexure – P-2 to the writ petition. Shri Dave submits that only paragraph 7.15 deals with biological and public health emergencies but Plan does not contemplate giving any financial relief. Shri Dave submits that unless there is a National Plan for COVID-19, effective measures cannot be taken to contain COVID-19. Referring to Section 46 of the Act, 2005, Shri Dave submits that NDRF having been constituted by Central Government, all amount given by individuals and organisations for disaster should have been credited in NDRF. He submits that PM CARES Fund should not have been constituted when NDRF is already in place to take care of disasters. Shri Dave submits that there is no provision in 2019 Plan to give fund to NDRF. Referring to Operational Guidelines for Constitution and Administration of the National Disaster Response Fund at page 129 of the writ petition, Shri Dave submits that paragraph 5.5 provides that contribution made by the persons or institutions for the purpose of disaster management to be credited in the NDRF, which clause 5.5 has been omitted in the subsequent Operational Guidelines for Constitution and Administration of the National Disaster Response Fund filed at page 154, which is recent guidelines. By deletion of clause 5.5 now contribution by any person or institution for the purpose of disaster management to the NDRF is not permissible. Shri Dave submits that petitioners have no reason to doubt the bonafide of PM CARES Fund but by creating PM CARES Fund the NDRF is being circumvented. What cannot be done directly cannot be done indirectly. Although, NDRF is audited by CAG, the PM CARES Fund is audited by only private auditors.

53. Paragraph 5 of the guidelines deals with contribution to the NDRF. Paragraphs 5.1 to 5.5 are as follows:
“5.1 The closing balance of the NCCF at the end of financial year 2009-10 shall be the opening balance of the NDRF in the year 2010-11.
5.2 Funds will be credited into the NDRF in accordance with the provisions of the Disaster Management Act, 2005.
5.3 The budget provision for transferring funds to the NDRF as mentioned in para 5.2 above shall be made in the Demand for grants no. 35- “Transfers to State and UT Governments” (under non-plan provision).

61. There are two reasons for not accepting the above submission. Firstly, paragraph 5.5 of earlier guidelines which contemplated contributions by any person or institution for the purpose of disaster management to the NDRF are very much still there in the new guidelines, which have come into force with effect from financial year 2015-16. New guidelines contain the same heading, i.e., “Contribution to the NDRF” and guideline 5.2 provides “Funds will be credited into the NDRF in accordance with the provisions of the Section 46(1)(a) & (b) of the Disaster Management Act, 2005.” The above guideline 5.2 specifically referred to Section 46(1)(a) & (b) and Section 46(1)(b) expressly provides that any grants that may be made by any person or institution for the purpose of disaster management shall be credited into the NDRF. The submission that after the new guidelines, it is not possible for any person or institution to make any contribution to the NDRF is, thus, misconceived and incorrect. According to the statutory provisions of Section 46 as well as new guidelines enforced with effect from financial year 2015-16 any person or institution can still make contribution to the NDRF.