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2020 DIGILAW 399 (AP)

Vakada Venkata Apparao v. State Of Andhra Pradesh

2020-05-28

A.V.SESHA SAI, B.KRISHNA MOHAN

body2020
JUDGMENT A.V.Sesha Sai, J. - Since these two matters are similar, this Court deems it appropriate to dispose of these two matters by way of this common order. 2. Writ Petition (PIL) No.108 of 2020 is filed for the following relief: "to issue a writ order or direction more particularly one in the nature of writ of mandamus: a) Declaring the action of the respondent Nos.6 to 10 as desecrate to the lockdown norms and regulations passed in accordance to National Disaster Management Act, 2005 and the Epidemic Diseases Act, 1897. b) Declaring the action of the respondents as illegal for being violative of Section 166A, 188, 269, 278 of the Indian Penal Code. c) Declaring the inaction of the respondent Nos.1 to 5 in initiating legal proceedings against the respondent Nos.6 to 10 for breaching the lockdown norms as violative of Article 14 and 21 of the Indian constitution besides being violative of National Disaster Management Act, 2005 and the Epidemic Diseases Act, 1897. d) Directing the Respondent Nos.1 to 5 to initiate action against the respondents for violating the National Disaster Management Act, 2005 and the Epidemic Diseases Act, 1897 and consequentially infringing the right of life as envisaged under Article 21 of Indian Constitution. e) Directing the public representative in the state of Andhra Pradesh to refrain from organizing public gatherings till the COVID-19 is contained, as public gathering results in amplifying the spread of pandemic. f) Directing the respondents to identify the people who have participated in such congregation till date and to provide requisite medical assistance g) And pass such other order or orders as this Hon'ble Court may deem fit and appropriate in the circumstances of the present case". 3. Writ Petition (PIL) No.130 of 2020 is filed for the following relief: "to Issue a writ order or direction more particularly one in the nature of writ of mandamus declaring the inaction of Respondents 1 to 7 against the Respondents 8 and 9 for blatent violation of Covid19 Orders on 25-05-2020 while travelling from Hyderabad to Karakatta, Amarvati vide E-Pass No. APEPASS/2020/69169 issued by the 4th Respondent Vide Ltr.No.Rc.No.270/L and O-III/2020, dated 24-05- 2020 and 3rd respondent Order No.403/2020-DM-I(A), Government of India, MHA, dated 17th May 2020". 4. 4. The sum and substance of the case of the petitioners in both these Writ Petitions, filed in the form of Public Interest Litigation, is that, in violation of the guidelines and the relevant provisions of law, the unofficial respondents herein have conducted themselves in a manner deleterious to the public health, as such, they are liable for punishment. 5. It is contended by Sri K.Indraneel Babu and Sri Janardhan Reddy Ponaka, learned Counsel for the petitioners, that, though there is obligation on the part of the official respondents herein to take action against the unofficial respondents for the alleged violations, the official respondents herein are not taking any action and the same is highly illegal, arbitrary, unreasonable and violative of Article 14 of the Constitution of India besides being opposed to the provisions of the Disaster Management Act, 2005 and the Epidemic Diseases Act, 1897. 6. On the other hand, it is contended by Sri K.G.Krishna Murthy, learned Senior Counsel, representing Sri K.Raghuveer, learned counsel for the ninth respondent in W.P.(PIL) No.108 of 2020, that the very Writ Petition, filed by the petitioner herein, is not maintainable having regard to the alternative remedy available to the petitioner under the provisions of the Disaster Management Act. In elaboration, it is further submitted by the learned Senior Counsel that, without availing the alternative remedy, as provided under the Enactment, petitioners herein directly approached this Court under Article 226 of the Constitution of India. It is further submitted that, as the petitioners have alleged a number of factual aspects, which cannot be verified in the present Writ Petitions, under Article 226 of the Constitution of India, petitioners herein should necessarily invoke the jurisdiction of the competent forum under the provisions of the Disaster Management Act. 7. Sri P.Nagendra Reddy, Sri T.Janardhan Rao, Sri G.R.Sudhakar and Smt.Marella Radha, learned counsel appearing for the respondent Nos.6, 7, 8 and 10 respectively in W.P.(PIL) No.108 of 2020, have completely adopted the arguments of the learned Senior Counsel, Sri K.G.Krishna Murthy. 8. Counter-Affidavit, deposed by the Principal Secretary to the Government, Home Department, is filed on his behalf and on behalf of the other official respondents in W.P.(PIL) No.108 of 2020 highlighting various aspects, including the steps taken pursuant to the alleged incidents, and along with the counter, particulars of the cases registered against the public representative for COVID violation are also furnished. 9. 9. It is the submission of Sri C.Suman, learned Government Pleader attached to the office of the learned Advocate General, that the various advisories and the guidelines issued by the Union of India are being strictly adhered to by the State authorities and, in furtherance of the same, the State Government also issued Memo No.43A/ COVID-19/2020, dated 06.05.2020, G.O.Rt.No.274 Health, Medical & Family Welfare (B2) Department, dated 17.05.2020, and Memo No.1140853/MAU-01/2020, dated 20.05.2020. Copies of the said Governmental Orders are also filed on behalf of the State Government. 10. The Union of India to provide for the effective management of the disasters enacted the Disaster Management Act, 2005. Clause (d) of Section (2) of the said Enactment defines the term 'Disaster' and the same reads as under: "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; Clause (e) defines the Disaster Management, as under: "disaster management" means a continuous and integrated process of planning, organizing, 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;" 11. Under Section (3) of the said Enactment the Union of India is required to establish the authority called National Disaster Management Authority and Section 6 of the said Enactment deals with the powers and functions of the National Authority and the same 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; (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". 12. Chapter 3 of the said Legislation deals with the State Disaster Management Authorities. Section 14 obligates the State Government to establish the State Disaster Management Authority and Section 18 of the Act deals with the powers and functions of the said authority. In the same manner, the said Legislation imposes obligation on the State Government to establish the District Disaster Management Authorities. Section 30 of the Act deals with the powers and functions of the District Authority. 13. Chapter X of the Enactment deals with offences and penalties. In the same manner, the said Legislation imposes obligation on the State Government to establish the District Disaster Management Authorities. Section 30 of the Act deals with the powers and functions of the District Authority. 13. Chapter X of the Enactment deals with offences and penalties. Section 51 of the said Enactment reads thus: "Whoever, without reasonable cause- (a) obstructs any officer or employee of the Central Government or the State Government, or a person authorised by the National Authority or State Authority or District Authority in the discharge of his functions under this Act; or (b) refuses to comply with any direction given by or on behalf of the Central Government or the State Government or the National Executive Committee or the State Executive Committee or the District Authority under this Act, shall on conviction be punishable with imprisonment for a term which may extend to one year or with fine, or with both, and if such obstruction or refusal to comply with directions results in loss of lives or imminent danger thereof, shall on conviction be punishable with imprisonment for a term which may extend to two years". 14. Section 60 of the Enactment deals with the cognizance of the offences, which reads as follows: "No court shall take cognizance of an offence under this Act except on a complaint made by- (a) the National Authority, the State Authority, the Central Government, the State Government, the District Authority or any other authority or officer authorised in this behalf by that Authority or Government, as the case may be; or (b) any person who has given notice of not less than thirty days in the manner prescribed, of the alleged offence and his intention to make a complaint to the National Authority, the State Authority, the Central Government, the State Government, the District Authority or any other authority or officer authorised as aforesaid". 15. While referring to the above provisions of law, it is contended by the learned Senior Counsel, Sri K.G.Krishna Murthy, that, having regard to the mechanism created under the Legislation, it is not open for the petitioners herein to approach this Court by way of the present Writ Petitions requesting this Court to undertake the factual verification. 16. 15. While referring to the above provisions of law, it is contended by the learned Senior Counsel, Sri K.G.Krishna Murthy, that, having regard to the mechanism created under the Legislation, it is not open for the petitioners herein to approach this Court by way of the present Writ Petitions requesting this Court to undertake the factual verification. 16. On the other hand, it is the submission of Sri K.Indraneel Babu, learned counsel for the petitioner in W.P.(PIL) No.108 of 2020, that the authorities under the Enactment are not taking any action, as such, petitioners herein have approached this Court by way of the present Writ Petitions. 17. There is absolutely no controversy with regard to the fact that the petitioners herein have never availed the mechanism, as referred to supra, under the Enactment. It is also the submission of the learned counsel for the petitioners that it is obligatory on the part of the authorities to take action. Since the petitioners herein have not availed the opportunity, as provided under the Enactment, this Court, without going into the merits and demerits of the matter and the factual controversies, which cannot be verified under Article 226 of the Constitution of India, deems it appropriate to dispose of these Writ Petitions, leaving it open for the petitioners herein to avail the provisions of law referred to supra. If any such request is made in writing by the petitioners herein, the same be considered and appropriate action be taken strictly in accordance with law. 18. With the above observations, Writ Petitions are disposed of. There shall be no order as to costs. 19. As a sequel thereto, miscellaneous petitions pending, if any, in these Writ Petitions shall stand closed.