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Covid-19 Disease A 'Disaster': Kerala HC Upholds Taking Over Of Residential Apartment By DDMA [Read Judgment]

LIVELAW NEWS NETWORK
23 July 2020 12:48 PM GMT
Covid-19 Disease A Disaster: Kerala HC Upholds Taking Over Of Residential Apartment By DDMA [Read Judgment]
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"The take-over is made by the DDMA in exercise of the powers under the Act, 2005."
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The Kerala High Court dismissed a plea challenging take-over of an Apartment building for using it as Covid First Line Treatment Centre.

Justice N. Nagaresh observed that the Corona Virus Disease will fall within the ambit of "disaster" as defined under Section 2(d) of the Disaster Management Act and thus it will be open to the District Authority to procure use of amenities including buildings from any authority or person even without formal requisition .

The owner and some occupants of the flats had approached the High Court after the District Disaster Management Authority (DDMA) took over the Apartment complex to convert it temporarily as Covid First Line Treatment Centre (CFLTC). They contended that take-over of buildings for the purpose of CFLTC is not provided under the Disaster Management Act or in the guidelines issued by the State. 

Justice Nagaresh, in his judgment with the following quotes from Vidura Niti and also of Kautilya. He said that India followed a Socialistic pattern and Laissez-faire, in economics or elsewhere, was never the philosophy of India.

"Sacrifice the interest of the individual for the sake of the family, Sacrifice the interest of the family for the sake of the Village, Sacrifice the interest of the Village for the sake of the Country."

"In the happiness of his subjects lies the King's (read State's) happiness, in their Welfare King's (State's) Welfare."

The court said that though the Constitution of India places liberty and freedom of individuals at the highest pedestal, even the fundamental rights were not envisioned to be absolute by the Constitution makers. It observed:

"The Right to life under Article 21 and the Right to property under Article 300 A are subject to restrictions and can be curtailed in accordance with procedure established by law and by the authority of law, which in these cases are under the provisions of the Disaster Management Act, 2005. Insofar as the WP(C) No.12935 OF 2020(N) District Disaster Management Authority exercises power under and follow the provisions of the Act, 2005, the petitioners cannot claim that their constitutional right to life and right to property is violated."

With regard to the contention that the flat owners were not given notice, the judge said:

"What is affected by the pandemic is the right to life of the citizenry as a whole. In the situation prevailing, the State cannot be expected to issue individual notices to all Apartment Owners, whose whereabouts are not immediately known and provide them opportunity of hearing before take-over. The builder of the Apartment was heard. The residents, who were physically occupying the building, were informed. Strict extension of the principles of natural justice to a few flat owners, whose whereabouts are not immediately known, is likely to put the life and safety of a large number of public in peril. In such circumstances, the arguments of the petitioners that the take-over is illegal for want of notice to all, cannot be accepted."

Covid-19 A Disaster

Another issue was whether the provisions of DMA Act could have been invoked. Referring to the definition of disaster, the court observed

"The Corona Virus Disease, 2019 (COVID-19), being a grave occurrence of a pandemic and consequently a calamity, arising from natural or man made cause, which has already resulted in substantial loss of life and human suffering, and being of such a nature and magnitude that it is beyond the coping capacity of the community of the affected area, the disease will fall within the ambit of "disaster" as defined under Section 2(d)."

The judge, referring to provisions of the Act, said that 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 situation. While dismissing the writ petitions, the court added:

"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 CFLTC 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."

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