Brief Facts of the Case
Two writ petitions filed in the Kerala H.C. raised competing claims of primacy between the Disaster Management Laws and Fundamental Rights of the citizens. The petitions were filed by the residents and the builder, respectively. The DDMA aggrieved them by taking over their apartment building for using it as COVID First-Line Treatment centre.
Arguments by the Petitioners
The petitioners argued that they were “virtually evicted from the building with force”. They termed the takeover, while the finishing work was going on, as “unwarranted, uncalled for and grossly illegal”. There was no notice to the affected parties before the takeover. The order issued by the Chairman, DDMA only permits takeover of closed hospitals, lodges, resorts, schools, colleges, community halls and such buildings. They argued that the order does not contemplate takeover of residential buildings. Thus, the forceful takeover amounts to infringement of their right to life and property.
The SoP for healthcare in CFLTCs was also raised. It was highlighted that the apartment complex of the petitioners is not suitable for the intended purpose. The counsel also pointed out that other adequate facilities exist in the district. Take over of private buildings is also not provided for in the DMA, 2005. Thus, he argued that it violates Art. 21 and 300A of the constitution.
Arguments by the Respondents
The counsel for respondents submitted that the state is going through a critical time. It calls for the invocation of all powers with the state under the DMA, to protect citizens. The state is facing a dearth of adequate health infrastructure. Establishing CFLTs in nearby COVID Hospitals is imperative to foster COVID Treatment System.
It was also pointed out that the two families, which left the building before the takeover, did not make any complaints at that time. They are residing in inconvenient places. Also, they cannot occupy their flats in the building as an occupancy certificate is not issued. Thus, their rights are not violated per se. Moreover, S. 72 of DMA provides that it will have an overriding effect over all other laws. Thus, the Kerala Municipal Building laws will not have any effect in this instance.
It was brought to notice that over 40,000 expatriates are expected to arrive in the current month in the district, and cases within the district are also rising. Hence, improving resources and infrastructure is of paramount importance. Therefore, the act of the respondent is only bonafide and legal.
Observations by the Court
The court noted that the Covid-19 pandemic would fall within the ambit of “disaster” as under S. 2(d) of DMA. Thus, it will be open to the DDMA to procure the use of amenities, including buildings from any authority or persons, even without formal requisition. This is granted byS.34 of the DMA. The judgement also quotes Vidura Niti and Kautilya. The judge commented that our society is one of sacrifice, and the happiness of the state lies in the happiness and welfare of the citizens.
The court noted that though Fundamental Rights are placed at the highest pedestal, even they are not absolute. The court observed that, Art. 21 and Art. 300A are subject to restriction under the procedure established by law. In the present instance, the procedure is nothing but as established in the DMA, 2005. Hence, the petitioners cannot claim that their constitutional right to life and the right to property is violated. The court also stated that the life of citizenry as a whole is in threat. Thus, the state cannot be expected to issue individual notices to all apartment owners. 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 flat owners, whose whereabouts are not immediately known, will put the life and safety of the citizenry in peril.
Hence, on these grounds, the Kerala H.C. dismissed the petitions.
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