Closure order invalidated due to lack of jurisdiction, procedural flaws, and violation of natural justice principles under the Disaster Management Act, 2005.

JUDGMENT :

N. UNNI KRISHNAN NAIR, J.

Heard Mr. G.N. Sahewalla, learned Sr. counsel assisted by Ms. K. Bhattacharya, learned counsel for the petitioner. Also heard Mr. A. Bhattacharya, learned standing counsel, Revenue Department, Assam appearing for the respondent Nos. 1 to 4, Ms. D. Bora, learned standing counsel, Health & Family Welfare Department, Assam appearing for the respondent No. 5, Mr. H. Sarma, learned counsel representing respondent Nos. 6 & 7 and Mr. G. Bokolial, learned Govt. Advocate, Assam for respondent Nos. 8 & 9.

2. The petitioner in the present proceeding has presented a challenge to an order dated 14-09-2018, issued by the District Commissioner, Jorhat directing for closure of a Nursing Home operated by the petitioner w.e.f. 17-09-2018, by invoking the provisions of Disaster Management Act, 2005 (in short “the Act of 2005”).

3. The petitioner is a proprietorship firm and is operating a medical nursing home unit since 1986 in the name and style “M/s Medicure Centre”. It is projected that when the said Nursing Home of the petitioner was so set up, there was no regulations in place governing such health establishments. Thereafter, on the enactment of the Assam Health Establishment Act in the year 1993, it is projected that the petitioner had complied with the norms laid down, therein, for operating its Nursing Home. It is further projected that all requisite licenses/ permissions were obtained by the petitioner No. 1 for the purpose of operating the said Nursing Home.

The Director, Pollution Control Board vide order dated 15-06-1998, had directed for closure of the said nursing home on the ground that the Effluent Plant as constructed by the petitioner was not functioning satisfactorily and also on the ground of insufficient parking space. The petitioner being aggrieved had approached this Court by way of instituting a writ petition being C.R. No. 4070/1998. A Coordinate Bench of this Court vide order dated 19-08-1998 suspended the closure notice dated 15-06-1998, subject to the condition that the petitioner shall ensure that the shortcomings as noticed in the said closure notice dated 15- 06-1998 were removed within a period of 04 (four) months. Thereafter, this Court on being apprised that the petitioner had met the shortcomings as noticed in the closure notice dated 15-06-1998, proceeded to dispose of the said writ petition vide order dated 27-05-2004 by observing that the shortcomings involved were rectified by the petitioner and that the discharge of effluents from the petitioner’s unit was found to be satisfactory. The orders impugned in the said writ petition also came to be interfered with, however, liberty was granted to the Pollution Control Board to inspect the premises of the petitioners’ unit to satisfy itself with regard to the measures that have been claimed to be taken by the petitioner and to take appropriate steps accordingly. Subsequent to the disposal of the said writ petition vide order dated 27-05-2004, the petitioner was operating its unit without any interference from any authority. Subsequently, vide a show-cause notice dated 28-05-2018, the District Commissioner, Jorhat required the petitioner to take corrective measures with regard to the anomalies detected by inspection team constituted in the matter and thereafter, to submit action taken report within 05 (five) days on receipt of the notice. It is projected that the inspection report referred to in the show-cause was, however, not furnished to the petitioner.

The petitioner, thereafter, vide communication dated 02-06-2018 submitted the action taken report. Upon submission of the said report, no further action was taken in the matter. Thereafter, vide order d