IMPORTANT POINT
Section 50 of the Act, 2005 falls in Chapter IX relating to Finance, Account and Audit, makes provisions for emergency procurements and provides that if the District Authority is satisfied that immediate procurement of resources is necessary for rescue or relief, it may authorise emergency procurement and in such cases the standard procedure shall be deemed to be waived.

JUDGMENT :

These two Writ Petitions raise competing claims of primacy among Disaster Management Laws and Fundamental Rights guaranteed under Part III of the Constitution of India.

2. W.P.(C) No.12935/2020 has been filed by the owner of the property in which ‘Z Plus Apartment’ building in Kannur has been constructed, and the builder of the said Apartment. They are aggrieved by the take-over of the Apartment building for using it as Covid First Line Treatment Centre. The petitioners in W.P.(C) No.14222/2020, who are owners of Apartment units in the said building, are also aggrieved by the said take over.

3. The petitioners state that the Apartment complex in question consists of 47 residential flats spread in 10 floors. All flats, except 5, were sold out. The purchasers have occupied the residential building and the furnishing work is going on. Some of the owners of the apartment units are abroad and want to reside there whenever they come back.

4. On 28.06.2020, the District Disaster Management Authority (DDMA) took over the Apartment complex to convert it temporarily as Covid First Line Treatment Centre (CFLTC). The petitioners in W.P.(C) No.14222/2020, who are flat owners and were residing in the building, state that they were virtually evicted from the building with force. The take-over of the new Apartment complex even while the finishing work was going on, is unwarranted, uncalled for and grossly illegal, contend the petitioners.

5. The take over is challenged on a number of legal grounds. There was no notice to the affected parties before take-over. Taking over of residential buildings is not contemplated under Ext.P5 Guidelines which permit take-over only of closed hospitals, lodges, resorts and Ayurveda centres, training centres, schools and colleges, auditorium, Community Hall, and buildings belonging to religious and community organisations. Ext.P5 Guidelines are intended only for capacity building and therefore those guidelines should be strictly adhered to. When a residential apartment building is forcibly taken over, right to life and right to property of Apartment Owners, are infringed. Ext.P5 is a well thought of order, as taking over of the type of buildings enumerated therein will not affect fundamental right to life of any citizen. The respondents therefore should have adhered to the said guidelines.

6. Advocate M. Sasindran appearing for the petitioners brought to the attention of the Court the Standard Operating Procedure (SOP) for health care in CFLTCs. The SOP prescribes that a CFLTC should be linked to a designated Covid Hospital and should be able to accommodate at least 50 patients at a time. There should be adequate facility for ward-like arrangements or individual rooms. The SOP itself would show that apartment complex of the petitioners is not suitable for the intended purpose. In the building, respondents cannot make ward like arrangements. If individual flats are provided to patients, then 50 patients cannot be accommodated. The selection of the building for take-over, is therefore mala fide.

7. The learned counsel for the petitioners further argued that as on the date of take-over, about 350 vacant beds were available in Kannur District. However, three Covid patients were inducted into petitioners’ building on the date of take-over itself, in spite of the protest made by the residents of nearby colony. The hurried induction of Covid patients was made to make the matter fait accompli. Other Hotel/Resort buildings taken over by the DDMA are released and keys given back.

8. It was further argued that take-over of buildings for the purpose of CFLTC is not provided under the Disaster Management Act, 2005. The source of power of the respondents is Ext.P5 Guidelines. Therefore, the provisions therein ought to have been strictly followed. Failure to do so has affected the constitutional rights guaranteed to the petitioners under Articles 21 and 300A of the Constitution of India.

9. Sri. Ranjith Thampan, Additional