Dismissed

B Subbaya Rai v. Union of India

Karnataka HC1 Apr 2021WP/3949/2021

Case brief

AI extract

What is this about?

In a writ petition challenging restriction orders on intra-State traffic due to COVID-19, the High Court of Karnataka held that the Deputy Commissioner lacked power to close borders or direct local bodies. The petition was disposed with an assurance by the State that the impugned clause would not be acted upon.

What did the court decide?

Writ petition disposed of with State's assurance; impugned clause not to be acted upon.

B Subbaya Rai Vs Union of India — Pension and Retirement Benefits | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1^ST DAY OF APRIL, 2021

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PRESENT

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THE HON’BLE MR. ABHAY S. OKA, CHIEF JUSTICE

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AND

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THE HON’BLE MR. JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO.3949 OF 2021 (GM-RES-PIL)

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BETWEEN

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B. SUBBAYA RAI S/O LATE I. RAMA RAI ADVOCATE AGED 56 YEARS ICHALAMPADY HOUSE KUMBLA, KASARGOD DISTRICT KERALA STATE

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AND ALSO 11, TEJ TOWERS, JYOTHI CIRCLE MANGALURU D.K.DISTRICT - 575 001 ... PETITIONER

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(BY SRI. K. RAVISHANKAR, ADVOCATE-PH)

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AND:

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UNION OF INDIA REPT. BY ITS SECRETARY DEPT. OF HOME AFFAIRS NATIONAL STADIUM INDIA GATE, NEW DELHI-110001

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THE STATE OF KARNATAKA REPT. BY ITS SECRETARY DEPARTMENT OF HEALTH AND FAMILY WELFARE VIDHANA SOUDHA BENGALURU-560001

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THE DEPUTY COMMISSIONER PRESIDENT DISTRICT DISASTER MANAGEMENT AUTHORITY DAKSHINA KANNADA

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MANGALURU D.K.DISTRICT - 575 001 … RESPONDENTS

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(BY SRI.M.N. KUMAR, CGC FOR R1; SRI. C.M. POONACHA, AGA FOR R2 AND R3-PH)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI AND QUASH THE IMPUGNED ORDER DATED 18.02.2021 BEARING NO.CAL.CR 45/2021/128059/B2 PASSED BY THE 3^RD RESPONDENT PRODUCED VIDE ANNEXURE-E TO THE WRIT PETITION AND ETC.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING (HEARING) THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:

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ORDER

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Heard the learned counsel appearing for the petitioner and

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the learned Additional Government Advocate for the State Government.

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The first challenge in this petition under Article 226 of the Constitution of India is to the Circular dated 18^th February 2021 issued by the Deputy Commissioner and District Magistrate, Dakshina Kannada which is at Annexure-E. The document at Annexure-E appears to be an order passed by the Deputy Commissioner and also the Chairman of the District Disaster Management Authority, Dakshina Kannada District. The said order is very drastic. The order provides that Intra-State movement of traffic for public between the State of Kerala and the

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State of Karnataka will be restricted to only four entry points mentioned therein and the entry through other entry points in the State of Karnataka will remain prohibited. The second challenge by way of an amendment is again to a further order passed by the Deputy Commissioner and the Chairman of the District Disaster Management Authority. In paragraph 3 of the order, it is directed that every Gram Panchayat/ Urban Local Bodies/Municipality/ Town Municipality will be entitled to identify and close the checkposts which are rarely used.

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The first order passed on 18^th February 2021 completely prohibits Intra-State traffic of vehicles and persons at all the entry points into the State of Karnataka in Dakshina Kannada District except the four points mentioned therein. Clause (3) of the order dated 15^th March 2021 authorises every Gram Panchayat/Urban Local Bodies/Municipality/Town Municipality to close certain entry points for entering into the State of Kerala.

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As far as clause (3) of the order dated 15^th March 2021 is concerned, there is an undertaking given by the State which is recorded in the order dated 30^th March 2021 that Clause (3) of the Order dated 15^th March 2021 will not be acted upon.

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Along with the Memo filed today, the learned Additional Government Advocate has placed on record a copy of the order dated 23^rd March 2021. Clauses (18) and (19) of the said order passed by the Chairman, National Executive Committee (NEC) under the Disaster Management Act, 2005 read thus:

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" "Local Restrictions"

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18. States and UTs, based on their assessment of the situation, may impose local restrictions at district/sub-district and city/ward level, with a view to contain the spread of COVID-19.

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19. There shall be no restriction on inter-State and intra-State movement of persons and goods including those for cross land-border trade under Treaties with neighbouring countries. No separate permission/approval/e-permit will be required for such movements."

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Though both the clauses appear under the heading 'local restrictions', the same operate in different fields. Clause

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(18) operates to the extent of imposing local restrictions with a view to contain the spread of COVID-19, such as a condition of undergoing RT-PCR tests before entering from the State of Kerala

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to the State of Karnataka. The Clause (19) is a direction of the Chairman, National Executive Committee that there shall be no restrictions on inter-State and intra-State movement of persons and goods. No separate permission/approval/e-permit is required for such movements. Now, the learned Additional Government Advocate states that there will not be any restriction for the use of any of the entry points from Dakshina Kannada District to State of Kerala. He states that there will not be any restriction on traffic as well as the movement of the citizens from the State of Karnataka to the State of Kerala and vice versa.

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We are of the view that not only in view of Clause (19) of the directions issued by the Chairman of the National Executive Committee which is in operation atleast from 27^th April 2021, we see no statutory power vesting in the Deputy Commissioner in his capacity as the Chairman of the District Disaster Management Authority to close the borders of a District for vehicular and other traffic. He has no power conferred of directing the local bodies to close the borders. These are the two directions which violate the fundamental rights of the citizens.

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In view of the assurance of the State recorded in the order dated 30^th March 2021 and in view of the assurance given today by the State through the learned Additional Government Advocate which we have recorded above, no further directions are required to be issued at this stage.

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In view of the assurances recorded above, we dispose of the writ petition.

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The pending interlocutory application does not survive and is accordingly disposed of.

Sd/-

CHIEF JUSTICE

Sd/JUDGE

B Subbaya Rai v. Union of India

Case brief

What is this about?

What did the court decide?

B Subbaya Rai v. Union of India

Case brief

What is this about?

What did the court decide?

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