Jharkhand High Court

Dheeraj Kumar vs The State Of Jharkhand Through The ... on 18 November, 2021

                             [1]


     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 W.P.(PIL) No.4636 of 2021
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Dheeraj Kumar, aged about 47 years, Son of Rajendra Prasad Singh, Resident of Flat No.C-403, B-Block, Gulmohar Park, P.O. & P.S. Namkum, District-Ranchi, Jharkhand.

... ... Petitioner Versus

1. The State of Jharkhand through the Chief Secretary, having its office at Project Building, P.O. & P.S. Dhurwa, District-Ranchi, Jharkhand.

2. The Secretary, Department of Home and Disaster Management, having its office at Project Building, P.O. & P.S. Dhurwa, District-Ranchi, Jharkhand.

3. Jharkhand State disaster management Authority, through its Director, having its office at Project Building, P.O. & P.S. Dhurwa, District-Ranchi, Jharkhand.

4. The President, Jharkhand State Cricket Association, JSCA Stadium, P.O. & P.S.-Dhurwa, District-Ranchi, Jharkhand.

... Respondents

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CORAM : HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Petitioner : Mrs. Ritu Kumar, Advocate For the State : Mr. Rajiv Ranjan, Advocate General For the Resp.-JSCA : Mr. Amit Kumar Das, Advocate

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ORAL ORDER 02/Dated 18th November, 2021

1. The instant writ petition has been filed by way of public

interest litigation under Article 226 of the Constitution of

India for the following reliefs:

"(A.) For showing cause upon the respondent no.1 & 2 as to how & why they have given special permission to Jharkhand State Cricket Association to conduct T-20 cricket match between India & New Zealand on 19.11.2021 with full capacity and all facilities in total contravention to the guidelines issued by State of Jharkhand in exercise of the Power conferred u/s 22(h) of the Disaster Management Act, 2005 issued vide memo no. 434/CS/RES Ranchi, dated 30.10.2021 which prohibits all outdoor congregations of [2]

more than 500 persons are prohibited in the State of Jharkhand and there is every possibility of out break of COVID-19 pandemic in the State due to the irresponsible action taken by the State Government.

(B.) The petitioner further prays for issuance of appropriate writ(s), Order(s)/Direction(s) upon the respondents particularly the respondent nos.1, 2 and 3 to immediately and forthwith direct the Jharkhand State Cricket Association to follow strictly memo no. 434/CS/RES Ranchi, dated 30.10.2021 according to which all outdoor congregations of more than 500 persons are prohibited in the State of Jharkhand and other related guidelines."

2. The brief facts as per the pleading made in the writ

petition reads as hereunder:

It is the case of the writ petitioner that an

International T-20 Cricket Match is fixed for 19.11.2021

between India and New Zealand at JSCA stadium,

Dhurwa, Ranchi which is against the prevailing COVID-

19 guidelines issued by the State of Jharkhand vide

memo no.434/CS/RES Ranchi, dated 30.10.2021 by

which all outdoor congregation of more than 500 persons

have been prohibited across the entire State of

Jharkhand. The writ petitioner came to know from the

local daily newspaper dated 17.11.2021 that the State of

Jharkhand, in exceptional case has allowed JSCA to

conduct the said T-20 cricket match with full audience

capacity and also allowed caterers to serve food &

beverages inside the cricket association ground.

[3]

According to the writ petitioner, such exercise of

State of Jharkhand is highly arbitrary in relaxing the

restrictions imposed vide order dated 30.10.2021 by

giving special status to the cricket association even

without considering the likelihood of spread of COVID-19

pandemic.

3. According to the writ petitioner, the State Government

has got no power to relax the COVID-19 guideline for the

benefit of the commercial event at the risk of public at

large and as such the writ petition has been filed under

Article 226 of the Constitution of India to restrict the

congregation not to exceed 500 persons as also to direct

the Jharkhand State Cricket Association to follow the

guideline issued by the State of Jharkhand as contained

in memo No.434/CS/RES Ranchi, dated 30.10.2021 as

per which all outdoor congregation of more than 500

persons are prohibited in the State of Jharkhand and

other related guidelines.

4. Mrs. Ritu Kumar, learned counsel appearing for the

petitioner submits that since the match is scheduled to

be held tomorrow and the COVID-19 pandemic has not

fully ended and there is every likelihood of its spread

again, therefore, appropriate direction may be passed as

prayed for in the instant writ petition.

[4]

5. Mr. Rajiv Ranjan, learned Advocate General appearing for

the State of Jharkhand and Mr. Amit Kumar Das, learned

counsel for the JSCA have put their appearance.

This Court has put specific query to the learned

Advocate General that under which authority the

congregation has been directed to be exceeded for more

than 500 persons when there is already a decision taken

by the department of Disaster Management not to exceed

the outdoor congregation of more than 500 persons as

under memo no.434/CS/RES Ranchi, dated 30.10.2021.

6. The learned Advocate General, on instruction, produced

the copy of the extract of the file for demonstrating the

decision of the competent authority in relaxing the said

restriction in exercise of power conferred to the

competent authority under Section 18(3) of the Disaster

Management Act, 2005.

He submits that since the competent authority has

taken decision, in the exceptional circumstances, by

taking into consideration the fact that day before

yesterday first T-20 match held in Jaipur in the State of

Rajasthan had been allowed to be conducted with full

capacity of the stadium as also in Mumbai, the test

match is scheduled to be held with full strength of the

stadium and even the other T-20 International match is [5]

scheduled to be held at Eden Gardens, Kolkata with 80%

of its capacity.

He further submits that the competent authority,

considering these aspects of the matter, has exercised the

power as has been conferred under Section 18(3) of the

Disaster Management Act, 2005 and therefore, it is

incorrect to say that whatever decision has been taken by

relaxing the outdoor congregation for more than 500

persons, is without any authority of law.

7. It has been submitted by Mr. Amit Kumar Das, learned

counsel for the JSCA that as on today most of the tickets

have been sold out and if any direction will be passed

then it will create chaos in people. It has further been

submitted that the State Government has granted such

relaxation subject to fulfilment of the COVID-19 protocol,

i.e., every person must wear mask; JSCA must deploy

volunteers to ensure every person is wearing mask;

hands of each entrants must be sanitized at the entry

gates; and entire stadium, especially chairs and railings

must be sanitized at least a day before the match.

Therefore, since the cricket association is taking all

endeavours by following COVID-19 protocol as directed,

therefore, the decision of the State authority which has

been taken, in the interest of public at large, may not be

interfered with.

[6]

8. In response, the learned counsel for the petitioner

submits that although there is a power under Section

18(3) of the Disaster Management Act, 2005 but the said

provision provides by conferring power upon the

Chairperson of the State Authority to take such decision

only in a case of emergency but conducting a cricket

match cannot be treated to be an emergency.

9. Learned Advocate General, in response to such

submission, has submitted that if such issue is being

raised, the decision of the State Authority is required to

be challenged and in absence thereof, no adjudication

can be made.

10. We have heard learned counsel for the parties and

perused the document which has been produced in

course of argument, i.e., the order passed by the

Chairperson of the State Authority dated 16.11.2021 and

a communication issued under the signature of Under

Secretary to the Government, Home, Prison and Disaster

Management Department, Government of Jharkhand

(Disaster Management Cell) addressed to the Secretary,

Jharkhand State Cricket Association, Ranchi.

11. There is no dispute about the fact that the State

Government has come out with a Standard Operating

Protocol to deal with COVID-19 pandemic as has been

issued on 30.10.2021 whereby and whereunder it has [7]

been decided that there will not be outdoor congregation

of more than 500 people. The writ petitioner has filed this

writ petition solely on the basis of the aforesaid

notification by taking the plea that when the Government

has taken a decision not to allow outdoor congregation of

more than 500 people then how the T-20 International

Cricket Match has been allowed to be conducted with full

strength of the stadium which is about 38,000.

12. This Court, in order to consider the argument advanced

on behalf of the writ petitioner about the authority under

which such relaxation has been granted, has perused the

decision of the Chairperson of the State Authority who

happens to be the Chief Minister of the State whereby

and whereunder the Chairperson of the State Authority

vide decision dated 16.11.2021 has approved the

proposal of allowing the T-20 International Cricket Match

in between India and New Zealand with full audience

strength of the stadium subject to fulfilment of

conditions, i.e., every person must wear mask; JSCA

must deploy volunteers to ensure every person is wearing

mask; hands of each entrants must be sanitized at the

entry gates; and entire stadium, especially chairs and

railings must be sanitized at least a day before the match.

13. This Court has considered the authority under which

such decision has been taken by the Chairperson of the [8]

State Authority which has been stated to be taken under

Section 18(3) of the Disaster Management Act, 2005. The

said provision is being reproduced as hereunder :

"18. ................

(3) The Chairperson of the State Authority shall, in the case of emergency, have power to exercise all or any of the powers of the State Authority but the exercise of such powers shall be subject to ex post facto ratification of the State Authority."

14. It is evident from the aforesaid provision that the

Chairperson of the State Authority has been conferred

with the power to exercise all or any of the powers of the

State Authority in case of emergency but such exercise of

power shall be subject to ex post facto ratification of the

State Authority. Thus, the aforesaid provision confers

powers upon the Chairperson of the State Authority to

take such decision but in case of emergency.

So far as the issue raised that whether conducting

the International Cricket Match can be treated to be a

case of emergency and if it is not considered to be

emergency then the power exercised by the Chairperson

under Section 18(3) of the Disaster Management Act,

2005 cannot be said to be a correct decision but this

Court cannot go into this issue at present because the

decision taken by the competent authority as under

Section 18(3) of the Disaster Management Act, 2005 is

not the subject matter of challenge as would appear from [9]

the relief sought for by the writ petitioner as pleaded in

para-1 to the writ petition and it is settled position of law

that the prayer which has not been made by the litigant

in the writ petition that cannot be adjudicated upon.

Reference in this regard be made to the judgment

rendered in Manohar Lal vs. Ugrasen and Ors., (2010)

11 SCC 557 wherein at paragraph-31 it has been

observed which reads as hereunder:

"31. A similar view has been reiterated by this Court in Krishna Priya Ganguly v. University of Lucknow [(1984)1 SCC 307] and Om Prakash v. Ram Kumar [(1991) 1 SCC 441] observing that a party cannot be granted a relief which is not claimed."

In Rajasthan Pradesh Vaidya Samiti,

Sardarshahar and Anr. Vs. Union of India and Ors.,

(2010) 12 SCC 609 wherein at paragraph-15 it has been

observed which reads as hereunder:

"15. It is a settled proposition of law that a party has to plead the case and produce/adduce sufficient evidence to substantiate his submissions made in the petition and in case the pleadings are not complete, the court is under no obligation to entertain the pleas. In Bharat Singh v. State of Haryana [(1988) 4 SCC 534 : AIR 1988 SC 2181] this Court has observed as under: (SCC pp. 542-43, para 13) "13. ... In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the Court will not entertain the point. ... there is a [10]

distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading i.e. a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit, not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it."

15. This Court, after taking into consideration the aforesaid

ratio propounded by the Hon'ble Apex Court in the

judgments referred as above, is of the view that the issue

as to whether it is a case of emergency for which the

power conferred under Section 18(3) of the Disaster

Management Act, 2005 can be exercised, cannot be

adjudicated in the present case.

16. This Court, is further of the view that since the decision

has been taken by the competent authority as under

Section 18(3) of the Disaster Management Act, 2005

relaxing the outdoor congregation for conducting the T-20

International Cricket Match as has been submitted by

Mr. Amit Kumar Das, learned counsel for the JSCA that

most of the tickets have been sold out and the match is

scheduled to be held tomorrow, therefore, it will not be

proper for this Court to restrain the Jharkhand State

Cricket Association to restrict the congregation up to 50%

of the seat available in the stadium because the

exemption has been granted by the competent authority