Deseeya Sevabharathi vs Union Of India
2021 Latest Caselaw 17491 Ker

      IN THE HIGH COURT OF KERALA AT ERNAKULAM
                        PRESENT
        THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 26TH DAY OF AUGUST 2021/4TH BHADRA, 1943
                W.P.(C)NO.12021 OF 2021


 PETITIONER:

       DESEEYA SEVABHARATHI, KERALAM, ER-512/2007,
       MADHAVA NIVAS, PERANDOOR ROAD, ELAMAKKARA.P.O,
       ERNAKULAM DISTRICT, KOCHI-26,
       REPRESENTED BY ITS GENERAL SECRETARY,
       VIJAYAN.D, S/O.DAMODARAN NAIR.E.K, AGED 65,
       TC-42/140-1, KAILASAM, MALLASSERIL LANE,
       SREEVARAHAM, MANAKKAD.P.O,
       THIRUVANANTHAPURAM DISTRICT, PIN-695 009.
       BY ADVS.
       V.N.SANKARJEE
       V.N.MADHUSUDANAN
       R.UDAYA JYOTHI
       M.M.VINOD
       M.SUSEELA
       KEERTHI B.CHANDRAN
       VIJAYAN PILLAI P.K.
       C.PURUSHOTHAMAN NAIR
       SANAL C.S
       NITHEESH.M


 RESPONDENTS:

 1     UNION OF INDIA,
       REPRESENTED BY THE SECRETARY, DISASTER MANAGEMENT
       DIVISION, MINISTRY OF HOME AFFAIRS, GOVERNMENT OF
       INDIA, 3RD FLOOR, NDCC-II BUILDING, JAI SINGH
       ROAD, NEW DELHI, PIN-110 001.

 2     THE NATIONAL DISASTER MANAGEMENT AUTHORITY,
       NDMA BHAVAN, A-1, SAFDARJUNG ENCLAVE, NEW DELHI,
       PIN-110 029, REPRESENTED BY ITS CHAIRPERSON.

 3     THE STATE OF KERALA,
       REPRESENTED BY THE SECRETARY, DISASTER
       MANAGEMENT(REVENUE-K)DEPARTMENT,
       GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM
       DISTRICT,PIN-695 001.
 WP(C) No.12021/2021
                            :2 :


     4     KERALA STATE DISASTER MANAGEMENT AUTHORITY,
           REPRESENTED BY ITS CHAIRPERSON, OFFICE OF THE
           KERALA STATE DISASTER MANAGEMENT AUTHORITY,
           OBSERVATORY HILLS, VIKAS BHAVAN.P.O,
           THIRUVANANTHAPURAM DISTRICT, PIN-695 033.

     5     THE DISTRICT DISASTER MANAGEMENT AUTHORITY,
           KANNUR, REPRESENTED BY ITS CHAIRPERSON,
           COLLECTORATE, KANNUR DISTRICT, PIN-670 002.

     6     THE DISTRICT COLLECTOR,
           KANNUR, CIVIL STATION, COLLECTORATE ROAD,
           KANNUR DISTRICT, PIN-670 002.

     7     THE PRESIDENT,
           KANNUR DISTRICT PANCHAYAT, TALAP,
           KANNUR DISTRICT, PIN-670 002.

     8     SMT P.P.DIVYA,
           ( AGE AND FATHER'S NAME NOT KNOWN TO THE
           PETITIONER), PRESIDENT, KANNUR DISTRICT
           PANCHAYAT, TALAP, KANNUR DISTRICT, PIN-670 002.

           BY ADVS.
           SHRI.P.VIJAYAKUMAR, ASG OF INDIA
           K.S.ARUN KUMAR FOR R7 & R8
           JUSTINE JACOB FOR R7 & R8
           SRI.V.MANU, SENIOR GOVT. PLEADER

         THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
    ADMISSION ON 26.08.2021, THE COURT ON THE SAME DAY
    DELIVERED THE FOLLOWING:
 WP(C) No.12021/2021
                                    :3 :




                           JUDGMENT

~~~~~~~~~

Dated this the 26th day of August, 2021

The petitioner, a voluntary social service

organisation, has approached this Court seeking to quash

Ext.P4 and to direct the respondents not to prevent or obstruct

the petitioner or its District Unit from rendering voluntary

service as relief agency in Kannur District.

2. The petitioner states that it is a voluntary social

service organisation working all over India, providing

charitable services at grassroot levels. The petitioner states

that Seva Bharati is providing health care service through over

5000 Health Care Centres, 960 Mobile Clinics, 480 Urban

Area Clinics, 200 Counselling Centres, 6500 Ambulances and

7 Leprosy Medication and Rehabilitation Centres, through

thousands of volunteers. It has a chain of 450 Blood Banks

and 300 Blood Donation Indexes. The petitioner is a WP(C) No.12021/2021

Non-Governmental Organisation.

3. The Central Council for Research in Ayurvedic

Sciences (CCRAS), Ministry of AYUSH developed Ayurvedic

Medicine AYUSH-64 for treating asymptomatic Covid-19

patients. The Secretary, Government of India, directed the

State Health Authorities to promote AYUSH-64, as per Ext.P1.

The CCRAS directed their Institutes/Units/Centres to facilitate

distribution of AYUSH-64 through Seva Bharati volunteers, as

per Ext.P2. The petitioner is Kerala State Chapter of Seva

Bharati. The petitioner has been authorised to distribute

AYUSH-64 in four Districts in Kerala.

4. The petitioner would state that since the outbreak of

Covid-19 pandemic, the petitioner has been providing services

to thousands of persons affected by the pandemic. The

petitioner is operating 1270 Help Centres, 72 Quarantine

Centres, 12 Covid Care Centres, 156 Support to Government

Covid Care Centres, 1431 Food Distribution Centres for Covid

affected families, 616 Blood Donation Centres, 782 Immune

Medicine Supply Centres, 42 Counselling Centres, 128 WP(C) No.12021/2021

Ambulances and 552 other Vehicles throughout Kerala. The

petitioner is engaged in these activities purely on charity

basis.

5. On 22.03.2020, Janata Curfew was declared

nationwide. On the very next day, the Volunteers of the

petitioner in Kannur District met the 6 th respondent-District

Collector and offered their readiness to provide free service to

combat Corona Pandemic. Since then the volunteers of the

petitioner have been rendering free services supplementing

the work carried out by the respondents 5 and 6, at Covid

Centres, Quarantine Centres, Food Supply Centres, Blood

Donation Centres, etc. in Kannur District. The 6 th respondent-

District Collector, being the Chairman of the District Disaster

Management Authority (DDMA) appointed the petitioner as

Relief Agency as per Ext.P3 proceedings dated 22.05.2021.

6. To the surprise of the petitioner, the 6 th respondent

as per Ext.P4 cancelled the said appointment on 24.05.2021

itself alleging that volunteers of the petitioner have been

working using the symbol and signs of political party being WP(C) No.12021/2021

represented by the petitioner. The petitioner would state that it

has no political inclination or affiliation and none of its

volunteers have used any symbol or sign of any political party

anywhere. The petitioner thereupon sent Ext.P5

representation stating the said fact and requested to review

the decision contained in Ext.P4. The petitioner also

expressed its willingness to work along with the District

Administration whether in the capacity as Relief Agency or

otherwise.

7. The counsel for the petitioner argued that

cancellation of Ext.P3 is without notice to the petitioner and is

in violation of the principles of natural justice. The allegation

that the volunteers of the petitioner have used symbol and

sign of a political party is incorrect. The petitioner is an

apolitical NGO which is in service of humanity, for long years.

While the petitioner is being ousted on unfounded allegations,

another organisation having admitted and proven political

affiliation, is permitted to remain as a Relief Agency. WP(C) No.12021/2021

8. Respondents 5 and 6 contested the writ petition

filing statement and additional statement. Respondents 5 and

6 pointed out that in Ext.P3 order it was stated that the Relief

Agency has to work without any political or communal interest,

failure of which entail cancellation of the order. Respondents

5 and 6 received complaints from a Grama Panchayat

President, a Ward Councilor and two others alleging that the

petitioner is engaged in relief activities with political symbols.

The letters contained other allegations of a serious nature.

The complaints were placed before the DDMA on 25.05.2021

and the DDMA unanimously decided to cancel Ext.P3 as a

temporary measure. Accordingly, Ext.P4 was issued.

9. The DDMA, which has appointed the petitioner, has

power to cancel the appointment. There is no arbitrariness in

the matter. The petitioner has no statutory right to be

recognised as a Relief Agency. Hence, the writ petition is

without any merit, contended the learned Government

Pleader.

WP(C) No.12021/2021

10. Heard the learned counsel for the petitioner, the

learned ASGI representing respondents 1 and 2, the learned

Government Pleader representing respondents 3 to 6 and the

learned counsel for respondents 7 and 8.

11. The petitioner is a registered Non Governmental

Organisation. It is evident from Ext.P10 Memorandum of

Association that the petitioner-Association is formed to render

services to the Society on a no-profit basis. The claim of the

petitioner that it is running large numbers of Health Care

Centres, Mobile Clinics, Urban Area Clinics, Counselling

Centres, Ambulances, Leprosy Medication and Rehabilitation

Centres, Blood Banks and Blood Donation Indexes through

volunteers is not in dispute.

12. Ext.P2 Circular issued by the Government of India,

Ministry of Ayush, Central Council for Research in Ayurvedic

Sciences would show that to initiate local solutions during

Covid-19 pandemic, the Seva Bharati volunteers have been

roped in. Instructions are given to arrange for issuance of

special passes to Seva Bharati volunteers from local WP(C) No.12021/2021

Governments to enable the volunteers to effectively extend

their services in the program of CCRAS to fight Covid-19

pandemic.

13. The statement in the writ petition that the petitioner-

Kerala Chapter of the Seva Bharati has been operating a

large number of Help Centres, Quarantine Centres, Covid

Care Centres, Support to Government Covid Care Centres,

Food Distribution Centres for Covid affected families, Blood

Donation Centres, Immune Medicine Supply Centres,

Counselling Centres, Ambulances and other Vehicles

throughout Kerala, is not disputed.

14. Ext.P3 proceedings would show that the petitioner

has been working in co-operation with the District

Administration, Department of Health and Local Self

Governments for fighting Covid-19, for the last more than one

year. It was the said experience and the dire requirement to

get sufficient number of volunteers to be deployed for Covid

related work including care giving to those who reside in

footpaths, to those who are in quarantine and in containment WP(C) No.12021/2021

zones, etc., that prompted the 5th respondent to recognise the

petitioner as a Relief Agency. While deciding so, the 5 th

respondent-Authority admittedly had more than one year first

hand experience on the work done by the volunteers of the

petitioner, as is evident from Ext.P3.

15. But, the events that followed Ext.P3 are surprising.

On 22.05.2021, Ext.P3 order was passed recognising the

petitioner as Relief Agency. On 24.05.2021, four persons

including a Grama Panchayat President and a Ward

Councillor filed complaints against the volunteers of the

petitioner. On 25.05.2021, the complaints are placed before

the DDMA and the DDMA decided to cancel the recognition

given to the petitioner 'temporarily' on the same day, on an

allegation that the volunteers have used the symbols and

signs of a political party.

16. No notice was given to the petitioner before

cancellation of appointment. The petitioner is not informed as

to who used, where it was used and which political party's

symbols/signs were used during relief work. It has not been WP(C) No.12021/2021

stated even in the statements filed by the respondent before

this Court. The DDMA has not cared to make any sort of

preliminary enquiry in order to convince itself that the

complaints are not politically motivated and there is at least

prima facie substance in the complaint. The DDMA, it is

evident from Ext.P4, has taken the decision contained in

Ext.P4 solely based on the demand made by the

Co-Chairperson of the DDMA who is District Panchayat

President.

17. The context in which the petitioner was recognised

as a Relief Agency as per Ext.P3 and the sequence of events

immediately followed give rise to genuine suspicion on the

veracity of the complaints made against the petitioner.

Admittedly, no preliminary enquiry was made before acting

upon the complaints against the petitioner. The fact that

complaints are made by the Panchayat President or District

Panchayat President, does not make such complaints

acceptable as such without any enquiry. At least the petitioner

should have been granted an opportunity of hearing before WP(C) No.12021/2021

passing Ext.P4, which indeed causes aspersions on an NGO

claiming to be apolitical. Ext.P4 is therefore unsustainable

and is liable to be set aside.

18. The learned Government Pleader argued that

Ext.P4 is only a temporary measure and a final decision would

be taken after making a detailed enquiry and after giving

opportunity of hearing to the petitioner. It has to be kept in

mind that after passing Ext.P4 on 25.05.2021, respondents 5

and 6 did not take any steps to cause an enquiry till

07.06.2021 when this writ petition was filed and not even

thereafter.

19. The learned Government Pleader further argued

that the petitioner has no statutory right to be appointed as a

Relief Agency. The petitioner has no enforceable right and

hence the writ petition is not maintainable, argued the

Government Pleader. This Court cannot agree with the said

argument for the reason that the petitioner has approached

this Court aggrieved by the arbitrary exercise of power by a

public authority. The petitioner is challenging an order which WP(C) No.12021/2021

prima facie causes aspersions on it.

For all the above reasons, the petitioner has to

succeed. Ext.P4 is therefore set aside. The writ petition is

allowed as above.

Sd/-

N. NAGARESH, JUDGE

aks/24.08.2021 WP(C) No.12021/2021

APPENDIX OF WP(C)12021/201

PETITIONER'S EXHIBITS

EXHIBIT P-1 : TRUE COPY OF THE LETTER D.O.No.T-

18020/1/2020-DCC-PART(1) DATED 28.4.2021 ISSUED BY THE SECRETARY, GOVERNMENT OF INDIA, MINISTRY OF AYUSH TO THE CHIEF SECRETARIES OF STATES AND Uts.

EXHIBIT P-2 : TRUE COPY OF THE LETTER D.O.No.3-

42/2021-CCRAS/ADMN. DATED 12.5.2021 ISSUED BY THE CENTRAL COUNCIL FOR RESEARCH IN AYURVEDIC SCIENCES, MINISTRY OF AYUSH, GOVERNMENT OF INDIA.

EXHIBIT P-3 : TRUE COPY OF THE ORDER/PROCEEDING DATED 22.5.2021 OF THE 6TH RESPONDENT.

EXHIBIT P-4 : TRUE COPY OF THE ORDER/PROCEEDING DATED 24.5.2021 OF THE 6TH RESPONDENT.

EXHIBIT P-5 : TRUE COPY OF THE PETITIONER'S REPRESENTATION SENT TO THE 6TH RESPONDENT BY EMAIL ON 26.5.2021.

EXHIBIT P-6 : TRUE COPY OF THEE PAMPHLET PUBLISHED BY DYFI-IRPC AS DOWNLOADED FROM ITS WEBSITE.

EXHIBIT P-7 : TRUE COPY OF THE CONTENT OF FACEBOOK POST DATED 19.8.2019 WITH FACEBOOD POST LINK OF THE 8TH RESPONDENT AS DOWNLOADED AND PRINTED.

EXHIBIT P-8 : TRUE COPY OF THE APPLICATION DATED 22.5.2021 SUBMITTED BY THE PETITIONER'S KANNUR DISTRICT UNIT SECRETARY TO THE 6TH RESPONDENT.

EXHIBIT P-9 : TRUE COPY OF THE LETTER DATED 25.5.2021 OF THE DEPUTY DIRECTOR OF PANCHAYAT, KANNUR.

WP(C) No.12021/2021

EXHIBIT P-10 : TRUE COPY OF THE MEMORANDUM OF ASSOCIATION TOGETHER WITH RULES AND REGULATIONS DATED 29.10.2007 OF THE PETITIONER SOCIETY HAVING REGISTRATION NUMBER ER-512/2007.

EXHIBIT P-11 : TRUE COPY OF THE AFFILIATION CERTIFICATE DATED 15.5.2013.