Kerala High Court
A.Hameed Hajee vs State Of Kerala on 27 July, 2021
-1-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 27TH DAY OF JULY 2021 / 5TH SRAVANA, 1943
WP(C) NO. 14867 OF 2021
PETITIONER/S:
A.HAMEED HAJEE,
AGED 67 YEARS,
SON OF BAWA MAESTHRI,
MANAGING PARTNER, KOOLIKKAD AGENCIES,
RESIDING AT MYTHRI MAHAL, AJANUR KADAPPURAM,
AJANUR, KOLAVAYAL P. O.,
KASARAGOD - 673 531.
BY ADVS.
SABU P.JOSEPH
C.N.SREEKUMAR
MANJU PAUL
ANIL PRASAD
SURESHKUMAR C
RESPONDENT/S:
STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY,
GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
OTHER PRESENT:
SRI. K.GOPALAKRISHNA KURUP, ADVOCATE GENERAL FOR
RESPONDENT
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
27.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No. 14867 of 2021 -2-
JUDGMENT
S. Manikumar, C.J.
Instant writ petition has been filed for the following reliefs:-
"i. Issue a writ of mandamus or any other appropriate
writ order or direction to the respondent to withdraw the lock
down imposed on Saturdays and Sundays and restriction imposed
on all shops, establishments, banks, other institutions, in the state
enabling them to function on all days without any time
restrictions;
ii. Issue a writ of mandamus or any other appropriate writ
order or direction to the respondents to allow the shops,
establishments, banks, other institutions to function more time
including Sundays to reduce overcrowding of people by
maintaining social distancing at all time;
iii. Issue a writ of mandamus or any other appropriate
writ order or direction to the respondent to pass an order to
functions Offices and other essentials services of Government
Banks and Financial Institutions and other institutions on
Sundays by following rotations of employees by granting leave
on weekday to ensure services to all needy by avoiding
overcrowding;
iv. Issue a writ of mandamus or any other appropriate
writ, order to the respondent implement effective and efficient
plan to strict adherence of Covidi Protocol and Social Distancing
each and every corner of the state."
2. Short facts leading to filing of the writ petition are as
hereunder:-
According to the petitioner, the lock down and restrictions
imposed by the State Government to control the spread of Covid-19
has proved to be as unsuccessful, evidencing from the current status of
continuing constant rate of TPR in the State.
Due to the indefinite extension of complete lock down on
Saturday and Sundays, and other restrictions on the functioning of
shops, establishments, Banks and other Institutions in the State, on a
restricted time period and days, cause overcrowding in all these
places, during the period of its functioning, cases have not come
down.
Petitioner has contended that the number of people or customers
are not reduced, by imposing the lock down, but the Government have
restrained, to a shorter period, to avail and meet the demands of public
and others, the needs and requirements, which cause the overcrowding
in shops and other establishments, violating the Covid Protocol and
social distancing, the most effective and efficient method accepted
across the world, for controlling spread of Covid-19.
Petitioner has further contended that there are more than 30 lakh
shops and establishments functioning in the State of Kerala and more
than 90 lakh workers employed in these shops and establishments.
Due to lock down and restrictions on the functioning of shops and
establishments, merchants, businessmen, their employees and their
families are facing huge financial stringency. The family of these
people are purely depending on these sectors for their livelihood and
other needs. Due to restrictions to open and functioning of the shops
and establishments, huge stock purchased by the merchants are lying
idle, holding their huge investment. Apart from that, dues in rent for
shops and buildings, electricity and water charges, EMI for loan,
wages and salary of its works and employees, etc., piled up the
financial burden and liability of merchants in the State.
Petitioner has also contended that in the urge of effective and
efficient method to control the Covid - 19 in the State and safeguard
the interest of the merchants and businessmen in the State, according
to the petitioner, the Government is still continuing with the proven
failed method of implementing lock down and restriction on shops and
establishment to control spread of pandemic Covid-19, which is
highly necessary to be withdrawn in the current scenario and that the
Government should come out with effective implementation of Covid
Protocol, social distancing and sanitation and cleanliness, a world
wide accepted method of controlling spread of Covid-19.
3. Heard the learned counsel for the parties and perused the
material on record.
4. On 23.07.2021, an Hon'ble Full Bench of this Court in W. P.
(C) No. 11316 of 2021 (suo motu), have passed the following order:-
"Taking note of the order in G.O(Rt).No.500/2021/DMD
dated 6.7.2021, we extended the interim order dated 19.05.2021
and directed the Registry to post the writ petition on 23.07.2021.
2. On this day, when the matter came up for hearing,
inviting attention of this Court to G.O(Rt). No.524/2021/DMD,
Mr. K. Gopalakrishna Kurup, learned Advocate General,
submitted that vide order dated 13.07.2021, additional guidelines
for implementation by the enforcement authorities from
15.07.2021, were issued.
3. Subsequently, having regard to the Bakrid (Eid-ul-
Azha), celebrated in the State on 21.07.2021, orders were issued
on 17.07.2021 exempting certain restrictions imposed in the
State, to contain COVID-19 pandemic. Both orders stated supra
are extracted hereunder:
"GOVERNMENT OF KERALA
Abstract
Disaster Management Department - COVID19 - Additional
guidelines for implementation by the enforcement
authorities from 15th July 2021- orders issued
-----------------------------------------------------------------------
DISASTER MANAGEMENT (A) DEPARTMENT
G.O.(Rt).No.524/2021/DMD Dated, Thiruvananthapuram,
13/07/2021
-----------------------------------------------------------------------
Read:- 1. GO(Rt)No.500/2021/DMD dated 06.07.2021.
2. GO(Rt)No.459/2021/DMD dated 07.06.2021
3. GO(Rt)No.461/2021/DMD dated 10.06.2021.
ORDER
After assessing the current situation of the spread of
COVID-19 pandemic in the State, the undersigned, in his
capacity as Chairman of the State Executive Committee of
State Disaster Management Authority, in exercise of the
powers under Sec.20(3) of the Disaster Management Act-
2005, hereby orders following additional guidelines for
implementation by the enforcement authorities from 00:00
hours of 15th July-2021 onwards:
a. The present categorization of LSGIs based on seven
day average TPR vide GO (Rt) No.500/2021/DMD
dated 06.07.2021 shall continue. Exemptions and
restrictions already applicable to the respective
category areas will continue.
b. Banks can allow public on all five days of operation.
17th July, 2021 will be holiday for banks and other
financial institutions under Negotiable Instruments Act,
1881.
c. Shops in category 'A', `B' and 'C' LSGIs will be allowed
to open till 8 pm on the days in which they are allowed
already.
d. Collectors are authorized to declare micro-containment
zones and implement special intensified stringent
restrictions in specific areas in A, B and C LSGIs after
analyzing the existing TPR, number of active cases and
other factors in the area.
e. There will be complete lockdown on 17th and 18th July,
2021 (Saturday & Sunday) with the same guidelines as
issued for 12th and 13th June, 2021 vide Government
Orders GO(Rt) No.459/2021/DMD dated 07.06.2021
and GO(Rt). No.461/2021/DMD dated 10.6.2021.
(By order of the Governor)
Dr.V.P. Joy
Chief Secretary"
5. G.O.(Rt) No.532/2021/DMD dated 17.07.2021, is
extracted below:
"GOVERNMENT OF KERALA
Abstract
Disaster Management Department - Exemption in
restrictions imposed in the state to contain Covid 19
pandemic- orders issued
-----------------------------------------------------------------------
DISASTER MANAGEMENT (A) DEPARTMENT
G.O.(Rt)No.532/2021/DMD
Dated, Thiruvananthapuram, 17/07/2021
-----------------------------------------------------------------------
Read 1. GO(Rt)No.467/2021/DMD dated 15.06.2021
2. GO(Rt)No.479/2021/DMD dated 22.06.2021
3. GO(Rt)No.487/2021/DMD dated 29.06.2021
4. GO(Rt) No.500/2021/DMD dated 06.07.2021
5. GO(Rt) No.524/2021/DMD dated 10.06.2021
ORDER
As part of COVID- 19 containment activities, the LSGIs
in the state were categorized based on the Test Positivity
Rate(TPR) and certain relaxations on lock-down were
extended to the areas were the TPR is less and special
intensified stringent restrictions are being implemented in
areas where TPR is high.
After assessing the current situation of the spread of
COVID-19 pandemic in the State, the undersigned, in his
capacity as Chairman of the State Executive Committee of
State Disaster Management Authority, in exercise of the
powers conferred under Sec 20(3) of the Disaster
Management Act-2005, hereby issues following additional
guidelines for strict implementation by the enforcing
authorities.
i. Bakrid (Eid-ul-Azha) is being celebrated in the State
on 21st July-2021. Therefore, textiles, footwear shops,
jewellery, fancy stores, shops selling home appliances
and shops selling electronic items, all types of
repairing shops and shops selling essential items
(already allowed in all category of LSGIs) shall be
allowed to open on 18th, 19th and 20th -2021 (Sunday,
Monday and Tuesday) from 7 AM to 8 PM in 'A', 'B'
and 'C' category LSGIs. In "D" category, these shops
can function on 19th July (Monday) only.
ii. Beauty parlor and barber shops can function for hair
styling only on the days on which other shops are
permitted in 'A' and '13' category areas.
iii. Along with the other permitted activities, electronic
shops and electronic repair shops can also be opened
on all days from 7 am to 8 pm in category 'A' and '13'
LSGIs and during permitted days in other categories.
iv. Places of worship can be allowed with maximum 40
persons on special occasions of celebration.
v. Shooting of Cinema shall be allowed as per the
guidelines for serial shooting stipulated in the order
read as (2) above by strictly adhering to COVID
protocols.
vi. Public are cautioned that as far as possible, the
persons visiting shops and other establishments may
belong to those with at least one dose of
vaccine/COVID recovered category and follow strict
COVID protocols.
(By order of the Governor)
Dr. V P Joy
Chief Secretary"
5. Learned Advocate General further submitted that
having regard to the 'Kanwar Yatra' in Uttar Pradesh, Hon'ble
Supreme Court registered Suo motu Writ Petition (C). No.5 of
2021 and, on 14.7.2021, issued certain directions and further
directed to list the matter on 16.07.2021. Subsequently, on
18.07.2021, an interlocutory application, viz., I.A. No.82837 of
2021, in Suo motu Writ Petition (C).No.5 of 2021 is filed on
behalf of one Mr. P.K.D. Nambiar, pointing out certain news
articles, which portray an alarming situation taking place in
Kerala as a result of Bakrid celebrations.
6. Having heard learned counsel for the parties therein,
in I.A. No.82837 of 2021, the Hon'ble Supreme Court, on
20.7.2021, passed the following orders:
"What is extremely alarming is the fact that in
Category D, where infections are the highest i.e.
15%, a full day of relaxation has been granted, which
was yesterday. It is then stated that, as far as
possible, the persons visiting shops and other
establishments may belong to those with at least one
dose of vaccine/COVID recovered category and
follow strict COVID protocols, echoing paragraph
(vi) of the 17th July, 2021 Notification, along with the
Chief Minister's appeal.
The aforesaid facts disclose an alarming state
of affairs. To give in to pressure groups so that the
citizenry of India is laid bare to a nationwide
pandemic discloses a sorry state of affairs. Even
otherwise, homilies such as "as far as possible" and
assurances from traders without anything more, do
not inspire any confidence in the people of India or
this Court. We may only indicate that this affidavit
discloses a sorry state of affairs as has been stated
hereinabove, and does not in any real manner
safeguard the Right to Life and Health guaranteed to
all the citizens of India under Article 21 of the
Constitution of India. It may also be pointed out that
the relaxation for one day to a Category D area was
wholly uncalled for.
In these circumstances, we direct the State of
Kerala to give heed to Article 21 read with Article
144 of the Constitution of India, and follow the law
laid down in our orders in the Uttar Pradesh case i.e.,
14.7.2021, 16.7.2021 and 19.7.2021. Also, pressure
groups of all kinds, religious or otherwise, cannot in
any manner, interfere with this most precious
Fundamental Right of all the citizens of India. We
may also indicate that if as a result of the
Notification dated 17.07.2021, any untoward spread
in the Covid-19 disease takes place, any member of
the public may bring this to the notice of this Court,
after which this Court will take necessary action
against those who are responsible.
In view of the above, I.A. No.82837 of 2021
and the suo motu writ petition are disposed of."
7. Mr. K. Gopalakrishna Kurup, learned Advocate
General, further submitted that there will be a review of the
COVID-19 pandemic situation in Kerala and depending upon the
decision, the restrictions either relaxed in certain cases or made
stringent, as the case may be. According to him, only after a
comprehensive decision is taken, appropriate orders will be
issued by the Government.
8. Placing on record the above submission, having regard
to the orders of the Hon'ble Apex dated 20.7.2021, extracted
supra, and taking note of the submission that a review will be
conducted on COVID-19 pandemic situation, we are of the view
that the interim order granted on 19.05.2021, periodically
extended, requires further extension.
Interim order is extended upto 9.8.2021. Registry is
directed to post this suo motu writ petition on 06.08.2021."
6. Judicial notice can also be taken that subsequent to the
interim order passed by the Hon'ble Supreme Court in I. A. No. 82837
of 2021 dated 20.07.2021, Government of Kerala have issued G. O.
(Rt) No. 545/2021/DMD dated 24.07.2021, wherein guidelines on the
restrictions imposed in the State, as part of Covid - 19 containment
activities, from 26.07.2021, have been issued. Said Government Order
is extracted hereunder:-
7. Thus, when the Hon'ble Supreme Court had already taken
note of the Covid situation in Kerala and observed that relaxation of
the restrictions, even for a day to some category of area, was wholly
uncalled for, and that when the Hon'ble Supreme Court has also
observed that it was the sorry state of affairs that State of Kerala, does
not in any real manner, safeguard the rightful life and health
guaranteed to all the citizens under Article 21 of the Constitution, the
prayers sought for, would be contrary to the directions issued by the
Hon'ble Supreme Court.
8. That apart, judicial notice can also be taken that in the State of
Kerala, the Test Positivity Rate is increasing, despite the measures
taken by the Government, to contain the spread of Covid - 19. Trade
or business is not more important than health, which is integral to
right to life. Reasonable restrictions can be imposed on trade or
business. Article 19 (6) and 21 of the Constitution of India,
encourages, right to trade and business. If only there is health and life,
one can engage himself in trade or business.
Having regard to the above, we are not inclined to issue any
mandamus as prayed for by the writ petitioner.
Writ petition is dismissed.
Sd/-
S. MANIKUMAR
CHIEF JUSTICE
Sd/-
SHAJI P. CHALY
JUDGE
Eb
///TRUE COPY///
P. A. TO JUDGE
APPENDIX OF WP(C) 14867/2021
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE GOVERNMENT ORDER, G.O.
(RT) NO. 364/2021/DMD DATED 13.04.2021.
EXHIBIT P2 TRUE COPY OF THE GOVERNMENT ORDER, G.O.
(RT) NO. 378/2021/DMD DATED 21.04.2021.
EXHIBIT P3 TRUE COPY OF THE GOVERNMENT ORDER, G.O.
(RT) NO. 391/2021/DMD DATED 30.04.2021.
EXHIBIT P4 TRUE COPY OF THE GOVERNMENT ORDER, G.O.
(RT) NO. 404/2021/DMD DATED 06.05.2021.
EXHIBIT P5 TRUE COPY OF THE GOVERNMENT ORDER, G.O.
(RT) NO. 467/2021/DMD DATED 15.06.2021.
