FEROZE MITHIBORWALA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Mr. Anturkar, learned senior counsel appearing for the State has submitted, on instructions, received from the Principal Secretary, Disaster Management, Relief and Rehabilitation, Government of Maharashtra, that a decision has been taken to withdraw the orders dtd. 15/7/2021 and 11/8/2021 as well as the Standard Operating Procedure dtd. 10/8/2021. However, it is the further contention of Mr. Anturkar that the order dtd. 15/7/2021 has since been superseded by an order dtd. 27/8/2021; similarly, the order dtd. 11/8/2021 has since been superseded by orders dtd. 8/10/2021, 19/10/2021 and 26/10/2021 as well as other subsequent orders dtd. 8/1/2022, 9/1/2022 and 31/1/2022, which are now in force.

(2.) Mr. Anturkar also contends that having regard to the spirit of the observations that this Bench had the occasion to make in course of the proceedings in Court, it has since been decided by the State Executive Committee constituted under the Disaster Management Act, 2005 (hereafter "the Act", for short) to meet on 25/2/2022 for reviewing all the orders in the light of the discussions in the Court as well as the factual status of Covid-19 pandemic and various directions, letters advisories, etc. received from the Government of India as well as the Task Force and to promulgate new comprehensive directives, if needed, in super session of all the previous orders. According to Mr. Anturkar, the Principal Secretary is firmly of the belief that the fresh decision to be taken by the State Executive Committee on 25/2/2022 would be in tune with the spirit of the observations of the Bench.

(3.) While we propose to adjourn hearing of these PIL petitions for a few days, it is necessary to briefly place on record what transpired in course of previous hearings. We had the occasion to consider the orders that were passed by the former Chief Secretary of the Government of Maharashtra. It was noticed and observed that the State Disaster Management Rules framed in terms of provisions contained in sec. 78 of the Act were observed in total breach. No decision was taken by the State Executive Committee. On the contrary, orders were issued from time to time by the former Chief Secretary, in the capacity of the Chairperson of the State Executive Committee, imposing restrictions to be adhered to during the second wave of the pandemic without there being any deliberation with the other members of the Committee, who happened to be bureaucrats having their offices in the same building where the Chief Secretary has his office. Since there were no meetings of the State Executive Committee, minutes of meetings though required to be recorded in terms of statutory rules were not recorded. Although at an earlier stage it was submitted that as the Chairperson of the Committee the former Chief Secretary had certain emergency powers and to take decisions all by himself, we have observed from the records produced yesterday by Mr. Anturkar that none of the orders recorded any emergent like situation warranting the Chairperson of the Committee to pass an order without waiting for deliberations with the other members. Satisfied that Fundamental Rights of citizens guaranteed under Article 19(1)(d) of the Constitution were abrogated without giving primacy to the rule of law, we had made certain critical oral observations in open Court wondering how an order passed by the Chairperson of the Committee, without following the relevant law, could be passed off as the decision of the State Government. Orders having been passed in clear violation of the prescribed procedure notwithstanding, we had granted time to the Government to take an informed decision on the aspect of lifting the restrictions that were illegally imposed particularly giving due regard to the declining trend of infected cases as well as bearing in mind that earning a bad name at this stage would wash away the commendable work performed by officials/staff at all levels in Maharashtra to keep the citizens safe and secure as much as possible during the second wave.