TMI Blog2021 (8) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... er situation. It has been enacted on disaster management to provide for requisite institutional mechanisms for drawing up and monitoring the implementation of the disaster management plans, ensuring measures by various wings of Government. With the above aim and object, DMA 2005 has been enacted. The DMA 2005 provides for setting up of a National Disaster Management Authority under the Chairmanship of Hon ble Prime Minister. It also provides for constitution of State Disaster Management Authorities under the Chairmanship of the Chief Ministers and District Disaster Management Authorities under the Chairmanship of District Magistrates. It also provides for concerned Ministries or Departments to draw up department-wise plans in accordance with the national disaster management plan. In Section 12 of DMA 2005, the word shall is used twice. The intent of the legislature by using the word shall twice is very clear and the same can be in tune with the Statement of Objects and Reasons for enactment of DMA 2005 and the functions and powers of the National Authority. One of the Objects and Purposes is mitigation . As per Section 6(1) and Sub-section 2(g) of Section 6, the National ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich and poor, professionals and informal workers, and traders and farmers. It has also affected the kins as well as elderly members, old parents. Many have lost the sole bread earner. However, at the same time, and as observed hereinabove, the impact and effect of the present pandemic/disaster would be different from the other disasters/natural disasters for which ex gratia assistance is provided. There shall not be any justification to provide for the same/similar amount by way of ex gratia assistance as provided in the case of other disasters/natural disaster, i.e., ₹ 4 lacs. Seeking to issue appropriate direction to the respondents State Governments to issue an official document stating Covid-19 related as cause of death, to the family members of the deceased who died due to Covid-19 - HELD THAT:- It is required to be noted that it is the duty of the every authority to issue accurate/correct death certificates stating the correct and accurate cause of death, so that the family members of the deceased who died due to Covid-19 may not face any difficulty in getting the benefits of the schemes that may be declared by the Government for the death of the deceased, who di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent proceedings. 2. These two writ petitions have been filed in Public Interest seeking directions to the respondents Central/State Governments to provide ex gratia monetary compensation of ₹ 4 lacs or notified ex gratia monetary compensation to the families of the deceased who have succumbed to the pandemic of Covid-19, in view of Section 12 of the Disaster Management Act, 2005 (hereinafter referred to as DMA 2005 ). It is also further prayed for an appropriate direction to the respondents State Governments to fulfil their obligation to take care of victims of the calamity and their family members. One another relief which is sought in Writ Petition (Civil) No. 554 of 2021 is to issue an appropriate direction to the respondents State Governments to issue any official document stating cause of death, to the family members of the deceased who died due to Covid-19. One additional relief which is sought in Writ Petition (Civil) No. 539 of 2021 is to issue an appropriate writ of mandamus against the respondents Union of India and others to provide social security and rehabilitation to the victims of Covid- 19. Two applications have been filed in the aforesaid writ p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclude, inter alia, ex gratia assistance on account of loss of life. It is submitted therefore that it is the statutory duty of the National Authority to provide in the guidelines for ex gratia assistance on account of loss of life who died due to Covid-19, which is declared as a Notified Disaster . 3.3 It is submitted that to provide such ex gratia assistance on account of loss of life is not only a statutory obligation under Section 12 of the DMA 2005, but it is the constitutional obligation also since it also affects the right to life guaranteed under Article 21 of the Constitution of India. It is submitted that the word shall occurring twice in Section 12 of the Act puts a constitutional and statutory obligation on the part of the Central/State Government to recommend guidelines for providing ex gratia assistance which is in the nature of sustenance assistance. It is submitted that as such keeping the aforesaid in mind, earlier for the years 2015-2020 vide Ministry of Home Affairs letter dated 08.04.2015 the Government has fixed norms of assistance from SDRF and NDRF for providing succour to the aggrieved family. 3.4 It is further submitted that the word shall occurr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be accepted. It is submitted that the fiscal affordability/financial constraint cannot be a ground not to fulfil statutory obligation under the DMA 2005 and the constitutional obligation as provided under Article 21 of the Constitution of India. 3.7 It is further submitted by Shri Upadhyay, learned Senior Advocate appearing on behalf of the petitioner that it is the duty of every government, either Central or State, to see that the correct/accurate death certificates/official documents are issued mentioning the correct cause of death arising out of Covid-19 pandemic. It is submitted that by not issuing the accurate/correct death certificate/official document with correct cause of death Covid-19 pandemic, the family members of the deceased, who died due to Covid-19 pandemic, will be deprived of the benefits of the schemes, if any, declared by the Central/State Governments. It is submitted that not only that but by not issuing the correct/accurate death certificates mentioning the correct cause of death Covid-19 pandemic, even the other citizens would be misled and the correct figure of deaths arising out of Covid-19 would not be known. It is submitted that if the number of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to deny that Covid-19 is not a disaster has no substance and may not be accepted as even the Central Government on 14.03.2020 decided to treat Covid-19 as Notified Disaster . 4.2 It is submitted that even the XVth Finance Commission s Report which is prepared after Covid-19 Pandemic suggests that the Central Government has always considered Covid-19 as a Disaster as mentioned in Section 2(d) of the DMA 2005. It is submitted therefore that the submission on behalf of the Union of India that Covid-19 is not that kind of disaster which Legislature envisaged while enacting DMA 2005 is nothing but an afterthought. 4.3 Now so far as the stand taken on behalf of the Union of India that the term shall used in Section 12 will have to be read as may while reading the instances given in Section 12 (i) to (iii), it is submitted that the Parliament has used the word shall twice in Section 12 of DMA 2005 which clearly shows that National Disaster Management Authority (NDMA) is not only bound to recommend guidelines for the minimum standards of relief but such reliefs must contain the provisions of ex gratia assistance on account of loss of life. It is submitted that further, use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... curity social insurance to the persons and families affected by disasters. It is submitted that therefore denying the ex gratia payment to the families of Covid-19 deceased shall not only hit on the foundation stone on which DMA 2005 is standing but shall also defeat the whole purpose of DMA 2005. It is submitted that because of Covid-19 pandemic, lakhs of families have not only lost their near and dear but have also lost the sole bread earner who was nurturing the range of persons, i.e., small kids to elderly persons. It is submitted that due to loss of sole bread earner, lakhs of families have completely devastated and destroyed. It is submitted that grant of respectable and reasonable one-time compensation in the form of ex gratia as provided under Section 12(iii) of DMA 2005 to the lowest of the low to the needy and to the families of frontline workers who lost their lives while acting as Corona Warrior shall not only provide a sense of social security to them but shall also serve the letter and spirit of DMA 2005. 4.8 It is submitted that even the Finance Commission in its XVth Finance Commission s Report at point number 8.132 8.133 has also suggested the Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n it will set a dangerous precedent and every time when the government will be in a tight spot, it may legally defy duties under the laws by hiding behind the shield of fiscal inability to protect itself from providing relief. 5.3 It is submitted that when Covid-19 virus rapidly started spreading in our country, the Union of India proactively notified Covid-19 as a pandemic in order to exercise powers under DMA 2005 vide letter dated 14.03.2020. It is submitted that now when the responsibility of mitigating the loss of life under DMA 2005 arises, the government is abstaining from its responsibility and trying to escape from its duty to provide compensation to people who have lost their loved ones. It is submitted that in the modified list of items and norms of assistance from SDRF vide letter dated 14.03.2020, the Government of India has withdrawn the clause of ex gratia compensation. It is submitted that Section 12 of DMA 2005 explicitly states that the NDMA shall recommend guidelines for minimum standards of relief to be provided to the persons affected by disaster. It is submitted that special emphasis should be laid on Section 12 (ii) and Section 12(iii) of DMA 2005. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been adopted, in tune with the evolving nature of Covid-19 virus. 6.2 It is submitted that various steps have been taken by the Union of India, to strategize nation s response to Covid-19, a once in a lifetime pandemic inflicted on the entire world, wherein not just the funds of NDRF and SDRF, but even from the Consolidated Fund of India are being utilised as per the advice of the experts. It is submitted that specific steps have been taken for ramping up the entire health infrastructure, preparedness, relief, restoration, mitigation and reconstruction, in a very short time, to include, inter-alia: a) Testing, tracing, treatment and quarantine facilities; b) Augmenting hospital facilities, oxygenated beds, ventilators, ICU facilities etc.; c) Augmentation of health workforce and their insurance; d) Augmentation, allocation, supply and transportation of oxygen and other essential drugs; e) Research, development, enhanced production and administration of vaccinations to rapidly cover one of world s largest eligible population of beneficiaries; f) Ensuring food security to the vulnerable groups; g) Minimising the adverse impact of large-scale economic disrupt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere dealing with the pandemic by directly remaining near to Covid infected patients etc. 6.6 It is submitted that Covid-19 has come as a novel virus and disease resulting in a pandemic for the entire world. The entire world has faced this phenomenon with differing intensity, mutations and waves, impacting life itself, healthcare systems, livelihood, access to amenities, liberties etc., making it a global public health challenge affecting all countries. It is submitted that therefore the Central Government adopted a multi-pronged, multi-sectoral, whole of society and a whole of government approach, along with the National Plan, in order to tailor the response of the nation in tune with the evolving nature of the virus. It is submitted that the Government of India while implementing DMA 2005 has applied a different approach keeping the unprecedented nature of disaster in mind, while supporting individual States/UTs as per their specific needs. It is submitted that such support for fighting the pandemic situation has consisted of ramping up the health infrastructure in a short time, which include testing, treatment, and quarantine facilities on large-scale on the one hand, and augm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CREASE IN SURVEILLANCE Screening at all port of entry/exit, State/District rapid response teams. Contact tracing through extensive network of frontline health workers. State/city-specific sero-surveillance studies to estimate and monitorrends. 6.7 It is submitted that the due to the peculiar nature of the COVID-19 pandemic, it was advisable not to formulate a strait jacket guideline and a cast in stone formula on Minimum Standards of Relief . It is submitted that in order to enable the authorities to deal with the ever changing situations in the best possible manner, utilising all the financial, human, infrastructural and all resources of the nation rationally, judiciously and keeping the future contingencies in mind, as the world does not know how this pandemic will take shape in the future, the Union of India has taken a conscious policy decision to provide relief(s) depending upon the ever changing needs through various Ministries/Departments and such actions are coordinated and monitored by the National Executive Committee, as contemplated in the Disaster Man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o small and medium 18 businesses, and reducing taxes in many areas. It is submitted that these packages consist of lakhs of crores announced through the Pradhan Mantri Garib Kalyan Yojana (PMGKY) and the Prime Minister Atma Nirbhar Swastha Bharat Yojana (PMANSBY). It is submitted that to sustain the economic activities to deal with the economic impacts of disaster, the Central Government had to come out with several schemes either itself or through the directives issued by the Reserve Bank of India to the banks for the purpose of waiver of interest and/or restructuring of loan accounts. This has created a huge burden on the overall economy of the nation and exchequer of the Central Government, in particular. However, the Central Government is doing its best to maintain its financial equilibrium without compromising on the health, safety, food security and economic stability of the country. 6.9 It is further submitted that the Government of India has also decided to vaccinate the people of India as the most reliable preventive measure. To achieve this goal by the end of this year, the Government has taken all the steps to scale up the production, supplies, and import of vaccines. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se Control 95 74.10 78.0 4 Central Procurement Division 3,400 3389.70 99.7 5 Ministry of Railways 720 720.00 100.0 Total 15,000 13038.97 86.9 6.13 It is further submitted that with regard to the prayer of the petitioner to allow ex gratia compensation/assistance to the family members of the deceased persons who have died due to COVID-19, while providing their services in relief operations or when they were associated with preparedness activities to combat COVID-19 pandemic, the Central Government, by its pro-active and pre-emptive approach, had launched the Pradhan Mantri Garib Kalyan Package (PMGKP) as early as on 30.03.2020. Under the scheme, a comprehensive personal accident cover of ₹ 50 Lakh has been provided to 22.12 Lakh Health Care Providers throughout the country, including community health workers and private health workers who may have been in direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king allocation under NDRF and SDRF inter alia, has chosen, to deal with the issue of financing of Covid-19 pandemic. It is submitted that the recommendations of XVth Finance Commission s Report have been made in light of the experience gained and also the context of the unprecedented Covid-19. It is submitted that this report made recommendations for Disaster Risk Management, covering the period from 2021-2022 to 2025-2026, expanding the scope of Disaster Management beyond the traditional response and relief functions, to include preparedness, mitigation, recovery and reconstruction, as reflected in chapter 8 of the XVth Finance Commission s Report. It is submitted that this report of XVth Finance Commission along with the Explanatory Memorandum was laid before the Parliament, as mandated under Article 281 of the Constitution of India. It is submitted that in accordance with the recommendations of XVth Finance Commission and the domain subject matter experts, the Union of India devised the strategy to deal with, the extremely contagious, volatile and ever changing impact of the mutations of the virus COVID 19, in the best possible manner, utilizing all the financial, human and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Government, the Central Government, on 14th March, 2020 by way of a special one-time dispensation, decided to treat COVID-19 as a notified disaster for the purpose of limited assistance towards containment measures under SDRF on (i) Measures for quarantine for sample collection and screening (ii) Procurement of essential equipments/labs for response to COVID-19. Further, to deal with problems of migrant labourers, on 28th March, 2020, the Central Government allowed use of SDRF for setting up relief camps and to provide food, water, etc. to migrant workers and other stranded people. On 23th September, 2020, the Central Government further allowed use of SDRF by the States for oxygen generation for COVID-19 patients in States, to strengthen transport services for transporting oxygen, and setting up containment zones, COVID-19 care centres. 6.18 It is further submitted that, ex-gratia payment under SDRF/NDRF guidelines issued under section 46(2) of the Disaster Management Act, 2005 is available to persons who have died, in case of 12 notified disasters and other local natural disasters which are notified by the State Governments. However, COVID-19 Pandemic/Disaster has not bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... States are the major stakeholders and also beneficiaries of proposed insurance schemes, their recommendations and availability of loss data are the crucial factors to be considered before moving ahead. However, the insurance coverage being deliberated does not cover risk insurance from pandemics or epidemics like the COVID-19. 6.19.4 It is further submitted that, the Asian Development Bank (ADB) has also proposed a new ADB Technical Assistance (TA) concept for promoting disaster risk transfer, including insurance in India. ADB through its TA is looking forward to develop disaster risk financing solutions for Indian States. In this regard, a meeting was also held on 05.04.2021 between ADB and NDMA. Herein, during the course of the meeting, ADB proposed for a hybrid Insurance solution i.e., combination of Parametric Insurance and Indemnity insurance; and also proposed for a joint meeting between NDMA, Department of Financial Services (DFS), and MHA. 6.19.5 It is submitted that, NDMA has requested ADB to conduct the proposed meeting as per convenience of MHA/DFS and inform NDMA accordingly. However, the meeting scheduled on 12.04.2021, had to be postponed due to the second wave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us, the office of the Registrar General of India (ORGI) had issued directions/guidelines to the Chief Registrars of all States/UTs during April, 2020 to collect and certify the information on cause of death due to COVID- 19 as per two emergency codes created by World Health Organization (WHO) for COVID-19 in the 10th revision of International Statistical Classification (ICD-10) of Diseases and Related Health Problems. It is submitted that recently in May, 2021, ORGI has also issued guidelines regarding registration of death and recording the cause of death wherein it has been advised that the death of a person should be registered within the stipulated time of 21 days. 6.20.5 So far as the guidelines regarding death audit and death certification, it is submitted that the MoHFW vide its letter dated 09.10.2020 has released guidelines on distinction between Death Audit and Death Certification . It is submitted that Death Certification is required to be done for recording deaths in accordance with the regulations prescribed by the Registrar General of India. The primary goal of certification of cause of death (Death Certificate) is to identify and correctly classify all deaths ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State Governments to issue any official document stating cause of death, to the family members of the deceased who died due to Covid-19; and iv) to direct the respondents Union of India and others to provide social security and rehabilitation to the victims of Covid-19. 7.1 While considering the aforesaid submissions/reliefs sought, the scope of judicial review on the policy decisions having financial implications which might affect the economy of the country and which may also affect the other priorities and which may affect the Government s other schemes declared to achieve the object and purpose of enactment of DMA 2005 are required to be considered. 7.2 An identical question came to be considered by this Court in the recent decision in Writ Petition (C) No. 476 of 2020 (Small Scale Industrial Manufacturers Association (Regd.) v. Union of India and others), decided on 23.03.2021 (2021 (4) SCALE 415), and this Court had an occasion to consider in detail the scope of judicial review. While considering the other decisions of this Court on the limited scope of judicial review, in paragraphs 14 to 20, this Court has observed and held as under: 14. In catena of decisions a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to make pragmatic adjustments which may becalled for by particular circumstances. The court cannot strike down a policy decision taken by the State Government merely because it feels that another policy decision would have been fairer or wiser or more scientific or logical. The court can interfere only if the policy decision is patently arbitrary, discriminatory or mala fide. 14.4 In the case of BALCO Employees Union (Regd.) v. Union of India (2002) 2 SCC 333, this Court has observed that Wisdom and advisability of economic policies are ordinarily not amenable to judicial review unless it can be demonstrated that the policy is contrary to any statutory provision or the Constitution. In other words, it is not for the courts to consider relative merits of different economic policies and consider whether a wiser or better one can be evolved. It is further observed that in the case of a policy decision on economic matters, the courts should be very circumspect in conducting an enquiry or investigation and must be more reluctant to impugn the judgment of the experts who may have arrived at a conclusion unless the court is satisfied that there is illegality in the decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he court should not be called upon to or undertake governmental duties or functions. The courts cannot run the Government nor can the administration indulge in abuse or nonuse of power and get away with it. The essence of judicial review is a constitutional fundamental. The role of the higher judiciary under the Constitution casts on it a great obligation as the sentinel to defend the values of the Constitution and the rights of Indians. The courts must, therefore, act within their judicial permissible limitations to uphold the rule of law and harness their power in public interest. It is precisely for this reason that it has been consistently held by this Court that in matters of policy the court will not interfere. When there is a valid law requiring the Government to act in a particular manner the court ought not to, without striking down the law, give any direction which is not in accordance with law. In other words, the court itself is not above the law. 14.7 In Prag Ice Oil Mills v. Union of India, AIR 1978 SC 1296, this Court observed as under: We do not think that it is the function of the Court to set in judgment over such matters of economic policy as must neces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m or soundness of the policy, is the subject of judicial review. The scope of judicial review of the governmental policy is now well defined. The courts do not and cannot act as an appellate authority examining the correctness, stability and appropriateness of a policy, nor are the courts advisers to the executives on matters of policy which the executives are entitled to formulate. 19. Government has to decide its own priorities and relief to the different sectors. It cannot be disputed that pandemic affected the entire country and barring few of the sectors. However, at the same time, the Government is required to take various measures in different fields/sectors like public health, employment, providing food and shelter to the common people/migrants, transportation of migrants etc. and therefore, as such, the government has announced various financial packages/reliefs. Even the government also suffered due to lockdown, due to unprecedented covid19 pandemic and also even lost the revenue in the form of GST. Still, the Government seems to have come out with various reliefs/packages. Government has its own financial constraints. Therefore, as such, no writ of mandamus can be iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s provided to pay ₹ 4 lacs by way of ex gratia to the kin/family members of the persons who died due to disaster, to be paid from SDRF and NDRF. Section 12 of DMA 2005, which has been heavily relied upon, reads as under: 12. Guidelines for minimum standards of relief. -The National Authority shall recommend guidelines for the minimum standards of relief to be provided to persons affected by disaster, which shall include, - (i) the minimum requirements to be provided in the relief camps in relation to shelter, food, drinking water, medical cover and sanitation; (ii) the special provisions to be made for widows and orphans; (iii) ex gratia assistance on account of loss of life as also assistance on account of damage to houses and for restoration of means of livelihood; (iv) such other relief as may be necessary. 8.1 It is the case on behalf of the respective petitioners that as mandated by Section 12 of DMA 2005, the National Authority shall have to recommend guidelines for the minimum standards of relief to be provided to persons affected by disaster, which shall include ex gratia assistance on account of loss of life [Section 12(iii)]. 8.2 On the other h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Prime Minister. It also provides for constitution of State Disaster Management Authorities under the Chairmanship of the Chief Ministers and District Disaster Management Authorities under the Chairmanship of District Magistrates. It also provides for concerned Ministries or Departments to draw up department-wise plans in accordance with the national disaster management plan. It also provides for constitution of a National Disaster Response Force and setting up the National Institute of Disaster Management. It also further provides for the constitution of the National Fund for Disaster Response and the National Fund for Disaster Mitigation and similar funds at the State and District levels. The National Authority has been constituted under Section 3 of DMA 2005. Section 6 provides for power and functions of National Authority, which reads as under: 6. Powers and functions of National Authority. - (1) Subject to the provisions of this Act, the National Authority shall have the responsibility for laying down the policies, plans and guidelines for disaster management for ensuring timely and effective response to disaster. (2) Without prejudice to generality of the provisions c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 10 of DMA 2005 reads as under: 10. Powers and functions of National Executive Committee. - (1) The National Executive Committee shall assist the National Authority in the discharge of its functions and have the responsibility for implementing the policies and plans of the National Authority and ensure the compliance of directions issued by the Central Government for the purpose of disaster management in the country. (2) Without prejudice to the generality of the provisions contained in subsection (1), the National Executive Committee may- (a) act as the coordinating and monitoring body for disaster management; (b) prepare the National Plan to be approved by the National Authority; (c) coordinate and monitor the implementation of the National Policy; (d) lay down guidelines for preparing disaster management plans by different Ministries or Departments of the Government of India and the State Authorities; (e) provide necessary technical assistance to the State Governments and the State Authorities for preparing their disaster management plans in accordance with the guidelines laid down by the National Authority; (f) monitor the implementation of the N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minimum standards of relief. -The National Authority shall recommend guidelines for the minimum standards of relief to be provided to persons affected by disaster, which shall include, - (i) the minimum requirements to be provided in the relief camps in relation to shelter, food, drinking water, medical cover and sanitation; (ii) the special provisions to be made for widows and orphans; (iii) ex gratia assistance on account of loss of life as also assistance on account of damage to houses and for restoration of means of livelihood; (iv) such other relief as may be necessary. 9.5 Section 19 provides for similar guidelines for minimum standards of relief by the State Authority. As per Section 46, the Central Government has to constitute a fund to be called the National Disaster Response Fund (NDRF) for meeting any threatening disaster situation or disaster. As per sub-section 2 of Section 46, the NDRF shall be made available to the National Executive Committee to be applied towards meeting the expenses for emergency response, relief and rehabilitation in accordance with the guidelines laid down by the Central Government in consultation with the National Authority. Over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cluding ex gratia assistance on account of loss of life. 10.1 In Section 12 of DMA 2005, the word shall is used twice. The intent of the legislature by using the word shall twice is very clear and the same can be in tune with the Statement of Objects and Reasons for enactment of DMA 2005 and the functions and powers of the National Authority. One of the Objects and Purposes is mitigation . As per Section 6(1) and Sub-section 2(g) of Section 6, the National Authority shall have the responsibility for laying down the policies, plans and guidelines for disaster management and recommend provision of funds for the purpose of mitigation. Section 12 specifically provides that the National Authority shall recommend guidelines for the minimum standards of relief to be provided to persons affected by disaster, which shall include, (i) the minimum requirements to be provided in the relief camps in relation to shelter, food, drinking water, medical cover and sanitation; (ii) the special provisions to be made for widows and orphans; and (iii) ex gratia assistance on account of loss of life as also assistance on account of damage to houses and for restoration of means of livelihood. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d may involves a discretion coupled with an obligation or where it confers a positive benefit to a general class of subjects in a utility Act, or where the court advances a remedy and suppresses the mischief, or where giving the words directory significance would defeat the very object of the Act, the word may should be interpreted to convey a mandatory force. As a general rule, the word may is permissive and operative to confer discretion and especially so, where it is used in juxtaposition to the word shall , which ordinarily is imperative as it imposes a duty. Cases, however, are not wanting where the words may , shall and must are used interchangeably. In order to find out whether these words are being used in a directory or in a mandatory sense, the intent of the legislature should be looked into along with the pertinent circumstances. 10.4 Therefore, to construe the word shall as may and as directory/discretionary, the very object and purpose of the Act will be defeated. The word shall used twice in Section 12 significantly imposes a duty cast upon the National Authority to issue guidelines for the minimum standards of relief which shall include ex grati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndatory statutory duty cast upon the National Authority to recommend guidelines for the minimum standards of relief which shall include ex gratia assistance on account of loss of life, not recommending any Guidelines for ex gratia assistance on account of loss of life due to Covid-19 pandemic, while recommending other guidelines for the minimum standards of relief, it can be said that the National Authority has failed to perform its statutory duty cast under Section 12 and therefore a writ of mandamus is to be issued to the National Authority to recommend appropriate guidelines for ex gratia assistance on account of loss of life due to Covid-19 pandemic while recommending guidelines for the minimum standards of relief to be provided to persons affected by disaster/Covid-19 pandemic as mandatory under Section 12 of DMA 2005. 11. Now the next question which is posed for the consideration of this Court is, what further relief the petitioners are entitled to. Whether a writ of mandamus can be issued directing the Central Government/National Authority/State Governments to pay a particular amount by way of ex gratia assistance, more particularly ₹ 4 lacs, as prayed by the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 4 lacs. 12. As observed hereinabove, the Government has to decide its own priorities and reliefs to the different sectors/for different reliefs. The Government is required to take various measures in different fields/sectors, like public health, employment, providing food and shelter to the common people/migrants, transportation to migrants etc. The Government is also required to deal with the effect of the pandemic on the economy. As observed hereinabove, a huge amount is required to be spent from the NDRF/SDRF, even while providing minimum standards of relief. It cannot be disputed that ex gratia assistance would also have financial implications and which may affect the other minimum standards of relief to be provided to the persons affected by disaster. No State or country has unlimited resources. That is why it only announces the financial reliefs/packages to the extent it is possible. When the Government forms its policy, it is based on a number of circumstances, on facts, law including constraint based governmental resources. As observed by this Court in the case of Nandlal Jaiswal (supra), the Government, as laid down in Permian Basin Area Rate Cases, 20 L Ed (2d) 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Delhi paying ₹ 50,000/-. However, it is to be noted that the same is paid from the Chief Minister Relief Fund or other relief funds, but not from SDRF. To avoid any heart-burning and discriminatory treatment, it would be appropriate for the National Authority to recommend uniform guidelines while providing for the minimum standards of relief in the form of ex gratia assistance on account of loss of life, as mandated under Section 12 of the Act. However, at the same time, it will always be open for the concerned States to provide for ex gratia assistance on account of loss of life and other reliefs from their own relief funds (other than SDRF) as it would be a policy decision by the concerned States and they may provide such other relief/reliefs, looking to the availability of the fund. However, merely because some States might have been paying the ex gratia assistance on account of loss of life to the family members of the persons who have died due to Covid-19 pandemic, for the reasons stated hereinabove, no writ of mandamus can be issued directing the Central Government/State Governments to pay a particular sum/amount by way of ex gratia assistance as the utilization of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who died due to Covid-19 has/have any grievance that in the death certificate/official document the correct/exact cause of death is not mentioned, he/she must be provided with some remedy to approach the appropriate authority to get the death certificate/official document corrected. 14. Now so far as the prayer to issue an appropriate direction directing the respondents State Governments to fulfil their obligation to take care of the victims of the calamity and their family members is concerned, the prayer sought is too vague. Even otherwise, considering the counter affidavit filed on behalf of the Union of India it demonstrates the various reliefs declared by the Union Government. As such, no mandamus can be issued directing the respondents State Governments to declare a particular policy/relief/relief package in general and the same shall be within the domain of policy decision and would have financial implications also. 15. Now so far as one additional relief sought in Writ Petition (Civil) No. 539 of 2021 to issue appropriate direction directing the respondents Union of India and others to provide social security in the form of insurance is concerned, from the XVth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted under Section 12(iii) of DMA 2005 for the minimum standards of relief to be provided to the persons affected by disaster Covid 19 Pandemic, over and above the guidelines already recommended for the minimum standards of relief to be provided to persons affected by Covid-19. However, what reasonable amount to be offered towards ex gratia assistance is left to the wisdom of National Authority which may consider determining the amount taking into consideration the observations made hereinabove, such as, requirement/availability of the fund under the NDRF/SDRF for other reliefs and the priorities determined by the National Authority/Union Government and the fund required for other minimum standards of relief and fund required for prevention, preparedness, mitigation and recovery and other reliefs to carry out the obligation under DMA 2005. The aforesaid exercise and appropriate guidelines be recommended, as directed hereinabove, within a period of six weeks from today; 2) The Appropriate Authority is directed to issue simplified guidelines for issuance of Death Certificates/official document stating the exact cause of death, i.e., Death due to Covid-19 , to the family members ..... X X X X Extracts X X X X X X X X Extracts X X X X
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