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Judgment
Soumen Sen, C.J.
The State is the appellant. The State is aggrieved by the direction contained in the impugned judgment, whereby the State was directed to compensate the losses suffered by the occupiers of the various stalls/shops in the Jawaharlal Nehru International Stadium to the extent of 75%, as computed by the Committee constituted by the Court.
The learned State Attorney appearing for the appellant/State has submitted that insofar as the direction regarding payment of compensation to the extent of 75% by the State is concerned, no reasoning can be found in the impugned judgment, inasmuch as the liability, if any, has to be entirely borne by the Greater Cochin Development Authority (the GCDA) and the absence of any clause in the lease agreement, under which various occupiers and stall holders were allowed to carry on their business, cannot be held against the State while determining compensation.
The learned Standing Counsel for the GCDA has submitted that compensation in terms of the order of the learned Single Judge was deposited and might have been disbursed in the meantime. The writ petitioners are not represented.
We find manifold reasons for not disturbing the direction passed by the learned Single Judge, although an anxiety has been expressed by the learned State Attorney that it might create a dangerous precedent.
The involvement of the State is borne out from the communications, at least from one of the documents dated 13 September 2017, wherein the Secretary to the Government of Kerala, in his communication to the Secretary, GCDA, Kochi, has communicated his decision that in the opinion of the Government, the operation of shops/commercial establishments with power connections and storage of hazardous materials, and use of inflammable or otherwise would pose a serious risk to the security of the international event (FIF U-17) at Kochi. On such perception, the GCDA was directed to comply with the standards required for an International Football event of the scale of FIFA U-17, attracting an audience of about 50,000 persons. In obedience to the said direction, the GCDA decided to shut down/closure of all shops/commercial establishments located at the Jawaharlal Nehru Stadium, Kochi, from 25 September, 2017 till the tournament was over at Kochi.
The learned State Attorney has argued that even prior thereto, GCDA had taken a decision to close down the shops. However, the ultimate decision to close down the shops rests on the communication dated 13 September 2017 and in any event, it was a joint decision, as could be evident from the correspondence between the Secretary to the Government and the Secretary, GCDA, Kochi.
This is the essential fact for understanding the nature of challenge with regard to the quantum of compensation directed by the learned Single Judge to be deposited by the State for payment of compensation to the occupiers of the stalls/shops.
Although it is now sought to be argued that the decision was that of the GCDA, the argument advanced before the learned Single Judge would clearly show that the decision of the GCDA was supported by the State by referring to the Disaster Management Act, 2005 which forms the basis of one of the decisions of the District Collector. The District Collector cannot act merely on the instructions of the GCDA. It is the decision of the State and the learned Single Judge has clearly observed that the impugned order of the District Collector namely, Ext.P5 suffers from a total non-application of mind and a complete misconception of the Disaster Management Act, 2005.
The learned Single Judge has also arrived at a clear finding, following the decisions of the Hon'ble Supreme Court in P.P.Enterprises v. Union of India (AIR 1982 SC 1016) and Municipal Corporation of the City of Ahmedabad and Others v. Jan Mohammed Usmanbhai and Another ((1986) 3 SCC 20, which were incidentally relied upon by the learned Advocate General, that the restriction on the basis of a valid statute is absent in the present case, nor do the provisions of the lease agreement sanction an abrupt closure. The blanket restriction on the commercial activities carried on by the petitioners in leased premises, despite their holding permits, infringes Article 19(1)(g) of the Constitution of India, as has been held by the Hon'ble Supreme Court and followed in several decisions of different High Courts, which uphold the fundamental rights of citizens to carry on their business.
The larger public interest being singularly absent, we are of the view that the direction of the learned Single Judge, in the context of the background facts elaborately narrated in the judgment, does not call for any interference.
In view thereof, the appeal is dismissed.