May 5, 2020, 6:10 AM

Five prominent Nagpur lawyers – Shreerang Bhandarkar, DBA President Kamal Satuja, ex-DBA President Prakash Jaiswal, ex-HCBA Secretary Kishor Lambat and ex-DBA Secretary Manoj Sable filed a writ petition against Nagpur Municipal Corporation (NMC) Commissioner Tukaram Mundhe’s lockdown 3.0 rules in Nagpur. The case is likely to be listed on Tuesday. Noted advocate from the city Shyam Dewani would be representing the petitioners.

Details of the petitioner and respondent

Petitioners in the said petition have claimed Mundhe’s order ‘illegal, arbitrary and illogical,’ questioning the very legality of lockdown extension order for two more weeks issued for Nagpur by Nagpur Municipal (NMC) Commissioner Tukaram Mundhe. Five prominent lawyers of the city have moved to the Nagpur Bench of Bombay High Court dubbing the order as ‘illegal, illogical, unreasonable and arbitrary.’ The petition has been filed by leader lawyer Adv Shreerang Bhandarkar, DBA President Kamal Satuja, ex-DBA President Prakash Jaiswal, ex-HCBA Secretary Kishor Lambat and ex-DBA Secretary Manoj Sable and is likely to be listed on Tuesday. Noted advocate Shyam Dewani will be representing the petitioner lawyers.

As per the lawyers, charging the Mundhe with usurping the powers of District Collector and passing order contrary to guidelines issued by Centre and State Governments, the petition has also slammed the very logic adopted to extend the lockdown period till May 17. It is said to be infringement of right to life and right to livelihood, the petitioner-lawyers stated.

Also read: Offices in Nagpur to remain completely shut till May 17: NMC Commissioner Tukaram Mundhe

The petitioner lawyers while supporting strong measures in containment zones sought implementation of guidelines permitting starting of shops and establishments in non-containment zones.  

It is claimed in the petition that Mundhe had passed the order under Epidemic Diseases Act, which is against the relaxation orders and guidelines issued by Ministry of Home Affairs and similar guidelines issued by State Chief Secretary.

According to petitioners, the powers to put even more stringent conditions in discriminatory for Nagpur as in other such similarly situated cities’ non-essential shops are permitted to be re-opened.

The petitioners stated that State Government had specifically excluded Mumbai Metropolitan Region, Pune Metropolitan Region and Malegaon Municipal Corporation area from lockdown relaxation and permitted partial resumption of normal life by permitting to start certain shops and services.

The private offices, shops and establishments like garments, electric, cooler, books, stationary, hardware and other goods were permitted to be opened by Centre and State, but the NMC ignored the intention behind these notifications to provide livelihood to millions and thus infringed their fundamental rights, the petitioners claimed while slamming the notification.  

In case of liquor shops, the power to permit opening of such shops solely rests with the District Collector and the State Government. The State Excise Department had permitted the opening of liquor and wine shops across State including Mumbai, Pune and Thane by maintaining social distance and crowd restrictions.

But NMC barred the opening of liquor shops absolutely without any legal powers, the petitioner claimed while urging the High Court to quash the impugned notification dated May 3. 

The petitioners have challenged the notification dated May 3, 2020 issued by the Mundhe on the grounds that it is abuse of power, without any authority under law and is illegal, arbitrary and perverse. It was contended that the State Government by applying its mind has particularly excluded the areas under the limits of Municipal Corporation of Mumbai, Pimpri-Chinchwad and Malegaon and not of Nagpur even though it was declared as Red Zone.

They further claimed, “Still Mundhe, who is only the implementing authority, without there being any justification, reason and contrary to the decision of the Government of India as well as Government of Maharashtra has made applicable the said exclusion clause for Nagpur also, which deserves to be quashed and set aside by this Hon’ble Court. Mundhe under the guise of Maharashtra COVID-19 regulation, declared himself as the enforcing authority in the pandemic situation subsisting in Nagpur without applying his mind and issued a impugned notification dated 03.05.2020, which is clear breach of the Government of India notification dated 01.05.2020 and Government of Maharashtra notification dated 02.05.2020 and also the Act of 2005.”

It is also claimed by the petitioners that as far as standalone shops and shops in residential colonies are concerned, guidelines issued by Respondent Nos. 1 and 2 are absolutely clear, however, exceeding his jurisdiction, Mundhe has even not permitted opening of such shops.

It was further claimed that during last several days, there was not a single case of COVID-19 positive patient being found outside the containment zone of Nagpur city and therefore there was no reason for jumping to the conclusion that there is a need for taking action of closing down all the non-essential shops in the areas beyond containment zones, contrary to the guidelines issued by both the Governments based on the decision of the experts in the field, who have appreciated all the relevant material for laying down the criteria for permitting opening of shops for non-essential goods, offices etc.,” said petitioners.

It is further claimed that Mundhe failed to consider the practical difficulties, which are being faced by residents of Nagpur and its worst effect on economy, employment as well as other apathies faced by citizens of the city. Therefore, it ought not to have expanded the scope of restrictions as provided in the notifications issued by the Central as well as State Governments.

It was also claimed that Mundhe also failed to appreciate that the citizens of Nagpur have co-operated in the best possible manner with the administration for containing the pandemic of COVID-19 for a large period of more than 40 days and considering the difficulties, which were being faced by them.

Petitioners said, “Despite effects of such complete closure on the financial condition of the citizens, it was expected to draw a proper balance rather than enforcing complete closure of all non-essential activities for a further period of two weeks. The said action of the authority thus is even contrary to the policies of governing and therefore the same cannot withstand the scrutiny of law. The impugned notification issued by Mundhe is therefore liable to be quashed and set aside in its entirety or at least to the extent it is in variation of the notification issued by the Central and State Government.

Copies of the petitions have been provided to Central Government, State Government, Municipal Commissioner as well as the Collector.

Read NMC Commisioner's revised lockdown 3.0 rules for Nagpur below: https://www.scribd.com/document/459837045/Tukaram-Mundhe-s-revised-lockdown-3-0-rules-for-Nagpur
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