Case filed in madras high court against 100℅ seat allowd in theater wp sr no advt going to mention cj court

IN THE HIGH COURT OF JUDICATURE AT MADRAS

(Special Original Jurisdiction)

 

W.P.No.                   of 2021

 

P.S.Prabu,

S/o.Late.Shri.P.S.Swaminathan,

Having Office at:

Office No.3, 6th Floor,

CROWN COURT,

No.128, Cathedral Road,

Gopalapuram,

Chennai – 600 086.

…Petitioner

-Vs-

 

  1. The State of Tamil Nadu,

Rep. by its Chief Secretary.,

Fort St.George,

Chennai – 600 009.

 

  1. The Secretary to Govt of Tamil Nadu,

Health and Family Welfare Dept.,

Secretariat,

Fort St.George,

Chennai – 600 009.

 

  1. The Secretary to Govt of Tamil Nadu,

Revenue and Disaster Management Dept.,

Secretariat,

Fort St.George,

Chennai – 600 009.

.…Respondents

AFFIDAVIT OF P.S.PRABU

I, P.S.Prabu, Son of Late.Shri.P.S.Swaminathan, aged about 33years, having office at Office No.3, 6th Floor, CROWN COURT, No.128, Cathedral Road, Gopalapuram, Chennai – 600 086, do hereby solemnly affirm and sincerely state as follows:

  1. I am the Petitioner herein and as such I am well acquainted with the facts and circumstances of the case.

 

  1. It is submitted that the Petitioner herein is filing this Public Interest Litigation on his own accord and at his own cost and is ready to bear all other cost that he might have to pay at a later stage. It is submitted that to the Petitioner’s knowledge that no Public Interest litigation arising on the same issue has been filed before this Hon’ble Court. It is submitted that the Petitioner is an Income Tax Assessee with annual income of Rs.30,00,000/- and his PAN No is COIPP1909M.

 

  1. It is submitted that the Petitioner herein has completed Bachelor in Law during the year 2010. It is submitted that the Petitioner is an Advocate practicing at the Hon’ble Madras High Court. It is submitted that the Petitioner is interested in the welfare of the public.

 

  1. It is submitted that on January 30, 2020, World Health Organization (WHO) declared the outbreak of Corona Virus Disease – COVID-19, a Public Health Emergency of International Concern (PHEIC) and subsequently on March 11, 2020, WHO declared COVID-19 as a Pandemic. It is submitted that the outbreak of COVID -19 pandemic has caused complete disruption and stoppage of not only the social interaction amongst all of us but has practically brought to halt all activities across the country. The pandemic COVID-19 has turned out to be the largest disruptor of economies, human lives and businesses, ever witnessed by humanity.

 

  1. It is submitted that both the State as well as the Central Government, w.e.f. middle of March 2020, have directed closure followed by a complete lockdown. It is submitted that considering the spread of the pandemic, the lockdown seemed to be a reasonable alleviation strategy available to the Government to get rid of and eradicate the life-threatening pandemic. It is submitted that both the Central and State Governments effected complete lockdown till the end of May, 2020. It is submitted that after the Central Government unveiled the first of a three-phase plan to lift lockdown restrictions in a graded manner, the State of Tamil Nadu based on the guidelines issued by the Central Government relaxed the restrictions imposed in a gradual manner.

 

  1. It is submitted that the 1st Respondent vide GO.Ms.No.613, Revenue and Disaster Management (DM-IV) Department, dated 31.10.2020, permitted Cinemas/Theaters/Multiplexes in the State of Tamil Nadu to open from 10.11.2020 with 50% of their seating capacity by following the Standard Operating Procedure. It is further submitted the State-wide lockdown in the State of Tamil Nadu was extended from time to time and lastly extended till 24:00 hrs of 31.01.2021 under the Disaster Management Act, 2005 vide GO.Ms.No.820, Revenue and Disaster Management (DM-IV) Department, dated 31.12.2020 with various relaxations and certain restrictions by the 1st

 

  1. It is submitted that the 1st Respondent vide GO.Ms.No.820, Revenue and Disaster Management (DM-IV) Department, dated 31.12.2020 has issued fresh guidelines and relaxations to be followed in the State of Tamil Nadu. It is submitted that the 1st Respondent has maintained several restrictions thereby preventing gathering of public in large and a few amongst such restrictions mentioned in the above said Government Order are extracted hereunder for better appreciation of facts:
  2. A large number of General Public would assemble in the Beaches in the event of ‘Kanum Pongal” (Uzahvar Thirunal), Public shall not be allowed in all beaches including Marina Beach on 16.01.2021 in order to prevent spread of COVID-19.

 

  1. The following activities shall be allowed in addition to the existing permitted activities throughout the State including the areas falling under the jurisdiction of Greater Chennai Police (Except in containment zones):
  2. Following the Standard Operating Procedures, all Social, Political, Entertainment, Sports, Cultural, Academic and Religious congregations is continued to be permitted in closed spaces from 01.01.2021 with a maximum of 50% of the hall capacity or with a ceiling of 200 persons. Further prior permission shall be obtained from the Commissioner of Police in respect of Chennai City and from the District Collector in respect of other districts.

 

  1. It is submitted that the 1st Respondent while issuing such relaxation has also issue guidelines that needs to be followed for effective control of the COVID-19. It is submitted that the guidelines issued by the 1st Respondent are extracted hereunder:

“ III.COVID appropriate behavior

  1. The District administration shall take all necessary measures to promote COVID-19 appropriate behaviour. Strict enforcement of wearing of face masks, hand hygiene and social distancing must be ensured.
  2. Wearing of face masks is an essential preventive measure. In order to enforce this core requirement, the District administration shall consider administrative actions, including imposition of appropriate fines, on persons not wearing face masks in public and work spaces.
  3. Observance of social distancing in crowded places, especially in markets, weekly bazaars and public transport, is also critical for containing the spread of the infection. The Standard Operating Procedures issued to regulate crowds in market places, which shall be strictly enforced by the District administration.
  4. Standard Operating Procedures for regulating travel in aircrafts, trains and metro rails are already in place, which shall be strictly enforced.

……..

…….

……

VII. Strict adherence to the prescribed Standard Operating Procedures(SOPs):

Standard Operating Procedures(SOPs) have been prescribed for various activities. These include movement of passenger trains; air travel; metro trains; schools; higher educational institutions; hotels and restaurants; shopping malls, multiplexes and entertainment parks; yoga centres and gymnasiums; assemblies and congregations. etc. The SOPs shall be strictly enforced by the district authorities concerned, who shall be responsible for their strict observance.”

VIII. Protection of vulnerable persons

Persons above 65 years of age, persons with co-morbidities, pregnant women, and children below the age of 10 years are advised to stay at home, except for essential and health purposes.

  1. Use of Aarogya Setu
  2. Aarogya Setu enables early identifi cation of potential risk of infection, and thus acts as a shield for individuals and the community.
  3. With a view to ensuring safety in offices and work places, employers on best eff ort basis should ensure that Aarogya Setu is installed by all employees having compatible mobile phones.
  4. Organisations and Business entities with 50 or more employees are encouraged to avail the Aarogya Setu OpenAPI Service (https://openapi.aarogyasetu.gov.in). OpenAPI feature will facilitate Organisations and employees to return to work in a COVID-19 risk free environment.
  5. District authorities may advise individuals to install the Aarogya Setu application on compatible mobile phones and regularly update their health status on the app. This will facilitate timely provision of medical attention to those individuals who are at risk.
  6. National Directives for COVID-19 Management
  7. Face coverings: Wearing of face cover is compulsory in public places; in workplaces; and during transport.
  8. Social distancing: Individuals must maintain a minimum distance of 6 feet in public places. Shops will ensure physical distancing among customers.
  9. Spitting in public places will be punishable with fine, as may be prescribed by the State, local authority in accordance with its laws, rules or regulations.

Additional Directives for work places

  1. Work from home (WfH): As far as possible, the practice of WfH should be followed.
  2. Staggering of work/ business hours will be followed in offices, work places, shops, markets and industrial & commercial establishments.
  3. Screening & hygiene: Provision for thermal scanning, hand wash or sanitizer will be made at all entry points and of handwash or sanitizer at exit points and common areas.
  4. Frequent sanitization of entire workplace, common facilities and all points which come into human contact e.g. door handles etc., will be ensured, including between shifts.
  5. Social distancing: All persons in charge of work places will ensure adequate distance between workers, adequate gaps between shifts, staggering the lunch breaks of staff , etc.

 

  1. It is submitted that the guidelines issued by the 1st Respondent vide GO.Ms.No.820, Revenue and Disaster Management (DM-IV) Department, dated 31.12.2020, which is presently in force, mandates that wearing of face cover in public places, work places and during transport. It is further submitted that the guidelines also mandates individual to maintain distance of 6feet in public places. It is further submitted that the 1st Respondent has mandated all work places to ensure adequate distance between workers, adequate gaps between shifts, staggering the lunch breaks of staff etc.

 

  1. It is submitted that these guidelines are issued based on the Standard Operating Procedure issued by the Ministry of Health and Family Welfare, Govt of India. It is submitted that the Central Government has issued separate Standard Operating Procedure to be followed across various sectors and one amongst such is the SOP on preventive measures to be followed in Entertainment Parks and similar places to contain spread of COVID-19. It is submitted that the Ministry of Health and Family Welfare, Govt of India, through the Standard Operating Procedure has mandated several measures that are to be observed in entertainment parks and few amongst them are extracted hereunder:
  2. That physical distancing of atleast 6 feet shall be followed.
  3. Theaters shall only allow 50% of seating capacity duly ensuring physical distancing norm.
  4. Seating arrangement to ensure a distance of 6 feet between chairs, benches, etc.
  5. For ensuring physical distancing inside and outside the premises, specific markings on the floor may be made. Similarly, physical distancing shall also be maintained in office areas and common utility areas.
  6. There will be queue management inside and outside the premises. Enough personnel will be deployed to monitor the queue and physical distancing.
  7. The tickets sold shall be commensurate with the floor area per person that is required for fulfilling the physical distancing norms. Accordingly, entry to the Entertainment Park shall be regulated.
  8. As far as feasible, natural ventilation must be ensured and use of small enclosed spaces must be discouraged.
  9. Circulation of outdoor air needs to be increased, as much as possible, by opening windows and doors, using fans, or other methods.
  10. In food courts and restaurants, not more than 50% of seating capacity to be permitted.
  11. The seating arrangement should ensure adequate physical distancing.
  12. Food court staff / waiters should wear mask and hand gloves and take other required precautionary measures.
  13. Tables to be sanitized each time customer leaves.

 

  1. It is submitted that the 1st Respondent without appreciating the Standard Operating Procedure mandated by the Ministry of Health and Family Welfare, Govt of India, has issued the impugned Notification in GO.Ms.No.001, Revenue and Disaster Management (DM-IV) Department, dated 04.01.2021 thereby relaxing the seating capacity restrictions in Cinemas/Theaters/Multiplexes from existing 50% to 100%. It is submitted that the impugned Notification is contrary to the COVID-19 restriction guidelines issued by the 1st Respondent in vide GO.Ms.No.820, Revenue and Disaster Management (DM-IV) Department, dated 31.12.2020 and the Standard Operating Procedure issued by the Ministry of Health and Family Welfare, Govt of India.

 

  1. It is submitted that the relaxation in the seating capacity restrictions in Cinemas/Theaters/Multiplexes from existing 50% to 100% issued by the 1st Respondent does not have rational nexus with the guidelines and standard operating procedure imposed by the State and Central Government in the containment of COVID-19 under Closed Spaces.

 

  1. It is submitted that the 1st Respondent vide GO.Ms.No.820, Revenue and Disaster Management (DM-IV) Department, dated 31.12.2020 has banned public gathering on 16.01.2021 on the event of “Kanum Pongal” in all Beaches including Marina Beach, which is open place to sky, in order to curb the spread of COVID-19. It is submitted that the 1st Respondent has issued directives vide GO.Ms.No.820, Revenue and Disaster Management (DM-IV) Department, dated 31.12.2020, to maintain social distance of 6Feet in public places and has directed to ensure adequate distances between workers in workplaces.

 

  1. It is submitted that the above said minimum social distancing of 6Feet which has been prescribed in Standard Operating Procedure of both the State and Central Government has been overlook while issuing the impugned Notification in GO.Ms.No.001, Revenue and Disaster Management (DM-IV) Department, dated 04.01.2021. It is submitted that the seating arrangements in the Cinemas/Theaters/Multiplexes are close and near at hand and the relaxation issued by the 1st Respondent in seating capacity from 50% to 100% would cause people to sit next to each other in a Closed environment where Air Conditioning is used.

 

  1. It is submitted that such relaxations are contrary to the social distancing norms and any relaxations in the seating arrangement in Closed Spaces would increase the risk of transmission of COVID-19. It is submitted that the World Health Organization has published certain findings on the spread/transmission of COVID -19 and the same are extracted hereunder for better appreciation of facts:
  2. COVID-19 is caused by the SARS-CoV-2 virus, which spreads between people, mainly when an infected person is in close contact with another person.
  3. The virus can spread from an infected person’s mouth or nose in small liquid particles when they cough, sneeze, speak, sing or breathe heavily. These liquid particles are different sizes, ranging from larger ‘respiratory droplets’ to smaller ‘aerosols’.
  4. Other people can catch COVID-19 when the virus gets into their mouth, nose or eyes, which is more likely to happen when people are in direct or close contact (less than 1 metre apart) with an infected person.
  5. Whether or not they have symptoms, infected people can be contagious and the virus can spread from them to other people.
  6. Laboratory data suggests that infected people appear to be most infectious just before they develop symptoms (namely 2 days before they develop symptoms) and early in their illness. People who develop severe disease can be infectious for longer.
  7. Any situation in which people are in close proximity to one another for long periods of time increases the risk of transmission. Indoor locations, especially settings where there is poor or no ventilation, are riskier than outdoor locations.
  8. Transmission can occur more easily in the “Three C’s”:
  • Crowded places with many people nearby;
  • Close-contact settings, especially where people have conversations very near each other;
  • Confined and enclosed spaces with poor ventilation.
  • The risk of COVID-19 spreading is higher in places where these “3Cs” overlap.
  1. It is submitted that the COVID-19 cannot be totally eradicated until safe and effective vaccine is found. It is submitted that presently there is no vaccination drive in our Country and in such scenario it is always advisable to ensure that safety guidelines/restrictions are maintained and put in place to effectively disrupt the environment or medium through which Corona Virus spread. It is submitted that several Countries across the Globe which opened their borders and withdrew the social distancing norm prematurely are presently facing second wave of severe infection. It is submitted that it can be inferred from the second wave of infections that the lifting of curbs of social gathering has led to the spread of Corona Virus at a faster pace.

 

  1. It is submitted that it can also be inferred from the publication of the World Health Organization and the Standard Operating Procedure issued by the State and Central Governments that wearing of masks and maintaining of social distance of 6meters can curb the spread of the Virus. It is submitted that it is the duty of the 1st Respondent to effectively impose restrictions that are essential for the curb of spread of Corona Virus. However, the 1st Respondent without appreciating the same, has issued the impugned Notification in Ms.No.001, Revenue and Disaster Management (DM-IV) Department, dated 04.01.2021 thereby relaxing the seating capacity restrictions in Cinemas/Theaters/Multiplexes from existing 50% to 100% and there raising the risk of spread of Corona Virus i.e., COVID-19 at a faster pace. It is submitted that the upcoming festival period and the relaxations issued would cause huge public gathering in Cinemas/Theaters/Multiplexes and the risks of spread of COVID-19 would be very high in Closed spaces were seating are arranged next to each other i.e., within 0.5meters and also were air conditioning is used.

 

  1. It is further submitted that Doctors, Nurses, Hospital Staffs, Sanitary Workers and several other Public Workers who all continue to play a vital role in treating and containing the spread of COVID-19 have already been exposed to severe work related strain due to the high level of COVID infections and easing of social distancing norms would cause excessive demand on the strength, resources, or abilities of the Hospital and the Government.

 

  1. In the above circumstances, having no other remedy open except to invoke the extra ordinary jurisdiction of this Hon’ble Court under Art.226 of the Constitution of India to issue a Writ of Certiorari or any other appropriate Writ or direction in the nature of Writ to call for the entire records of the 1st respondent and quash the Ms.No.001, Revenue and Disaster Management (DM-IV) Department, dated 04.01.2021 as the same is illegal and unsustainable in law and contrary to the Standard Operating Procedure issued by the State and Central Government and the GO.Ms.No.820, Revenue and Disaster Management (DM-IV) Department, dated 31.12.2020, issued by the 1st Respondent and for the following among other:

GROUNDS

  • The impugned notification in Ms.No.001, Revenue and Disaster Management (DM-IV) Department, dated 04.01.2021, is liable to be quashed, as the same is contrary to the Standard Operating Guidelines issued by the Ministry of Health and Family Welfare, Govt of India, in SOP on preventive measures to be followed in Entertainment Parks and similar places to contain spread of COVID-19 .

 

  • The impugned notification in Ms.No.001, Revenue and Disaster Management (DM-IV) Department, dated 04.01.2021, is liable to be quashed, as the same is contrary to the directions issued by the 1st Respondent in GO.Ms.No.820, Revenue and Disaster Management (DM-IV) Department, dated 31.12.2020 .

 

  • The impugned notification in Ms.No.001, Revenue and Disaster Management (DM-IV) Department, dated 04.01.2021, if allowed to be sustained would cause serious threat to the fundamental right of life of the citizens which has been enshrined under Article 21 of the Constitution of India.

 

  • The impugned Notification GO.Ms.No.001, Revenue and Disaster Management (DM-IV) Department, dated 04.01.2021, issued by the 1st Respondent is contrary to directive principles of state policy enshrined under the Constitution of India.

 

  • The relaxation of seating capacity in Cinemas/Theaters/Multiplexes from existing 50% to 100% vide the impugned Notification is contrary to the directions issued for maintenance of social distancing norms of minimum of 6meters.
  • The relaxation of seating capacity in Cinemas/Theaters/Multiplexes from existing 50% to 100% would cause spread of COVID-19 at a faster pace thereby causing serious threat to the life of the people of Tamil Nadu.

 

  • The relaxation in the seating capacity restrictions in Cinemas/Theaters/Multiplexes from existing 50% to 100% issued by the 1st Respondent does not have rational nexus with the guidelines and standard operating procedure imposed by the State and Central Government in the containment of COVID-19 under Closed Spaces.

 

  • The relaxation of social distancing norm of minimum of 6meters would cause serious threat to the effective control of the spread of Corona Virus thereby affecting the health and life of the public at large.

In the above circumstances, the Petitioner humbly prays that this Hon’ble Court may be pleased to:

  1. dispense with the original notification issued by the 1st Respondent in GO.Ms.No.001, Revenue and Disaster Management (DM-IV) Department, dated 04.01.2021 and all records and documents in connection thereto.

 

  1. grant an order of stay of impugned Notification in GO.Ms.No.001, Revenue and Disaster Management (DM-IV) Department, dated 04.01.2021, issued by the 1st Respondent, wherein the life and health of the public at large would be put to serious prejudice and hardship due to the relaxation of social distancing norm of minimum of 6meters and the seating capacity restrictions in Cinemas/Theaters/Multiplexes from existing 50% to 100% pending disposal of the present writ petition;

 

  1. issue a Writ of CERTIORARIFIED MANDAMUS or any other appropriate Writ or direction in the nature of Writ to call for the entire records of the 1st respondent and quash the Ms.No.001, Revenue and Disaster Management (DM-IV) Department, dated 04.01.2021, issued by the 1st Respondent as the same is illegal, unsustainable in law & threat to the life of public at large and the same is contrary to the Standard Operating Procedure issued by the Central Government and the restriction imposed by 1st Respondent in GO.Ms.No.820, Revenue and Disaster Management (DM-IV) Department, dated 31.12.2020, and consequently direct the 1st Respondent to maintain the norms of social distancing in Public Places and thus render Justice.

 

 

Solemnly affirmed at Chennai        ( )                            BEFORE ME ::

On this the 07th day of January, ()

2021 and signed his name          ( )

In my presence.                 ( )                                        ADVOCATE  ::  CHENNAI

 

 

 

 

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