[Breaking] Illegal mask fine collection can be returned to poor in PIL (Feroze Mithiborwala PIL (ST) 6218 of 2022) and rich can appoint their lawyer to recover their fine amount. Or High court can give declaration that imposing of fine was illegal and on the basis of this declaration people can make claim for return of fines.

• Illegal mask fine collection can be returned to poor in PIL (Feroze Mithiborwala PIL (ST) 6218 of 2022) and rich can appoint their lawyer to recover their fine amount. Or High court can give declaration that imposing of fine was illegal and on the basis of this declaration people can make claim for return of fines.
• Chief Justice tells the petitioner.
• The prayer of withdrawing vaccine and mask mandate is taken care by the State by order dated 31^st March, 2022.
• The other prayers regarding prosecution of Municipal Commissioner Iqbal Chahal, Chief Minister Uddhav Thackeray and others will be considered on the next date.
• The state and other respondents are directed to file a detailed reply on each points. 
• There are two petitions filed by Sohan Agate and Feroze Mithiborwala. Both are members of AIM.
• There are 22 Respondents in the case.

The prayers in the petition of Feroze Mithiborwala PIL (ST) 6218 of 2022 reads thus;

“(a) To hold that the impugned order dated 1^st March, 2022 and any other order/s, circulars, SoP’s & notifications, which promote discrimination between vaccinated and unvaccinated and prohibits any citizen to avail any public/private services, benefit, scheme, employment on the basis of vaccination status are illegal and violative of fundamental rights of the citizens mandated under Article 14, 19 & 21 of the Constitution of India and quash the same;

 

(b)     To hold that as per the law laid down by Hon'ble Supreme Court in the case of Common Cause Vs. UOI (2018) 5 SCC 1 is that no one can be compelled to get any treatment or medicine and the State Government’s own  policy decision is that the vaccination is not compulsory and no one can be compelled to take vaccine against their wishes and therefore vaccination cannot be made mandatory by adopting indirect methods of putting conditions of vaccination certificate for availing certain facilities, benefits and services as had been ruled in the case of Noida Entrepreneurs Association Vs. Noida (2011) 6 SCC 508.

 

(c)      To hold that, as per data available on record, reply given by ICMR and as per Central & State Government’s policy decision, it is clear that, there is no proof that vaccinated people are protected and cannot spread infection and there is no difference between vaccinated and unvaccinated people in this regard and therefore the restriction put on unvaccinated people is not based on any legally admissible evidence or intelligent differentia and therefore such orders are arbitrary and violative of Article 14, 19 & 21 of the Constitution of India;

         

(d)     To hold that the act of Respondent No.3 Shri. Aseem Gupta, Shri. Udhav Thackrey, Chief Minister Maharashtra State, Respondent No. 19 and authorities in not considering the status of people with previous infection or having developed antibodies who are immune and safe, despite the directions from WHO, various scientists such as experts from AIIMS and various peer reviewed scholarly research paper, and also the other evidence of sterling nature proves that the respondents are causing loss of thousands of crores to the public exchequer and giving wrongful profit of thousands of crores to the vaccine companies and therefore they are liable to be prosecuted under section 409,52, 120(B), 34 etc. of Indian Penal Code and CBI needs to be directed to investigate the case by treating this petition as an FIR as done in the case of Noida Entrepreneurs Association Vs. Noida (2011) 6 SCC 508.  

 

(e) Grant interim ad-interim relief of staying the unlawful directions in the impugned order dated 01.03.2022 till the final decision in the petition.

 

(f) Direct the Respondent State to give the list of task force members, their qualifications and reason for not taking the advice of domain experts i.e. epidemiologist and vaccine experts like Dr. Sanjeev Rai AIIMS New Delhi Respondent No.10,  Dr. Arvind Khushwaha, AllMS Nagpur  Respondent No.11 and others.

 

(g) To hold that in view of order 2nd March, 2022 (Exhibit – “I”) passed by this Hon’ble Court it is clear that, the fundamental constitutional rights of the petitioner are violated by the state by acting on unlawful mandates passed by Respondent No. 20 Shri. Sitaram Kunte and the petitioner has suffered for many months and grant an interim compensation of Rs. 5 Crores to be immediately paid by the state and later be recovered from the guilty officials including Respondent No.20 Sitaram Kunte who by their act of commission and omission are responsible for such violation, as has been laid down in the case of Veena Sippy Vs. Mr. Narayan Dumbre & Ors. 2012 SCC OnLine Bom 339.

 

(h) Direct the State and Central Government authorities to produce the exact text of the details of instructions including death causing and other side effects given by them to the various doctors which is to be told to the person to whom vaccines are being given for getting informed consent from the beneficiaries as has been given in the covid vaccination guidelines issued by the Central Government and submitted in their affidavit dated 13.01.2022.

(i) Direct State and Central Government authorities to follow the law of informed consent in letter and spirit and as per law laid down in the cases of Montgomery [2015] UKSC 11, Master Haridaan Kumar Vs. Union of India 2019 SCC OnLine Del 11929 , Registrar General, High Court of Meghalaya Vs. State of Meghalaya 2021 SCC OnLine Megh 130.

(j) To hold that as per the provisions of Disaster Management Act, 2005 or Epidemic Disease Act, 1897 there is no provision of paying any fine by any citizen and therefore any fine recovered by any authorities or police officers in the state on basis of unlawful orders dated 27.11.2021 passed by Respondent No. 20 Shri. Sitaram Kunte and order dated 18.02.2021, 19.02.2021 by Shri. Iqbal Chahal (Respondent No. 21), Shri Suresh Kakani (Respondent No. 22) is an offence of extortion and misappropriation of public property and machinery and therefore all the accused officials are liable to be prosecuted u/s 52, 109, 384, 385, 420, 409, 511, 341, 342, 120(B), 32 etc., of IPC and since one of the accused Shri. Uddhav Thackeray (Respondent No. 19) is Chief Minister of the State therefore investigation is liable to be handed over to C.B.I. in view of law laid down in the case of Jaishri Patil Vs. State of Maharashtra 2021 SCC OnLine Bom 516.

(k) Direct state authorities to return the fine to all citizen collected by them on the basis of unlawful mandates and to recover the amount of 50% commission given to clean - up marshals by Respondent No. 21 Shri. Iqbal Chahal & Respondent No. 22 Suresh Kakani.

(l) Call for explanation from State authorities and more particularly from Respondent No. 20 Iqbal Chahal and Respondent No. 21 Shri. Suresh Kakani for not registering F.I.R. against clean up marshals when their extortion is exposed by the leading English Daily “Mid-Day” and hold that their act of commission & omission is an offence u/s 218, 201, 202, 204 etc., of IPC as has been ruled the case of State of Odisha Vs.  Pratima Mohanty 2021 SCC Online 1222

(m)    To pass such other orders and further orders as may be deemed necessary on the facts and in the circumstances of the case.”