Kerala High Court
Radhakrishnan vs State Of Kerala on 21 September, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
ST
THURSDAY, THE 21 DAY OF SEPTEMBER 2023 / 30TH BHADRA, 1945
WP(C) NO. 1367 OF 2023
PETITIONER:
RADHAKRISHNAN,AGED 74 YEARS
S/O.KUNJIRAMA KURUP, KUNIYIL HOUSE,
HOUSE NO.26, RAGHAVAN COLONY,
ASHOK NAGAR, CHENNAI - 600083
BY ADVS.RENJITH THAMPAN (SR.)(K/276/1990)
V.HARISH
P.JERIL BABU
RAJAN VISHNURAJ
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY PRINCIPAL SECRETARY,
DEPARTMENT OF REVENUE AND DISASTER MANAGEMENT,
SECRETARIAT, TRIVANDRUM - 695001
2 STATE DISASTER MANAGEMENT AUTHORITY
REPRESENTED BY ITS MEMBER SECRETARY,
VIKAS BHAVAN, P.O, NANTHANCODU,
TRIVANDRUM - 695033
3 DISTRICT DISASTER MANAGEMENT AUTHORITY WAYANAD
COLLECTORATE, KALPATTA, WAYANAD - 676020
4 THE DISTRICT COLLECTOR & CHAIRMAN
DISTRICT DISASTER MANAGEMENT AUTHORITY WAYANAD,
COLLECTORATE, KALPATTA, WAYANAD - 673122
5 THE SECRETARY, VYTHIRI GRAMA PANCHAYAT,
VYTHIRI P.O, WAYANAD - 676576
R1 TO R4 BY SR.GP SRI.ASHWIN SETHUMADHAVAN
R5 BY ADV.MANOJ RAMASWAMY Ramaswamy
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.09.2023,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) No.1367 of 2023 2
VIJU ABRAHAM, J.
.................................................................
W.P.(C) No.1367 of 2023
.................................................................
Dated this the 21st day of September, 2023
JUDGMENT
The above writ petition is filed challenging Exts.P9 and P15.
2. Brief facts necessary for the disposal of the writ petition
are as follows: Petitioner is in ownership and possession of 3.72 acres
of land comprised in re-sy. Nos.220/5 and 216/8 in Kunnathidavaka
Village in Vythiri Grama Panchayat as is evident from Ext.P1 land tax
receipt. He intended to start a tourist resort in the aforementioned
property and the necessary application was submitted as early as on
26.03.2015 before the 5th respondent, the Secretary of the local
authority. The 5th respondent has informed the petitioner as per Ext.P2
that an additional certificate from the Village Officer stating that the
said property is not included in the exempted category under the
Kerala Land Reforms Act, 1963 was also to be produced and
necessary certificate in this regard was obtained by the petitioner from
the Village Officer as is evident from Ext.P3 which is produced before
the 5th respondent. Thereafter the 5th respondent forwarded the
application to the Town Planner, Wayanad for obtaining the plot
approval. Petitioner was informed by the 5th respondent as per Ext.P4
that there are certain defects in the application and thereafter the
petitioner rectified all the defects and resubmitted the application as is
evident from Ext.P5. Even after a delay of almost two years, no
decision was taken by the 5th respondent on the petitioner's building
permit application. Petitioner submits that he has obtained Ext.P7
consent to establish, issued by the Kerala State Pollution Control
Board. Thereafter by Ext.P8 the building permit application was
rejected holding that since the proposed building construction falls
within Table 1 Group E category in the order dated 21.08.2018 issued
by the Disaster Management Authority and the property is situated
only 146 metres away from the landslide hazard susceptible zone.
Petitioner has produced Ext.P9, dated 21.08.2019, issued by the 4th
respondent wherein certain restrictions were imposed in the matter of
building construction in Wayanad district. In Ext.P9 it is found that
building constructions of a certain nature alone in Wayanad district are
causing and triggering landslides and the area falls within 500 metres
radial distance from all boundary points of the landslide-prone area as
identified in the Landslide Zonation Map prepared by the 2 nd
respondent in respect of Wayanad district. Petitioner submits that the
said decision was taken without any rational or logic or reason and by
Ext.P9 order, prohibition was issued in respect of certain building
construction in lands falling within 500 metres of the periphery of the
identified landslide hazard susceptible zones as per the approved
maps of the 2nd respondent. It is the contention of the petitioner that
based on the study conducted by the National Centre for Earth
Science and Studies (NCESS), the 2 nd respondent has identified the
landslide-prone areas in various districts in Kerala and in the digital
map prepared by the 2nd respondent landslide prone areas are shown
as High Hazard Landslide Prone Area which is marked in red colour in
the maps and some lands are shown as orange in colour which is
moderately susceptible to landslides and all other lands outside red
zone and orange zone are shown as green in the said maps, which is
low hazard area or safe area. But when identification of actual
landslide susceptible area is done by the 2 nd respondent through a
statutory process and which is part of the District Disaster
Management Plan, the 3rd respondent or the 4th respondent cannot
expand the scope of such landslide-prone areas to any land falling
outside the approved Landslide Zonation Map through an executive
order in the nature of Ext.P9. It is the contention of the petitioner that
through Ext.P9 order, the 4th respondent has expanded the scope of
the landslide-prone area into all lands falling within 500 meters of its
periphery in the territorial jurisdiction of Wayanad District. Through
Ext.P9 order, the 4th respondent has issued a prohibition on
Secretaries of all Panchayats and Municipalities in Wayanad District
from issuing any building permit in such lands in Wayanad District,
except for the buildings coming under Group A, B, C and D included in
Table 1 of the said order. It has also restrained the Secretaries from
issuing building permits for any building more than 200 sq. m. It is also
ordered that any building coming under Group B, C and D will be
permitted based on merits after rigorous scrutiny by the Core
committee constituted under reference 2 cited. Clause (ii) in
paragraph 16(A) of Ext.P9 order specifically prohibited the
construction of any building that falls under group E in landslide-prone
areas. There is absolutely no reason stated in Ext.P9 order as to why
'Group E' buildings alone are prohibited in landslide prone areas and
why no scientific distinction is drawn in between the impact of a
building construction falls in Group A, B, C & D vis-a-vis a building
falls in Group E. It is stated that Table 1 in Ext.P9 order is stated to be
taken from Kerala Panchayat Building Rules, 2019 and Kerala
Municipality Building Rules, 2019. Kerala Panchayat Building Rules,
2019 provides the categorization of various buildings into groups and
lodging houses, tourist homes, dormitories, hotels and hostels are
included in Category A2. However, in the order, the 4 th respondent
had made it clear that such buildings will not be permitted in this area,
even if they fall in Group A. The 4th respondent is relying on the
classification based on Kerala Panchayat Building Rules, 2019, but at
the same time, do not follow it in certain classes of buildings.
Multifamily dwellings, apartment buildings, flats, professional offices or
spaces for professionals not exceeding 50 sq. m. floor area and used
as part of principal residential occupancy alone are included in Group
A as per Ext.P9 order. However, all types of buildings for educational
purposes, even including institutions of informal education or research
are included in Group B, without any upper limit. Constructions of
religious nature are also permitted in Ext.P9 order without any
reasonable classification for such distinction.
3. It is submitted that as per the maps prepared by the 2 nd
respondent the property of the petitioner falls mostly outside the High
Hazard Landslide Prone Area which is marked as 'red' in the said
map. Petitioner relying on Ext.P10 which is the relevant portion of the
Kerala State Disaster Management Plan would submit that even as
per the said plan there is absolutely no restriction for the building
construction even in High Hazard Landslide Prone Areas. Even
though the 3rd respondent has got powers to prepare the District
Disaster Management Plan, it shall be in tune with the State plan
prepared by the 2nd respondent. It is also contended that the 3rd
respondent has prepared Ext.P11 District Disaster Management Plan
which is in tune with Ext.P10 and disaster risk reduction measures are
explained in the said plan. It is the submission of the petitioner that
without any further scientific study from Ext.P11, the 3rd respondent
has expanded the scope of landslide susceptible areas to lands falling
outside the purview of such areas through an executive order which is
illegal. It is further submitted that the 3 rd respondent has prepared a
disaster management plan during the year 2021 which is produced as
Ext.P11(a) in which also the land of the petitioner is not identified as
landslide prone area. So the direction contained in Ext.P9 which is
quite contrary to Exts.P10, P11 and P11(a) is highly arbitrary, unjust
and unfair. It is submitted that land falls within the 500 meter radial
distance of the identified landslide-susceptible area may fall in the
Green Zones which are totally safe for construction activity. The
identification of landslide susceptible areas is mainly by considering
their slope and if the slope is negligible and top soil is strong enough
to hold constructions, there is absolutely no reason to regulate any of
such lands under the provisions Disaster Management Act. If the
property of the petitioner is having any threat of landslide for its
scientific reason, the 2nd respondent would have included the property
into the Landslide Susceptible Zonation Map as 'red zone'. Admittedly,
the petitioner's property is 146 metres away from the Landslide
Hazard Zone. No portion of the proposed building construction falls
within the High Hazard Landslide Area. But due to the unreasonable
inclusion of the entire land falling within 500 meters of the radial
distance from the High Hazard Landslide Area through Ext.P9 order,
the 4th respondent has imposed a total prohibition of any construction
included in category E in the property of the petitioner outside the
High Hazard Zone. Thereupon, the petitioner submitted Ext.P12
representation before the 3rd respondent which was rejected as per
Ext.P13. Thereafter, Ext.P14 detailed representation was preferred
before the 2nd respondent, upon which no further action has been
taken till date. A subsequent representation submitted before the 3rd
respondent was also rejected by the 4th respondent as per Ext.P15.
4. Petitioner submits that the impugned Ext.P9 order is
passed by the 4th respondent, Chairman of the Disaster Management
Authority without any expert study being conducted and without any
material on record to justify the restriction of the use of land of the
petitioner, which is in fact situated in a green zone area as per the
zoning regulation of Kerala State Disaster Management Authority.
Petitioner would further submit that Ext.P9 is a decision taken by the
4th respondent and not by the 3 rd respondent and therefore is invalid.
Petitioner submits that Section 25 of the Disaster Management Act,
2005 (hereinafter referred to as the "Act of 2005") deals with the
constitution of a District Disaster Management Authority for every
district and the District Collector or District Magistrate shall be the
chairperson of the District Authority. Section 30 of the Act of 2005
deals with the powers and functions of the District Authority which
shall act as the district planning, coordinating and implementing body
for disaster management and take all measures for the purposes of
disaster management in the district in accordance with the guidelines
laid down by the National Authority and the State Authority. Section
30(2) of the Act of 2005 also empowers the District Authority to
prepare a disaster management plan including a district response plan
for the district. The Authority also has the power to monitor the district
management plans prepared by the Departments of the Government
at the district level. Section 31 of the Act of 2005 deals with a district
plan which is a plan for disaster management for every district of the
State which shall be prepared by the District Authority as provided
under Section 25 and the said plan shall include among other things
areas in the district vulnerable to different forms of disasters as also
the measures to be taken for prevention and mitigation of disaster by
the Departments of Government at the district level and local
authorities in the district. Section 26 of the Act of 2005 deals with the
powers of the Chairperson of the District Authority and Section 26(2)
mandates that the Chairperson of the District Authority shall have the
power to exercise all or any of the powers of the District Authority but
the exercise of such powers shall be subject to ex post facto
ratification of the District Authority.
5. On the basis of the aforementioned provisions it is the
contention of the learned senior counsel appearing for the petitioner
that Ext.P9 is a decision taken by the 4 th respondent and not by the 3rd
respondent District Disaster Management Authority and that Section
26 only empowers the 4th respondent to exercise the powers of the
District Authority only in case of emergency and further that the
exercise of such powers shall be subject to ex post facto ratification by
the District Authority. On the strength of Section 26 of the Act of 2005
it is the contention of the learned senior counsel appearing for the
petitioner that there was no emergency situation available so as to
enable the 4th respondent to invoke the powers of the District Authority
by issuing Ext.P9 and further that Ext.P9 is not seen ratified by the
District Authority. Therefore in view of the same, it is the contention of
the learned senior counsel that the 4th respondent lacks jurisdiction to
issue Ext.P9 and further that the same has not been ratified by the 3 rd
respondent, the same cannot be treated to be valid in law. It is the
further contention of the learned senior counsel that the 3rd respondent
or the 4th respondent has no power as per the provisions of the Act of
2005 to expand the scope of landslide susceptible zone and include
any land falling within 500 metres radial of landslide susceptible zone
identified by the 2nd respondent as marked in the map prepared by the
said respondent. There has been no scientific expert study conducted
and Ext.P11 order has been issued without any materials on record to
justify the contention and since no scientific study was made before
issuing Ext.P9, it cannot stand the test of rationality or reasonableness
and in support of the said contention the learned senior counsel
appearing for the petitioner relies on the decision in Kasturi Lal
Lakshmi Reddy, M/s. v. State of J. and K., 1980 KHC 732 which
held that every action of the Government cannot be arbitrary and the
action must be in conformity with some standard or norm which is not
arbitrary, irrational or irrelevant and that every activity of the
Government has a public element in it and it must, therefore, be
informed with reasons and guided by public interest. Petitioner also
relies on the judgment in Abdul Gafoor v. Mannarkad Municipality,
Municipal Office, Mannarkad, 2022 KHC 2322, in which the court
while dealing with a decision of the Municipal Council, held that it is
not open to the local authority to take a different view in the absence
of other expert materials and deny licence overruling the findings of
the expert authorities. The learned senior counsel would further
contend that the building construction of any nature whether it is being
used for religious purposes, personal purposes or tourism purposes in
a particular land causes the same environmental impact upon such
land irrespective of the purpose for which the building is used for.
Ext.P9 order permits the construction of various types of buildings in
lands falling within 500 metre radius of the high hazard zone but
imposed a total prohibition of the construction of buildings for tourism
purposes is irrational, illogical and unfair and without any scientific
basis. Petitioner submits that the insistence of prohibition of
construction within 500 metres radius from a landslide susceptible
zone is introduced only in Wayanad district and in the neighbouring
districts of Kozhikode and Kannur no such restrictions have been
imposed and the said restriction being an unreasonable restriction and
the same is in violation of Article 300A of the Constitution of India and
Ext.P9 classifies equal person as unequally and therefore violative of
Article 14 of the Constitution of India also.
6. A detailed counter affidavit has been filed by the 4 th
respondent District Collector. It is submitted that the Wayanad District
lies in the north-eastern part of Kerala with an altitude ranging from
700 MSL to 2100 MSL. It is a hilly district at the tip of the Deccan
Plateau and is a part of the Western Ghats. The geography of
Wayanad is largely dominated by the presence of hillocks, valleys and
forests. The District witnessed two major floods and landslides in the
year 2018 and 2019 consecutively. During the month of August 2018,
the District was hit by flood and landslide disasters of very high
magnitude. The disaster took 11 lives and resulted in an estimated
damage of Rs.2251.12 crores. The disaster repeated during the
month of August 2019 at Puthumala and Muttil, which claimed 14 lives
and five persons are still missing. All these lives were lost because of
landslides, due to the very high intensity of rainfall. A total number of
10 major landslides occurred on 8 th and 9th August 2019 at different
locations in the District. During the year 2018, a total number of 278
landslides and landslides occurred in the District. All these statistics
indicate the vulnerability of the District to landslide disasters. The
ecologically fragile nature of many vulnerable areas in the District
poses grave threat to the life and property of people living in the area,
especially during monsoon. In the above background, a meeting of the
District Disaster Management Authority was convened on 19.08.2019.
In the said meeting, the matter was discussed in detail and it was
found that it is absolutely necessary to impose certain restrictions on
the land use and to regulate and prohibit constructions, regulate land
development activities and functioning of quarries in Landslide Hazard
Prone Areas and other areas in the District for preventing disasters in
future, based on the Landslide Zonation Map prepared by the NCESS
and approved by the Kerala Disaster Management Authority. It is
submitted that accordingly Ext.P9 and Ext.R4(a) order dated
07.11.2019 were issued by the Chairman, District Disaster
Management Authority, Wayanad under Sections 30 and 32 of the Act
of 2005. The same can be seen from Paragraph 3 of Ext.P9, as well.
As per the above orders, certain restrictions were imposed in the area
(Landslide Prone Area) marked as High Hazard Zone and all the land
coming within 500 meters distance from all the boundary points of the
said area, in the Landslide Zonation Map. The building permit
application submitted by the petitioner for the construction of a
commercial building in the land comprised in re-survey Nos.220/5 and
216/8 of Kunnathidavaka Village in Vythiri Taluk, was rejected by the
5th respondent Secretary, Vythiri Grama Panchayath, on the ground
that the land falls within Landslide Prone Area as is evident from
Ext.P9 and Ext.R4(a). It is submitted that paragraph 3.21.1 of Ext.P10
State Disaster Management Plan stipulates that developmental
activities in the High Hazard Zones as marked in the District wise
landslide hazard susceptibility map shall strictly be regulated and
restricted. Section 30(2)(iii) of the Act of 2005, empowers the District
Authorities to ensure that the areas in the district vulnerable to
disasters are identified and measures for the prevention of disaster
and the mitigation of its effects are undertaken by the departments of
the Government at the District level as well as by the local authorities.
As such, it is submitted that Exts.P9 and P13 and the other orders
passed in that regard are well within the powers of the 3 rd respondent
Authority. It is also pertinent to note that the Act of 2005 empowers
the authority to take measures to prevent the occurrence of any
disaster and to mitigate its effects does not mandate scientific studies
to support any such measures. It is further submitted that Ext.P9 has
been passed after duly evaluating the prevailing situation.
7. The contention of the petitioner that the 4th respondent
has no authority to pass Ext.P9 order and it is only the 3 rd respondent
who is authorised as per Section 30 of the Act of 2005 is also not
correct. The learned Government Pleader has produced along with a
memo dated 21.08.2023, the minutes of the meeting of the Disaster
Management Authority, Wayanad held on 19.08.2019 which took
various decisions including the decision which has been formally
notified in Ext.P9. A perusal of Ext.P9 would refer to the minutes of
the said meeting of the District Disaster Management Authority dated
19.08.2019 which is produced by the learned Government Pleader
along with a memo. A perusal of the said minutes of the 3 rd
respondent dated 19.08.2019 would reveal that the District Disaster
Management Authority entrusted the 4th respondent who is the District
Collector and Chairman of the District Disaster Management Authority
to issue formal orders under the Act of 2005 to bring the resolutions in
the said decision dated 19.08.2019 into force and it is the contention
of the learned Government Pleader that based on the same that the
decision evidenced by Ext.P9 was in fact taken by the 3 rd respondent
and the District Collector and Chairman who is the 4 th respondent was
authorised to issue formal orders so as to bring the resolutions taken
on 19.08.2019 into force at once. It is as per the said direction the 4 th
respondent has issued Ext.P9. Therefore the contention of the
petitioner that Ext.P9 order is by the 4 th respondent and not by the 3rd
respondent is not correct. It is the further case of the 4 th respondent
that Ext.P10 which is the relevant pages of the Kerala State Disaster
Management Plan, 2016 does not limit restrictions or regulations as to
solely be within a high hazard zone. Even though there were no such
restrictions the 3rd respondent District Disaster Management Authority,
Wayanad has issued Ext.R4(b) order dated 30.06.2015 regulating the
maximum height and number of floors of the buildings constructed in
the district. The said order was the subject matter of challenge before
this Court in W.P.(C)24873 of 2015 and this Court upheld the powers
of the 3rd respondent to issue proceedings in the nature of Ext.P9 as
per Ext.R4(c) judgment dated 03.11.2015. On the strength of
Ext.R4(c) it is the submission of the learned Government Pleader that
the power and competency of the 3rd respondent to issue orders under
the Act of 2005 was upheld. Therefore it is well within the powers of
the 3rd respondent to issue directions to the 4th respondent to issue
formal orders containing its decision in the nature of Ext.P9.
Regarding the contention of unreasonable classification between
buildings that could be constructed and which are prohibited, it is the
contention of the learned Government Pleader that Exts.P9 and R4(a)
are proactive steps taken in good faith to eliminate/mitigate the
chances of being vulnerable to any disasters. It is submitted that the
4th respondent by Ext.P9 has issued directions to the Secretaries of all
Grama Panchayats and Municipalities that "No constructions coming
under the Group E mentioned in the Table 1 above shall be permitted
at landslide prone henceforth". It may be noted that the category E
group buildings, as per Ext.P9, are neither normal residential buildings
nor educational, hospital, religious, community or small industrial
buildings but commercial buildings, in which there will be regular
people movement as guests in the seasons. Unlike a residential
house, it is difficult to evacuate and regulate the crowd in such places
during an emergency and disasters. Moreover, the construction will be
presumably larger in size. All the other category buildings such as
normal residential houses, educational buildings, community &
religious buildings, hospitals and small industrial units are permitted
subject to certain conditions. It is pertinent to note that the distance
fixation of 500 metres from any point of the High Hazard Zones is
fixed on the basis of assessments and findings arrived at on the basis
of ground realities. It has been noticed that in many instances, areas
around 500 meters from the hazard zones were gravely affected
during the landslides. It was on the basis of such understanding that
the above-mentioned distance was fixed as per Ext.P9. The intention
behind such fixation is to mitigate the effects of landslides, which is
the bounden duty of the 3rd respondent. It is submitted that the action
is not against any developmental needs of the Society but to enhance
the disaster resilient development, which only will ultimately withstand.
It is further submitted that the District Disaster Management Plan of
Wayanad was reviewed and revised in the year 2021 and Ext.P9 and
R4(a) are also forming part of the aforementioned plan as Annexure-
18d and therefore the contention of the petitioner that the prohibition
of building construction is not even identified as a disaster risk
reduction in the 2021 plan is baseless and untenable. It is submitted
that Ext.P9 is based on the Landslide Zonation Map prepared by the
NCESS and approved by the Kerala Disaster Management Authority.
The map prepared by the NCESS is purely based on studies and
calculations. Undeniably, the areas marked as High Hazard zone falls
under the category of landslide-prone areas. As such, no separate
land susceptibility map is required to implement the above-said order.
The District Disaster Management Authority studied the map along
with the details of landslide occurrences in 2018 and 2019. During the
year 2018, a total number of 278 landslides and landslides were
reported to have occurred in the District. As mentioned above, it is
evident that many of the landslides or landslides occurred outside of
the high hazard zones and it was found necessary to restrict
construction or commercial activities at least within a radius of 500
metres from the high hazard zones. It is submitted that the topography
of Wayanad District is not comparable with other Districts. The
elevation of Wayanad District is 700 to 2100 metres from sea level
and it has about 40 different types of soil. The land forms part of
Western Ghats and Deccan Plateau, where the weather pattern varies
from one location to another. The 3" respondent had considered all
the aspects, the general details about Wayanad and had unanimously
agreed to regulate the construction in specified areas. Ext.P9 is a
general order applicable to all the land falling under the Landslide
Prone Areas, as defined in the order. It is also submitted by the
learned Government pleader that as per Ext.P9, normal residential
houses, educational buildings, community and religious buildings.
hospitals and small industrial units are only permitted subject to
certain conditions since the above category of building is essential for
the survival of a community. The E Group buildings are purely
commercial and not at all essential for the local community. It is
submitted that the said categorization is reasonable and fair and as
such, legally valid. On the basis of the above-said contentions 4 th
respondent has sought for dismissal of the writ petition.
8. A detailed reply affidavit has been filed by the petitioner
wherein it is submitted that the District Disaster Management Authority
did not consider the relevant facts and scientific reports before a
decision was taken to impose the restrictions contained in Ext.P9 and
nowhere in the affidavit filed by the 4th respondent it is claimed that the
3rd respondent authorised the 4th respondent to issue an order
imposing the restrictions in Ext.P9 and that there is no claim by the 4 th
respondent that Ext.P9 has been ratified in the next meeting of 3rd
respondent. The orders now contained in Ext.P9 are in violation of the
State Disaster Management plan which are per se illegal. The
argument that Exts.P9 and R4(a) orders have been issued based on
the decision taken in the District Disaster Management Authority's
meeting held on 19.08.2019 is absolutely false. Petitioner relying on
the decisions in Asha Sharma v. Chandigarh Administration and
Others, (2011) 10 SCC 86 and in Pidilite Industries Limited,
Mumbai and another v. Vilas Nemichand Jain and another, 2016
KHC 2278 contended that transparency in the decision-making
process of the State is an essential part of the administrative law and
the principle of reasonableness and non-arbitrariness in
Governmental action is the core of the constitutional scheme and
structure. Petitioner further submits relying on the decision in
Swadeshi Cotton Mills v. Union of India, (1981) 1 SCC 664 that the
State action should be in conformity with some standard or norm
which is not arbitrary, irrational or irrelevant.
9. Heard the rival contentions of both sides.
10. The first contention raised by the petitioner is that the 4 th
respondent has no jurisdiction to issue Ext.P9. The said contention
has been raised relying on Sections 25, 26 and 30 of the Act of 2005.
The learned senior counsel contended that going by Section 30 which
deals with the powers and functions of the District Authority is the sole
authority to act as district planning, coordinating and implementing
body for district Disaster management and to take all steps for the
purposes of disaster management in the district in accordance with
the guidelines laid down by the National Authority and the State
Authority. Based on this the learned senior counsel further submits
that though some powers have been given to the 4 th respondent who
is the chairperson of the District Authority as per Section 26 to
exercise the powers of the District Authority in case of emergency and
that such exercise of powers shall be subject to ex post facto
ratification by the District Authority. Based on the same, twin
contentions have been raised by the learned senior counsel, i.e., there
is no emergency situation warranting invocation of power under
Section 26(2) by the 4th respondent and further that the same has not
been ratified by the District Authority. It could be seen that Ext.P9 is
not an independent order issued by the 4th respondent invoking the
power under Section 26(2) of the Act of 2005 as contended by the
learned senior counsel appearing for the petitioner. Ext.P9 order has
been issued pursuant to the decision taken in the meeting of the
District Disaster Management Authority, 3rd respondent herein, dated
19.08.2019 wherein various decisions were taken after evaluating the
present factual situation available in the Wayanad district as could be
revealed from paragraph 2 of the counter affidavit and a perusal of the
said minutes of the meeting dated 19.08.2019 produced along with a
memo dated 21.08.2023 fully evidenced the said fact. Further that in
the said minutes of the meeting held on 19.08.2019, the 3rd
respondent District Disaster Management Authority entrusted the 4th
respondent who is the Chairman and District Collector to issue formal
orders under the Act of 2005 to bring the resolutions taken in the
meeting held on 19.08.2019 into force. It is on the basis of the said
decision taken by the 4th respondent that Ext.P9 order has been
issued by the 4th respondent. In view of the same, the contention of
the petitioner that Ext.P9 has been issued by an incompetent authority
is only to be rejected.
11. Another contention taken by the petitioner is that Ext.P9
has been issued ignoring the relevant facts and taking into
consideration irrelevant facts and therefore issuance of Ext.P9 is
absolutely arbitrary and unjust. The said contention was taken by the
petitioner on the basis of the fact that admittedly the property of the
petitioner is situated in a green zone area as per the zoning regulation
of the Kerala State Disaster Management Authority. It is also further
contended that certain constructions are permitted in this restricted
area but restrictions are imposed regarding construction of buildings
like that of the petitioner is an unreasonable classification. It is
relevant to consider the stand of the 4th respondent in its counter
affidavit, the relevant portion of which read as follows:
"7. It is most humbly submitted that Exhibits - P9 and R4(a) are
proactive steps taken in good faith to eliminate/mitigate the
chances of being vulnerable to any disasters. It is submitted that
this respondent by Exhibit - P9 has issued directions to the
Secretaries of all Grama Panchayaths and Municipalities that
"No constructions coming under the Group E mentioned in the
Table 1 above shall be permitted at land slide prone
henceforth". It may be noted that the category E group
Buildings, as per Exhibit - P9, are neither normal residential
buildings nor educational, hospital. religious, community or small
industrial buildings but commercial buildings, in which there will
be regular people movement as guests in the seasons. Unlike a
residential house. It is difficult for evacuation and regulate the
crowd in such places during an emergency and disasters.
Moreover, the construction will be presumably larger in size. All
the other category buildings such as normal residential houses,
educational buildings, community & religious buildings, hospitals
and small industrial units are permitted subject to certain
conditions. It is pertinent to note that the distance fixation of 500
metres from any point of the High Hazard Zones is fixed on the
basis of assessments and findings arrived at on the basis of
ground realities. It has been noticed that in many instances,
areas around 500 meters from the hazard zones were gravely
affected during the landslides. It was on the basis of such
understanding; the above mentioned distance was fixed as per
Exhibit - P9. The intention behind such fixation is to mitigate the
effects of landslides, which is the bounden duty of the 3rd
respondent. It is submitted that the action is not against any
developmental needs of the Society but to enhance the disaster
resilient development, which only will ultimately withstand.
xxxx xxxxx xxxxx xxxxx
14. It is submitted that as per Exhibit - P9, normal residential
houses, educational buildings, community and religious
buildings, hospitals and small industrial units are only permitted
subject to certain conditions, since the above category of
buildings are essential for the survival of a community. The E
Group buildings are purely commercial and not at all essential
for the local community. It is submitted that the said
categorization is reasonable and fair and as such, legally valid."
In view of the above, I am of the opinion that there is valid reason for
respondent nos.3 and 4 to impose such restrictions and the
classification now made cannot in any way be held to be
unreasonable. The permission granted in Ext.P9 for normal residential
houses, educational buildings, community and religious buildings and
hospitals is subject to certain conditions since the above category of
buildings are essential for the survival of the community and whereas
E Group buildings are purely commercial and therefore the said
categorization is reasonable and fair. A perusal of the counter affidavit
filed by the 4th respondent would reveal that Ext.P9 has been
prepared based on studies. During 2018 alone a total number of 278
landslides and landslides were reported to have been occurred in the
Wayanad district and it is evident that many of such landslides and
landslides have occurred outside the high hazard zone and therefore
it was found necessary to restrict construction or commercial activity
within a radial distance of 500 metres of high hazard zone. A perusal
of paragraph 2 of the counter affidavit would reveal that the Wayanad
district witnessed two major floods and landslides in the year 2018
and 2019 consecutively and the geography of the Wayanad is largely
dominated by the presence of hillocks, valleys and forests. It is further
stated that during the month of August 2018, the district was hit by
flood and landslide disasters of very high magnitude. The disaster
took 11 lives and resulted in an estimated damage of Rs.2251.12
crores. The disaster repeated during the month of August 2019 at
Puthumala and Muttil, which claimed 14 lives and five persons are still
missing. All these lives were lost because of landslides, due to the
very high intensity of rainfall. A total number of 10 major landslides
occurred on 8th and 9th August 2019 at different locations in the District
and during the year 2018 a total number of 278 landslides and
landslides occurred in the District. All these statistics mentioned in the
counter affidavit would indicate the vulnerability of the district in
landslide disasters and that the ecologically fragile nature of many
vulnerable areas in the District poses a grave threat to the life and
property of people living in the area, especially during monsoon. It is
taking all these aspects into consideration that in the meeting held on
19.08.2019, the 3rd respondent decided to impose certain serious
restrictions so as to prevent and regulate any recurrence of landslides
and landslides in the Wayanad district. Therefore the contention of the
petitioner that Ext.P9 order has been issued without conducting a
proper study or proper appraisal of the fact situation appears to be not
correct. A perusal of Ext.P9 as well as the minutes of the meeting
held on 19.08.2019 produced along with the memo filed by the
learned Government Pleader dated 21.08.2023 would reveal that a
proper study has been conducted into the factual situation available in
the district and the said decision has been taken and implemented to
prevent disaster and mitigate its effects. It is also to be noted that
Ext.P9 forms part of the revised plan of District Disaster Management
Plan for Wayanad District and Ext.P9 has been appended to the said
plan as Annexure-18d. Therefore, the contention of the petitioner that
the decision evidenced by Ext.P9 is an independent decision of the 4 th
respondent and it does not form part of the district plan is also to be
rejected. It has come out on record that Ext.P9 decision was taken
pursuant to the minutes of the meeting of the District Disaster
Management Authority, 3rd respondent herein on 19.08.2019. Ext.P9
is an order issued pursuant to the direction issued in the said meeting
so as to implement the decisions taken therein. Therefore, Ext.P9
order is perfectly within the legal competence of respondents 3 and 4
which has been issued in the larger public interest. Therefore, the
contention of the learned Senior Counsel appearing for the petitioner
based on the judgments cited supra that there is unreasonable
classification, is only to be rejected.
12. The Act of 2005 specifies for constitution of the District
Disaster Management Authority, the powers of which are enumerated
in Section 30 of the said Act which specifically stated that the District
Authority shall act as the district planning, coordinating and
implementing body for disaster management and take all measures
for the purposes of disaster management in the district. Section 30(2)
(ii) empowers the District Authority to implement the National Policy,
State Policy, National Plan, State Plan and District Plan and Sub-
clause (iii) empowers the District Authority to ensure that the areas in
the district vulnerable of disasters are identified and measures for the
prevention of disasters and the mitigation of its effects are undertaken
by the departments of the Government at the district level as well as
by the local authorities. Sub-clause (v) also empowers the District
Authority to give directions to different authorities at the district level
and local authorities to take such other measures for the prevention
or mitigation of disasters as may be necessary. Sub-clause (vi)
empowers the District Authority to lay down guidelines for the
prevention of disaster management plans by the Department of the
Government at the districts level and local authorities in the districts.
Therefore it is without any doubt that the 3rd respondent has ample
power as provided under Section 30 of the Act of 2005 to take
necessary measures and to act as district planning, coordinating and
implementing body for disaster management within the district.
Therefore the order issued as per Ext.P9 which is pursuant to the
decision taken by the 3rd respondent in its meeting dated 19.08.2019
is perfectly in order. Moreover, the Disaster Management Act, 2005
empowers various authorities with various powers and duties for
effective management of the disasters and for matters connected
therewith and incidental thereto. The District Disaster Management
Authority is a specialised body constituted as per a statute having
empowered with various powers and duties and which is a specialised
agency which is best equipped regarding the land pattern of the
district and to take necessary decisions and implement the same so
as to avert any possible chance for a disaster.
In view of the same, I find no merit in the writ petition and the
writ petition is accordingly dismissed.
Sd/-
VIJU ABRAHAM
JUDGE
cks
APPENDIX OF WP(C) 1367/2023
PETITIONER EXHIBITS
Exhibit P1 A TRUE PHOTOCOPY OF THE LAND TAX
RECEIPT NO.KL12030804401/2022 PAID BY
THE PETITIONER ON 17.08.2022 FOR THE
ABOVE MENTIONED PROPERTY
Exhibit P2 A TRUE PHOTOCOPY OF THE COMMUNICATION
ISSUED BY THE 5TH RESPONDENT TO THE
PETITIONER VIDE LETTER NO.A1-
3301/2015 DATED 25.05.2015
Exhibit P3 A TRUE PHOTOCOPY OF THE CERTIFICATE
NO.1602/2015 DATED 03.09.2015 ISSUED
BY THE VILLAGE OFFICE, KUNNATHIDAVAKA
Exhibit P4 A TRUE PHOTOCOPY OF THE LETTER NO.A1-
3301/2017 DATED 27.04.2017 ISSUED BY
THE 5TH RESPONDENT TO THE PETITIONER
ALONG WITH THE LETTER OF THE TOWN
PLANNER, WAYANAD
Exhibit P5 A TRUE PHOTOCOPY OF THE LETTER
SUBMITTED BY THE PETITIONER ALONG
WITH THE RECEIPT ISSUED FROM THE 5TH
RESPONDENT DATED 03.11.2017
Exhibit P6 A TRUE COPY OF THE REQUEST LETTER
PREFERRED BY THE PETITIONER TO THE
5TH RESPONDENT DATED 22.11.2019 AND
ITS RECEIPT DATED 25.11.2019
Exhibit P7 A TRUE PHOTOCOPY OF THE CONSENT TO
ESTABLISH ISSUED BY THE KERALA STATE
POLLUTION CONTROL BOARD DATED
20.06.2019 ALONG WITH ITS APPROVED
SITE PLAN
Exhibit P8 A TRUE PHOTOCOPY OF THE LETTER NO.A1-
3301/2019 DATED 20.12.2019 ISSUED BY
THE 5TH RESPONDENT TO THE PETITIONER
Exhibit P9 A TRUE PHOTOCOPY OF THE PROCEEDINGS
DATED 21.08.2019 ISSUED BY THE 4TH
RESPONDENT
Exhibit P10 A TRUE PHOTOCOPY OF RELEVANT PAGES OF
THE KERALA STATE DISASTER MANAGEMENT
PLAN 2016 ISSUED BY THE 2ND
RESPONDENT
Exhibit P10(a) A TRUE PHOTOCOPY OF THE ORDER ISSUED
BY THE 1ST RESPONDENT
Exhibit P11 A TRUE PHOTOCOPY OF THE RELEVANT
PAGES OF THE DISTRICT DISASTER
MANAGEMENT PLAN PREPARED BY THE 3RD
RESPONDENT IN THE YEAR 2019
Exhibit P11(a) A TRUE PHOTOCOPY OF THE RELEVANT
PAGES OF THE WAYANAD DISTRICT
DISASTER MANAGEMENT PLAN 2021
Exhibit P12 A TRUE PHOTOCOPY OF THE REQUEST MADE
BY THE PETITIONER BEFORE THE 3RD
RESPONDENT DATED 27.11.2021
Exhibit P13 A TRUE PHOTOCOPY OF THE ORDER PASSED
BY THE 3RD RESPONDENT ON EXHIBIT P12
DATED 22.12.2021
Exhibit P14 A TRUE PHOTOCOPY OF THE
REPRESENTATION WAS PREFERRED BEFORE
THE 2ND RESPONDENT BY THE PETITIONER
DATED 30.09.2022
Exhibit P15 A TRUE PHOTOCOPY OF THE COMMUNICATION
NO. 1/159198/2022 DATED 11.11.2022
RESPONDENT EXHIBITS
EXHIBIT R4(a) TRUE COPY OF ORDER DATED 07.11.2019
ISSUED BY THE CHAIRMAN DDMA.
EXHIBIT R4(b) TRUE COPY OF PROCEEDINGS NO.
2014/21178/12/H3 DATED 30.06.2015
ISSUED BY THE 3RD RESPONDENT.
EXHIBIT R4(c) TRUE COPY OF JUDGMENT DATED
03.11.2015 PASSED BY THIS HONOURABLE
COURT IN WP(C) NO. 24873 OF 2015.
