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 WP(C) No.1367 of 2023 3 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 WP(C) No.1367 of 2023 4 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 WP(C) No.1367 of 2023 5 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 WP(C) No.1367 of 2023 6 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 WP(C) No.1367 of 2023 7 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 WP(C) No.1367 of 2023 8 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 WP(C) No.1367 of 2023 9 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 WP(C) No.1367 of 2023 10 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 WP(C) No.1367 of 2023 11 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 WP(C) No.1367 of 2023 12 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 WP(C) No.1367 of 2023 13 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 WP(C) No.1367 of 2023 14 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 WP(C) No.1367 of 2023 15 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 WP(C) No.1367 of 2023 16 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 WP(C) No.1367 of 2023 17 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 WP(C) No.1367 of 2023 18 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 WP(C) No.1367 of 2023 19 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 WP(C) No.1367 of 2023 20 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 WP(C) No.1367 of 2023 21 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 WP(C) No.1367 of 2023 22 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 WP(C) No.1367 of 2023 23 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 WP(C) No.1367 of 2023 24 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 WP(C) No.1367 of 2023 25 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 WP(C) No.1367 of 2023 26 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 WP(C) No.1367 of 2023 27 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 WP(C) No.1367 of 2023 28 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
WP(C) No.1367 of 2023 29
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.