Shri O.D. Thomas v. The Secretary, Moopainad Grama Panchayat, District Disaster Management Authority, Wayanad & Kerala State Disaster Management Authority

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN TUESDAY, THE 19[TH] DAY OF MARCH 2024 / 29TH PHALGUNA,** ## **1945** ## **WP(C) NO. 21737 OF 2023** ## **PETITIONER/S:** **SHRI. O.D.THOMAS AGED 55 YEARS S/O. DEVASSIA, OLIKKAL HOUSE, VIKAS NAGAR, KALPETTA (PO), WAYANAD DISTRICT, PIN - 673121** **BY ADVS. PHILIP J.VETTICKATTU SAJITHA GEORGE NEENU BERNATH** ## **RESPONDENTS:** - **1 THE SECRETARY, MOOPPAINAD GRAMA PANCHAYAT VADUVANCHAL P.O. WAYANAD DISTRICT, PIN – 673581** - **2 THE DISTRICT DISASTER MANAGEMENT AUTHORITY,WAYANAD REPRESENTED BY ITS CHAIRMAN, OFFICE OF THE CHAIRMAN & DISTRICT COLLECTOR ,WAYANAD, PIN – 673121** - **3 KERALA STATE DISASTER MANAGEMENT AUTHORITY(KSDMA) OBSERVATORY HILLS,VIKAS BHAVAN P.O THIRUVANANTHAPURAM – 695033 IS IMPLEADED AS ADDITIONAL 3RD RESPONDENT AS PER ORDER DATED 4.3.24 IN I.A. 1/2024 IN THE WP(C).** **BY ADVS. SRI. MATHEW KURIAKOSE - SC** **ADVOCATE GENERAL OFFICE KERALA** ``` WPC No.21737/2023 ``` ``` 2 ``` ## **OTHER PRESENT:** ## **SR.GP.SMT.K.AMMINIKUTTY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ``` WPC No.21737/2023 ``` ``` 3 ``` ## **JUDGMENT** The petitioner is a grantee of a quarrying lease with respect to an extent of 1.3307 hectares of land comprised in Re-Survey Nos. 234/1, 234/2 and 234/5, Block No.31 of Moopainad Village, Vythiri Taluk, Wayanad District. 2. Ext. P1 is the extract of the quarrying lease, Ext. P2 is the Environment Clearance issued by the State Environment Impact Assessment Authority, Ext. P3 is the Consent to operate issued by the Kerala State Pollution Control Board, Ext. P4 is the Explosive License issued by the competent authority and Ext. P5 is the license issued by the Secretary, Mooppainad Grama Panchayat. 3. While the petitioner was operating the quarry on the strength of the aforesaid permissions, consents and licenses, a notice was issued by the 2[nd] respondent, ``` WPC No.21737/2023 ``` ``` 4 ``` the District Disaster Management Authority (DDMA) against the operation of the quarry on the basis of certain complaints received from the local residents. The petitioner submitted Ext. P7 reply. The Chairperson, DDMA issued Ext. P8 proceedings directing the 1[st] respondent, the Secretary of the Panchayat to cancel the license issued to the petitioner for conducting the quarrying operation for the reason that the quarry is situated at a place where quarrying operations are banned by virtue of Ext. P10 order. Ext. P10 is an order issued by the DDMA in modification of Ext. P11 order. Ext. P11 order deals with restrictions on constructions, quarrying, mining and land developing activities at landslide prone areas and other areas of Wayanad District. Paragraph (16.F) of Ext. P10 reads as follows:- “Any reference to the term ‘Landslide Prone Area’ in this order shall include the area marked as “High Hazard Zone” in Landslide Zonation Map referred to in paragraph 6 above and all the land coming within 500 meter distance from all the boundary points of the said area.” ``` WPC No.21737/2023 ``` ``` 5 ``` 4. It is on the basis of Ext. P10 order that the DDMA had vide Ext. P8 order directed the Panchayat to cancel the license issued to the petitioner. Pursuant to Ext. P8, the 1[st] respondent has issued Ext. P9 order cancelling the license issued to the petitioner. 5. From Exts.P10 and P11, it is seen that the direction to cancel the license issued to the petitioner has been issued in exercise of the powers under Section 30 (2) (v) of the Disaster Management Act, 2005 (for short, the Act, 2005’). The petitioner has filed this writ petition impugning Exts.P8 and P9 orders. 6. By Ext. P10, the DDMA has clarified that a landslide prone area would include “all the land coming within 500 meter distance from all the boundary points of the said area”. According to the petitioner, the said modification issued by the DDMA does not have the approval of the State Disaster Management Authority under Section 31 (2) of the Act, 2005. ``` WPC No.21737/2023 ``` ``` 6 ``` 7. Ext. P10 order is issued under Section 30(2) of the Act, 2005 which empowers the DDMA to prepare district plans whereas Section 31(2) of the Act requires the State Authority to approve such plans prepared by the DDMA. The learned counsel for the petitioner relies on a decision of this Court in **Tony Thomas** _**v**_ **. Vythiri Grama Panchayat (2024 (1) KLT 337)** wherein the legality of Ext. P10 modification order was considered by this Court. Paragraphs 12 and 13 of the said judgment read as follows:- “12. However, as mentioned earlier, by Ext.P7 order dated 07.11.2019, DDMA clarified that landslide prone area will include “all lands coming within 500 metres distance from all the boundary points of the said area”. In this context, it is curious to note that though the 2nd respondent stated that the map was approved by the State Authority, the 3rd respondent-State Authority has denied approval for the extended definition of landslide prone area. Significantly, the 3rd respondent, in its affidavit, has stated that the said definition has not been approved by the Kerala State Disaster Management Authority. Though Section 30(2) ``` WPC No.21737/2023 ``` ``` 7 ``` of the DM Act confers power upon the District Authority to prepare District Plans, Section 31(2) of the DM Act requires that the State Authority must approve the plans prepared by the District Authority. As the definition given to the term 'landslide prone area' as widened by Ext.P7 has not been approved by the State Authority, under no circumstances can the landslide-prone area include a distance of 500 metres from the high-hazard zone. 13. In the decision in Radhakrishnan v. State of Kerala (2023 KLT Online 2158 =(W.P. (C) No.1367 of 2023), a learned Single Judge of this Court had approved Ext.P6. A reading of the said judgment reveals that though section 30(2) of the DM Act was referred to, Section 31(2) of the DM Act was not brought to the notice of the Court. Hence, the requirement of approval by the State Authority was not considered by the Court. Thus, the judgment in W.P.(c) No.1367 of 2023 is per incurium. The Member-Secretary of the 3[rd] respondent has filed an affidavit stating that approval has not been granted for the term landslide prone area as expanded by DDMA Wayanad and also that the interpretation given by the District Authority is not in consensus with the State Plan. Without the State Authority's approval, expanding the term landslide-prone area to include a distance of 500 metres from ``` WPC No.21737/2023 ``` ``` 8 ``` the high-hazard zone cannot be legally valid.” 7. Since the said judgment was rendered on 22.12.2023, this Court by order dated 4.3.2024, directed the learned Government Pleader to get instructions from the additional 3[rd] respondent, the State Authority as to whether the extended definition in Ext. P10 extracted above has the approval of the State Authority, subsequently. 8. In compliance with the directions issued by this Court, a statement has been filed by the additional 3[rd] respondent and relevant paragraph reads as follows:- “It is submitted that Section 31(2) of the Disaster Management Act, 2005 reads "The District Plan shall be prepared by the District Authority, after consultation with the local authorities and having regard to the National Plan and the State Plan, to be approved by the State Authority". The State Disaster Management Authority has approved a disaster management plan of the District vide GO(Rt) No.3104/2016/DMD dated 30.07.2016. There is no such interpretation of landslide prone area ``` WPC No.21737/2023 ``` ``` 9 ``` has been approved or endorsed by the Kerala State Disaster Management Authority other than those mentioned in the State Disaster Management Plan or District Disaster Management Plans. The Hazard Zones cannot be defined as buffer areas defined by an arbitrary distance such as 500m or 10m from a scientifically determined Hazard Zone. It is submitted that in conclusion, this respondent stand by the consistency and validity of their interpretations and planning methodologies as outlined in the relevant Disaster Management Act provisions and the established State and District Disaster Management Plans. The stand remains the same as in WP(C)No. 19452/2023 and WA No. 1915/2023”. It is also submitted by the learned Government Pleader that a Writ Appeal has been preferred against the judgment in **Tony Thomas** (supra). The learned counsel for the petitioner submits that there is no interim order passed in the said writ appeal. 9. In view of the statement filed by the State Authority as above, this Court is of the view that, the ``` WPC No.21737/2023 ``` **==> picture [15 x 9] intentionally omitted <==** dictum laid down by this Court in **Tony Thomas** (supra) can be followed. Therefore, Ext. P8 order of the Chairperson, DDMA directing the Panchayat to cancel the license of the petitioner on the basis of Ext. P10 clarification issued under Section 30(2) (v), which has no approval by the State Authority under Section 31(2) of Act, 2005 cannot be sustained. Accordingly, Ext. P8 is set aside. Consequently, Ext.P9 is also set aside. The writ petition is disposed of. Sd/- **MURALI PURUSHOTHAMAN JUDGE** al/-.22.03.2024. ``` WPC No.21737/2023 ``` ``` 11 ``` ## _`APPENDIX OF WP(C) 21737/2023`_ |_`PETITIONER EXHIBITS`_|| |---|---| |_`Exhibit P1`_|_`TRUE COPY OF THE RELEVANT PAGES OF THE`_| ||_`QUARRYING LEASE EXECUTED ON 11/7/2022`_| |_`Exhibit P2`_|_`TRUE COPY OF THE RELEVANT PAGES OF THE`_| ||_`ENVIRONMENT CLEARANCE ISSUED BY THE STATE`_| ||_`ENVIRONMENTAL IMPACT ASSESSMENT AUTHORITY,`_| ||_`KERALA BEARING NO.1291/EC2/2019/SEIAA DATED`_| ||_`18.08.2020`_| |_`Exhibit P3`_|_`TRUE COPY OF THE RELEVANT PAGES OF CONSENT TO`_| ||_`OPERATE ISSUED BY THE KERALA STATE POLLUTION`_| ||_`CONTROL BOARD BEARING NO. PCB/WND/ICO/`_| ||_`R20WAY755559/2020 DATED 17/02/2021`_| |_`Exhibit P4`_|_`TRUE COPY OF THE EXPLOSIVE LICENSE ISSUED BY`_| ||_`THE`_<br>_`COMPETENT`_<br>_`AUTHORITY`_<br>_`BEARING`_| ||_`NO.E/SC/KL/22/234(E11545) DATED 28/01/2021`_| |_`Exhibit P5`_|_`TRUE COPY OF THE LICENSE ISSUED BY THE`_| ||_`SECRETARY MOOPPAINAD GRAMA PANCHAYAT BEARING`_| ||_`NO.B3-1985/2021 DATED 12/05/2021`_| |_`Exhibit P6`_|_`TRUE COPY OF THE NOTICE BEARING NO.`_| ||_`DCWYD/3423/2021-DM3 DATED 13/12/2022`_| |_`Exhibit P7`_|_`TRUE COPY OF THE EXPLANATION SUBMITTED BY THE`_| ||_`PETITIONER BEFORE THE CHAIRPERSON & DISTRICT`_| ||_`COLLECTOR, DISASTER MANAGEMENT AUTHORITY`_| ||_`DATED 28/12/2022`_| |_`Exhibit P8`_|_`TRUE`_<br>_`COPY`_<br>_`OF`_<br>_`THE`_<br>_`PROCEEDING`_<br>_`NO.`_| ||_`DCWYD/3423/2021/DM3 DATED 30/3/2023`_| |_`Exhibit P9`_|_`TRUE COPY OF THE PROCEEDINGS OF THE SECRETARY`_| ||_`TO MOOPPAINAD GRAMA PANCHAYAT BEARING NO.`_| ||_`3566/2023 DATED 13/4/2023`_| |_`Exhibit P10`_|_`TRUE COPY OF THE PROCEEDINGS OF THE CHAIRMAN,`_| ||_`DISTRICT DISASTER MANAGEMENT AUTHORITY AND`_| ||_`DISTRICT COLLECTOR, WAYANAD BEARING NO.`_| ||_`DCWYD/9464/2019-DEOC1 DATED 07/11/2019`_| |_`Exhibit P11`_|_`TRUE COPY OF THE PROCEEDINGS OF THE DDMA,`_| ||_`WAYANAD, DATED NIL`_| |_`Exhibit P12`_|_`TRUE COPY OF THE REPRESENTATION OBTAINED`_| ||_`UNDER RTI ACT`_| |_`Exhibit P13`_|_`TRUE COPY OF THE REPORT SUBMITTED BY THE`_| ||_`DISTRICT GEOLOGIST, MINING & GEOLOGY`_| ||_`DEPARTMENT,`_<br>_`MEENANGADI,`_<br>_`WAYANAD`_<br>_`DATED`_| ||_`21/3/2023`_| |_`Exhibit P14`_|_`TRUE COPY OF THE ENQUIRY SUBMITTED BY THE`_| ||_`PETITIONER DATED 31-3-2023 TO THE DDMA,`_| ||_`WAYANAD UNDER THE PROVISIONS OF RTI ACT AND`_| ||_`ITS TYPED COPY`_| |_`Exhibit P15`_|_`TRUE COPY OF THE REPLY ISSUED FROM THE OFFICE`_| ||_`OF THE STATE PUBLIC INFORMATION OFFICER,`_| ||_`DISASTER MANAGEMENT SECTION, OFFICE OF THE`_| ||_`DISTRICT COLLECTOR, DATED 3-4-2023`_| ``` WPC No.21737/2023 ``` ## _`12`_ |_`Exhibit P16`_|_`TRUE COPY OF THE ENQUIRY SUBMITTED BY THE`_| |---|---| ||_`PETITIONER UNDER THE PROVISIONS OF RTI ACT,`_| ||_`DATED 19-5-2023, WHICH IS RECEIVED BY THE`_| ||_`PUBLIC INFORMATION OFFICER, DDMA ON 22-5-2023`_| |_`Exhibit P17`_|_`TRUE COPY OF THE INFORMATION ISSUED BY THE`_| ||_`STATE DISASTER MANAGEMENT AUTHORITY DATED 22-`_| ||_`6-2023`_| |_`Exhibit P18`_|_`TRUE COPY OF THE INFORMATION ISSUED FROM THE`_| ||_`OFFICE OF THE DISTRICT SOIL PROTECTION`_| ||_`OFFICER BEARING NO.DWU(3)659/2023, DATED 17-`_| ||_`6-2023`_| |_`Exhibit P19`_|_`TRUE COPY OF THE LETTER DATED 11-4-2023`_| ||_`ISSUED BY THE STATE PUBLIC INFORMATION`_| ||_`OFFICER, DDMA`_| |_`Exhibit P20`_|_`TRUE COPY OF THE AFFIDAVIT FILED BY THE`_| ||_`KERALA STATE DISASTER MANAGEMENT AUTHORITY IN`_| ||_`W.P.(C) NO.19452/2023 BEFORE THIS HON'BLE`_| ||_`COURT DATED 13-11-2023`_|