T. N. Ashok Kumar v. District Collector, Chairman District Disaster Management Authority, Duritha Nivarana Samithi, Tahsildar, Revenue Divisional Officer, State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 27TH DAY OF SEPTEMBER 2017/5TH ASWINA, 1939** **WP(C).No. 27974 of 2017 (V) ----------------------------** **PETITIONER:** **-----------** **T.N.ASHOK KUMAR, PROPRIETOR, PLUM JUDY THE LEISURE HOTEL, KSEB TUNNEL ROAD, PALLIVASAL, IDUKKI DISTRICT - 685612.** **BY SRI.N.N.SUGUNAPALAN (SENIOR ADVOCATE) ADVS.SRI.S.SUJIN** **RESPONDENTS:** **-----------** |**1.**|**THE DISTRICT COLLECTOR,**| |---|---| ||**(CHAIRMAN DISTRICT DISASTER**| ||**MANAGEMENT AUTHORITY)**| ||**DURITHA NIVARANA SAMITHI,**| ||**IDUKKI DISTRICT - 685603.**| |**2.**|**THE TAHSILDAR,**| ||**DEVIKULAM, IDUKKI DISTRICT - 685613.**| |**3.**|**THE REVENUE DIVISIONAL OFFICER,**| ||**IDUKKI DISTRICT - 685613.**| |**4.**|**STATE OF KERALA,**| ||**REPRESENTED BY THE CHIEF SECRETARY,**| ||**GOVERNMENT OF KERALA,**| ||**GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM - 695001.**| ||**BY SRI.RENJITH THAMPAN, ADDL. ADVOCATE GENERAL**| ||**BY SPECIAL GOVERNMENT PLEADER SRI.M.H.HANIL KUMAR**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25-09-2017, THE COURT ON 27-09-2017 DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 27974 of 2017 (V) ----------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1: TRUE COPY OF THE BUILDING PERMIT OBTAINED BY THE PANCHAYATH 24.10.2014.** **EXHIBIT P2: TRUE COPY OF THE OBJECTION FROM THE DIVISIONAL OFFICER, FIRE AND RESCUE IS 10.10.2014.** **EXHIBIT P3: TRUE COPY OF THE PERMISSION FROM THE FOOD AND SAFETY ON 29.11.2016.** **EXHIBIT P4: TRUE COPY OF THE CONSENT FROM STATE POLLUTION CONTROL BOARD ON 10.2.2016.** - **EXHIBIT P5: TRUE COPY OF THE CONSENT FROM STATE POLLUTION CONTROL BOARD ON 23.5.2016.** - **EXHIBIT P6: TRUE COPY OF THE REGISTRATION DTD.8.7.2016 ISSUED BY THE STATE COMMERCIAL TAXES DEPARTMENT.** - **EXHIBIT P7: TRUE COPY OF CERTIFICATE ISSUED BY THE FIRE AND RESCUE DEPARTMENT 18.5.2016.** - **EXHIBIT P8: TRUE COPY OF THE ORDER WAS ISSUED ON 15.3.2017.** - **EXHIBIT P9: TRUE COPY OF THE REVISED ORDER ON 24.6.2017.** - **EXHIBIT P10: TRUE COPY OF ORDER DATED 8.8.2017 ISSUED BY DISTRICT COLLECTOR.** - **EXHIBIT P11: TRUE COPY OF REPRESENTATION DTD.12.8.2017.** - **EXHIBIT P12: TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENT BEFORE THE GREEN TRIBUNAL MADRAS BENCH.** - **EXHIBIT P13: TRUE COPY OF LIST OF RESORTS FUNCTIONING IN PALLIVASAL.** - **EXHIBIT P14: TRUE COPY OF THERE PORT FORWARDED BY THE SENIOR GEOLOGISTS SCRUTINIZED BY DIRECTOR AND APPROVED BY THE DEPUTY DIRECTOR GENERAL.** - **EXHIBIT P15: TRUE COPY OF REPORT OF THE ASSISTANT ENGINEER, PWD DATED 19.6.2017.** ## **RESPONDENTS' EXHIBITS & ANNEXURES:** **ANNEXURE R1A: TRUE COPY OF THE JUDGMENT REPORTED IN (2016 (5) KHC 615.** **--2--** **--2--** **WP(C).No. 27974 of 2017 (V) ---------------------------** |**ANNEXURE R1B:**|**TRUE COPY OF THE SAID ORDER DATED 21.1.2010.**| |---|---| |**ANNEXURE R1C:**|**TRUE COPY OF THE DIRECTION ISSUED BY THE DEPUTY**| ||**DIRECTOR OF PANCHAYATS DATED 15.2.2010.**| |**ANNEXURE R1D:**|**TRUE COPY OF THE REPORT OF THE SUB COLLECTOR,**| ||**DEVIKULAM ON 7.8.2017.**| |**ANNEXURE R1E:**|**TRUE COPY OF LETTER DATED 8.8.2017 ISSUED BY THE**| ||**DISTRICT COLLECTOR.**| |**ANNEXURE R1F:**|**TRUE COPY OF THE REPORT OF THE SUB COLLECTOR**| ||**DATED 14.3.2017.**| |**ANNEXURE R1G:**|**TRUE COPY OF THE REPORT OF THE GEOLOGICAL SURVEY**| ||**OF INDIA.**| ||**//TRUE COPY//**| ||**P.S. TO JUDGE**| |**mbr/**|| ## **K.VINOD CHANDRAN, J** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). No. 27974 of 2017 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27[th] day of September, 2017 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** The petitioner is aggrieved with Ext.P10 order passed by the District Collector as Chairman of the District Disaster Management Authority, directing the closure of the resort carried on by the petitioner in the land owned by the petitioner located within the Pallivasal Village in Idukki District. 2. I have heard the learned Senior Counsel appearing for the petitioner and the learned Additional Advocate General appearing for the State. 3. The first order issued by the District Collector is Ext.P8 which was occasioned for reason of a land slide, resulting in a huge boulder landing on the petitioner's parking area, crushing three vehicles and endangering the life of a driver; who escaped by a hair's breadth. The District Collector, based his order on a report of the Central Earth Science Studies (CESS) bringing the area within the Multiple Hazards Zonation Map prepared for the villages coming within the Idukki district. On the said incident occurring, the District Collector had issued Ext.P8 by which the resort housing tourists was directed to be shut down for reason of apprehension of further land slides causing danger to life and limb of the tourists, staff and other persons frequenting the resort premises. There was also a direction W.P.(C) No.27974 of 2017 -2- given to remove employees of an estate housed in the settlements which lie lower to the resort. 4. Subsequently, a study was conducted by two Senior Geologists of the Geological Survey of India and certain remedial measures were recommended. The petitioner having at his own expense, carried out the remedial measures, approached the District Collector who allowed the resort to be opened as per Ext.P9. Again on a similar instance having occurred, the District Collector issued Ext.P10 order. Ext.P10 order was issued for reason of a similar land slide having occurred which did not in any manner cause danger to the resort carried on by the petitioner; is the argument. The petitioner submits that having carried on remedial measures and the resort having been reopened after inspection conducted by the District Collector, there was no reason to again effect stoppage of the resort under the Disaster Management Act especially since the second incident did not directly affect the resort premises. 5. The learned Additional Advocate General took me through Annexure R1(f), report of the Sub Collector, which led to the first order at Ext.P8 having been passed. An expert study was conducted by two Senior Geologists of the Geological Survey of India, a report of which is produced as Annexure R1(g). The Geotechnical evaluation made by an expert team apprehended that W.P.(C) No.27974 of 2017 -3- there would be a recurrence of the aforesaid phenomenon of land slide. The specific conclusion of the expert team was as under: “Many precariously perched released boulders and a few rock ledges lying over open weathered joints dipping at shallower angle than the slope are noticed to be present in the western most and eastern most parts. Examination and assessment of the stability status of these boulders and ledges has been carried out and classified accordingly as stable, critical and supercritical (Plate1). Based on the ground profile study of the slope, it is inferred that in case of failure of critical and supercritical boulders and ledges, the initial movement of failed mass will be of sliding or rolling type up to crown of the main landslide which may turn to fall type of movement further.” 6. The learned Senior Counsel appearing for the petitioner submitted on rebuttal, that the remedial measure as submitted by the expert team was carried out. Still, learned Additional Advocate General asserts, Ext.R1(g) at Annexures 1 to 4 specifies the critical boulders ledges and loose blocks which could at any time cause a land slide leading to a major disaster; if the resort is opened. **State** **of Kerala & Others** v. **Dr. Biju Ramesh** 2016 KHC 436 is relied on to point out that the power under Section 65 of the Disaster Management Act, 2005, is to be exercised before a disaster happens. Disaster management has to be primarily focused at averting and preventing a disaster and not fighting it when it occurs. 7. It cannot be disputed that the area is categorized as a Multiple Hazards Zone for reason of the possibility of recurrence of W.P.(C) No.27974 of 2017 -4- land slides causing boulders to slide down the slope and fall in the vicinity of human habitation at the resort and at the settlement of the estate. It is also pertinent that the resort has been established without the No Objection Certificate of the District Collector which is a mandatory requirement as per Annexure R1(b) order of a Division Bench of this Court in a Public Interest Litigation. Following the aforesaid Division Bench order, this Court has also passed Ext.R1(a) wherein the mandatory requirement was declared to be one which cannot be wished away merely on the basis of ownership or possession of land. The allegations raised in the Public Interest Litigation were also with respect to the mushrooming resorts in the ecologically sensitive area of Idukki District. 8. Considering the entire facts and circumstances and also the order at Ext.P10, this Court is not inclined to invoke the extra ordinary jurisdiction under Article 226 of the Constitution of India. Ext.P10 order, though directed stoppage of the resort, also reserved the right of the petitioner to obtain clearance from the State Disaster Management Authority, which remedy the petitioner could avail off. It will not be proper for this Court, under Article 226 of the Constitution of India, to interfere with the orders passed by the Chairman of the Disaster Management Authority, on the basis of recurrent land slides occurring in the area and the reports of the expert bodies: the CESS and the team of Senior Geologists of the W.P.(C) No.27974 of 2017 -5- Geological Survey of India. 9. It is also pertinent that the resort itself was constructed without the No Objection Certificate issued by the District Collector. Further it is to be noticed that the report of the Sub Collector specifically notices the blasting operations carried on for construction of such high rise buildings on the slopes of the hill, which has also led to the already unstable terrain being further rendered loose and precarious. The facts as seen from the report of the RDO and the Senior Geologists restrains this Court from making any interference to the order of the District Collector considering the public interest involved. The recurrence, though argued to be not directly affecting the resort building, is said to have caused obstruction to the road leading to the resort, which also could be a prospective danger for the tourists coming to the resort. In such circumstances, the writ petition is dismissed, leaving liberty to the petitioner to approach the State Disaster Management Authority who shall interfere with the order of the District Collector only after a comprehensive technical expert study is carried out. sd/- **K.VINOD CHANDRAN, JUDGE** kp/25.9 xxx