WP(C) NO. 24055 OF 2019

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 14[TH] DAY OF MARCH 2022 / 23RD PHALGUNA, 1943** ## **WP(C) NO. 24055 OF 2019** ## **PETITIONERS:** - 1 HARIHARAN P., AGED 57 YEARS, S/O.KRISHNAN NAIR, POOVACHERY HOUSE, VATTATHUVAYAL, VADUVANCHAL P.O., WAYANAD, PIN - 673 581. - 2 MUJEEB P.T., AGED 43 YEARS, S/O.HAMSA, PADIKKATHODI HOUSE, RIPPON (P.O.), MEPPADI, WAYANAD, PIN - 673 577. - 3 JAIMON JOSEPH, AGED 38 YEARS, S/O.JOSEPH, PUTHENPURA HOUSE, ALATTIL (P.O.), WAYNAD, PIN - 670 644. - 4 SYAM KRISHNAN KURUP, AGED 39 YEARS, S/O.A.V.KRISHNA KURUP, EDAKKANATTU HOUSE, MARARIKKULAM NORTH, ALAPPUZHA DISTRICT. BY ADVS.MADHU RADHAKRISHNAN SRI.NELSON JOSEPH SRI.M.D.JOSEPH ## **RESPONDENTS:** - 1 DISTRICT COLLECTOR, DISTRICT DISASTER MANAGEMENT AUTHORITY, WAYANAD, PIN- 673 122. - 2 REVENUE DIVISIONAL OFFICER, MANANTHAVADY, WAYANAD DISTRICT, PIN - 670 645. - 3 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001. - 4 GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY, MEENANGADI, WAYANAD DISTRICT, PIN - 673 591. - 5 SUPERINTENDENT OF POLICE, PUTHOOR VAYAL, KALPETTA, WAYANAD DISTRICT, PIN - 673 121. - 6 REGIONAL TRANSPORT OFFICER, REGIONAL TRANSPORT OFFICE, KALPETTA, WAYANAD DISTRICT, PIN - 673 122. - 7 DIVISIONAL FOREST OFFICER, WILDLIFE DIVISION, SULTHANBATHERY, WAYANAD DISTRICT, PIN - 673 592. - 8 DIVISIONAL FOREST OFFICER, MANANTHAVADY, NORTH WAYANAD, PIN - 670 645. - 9 DIVISIONAL FOREST OFFICER, KALPETTA, PIN - 673 121, SOUTH WAYANAD, PIN - 673 121. BY ADV.SRI.TEKCHAND, SR. GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 24055 OF 2019 :: 2 :: ## **JUDGMENT** Dated this the 14[th] day of March 2022 ## **S.MANIKUMAR, C.J.** In this public interest litigation, the main concern raised by the petitioners, residents of Wayanad district, is with respect to the frequent landslides and landslips occurring in the Wayanad district, allegedly on account of the large scale excavation by the unregulated use of excavators. 2. Reliefs sought for in the writ petition are as follows: a) issue a writ of mandamus directing the first respondent to forthwith enforce and implement Ext.P3 draft guidelines. b) issue a writ of mandamus to direct the respondents to follow Ext.P3 guidelines and take action against any person or companies or firms found violating the Ext.P3 guidelines after implementation. 3. Sri.Madhu Radhakrishnan, learned counsel for the petitioners referred to the draft guidelines (Ext.P3) formulated in a proceeding of the District Disaster Management Authority, Wayanad and the failure of the authorities to implement those guidelines to prevent avoidable landslides, in the vulnerable district. The WP(C) NO. 24055 OF 2019 :: 3 :: petitioner has also referred to the circular dated 21.8.2019 (Ext.P4) of the Director, Mining and Geology to point out that the soil excavation activities (which were ordered to be stopped on account of the heavy rainfall), is now permitted and therefore, the petitioners seek direction to the authorities, for regulating the activities of the earth movers/excavators, in Wayanad district. 4. Heard learned counsel for the parties and perused the materials on record. Pleadings disclose that the guidelines referred to by the petitioner are draft guidelines. 5. Proceedings of the Chairman and District Collector, District Disaster Management Authority, Wayanad district is produced as Exts.P3 & R1(a), which is reproduced hereunder: Proceedings of Chairman and District Collector, District Disaster Management Authority, Wayanad (Present: Sri.Keshvendra Kumar, IAS) ## - File No. DCWYD/167/2016 DEOC DATED /08/2016 Sub: Empanelment of earthmovers-issuing of Guidelines-reg. The Guidelines for operating earthmovers of excavators in Wayanad district are issued as stated hereunder. 1. Moving or removing earth from any land in Wayanad district with an earthmover or excavator should strictly follow all the existing rules and regulations. Any violation to any of the acts/rules/regulations /guidelines is punishable. 2. The earthmovers or excavator should not be used on public holidays and government holidays except for agricultural purposes as mentioned in section 6 of this order. 3. Earthmovers or excavator should not be used between 7.00pm and 7.00am on any day. WP(C) NO. 24055 OF 2019 :: 4 :: In case of any disaster, natural calamity or emergency exception may be given by the district collector/chairman of district disaster management authority for the use of excavators between 7 pm and 7 am. 4. Whenever earthmover/s/is/are used on a plot, necessary permit from all related authorities including, but not limited to, revenue and geology should be kept in ready possession with operators. 5. Before moving the earth from any land; the land owner should have obtained all permission as per G.O.(P)No.25/2017/1D dated 22 June 2017 and vehicle owner should have obtained land tax receipt and possession certificate of that land and it should be ensured that the land does not belong to wetland, plantation, paddy field or ecologically fragile land. 6. Earthmovers can be utilized, in paddy field and plantations, only if such use is exclusively form normal agricultural activities, which are absolutely necessary. It shall not be used for any purpose other than Agricultural activity in Paddy field and Plantation. Such use can be done only if all other permission as per sub rule 2 of the Rule 14 of the G.O.(p)No.25/2017/ID dated 22 June 2017 and a written permission from a Concerned agriculture officer of the area in which the excavation is taking place are duly obtained, subject to all existing regulations. Moreover, such use shall not result in altering the structure or nature of the land. In the wetlands or rice fields earth movers should not be used for alteration of the land to any other forms except for restoration of altered wetlands into its earlier conditions. 7. It is necessary to obtain NOC from forest department for operating earthmovers in forest lease land. 8. The guideline is issued with a general purpose to control indiscriminate usage of earthmovers in Wayanad in the context of large scale mud slips and landslides during the monsoon of 2018 so as to preserve and protect natural and geological uniqueness of the district. 9. The earthmovers owners, who are willing to provide their earthmovers with operator for participating disaster management activities which called up for the same, free of cost, can get themselves empanelled with the District Disaster Management Authority. They can file willingness in writing and get a suitable endorsement from District Emergency Operating Centre. The District Emergency Operating centre shall keep an inventory of such empanelled earth I and issue suitable endorsement as required. 10.All the earth movers of the district should be registered under disaster management authority. A certificate of registration may be given for one year and has to be renewed every year. Only resident RC owners of the district will only be allowed to register and work in Wayanad. A proof showing residence in Wayanad should be submitted along with the application. Any vehicle which is not registered under disaster management authority will not be allowed to undertake any work in Wayanad. 11.Any violation of the above rules is observed on verification, the registration of the vehicle will be cancelled and will be subjected to action by the authorities under section 8 of the G.O.(p) No. 25/2017/ID dated 22 June 2017. Sd/- Chairman& District Collector, DDMA, Wayanad WP(C) NO. 24055 OF 2019 :: 5 :: 6. A detailed counter affidavit has been filed on behalf of the first respondent/District Collector, Wayanad, which is marked as Ext.R1(a), wherein, it is stated that in order to provide a safe environment to the residents of district Wayanad, the District Disaster Management Authority has already taken many mitigation measures. Towards the proactive measures taken to prevent disastrous situations DDMA has issued many orders. The District Disaster Management Authority is legally bound to protect the safety and security of citizens under their jurisdiction. Relevant portion from the said counter affidavit reads thus: "2. The above writ petition is filed against the nonimplementation of Exhibit P3 guidelines that regulates the working of JCB, Proclains and Earth Movers in the Wayanad District. The guidelines submitted as Exhibit P3 is not one drafted or issued by the respondent. No such draft guidelines produced as Ext. P3 is prepared or formulated by this respondent. The actual guidelines issued by the District Disaster Management Authority File No. DCWYD/167/2016 dated, August, 2016 is produced herewith and marked as Exhibit-R1(a). The same is already in force and enforced by all the concerned departments. 3. It is submitted that in a high altitude area like Wayanad, which is situated at the southern tip of the Deccan Plateau at an average altitude of 700 to 2100 meters from the Mean Sea Level, it is highly essential to have certain regulatory regime for the protection of the District from likely happening of disasters. A major portion of this district is forest. The Landscape includes ridge, valleys and slopes apart from rivers and streams. Geological WP(C) NO. 24055 OF 2019 :: 6 :: peculiarities of Wayanad pose threat of earthquakes and landslides. Wayanad is included in Zone III with respect to Earthquake Hazard. Landslide had occurred in the district in the past. 4. It is submitted that the District Disaster Management Authority, Wayanad has been taking various pro-active measures to prevent the disasters in this district. For the protection of life and property of the Inhabitants of this district, orders dealing with the following matters have been already issued. a) Guidelines Issued to regulate / monitoring the working of JCB /earthmovers. b) Regulation of quarrying in landslide prone areas. c) Regulation of building height in entire district. (2 floor levels upto 8 meters in very heavily landslide affected Panchayats viz.. Pozhuthana, Thirunelli, Vythiri, three floor levels upto 10 meters in other Panchayats and 5 floor levels upto 16 meters in all the Municipalities). d) Regulation of quarrying, building construction and soil cutting in Landslide Hazard zones. 5. It is submitted that as an affirmative obligation to protect the human life and the property, the District Disaster Management Authority, Wayanad has issued the above orders to prevent the hazardous conditions caused by human involvement to the nature. Ext.R1(a) circular for regulating the Earthmovers in this district has been implemented on 2016 itself, and this circular has been strictly followed by all the concerned departments. Although restriction on earth cutting by machines and functioning of quarries has also been imposed during the last three monsoon seasons, the restriction imposed during this monsoon has not been lifted upto this date. In the light of the landslide incidents, an order has already been issued and implemented by the District Disaster Management Authority that restricts quarrying, construction of buildings above 2000 feet and soil excavation in 500 meters perimeter of landslide prone areas in this district. All of the precautionary measures have been taken to prevent disasters during the rainy season. IRS WP(C) NO. 24055 OF 2019 :: 7 :: (Instant Response System) has been constituted in three taluks and the taluk level meetings of Instant Response System has been held. District level meeting has also been held and strict instructions were given to various Nodal Department Heads for the preparation in bad weather conditions. 6. It is respectfully submitted that the deaths during this monsoon season was due to unexpected landslide occurred in Puthumala and Muttil. In Puthumala twelve bodies of deceased were recovered and 5 persons are still missing and two people were deceased in Muttil Landslide. Apart from Puthumala and Muttil, there were other ten major landslides occurred during the last monsoon. More than twenty minor landslides/landslips are also reported. Some of these landslides/landslips were inside of the forest. 7. During 2018, monsoon landslide/landslip/land subsidence occurrences were found in 278 places. Study has been done by various departments/agencies and 2.50 cm as per the landslides probability study done by the Geological Survey of India, it has been recommended to stop quarrying in two places. As per the said recommendation of Geological Survey of India, operation of two quarries were banned and the order is still in force. 8. Intense downpour during August, 2018 and 2019 was the main reason of these landslide occurrences. Data related to the rainfall during these days are given below: Table – 1 |Table – 1||| |---|---|---| |Dates in August|Average Rainfall<br>in August 2018 (in<br>mm)|Average Rain fall in<br>August 2019 (in mm)| |07/08|13.8|100.9| |08/08|153.34|204.3| |09/08|245.37|243.66| |10/08|37.81|172.7| |11/08|22.37|62.07| WP(C) NO. 24055 OF 2019 :: 8 :: |12/08|29.5|20.1| |---|---|---| |13/08|68.34|14.37| |14/08|116.14|20.03| |15/08|111.47|17.93| |16/08|96.67|8.2| |17/08|88.51|10.47| 9. It is submitted that the guidelines issued by the District Disaster Management Authority is already enforced and it is followed by all the concerned departments. Landslide occurrences during 2018 is 278 and during 2019 is nearly 28. The vulnerability of this district to landslide is very high. It is due to the intense rainfall and soil structure of this district. Other causes for the vulnerability should be scientifically assessed. The District Disaster Management Authority is evaluating all disaster situations and implementing proposals and controls to minimize the impact of disasters. 10. It is submitted that the District Disaster Management Authority has assessed the various vulnerabilities of this district on time to time and took decisions based on this. The District Disaster Management Authority has implemented a series of orders to preserve the life and properties of the people in Wayanad district from various calamities. The District Disaster Management Authority has issued an order against the intensive quarrying in landslide prone areas of Krishnagiri and Amabalavayal villages. Various writ petitions are pending in Hon'ble High Court against this order. A scientific study has been ordered by the District Disaster Management Authority in this regard. The study is conducted by NIT, Kozhikode and the report is awaited. 11. It is submitted that Exhibit R1 (c) Order issued by the District Disaster Management Authority has regulated the height of the building in this district. This order restricts the building height in Municipal areas to be 16 meters/5 stories, Panchayath areas to be 10 meters / 3 stories, WP(C) NO. 24055 OF 2019 :: 9 :: vulnerable Panchayats Vyhtiri, Pozhuthana, Thirunelly to be 8 meters / 2 stories. Various cases pending against this order. 12. It is submitted that in 2019 August vast catastrophes had hit the district in the form of high flood and landslides. In light of these occurrences the District Disaster Management Authority has decided to issue an order to prevent human interventions in landslide prone areas of this district. The construction in landslide prone areas of this district regulated to 2 floor levels 8 meters of height and maximum area of 200 square meter. Quarrying in this area is completely banned. Removing soil digging, mining also banned in this areas. 13. It is submitted that the District Disaster Management Authority has taken a decision on 08/08/2019 during the peak time of the flood and other disasters to stop the quarrying, mining and excavation of earth as the rainfall had reached upto 64.4 mm par to the Standard Operating Procedure by State Emergency Operating Centre. This order is still in force and a study has been ordered to assess the condition. After receiving this study report, the District Disaster Management Authority will review the order. 14. It is submitted that in order to provide a safe environment to the residents of this district Wayanad the District Disaster Management Authority has already taken many mitigation measures. The proactive measures taken to prevent disastrous situations DDMA has issued many orders. The details of these orders have already been dealt with in this affidavit. The District Disaster Management Authority is legally bound to protect the safety and security of citizens under their Jurisdiction. Hence the District Disaster Management Authority has conducted various studies on possible threats and based on these studies, the District Disaster Management Authority has taken many control measures to deal with these issues." 7. Ext.R1(b) regulations have been issued by the Chairman, District Disaster Management Authority and the District Magistrate, WP(C) NO. 24055 OF 2019 :: 10 :: Wayanad in respect of quarrying in landslide prone areas on ## 24.3.2017, and the same reads thus: DCWYD/ 43 /2016/DEOC Collectorate, Wayanad Date: 24.3.2017 Proceedings of the Chairman, District Disaster Management Authority and the District Magistrate, Wayanad (Present: Dr.B.S.Thirumeni (IAS) Sub: Disaster Management Act 2005-preventing landslide and earthquake disasters at the Phantom Rock, Arattupara, Cheengerippara and Kolagappara areas-orders issued-reg. Ref: 1. Judgment of the Honorable High Court of Kerala in WP(C) Nos.27741, 28070, 28071, 28514, 28619, 30822, 30949, 30952, 31013, 31023, 31209, 32444 of 2016 dated 1.2.2017. 2. Letter No.AAG-RT/WPC 28619/2016 of the Additional Advocate General, Ernakulam dated 7.2.2017 The Disaster Management Authority, Wayanad (DDMA) was constituted under the provisions of the Disaster Management Act, 2005 vide G.O. (P) 303/2008/DMD dated 9.9.2008. The Disaster Management Plan of Wayanad district was prepared by the DDMA under section 31 of the Disaster Management Act. This Disaster Management Plan was approved by the DDMA on 21.2.2015 during its meeting. The Disaster Management Plan approved by the DDMA was submitted to the State Disaster Management Authority. The Disaster Management Plan was approved vide G.O(RT)/3104/2016/DMD dated 30.07.2016. The DDMA on 22.3.2017 clearly resolved under section 31 of the Disaster Management Act that, the Disaster Managment Plan approved on 21.2.2015 by the DDMA and subsequently by the Government on 30.7.2016 is the Disaster Management Plan of Wayanad district duly prepared by the Wayanad DDMA under the provisions of Disaster Management Act, 2005. The powers conferred upon the District Disaster Management Authority vide Section 30 of the Disaster Management Act were delegated to the Chairman and District Collector, as per provisions of section 26 of the Act; by the DDMA during its meeting held on 17.6.2015. On 5.10.2016, the DDMA during its meeting passed the following resolution, once again "The District Disaster Management Authority, Wayanad resolves that, the Chairman, District Disaster Management Authority, Wayanad is authorised to exercise and discharge all powers of the District Disaster Management Authority, Wayanad. The District Disaster Management Authority delegates, under section 26 (1) of the Disaster Management Act, 2005, all of its powers and functions to the Chairman, DDMA.” WP(C) NO. 24055 OF 2019 :: 11 :: In addition, another resolution was also passed by the DDMA on 5.10.2016, which reads as given below. “The District Disaster Management Authority resolves under section 68 of the Disaster Managment Act, 2005 that every order or decision of the District Disaster Management Authority, Wayanad shall be authenticated by either the Chairman or the Chief Executive Officer.” Therefore, the Chairman, District Disaster Management Authority is empowered to issue order of the District Disaster Management Authority by exercising the powers conferred upon the DDMA by virtue of Disaster Management Act, 2005. 2. Phantom Rock is a rocky area comprised in Resurvey Number 520/6 & 521/2 of Block 22 of Krishnagiri Village. Kolagappara is a rocky area comprised in resurvey number 349/1 of block 22 of Krishnagiri Village. Arattupara is a rocky area comprised in survey number 298/1A1A1A of the Ambalavayal village. Cheengerippara is a rocky area comprised in survey number 298/1A1A1A of the Ambalavayal village. 3. On 1.2.2017, the Honorable High Court of Kerala, vide judgment in WP(C) Nos. 27741, 28070, 28071, 28514, 28619, 30822, 30949, 30952, 31013, 31023, 31209, 32444 of 2016 directed the DDMA to conduct a hearing of petitioners in these writ petitions or any other affected parties. In compliance, notice of hearing was issued to petitioners and other affected persons. Notice was issued vide file number DCWYD/43/2017/DEOC 1 dated 7.3.2017 to the below mentioned persons. In addition, news paper release was issued and the notice was published in the district website: the notice was published at the Grama Panchayat Office, Meenangadi: Grama Panchayat Office, Ambalavayal: Village Office Krishnagiri and Village Office, Ambalavayal - so as to inform all affected persons about the hearing. The hearing was initially scheduled to be held on 15.3.2017. It was then postponed to 22.3.2017. Fresh notice was issued to all persons through all the above mentioned modes, once again. In response to the hearing notice as mentioned above, a total number of 21 parties appeared for hearing. After hearing all the parties appeared for the hearing, the DDMA resolved as given below, on 22.3.2017. "After hearing all the affected parties who appeared for hearing as ordered by the Honorable High Court, the DDMA is of learned opinionthat the prohibition of Quarrying, Mining and Crusher unit operations at Phantom Rock, Arattupara, Kolagappara and Cheengerippara areas shall be continued for preventing disasters In order to prevent disaster, the DDMA decides under section 30 (1) of the Disaster Management Act, 2005, to prohibit Quarrying, Mining and Crusher unit activities. i)The Tahsildar, Sulthan Bathery, ii) the District Geologist, Wayanad, iii)the Secretary, Meenangadi Grama Panchayat and iv) the Secretary, WP(C) NO. 24055 OF 2019 :: 12 :: Ambalavayal Grama Panchayat shall ensure that no prohibited activity is happening at the specified areas. Any such prohibited activity currently happening at the specified areas shall be stopped forthwith. The Tahsildar, Sulthan Bathery shall take action for such stopping. The Chairman, DDMA shall issue proper orders to this effect. Any reference to ‘specified areas’ in this order will mean i)the entire Arattupara rock and an area covering one kilometer radial distance from all boundary points of this rock to all sides, ii)the entire Cheengerippara rock and an area covering two hundred meter radial distance from all boundary points of survey number 298/1A1A1A of Ambalavayal village, iii)the entire rocked area of Phantom Rock and an area covering two hundred meter radial distance from all boundary points of Resurvey numbers 520/6 and 521/2 of Block 22 of Krishnagiri village, and iv) the entire Kolagappara rock and an area covering two hundred meter radial distance from all boundary points of resurvey number 349/1 of Block 22 of Krishnagiri village." 4. On perusal of the Disaster Management Plan, it is found by the DDMA that, the below mentioned references are there in the Disaster Management Plan, with respect to Landslides and Earthquakes. a. The Disaster Management Plan of Wayanad district points out Earthquakes and Landslides as two Geological disasters in Hazard Profile of the District. (Table No 10) b. The Disaster Management Plan sets out that Landslide Warning is to be issued to those who live close to rivulets and in hilly segments with greater than 20 degree slope. (Table 18) c. The Landslide Susceptibility Map of Wayanad included in the Disaster Management Plan, marks the areas of Arattupara, Cheengerippara, Kolagappara and Phantom Rock as High Hazard Zone and Moderate Hazard Zone. These zones are marked in the map, in Sulthan Bathery Taluk area. (Figure 11) d. The Earthquake Susceptibility Map of Wayanad district shows a reported Earthquake Event. The areas at shortest distance from this Earth Quake point, in which Quarries were functioning, are Arattupara, Kolagappara, Phantom Rock and Cheengerippara areas. (Figure 12) 5. The Earthquake Hazard Zoning Map of Wayanad district, prepared by the WP(C) NO. 24055 OF 2019 :: 13 :: National Disaster Management authority makes it clear that Wayanad is lying in Zone III: Moderate Damage Risk Zone (MSK VII) with respect to Earthquake. 6. The report submitted by the Expert Committee constituted by the Government of Kerala in July 2009, to study about the unfortunate landslides occurred during 2009 has clearly recommended that "Special care is to be taken while implementing projects involving land manipulation/disturbances." Two of the major activities that result in manipulation of /disturbance to the land structure is Quarrying, Mining and Crusher unit activities. The said report of the Expert Committee further recommended that, Blasting in quarries should be regulated during monsoon and that Rocks positioned dangerously on the slopes should not be blasted during monsoons as such blasting can lead to future destabilisation of other rock masses that may roll out into unpredictable direction. 7. The Kolagappara, Arattupara, Cheengeripara and Phantom Rock areas are slopes which does have rocks positioned on its slopes in dangerous manner. Blasting in quarries had not been regulated as recommended in the Expert Committee report dated 2009. So such rock masses should have already been got destabilised in these regions. Any action disturbing its present position can lead to dangerous landslides. The force applied for blasting the rocks in quarries/mines and for grinding/crushing granite in crusher units is very high. That force shall be higher than the Compressive Strength of granite. Such a heavy pressure can cause the surrounding soil and rock in these areas to get its bond loosened, which will result in massive landslide. Therefore it is evident that Presence of Quarrying, Mining and Crusher unit activities in these areas can cause landslides and earthquakes. The threat is serious and devastating as it will cause destruction of human life and property along with the collapse of surrounding landscape, in case of a landslide or earthquake. 8. These rocky areas are interspersed masses of rock and earth, which includes natural vegetation also. Landscape of all these areas and their premises are mountainous in nature with steep slopes and rises. Because of the terrain specifics, this area bears high risk of landslide. Landslide or earthquake in this rocky region could be catastrophic as the bottom areas of these rocky regions are populated. Any landslide in these areas will result in heavy causalities, loss of lives and property. So it is pertinent and inevitable to take proper precautionary measures for prevention of disasters in this region. Quarrying, mining and crusher unit activities had resulted in very high grade of environmental degradation in these areas. 9. Quarrying, mining and crusher unit activities in these areas can trigger landslide, because of geographical peculiarities of this portion of land. Such quarrying, mining and crusher unit activities increase the of disaster occurrence. Carrying on of Quarrying, Mining and Crusher unit activities, in this region causes threat of disaster occurrence. 10. The Hon'ble High Court of Kerala held in ‘Thilakan V/s Circle Inspector WP(C) NO. 24055 OF 2019 :: 14 :: of Police and others' dated 23.10.2007 (2008 (1) KLT 141) that Precautionary Principle is part of Environment Legislation in India. The Hon'ble Supreme Court of India held, in its judgment in Vellore Citizens' Welfare Forum vs Union of India ((1996) 5 SCC 647) that "Some of the salient principles of ‘Sustainable Development’ as culled from Burtland Report and other international documents, are Inter-Generational Equity, Use and Conservation of Natural Resources, Environmental Protection, the Precautionary Principle, Polluter Pays Principle, Obligation to Assist and Co-operate, Eradication of Poverty and Financial Assistance to developing countries. We are, however, of the view that The Precautionary Principle and the Polluter Pays Principle are essential features of Sustainable Development’. The ‘Precautionary Principle’ in the context of the municipal law-means: (i) Environmental measures - by the State Government and the statutory authorities - must anticipate, prevent and attack the causes of environmental degradation. (ii) Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. (iii) The ‘onus of proof is on the actor or the developer/industrialists to show his action is environmentally benign." In N.D. Jayal And Anr vs Union Of India And Ors (2004 (9) SCC 362; AIR 2004 SC 867) the Honorable Supreme Court observed as given hereunder, ## "Disaster Management: Disaster Management means all aspects of planning, coordinating and implementing all measures which are necessary or desirable to prevent, minimize, overcome or to stop the spread of a disaster upon the people or any property and includes all stages of rescue and immediate relief. It is a proven fact that lot of human suffering and misery from large number of disasters can be mitigated by taking timely actions, planning and preventive measures. It is possible only through well functioning disaster management framework. This will enable us to minimize, control and limit the effects of disaster and will streamline the disaster management exercises. Our present relief centered re-active approach after the striking of disaster need to be changed into preparedness oriented pro-active attitude. This is the aim of pre-disaster preparations. Disaster Management Plans has to play an integral role in this exercise. They are blue prints for the management of disasters. The Disaster Management Plans should contain the aspects of disaster prevention and of ways for its management in the untoward occurrence of a disaster. A proper plan will place the WP(C) NO. 24055 OF 2019 :: 15 :: disaster management exercise on a more firm foundation. It is a welcome gesture that the Clearance to this Project contains a condition for chalking out disaster management plan. Disaster Management activities should be integrated with the developmental activities. Incidentally, this is also the resolve of the Yokohama Strategy of the United Nations International Decade of Natural Disaster Reduction, to which India is a party. There is an affirmative obligation on the part of the State to preserve and protect human life and property. **This obligation is an integral element in fulfilling developmental endeavors. Therefore, disaster management cannot be separated from sustainable development."** Section 30 (1) of the Act makes it clear that the DDMA shall take all measures required for disaster management in the district. As per section 2 (e), "disaster management" means a continuous and integrated process of planning, organising, coordinating and implementing measures which are necessary or expedient for prevention of danger or threat of any disaster. As per section 2(d) of the Act, "disaster" means a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or manmade causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area. The Hon'ble Supreme Court has held that Precautionary Principle mandates that the Statutory Authority must anticipate, prevent and attack the causes of environmental degradation; and that lack of scientific certainty should not be used as a reason for postponing prevention measures when there are threats of serious and irreversible damage. In the instant case, Quarrying, Mining and Crusher unit activities are causing threat of disaster occurrence in these areas. Any quarrying or mining or crusher unit activity can cause Irreversible damage. Presence of Quarrying or Mining or crusher unit activities in these areas can cause landslides and earthquakes. The threat is serious and devastating as it will cause destruction of human life and property, along with the collapse of surrounding landscape, in case of a landslide or earthquake. 11. Section 30 (1) of the Disaster Management Act 2005 (Act 53 of 2005) empowers the District Disaster Management Authority to take all action for prevention of disaster, section 30 (2) (iii) empowers the District Disaster Management Authority (DDMA) to take action for ensuring proper measures are taken for the prevention of disasters. Section 30(2) (v) further empowers the DDMA to issue direction to different authorities at district level and local authorities to take such other measures for the prevention of disasters 12. In this circumstance, in the DDMA meeting dated 22.7.2017, it was held that in the interest of preventing disasters, it is necessary to prohibit mining, WP(C) NO. 24055 OF 2019 :: 16 :: quarrying and crusher unit activities at the Phantom Rock, Kolagappara, Arattupara and Cheengerippara areas. So, in exercise of the power of District Disaster Management Authority as aforesaid, the following orders are issued. ## ORDER Under sections 30(1), 30 (2) (iii) and 30(2)(v) of the Disaster Management Act, 2005 (Act 53 of 2005) order is hereby issued to i.The Tahsildar, Sulthan Bathery, ii.the Geologist, District Geology office, Wayanad, iii. the Secretary, Ambalavayal Grama Panchayat and iv.the Secretary, Meenangadi Grama Panchayat, that in order to prevent disaster, the DDMA decided under section 30 (1) of the Disaster Management Act, 2005, to prohibit Quarrying, Mining and Crusher unit activities at the specified areas i)The Tahsildar, Sulthan Bathery, ii) the District Geologist, Wayanad, iii)the Secretary, Meenangadi Grama Panchayat and iv) the Secretary, Ambalavayal Grama Panchayat shall ensure that no prohibited activity is happening at the specified areas. Any such prohibited activity currently happening at the specified areas shall be stopped forthwith. The Tahsildar, Sulthan Bathery shall take action for such stopping/closure. Any reference to ‘specified areas’ in this order will mean i. the entire Arattupara rock and an area covering one kilometer radial distance from all boundary points of this rock to all sides, v. the entire Cheengerippara rock and an area covering two hundred meter radial distance from all boundary points of survey number 298/1A1A1A of Ambalavayal village, (vi)the entire rocked area of Phantom Rock and an an area covering two hundred meter radial distance from all boundary points of Resurvey numbers 520/6 and 521/2 of Block 22 of Krishnagiri village, and vii) the entire Kolagappara rock and an area covering two hundred meter radial distance from all boundary points of resurvey number 349/1 of Block 22 of Krishnagirl village. 13. This order shall be enforced and executed with Immediate effect. Sd/ Chairperson, DDMA & District Magistrate, Wayanad WP(C) NO. 24055 OF 2019 :: 17 :: ## 8. Orders have been issued regulating the height of the buildings in the entire district vide R1(c) and the same is reproduced: Proceedings of Chairman, District Disaster Management Authority and the District Magistrate, Wayanad (Present: Sri.Keshvendra Kumar, IAS) Wayanad district situates at the southern tip of the Deccan Plateau. Wayanad is placed at an altitude of 700 to 2100 metre from the MSL. The terrain is dominated by the presence of Western Ghat mountains like the Chembra Peak which is 2100 metres in altitude, Banasura Peak (2073m in altitude and Brahmagiri (1608 m in altitude). A major portion the district is forest. The landscape includes ridges, valleys and slopes apart from rivers and streams. 2. In a high altitude area like Wayanad particular care shall be exercised to protect the land and its population from the threat of natural disasters. Geological peculiarities of Wayanad pose threat of earthquake and landslide. The recent landslides occurred in Uttarakhand (during the month of June 2013) and Pune (at Malin, on 30 July 2014) clearly shows the fatality and peril of landslides. The recent earthquake of Nepal demonstrates the catastrophic devastation capability of an earthquake. So in public interest, it is pertinent and inevitable to take proper action for safeguarding the district from earthquake and landslide. 3. Hon'ble High of Kerala held in its judgment in "Thilakan V/s Circle Inspector of Police and others' dated 23.10.2007 (2008(1) KLT 141) that "The concept of sustainable development is now part of our environmental law, in view of various decisions of the Apex Court. The competing claims of the present generation for development and also the claims of future generations to inherit a healthy environment have be balanced. While exploiting the resources, the capacity of the environment to repair and replace, has also to be taken note of. If a tree is cut and removed, for another tree to grow to the same size, it may take several years. If bucket of soil is removed, to generate the same, the earth may take a few hundred years. The same is the case of other natural resources also. The length of time only varies. The revenge of mother earth have started displaying in the form of earth quakes, tsunamies, unusually wild cyclonic storms etc. Therefore, it is high time that we think of putting a stop to the defiling and degrading of mother earth..............” 4. In the same judgment the Hon'ble High Court held that the Precautionary principle' is part of Environmental legislation in India. 5. The Hon'ble Supreme Court of India held, in its judgment in Vellore WP(C) NO. 24055 OF 2019 :: 18 :: Citizens' Welfare Forum vs Union of India ((1996) 5 SCC 647) that 'Some of the salient principles of 'Sustainable Development' as culled from Burtland Report and other international documents, are Inter-Generational Equity, Use and Conservation of Natural Resources, Environmental Protection, the Precautionary Principle, Polluter Pays Principle, Obligation to Assist and Co operate, Eradication of Poverty and Financial Assistance to developing countries. We are, however, of the view that The Precautionary Principle and the Polluter Pays Principle are essential features of Sustainable Development’. The 'Precautionary Principle’ in the context of the municipal law - means: - (i)Environmental measures-by the State Government and the statutory authorities-must anticipate, prevent and attack the causes of environmental degradation. - (ii) Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. - (iii) The 'onus of proof is on the actor or the developer/industrialists to show his action is environmentally benign’. 6. The presence of high rise buildings poses threat to the environment and for the safe and peaceful living of citizens in Wayanad. The hon'ble High Court of Kerala has held that Precautionary Principle is part of Environment Legislation in India. The Hon'ble Supreme Court has held that Precautionary Principle mandates that the Statutory Authority must anticipate, prevent and attack the causes of environmental degradation; and that lack of scientific certainty should not be used as a reason for postponing prevention measures when there are threats of serious and irreversible damage. In the instant case, high rise buildings are posing threat to environmental sustainability of Wayanad district. It is a cause of environmental degradation. Presence of high rise buildings in a high altitude landscape can cause landslides and earthquakes. The threat is serious and devastating as it will cause destruction of human life, flora and fauna along with the collapse of surrounding landscape, in case of a landslide or earthquake. The Hon'ble court made it clear that lack of scientific certainty is not a valuable reason for postponing action to prevent damage. A landslide or earthquake will surely result in destruction of life. The lives of people of Wayanad is facing threat from landslide or earthquake, as a result of the presence of High Rise buildings. 7. Section 30(2) (iii) of the Disaster Management Act 2005 (Act 53 of 2005) empowers the District Disaster Management Authority (DDMA) to take action for ensuring proper measures are taken for the prevention of disasters. Section 30(2) (v) further empowers the DDMA to issue direction to different authorities at district level and local authorities to take such other measures for the prevention of disasters. 8. In this circumstance, in the DDMA meetings dated: 27/05/15 and 17/06/15, it is held that in the interest of preventing disasters, it is necessary to control and regulate the presence of high rise buildings in the district. So, in exercise of the power of District Disaster Management Authority as aforesaid, the WP(C) NO. 24055 OF 2019 :: 19 :: following orders are issued. ## ORDER 9. Under sections 30 (2) (iii) and 30(2)(v) of the Disaster Management Act, 2005 (Act 53 of 2005) order is hereby issued to the Secretaries of all Grama Panchayats and Municipality in Wayand district, the District Town Planner, Wayand, The Environmental Engineer, Pollution Control Board, Wayanad to ensure that i. Not to issue permit for construction of any building, if the height of such building exceeds the measurements specified in Table A, herebelow. TABLE A **==> picture [360 x 182] intentionally omitted <==** **----- Start of picture text -----**<br> Sl Geographic Area Maximum Height of the building<br>No including underground<br>constructions, if any<br>1 Lakkidi area of the Vythiri 8 metres (Limited to Maximum<br>Grama Panchyat comprising Two Floor levels)<br>the whole of Kunnathidavaka<br>village<br>2 Municipality Areas 15 metres (Limited to Maximum<br>Five Floor levels)<br>3 All other areas in the district 10 metres(Limited to Maximum<br>which are not specified in Three Floor levels)<br>serial numbers 1, 2 above.<br>**----- End of picture text -----**<br> These heights limits are for construction in flat and low slope land. Wherever land is with high slope, height can be further restricted based on structural safety report by Authorities empowered to issue building permit. ii. To get the construction of any building; of which the permit for construction is already Issued, which is being or proposed to be constructed in contravention of the two conditions given in sub paragraph (i) above; be restricted to the levels mentioned here above if it has not already crossed the specified limits; and be stopped at the present levels wherein the construction has already crossed the specified limits. iii. In case of any dispute/objection/claim being raised by any person with respect to the specification given in Table A, get it examined by a Core Committee constituted as given below in Table B. The Core Committee is empowered to inspect the building and verify facts regarding construction. The Core Committee will inspect the building construction to verify whether it complies with the specifications provided in table A. WP(C) NO. 24055 OF 2019 :: 20 :: **==> picture [439 x 341] intentionally omitted <==** **----- Start of picture text -----**<br> Table B<br>Core Committee Members<br>Sl Member<br>No.<br>1 Additional District Magistrate &Deputy Collector (General), Wayanad<br>2 Executive Engineer, PWD Buildings, Kalpeta<br>3 District Town Planner, Wayanad<br>4 District Soil Conservation Officer, Wayanad<br>5 District Geologist, Mining and Geology District Office, Wayanad<br>6 Divisional Forest Officer, North Wayanad Division, Mananthavadi<br>7 Divisional Forest Officer, South Wayanad Division, Kalpeta<br>8 Wildlife Warden, Sulthan Bathery<br>9 Tahsildar, Sulthan Bathery<br>10 Tahsildar, Vythiri<br>11 Tahsildar, Mananthavadi<br>12 Deputy Director of Panchayats, Wayanad<br>13 Secretary, Municipality, Kalpeta<br>**----- End of picture text -----**<br> (Note: Officers listed at serial number 6 to 13 in Table B shall be called upon to inspect the building which comes under their respective administrative jurisdiction only. The Quorum of the Core Committee will be 3. The Additional District Magistrate & CEO, DDMA will be the Chairperson of the Core Committee.) v. If for any public purpose of the Government or for any other significant public purpose, it is felt that relaxation in the limits specified vide this order is necessary, the same will be considered and decided by the Chairman, District Disaster Management Authority, based on report and recommendation of Core Committee mentioned above. ## 10. This order shall be enforced and executed with immediate effect. Sd/- Chairperson; DDMA, District Collector & District Magistrate, Wayanad ## 9. That apart, instructions have also been issued in the matter of quarry, construction of building and soil cutting in Landslide WP(C) NO. 24055 OF 2019 :: 21 :: Hazard Zones vide Ext.R1(d). The above guidelines/instructions are in force for a longtime, since 2016 onwards. Nobody has ever challenged the same. Vulnerability of this district to landslide is very high. However, steps have been taken in all respects, with reference to the above subjects. 10. Having due consideration to the rival contentions, we are of the view that the District Disaster Management Authority have already taken sufficient measures to regulate flood and other disasters in the district. In our view, no further directions are required to be issued by this court, in this writ petition. Writ petition is disposed of. SD/- **S.MANIKUMAR CHIEF JUSTICE** SD/- **SHAJI P. CHALY JUDGE** jes WP(C) NO. 24055 OF 2019 :: 22 :: ## **APPENDIX** ## PETITIONER'S EXHIBITS > EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN WRIT PETITION NO.24806/2011 FILED BEFORE THE HIGH COURT OF MADRAS. - EXHIBIT P2 TRUE COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT DATED 29/01/2016. > EXHIBIT P2 TRANSLATED COPY OF EXT.P2. - EXHIBIT P3 THE DRAFT OF THE GUIDELINES FRAMED BY THE 1ST RESPONDENT DATED 08/2016. > EXHIBIT P4 TRUE COPY OF THE ORDER NO.314/2019-20/7617/M3/2019/DMG DATED THIRUVANANTHAPURAM 21/08/2019 ISSUED BY THE DIRECTOR OF MINING AND GEOLOGY. - EXHIBIT P4(a) TRUE MALAYALAM TRANSLATION OF THE ORDER NO.314/2019-20/7617/ M3/2019/DMG DATED THIRUVANANTHAPURAM 21/08/2019 ISSUED BY THE DIRECTOR OF MINING AND GEOLOGY. ## RESPONDENTS' EXHIBITS: > EXHIBIT R1(a) TRUE COPY OF THE ACTUAL GUIDELINES ISSUED BY THE DISTRICT DISASTER MANAGEMENT AUTHORITY FILE NO.DCWYD/167/2016 DATED AUGUST, 2016. > EXHIBIT R1(b) TRUE COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT NO.DCWYD/43/2016DEOC DATED 24.03.2017. > EXHIBIT R1(c) TRUE COPY OF THE PROCEEDINGS NO.2014/21178/12/H3 DATED 30.06.2015. > EXHIBIT R1(d) TRUE COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT FILE NO.DCWYD/9464/2019-DEOC 1 (APPROVED DATE). > EXHIBIT R1(e) TRUE COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT NO.DCWYD/8171/2018/DEOCO1 DATED 08.10.2018. - EXHIBIT R1(f) A COPY OF THE MINUTES OF THE MEETING OF THE DISTRICT DISASTER MANAGEMENT AUTHORITY, WAYANAD NO. DCWYD/345/2016/DEOC1 DATED 08.08.2019. //True Copy // P.S. TO JUDGE