[Disaster Management Act 2005] District Authority Can't Expand 'Landslide Prone Area' Definition Sans State Authority's Approval: Kerala HC

In this case, the petitioner's application for change of occupancy from residence to homestay in Wayanad was rejected stating that his house comes within 500 meters distance from a high hazard zone as per DDMA and was construed as a 'landslide prone area'.

Justice Bechu Kurian Thomas while setting aside the order stated that DDMA has prepared zonation maps and expanded the definition of 'landslide prone area' without approval from the State Authority. It held thus:

“Though Section 30(2) 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.”

The petitioner submitted that his house comes within the safe zone of the zonation map prepared by DDMA and constructions were permitted in nearby areas. He argued that his change of occupancy was wrongly interpreted as construction. It was submitted that the change of occupancy from residence to homestay has no significance and was practically the same.

The DDMA submitted that the petitioner's property falls within 500 meters from the boundary point of the high-hazard zone and was construed as a 'landslide-prone area'. It was contended that since the land falls under a landslide-prone area, a change of occupancy to homestay would attract guests to that area which could make it difficult to regulate during disaster or emergency.

The DDMA filed a counter affidavit stating that the 'landslide prone area' includes the area marked as high hazard zone in the landslide zonation map and also the land coming within 500 metres distance from all the boundary points of the said area.

On the other hand, SDMA submitted that the DDMA cannot arbitrarily determine landslide-prone areas by extending a buffer zone to a scientifically determined hazard zone. It was submitted that the order of DDMA construing all areas within 500 meters from the boundary point of the high hazard zone was scientifically untenable and contrary to the State Disaster Management Plan 2016. It was also stated that as per Section 31(2) DM Act, the definition of 'landslide prone area' adopted by DDMA should be endorsed or approved by SDMA.

The Court found that the petitioner only seeks for a change of occupancy from residence to homestay involving no construction. It held thus:

“A homestay and a residential house are both intended for residential purposes. The only distinction is that the former has no commercial relevance while the latter intends to cater to tourists of a limited number for commercial benefits. For fiscal purposes, both could be different, but the nature of use remains residential, with only limited number of persons. Those persons can even otherwise be accommodated in the same house, but without any commercial benefit to the owner.”

The Court stated that as per Section 31 (2) of the DM Act, the District plan prepared by DDMA should align with the National Plan and state Plan and must be approved by the SDMA. It stated that high-hazard zones were areas where construction was impermissible. It held that SDMA has rejected the expansion of the definition of 'landslide prone area' to include all areas within 500 meters of the high-hazard zone. Thus, the Court held that DDMA, without approval from SDMA cannot include areas within 500 meters of high-hazard zone as 'landslide prone areas'.

“The Member-Secretary of the Panchayat 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 the high-hazard zone cannot be legally valid”, the Court stated.

Furthermore, the Court held that change of occupancy cannot be equated with new construction.

Accordingly, the Court allowed the writ petition and set aside the order issued by the Panchayat Secretary rejecting the change of occupancy from residence to homestay.

Counsel for the petitioner: Advocate Nisha John

Counsel for the respondents: Senior Government Pleader K Amminikutty, Advocate Manoj Ramaswamy

Citation: 2023 LiveLaw (Ker) 762

Case title: K Tony Thomas v Vythiri Grama Panchayath

Case number: WP(C) NO. 19452 OF 2023

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