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2023 Supreme(Ker) 911
IN THE HIGH COURT OF KERALA AT ERNAKULAM
BECHU KURIAN THOMAS, J.
K. Tony Thomas – Appellant
Versus
Vythiri Grama Panchayath – Respondent
WP(C) No. 19452 of 2023
Decided on : 22-12-2023
Advocate Appeared:
For the Appellant : NISHA JOHN
For the Respondent: SMT.K.AMMINIKUTTY, MANOJ RAMASWAMY
The main legal point established in the judgment is that the expansion of terms under the Disaster Management Act 2005 requires approval by the State Authority, and change of occupancy cannot be equated with new construction.
Headnote:
Disaster Management Act 2005, Section 30(2)(iii) & (v), Section 31(2) - Change of Occupancy - Building Rules - The court discussed the interpretation of the term 'landslide prone area' and its expansion to include a distance of 500 metres from the high-hazard zone. It highlighted the requirement of approval by the State Authority for such expansion and emphasized that change of occupancy cannot be equated with new construction under the Disaster Management Act 2005. The court set aside the impugned order and directed the reconsideration of the application for change of occupancy.
Fact of the Case:
The petitioner sought a change of occupancy of a residential building to a homestay in a tourist destination. The request was declined by the Panchayat Secretary citing restrictions imposed by the District Disaster Management Authority (DDMA) under the Disaster Management Act 2005.
Finding of the Court:
The court found that the expansion of the term 'landslide prone area' to include a distance of 500 metres from the high-hazard zone was not legally valid as it lacked approval from the State Authority. It also concluded that the denial of the petitioner's request for a change of occupancy was arbitrary and set aside the impugned order.
Issues: The key issues included the interpretation of the term 'landslide prone area' under the Disaster Management Act 2005, the legality of the denial of the change of occupancy, and the fairness of treatment by the respondents.
Ratio Decidendi: The court emphasized the requirement of approval by the State Authority for any expansion of the term 'landslide prone area' and clarified that change of occupancy cannot be equated with new construction under the Disaster Management Act 2005.
Final Decision: The court set aside the impugned order and directed the reconsideration of the application for change of occupancy by the Panchayat Secretary.
JUDGMENT :
Petitioner has a house in Wayanad which was built in 1968. Since Wayanad is a tourist destination, he applied for a change of occupancy of the house from ‘'residential' to 'homestay' (category A1 to A2 as per the building rules) to cater to the demands of tourism. However, by the impugned order dated 03.04.2023, the Secretary of the 1st respondent Panchayat declined the request, stating that in areas coming within 500 metres distance from the red zone, only residential buildings of 200 sq.m alone are permitted to be constructed in view of the order of the District Disaster Management Authority (for short 'the DDMA').
2. Some areas of Wayanad are alleged to be prone to landslides. The DDMA has prepared zonation maps under the Disaster Management Act 2005 (for short DM Act). Petitioner pleaded that his existing residential building is situated in the safe zone of the zonation map prepared by the DDMA, and no danger of any nature has ever occurred in the nearby areas. In the meantime, DDMA had, by an order dated 30-06-2015 issued under section 30(2)(iii) & (v), imposed restrictions on new constructions above a particular height. However, it is alleged that petitioner’s request for a mere change of occupancy was declined on an apparent wrong interpretation by treating the change of occupancy as a construction. It is further pleaded that a homestay and a residential building are practically the same and therefore, change of occupancy from a 'residence' to a 'homestay' has no significance. Petitioner has also alleged that several buildings are under construction between the petitioner's residence and the red zone, and while those buildings have been permitted to be constructed and used, the change of occupancy sought by the petitioner has been denied, apparently due to malafide reasons.
3. Initially, a statement was filed on behalf of the 2nd respondent pointing out that petitioner's property is situated within 500 metres of the boundary point of high hazard zone. It was averred that by two orders dated 21.08.2019 and 07.11.2019 the Chairman DDMA Wayanad had imposed restrictions in the area marked as High Hazard Zone and all the land coming within 500 metres distance from all boundary points of the said area in Wayanad. The 2nd respondent also stated that the petitioner's land was got inspected by the Hazard Analyst on 14-08-2023, and it was reported that the building falls within 500 metres of the boundary point of high hazard zone. According to the 2nd respondent since the property falls under the term 'landslide prone area' as defined, the change of occupancy as sought for, is against the substance of the order and will lead to widespread misuse. It is also stated that since commercial buildings will include regular movement of people as guests during seasons, it would be difficult to evacuate and regulate the crowd in times of emergency and disasters and therefore, only residential houses, educational buildings, community and religious buildings, hospitals and small industrial units are permitted that too, subject to conditions.
4. Subsequently, on the direction of the court a counter affidavit has been filed by the 2nd respondent wherein it is mentioned that the high hazard zone and all the land coming within 500 metres distance from the boundary point of the high hazard zone are depicted as 'landslide prone area' as per the order of the DDMA and those restrictions are applicable even to a change of occupancy. According to the 2nd respondent, since certain types of constructions are permitted in landslide prone areas, there would be a tendency to construct a permitted building and thereafter change the nature of occupancy to a prohibited activity, which will lead to widespread misuse and, therefore, change of occupancy is also to be restricted.
5. The counter affidavit further stated that in the order dated 07.11.2019 -Ext.P7, it has been clarified that reference to the term 'landslide prone area' includes the area marked
