Authority must follow jurisdictional mandates; notices issued under the Disaster Management Act by an unauthorized person cannot be upheld.

JUDGMENT :

ZIYAD RAHMAN A.A., J.

1. The petitioner is the owner of a four storied building named “Melby Towers” which was constructed with a plinth area of 6400 Square Feet in the property comprised in Re.Sy No. 440/1 and 440/1-2 in Block No. 19 of Chavara Village. The said property comes within the territorial jurisdiction of the 1^st respondent Panchayat. In the year 2020, a portion of the building was acquired by the National Highway Authority of India for the purpose of widening of NH 66 and accordingly, that portion of the building has been demolished. The remaining portion of the building contains 13 rooms bearing Door Nos.469 to 481.

2. Now the grievance of the petitioner is that, Ext.P4 notice was issued by the 2^nd respondent to the petitioner, directing the petitioner to remove the said building on the reason that, the said building is in a dangerous situation. The said notice was issued under the provisions of Disaster Management Act. Thereafter, Ext.P6 notice was issued, reiterating the said directions requiring the petitioner to demolish the building within a period of 15 days. Even though the petitioner challenged the said notices before the Tribunal for Local Self Government Institutions, by filing an appeal under Section 276 of Kerala Panchayat Raj Act, the same was not entertained by the Tribunal, and it was returned as per Ext.P7 order stating that, as the notice was issued under the provisions of the Disaster Management Act, 2005 no appeal before the Tribunal is maintainable. This writ petition is submitted in such circumstances.

3. A counter affidavit has been submitted by the respondents 1 and 2, wherein it is averred that, after issuance of Ext.P6 they have issued a provisional order as evidenced by Ext.R2(d) under the provisions of the Kerala Panchayat Raj Act, requiring the petitioner to remove the said building, instead of the provisions under the Disaster Management Act, 2005. Ext.R2(d) is the said provisional order issued by the Panchayat.

4. I have heard Sri.S.Sreekumar (Kollam), the learned Counsel for the petitioner and Sri.M.R. Sasith Panicker, learned Standing Counsel for the respondents.

5. The challenge raised in this writ petition is against Ext.P4 notice, which is issued under the provisions of Disaster Management Act, 2005. One of the contentions raised by the learned Counsel for the petitioner is that, as far as the 2^nd respondent is concerned, he is not competent to issue any notice invoking the powers under the provisions of the Disaster Management Act as a separate mechanism and authorities are contemplated under the said Act for taking action under the same. The Secretary of the Panchayat is not among the authorities contemplated therein.

6. However, now it is discernible from Ext.R2(d) that, a fresh provisional order under the provisions of the Kerala Panchayat Raj Act has been issued by the 2^nd respondent, requiring the petitioner to demolish the said building. By virtue of issuance of Ext.R2(d), it is evident that the 2^nd respondent is not intending to pursue the notice issued as per Ext.P6, which is under the provisions of Disaster Management Act, 2005, as apparently, the same is beyond the powers of the 2^nd respondent.

Now, since Ext.R2(d) notice has been issued to the petitioner which is a provisional order, it is for the petitioner to submit an objection to the same, and the Secretary shall finalize the proceedings after considering the objections and hearing the petitioner.

In such circumstances, this writ petition is disposed of, clarifying that, it shall not be open for the 2^nd respondent to pursue further proceedings on the basis of Ext.P6. However, the petitioner may submit objection against Ext.R2(d) notice and if such an objection is submitted within a