An order under the Disaster Management Act cannot compel a party to construct measures without proper authority when no disaster is established.

JUDGMENT :

VIJU ABRAHAM, J.

1. Above writ petition is filed challenging Ext.P5 order of the 1st respondent.

2. Brief facts necessary for the disposal of the writ petition are as follows:-

Petitioner is a native of Kannur District who has purchased 3.3. ares of property in R.S. No.35/7 of Edakkad amsom, Attadappa desom in Kannur Taluk as per registered Jenmam Deed No.372 of 2011 of SRO Kadachira. At the time of purchase, there was a small house in it, which was reconstructed by the petitioner, and he is residing there along with his family. Respondent No.2 is the son of respondent No.3, and respondent No.3 has purchased property on the western side of the property of the petitioner, and thereafter a portion of the property was assigned to the 2^nd respondent, his son. It is contended that the 2^nd respondent started to construct a house in the property on the western side of the property of the petitioner by encroaching upon the petitioner’s property.

3. Petitioner submits that after the purchase of property in the year 2011, the property was levelled to that of the road level, and the petitioner reconstructed the house. Due to some illegal construction activities undertaken in the property of the 2^nd and 3^rd respondents, rainwater started to flow from the said property into the petitioner’s property. Thereupon, Ext.P1 complaint was preferred before the Revenue Divisional Officer, Thaliparamba. As no action was taken on the said complaint, the petitioner has filed a suit before the Munsiff Court, Thalassery, as OS No.157/2020 to remove the illegal construction made by the 2^nd respondent. A commission was taken out, and Ext.P3 report was filed, in which it is reported that the property of the 2^nd respondent is situated above 10 feet high and that a water channel can be seen, through which water is flowing from the property of the 2^nd respondent to the petitioner’s property. While so, a complaint was preferred by the 2^nd respondent before the 1^st respondent, the District Disaster Management Authority represented by its Chairman and District Collector, Kannur, before whom the petitioner appeared and submitted Ext.P4 affidavit. In Ext.P4 affidavit, the pendency of the civil case before the Munsiff Court, Thalassery, regarding the very same subject matter was brought to the notice of the 1^st respondent. But the 1^st respondent, without considering any of the contentions of the petitioner, passed an order under Section 33 of the Disaster Management Act, 2005 (hereinafter referred to as the ‘Act, 2005’) directing the petitioner to construct a safety wall and also directed the Engineering Section attached to the Kannur Municipal Corporation to monitor the work. It is aggrieved by the same that the present writ petition has been filed.

4. Petitioner would submit that the 1^st respondent has absolutely no authority to issue an order in the nature of Ext.P5 invoking the power under Section 33 of the Act, 2005. Petitioner, relying on the definition of a Disaster as provided under Section 2 (d) of the Act 2005, submits that the present situation is not a disaster as contemplated by the Act 2005 and therefore Ext P5 order is bad in law.

5. A detailed counter-affidavit has been filed by respondents 2 and 3, wherein it is contended that it was assured by the petitioner that a retaining wall would be constructed after the excavation is over to avoid a landslide, but the petitioner later reneged from the said assurance. On the complaint made by the petitioner Ext.R2(b) report was filed by the Tahsildar to the District Collector intimating that the house of the respondents is in a dangerous situation, and further that initial stages of landslide due to unscientific excavation carried out by the petitioner is noticed just one meter away from the house of the respondents. A similar report was submitted by the Geologist als