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2022 Supreme(Online)(KER) 154
HIGH COURT OF KERALA
P.V.KUNHIKRISHNAN, J
Shabana – Appellant
Versus
State of Kerala – Respondent
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For the Appellants/Petitioners: Arun Mathew Vadakkan, Abdul Rashiq A.
For the Respondents: Vidya Kuriakose, GP
The Chairman of the District Disaster Management Authority cannot issue general orders without an emergent situation, as per the provisions of the Disaster Management Act.
Headnote:(A) Disaster Management Act, 2005 - Sections 26(2), 30, 33, 34 - Environmental protection - Challenging order of District Disaster Management Authority regarding earth removal and deposit - Authority needs emergent situation to issue general order, not exercised correctly - The impugned order was issued without authority hence quashed. (Paras 8, 10, 19)
(B) Jurisdiction - The roles of the District Disaster Management Authority vs Geological permissions clarified - Highlighting necessity for preserving wetlands and managing environmental disasters. (Paras 5, 6, 14)
Facts of the case:
Batch of petitions concerning environmental regulations on soil removal in Kollam district - Contention regarding authority and jurisdiction of Chairman, District Disaster Management Authority as against the Mining and Minerals Regulations.
Findings of Court:
Chairman of the District Authority does not have the jurisdiction to pass the impugned general order without an emergent situation.
Issues: Jurisdictional conflict regarding the Chairman's authority in issuing orders on soil removal and preservation of wetlands highlighting the importance of adhering to the Disaster Management Act.
Ratio Decidendi: Clear demarcation of powers and authorities under the Disaster Management Act emphasized - Validity of orders where Environmental concerns arise must be maintained.
Result: The impugned order is quashed; the authorities can pass orders in accordance with the Disaster Management Act.
| Table of Content |
|---|
| 1. batch of petitions challenging the order of the district disaster management authority regarding earth removal. (Para 1 , 2) |
| 2. introduction of points regarding jurisdiction and authority to pass orders. (Para 5 , 6) |
| 3. impugned order addressed the potential environmental concerns. (Para 8 , 10) |
| 4. clarification of the need for an emergency situation to invoke powers. (Para 14) |
JUDGMENT
All these batch of cases are filed challenging order No. DCKLM/1827/2020-DM2(5) dated 02.07.2021 (hereinafter referred to as the impugned order) passed by the Chairman, District Disaster Management Authority, Kollam. Since all these cases are filed challenging the very same order, I am disposing of this batch of writ petitions by a common judgment.
2. The impugned order passed by the Chairman is a detailed order that deals with the environmental aspects and the need to protect the same for the well being of the people. It is stated in the impugned order that the land in Kollam district is rich in natural freshwater reservoirs that includes fields, creeks, and other wetlands. It is stated that, during the Monsoon season, these reservoirs contain floodwaters which in summer helps keep the water table of the nearby wells, ponds, and other freshwater sources low. It is further stated that all that has become a myth throughout the Kollam District. It is further stated that much of the area in the district was waterlogged, and today the area is shrinking and is on the verge of oblivion. The apprehension raised by the Chairman in the impugned order is that there is a rush to fill up the last few wetlands and use them for commercial purposes. This has been brought to the notice of the Chairman by the general public through social media. According to the Chairman, Disaster Management Authority, the above acts will endanger the very existence of man. It is also stated that it is impossible to restore the wetlands that have been subjected to such malpractices. It is further stated that, in a densely populated district like Kollam, permission is given to remove soil with restrictions for a number of reasons. The most important of these reasons is granting permission to remove soil to avoid the threat of disaster as part of the Disaster Management activities. It is conceded by the Chairman, Disaster Management Authority that such permission is strictly legal and is granted only on the basis of site inspection and favourable recommendations of the Tahsildar concerned and Geologist. It is only to avoid the threat of disaster. It is also stated that the Disaster Management permissions are issued with strict conditions to monitor where the soil is deposited and to ensure that it is not dumped into the ground or other wetlands for any reason. The permit also stipulates that the earth soil is to be deposited in such places only with the prior permission of the Jurisdictional Tahsildar.
3. It is submitted that the permission for the removal of soil for various development purposes is being granted by the Department of Geology. The permission issued by the Department of Geology does not contain any provision as to where the soil so removed is to be placed. It is submitted by the Chairman, Disaster Management Authority that, complaints have also been received that the soil removed in this way is being used to fill wetlands and paddy fields. According to the Chairman, Disaster Management Authority, conditions similar to those set out in the permit issued under the Disaster Management Act, 2005 (In short, the Act 2005) is necessary to prevent this utterly undesirable acts. Hence a condition is imposed in the impugned order passed by the Chairman, Disaster Management Authority to deposit the removed earth on dry lands only, as the practice of paddy and wetland filling is on the rise which has already led to various environmental disaster. According to the Chairman, Disaster Management Authority, unless this prior permission of depositing the removed soil
