Disaster Management Act | District Authority Can't Issue Memo To Stop Construction Over Ground Water Depletion: Kerala High Court

The Kerala High Court recently clarified that the District Disaster Management Authority or its Chairperson cannot issuse a stop memo to a person barring all construction activities under the Disaster Management Act.The court was considering whether the Disaster Management Authority or the Chairperson invoking the powers under Section 26(2) can issue direction or stop memo in exercise of the powers under Section 30(2)(v) of the Act. Section 30(2)(v) underlines power of the District Authority to give directions to different authorities at the district level and local authorities to take such other measures for the prevention or mitigation of disasters as may be necessary. Justice C. Jayachandran held that the Act does not confer any powers upon the District Authority or its Chairperson, the District Collector, to directly take any measures but only to give necessary directions to the competent authorities.“A perusal of Section 30, which deals with the powers and functions of the District Authority, would not reveal any such power for the District Authority to give notice or stop memo to an individual…It could thus be seen that Section 30(2)(v) contemplates giving directions to different authorities at the district level and local authorities to take such measures for the prevention or mitigation of disaster, as may be necessary. The powers of the District Authority is only to give necessary directions to the competent district level authority to take such measure; and not to take such measure directly by the District Authority… the Chairperson is empowered to exercise all or any of the powers of the District Authority in case of emergency, subject to the condition that the action taken in exercise of the power has to obtain ex post facto ratification by the District,” the Court remarked.The challenge before the Court was against a stop memo issued by the District Collector asking the petitioner to stop all construction activities on a site on the allegation that the ground water level of the area was depleted due to huge quantities of water pumped by it from low-lying areas.According to the stop memo, purportedly issued under Section 30(2)(v) of the Act, the depletion of groundwater constituted a 'disaster', which occurred during the construction of an apartment complex by the petitioner.The petitioner alleged that the stop memo was in violation of the principles of natural justice since no notice was issued to it. It was also contended that the District Collector does not have the power to issue such a stop memo. The petitioner argued that Section 30(2)(v) contemplates only giving directions to authorities and not to individuals. Lastly, it was pointed out that the allegation in the stop memo does not constitute a disaster as defined under the Act.The government pleader, on the other hand, submitted that the power exercised was that under Section 26(2) and the provision was misquoted in the stop memo. It was also contended that a steep decrease in the groundwater level constitutes an emergency since there was a chance for acute scarcity of water due to summer season. Further, it was pointed out the issuance of stop memo was necessitated because of complaints from the locals.After hearing the parties, the Court was of the opinion that there were merits in the petitioner's case. It remarked that since the stop memo was not issued following a meeting of the District Authority, it seems to have been issued in the individual capacity of the District Collector by usurping the powers of the Authority.The Court further observed that even by Section 26 of the Act, the District Collector has only those powers vested with the Authority and if any power is exercised by the District Collector in emergency situation, the same requires ratification by the District Authority.“to invoke the powers under Section 26(2), the situation should be a real emergency, wherein the convening of a meeting by the District Authority is a practical impossibility. Rather, action is warranted immediately and waiting for the outcome of the Authority meeting will make the disaster happen; and if already happened, worse,” it added.Next, the Court considered the question whether depletion of groundwater would constitute an emergency, requiring the Chairperson/District Collector to act without convening a meeting of the District Authority.It was answered in the negative:“It is seriously at doubt whether the instant event of groundwater level depleting can be treated as disaster as defined under Section 2(d) of the Act. Even if the same is assumed, there is nothing to indicate a pressing emergency leaving little time for the Disaster Management Authority, the competent body under the Act, to take necessary action… At any rate, there is no case for the respondents that the action of the Chairperson has obtained ex post facto ratification by the District Authority.”Thus, the Court was of the view that the stop memo has to be quashed. It was...

Disaster Management Act | District Authority Can't Issue Memo To Stop Construction Over Ground Water Depletion: Kerala High Court

K. Salma Jennath

Tags