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Disaster Management Act Statutorily Recognizes Apat Dharma, Overrides Other Laws During Disasters: Kerala High Court

Hannah M Varghese
19 Nov 2021 11:59 AM GMT
Disaster Management Act Statutorily Recognizes Apat Dharma, Overrides Other Laws During Disasters: Kerala High Court
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The Kerala High Court has ruled that the Disaster Management Act, 2005 provides statutory recognition to the principle of Apat Dharma and that in times of disasters, the Act will override other laws in times of disasters since it is intended to protect lives. Justice N Nagaresh observed that without the Act having such overriding power, all other rights liberties and freedoms...

The Kerala High Court has ruled that the Disaster Management Act, 2005 provides statutory recognition to the principle of Apat Dharma and that in times of disasters, the Act will override other laws in times of disasters since it is intended to protect lives. 

Justice N Nagaresh observed that without the Act having such overriding power, all other rights liberties and freedoms will lose their meaning.

"Section 72 of the Disaster Management Act, 2005, in effect, gives the general law of "Apat Dharma", a statutory recognition. In times of disasters, the Disaster Management Act, 2005 will and should override the provisions of other laws, because the Act is intended to protect the very life of the citizens, without which the words right, liberty or freedom and even the word Constitution will have no meaning."

In its order, the Bench also pondered over Apat-Dharma in times of danger:

"Providing for special laws to govern difficult times, overriding or even superseding ordinary laws, is not a novel concept or invention of modern democracies. Deliberate freezing of or departure from ordinary laws during difficult times, existed in all societies, even in monarchies, theocracies and other forms of States. In India, such special legal mandates were described as "Apat-Dharma". Apat-Dharma means a course of procedure not usually proper or permissible in ordinary times but allowable in times of extreme distress or calamity." 

The Court further added that the laws meant to govern the times of peace may become insufficient and even hurdles to tackle situations in extraordinary times like war, calamities, catastrophes, pandemics and disasters.

"A democratic State should have the power to make such laws which would help to overcome such disasters with least hardship and loss of life and property of its citizens." 

The Court was hearing a plea challenging the mechanised loading and transportation of mineral sand from the river mouth at Thottappally Pozhi (sandbank between the sea and backwaters), situated amidst the paddy fields at Alappuzha. 

During heavy monsoon, the rivers in neighbouring districts overflow and the floodwater enter the region causing damage to the paddy land. Therefore, the Central Government constructed an 11-km long artificial water canal to drain floodwater to the Arabian sea.

According to the petitioners, the sand dunes created by the sea act as a strong barrier to resist the impact of natural calamities. If these sand dunes are removed, then high tidal waves will reach the land causing damage to the area, they contended.

However, mining companies are apparently permitted to remove the sand dune at the Pozhi mouth and therefore, they sought directions prohibiting the same.

The petitioners argued that permitting the operation of mining companies violates the provisions of several legislations including the Mines and Minerals (Development and Regulation) Act, Environment (Protection) Act, and Coastal Regulation Zone (CRZ) Notification.

The Court found that the removal of the sand bar from downstream of Thottappally Spillway pursuant to the orders passed in exercise of powers under the Disaster Management Act would not amount to "mining operations" as defined under Section 3(d) of the Mines and Minerals (Development and Regulation) Act since winning of minerals is not the primary or secondary intent, purport or priority behind the removal of the sandbar.

Regarding whether the activity carried out by the respondents requires Environmental Clearance, the Court noted that the Central, in the exercise of the powers conferred by Section 3 of the Environment (Protection) Act, 1986 has amended the EIA Notification, 2006.

Moreover, the High Court of Uttarakhand in Jai Prakash Badoni and Ors v. Union of India and Ors. had held that having regard to the public purpose underlying the maintenance of water bodies, if the dredging is undertaken for the purpose of maintaining water bodies, no environmental clearance is required.

The petitioner's contention that the desilting operations being carried out violates CRZ Notification was also rejected as paragraph 3(iv)(d) of the CRZ Notification 2011 will not be applicable to the case since the activity undertaken is not for land reclamation, bunding or disturbing the natural course of seawater.

Finally, the question before the Court was whether there were any violations of the Disaster Management Act.

The Court recalled the constant threat of disaster that has tormented the State, especially those living in the Kuttanad area, ever since the 2018 floods.

"The fact that Kerala experienced and was tormented with disastrous floods in the years 2018 and 2019 cannot be disputed. In fact, in the current year also, Kerala is under the threat of floods and has already suffered loss of life due to landslides resultant of heavy rains, though such calamity was not in the Thottappally area. The heavy rains coupled with slow discharge of stormwater through the Thottappally Spillway to sea has inundated a considerable area in Kuttanad during this year also." 

Finding that Section 72 of the Act gives overriding effect to the provisions of the Act, the petitions were dismissed.

Case Title: MH Vijayan v. State of Kerala

Click Here To Read/Download The Order


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