VERDICTUM.

IN

2023:KER:82321

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
FRIDAY, THE 22ND DAY OF DECEMBER 2023 / 1ST POUSHA, 1945
WP(C) NO. 19452 OF 2023
PETITIONER:

K. TONY THOMAS
1-C AMBER PARK,
CANNON SHED ROAD,
KOCHI, PIN - 682011
BY ADV NISHA JOHN

RESPONDENTS:

1 VYTHIRI GRAMA PANCHAYATH

VYTHIRI GRAMA PANCHAYATH OFFICE,
VYTHIRI, WAYANAD PIN - 673576
REPRESENTED BY ITS SECRETARY
2 DISTRICT DISASTER MANAGEMENT AUTHORITY,
WAYANAD COLLECTORATE, KALPETTA,
WAYANAD DISTRICT PIN - 673121
REPRESENTED BY ITS CHAIRMAN
3 KERALA STATE DISASTER MANAGEMENT AUTHORITY
VIKAS BHAVAN P.O., NANTHANCODU,
THIRUVANANTHAPURAM PIN - 695033
REPRESENTED BY ITS CHAIRMAN
4 STATE OF KERALA
REPRRESENTED BY CHIEF SECRETARY,
SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
BY SMT.K.AMMINIKUTTY, SR. GOVT. PLEADER
BY.ADV MANOJ RAMASWAMY

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR

ADMISSION ON 04.12.2023, THE COURT ON 22.12.2023 DELIVERED
THE FOLLOWING:
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“C.R.”

BECHU KURIAN THOMAS, J.

--------------------------------
W.P.(C) No.19452 of 2023
---------------------------------
Dated this the 22nd day of December, 2023

JUDGMENT

Petitioner has a house in Wayanad which was built in 1968.

Since Wayanad is a tourist destination, he applied for a change of

occupancy of the house from ‘'residential' to 'homestay' (category A1

to A2 as per the building rules) to cater to the demands of tourism.

However, by the impugned order dated 03.04.2023, the Secretary of

the 1st respondent Panchayat declined the request, stating that in

areas coming within 500 metres distance from the red zone, only

residential buildings of 200 sq.m alone are permitted to be

constructed in view of the order of the District Disaster Management

Authority (for short 'the DDMA').

2. Some areas of Wayanad are alleged to be prone to

landslides. The DDMA has prepared zonation maps under the

Disaster Management Act 2005 (for short DM Act). Petitioner pleaded

that his existing residential building is situated in the safe zone of the
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zonation map prepared by the DDMA, and no danger of any nature

has ever occurred in the nearby areas. In the meantime, DDMA had,

by an order dated 30-06-2015 issued under section 30(2)(iii) & (v),

imposed restrictions on new constructions above a particular height.

However, it is alleged that petitioner’s request for a mere change of

occupancy was declined on an apparent wrong interpretation by

treating the change of occupancy as a construction. It is further

pleaded that a homestay and a residential building are practically the

same and therefore, change of occupancy from a 'residence' to a

'homestay' has no significance. Petitioner has also alleged that

several buildings are under construction between the petitioner's

residence and the red zone, and while those buildings have been

permitted to be constructed and used, the change of occupancy

sought by the petitioner has been denied, apparently due to malafide

reasons.

3. Initially, a statement was filed on behalf of the 2 nd

respondent pointing out that petitioner's property is situated within

500 metres of the boundary point of high hazard zone. It was averred

that by two orders dated 21.08.2019 and 07.11.2019 the Chairman

DDMA Wayanad had imposed restrictions in the area marked as

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High Hazard Zone and all the land coming within 500 metres

distance from all boundary points of the said area in Wayanad. The

2nd respondent also stated that the petitioner's land was got

inspected by the Hazard Analyst on 14-08-2023, and it was reported

that the building falls within 500 metres of the boundary point of high

hazard zone. According to the 2 nd respondent since the property falls

under the term 'landslide prone area' as defined, the change of

occupancy as sought for, is against the substance of the order and

will lead to widespread misuse. It is also stated that since commercial

buildings will include regular movement of people as guests during

seasons, it would be difficult to evacuate and regulate the crowd in

times of emergency and disasters and therefore, only residential

houses, educational buildings, community and religious buildings,

hospitals and small industrial units are permitted that too, subject to

conditions.

4. Subsequently, on the direction of the court a counter

affidavit has been filed by the 2 nd respondent wherein it is mentioned

that the high hazard zone and all the land coming within 500 metres

distance from the boundary point of the high hazard zone are

depicted as 'landslide prone area' as per the order of the DDMA and
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those restrictions are applicable even to a change of occupancy.

According to the 2nd respondent, since certain types of constructions

are permitted in landslide prone areas, there would be a tendency to

construct a permitted building and thereafter change the nature of

occupancy to a prohibited activity, which will lead to widespread

misuse and, therefore, change of occupancy is also to be restricted.

5. The counter affidavit further stated that in the order dated

07.11.2019 - Ext.P7, it has been clarified that reference to the term

'landslide prone area' includes the area marked as high hazard zone

in the landslide zonation map and also the land coming within 500

metres distance from all the boundary points of the said area.

Explaining the term, it was pointed out that the landslide zonation

map, also known as the landslide susceptibility map, was approved

by the Kerala State Disaster Management Authority and the high

hazard zone is shown in red colour and is also known as 'red zone'.

The distance measured by the hazard analyst from the building of the

petitioner to the nearest boundary of the high hazard zone is 381.84

metres. It was also stated that the validity of Ext.P6 order was upheld

by this Court by judgment dated 21.09.2023 in W.P.(C) No. 1367 of

2023. The 2nd respondent also pointed out that within the distance of
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500 metres, six establishments exist, including an apartment at 370

metres from the red zone, a hotel at 308 metres, a Hotel

Management College at 41.95 metres and a Children's Park at 305

metres.

6. An affidavit has been filed by the 3 rd respondent, the Kerala

State Disaster Management Authority, contradicting the affidavit of

the 2nd respondent and asserting that the interpretation given by the

DDMA to the term 'landslide prone area' in its order dtd 07-11-2019

as including 500 metres from the boundary point of the high hazard

zone is not in consensus with the State Disaster Management Plan

2016 and is not scientifically tenable. The 3 rd respondent has further

stated that the 'landslide prone area' is determined scientifically and

has clear guidelines laid down by the scientific community in the

domain, and it cannot be determined arbitrarily by DDMA by

extending a buffer zone to a scientifically determined hazard zone.

Relying upon Section 31(2) of the Disaster Management Act, 2005

(for short 'the DMA'), it was stated that the interpretation given to the

'landslide prone area' and the District Plan prepared by the District

Authority must be after consultation with the local authorities having

regard to the National Plan and the State Plan and must be approved
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by the State Authority. It is pointed out that the Kerala State Disaster

Management Authority has not endorsed or approved the definition of

the 'landslide prone area' given by the DDMA and therefore, they are

required to amend the said interpretation in tune with the State

Disaster Management Plan and in consultation with the office of the

Kerala State Disaster Management Authority to ensure that the

definition of the term 'landslide prone area' is uniform across the

State and is scientific and not arbitrary.

7. A reply affidavit has been filed by the petitioner stating that

the petitioner's building is situated in a safe zone as per the zonation

map and that it is a single storied building having a height of less

than 5 metres with only five bedrooms and a maximum of 10 persons

alone could be accommodated. Petitioner further alleges that there

are homestays and hotels inside the hazard zone having more than

45 rooms and permitted to operate apart from the construction of an

adventure park being carried on at a distance of less than 25 metres

from the red zone and once made operational, a large number of

tourists will flock. Petitioner also asserted that his building conforms

to all the safety standards and has only an occupancy of 10 persons,

and therefore change of occupancy could not have been declined.

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8. I have heard Smt. Nisha John learned counsel for the

petitioner, Sri. Manoj Ramaswamy learned Standing Counsel for the

Panchayat and Smt. K. Amminikutty, the learned Senior Government

Pleader.

9. Petitioner seeks a change of occupancy of an existing

building from ‘A1’ residential to ‘A2’ homestay category. Since only a

change of occupancy alone is sought, concededly, no construction is

required to be carried out. A homestay and a residential house are

both intended for residential purposes. The only distinction is that the

former has no commercial relevance while the latter intends to cater

to tourists of a limited number for commercial benefits. For fiscal

purposes, both could be different, but the nature of use remains

residential, with only limited number of persons. Those persons can

even otherwise be accommodated in the same house, but without

any commercial benefit to the owner.

10. When DDMA issued Ext.P6 order, it defined the term

'landslide prone area', as including the high hazard zone in the

landslide zonation map. Subsequently, by Ext.P7 order dated

07.11.2019, DDMA clarified that a landslide-prone area would include

“all lands coming within 500 metres of all the boundary points of the
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said area”. The expansion of the term landslide-prone area is

questioned by the petitioner.

11. As per Section 31(2) of the DM Act, the District Plan has to

be prepared by the District Authority after consultation with the local

authorities, having due regard to the National Plan and the State

Plan and must be approved by the State Authority. High-hazard

zones, or red zones as they are called, are already marked in the

zonation maps as areas where no construction is permissible. They

are marked as such due to their vulnerability to landslides. These are

scientifically identified as is evident from the affidavit of the third

respondent.

12. However, as mentioned earlier, by Ext.P7 order dated

07.11.2019, DDMA clarified that landslide prone area will include “all

lands coming within 500 metres distance from all the boundary points

of the said area”. In this context, it is curious to note that though the

2nd respondent stated that the map was approved by the State

Authority, the 3rd respondent-State Authority has denied approval for

the extended definition of landslide prone area. Significantly, the 3 rd

respondent, in its affidavit, has stated that the said definition has not

been approved by the Kerala State Disaster Management Authority.

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Though Section 30(2) of the DM Act confers power upon the District

Authority to prepare District Plans, Section 31(2) of the DM Act

requires that the State Authority must approve the plans prepared by

the District Authority. As the definition given to the term 'landslide

prone area' as widened by Ext.P7 has not been approved by the

State Authority, under no circumstances can the landslide-prone area

include a distance of 500 metres from the high-hazard zone.

13. In the decision in Radhakrishnan v. State of Kerala (W.P.

(C) No.1367 of 2023), a learned Single Judge of this Court had

approved Ext.P6. A reading of the said judgment reveals that though

section 30(2) of the DM Act was referred to, Section 31(2) of the DM

Act was not brought to the notice of the Court. Hence, the

requirement of approval by the State Authority was not considered by

the Court. Thus, the judgment in W.P.(C) No.1367 of 2023 is per

incurium. The Member-Secretary of the 3rd respondent has filed an

affidavit stating that approval has not been granted for the term

landslide prone area as expanded by DDMA Wayanad and also that

the interpretation given by the District Authority is not in consensus

with the State Plan. Without the State Authority's approval,

expanding the term landslide-prone area to include a distance of 500

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metres from the high-hazard zone cannot be legally valid.

14. Notwithstanding the above, the affidavit of the 2 nd

respondent reveals that there are several buildings already in

existence between the high-hazard zone and the petitioner's

property. This includes an Apartment, a Hotel, a Hotel Management

College and a Children's Park under construction. It fails all logic

and reason as to how these constructions can be permitted or

function when a mere change of occupancy sought for by the

petitioner is refused. It is also noticed that the petitioner's residential

house is situated beyond 360 metres, and even a road passes in

between the petitioner's house and the red zone. The denial of

petitioner's request for a change of occupancy is therefore arbitrary.

15. Further, a perusal of the pleadings in the case reveals that

the petitioner has been subjected to unfair treatment by the

respondents while rejecting his application for a change of

occupancy. None of the orders issued by the State Disaster

Management Authority or the District Disaster Management Authority

contemplate a change of occupancy as a prohibited activity. Ext.P6

only prohibits the construction of new buildings above a particular

height. Change of occupancy cannot be equated with new

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construction. Unless the proposed change of occupancy has a

serious impact on the nature of the use of the building, it cannot, by

any stretch of imagination, be brought within the purview of

prohibited activity under Ext.P6. The change from residential to

homestay without any addition to the rooms of the building cannot

have any such serious impact.

16. In view of the above discussion, Ext.P2 issued by the 1 st

respondent is patently illegal and arbitrary. Accordingly, Ext.P2 is set

aside. There will be a direction to the Secretary of the 1 st respondent

to reconsider petitioner's application dated 07-02-2023 for change of

occupancy in the light of the above discussion and issue an

appropriate order in accordance with law, in a time bound manner, at

any rate, within thirty days from the date of receipt of a copy of this

judgment.

The writ petition is allowed as above.

Sd/-

BECHU KURIAN THOMAS

JUDGE
vps
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APPENDIX

PETITIONER'S/S' EXHIBITS
EXHIBIT P1 TRUE COPY OF THE R.R DEMAND NOTICE DT.
09.11.1988 ISSUED BY VYTHIRI GRAMA
PANCHAYAT
EXHIBIT P2 TRUE COPY OF THE ORDER DT. 03.04.2023
ISSUED BY ASSISTANT SECRETARY OF 1ST
RESPONDENT
EXHIBIT P3 TRUE COPY OF THE ORDER DT. 13.03.2023
ISSUED BY THE DISTRICT COLLECTOR AS
CHAIRMAN OF DDMA
EXHIBIT P4 TRUE COPY OF THE ORDER DT. 30.06.2015
ISSUED BY THE CHAIRMAN OF THE 2ND
RESPONDENT
EXHIBIT P5 TRUE COPY OF THE ORDER DT. 07.11.2019
ISSUED BY THE CHAIRMAN OF THE 2ND
RESPONDENT
EXHIBIT P6 TRUE COPY OF THE ORDER DT. 21.08.2019
ISSUED BY THE CHAIRMAN OF DDMA THE 2ND
RESPONDENT
EXHIBIT P7 TRUE COPY OF THE ORDER DT. 07.11.2019
ISSUED BY THE CHAIRMAN OF DDMA THE 2ND
RESPONDENT
EXHIBIT P8 TRUE COPY OF THE NOC ISSUED BY THE
POLICE DT. 29.07.2022
EXHIBIT P9 TRUE COPY OF THE SANITARY CERTIFICATE
ISSUED BY THE HEALTH INSPECTOR DT.
29.12.2022
EXHIBIT P10 TRUE COPY OF THE REGISTRATION
CERTIFICATE ISSUED BY THE KERALA STATE
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POLLUTION CONTROL BOARD DT. 14.12.2022

EXHIBIT P11 TRUE COPY OF THE MAP SHOWING THE HIGH
HAZARD ZONE AND THE RADIAL DISTANCE FROM
PETITIONERS' BUILDING
EXHIBIT P12 SKETCH PREPARED BY AN ENGINEERING
CONSULTANT WORKING FOR DEPARTMENT OF
MUNICIPAL ADMINISTRATION GOVT. OF KERALA
SHOWING ALL THE CONSTRUCTIONS NEAR THE
RED ZONE