The Kerala High Court held that any disaster management plan prepared by the District authority, after accepting considerations from local authorities, must be approved by the State Authority per Section 31(2) of the Disaster Management Act, 2005 (DM Act).

The Court allowed a Writ Petition challenging the order of the Panchayat Secretary rejecting the application of a house owner to convert his house from residential to homestay.

The Court emphasized that a change of occupancy should only be considered a prohibited activity if it significantly alters the building's use in a substantial manner.

The Bench of Justice Bechu Kurian Thomas observed, “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”.

Advocate Nisha John appeared for the Petitioner and Senior Government Pleader K. Amminikutty appeared for the Respondent.

The Petitioner approached the High Court by way of a Writ Petition challenging the order of the Panchayat Secretary. The Petitioner, who owned a house in Wayanad, sought to change the occupancy from residential to homestay to meet tourism demands. However, the Panchayat Secretary rejected the request, citing restrictions within 500 meters of the red zone imposed by the District Disaster Management Authority (DDMA).

The petitioner contended that his property is in a safe zone per the DDMA's zonation map, and the denial was based on an incorrect interpretation, treating the change of occupancy as construction.

The Court identified discrepancies in the definition of the term "landslide-prone area" as expanded by the DDMA. Initially encompassing the high-hazard zone, it was later clarified to include "all lands coming within 500 meters" from the boundary points. The Court accepted the petitioner's arguments questioning the validity of this expanded definition, citing the State Authority's denial of approval in its affidavit. Emphasizing that section 31(2) of the DM Act mandates State Authority approval for District Authority-prepared plans, the Court held the expanded definition legally void without such approval.

Furthermore, the Court observed the presence of several existing buildings between the high-hazard zone and the petitioner's property. “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 the 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”, the Bench added.

The Court held that a change of occupancy should not be treated as new construction unless it significantly alters the building's use.

Accordingly, the Court allowed the Petition and set aside the impugned order.

Cause Title: K. Tony Thomas v Vythiri Grama Panchayath (2023/KER/82321)

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