Remanded

T.N.Ashok Kumar v. the District Collector

Kerala HC1 Nov 2017WA/1965/2017

Case brief

AI extract

What is this about?

A writ appeal challenging the dismissal of a writ petition against a closure order for a hotel. The Court, relying on a geological report showing low landslide risk, set aside the impugned order, directed the appellant to submit the report and take remedial measures, and permitted resumption of operations. Disposition: remanded for further directions with power to resume operations.

What did the court decide?

The judgment under appeal is set aside. The appellant is directed to take remedial measures and submit the report to DDMA. The appellant is allowed to re-open and resume operations of the resort in th

T.N.Ashok Kumar Vs the District Collector — Environment and Pollution | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE ANTONY DOMINIC &

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THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU

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WEDNESDAY, THE 1ST DAY OF NOVEMBER 2017/10TH KARTHIKA, 1939 WA.No. 1965 of 2017 () IN WP(C).27974/2017

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AGAINST THE JUDGMENT IN WP(C) 27974/2017 of HIGH COURT OF KERALA DATED 27-09-2017

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APPELLANT/PETITIONER:

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T.N.ASHOK KUMAR,

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PROPRIETOR, PLUM JUDY THE LEISURE HOTEL, K.S.E.B. TUNNEL ROAD, PALLIVASAL, IDUKKI DISTRICT.

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BY ADVS.SRI.N.N.SUGUNAPALAN (SR.) SRI.S.SUJIN

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RESPONDENTS/RESPONDENTS:

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THE DISTRICT COLLECTOR (CHAIRMAN DISTRICT DISASTER MANAGEMENT AUTHORITY) DURITHA NIVARANA SAMITHI, IDUKKI DISTRICT.685603.

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THE TAHSILDAR

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DEVIKULAM, IDUKKI DISTRICT - 685613.

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THE REVENUE DIVISIONAL OFFICER DEVIKULAM, IDUKKI DISTRICT - 685 613.

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STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 695001.

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R1 -R 4 BY ADV. SRI.RANJITH THAMPAN,ADDL.ADVOCATE GENERAL

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A.No.1965 of 2017

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APPENDIX

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APPELLANT'S ANNEXURES

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ANNEXURE A1 REPORT DATED 25.10.2017 OF THE NATIONAL INSTITUTE OF TECHNOLOGY, KARNATAKA, SURATHKAL.

TRUE COPY

CSS/

P.S.TO JUDGE

Antony Dominic & Dama Seshadri Naidu, JJ.

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W.A.No.1965 of 2017

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Dated this the 1^st day of November, 2017

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JUDGMENT

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Antony Dominic, J.

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This appeal is filed by the petitioner in WPC No.27974 of 2017 impugning the judgment dated 27.9.2017 of the learned single judge. By the said writ petition, the appellant challenged Ext.P10, an order passed by the District Collector, Idukki, in his capacity as the Chairman of the District Disaster Management Authority directing closure of the resort carried on by the appellant in the name and style 'Plum Judy The Leisure Hotel' at Pallivasal, Idukki District. By the judgment under appeal, the learned single judge dismissed the writ petition. It is this judgment which is under challenge.

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We heard the learned senior counsel for the appellant

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and the learned Additional Advocate General appearing for the respondents.

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W.A.No.1965 of 2017 2

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By Ext.P10 order, the Chairman of DDMA ordered that the functioning of the resort 'Plum Judy the Leisure Hotel' shall be stopped with immediate effect and that the order will be reexamined only on obtaining clearance from the State Disaster Management Authority. The reasons stated therein for such an order are the possibility of occurrence of more accidents and for providing protection to the life and property of the general public. This order was issued in exercise of the powers under section 34 of the Disaster Management Act, 2005 and Rule 15(2) of the Kerala State Disaster Management Rules 2007.

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When the appeal came up for the consideration before this Court on 10^th of October 2017, in response to a suggestion made, the learned Additional Advocate General made available a copy of the letter dated 7.10.2017 issued by the Chairman of DDMA to the appellant herein indicating the names of 6 agencies for consultancy and design of specific structural interventions and non-structural interventions to be implemented for risk reduction in the light of the identified threatening disaster situation. Referring to that letter, this Court passed an

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W.A.No.1965 of 2017 3

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order, directing the appellant to approach any one of the agencies and obtain a report on the lines suggested by the Chairman and also on the sufficiency of the remedial works already undertaken by them. Accordingly, the appellant engaged the National Institute of Technology, Karnataka and a team of that institution conducted a study and submitted its report under cover of letter dated 25^th October 2010, a copy of which has been produced before this Court along with I.A.No.1311 of 2017. In this report, the following conclusions have been arrived at.

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• The Plum Judy property is located east side of the slope adjoining the approach road to KSEB Tunnel establishment.

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The study was focussed on the possibility of land slide due to possible failures of Plane and Wedge failures, and rolling down of boulders (Rockfall) from the hill side towards the Plum Judy Hotel and nearby surroundings of within 100m. On either side of the hotel (catchment area).

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The entire area surrounding the Plum Judy hotel was examined.

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The rock formation is predominantly granite gneiss. The high slope is consisting of 3 major parts, with the last one at the top consisting of a cliff.

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There is a private house opposite to the Plum Judy resort.

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•In our opinion, the rock slope in front of the property is well settled consisting of a balanced mass of boulders intermixed and interlocked with humus soil, and few outcrops of rock ledges, and there is very low possibility

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W.A.No.1965 of 2017 4

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of any loosening and falling of boulders in normal course.

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The field study conducted was correlated with the GSI report and additional information in detail was generated about the slope in front of Plum Judy.

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The uphill slope area existed in the present condition for decades and is devoid of any habitation, thus reducing the conditions of slope failure triggering mechanism considerably.

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The drainage system in the slope area is well established by valleys and streamlets. Thus accumulation or pondage of water is remote.

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•The top portion of slope, near cliff, is having prominent vertical jointing, running perpendicular to the approach road, posing no danger of movement towards the down slope side, the property of concern.

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The outcropping rock mass was observed to have a major joint set dipping away from the slope, posing no danger of movement towards the down slope and hotel.

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• There are some well settled boulders embedded in humus soil.

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• Scientific study involving Kinematic Analysis, Wedge Analysis, and Rockfall Analysis was carried out.

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The Swedge analysis study indicated no possibility of any formation of wedge and slike in the surroundings of Plum Judy hotel.

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The Limit Equilibrium analysis established that the slope in front of the Plum Judy Hotel, 100 m both sides was found to be stable with SLIDE analysis, under static, wet and seismic (zone III load) conditions.

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The bedrock in the middle and lower portion of slope is covered with Talus material in majority of portion of study area, providing sufficient confinement against slope failure. Any movement of bedrock along joints will be arrested by this overburden.

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Rockfall analysis of the possible boulder (with accumulated boulders/talus accumulation) movement/roll down along downhill side of slope, taking

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into boulder sizes upto 12cu.m as indicated in GSI report, generating 50 different boulder movements from the top of hill, clearly indicated Low Risk.

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• Rockfall study concluded that the risk category of stone rolling towards the hotel is LOW. There is no danger of immediate/imminent stone falling on the hill side in front of the Plum Judy The Liesure Hotel.

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• Therefore, a Rockfall Fencing as advised preventive measure in the report may be taken up within 3 months from now, as the risk is Low and to ward off any future unforeseen events. The location of this fence is proposed to be uphill of the road and to be extended for 100 m (50 m from centre of the Plum Judy property on either side along the approach road) in order to cover the width of the property.

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• Outcropping and embedded Boulders, having possibility of rolling down, were already provided with concrete butressing at the base and netting of perched loose boulder, by the Plum Judy property management, as suggested in the Report of Geological Survey of India, were assessed during field study. These measures taken by the management of Plum Judy property are found to be still intact, satisfactory and effective enough to prevent the risk associated in future.

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On furnishing a copy of the report, the learned

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Additional Advocate General has obtained the comments thereon

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of the Chairman, vide his letter dated 31^st October 2010 which reads thus:

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“Inviting your attention to the reference cited. As per the reference Ist cited, the report, on the scientific study of the rock slop stability and rock fall assessment in front of the Plum Judy property in Pallivasal village, by the National Institute of Technology, Karnata, Surathkal, Mangalore

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has been received. As per the reference2nd cited, the manager of the Plum Judy resort had been informed to conduct a study by any of the institutions recommended by the DDMA and based on the detailed project report received from the institution, he may implement the interventions with competent construction firms recommended by the institution. Once implemented, the consulting institution have to conduct a quality check and certify that the work was undertaken with necessary workman-ship and that the risk has been reduced as compared to a non-intervened condition.

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Neither authorized certificate of the National Institute of Technology, Karnataka, Surathkal, Mangalore nor any application of the petitioner has been received in this office so far. On receiving the above certificate and application, the DDMA will consider the matter and take a decision accordingly.

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We further heard the counsel for the appellant and the learned Additional Advocate General. According to us, in the light of the report now obtained, and the conclusions therein, the risk factor which weighed with the authorities for issuing Ext.P10, stands considerably ruled out. For that reason we are inclined to dispose of the appeal with the following directions:

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The judgment under appeal is set aside. The appellant will take further remedial measures as contained in the conclusions in the report submitted by the National Institute of Technology, extracted above. This shall be done within the time

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limit indicated in the report itself.

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The appellant will also submit a copy of the report submitted by the NIT, Karnataka to the District Disaster Management Authority. This shall be done within a week from today. On submission of the report, DDMA shall consider the report and pass orders in the light of the conclusions therein.

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In the meanwhile the appellant will be allowed to re-open and resume operations of the resort.

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It is made clear that in this writ appeal we have only considered the matter in the light of Ext.P10 order and have not dealt with any other issues in relation to the resort in question.

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sd/-Antony Dominic, Judge

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sd/- Dama Seshadri Naidu, Judge

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css/

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true copy

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P.S.TO JUDGE

T.N.Ashok Kumar v. the District Collector

Case brief

What is this about?

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T.N.Ashok Kumar v. the District Collector

Case brief

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