Kerala High Court: In a writ petition filed against the Government order (‘GO’) by which the Government has decided to take over the private properties under the provisions of the Disaster Management Act, 2005 (DM Act, 2005) 2005, for the purpose of setting up a model township for the rehabilitation of persons who were affected by the landslide, the single judge bench of Kauser Edappagath, J. held the following:
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Permitted the State Government to proceed further with GO to take over the subject properties for rehabilitation/reconstruction of landslide victims in accordance with law.
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Directed the State to determine the total amount of compensation to be awarded to the petitioners for taking over/acquiring the subject properties in accordance with the provisions of the Land Acquisition, Rehabilitation, and Resettlement (LARR) Act, 2013.
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Directed that the compensation amount be paid to the petitioners before taking possession of the land. However, the Court also required the petitioners to execute a bond stipulating that, should the titles of the properties be declared against them in the ongoing suits filed by the State, they would be obligated to refund the compensation amount received.
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The petitioners were permitted to pursue the statutory remedies available to them under the provisions of the LARR Act, 2013, for further enhancement of compensation if they are not satisfied with the compensation determined by the State.
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Before taking possession of the land, the petitioners were directed to permit the State to enter the subject properties to measure and demarcate the areas and boundaries of the subject properties and to proceed with and complete other necessary formalities for the purpose of taking possession of the properties.
Background
In the early hours of 30-07-2024, the serene Wayanad District in Kerala was devastated by India’s worst-ever landslide, triggered by heavy rainfall, sweeping away three villages—Chooralmala, Mundakkai, and Punchirimattom. The calamity claimed 251 lives, left many injured, and caused 47 people to go missing. Over 1,500 homes were destroyed, and thousands of residents were displaced, bringing despair to the once-thriving region known for its fertile lands and agricultural prosperity. In response, the Kerala State Government swiftly launched a comprehensive rehabilitation plan, focusing on rebuilding the affected communities. A key element of this initiative is the creation of a model township to permanently rehabilitate displaced families, restore their livelihoods, and bring the region back to life.
In the writ petitions, the petitioners, who claim to be the titleholders and in possession of the properties in question, challenge the Kerala Government’s issuance of Government Order on 04-10-2024. The Government’s order sanctioned the establishment of a model township for rehabilitating disaster victims and authorized the takeover of certain private properties under the DM Act, 2005. The petitioners contend that the Government acted beyond its powers under the DM Act and violated Article 300A of the Constitution of India, which guarantees the right to property. They argue that property cannot be taken from a private entity without compensation, as mandated by the Constitution. Furthermore, the petitioners accuse the Government of acting with malafides and malice, asserting that the decision to seize the land was driven by improper motives. Thus, the petitioners filed the present writ petition.
Issue
Whether the DM Act, 2005 empowers the Government to take over land permanently for disaster management?
Analysis and Decision
The Court highlighted that the DM Act, 2005 was enacted for the effective management of disasters, for prevention and mitigation effects of disasters and for undertaking a holistic, coordinated and prompt response to any disaster situation.
The Court said that the definition of “disaster” clearly includes the devastating landslide that occurred in Wayanad, confirming that the event qualifies as a disaster under the DM Act, 2005. According to the Act, “disaster management” refers to a continuous process that involves planning, organizing, coordinating, and implementing measures aimed at preventing the threat of disasters, mitigating their risks, or reducing their severity and consequences. This process encompasses a range of activities such as capacity-building, evacuation, rescue, relief, rehabilitation, and reconstruction. While disaster management includes both preventive measures before a disaster strikes and reactive measures afterward, the rehabilitation and reconstruction of victims post-disaster are crucial elements of the Act. In the case of the Wayanad landslide, the rehabilitation and reconstruction efforts are recognized as necessary long-term and permanent measures to support the victims. Furthermore, capacity-building, which forms an integral part of disaster management, entails the acquisition of necessary resources, which, under Section 2(p) of the DM Act, includes manpower, services, materials, and provisions—all essential for effective disaster response and recovery.
The Court emphasised that under the DM Act, 2005, various powers have been given to different authorities, including the DDMA, to achieve the objectives of the Act.
The Court noted that the provisions of the DM Act, 2005, particularly Section 38(2)(k) and Section 39(f)(iii), make it clear that the State Government has a legal obligation to provide rehabilitation and reconstruction assistance to disaster victims. The Court observed that the Act mandates the State Government to take necessary measures for disaster management, which includes both immediate relief and long-term recovery efforts. Section 39(f)(iii) further underscores the responsibility of all government departments to assist the District Authorities in carrying out these tasks.
The Court reiterated that the right of a State or sovereign to its own own property is absolute, while that of the subject or citizen to his property is only paramount. The citizen holds his property subject always to the right of the sovereign to take it for a public purpose. This right is called “eminent domain”. It is inherent in every sovereign state to exercise its power of eminent domain to expropriate private property for public use without the owner’s consent.
Taking note of State of Kerala v. Dr. Biju Ramesh1, the Court said that District Disaster Management Authority (‘DDMA’), using the power of eminent domain, is competent to take any measure towards disaster management, including permanently taking over/acquiring land of a private person/entity to rehabilitate the disaster victims and reconstruct the damage caused by the disaster. There is no lack of jurisdiction for the DDMA in the exercise of power under Section 34 to take over/acquire property for the implementation of disaster management.
The Court reiterated that the right to property, although no longer a fundamental right, remains a constitutional and human right. Under Article 300A of the Constitution, the State is prohibited from depriving any person of their property except by authority of law. This provision ensures that there can be no deprivation of property without a legal sanction. The term ‘property’ in Article 300A must be interpreted in the context of the sovereign power of eminent domain, which allows the State to expropriate property for public purposes. The Court emphasized that while the State may determine whether a purpose is public, this decision is not absolute and is subject to judicial review. It is the duty of the Court to assess whether the purpose behind acquiring the property qualifies as a public purpose.
The Court further noted that public interest is a crucial element of a public purpose. In this case, the Government’s decision to take possession of the subject properties for the rehabilitation of landslide victims undoubtedly serves a public purpose. While Article 300A does not explicitly mandate compensation for property acquisition, the Court inferred that the obligation to provide just compensation arises under the principle of eminent domain, ensuring fairness when the State exercises its power to acquire private property for public purposes. This reflects the need to balance the State’s interest in disaster recovery with the protection of individuals’ property rights.
The Court concluded that the Government is indeed liable to pay just and adequate compensation to the owners of the subject properties. The Court emphasized that even when requisitioning resources or materials from private individuals for a limited period, compensation must be paid, as outlined in Section 65 of the Disaster Management Act, 2005. Similarly, when property is acquired as an emergent measure under Section 40 of the LARR Act, 2013, the law mandates that 80% of the compensation must be paid before taking possession of the land.
The Court noted that in its counter statement, the Government specifically conceded that it is prepared to pay just and adequate compensation to the title holders of the properties in question. While the DM Act, 2005 does not contain specific provisions for determining compensation in the case of permanent acquisition or taking possession of immovable property from private persons, the Court held that the LARR Act, 2013 could be relied upon to determine the compensation in such cases.
[Elstone Tea Estates Ltd. v. State of Kerala, 2024 SCC OnLine Ker 7501, decided on 27-12-2024]
Advocates who appeared in this case:
For Petitioner: K.Babu Thomas Marykutty Babu Drisya Dileep
For Respondent: S.Vinod Bhat, A.Lowsy, K.Gopalakrishna Kurup, Advocate General C.E.Unnikrishnan, SPL.Government Pleader SHRI.M.H.Hanil Kumar, SPL.G.P.(Revenue) Anagha Lakshmy Raman M.S.Imthiyaz Ahammed V.Namitha K.Shibili Naha Gayathri Rajagopal
1. (2016 KHC 436)
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