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M.H. Vijayan v. State of Kerala

Disaster Management Act, 2005 – “Apat Dharma” – Concept of – Section 72 of the Act, 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, 2005 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.

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”. Shanti Parva of Mahabharata states that rights and duties of citizens vary, depending on whether they are living in times of peace or in times of crisis. Apat-Dharma” means a course of procedure not usually proper or permissible in ordinary times but allowable in times of extreme distress or calamity. When a State faces calamities, there is only one goal of life, viz., protection of its citizens. Facing a serious calamity must be viewed as a long term effort. In such prolonged process, there is bound to be need to make adjustments for attainment of the objective. The exemption or departure from ordinary laws granted during adverse times is restricted to the end of the adverse times and continues till the beginning of a favourable time. [Paras 57 & 58]

Environmental LawRemoval of sand bar from downstream of Thottappally Spillway pursuant to the orders passed in exercise of powers under the Disaster Management Act, 2005 would not amount to “mining operations” as defined under Section 3(d) of the Mines and Minerals (Development and Regulation) Act, 1957 for the reason that winning of minerals is not the primary or secondary intent, purport or priority behind the removal of sand bar.

Environmental Impact Assessment Notification, 2006In view of paragraph 7(i)(B) of the EIA Notification, 2006 and in the light of the substituted Appendix-IX, no Environmental Clearance is required for dredging and desilting of downstream of Thottappally Spillway since the dredging is intended for maintenance, upkeep and disaster management.

Coastal Regulation Zone Notification, 2011 – Paragraph 3(xiii) of the CRZ Notification 2011 may also not be relevant as it relates to dressing or altering the sand dunes, hills, natural features including landscape changes for beautification, recreation or other such purposes. In the case on hand, what is being altered is a sand bar and not a sand dune. As per Webster Comprehensive Dictionary, the word ‘Sandbar’ means “a ridge of silt or sand in rivers, along beaches, etc., formed by the action of currents or tides”. As per Wharton’s Law Lexicon, the word ‘Sand dune’ means “hill, mound or ridge of loose material formed by wind action”. The accumulation of sand in question being downstream and near a sea face, it cannot be a sand dune. It is a sand bar. [Para 50]

Atomic Minerals Concession Rules, 2016 – Rules 4, 5, 6 and 8 those rules are governing prospecting operations and mining activities. The operations in issue are already found to be not mining operations and for the same facts and reasons, the said operations cannot be termed as prospecting operations. The arguments based on the provisions of the Atomic Minerals Concession Rules, 2016 are therefore only to be rejected.

After 2018 Floods, the M.S. Swaminathan Research Foundation and IIT Madras recommended clearance of the Sand Bar at Thottappally Pozhi and deepening and widening of the leading channel for depressing the flood problem in Kuttanad area. The original width of the Spillway was 360 metres ensuring free flow of water and the width was eventually reduced to 260 metres. The reduction of the width and existence of Sand Bar aggravate flood disaster. It was on the basis of reports of such expert bodies that the authorities under the Act, 2005 decided to to desilt downstream Thottappally and remove the existing sand bar at Pozhi.

Section 34 of the Act, 2005 provides that for the purpose of assisting, protecting or providing relief to the community, in respect of any threatening disaster, the District Disaster Management Authority may take such steps as may be required or warranted to be taken in such situation. The steps taken by the Government and the orders passed by the District Authority are based on the advise / reports / recommendations of the technically expert bodies. The steps taken in this case are intended to avert any possible disaster in Pampa, Meenachil, Achankovil, Kuttanad and other areas. Therefore, the orders of the DDMA cannot be said to be ultra vires Section 34 of the Disaster Management Act, 2005.