Whether Disaster Management Authority can interfere with property of general public even though there is no urgency?

 As has been noted, the approach of the Disaster Managing Authority is three folded, emergency measures, long term measures and hybrid measures. Emergency measures and hybrid measures would arise only when disaster is in immediate vicinity or during the period of disaster. The situation referred in Section 65 of the DM Act is sine qua non for exercise of power for emergency or hybrid measures. In the absence of such situation, any exercise of power intermeddling with premises or land in which persons have ownership or possessory right or occupancy right will be illegal and arbitrary. In the absence of emergency measures, the Authority can alone resort to long term measures either to prevent or to build up capacity. If disaster is not in the immediate vicinity, the Authority cannot resort to provisions under Section 65 of the DM Act to dispossess or evict a person from the premises. While taking long term measures, if the premises belongs to private persons, the remedy of the Authority is to resort to the provisions under the Land Acquisition Act. If the premises is Government land, the Authority is free to invoke the provisions under the Land Conservancy Act to evict such persons. There is no provision in DM Act conferring the power to the Authority to decide upon the proprietary interest of the person in the premises, land or property. The Authority is only empowered to act upon measures envisaged under the DM Act and not with respect to the right or interest of the persons in the real property.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

W.P. (C) Nos. 26246, 26377 and 28130/2015

Decided On: 23.09.2015

Karimpanal Arcade Owner's Welfare Association Vs. State of Kerala and Ors.

Hon'ble Judges/Coram:
A. Muhamed Mustaque, J.

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Whether it is mandatory to issue statutory notice to municipal corporation if urgent relief is required?

It was firstly contended by the advocate for the appellant that the suit should not have been dismissed for want of notice under section 527 of the BMC Act i.e. the statutory notice before institution of a suit, because the suit had to be filed in urgency. According to the plaintiff, on 25th or 26th May 1979 one Shridharkar, officer of the BMC threatened them that they would demolish the house and take forcible possession. Therefore the suit had to file in hurry to prevent the threat from being executed or materialised. The suit was infact filed on 25th May 1979 and therefore in the circumstances it was not necessary and obligatory on the part of the plaintiff to serve statutory notice under section 527. I find considerable force in this argument and submissions. There are rulings on this point that when the plaintiff wants to seek immediate relief from the court in the form of injunction, it is not necessary for him to issue statutory notice or wait till the statutory notice is served and the period prescribed under section 527 of the Act is over. (to verify) Therefore the dismissal of the suit by the court on that count and with reference to that issue is not proper. The finding in that regard is required to be set aside.

Bombay High Court

Motillal Mahadev Sharma (Since ... vs The Municipal Corporation Of ... on 1 April, 2005

Equivalent citations: AIR 2005 Bom 344, 2006 (2) BomCR 409; 2005 (3) ALL MR869

D.G. Deshpande, J.

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