1 WP(C)No.20849 of 2024 2025:KER:28659 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN & THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S. THURSDAY, THE 27TH DAY OF MARCH 2025 / 6TH CHAITHRA, 1947 WP(C) NO. 20849 OF 2024 PETITIONER: IDA SAROJAM,AGED 65 YEARS,W/O. ROY HESTING, IDA HOUSE, OLD MUNNAR, MUNNAR P.O, KDH VILLAGE, DEVIKULAM TALUK, IDUKKI DISTRICT, PIN - 685612 BY ADVS. GEORGE MATHEW PRAVEEN S. SUNIL KUMAR A.G MATHEW K.T. GEORGE K.V. STEPHY K REGI MEDHA B.S. T.SETHUMADHAVAN (SR.)(S-310) RESPONDENTS: 1 STATE OF KERALA REPRESENTED BY SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2 THE DISTRICT COLLECTOR & THE CHAIRPERSON IDUKKI DISTRICT DISASTER MANAGEMENT AUTHORITY, CIVIL STATION, KUYILIMALA, PAINAVU P.O., IDUKKI, PIN - 685603 3 MUNNAR GRAMA PANCHAYATH REP. BY ITS SECRETARY GRAMA PANCHAYATH OFFICE, MUNNAR, IDUKKI, PIN - 685612 2 WP(C)No.20849 of 2024 2025:KER:28659 4 THE SECRETARY MUNNAR GRAMA PANCHAYATH, GRAMA PANCHAYATH OFFICE, MUNNAR, IDUKKI, PIN - 685612 5 THE ASSISTANT ENGINEER MUNNAR GRAMA PANCHAYAT, GRAMA PANCHAYATH OFFICE, MUNNAR, IDUKKI, PIN - 685612 6 ADDL.R6: TAHSILDAR DEVIKULAM, TALUK OFFICE, DEVIKULAM, PIN - 685613 IS SUO MOTU IMPLEADED AS ADDITIONAL 6TH RESPONDENT AS PER ORDER DATED 19.06.2024 IN WP(C)20849/2024 7 ADDL.R7: PARVATHY W/O. DURAIRAJ, (AGE NOT KNOWN TO PETITIONER), MGP/13/385, PANCHAYAT DISPENSARY ROAD, MOOLAKKADA, KDH VILLAGE, DEVIKULAM TALUK, IDUKKI DISTRICT, PIN - 685612 8 ADDL. R8: ALAZHAGUMANI, W/O.SELWYN JEYAKUMAR, (AGE NOT KNOWN TO PETITIONER), MGP/13/386, PANCHAYAT DISPENSARY ROAD, MOOLAKKADA, KDH VILLAGE, DEVIKULAM TALUK, IDUKKI DISTRICT, 685612 9 ADDL.R9:MURUGAN, H/O.D.VASANTHA, (AGE NOT KNOWN TO PETITIONER), MGP/13/388, FOUR SEASON BACKSIDE, PANCHAYAT DISPENSARY ROAD, MOOLAKKADA, KDH VILLAGE, DEVIKULAM TALUK, IDUKKI DISTRICT, PIN 685612 10 ADDL.R10: KANNAN DEVAN HILL PRODUCE CO.PVT.LTD., KDHP HOUSE, MUNNAR, KDH VILLAGE, DEVIKULAM TALUK, IDUKKI DISTRICT - 685612 REP.BY ITS GENERAL MANAGER, 11 ADDL.R11: TATA CONSUMER PRODUCTS LIMITED, SPECIAL PROJECT OFFICE, MUNNAR, MUNNAR, KDH VILLAGE, DEVIKULAM TALUK, IDUKKI DISTRICT,685612, REP.BY ITS GENERAL MANAGER (ADDL.R7 TO R11 ARE IMPLEADED AS PER ORDER DATED 10.12.2024 IN I.A.03/2024 IN WP(C)20849/2024) 12 ADDL.R12: T. SELWYN JEYAKUMAR, MGP/13/386, PANCHAYAT DISPENSARY ROAD, MOOLAKKADA, KDH VILLAGE, DEVIKULAM TALUK, IDUKKI DISTRICT, PIN - 685612 (ADDL.R12 IS IMPLEADED AS PER ORDER DATED 29.11.2024 IN I.A.04/2024 IN WP(C)20849/2024). 3 WP(C)No.20849 of 2024 2025:KER:28659 BY ADVS. REJI MATHEW.M ABRAHAM JOSEPH MARKOS P.RAMAKRISHNAN PREETHI RAMAKRISHNAN (P-212) PRATAP ABRAHAM VARGHESE MANOJKUMAR G. ASHOK MENON MATHEW VARGHESE N.SAJU THOMAS MATHEWS K. NELLUVELY JOEL REJI MATHEW ANDREW MATHEWS V.ABRAHAM MARKOS ISAAC THOMAS P.G.CHANDAPILLAI ABRAHAM ALEXANDER JOSEPH MARKOS JOHN VITHAYATHIL OTHER PRESENT: Sri. Sethumadhavan, Sr Counsel for Petitioner, Sri. Jafar Khan, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.03.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: 4 WP(C)No.20849 of 2024 2025:KER:28659 JUDGMENT Muralee Krishna, J. This writ petition is filed by the petitioner under Article 226 of the Constitution of India seeking the following reliefs: “i) to call for the records which lead to the issuance of Ext. P17 to the extent it failed to consider the issues raised and directed to be considered by this Hon'ble Court and Ext.P18 and to issue writ in the nature of certiorari or any other writ, order or direction quashing the same; ii) to issue a writ in the nature of mandamus or any other appropriate writ direction or order commanding 4th respondent to issue permit for construction of Geocell retaining wall as suggested in Ext.P5, Ext.P8 and finally modified as per Ext.P10; iii) to issue a writ in the nature of Mandamus or any other appropriate writ, direction or order commanding 4th respondent to permit the petitioner to proceed with the construction of Geocell retaining wall as suggested in Ext. P10, forthwith” 2. Going by the averments in the writ petition, the petitioner is the absolute owner in possession and enjoyment of landed property measuring 0.04 Hec. (10 Cents) in Sy.No. 61/6 of KDH Village in Devikulam Taluk of ldukki District. She along with her family has been residing therein and also conducting a lodge 5 WP(C)No.20849 of 2024 2025:KER:28659 cum tourist home by the name IDA Tourist Home. The lodge was constructed and managed strictly in accordance with law and after obtaining all permissions from the local authority, the 3rd respondent herein. A landslide occurred in the property during the year 2022 monsoon season and a stop memo was issued by the 2nd respondent invoking the provisions of the Disaster Management Act, 2005. The petitioner made attempts to protect the property and structure by constructing a retaining wall which is necessary for the safety of the petitioner's property as well as for people residing in the adjoining properties. It was objected to by the respondents and finally, Ext.P5 report dated 09.11.2023 was prepared by the Department of Civil Engineering, NIT Karnataka, Suratkal, an expert agency suggested by the 2nd respondent, suggesting construction of a Geocell Retaining Wall and it was found to be safe and feasible by this court. When construction started under the supervision and guidance of an expert agency it was again objected and stopped by respondents 3 to 5. The petitioner brought that fact to the notice of this court in W.P.(C) No.4700 of 2023 already filed by her and by Ext.P7 6 WP(C)No.20849 of 2024 2025:KER:28659 judgment dated 20.12.2023, this Court disposed of that writ petition issuing certain directions. Pursuant to Ext.P7, the 4th respondent issued Ext.P8 order dated 05.01.2024, permitting the construction of the retaining wall in accordance with the design and sketch submitted with Ext.P5 report. When construction of the retaining wall was started, the 4th respondent issued Ext.P9 notice dated 08.02.2024 to stop the construction alleging that it was not in accordance with the approved design and sketch. As requested by the petitioner the expert engineers who prepared Ext.P5 visited the site and Ext.P10 design dated 11.03.2024, slightly modifying the previous design was prepared and submitted to the 4th respondent. The construction was again objected by the Asst. Secretary of the 3rd respondent by Ext.P12 letter dated 25.03.2024 stating that no objection from the neighbouring property owner is not obtained by the petitioner. Even after submitting the reply and no objection from the neighbour, no action followed and hence the petitioner again approached this court by filing W.P.(C) No.13943 of 2024. By Ext.P15 Judgment dated 08.04.2024 in that writ petition, this Court directed fresh 7 WP(C)No.20849 of 2024 2025:KER:28659 consideration of the issue by the 4th respondent. But, the 4th respondent by Ext.P17 order dated 23.04.2024, declined permission to construct the retaining wall, holding that the retaining wall encroached on the property of the neighbours. Though the petitioner submitted Ext.P17(a) reply dated 02.05.2024, the 4th respondent again rejected the request and informed the same to the petitioner by Ext.P18 order/communication dated 03.05.2024. Hence the petitioner filed this writ petition. 3. On 19.6.2024, when this writ petition came up for consideration, the Tahsildar, Devikulam was suo impleaded as additional 6th respondent. Operation of Exts.P17 and P18 was stayed and it was further directed that the Tahsildar shall conduct an inspection to find out whether the construction is extended beyond the land held by the petitioner and also verify whether the patta claimed by the petitioner is genuine or not. The petitioner was further permitted to construct the compound wall (sic; retaining wall) as per Ext.P8. 4. On 04.10.2024, after arguing for some time, the learned 8 WP(C)No.20849 of 2024 2025:KER:28659 counsel for the petitioner sought time to place on record a few photographs of the property in question, in which a building is intended for a lodging house. Thereafter the petitioner filed I.A. No.1 of 2024 seeking a clarification in the order dated 19.06.2024 and permit him to effect construction of a retaining wall as suggested in Exts.P8 and P10 plan, pending disposal of the writ petition. Along with I.A. No.2 of 2024, the petitioner has produced Exts.P19 to P19(g) photographs of the property in question. 5. On 22.10.2024, after arguing for some time, the learned counsel for the petitioner sought time to file an application to implead the neighbouring landowners. 6. The 7th respondent filed a counter affidavit dated 07.11.2024 supporting the prayers in the writ petition. 7. As per order in I.A. No.3 of 2024, additional respondents 7 to 11 were impleaded in the writ petition. On 29.11.2024 as per the order in I.A.No.4 of 2024, additional 12th respondent who is the husband of the 8th respondent was impleaded. 8. The additional 12th respondent filed a counter affidavit dated 14.12.2024 opposing the prayers in the writ petition and 9 WP(C)No.20849 of 2024 2025:KER:28659 producing therewith Ext.R12(a) to R12(e) documents. 9. The 2nd respondent filed a counter affidavit dated 25.01.2025 opposing the averments in the writ petition. 10. To the counter affidavit of the 12th respondent, the petitioner filed a reply affidavit dated 06.03.2025 producing therewith Exts.P20 to P22 documents. 11. Heard Sri. Sethumadhavan, the learned Senior Counsel for the petitioner, the learned Senior Government Pleader and the learned counsel appearing for the party respondents. 12. The grievance of the petitioner at present is that by Ext.P18 order dated 03.05.2024, the 4th respondent, who is the Secretary of the 3rd respondent Munnar Grama Panchayat, has refused permission to construct a retaining wall. According to the petitioner, by Ext.P17 order dated 23.04.2024 the 4th respondent found that construction of a retaining wall is highly necessary. It is against that finding Ext.P18 order was passed subsequently. By Ext.P15 judgment dated 08.04.2024 this Court has directed the 3rd respondent to reconsider the question of permission to construct a boundary wall (retaining wall) after issuing notice to 10 WP(C)No.20849 of 2024 2025:KER:28659 all the neighbouring owners within a period of three weeks. It was in pursuance of that judgment Ext.P18 order was passed by the 4th respondent. However, from Ext.P18 it could be seen that it was a cryptic order passed by the 4th respondent without entering into the merits of the contentions raised by the parties. In such circumstances, we are of the considered opinion that Ext.P18 order is liable to be set aside. Having considered the pleadings and materials on record and the submissions made at the Bar, and noting the urgency of the matter due to the fast approaching of the rainy season of the year, we deem it appropriate to dispose of this writ petition by setting aside Ext.P18 order dated 03.05.2024 passed by the 4th respondent Secretary of Munnar Grama Panchayat and directing the 4th respondent to reconsider the request made by the petitioner for construction of a retaining wall by the side of the property in question, as expeditiously as possible at any rate within a period of three weeks from the date of receipt of a copy of this judgment. In that exercise, the 4th respondent shall hear all the parties concerned and give them an opportunity to raise 11 WP(C)No.20849 of 2024 2025:KER:28659 their contentions. All the legal and factual contentions raised by the parties in this writ petition are left open to be raised before the 4th respondent. Sd/- ANIL K.NARENDRAN, JUDGE Sd/- MURALEE KRISHNA S., JUDGE sks 12 WP(C)No.20849 of 2024 2025:KER:28659 APPENDIX OF WP(C) 20849/2024 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF JUDGMENT DTD. 31.08.2022 IN W.P.(C). NO.28131 OF 2022 Exhibit P2 TRUE COPY OF ORDER NO. DICDK/4583/2022-DM4 DTD. 17.12.2022 ISSUED BY 2ND RESPONDENT Exhibit P3 TRUE COPY OF INTERIM ORDER DTD. 18.08.2023 IN W.P.(C). NO. 4700 OF 2023 Exhibit P4 TRUE COPY OF INTERIM ORDER DTD. 23.08.2023 IN W.P.(C). NO. 4700 OF 2023 Exhibit P5 TRUE COPY OF REPORT DTD. 09.11.2023 ALONG WITH DESIGN FOR CONSTRUCTION FOR GEOCELL RETAINING WALL PREPARED BY DEPARTMENT OF CIVIL ENGINEERING, NIT KARNATAKA, SURATKAL Exhibit P6 TRUE COPY OF LETTER NO. A3-5325/2023 DTD. 04.12.2023 ISSUED BY 4THRESPONDENT TO PETITIONER Exhibit P7 TRUE COPY OF JUDGMENT DTD. 20.12.2023 IN W.P.(C). NO. 4700 OF 2023 Exhibit P8 TRUE COPY OF ORDER NO. A3-5325/2023 DTD. 05.01.2024 ISSUED BY 4THRESPONDENT Exhibit P9 TRUE COPY OF LETTER NO. A3-5325/ 2023 DTD. 08.02.2024 ISSUED BY 4THRESPONDENT Exhibit P10 TRUE COPY OF DESIGN DTD.11.03. 2024 PREPARED BY EXPERT AGENCY, NIT KARNATAKA, SURATHKAL 13 WP(C)No.20849 of 2024 2025:KER:28659 Exhibit P11 TRUE COPY OF REQUEST DTD. 11.03.2024 SUBMITTED BY PETITIONER BEFORE 4TH RESPONDENT Exhibit P12 TRUE COPY OF LETTER NO 400538/BARE01/GPO/2024/1276 (1) DTD. 25.03.2024 ISSUED BY ASST. SECRETARY OF 3RD RESPONDENT Exhibit P13 TRUE COPY OF REPLY DTD. 30.03. 2024 SUBMITTED BY PETITIONER TO 4THRESPONDENT Exhibit P14 . TRUE COPY OF CONSENT LETTER DTD. 18.03.2024 OF SMT. V. PARVATHY Exhibit P15 TRUE COPY OF JUDGMENT DTD. 08.04.2024 IN W.P.(C). NO. 13943 OF 2024 Exhibit P16 TRUE COPY OF REPRESENTATION DTD. 24. 04.2024 SUBMITTED BY PETITIONER Exhibit P17 TRUE COPY OF PROCEEDINGS NO. 2094/2024 DTD.23.04.2024 ISSUED BY 4TH RESPONDENT Exhibit P17 (a) TRUE COPY OF OBJECTION DTD.02.05.2024 SUBMITTED BY PETITIONER TO RESPONDENT Exhibit P18 TRUE COPY OF COMMUNICATION NO. 400538/GGDC08/GPO/2024/2094/(1) DTD.03.05.2024 ISSUED BY 4TH RESPONDENT Exhibit P19 TRUE COPY OF PHOTOGRAPH SHOWING STACKING OF MATERIALS FOR CONSTRUCTION OF GEOCELL RETAINING WALL Exhibit P19 (a) TRUE COPY OF PHOTOGRAPH SHOWING COMPOUND WALL IN THE PROPERTY Exhibit P19 (b) TRUE COPY OF PHOTOGRAPH SHOWING BOUNDARY OF NEIGHBOURING PROPERTY Exhibit P19 (c) TRUE COPY OF PHOTOGRAPH SHOWING BOUNDARY OF NEIGHBOURING PROPERTY Exhibit P19 (d) TRUE COPY OF PHOTOGRAPH SHOWING LOCATION OF PROPOSED GEOCELL RETAINING WALL 14 WP(C)No.20849 of 2024 2025:KER:28659 Exhibit P19 (e) TRUE COPY OF PHOTOGRAPH SHOWING LOCATION OF PROPOSED GEOCELL RETAINING WALL Exhibit P19 (f) TRUE COPY OF PHOTOGRAPH SHOWING AREA WHERE RETAINED WALL SITUATED AND DEPOSIT OF SOIL IN NEIGHBOURING PROPERTY Exhibit P19 (g) TRUE COPY OF PHOTOGRAPH SHOWING AREA WHERE RETAINED WALL SITUATED AND DEPOSIT OF SOIL IN NEIGHBOURING PROPERTY EXHIBIT P20 True copy of judgment dtd. 10.02.2023 passed by Munsiff Court’s, Devikulam in O.S. No. 237 of 2018 EXHIBIT P21 True copy of sale deed No. 244 of 1986 dtd. 07.02.1986 of Devikulam SRO EXHIBIT P22 True copy of license No. A7.16.2003-2004 dtd.19.06.2003 issued by 4th respondent RESPONDENT EXHIBITS Ext R12(a) A true copy of the Letter dated 17-05-2024 submitted to the Public Information Officer ,Munnar Grama Panchayath Ext R12(b) A true copy of communication,No.400538/GGR112/GPO/2024/245 8/(1) dated 05/06/2024 received from the Public Information Officer, Munnar Grama Panchayath. Ext R12(c) A true copy of the relevant page of the voters list of Booth No.36 of the Devikulam Assembly constituency in the year 1980 along with letter No.TLKDVM/1547/2023-E1 dated 10-12-24 from the Public Information Officer,Taluk Office ,Devikulam EXt R12(d) A true copy of the Building Tax Receipt Demand Notice in the name of Thankaiah, for the year 1997- 2002, 15 WP(C)No.20849 of 2024 2025:KER:28659 EXt R12(e) A true copy of the Ration Card No 275509 in the name of T.Selvin Jayakumar. Exhibit R2(a) A true copy of the order No.DCIDK/4583/2022-DM4 dated 05.04.2023 of the Disaster Management Authority,Idukki