IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 15TH NOVEMBER 2011 / 24TH KARTHIKA 1933 WP(C).No. 28687 of 2011(I) -------------------------------------- PETITIONER(S): -------------------- BABU,S/O.PAPPAN,CHERUKATTIL HOUSE, VADATTUPARA.P.O,KOTHAMANGALAM-686691. BY ADV. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY RESPONDENT(S): -------------------------- 1. THE DISTRICT COLLECTOR,ERNAKULAM, PIN-682030. 2. THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA-686661. 3. THE TAHSILDAR,KOTHAMANGALAM, PIN-686691. 4. THE VILLAGE OFFICER,KUTTAMPUZHA VILLAGE, PIN-686691. 5. KURIAKOSE,S/O.MATHEW,KATTUCHIRA HOUSE, VADATTUPARA,KOTHAMANGALAM-686691. R1 TO R34 BY GOVERNMENT PLEADER SMT.SANJEETHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.28687/2011 APPENDIX PETITIONER(S) EXHIBITS EXT.P1: A TRUE COPY OF THE SALE DEED DATED 5.10.2004 IN FAVOUR OF THE PETITIONER. EXT.P2: A TRUE COPY OF THE TAX RECEIPT DATED 1.8.2011 EVIDENCING PAYMENT OF TAX. EXT.P3: A TRUE COPY OF THE ORDER DATED 11.7.2011 PASSED BY THE 2ND RESPONDENT. EXT.P4: A TRUE COPY OF THE PETITION DATED 06.9.2011 BY THE PETITIONER. EXT.P5: A TRUE COPY OF THE REPLY DATED 29.9.2011 BY THE PUBLIC INFORMATION OFFICER. EXT.P6: A TRUE COPY OF THE PROCEEDINGS DATED 23.6.2011 BY THE ADDL.TAHSILDAR. EXT.P7: COPY OF THE CERTIFICATE ISSUED BY THE SECRETARY, KUTTAMPUZHA GRAMA PANCHAYATH. RESPONDENTS' EXHIBITS NIL:- TRUE COPY P.S. TO JUDGE tss ANTONY DOMINIC, J. ---------------------------------------------------- W.P.(C) No. 28687 OF 2011 ----------------------------------------------------- Dated this the 15th day of November, 2011 J U D G M E N T Petitioner challenges Ext.P3, on order passed by the 2nd respondent, Revenue Divisional Officer, directing the petitioner to construct the retaining wall in the property of the 5th respondent. Pleadings in the writ petition shows that the petitioner owns 35.42 Ares of property covered by Ext.P1. 2. According to the petitioner soon after he purchased the property in 2004, he removed the earth from the property for construction purposes and also for leveling the property. According to the petitioner, while doing so, he has left a clearance of 3 mtrs. from the property of the 5th respondent. It is stated that since then he has been residing in his property and the 5th respondent also has been residing in the adjacent property without any W.P.(C) No. 28687 OF 2011 :2 : danger. Although it is the case of the petitioner that removal of the earth was after obtaining permission of the 5th respondent, nothing has been placed on record to substantiate this contention. 3. It is the case of the petitioner that while so, without issuing any notice or affording him an opportunity of hearing, the 2nd respondent has passed Ext.P3 order requiring the petitioner to construct a retaining wall. This order has been passed on the basis that there is a possibility of landslide causing damage to the building of the 5th respondent. Ext.P3 also shows that the said order was passed relying on Ext.P6 report of the Tahsildar which according to the petitioner was prepared without notice to him. It is in these circumstances this writ petition is filed challenging Ext.P3 order passed by the 2nd respondent. 4. A counter affidavit has been filed by the 2nd respondent. Although it is stated that on account of the W.P.(C) No. 28687 OF 2011 :3 : removal of the earth from the property of the petitioner, the boundary of the 2nd respondent is in danger, the contention that the order was issued without notice to the petitioner is not seen disputed. 5. In these circumstances, I am inclined to accept the case of the petitioner that the order was passed in violation of the principles of natural justice which requires that a person who is affected by a proceedings should be heard. In that view of the matter, I direct that Ext.P3 will be treated as a notice and it will be open to the petitioner to file his objections to such notice. This the petitioner shall do within two weeks from today. Once the petitioner files his objection as above, the 2nd respondent will issue notice to him and the 5th respondent and will pass fresh orders after hearing both parties. 6. Learned counsel for the petitioner submits that Ext.P6 report of the Tahsildar was without notice and W.P.(C) No. 28687 OF 2011 :4 : therefore cannot be relied on. Having regard to the fact that the matter is now remanded as above, it will be open to the petitioner to file his objections to Ext.P6 as well. The writ petition is disposed of as above. ANTONY DOMINIC, JUDGE ul/-