The Municipal Corporation cannot be compelled to construct a retaining wall in a private dispute, and the Ombudsman lacks jurisdiction in such matters.

JUDGMENT

W.P(C) No.26595/2019 has been filed seeking implementation of Ext.P6 order dated 09.01.2018 passed by the Revenue Divisional Officer, Thiruvananthapuram and also for a declaration that the excavation of the soil from the property of the petitioner by the adjacent owners, the party respondents, is illegal. The petitioner submits that he owns the property measuring 11 cents in Re- survey No.528/7. The adjoining slopping agricultural land on the southern side of the petitioner’s property used for tapioca cultivation was owned by the 6th respondent and due to the unauthorised excavation of the soil from the base of the petitioner’s compound wall and old house to a depth of 20 feet by the 6th respondent, the owner of the adjacent property, a portion of the petitioner’s compound wall collapsed to a depth of about 20 feet resulting in total damage to his compound wall leaving the old house in danger. It is alleged that the said incident occurred on 30.05.2010. It is further stated that the present owner, the 7th respondent, refused to construct a strong retaining wall and when there was no response, he brought the matter to the notice of the Thiruvananthapuram Corporation and also filed an application before the Ombudsman for Local Self-Government Institutions, Thiruvananthapuram and their orders were not implemented by respondents 6 to 8 and that the 4th respondent, the Revenue Divisional Officer, had directed respondents 6 and 7 to construct a strong retaining wall sharing the costs and with the option to submit a valid objection if any by 21.02.2018. As there was no response from respondents 6 and 7, the order passed by the 4th respondent on 09.01.2018 has become final. The claim against the 3rd respondent [the 8th respondent in W.P(C) No.26595/2019] Ameer Hamsa was given up.

2. The prayers in the writ petition are as follows:-

a) Call for the records connected with the case.

b) Issue a writ of mandamus or other appropriate writ, order or direction, directing the respondents 1 to 5 to take necessary steps for the implementation of Ext.P2 order dtd.9.1.2018 of the 4th respondent.

c) Declare that the delay and laches on the part of the respondents 1 to 5 in the implementation of Ext.P2 order dtd.9.1.2018 of the 4th respondent is illegal and arbitrary.

d) Declare that excavation of soil from the property of the petitioners by the adjacent owners is illegal and arbitrary.

e) Pass such other orders as are deemed fit, fair, just and necessary in the circumstances of the case.

3. The 6th respondent had filed a counter stating that his property was already assigned to respondents 7 and 8 as per the sale Deed dated 14.03.2006, Ext.R6(a) and therefore he had no manner of right over the properties in question. He also submitted that respondents 7 and 8 have already constructed granite retaining walls between their properties and the properties belonging to the petitioner and that the petitioner’s property becomes waterlogged during rainy seasons and the compound wall fell on account of that. It is also pointed out that the writ petitioner had filed O.S.No.1255/2010 before the Sub Court-I, Thiruvananthapuram for damages and Ext.R6(c) is the plaint in the said suit. It is also stated that the petitioner had filed O.S. No.1449/2012 before the Munsiff’s Court, Thiruvananthapuram against the 6th respondent and others to restore the lateral support, to restore the plaint schedule property to its original state and also to remove the danger to the plaint schedule property by constructing a retaining wall, etc. The true copy of the plaint in the said suit is marked as Ext.R6(d). It is stated that it is for the same relief that Ext.P1 complaint was filed before the 4th respondent. Though the 4th respondent had passed Ext.P2 order, the same was challenged by the 6th respondent by filing Crl.M.C.No.6235/2018, wherein this Court directed the Revenue Divisional Officer to hear the objections of the 6th respondent as well and to pass orders. Accordingly,