Article 226 Is Not A Forum To Settle Boundary Wars: Kerala High Court Refuses To Entertain Plea For Retaining Wall In Munnar Landslide Dispute

“A Writ Court Cannot Go Into These Disputed Facts” –  In a pointed reminder on the limits of constitutional jurisdiction, the Kerala High Court dismissed a writ petition seeking permission to construct a geocell retaining wall in front of a tourist home in Munnar, holding that questions of encroachment, title and necessity of utilising neighbouring properties cannot be decided in proceedings under Article 226 of the Constitution.

A Division Bench comprising Justice Anil K. Narendran and Justice Muralee Krishna S. ruled that the controversy raised by the petitioner, Ida Sarojam, involved “disputed question of facts” which can only be adjudicated by a competent civil court upon appreciation of evidence. While dismissing the writ petition as not maintainable, the Court left it open to the District Collector, as Chairperson of the District Disaster Management Authority, to take independent preventive measures if the situation so warranted.

The judgment draws a clear line between constitutional review and civil adjudication, especially where allegations of encroachment and building rule violations are intertwined with claims of disaster prevention.

Five Writ Petitions Over One Retaining Wall

The petitioner, owner of “Aida Tourist Home” in Survey No. 61/6 of KDH Village, Munnar, approached the High Court for the fifth time seeking permission to construct a retaining wall after a minor landslide occurred during the monsoon of 2022. The tourist home had been directed to close as a precautionary measure.

Over multiple rounds of litigation, this Court had directed the authorities to consider her applications. At one stage, permission was granted to construct a retaining wall based on a design prepared by expert engineers from the National Institute of Technology, Karnataka. However, objections from neighbouring landholders led to stoppage of work and eventual refusal of permission through Ext.P16 order passed by the Secretary, Munnar Grama Panchayat.

The petitioner contended that only the properties of respondents 7 and 9 were required for construction and that they had granted consent. She further argued that the authorities were acting in collusion with the 10th respondent company, despite dismissal of its earlier civil suit in O.S. No. 237 of 2018.

Neighbours Raise Encroachment And Illegality Allegations

Respondents 10 to 12, including KDHP Company, strongly opposed the petition. They asserted that the petitioner had expanded the building from G+2 to G+4 floors without proper permits, failed to provide mandatory setbacks, and constructed in violation of the Kerala Panchayat Building Rules, 2019.

They contended that the proposed geocell retaining wall extended nearly eight metres beyond the petitioner’s property and would necessarily require utilisation of their land, including demolition of portions of existing line buildings.

According to them, the writ proceedings were an “eyewash” to regularise illegal construction under the guise of constructing a protective retaining wall.

Collector’s Inspection: “Explicit Violations” And Structural Distress

Pursuant to Court directions, the District Collector conducted a site inspection and submitted a detailed report. The report recorded that the building presently consists of G+4 floors, whereas permission in Panchayat records existed only for three floors.

The report noted absence of required setback, non-provision of fire escape under Rule 35(2) of the KPBR, failure to install a lift as mandated by Rule 40, lack of adequate parking under Rule 29, and violation of access width requirement under Rule 28, since the available access was only 1.5 metres instead of the mandatory 3 metres.

The Collector further observed that “a large crack has developed in the ground adjacent to the outer wall of the building, indicating possible structural distress and risk.”

Significantly, the Tahsildar’s survey revealed that the pathway in front of the tourist home and the area where the retaining wall was proposed fall within land under the possession of KDHP Company. The Collector concluded that the building was “non-compliant with statutory requirements and is structurally unsafe.”

Court: Title And Necessity Cannot Be Decided In Writ Jurisdiction

After hearing all parties, the Division Bench held that the very foundation of the petitioner’s case involved seriously disputed facts.

The Court noted that while the petitioner claimed that only the lands of respondents 7 and 9 were required, the contesting respondents asserted that the lands of respondents 10 to 12 were also necessary. The official respondents also maintained that adjacent properties would have to be utilised and that the petitioner had encroached beyond her title and permit.

The Bench categorically held:

“A writ court exercising jurisdiction under Article 226 of the Constitution of India cannot go into these disputed facts, that can be decided only by adducing evidence in a civil proceeding.”

On reliance placed by the petitioner on Ext.P22 judgment dismissing the civil suit filed by the 10th respondent, the Court observed that it was not possible in writ proceedings “to arrive at a conclusion regarding the location of the property involved in the said suit” so as to negate claims of adjacent owners in the present dispute.

The Court further emphasised that whether utilisation of neighbouring properties was necessary, and whether the petitioner had any legal entitlement to claim such construction, “can be decided only in a civil suit by adducing evidence.”

Disaster Management: Independent Authority Of Collector Preserved

While declining to exercise writ jurisdiction, the Court was conscious of the petitioner’s apprehension of landslide and risk to life and property. It clarified that the question whether precautionary measures are required to prevent damage in the locality is a matter for the District Collector in his capacity as Chairperson of the District Disaster Management Authority.

The Bench observed that such preventive steps, if warranted, may be considered independently by the authority, without prejudice to private property rights.

The Kerala High Court’s ruling underscores that constitutional remedies cannot be invoked to bypass contested issues of title, encroachment and building rule compliance. The judgment reinforces that when foundational facts are in dispute, especially concerning ownership and structural legality, the proper forum is a civil court.

By dismissing the writ petition as not maintainable and granting liberty to approach the competent civil court, the Court reaffirmed the doctrinal boundary between public law review and private law adjudication.

Date of Decision: 25/02/2026