W.A.NO.1034/2022 (Writ Appeal)

W.A.NO.1034/2022 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY WEDNESDAY, THE 10[TH] DAY OF AUGUST 2022 / 19TH SRAVANA, 1944** **WA NO. 1034 OF 2022** **AGAINST THE ORDERDATED 22.06.2022 AND 07.07.2022 PASSED BY THE LEARNED SINGLE JUDGE IN I.A.NO.5/22 IN W.P.(C) NO.4986/2020** **APPELLANT/NINTH RESPONDENT IN I.A.NO.5/2022 AND IN W.P.:** **ARAKKANATTIL OOMMEN IYPE AGED 65 YEARS S/O. A.E. OOMMEN,ARAKKANATTILPUTHENVEEDU, PIRALASSERY P.O,CHENGANNUR, ALAPPUZHA DISTRICT REPRESENTED BY HIS POWER OF ATTORNEY HOLDER OBIN MATHEW GEORGE,AGED38,AMPIYIL PADINJATTETHILHOUSE, PARAKODE P.0, ADOOR, PATHANAMTHITTA DISTRICT, PIN - 689122** **BY ADVS. V.PHILIP MATHEWS GIBI.C.GEORGE AMAL PARTHASARADHY GEORGE V. PAUL** ## **RESPONDENT/PETITINER AND RESPONDENTS 1 TO 8 IN I.A.NO.5/2022:** **1 RAJAMMA JOSEPH AGED 70 YEARS W/O. P.V.JOSEPH, PALAKKALODI VEEDU, EARAYILKADAVU ,KOTTAYAM, PIN - 686601 2 STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 3 T.K JOSE ADDITIONAL CHIEF SECRETARY,PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 4 ADDITIONAL CHIEF SECRETARY LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 5 THE CHIEF TOWN PLANNER THIRUVANANTHAPURAM, PIN – 695003** W.A.NO.1034/2022 2 - **6 THE DISTRICT TOWN PLANNER KOTTAYAM, PIN - 686001** - **7 DISTRICT COMMITTEE FOR REGULARISATION OF UNAUTHORIZED CONSTRUCTIONS REPRESENTED BY ITS CONVENER, OFFICE OF THE DISTRICT TOWN PLANNER, KOTTAYAM, PIN - 686001** - **8 THE DIRECTOR LOCAL SELF GOVERNMENT DEPARTMENT THIRUVANANTHAPURAM-, PIN - 690001** - **9 KOTTAYAM MUNICIPALITY REPRESENTED BY ITS SECRETARY KOTTAYAM, PIN - 686001** **BY ADVS. SRI.PEEYUS A.KOTTAM FOR R1 SRI.ASISH K.JOHN FOR R9** **SRI.K.P.HARISH, SENIOR GOVERNMENT PLEADER FOR R2 TO R8** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10.08.2022,** **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.NO.1034/2022 3 ## **J U D G M E N T Dated this the 10[th] day of August, 2022** ## **S.MANIKUMAR, CJ.** Being aggrieved by two interim orders passed by a learned single Judge in W.P. (C) No.4986/2020 dated 22[nd] June, 2022 and 7[th] July, 2022, instant writ appeal is filed. 2. It is submitted by the appellant that on 22[nd] June, 2022, a learned single Judge passed an order in I.A No.5 of 2022 to maintain status quo in I.A.No.2 of 2022 and thereafter, it was extended on 7.7.2022. ## 3. Grounds on the basis which, instant appeal is filed are as hereunder: “A. The orders dated 22.6.22 and 7.7.22 passed by the learned single Judge in 1.A.No.5/2022 are against the Judgment passed by this Honble Court in W.A.No.555/2022 and in total disregard to the Judgment passed in WA.No.555/2022. First respondent has accepted the continuance of proceedings as per order dated 8.4.22 passed by the learned single Judge in IA No 2/2022. Thereafter there was no justification for the new applications and interference by the learned single judge which substantially affects judgment passed in W A No. 555/22 and its consequences. B. The order under challenge was passed ignoring the principles of merger and effect of withdrawal of proceedings. The order under challenge lowers the dignity of Judgment passed in W.A.No.555/2022. Principles based on Order XXIII Rule 1 CPC cannot be completely ignored merely because of Section 141 CPC, especially in the facts and circumstances of this case. C. The order under challenge contains no reasons or justifications for the W.A.NO.1034/2022 4 interference in the matter. It has the effect of a final order. Though the matter is posted on a near date it is not likely to be heard due to change of standing Counsel for municipality and since pleadings are not complete. Delaying tactics by first respondent would further paralyse the proceedings. D. The Order dated 8.4.22 passed by the learned single Judge in I.A.No.2/2022 contained sufficient safeguards to protect the claims, if any of the first respondent. E. First respondent is a total stranger in the matter. She has no property near the appellant's property. Question regarding alleged encroachment is irrelevant while determining the conditions of regularisation. There is no encroachment as alleged which is clear from Exhibit P31 itself,though appellant does not admit the validity of that document. F. The order of regularisation has not been challenged and it is so found by this Honourable court in paragraph 5 ofExhibit P17 [a] judgment. The review petition before the government by first respondent following Exhibit P24 itself is not maintainable. First respondent's son purchased the property involved in several litigations through Exhibit P31 invalid document clandestinely without any previous proceedings only after Exhibit P25 Review Petition. G. I.A.No.5/22 is filed suppressing the real contents of W.A.No.555/2022." 3. Though, Mr. V. Philip Mathew - learned counsel for appellant, made submissions on the grounds raised and sought for interference with the interim orders, we are not inclined to do so, for the reason that a Hon'ble Full Bench of this Court in **K.S.Das v. State of Kerala** [1992(2)KLT 358(FB)], after taking not of various judgments of the Hon'ble Apex Court and section 5(i) of the High Court Court, 1958, concluded that no intra court appeal is maintainable as against an interim order, which has not attained finality. 4. Relevant portion of the said judgment reproduced hereunder: W.A.NO.1034/2022 5 “Conclusion: (1) The word ‘order’ in S.5(i) of the Kerala High Court Act, 1958 includes, apart from other orders, orders passed by the High Court in Miscellaneous Petitions filed in the Writ Petitions provided the orders are to be in force pending the Writ Petition. An appeal would lie against such orders only if the orders substantially affect or touch upon the substantial rights or liabilities of the parties or are matters of moment and cause Substantial prejudice to the parties. The nature of the ‘order’ appealable belongs to the category of ‘intermediate orders’ referred to by the Supreme Court in Madhu Limaye’s case, AIR 1978 SC47. The word ‘order’ is not confined to ‘final order’ which disposes of the Writ Petition. The ‘orders’ should not. however, be ad-interim orders in force pending the Miscellaneous Petition or orders merely of a procedural nature. (2) But this docs not mean that the Division Bench hearing the appeal against such ‘orders’ will have to admit the appeal or have to modify the impugned order or set it aside the same in every case. There is difference between the question whether an appeal lies to a Division Bench and as to the scope of interference. Normally, discretionary orders are not interfered with unless the impugned orders are without jurisdiction, contrary to law, or are perverse, and they also cause serious prejudice to the parties in such a manner that it might be difficult to restore the status quo ante or grant adequate compensation. The idea is to provide an internal remedy in such cases without compelling the parties to go all the way to the Supreme Court under Art. 136 of the Constitution of India or increase the burden of that court unnecessarily." ## 4. We have also considered the said issue in W.A No.348 of 2022 dated 14.3.2022, ## as hereunder: “12. The question with respect to the right to prefer an appeal from an interim order was considered by a Larger Bench of this court in K.S.Das v. State of Kerala reported in 1992 KHC 366=1992 (2) KLT 358 and after assimilating the legal circumstances under section 5(1) of the Kerala High Court Act, 1958, the majority view is that an appeal is maintainable against an interlocutory order provided it is a final order in the miscellaneous petitions in the sense that it is not an ad interim W.A.NO.1034/2022 6 order, if the order substantially affects or touches upon substantial rights and liabilities of the parties or are matters of moment or matters which would cause real legal prejudice to the parties, even though the parent original proceedings is alive. 13. The said judgment was followed recently by a Division Bench of this court in Thomas P.T. and Another v. Bijo Thomas and Others reported in 2021 (6) KHC 279 and held as follows at paragraphs 10 and 11: “10. Reverting to the facts, a reading of the impugned order would show that such an ad interim order was passed in the matter as the learned Judge found it necessary to pass such an order to protect the interest of the petitioner in the writ petition. An order of this nature, according to us, cannot be understood, at any rate, as conclusive as to any matter, main or subordinate. The same cannot also be understood to be one intended to be in force until the main dispute is decided. Orders of this nature can only be understood as one intended to be in force until varied or modified. Merely for the reason that the learned Judge has extended the impugned order after the appellants entered appearance and filed counter affidavit, it cannot be said to be one intended to be in force until the main dispute is decided. In other words, the character of the ad interim order would continue to be the same until an adjudication is made by the Court, at least for the interlocutory purpose, irrespective of the fact as to whether the opposite side had entered appearance. If that be so, according to us, such orders cannot be impugned in an appeal under Section 5(i) of the Act, for if appeals against such orders are entertained, the appellate court would be usurping the original jurisdiction of this Court under Article 226 of the Constitution. 11. The contention that K.S.Das does not preclude an appeal against an ad interim order, if the same is contrary to law or perverse and causes serious prejudice to the parties, was advanced by the learned counsel for the appellants, placing reliance on the second paragraph of the majority opinion in the said decision, wherein it has been held that normally, discretionary orders are not interfered with unless the impugned orders are without jurisdiction, contrary to law, or perverse, and they also cause serious prejudice to the parties in such a manner that it might be difficult to restore the status quo ante or grant adequate compensation. A W.A.NO.1034/2022 7 close reading of the majority opinion in K.S.Das, especially the first sentence in the second paragraph namely “But this does not mean that the Division Bench hearing the appeal against such 'orders' will have to admit the appeal or have to modify the impugned order or set it aside in every case” would show beyond doubt that the said opinion deals with the manner in which an appeal against an intermediate order is to be dealt with. In other words, the statement in the second paragraph of the majority opinion in K.S.Das that discretionary orders are not normally interfered with unless they are without jurisdiction, contrary to law, or perverse, and cause serious prejudice to the parties, cannot be understood as one permitting an appeal to be preferred against an ad interim order if it is without jurisdiction, contrary to law, or perverse, and cause serious prejudice to the parties, for such an understanding would run counter to the unambiguous statement in the first paragraph of the majority opinion that an appeal will not lie against an ad interim order, even if it falls within the category of 'intermediate orders' in terms of the decision of the Apex Court in Madhu Limaye.” 14. The judgment of the Larger Bench in K.S.Das (supra) and the Division Bench in Thomas P.T. (supra) was followed by us in judgment in W.A.No.149 of 2022 dated 7.2.2022. 15. In the light of the above discussion and following the judgment in W.A.No.149 of 2022, we are not inclined to interfere with the impugned interim order. Writ appeal is, therefore, dismissed. Appellant is at liberty to approach the writ court for early disposal, if so advised. Pending interlocutory applications, if any, shall stand closed.” 5. We, apply the decision in W.A No.348 of 2022 dated 14.3.2022 to the facts of this case. W.A.NO.1034/2022 8 6. Mr. V. Philip Mathew - learned counsel for appellant, submitted that though counter affidavit has been filed to I.A.No.5 of 2022, the writ petition has not been taken up. 7. Per contra, learned counsel appearing for respondent No.1 submitted that W.P. (C) No.4986/2020 may be directed to be posted along with W.P.(C) No.16331/2021 on 22.8.2022 and till such time, the interim orders stated supra be extended. 8. Taking note of the above said decisions and also of the fact that a counter affidavit has already been filed to I.A No.5 of 2022, liberty is granted to the appellant to approach the writ court either for vacating the interim order or for early disposal of the said writ petition. The instant writ appeal is disposed of accordingly. Sd/- **S.MANIKUMAR, CHIEF JUSTICE** smv Sd/- **SHAJI P. CHALY, JUDGE** W.A.NO.1034/2022 9 ## **APPENDIX OF WA 1034/2022** ## **APPELLANT'S ANNEXURES** **Annexure A1 COPY OF W.A.NO.555/2022 FILED BY THE FIRST RESPONDENT (WITHOUT DOCUMENTS/ ANNEXURES) Annexure A2 COPY OF JUDGMENT DATED 15-06-2022 PASSED IN W.A.NO.555/2022**