IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1512 of 2010()
1. THE SECRETARY, UZHAVOOR GRAMA PANCHAYATH
... Petitioner
2. THE UZHAVOOR GRAMA PANCHAYATH,
Vs
1. C.D.SUKUMARAN NAIR,
... Respondent
2. THE ASSISTANT EXECUTIVE ENGINEER,
For Petitioner :SRI.J.JULIAN XAVIER
For Respondent : No Appearance
The Hon'ble the Chief Justice MR.J.CHELAMESWAR
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :22/09/2010
O R D E R
J.Chelameswar, C.J. & P.R. Ramachandra Menon, J.
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W.A.No. 1512 OF 2010
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Dated this the 22nd day of September, 2010
JUDGMENT
J.Chelameswar, C.J.
This appeal is preferred by respondents 1 and 3 in
W.P.(C) No.7966 of 2010 aggrieved by an interim order dated
03.06.2010.
2. The 1st respondent herein filed the
abovementioned writ petition questioning the legality of certain
orders passed by the appellant herein. The 1st respondent
constructed a particular building after demolishing the existing
building on the property owned by him. The appellants passed
the orders impugned in the writ petition. The substance of the
order is that the construction is an illegal construction as it is
alleged that the construction did not comply with the
requirements of Section 220 (b) of the Kerala Panchayat Raj
Act and subsequently action was proposed to be initiated
against the respondents.
3. Along with the main prayer the 1st respondent
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sought for an interim order in the writ petition. The prayer in
that regard is as follows:
“It is also just and necessary and it is also prayed for
accordingly that this Honourable Court may be pleased to issue
suitable interim directions to the 1st respondent to forthwith assign
number to the petitioner’s building consequent to his application,
pending disposal of the writ petition.”
4. The order under appeal came to be passed after
hearing both the parties. The learned counsel for the appellant,
Sri.Julian Xavier, argued that the interim prayer and prayer No.
(b) of the main prayers are identical and therefore the interim
order which is the subject matter of the instant appeal could not
have been passed. In spite of the specific query as to the
prejudice or irrecoverable loss that the appellant would suffer by
complying with the interim direction, the learned counsel for the
appellant could not point out any such prejudice or irrecoverable
loss except asserting that it is held by the Supreme Court in
P.R.Sinha v. Inder Kriwshan Raina [(1996) 1 SCC 681],
wherein at paragraph 6 it is stated as follows:
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“6. This Court has pointed out repeatedly that while
entertaining the writ petition the High Court should not pass
interim order, the nature of which is to grant a relief which can be
granted only at the final disposal of such a writ petition. Reference
in this connection may be made to the case of State of J & K v.
Mohd. Yaqoob Khan (1992) 4 SCC 167.”
5. It may be stated that in the matter before the
Supreme Court the issue was whether the interim order passed
by the High Court for the supply of coal, wherein the liability of
the respondents to make such a supply was in dispute was right?
The interim direction would compel a party to part with property
which perhaps cannot be restituted even if the writ petition is
eventually dismissed.
6. In the instant case we are of the opinion that no
such irrecoverable situation exists nor the appellant would be
compelled to part with any property. The interim order was
passed directing the appellant to provisionally assign number to
the building already constructed by the 1st respondent. If the
writ petition fails the building can eventually be demolished to
the extent it is found to be illegal. In the circumstances, we see
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no ground to interfere with the judgment under appeal and
therefore the appeal is dismissed at the admission stage.
J.Chelameswar,
Chief Justice.
P.R. Ramachandra Menon,
Judge.
ttb