Order Substantially Touching Upon Rights Of Parties Can Be Challenged U/S. 5(i) Of Kerala High Court Act: Kerala HC Modifies Order On Constructions Made For Lakshadweep’s Tent City

The Appeals before the High Court arose out of the interim orders of the Single Judge. The Single Judge had granted status quo on constructions made for Tent City in Thinnakkara Island and Bengaram Islands of Lakshadweep.

The Division Bench of Justice Anil K. Narendran and Justice Muralee Krishna S. discarded the objection related to maintainability of the appeal and said, “...we find that the impugned orders of the learned Single Judge cannot be treated as an ad interim order or an order merely of a procedural nature. Such an order substantially touching upon the rights of the parties, which is one passed after taking note of the rival contentions, is an order which can be challenged in a writ appeal filed under Section 5(i) of the Kerala High Court Act.”

Standing Counsel R.V.Sreejith represented the appellant.

The Writ Petition was filed by the first respondent seeking a writ of certiorari to quash the communication issued by the District Collector to the third appellant- Director, Department of Tourism Development to the extent it allotted 30,000 sq.m. of land (southern side of Thinnakkara) to the Department of Tourism for the purpose of development, operation, maintenance and management of Tent City at Thinnakkara, Bengaram Islands. The petitioner also sought for a declaration that the first appellant Union Territory of Lakshadweep Administration had no right, title or interest over the accreted land allotted to the third appellant.

When the writ petitions came up for admission, the Single Judge found that the matter required a detailed hearing and the appellants were directed to file a statement and till then they were directed to maintain status quo in respect of the accreted land abutting the registered holding of the petitioner in the respective writ petitions, beyond and towards the sea on the eastern side in Thinnakkara Island and Bengaram Island. Aggrieved thereby, the appellants challenged these Orders invoking the provisions under Section 5(i) of the Kerala High Court Act, 1958.

The Senior Counsel for the first respondent-writ petitioner raised the question of maintainability of the writ appeal, under Section 5(i) of the Kerala High Court Act, against an ad interim order of the Single Judge.

Section 5 of the Kerala High Court Act deals with appeal from judgment or order of Single Judge. As per Section 5(i) of the Act, an appeal shall lie to a Bench of two Judges from a judgment or order of a Single Judge in the exercise of original jurisdiction.

The Bench found that such an order substantially touching upon the rights of the parties, which is one passed after taking note of the rival contentions, is an order which can be challenged in a writ appeal under Section 5(i) of the Kerala High Court Act. Even though rival contentions were raised on the maintainability of the writ petitions, the Bench observed that in view of the statutory remedy provided under Regulations 11(4) and 78 of the Laccadive, Minicoy and Amindivi Islands Land Revenue and Tenancy Regulations, it was for the parties to raise such contentions before the Single Judge.

In this case, the interim relief sought for in the writ petitions was stay of operation of the communication of the second appellant- District Collector addressed to the Director, Department of Tourism Development and all further proceedings pursuant thereto, to the extent it alloted the accreted land to the Department of Tourism for the purpose of development, operation, maintenance and management of Tent City at Thinnakkara Island/Bengaram Island.

On a perusal of a few photographs of the temporary constructions being made in connection with Tent City at Thinnakkara Island and Bengaram Island, on the accreted land, the Bench observed that the structures put up on the accreted land for Tent City at Thinnakkara Island and Bengaram Island were only temporary structures, mainly tents for the accommodation of tourists.

“The construction of the tents is nearing completion. A substantial amount has already been spent for putting up such temporary structures, for promoting tourism”, the Bench said while also holding, “In such circumstances, we find no reason to sustain the interim order of status quo granted by the learned Single Judge in both the writ petitions and the same is modified to the effect that any constructions made for Tent City in Thinnakkara Island and Bengaram Island, on the accreted land in front of the property covered by Exts.P2, P2(a) and P2(b) rough pattas in W.P.(C)No.38200 of 2024 and Ext.P1(a) rough patta in W.P.(C)No.38174 of 2024, shall be subject to the outcome of the writ petitions.”

Cause Title: Union Territory of Lakshadweep v. Salmikoya K. [Neutral Citation: 2024:KER:83954]

Appearance:

Appellant: Standing Counsel R.V.Sreejith

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