1.This Writ Petition (C) is filed with the following prayers:

                  "i. issue a writ in the nature of certiorari calling for the records culminated in the issuance of Ext.P5 notice and quash the same.

                  ii.       Issue an order staying all further proceedings pursuant to Ext.P5

                  iii.       issue such other order or direction, as this Hon’ble Court deem fit and proper to grant."

[SIC]

2. The petitioner herein is the absolute owner in possession of a property comprised in re survey No. 722 of Kollam East Village, having an extent of 1 Are 65 Sq Meters. The 2nd respondent is the petitioner's neighbour. The 2nd respondent’s residential property and the petitioner's property are separated and demarcated by a compound wall, is the submission. It is the case of the petitioner that there is a small toilet situated within the property of the petitioner, which is used by him and his family members. The petitioner states that the toilet was constructed in 1990, and he and his family have been using it for the last 34 years without any hindrance or obstruction. While so, the 2nd respondent, who is inimical to the petitioner, had lodged a complaint before the 1st respondent, Panchayat, claiming that the toilet inside the petitioner's property is an illegal construction, is the submission. The 1st respondent had passed a conditional order dated 24.03.2022 under Section 406(1) and (2) of the Kerala Municipality Act, 1994 (for short, the Act 1994), directing the petitioner to demolish the toilet constructed. Petitioner submitted a reply to the same. Subsequently, the Ext.P2 order was passed on 08.08.2022, confirming the conditional order. Thereafter, the petitioner submitted a reply to Ext.P2. Based on this reply, another hearing and property inspection were held. But the same was rejected and again issued Ext.P3 order on 18.08.2023 to demolish the illegal construction. Thereafter, the 1st respondent once again issued Ext.P4 notice dated 09.10.2023 for hearing the matter based on a direction from the honourable Mayor, and the petitioner appeared and gave his statement along with all supporting documents, is the submission. But the 1st respondent issued Ext. P5 demolition notice. Hence, this Writ Petition is filed.

3. Heard counsel for the petitioner, Standing Counsel appearing for the Municipality and also the Counsel appearing for the 2nd respondent.

4. Admittedly, Ext.P2 is a final order passed under Section 406 (3) of the Act 1994, confirming the provisional order passed under Section 406 (2) of the Act 1994. Section 406 of the Act 1994 is extracted hereunder:

                  “406. Demolition or alteration of building work unlawfully commenced, carried on or completed.—

                  (1)      Where the Secretary is satisfied-

                  (i)       that the construction, reconstruction or alteration of any building or digging of any well-

                  (a)      has been commenced without obtaining the permission of the Secretary or in contravention of the decision of the Council; or

                  (b)      is being carried on, or has been completed otherwise than in accordance with the plans or specifications on which such permission or decision was based; or

                  (c)      is being carried on, or has been completed in breach of any of the provisions of this Act or any rule or bye-law or order made or issued thereunder or any direction or requisition lawfully given or made under this Act, such rule, bye-law or order; or

                  (ii)      that any alteration required by any notice issued under section 395 has not been duly made; or

                  (iii)     that any alteration of or addition to any building or any other work made or done for any purpose in or upon any building has been commenced or is being carried on or has been completed in contravention of the provisions of section 405, he may make a provisional order requiring the owner or the person for whom the work is done to demolish the work done, or so much of it as, in the opinion of the Secretary, has been unlawfully executed or to make such alterations as may, in the opinion of the Secretary, be necessary to bring the work in conformity with the provisions of this Act, bye- laws, rules, direction, order or requisition as aforesaid, or with the plans and specifications on which such permission or decision was based, and may also direct that until the said order is complied with, the owner or such person shall refrain from proceeding with the work.

                  Provided that the Secretary may, on realisation of a compounding fees as may be fixed by the Government, regularise any constructions, reconstruction or alteration of any building or digging of any well, commenced, carried on or completed without getting a plan approved by the Secretary or in deviation of the approved plan, if such construction, reconstruction or alteration of the building or digging of the well does not contravene any of the provisions and specifications mentioned in this Act or the Building Rules made thereunder.

                  (2) The Secretary shall serve a copy of the provisional order made under sub-section (1) on the owner or the person for whom such work is done together with a notice requiring him to show cause within a reasonable time, to be specified in such notice why the order should not be confirmed.

                  (3) Where the owner or the person for whom the work is done fails to show cause to the satisfaction of the Secretary, the Secretary may confirm the order or modify the same to such extent as he may think fit to make, and such order shall then be binding on the owner or the person for whom the work is done and on the failure to comply with the order, the Secretary may himself cause the building or part thereof, demolished or the well dismantled, as the case may be and the expenses therefor shall be recoverable from the owner or such person.”

5. Ext.P2 is an appealable order before the Tribunal for Local Self Government Institutions as per Section 509 (6) of the Act 1994. Section 509 (6) is extracted hereunder:

                  “509. Appeal and Revision —

                  (1)      xxxx xxxx

                  (2)      xxxx xxxx

                  (3)      xxxx xxxx

                  (4)      xxxx xxxx

                  (5)      xxxx xxxx

                  (6) Any person may file an appeal against any notice issued or any order passed by the Secretary under Sections 390, 391, 395, 406 and 408 to the Tribunal Constituted for the Local Self Government Institutions under Section 271 S of the Kerala Panchayat Raj Act, 1996 (13 of 1994), within thirty days from the date of passing of such order.”

6. As per Section 509(6) of the Act 1994, the time to file an appeal against an order issued under Section 406(3) is thirty days. Proviso to Rule 8(3) of the Tribunal for the Kerala Local Self Government Institutions Rules, 1999 (Rules 1999) provides that, if an application for condonation of delay is filed, the delay may be condoned for a period of one month after the prescribed period has elapsed. It will be better to extract Rule 8 of the Rules 1999.

                  “Rule - 8. Petitions to the Tribunal.

                  (1)      A petition submitted to the Tribunal shall be an appeal or revision against a notice, order or proceedings of the Village Panchayat, Municipality or its Standing Committee for Finance or the Secretary in respect of any matter specified in the schedule appended to these rules or inserted to the said schedule by the Government from time to time by notification.

                  (2)      If the concerned Village Panchayat or the Municipality or the Standing Committee for Finance or the Secretary has not taken decision within the prescribed time limit in cases where time limit has been prescribed in the Panchayat Act or the Municipality Act or in the Rules, the affected party may, in this respect, file appeal before the Tribunal.

                  (3)      Petitions under sub-rule (1) and (2) shall be in Form 'C' and the same shall be submitted before the Tribunal within thirty days from the date of the notice or order or proceedings against which the petition is filed or within ninety days in cases where decision has not been taken within sixty days of filing appeal before the Local Self Government Institutions:

                  Provided that the Tribunal may admit a petition submitted within one month after the said time limit, if the Tribunal is satisfied that there is sufficient reason for not submitting the petition within the time limit.”

7. This Court, in Thomas Thomas & another v. Kottayam Municipality and Another [2008 (4) KHC 26], observed that, upon the expiry of the statutory period of 30 days and the further condonable period of one month, the Tribunal has no jurisdiction to condone any further delay. The relevant portion of the judgment is extracted hereunder:

                  “11. From the aforesaid judgments it is clear that once the statutory period of limitation has expired, the party looses its right of appeal. Thereafter it is not open to him to invoke the power of this Court under Art.226 of the Constitution and bypass the statutory restrictions and get the delay condoned or to have the matter examined by this Court. Admittedly proviso to R.8(3) authorises the Tribunal to condone delay of only one month if it is satisfied that there is sufficient reason for the delay. The power conferred on the Tribunal being restricted, in my view, the above two judgments of this Court gives a complete answer to the contentions of the petitioner.” (Underline supplied)

8. In Rermal Padmanabhan v. Tribunal for Local Self Govt. Institutions, Tvm and Another [2015 (3) KHC 406], the division bench of this court observed like this:

                  “ 20. In yet another decision in 'Popat Bahiru Govardhane and Others v. Special Land Acquisition Officer and Another', 2013 KHC 4651 : 2013 (10) SCC 765 : 2013 (130) AIC 97 : 2013 (6) Mah LJ 950 : 2013 (100) ALR 657, the Hon'ble Supreme Court emphasized the need for strict compliance with the statutory scheme and held that it is not permissible to extend the period of limitation on equitable grounds if Statute does not permit the same. Taking into account the facts, circumstances and law involved in the case before us, we are of the considered opinion that the order passed by the learned Tribunal, refusing to condone the delay in excess of the period prescribed under the proviso to R.8(3) and the affirmation of the same by the learned Single Judge is correct and no interference is called for.” (Underline supplied).

9. In Thankappan K. N. and Others v. Tribunal For Local Self Government Institutions, Tvm. and Others [2015 KHC 495], this court observed like this:

                  “23. From the above Rule, it is manifest that petitions shall be submitted before the Tribunal within thirty days from the date of the notice or order or proceedings, though it is ninety days under certain circumstances, which are not relevant for our purpose. The proviso to the Rules makes it clear that the Tribunal may admit a petition submitted within one month after the said time limit, if the Tribunal is satisfied that there is sufficient reason for not submitting the petition within the time limit. Without an iota of doubt, it can be said that the total permissible time for filing an appeal is sixty days.” (Underline supplied)

10. It is a settled position that once the period prescribed for limitation for filing an appeal is over and the additional one month for which the Tribunal can condone the delay is also over, the Tribunal cannot entertain an appeal. Admittedly the petitioner has not filed any statutory appeal within the period prescribed or within the period which can be condoned by the tribunal.In such a situation, the question to be decided is whether this Court can entertain the writ petition under Article 226 of the Constitution of India if there is manifest error in the order.

11. The Apex Court in Assistant Commissioner (CT), LTU, Kakinada and Others v. M/s. Glaxo Smith Kline Consumer Health Care Limited [2020 KHC 6377], observed like this:

                  “15. We may now revert to the Full Bench decision of the Andhra Pradesh High Court in Electronics Corporation of India Ltd. (supra), which had adopted the view taken by the Full Bench of the Gujarat High Court in Panoli Intermediate (India) Pvt. Ltd. vs. Union of India & Ors., AIR 2015 Guj. 97 and also of the Karnataka High Court in Phoenix Plasts Company vs. Commissioner of Central Excise (Appeal - I), Bangalore, 2013 (298) ELT 481 (Kar.). The logic applied in these decisions proceeds on fallacious premise. For, these decisions are premised on the logic that provision such as S.31 of the 1995 Act, cannot curtail the jurisdiction of the High Court under Art.226 and Art.227 of the Constitution. This approach is faulty. It is not a matter of taking away the jurisdiction of the High Court. In a given case, the assessee may approach the High Court before the statutory period of appeal expires to challenge the assessment order by way of writ petition on the ground that the same is without jurisdiction or passed in excess of jurisdiction - by overstepping or crossing the limits of jurisdiction including in flagrant disregard of law and rules of procedure or in violation of principles of natural justice, where no procedure is specified. The High Court may accede to such a challenge and can also non - suit the petitioner on the ground that alternative efficacious remedy is available and that be invoked by the writ petitioner. However, if the writ petitioner choses to approach the High Court after expiry of the maximum limitation period of 60 days prescribed under S.31 of the 2005 Act, the High Court cannot disregard the statutory period for redressal of the grievance and entertain the writ petition of such a party as a matter of course. Doing so would be in the teeth of the principle underlying the dictum of a three - Judge Bench of this Court in Oil and Natural Gas Corporation Limited (supra). In other words, the fact that the High Court has wide powers, does not mean that it would issue a writ which may be inconsistent with the legislative intent regarding the dispensation explicitly prescribed under S.31 of the 2005 Act. That would render the legislative scheme and intention behind the stated provision otiose.” (underline supplied)

12. Relying on this judgment, the Allahabad High Court in Atlantics Intelligence Ltd v. Union of India and Others [2025 SCC OnLine Allahabad 5291], observed like this:

                  “14. Upon a perusal of the umpteen judgments cited above and sifting through the ratios laid down by the Supreme Court and High Courts in the various judgments, one may extract the principles with regard to maintainability of the writ petitions after expiry of the time frame for filing appeal stipulated in the special statute. The said principles are summarised below:

                  A. An order that this Court could make in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution of India, but also be consistent with the substantive provisions of the relevant statutory laws.

                  B. In exercising powers under Article 226 of the Constitution of India and in assessing the needs of ‘complete justice’ of a cause or matter, the High Court should take note of the express prohibitions in any substantive statutory provision based on some fundamental principles of public policy and regulate the exercise of its power and discretion accordingly.

                  C. The prescription of limitation when the statute commands that delay may be condoned to a maximum of one month further would come within the ambit and sweep of the policy of legislation. In such cases, Section 29(2) read with Section 3 of the Limitation Act would apply, and accordingly, the Courts shall have no power to condone the delay of any further period even in writ jurisdiction under Article 226 of the Constitution of India.

                  D. The principle of Section 14 of the Limitation Act which is a principle based on advancing the cause of justice would certainly apply to exclude time taken in prosecuting proceedings which are bona fide and with due diligence pursued, which ultimately end without a decision on the merits of the case.

                  15. In the present case, the petitioner has come to this writ Court after the limitation has expired for filing an appeal under Section 107 of the Act. In light of the same, we are of the view that entertaining this writ petition would amount to allowing the petitioner to circumvent the statutory appellate procedure. In our view, no proper explanation has been provided by the petitioner for non-filing of the appeal within time and/or non-filing of the writ petition within the limitation period.

                  16. The dictum of the Supreme Court laid down in Singh Enterprises (supra), Hongo India (P) Ltd. (supra) and Glaxo Smith Kline Consumer Health Care Ltd. (supra) has been consistently followed by Supreme Court and various High Courts. In light of the same, this Court is of the view that this Court should not indulge the writ petitioner in condoning the delay as the present case is neither a case of gross violation of principles of natural justice nor patent illegality. Furthermore, writ jurisdiction can certainly not be exercised when invoked to undermine or defeat the application of a statutory regime so as to render the provision of limitation provided in the statute otiose. Ergo, this Court ought not to entertain the present writ petition and the same deserves to be rejected in limine.”

13. In Sathish Murthi v. Member Secretary, Art and Heritage Commission, Tvm and Others [2016 KHC 684], the division bench of this court, relying on Thomas’s case (supra), has observed like this:

                   “5. Insofar as WA No. 1017 of 2016 is concerned, challenging Ext. P8 building permit issued on 23/08/2013 and Ext. P10, the recommendation of the Art and Heritage Commission dated 17/07/2013, the appellant therein filed WP (C) No. 14455 of 2014 on 06/06/2014. According to us, that writ petition ought to have been dismissed at the threshold itself for the reason that if the appellant was aggrieved by the building permit, he had a remedy of appeal before the Tribunal for Local Self Government Institutions. As per S.510 of the Kerala Municipality Act, 1994, the time limit prescribed for filing an appeal is 30 days from the date of the order. The petitioner in this writ petition did not file any appeal. Instead, long after the expiry of the period prescribed in S.510 of the Act, he filed the writ petition before this Court on 06/06/2014, challenging the building permit. Once a cause of action has become time barred, a litigant cannot seek to revive the same by taking recourse to the extra ordinary jurisdiction of this Court under Art.226 of the Constitution of India. In this context, it is relevant to refer to the Division Bench judgment of this Court in Assistant Commissioner of Central Excise v. Krishna Poduval (2005 KHC 1914 : 2005 (4) KLT 947 : ILR 2005 (4) Ker. 499), where it was held thus:

                  “7. At the outset we may state that insofar as the respondents have not taken up the original orders imposing penalty in appeals before the Appellate Authority within the maximum period prescribed under S.85(3) of the Finance Act, 1994, they cannot get the appeals revived and heard on merits by resorting to the discretionary remedy before this Court under Art.226 of the Constitution of India. Once the period of limitation has run itself out and the Appellate Authority does not have power to condone the delay in filing the appeals beyond the maximum period prescribed under the Act, the remedies of the appellants come to an end just like in the case of a time barred suit and the respondents cannot, by invoking the discretionary remedy under the extraordinary jurisdiction of this Court under Art.226 of the Constitution of India, resurrect their unenforceable cause of action and require this Court to consider their contentions against the original orders on merit. That would amount to defeating the very law of limitation which we are not expected to do under Art.226. If we are to entertain the contentions of the respondents on merits, that would amount to negating the law of limitation which we have no jurisdiction to do under Art.226 and which may even lead no anomalous results. We are not satisfied that the jurisdiction of this Court under Art.226 of the Constitution of India is so wide as to resurrect a cause of action which has become unenforceable on account of the law of limitation. Further, we are of the firm opinion that the jurisdiction under Art.226 of the Constitution of India cannot be invoked against express statutory provisions, however harsh the effect of the provisions may be on an assessee or litigant.”

                  Subsequently, referring to the judgment in Krishna Poduval's case (supra), this Court in Thomas Thomas v. Kottayam Municipality (2008 (4) KHC 26 : 2008 (3) KLT 964 : ILR 2008 (4) Ker. 70 : 2008 (3) KLJ 482) held thus:

                  “11. From the aforesaid judgments it is clear that once the statutory period of limitation has expired, the party looses its right of appeal. Thereafter it is not open to him to invoke the power of this Court under Art.226 of the Constitution and bypass the statutory restrictions and get the delay condoned or to have the matter examined by this Court. Admittedly proviso to R.8(3) authorises the Tribunal to condone delay of only one month if it is satisfied that there is sufficient reason for the delay. The power conferred on the Tribunal being restricted, in my view, the above two judgments of this Court gives a complete answer to the contentions of the petitioner.”

                  Therefore, for that reason itself, WP (C) No. 14455 of 2014 should have been dismissed as not maintainable.”

14. From the above authoritative judgments of this court and the apex court, it is clear that, once the period prescribed in the statute for filing the appeal and the period which can be condoned as per the statute is over, a writ petition under Article 226 of the Constitution of India cannot be entertained by the High Court. It amounts to invoking the power under Article 226 of the Constitution of India against statutory rules. That is not permissible. If the Rule's vires is challenged, that will be a different situation. But if, within the period of Limitation prescribed for challenging an order, a writ petition is filed under Article 226 of the Constitution, instead of invoking the alternative remedy, this court can exercise the jurisdiction if the order is inherently unsustainable, or if it is passed without jurisdiction or if it is passed violating the principles of natural justice. Even in such a situation, the invocation of power under Article 226 of the Constitution is the exception and availing the alternative remedy is the rule. But, if a writ petition in such a situation is entertained by the High Court, which was filed within the limitation period prescribed in the statute concerned and ultimately at the final hearing stage, this court found that there is nothing to interfere and at that stage, the limitation period for availing the remedy is also over, whether this court can relegate the party to avail the alternative remedy is the next question. In such situations, to do complete justice to the party, the dictum laid down by the Allahabad High Court in Atlantics Intelligence Ltd (Supra) is to be followed. The Allahabad High Court observed that the principle of Section 14 of the Limitation Act is a principle based on advancing the cause of justice, which would certainly apply to exclude time taken in prosecuting proceedings which are bona fide and with due diligence pursued, which ultimately end without a decision on the merits of the case. I am in perfect agreement with the above dictum laid down by the Allahabad High Court. Therefore, the High Court can invoke the principle in Section 14 of the Limitation Act and relegate to avail the alternative remedy with a rider that the party approached the High Court within the period prescribed by the statute for availing the statutory remedy.

15. In this case, the order passed under Section 406(3) was on 08.08.2022. The petitioner filed this writ petition on 09.10.2024. This means the writ petition is filed about two years after the date of Ext. P2. The appeal against such an order can be filed only within thirty days as per Section 509(6) of the Act, 1994 and according to the proviso to Rule 8(3) of the Tribunal for the Kerala Local Self Government Institutions Rules, 1999, the Tribunal may admit a petition submitted within one month after the said time limit, if the Tribunal is satisfied that there is sufficient reason for not submitting the petition within the time limit. Thereafter, the Tribunal is functus officio to consider an appeal against an order under Section 406 (3) of the Act 1994. Therefore, I am of the considered opinion that this Court cannot entertain a writ petition when the period of limitation specifically mentioned in statute for filing an appeal is over, and the period for which a delay condonation petition can be entertained is also over. Therefore, the challenge against Ext.P2 is to be rejected. Hence, this writ petition is to be dismissed. It is true that the petitioner challenges Ext.P5 in this writ petition. Ext.P5 is only an execution order of Ext.P2, and therefore, as long as Ext.P2 is in force, a challenge against Ext.P5 independently is not possible.

16. At this stage, the counsel for the petitioner submitted that the petitioner and his 86-year-old mother are residing in the house, and if this toilet is demolished, there will be great difficulty for the petitioner and his mother. There is no other toilet in the house, and the 86-year-old mother will be in trouble if the toilet is demolished immediately. This is the plight of these harsh provisions in the Rules 1999. The tribunal, or even this court, cannot look into the merits of the impugned order due to the bar under the proviso to Rule 8(3) of the Rules 1999. I cannot close my eyes thinking of the plight of this old lady, who is not only the mother of the petitioner, but also of all of us. Let the petitioner construct a new toilet within a short period, and the execution of the impugned orders can be deferred for three months. Therefore, in the light of the peculiar facts and circumstances of this case, three months' time can be given to demolish the toilet as ordered in Exts. P2, P3, and P5.

17. Before parting, I cannot ignore the plights of ordinary litigants because of the mandate in proviso to Rule 8(3) of Rule 1999. The Kerala Panchayat Raj Act 1994 and the Kerala Municipality Act 1994 are legislation made for the citizens with a great objective. These are statutes to help people, not to harass them with such restrictions. Imagine a situation like this; If a poor, illiterate citizen constructed a small residential house in a small plot with his hard earned money from his coolie work and an order under section 406 the Municipality Act or under the provisions of the Panchayath Raj Act is issued to demolish such residential house, which is prima facie an illegal order, and due to his ignorance of the mandate of law or because of some sufficient reason, he was not able to file appeal within the prescribed time, he has to demolish his dream house which he constructed using his hard earned money. It will be an injustice. It is a settled position that the first appeal is a right of a litigant. If restrictions are imposed on filing the first appeal, which leads to injustice to a party, the legislature should seriously consider amending the proviso to Rule 8(3) of Rule 1999. But this court has no jurisdiction to issue such a direction to the legislature. But I am hopeful that a welfare government will consider this injustice in the rules. The Registry shall forward a copy of this judgment to the Chief Secretary to the Government of Kerala, the Secretary to the Local Self-Government Institutions, Government of Kerala, the Law Secretary, and the Secretary to the Kerala Legislative Assembly.

                  But, in light of the discussion in this judgment, it is clear that this court has no jurisdiction to interfere with the impugned orders on merit. The court of law cannot ignore the statutory rule and issue orders. Therefore, this writ petition is dismissed, granting the petitioner three months' time to demolish the toilet as ordered in Exts. P2, P3, and P5.