IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 3482 of 2011(I)
1. P.C.JOHN, S/O. LATE CHACKO,
... Petitioner
Vs
1. KOTTAYAM MUNICIPALITY, REPRESENTED BY
... Respondent
2. THE SECRETARY,
3. K.R.G.WARRIER,
For Petitioner :SRI.P.KURUVILLA JACOB
For Respondent :SRI.SIBY MATHEW
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :02/02/2011
O R D E R
C.T. RAVIKUMAR, J.
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W.P.(C). NO.3482 OF 2011
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Dated this the 2nd day of February, 2011
JUDGMENT
The petitioner is the owner in possession of 10.065 cents of property
comprised in Sy.Nos.54/1, 54/2 and 54 of Muttambalam Village. Alleging
illegal and unauthorised construction of a retention wall, the second
respondent issued Ext.P2 stop memo requiring the petitioner to stop
construction and also to demolish the construction so far effected. It is
stated thereunder that the petitioner had violated Rule 96 of the Kerala
Municipality Building Rules. In fact, Ext.P2 is a stop memo-cum
provisional order. On receipt of the same, the petitioner has submitted
Ext.P4 before the second respondent. Later Ext.P2 order was confirmed as
per Ext.P5. Evidently, Ext.P5 is an order passed under Section 406 of the
Kerala Municipality Act (for short ‘the Act’) against which an appeal will
lie under Section 509 of the Act. Ext.P5 carries a direction to the
petitioner to demolish the retention wall besides carrying the threat of
demolition in case of his failure to carry out the instruction. It is in the
said circumstances that this Writ Petition has been filed.
2. The learned standing counsel appearing for respondents 1 and
W.P.(C) NO.3482/2011 2
2 submitted that in case the petitioner is aggrieved by Ext.P5, it would be
open to the petitioner either to file an appeal against the same before the
Tribunal for Local Self Government Institutions or file an application for
regulation under proviso to Section 406 (2) of the Act before the second
respondent. In view of the existence of an alternative efficacious remedy,
this Writ Petition is not liable to be entertained, it is submitted.
3. Indisputably, an appeal will lie against Ext.P5 order. I am of
the view that when a statutory appeal is available against the impugned
order, in the absence of exceptional circumstances, the party shall be
relegated to resort to the said statutory remedy. The learned counsel for
the petitioner submitted that the time allotted as per Ext.P5 to demolish the
construction would expire on 2.2.2011. The petitioner apprehends
coercive steps from the part of the respondents to demolish the said
construction. In view of the said circumstances and taking note of the
factum of availability of an alternative efficacious remedy, I am inclined to
dispose of this Writ Petition as hereunder:
In case the petitioner is aggrieved by Ext.P5, it will be open to the
petitioner either to prefer an appeal against the said order before the
Tribunal for Local Self Government Institutions or to prefer an application
in terms of proviso to Section 406 (2) of the Act before the second
W.P.(C) NO.3482/2011 3
respondent. To enable the petitioner to resort to the alternative efficacious
remedy, two weeks’ time is granted. In other words, for a period of two
weeks, the respondents shall not take any coercive steps pursuant to Ext.P5
to demolish the retention wall in question. Necessity to demolish the same
would depend upon the outcome of the appeal, if filed within the stipulated
time.
(C.T. RAVIKUMAR, JUDGE)
spc
W.P.(C) NO.3482/2011 4
C.T. RAVIKUMAR, J.
JUDGMENT
September, 2010
W.P.(C) NO.3482/2011 5