Expiry of Statutory Appeal Period and Rule 8(3) Condonable Delay Limit Bar Article 226 Remedy Even Against Execution Notice; Kerala HC Flags Hardship to Ordinary Litigants, Calls for Proviso Amendment
Isabella Mariam
The High Court of Kerala Single Bench of Justice P.V. Kunhikrishnan dismissed a writ petition challenging municipal demolition directions concerning a toilet structure treated as unauthorised and granted the petitioner three months’ time to comply with the demolition. The Court held that it could not entertain the challenge because the statutory appeal period had expired and the outer limit for condoning delay under the proviso to Rule 8(3) of the 1999 Rules had also lapsed, and that the subsequent notice was only in execution of the earlier demolition order. While disposing of the matter, the Court noted the hardship such strict time limits can cause to ordinary litigants and stated that the legislature should consider amending the proviso.
The petitioner, a property owner in Kollam East Village, stated that a small toilet is located within his compound and has been used by him and his family for several decades. He said his property and the neighbouring residential property of the second respondent are separated by a compound wall, and that the neighbour complained to the municipal authority alleging the toilet was an unauthorised construction.
The municipal authority issued a conditional order dated 24.03.2022 under Section 406(1) and (2) of the Kerala Municipality Act, 1994, to which the petitioner submitted a reply. An order dated 08.08.2022 under Section 406(3) followed, after which the petitioner submitted another reply; a hearing and property inspection were then conducted, and a further order dated 18.08.2023 was issued. A hearing notice dated 09.10.2023 was later issued, and the petitioner stated that he appeared and produced supporting documents.
In the writ proceedings under Article 226, the record referred to the statutory appeal provided under Section 509(6) of the Act and the time limits (including the condonable period) under Rule 8(3) of the Tribunal Rules, 1999. The petitioner relied on documents produced as exhibits, including a tax receipt and copies of the municipal orders and hearing notice.
The Court noted the statutory time limits for challenging a municipal order before the Tribunal: “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.”
Relying on Thomas Thomas & another v. Kottayam Municipality and Another (2008 (4) KHC 26), the Court recorded: “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.”
It also referred to Thankappan K. N. and Others v. Tribunal For Local Self Government Institutions, Tvm. and Others (2015 KHC 495) in construing Rule 8(3): “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.”
The Court stated: “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.” It recorded: “Admittedly the petitioner has not filed any statutory appeal within the period prescribed or within the period which can be condoned by the tribunal.” It then framed the issue: “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.”
Referring to the Supreme Court decision in Assistant Commissioner (CT), LTU, Kakinada and Others v. M/s. Glaxo Smith Kline Consumer Health Care Limited, the Court recorded: “The logic applied in these decisions proceeds on fallacious premise.” It noted: “In a given case, the assessee may approach the High Court before the statutory period of appeal expires” and added: “However, if the writ petitioner choses to approach the High Court after expiry of the maximum limitation period of 60 days … the High Court cannot disregard the statutory period … and entertain the writ petition … as a matter of course.”
On Atlantics Intelligence Ltd v. Union of India and Others, the Court reproduced: “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.” It also extracted: “entertaining this writ petition would amount to allowing the petitioner to circumvent the statutory appellate procedure.”
The Court further recorded: “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.”
The Court recorded concerns about the impact of the proviso to Rule 8(3) on ordinary litigants: “Before parting, I cannot ignore the plights of ordinary litigants because of the mandate in proviso to Rule 8(3) of Rule 1999.” It stated that the local self-government statutes are intended to serve citizens: “These are statutes to help people, not to harass them with such restrictions.” The Court illustrated the hardship by describing a situation where a poor, illiterate person could be compelled to demolish a small house under a demolition order that is “prima facie an illegal order” only because an appeal was not filed within time and recorded: “It will be an injustice.” It then stated: “It is a settled position that the first appeal is a right of a litigant.” and observed that, where restrictions on a first appeal lead to injustice, “the legislature should seriously consider amending the proviso to Rule 8(3) of Rule 1999.”
The Court directed: “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.”
Advocates Representing the Parties:
For the Petitioners: Smt. Bhanu Thilak, Shri. Vishnu R, Shri. S.R. Prasanth
For the Respondents: Sri. C.R. Jayakumar, Sri. Nobel Raju, Sri. S. Sreekumar (Kollam)
Case Title: SURESH K v MUNICIPAL CORPORATION OF KOLLAM & ANR.
Neutral Citation: 2026:KER:3355
Case Number: WP(C) NO. 35658 OF 2024
Bench: Justice P.V. Kunhikrishnan
