IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 2ND FEBRUARY 2011 / 13TH MAGHA 1932 WP(C).No. 3482 of 2011(I) ------------------------- PETITIONER(S): --------------- P.C.JOHN, S/O. LATE CHACKO, PUKIDIYIL HOUSE, KUZHIMATTOM KARA & POST, PANACHIKKAD VILLAGE, KOTTAYAM DISTRICT. BY ADV. SRI.P.KURUVILLA JACOB RESPONDENT(S): --------------- 1. KOTTAYAM MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, KOTTAYAM-686 001. 2. THE SECRETARY, KOTTAYAM MUNICIPALITY, MUNICIPAL OFFICE, KOTTAYAM-686 001. 3. K.R.G.WARRIER, MUNICIPAL COUNSELLOR FROM WARD NO.16, KOTTAYAM MUNICIPALITY, MUNICIPAL OFFICE, KOTTAYAM-686 001. ADV. SRI.SIBY MATHEW FOR R1,2 SRI.PHILIP J.VETTICKATTU FOR R1,2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO.3482 OF 2011 -------------------------------------------- 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