The main legal point established in the judgment is that a vacation notice issued after the confirmation of a provisional order is not appealable under Section 509(6) of the Kerala Municipality Act, 1994, as it does not confer any cause of action to challenge the order of demolition.

JUDGMENT :

Can a 'vacation notice' issued after the confirmation of a provisional order be challenged under Section 509(6) of the Kerala Municipality Act, 1994?

2. On the basis of a complaint lodged by the 2nd respondent alleging that the petitioner had constructed a toilet in her property, abutting the boundary wall of his property, the 1st respondent, the Secretary, Corporation of Thiruvananthapuram, issued Ext. P2 provisional order under Section 406(1) of the Kerala Municipality Act, 1994 (hereinafter referred to as the ‘Act’), requiring the petitioner to demolish the unauthorized construction described therein and carried out in violation of Rules 26(4) and 67 of the Kerala Municipality Building Rules, 2019 (hereinafter referred to as the 'Building Rules').

3. The petitioner submitted Ext. P3 explanation in response to Ext. P2, wherein it was pointed out, among other things, that the construction was carried out after obtaining consent from the predecessor in interest of the 2nd respondent.

4. The 1st respondent issued Ext. P4 order under Section 406(3) of the Act confirming Ext. P2 provisional order.

5. About nine months after the issuance of Ext. P4 confirmation order, the 1st respondent issued Ext. P5, titled as 'vacation notice', stating that since no action was taken by the petitioner following the confirmation order, the unauthorized construction would be demolished departmentally, with expenses to be recovered from the petitioner. The petitioner was called upon to remove the unauthorized construction within five days from the date of receipt of the notice.

6. The petitioner challenged Ext. P5 vacation notice before the Tribunal for Local Self Government Institutions (for short, ‘Tribunal’) by filing Ext.P6 appeal under Section 509(6) of the Act. The Tribunal rejected the appeal vide Ext. P7 order, observing that, since the petitioner has not challenged Ext.P4 confirmation order issued under Section 406(3) of the Act, the appeal filed against vacation notice is not maintainable. Ext. P7 order is impugned in this writ petition.

7. It is contended by the petitioner that there is no provision under the Act for issuance of a 'vacation notice' and therefore, Ext. P5 can only be treated as a 2nd confirmation notice and the Tribunal ought to have entertained the appeal against Ext. P5 which being one issued under Section 406 (3) of the Act.

8. A statement has been filed by the 1st respondent and a counter affidavit has been filed by the 2nd respondent. In the statement filed by the 1st respondent, it is stated that Ext. P5 vacation notice is only consequential action of Ext. P4 statutory order.

9. Heard Sri. Ajit G. Anjarlekar, the learned counsel for the petitioner, Sri. Suman Chakravarthy, the learned Standing Counsel for the 1st respondent and Sri. K.K. Unni, the learned counsel for the 2nd respondent.

10. Section 509(6) of the Act provides for appeal against any order passed by the Secretary under Section 406 to the Tribunal, within thirty days from the date of passing of such order. It is not in dispute that the petitioner has not challenged Ext. P4 order issued under Section 406(3) of the Act confirming Ext. P2 provisional order requiring her to demolish the unauthorized construction. Thus, the cause of action against Ext. P4 order has become time barred.

11. Section 406(3) of the Act and Rule 90(3) of the Building Rules provide that, on confirmation of the provisional order, such order shall 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 and the expenses therefore shall be recoverable from the owner or such person. Rule 108(3) of the Building Rules provides that any person aggrieved by any of the action in the discharge of the administrative functions by the officer of the Local Self Government Institutions may submit their grievance to the Ombudsman for Local Self Government Institutions. There