JUDGMENT :

A.J. Desai, CJ.

By way of the present appeal filed under Section 5 of the Kerala High Court Act, 1958, the original petitioner/appellant has challenged the judgment dated 15.02.2024, delivered by the learned Single Judge in the captioned W.P.(C)No.29187/2023.

2. The issue involved in the appeal is “whether a person who had not challenged the confirmation order passed by the authority under Section 406(3) of the Kerala Municipality Act, 1994, (for short, hereinafter, “the Act, 1994”) by filing an appeal under Section 509(6) of the Act, 1994, can subsequently challenge a notice issued by the Corporation in implementation of the confirmation order by asking that person to vacate the premises within a fixed period of time since the authority intends to demolish the illegal construction.” The short facts arising out of the appeal are as under:-

3. On the allegation that the original petitioner had constructed a toilet at the boundary of her property, in violation of the distance stipulated in the Kerala Municipality Building Rules, 2019, a provisional order under Section 406(1) of the Act, 1994 was served on the original petitioner. The explanation offered by the original petitioner not being accepted, the authority passed Ext.P4 confirmation order dated 29.10.2022 and called upon the original petitioner to demolish the illegal construction. It was also informed that in case the original petitioner fails to demolish the construction, the Corporation will carry out the demolition and recover the expenses from her. The said order, which came to be passed under Section 406(3) is appealable under Section 509(6) of the Act, 1994. Such appeal has to be preferred within a period of 30 days from the date of passing of the order. However, despite receipt of Ext.P4 order, the original petitioner did not challenge the same or demolish the illegal construction. Therefore, the Corporation issued Ext.P5 notice dated 01.08.2023, reminding the original petitioner about Ext.P2 and P4 orders passed earlier and requiring her to demolish the construction and inform that matter to the Corporation within five days.

4. The petitioner challenged Ext.P5 order under Section 509(6) of the Act, 1994, before the Tribunal for Local Self Government Institutions. The Tribunal dismissed the appeal on the ground that the confirmation order passed under Section 406(3) was not challenged and therefore, the challenge to Ext.P5, the 'vacation notice', cannot be entertained. The said decision of the Tribunal (Ext.P7) came to be challenged by the petitioner by way of filing the aforesaid writ petition. The learned Single Judge, by the impugned judgment, dismissed the writ petition. Hence this appeal.

5. The learned Counsel appearing for the original petitioner submitted that any person aggrieved by any order or any notice issued under the provisions of the Act, 1994, can file an appeal and therefore, the Tribunal as well as the learned Single Judge has committed error in rejecting the challenge to the ‘vacation notice’, instead of deciding the same on merits. By taking us through the provisions of Section 509 of the Act, 1994, he would submit that the words used in Section 509(6) provides opportunity to challenge any notice issued or order passed under the Act and therefore, the appellate authority ought to have decided the issue on merits and should not have dismissed the appeal on the ground of maintainability. Alternatively it is contended that even if the appeal was not maintainable under Section 509(6), the Tribunal could have entertained it under Section 509(7) of the Act.

6. On the other hand, the learned Counsel appearing for the Corporation would submit that the petitioner having not challenged the order passed under Section 406(3) of the Act, the challenge against the ‘vacation notice’, which was issued only with a purpose to see that the original petitioner is given an opportunity to remove the construction by herself, instead of at the instance of C