A Writ Petition cannot be entertained if an appeal is available under the statute, unless filed within the limitation period.

JUDGMENT

The above Writ Petition (C) is filed with the following prayers:

"(i) Issue a writ of certiorari, or direction or order calling for records pursuant to Ext. P7 and quash the same (ii) Pass such other and further reliefs as this Hon’ble Court may deem fit and proper in the interest of justice."

[SIC]

2. The impugned order in this case is an order passed under Section 406 (3) of the Kerala Municipality Act, 1994 . Admittedly, it is an appealable order before the Tribunal for Local Self Government Institutions (for short, ‘Tribunal’). In such circumstances, in the light of the principle laid down by this Court in Suresh K. v. Municipal Corporation of Kollam [ 2026 (1) KHC 406 ], this Writ Petition need not be entertained. This Court in the above decision observed like this:

“14. From the above authoritative judgments of this Court and the Apex Court, it is clear that, 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 Art.226 of the Constitution of India cannot be entertained by the High Court. It amounts to invoking the power under Art.226 of the Constitution of India against statutory rules. That is not permissible. If the Rule's vires is challenged, that will be a different situation. But if, within the period of Limitation prescribed for challenging an order, a writ petition is filed under Art.226 of the Constitution, instead of invoking the alternative remedy, this Court can exercise the jurisdiction if the order is inherently unsustainable, or if it is passed without jurisdiction or if it is passed violating the principles of natural justice. Even in such a situation, the invocation of power under Art.226 of the Constitution is the exception and availing the alternative remedy is the rule. But, if a writ petition in such a situation is entertained by the High Court, which was filed within the limitation period prescribed in the statute concerned and ultimately at the final hearing stage, this Court found that there is nothing to interfere and at that stage, the limitation period for availing the remedy is also over, whether this Court can relegate the party to avail the alternative remedy is the next question. In such situations, to do complete justice to the party, the dictum laid down by the Allahabad High Court in Atlantics Intelligence Ltd. (Supra) is to be followed. The Allahabad High Court observed that the principle of S.14 of the Limitation Act is a principle based on advancing the cause of justice, which would certainly apply to exclude time taken in prosecuting proceedings which are bona fide and with due diligence pursued, which ultimately end without a decision on the merits of the case. I am in perfect agreement with the above dictum laid down by the Allahabad High Court. Therefore, the High Court can invoke the principle in S.14 of the Limitation Act and relegate to avail the alternative remedy with a rider that the party approached the High Court within the period prescribed by the statute for availing the statutory remedy.”

3. In this case, the impugned order was passed on 21.12.2024. This Writ Petition was filed on 09.01.2025. From the above, it is clear that the Writ Petition is filed within the statutory period. Therefore the petitioner can be granted time to approach the Tribunal. To facilitate the petitioner to file appropriate appeal before the Tribunal, the impugned order can be kept in abeyance for a period of three weeks.

Therefore, this Writ Petition is disposed of directing the respondents to keep in abeyance further proceedings based on Ext.P7 for a period of three weeks. In the meanwhile, the petitioner is free to appraoch the Tribunal with appropriate application.