IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 1271 of 2009(B)
1. GEORGE, AGED 50, S/O.ANTONY,
... Petitioner
Vs
1. THE STATE OF KERALA, REP. BY THE
... Respondent
2. THE THRISSUR MUNICIPAL CORPORATION,
3. THE SECRETARY,
For Petitioner :SRI.G.SREEKUMAR (CHELUR)
For Respondent :SRI.K.B.MOHANDAS,SC,THRISSUR CORPORATIO
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :18/03/2009
O R D E R
S. Siri Jagan, J.
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W. P (C) No.1271 of 2009
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Dated this, the 18th March, 2009.
J U D G M E N T
This writ petition is filed by an applicant for a building permit,
challenging Ext. P3 order issued by the 3rd respondent-Secretary of
the Thrissur Municipal Corporation, by which his application for
renewal of a building permit was rejected on the ground that a
building permit cannot be renewed more than twice. The facts of the
case as disclosed by the pleadings of the parties, which are now not in
dispute are as follows.
2. Pursuant to an application filed by the petitioner along with
his brothers, a building permit dated 29-11-1999 was issued to them,
valid for the period from 26-11-1999 to 25-11-2002. On the
petitioner’s application dated 31-10-2002, for renewal of the permit,
the same was renewed for the period from 25-11-2002 to 24-11-2005.
Again, the petitioner applied for renewal of the permit and the same
was again renewed for a further period of 3 years up to 25-11-2008.
By Ext. P1 application dated 9-8-2008, the petitioner again requested
for renewal of the permit for a further period of 18 months, which was
rejected by Ext. P3 order. The petitioner challenges that order.
3. The petitioner would contend that Ext. P3 order was not
served on him and he had to resort to the Right to Information Act
after which only the same was served on him on 24-12-1008. In the
writ petition, the only contention raised b the petitioner is that Ext. P3
order was passed without hearing him.
4. The contention of the respondents 2 and 3 in their counter
affidavit is that under Rule 15A of the Kerala Municipality Building
Rules, a building permit can be renewed only twice for a period of
three years each and since the petitioner’s permit has already been
renewed twice for three years each, no further extension of the permit
can be granted under law.
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5. In answer, the petitioner would contend that such restriction
is only in sub rule (2) of Rule 15A and by virtue of sub-rule (4), the
permit can be extended for a further period of three years.
5. I have considered the contentions of both sides in detail.
6. Sub Rules 1 to 4 of Rule 15A reads thus:
“15A. Extension and renewal of periods of permits:-
(1) A development permit or a building permit issued under these
rules shall be valid for three years from the date of issue.
(2) The Secretary shall, on application submitted within the
valid period of the permit, grant extension twice, for further
periods of three years each.
(3) The fee for extension of period of permits shall be ten
percent of the development permit fee or building permit fee as the
case may be, in force at the time of granting extension.
(4) The Secretary shall, on application submitted within one
year of the expiry of the permit, grant renewal, once, for a period
of three years.
xx xx xx”
Petitioner’s contention is that in view of sub-rule (4), there is
ambiguity in the rule as the same is inconsistent with sub-rule (2) and
therefore a purposive construction of the rule should be adopted by
giving a meaning to sub-rule (4) also in which case the petitioner is
entitled to extension of the period of validity of the period of the
permit for a further period of three years. He relies on the decision of
the Supreme Court in Union of India and another v. Hansoli Devi
and others, (2002) 7 SCC 273 in support of his contention.
7. I am of the opinion that going by the very dictum laid down
by the Supreme Court in Hansoli Devi’s case (supra), the petitioner’s
contention should be rejected. In that decision, the Supreme Court
W.P.C. No. 1271/2009 -: 3 :-
held thus:
“9. Before we embark upon an inquiry as to what would be
the correct interpretation of Section 28-A, we think it appropriate
to bear in mind certain basic principles of interpretation of a
statute. The rule stated by Tindal, C.J. in Sussex Peerage case
[(1844) 11 Cl & Fin 85] still holds the field. The aforesaid rule is
to the effect: (ER p. 1057)“If the words of the statute are in themselves precise and
unambiguous, then no more can be necessary than to expound those
words in their natural and ordinary sense. The words themselves
alone do, in such case, best declare the intention of the lawgiver.”
It is a cardinal principle of construction of a statute that when the
language of the statute is plain and unambiguous, then the court
must give effect to the words used in the statute and it would not
be open to the courts to adopt a hypothetical construction on the
ground that such construction is more consistent with the alleged
object and policy of the Act. In Kirkness v. John Hudson & Co.
Ltd., [(1955) 2 All E.R. 345], Lord Reid pointed out as to what is
the meaning of “ambiguous” and held that: (All ER p. 366 C-D)“A provision is not ambiguous merely because it contains a
word which in different contexts is capable of different meanings. It
would be hard to find anywhere a sentence of any length which does
not contain such a word. A provision is, in my judgment, ambiguous
only if it contains a word or phrase which in that particular context is
capable of having more than one meaning.”
It is no doubt true that if on going through the plain meaning of
the language of statutes, it leads to anomalies, injustices and
absurdities, then the court may look into the purpose for which
the statute has been brought and would try to give a meaning,
which would adhere to the purpose of the statute. Patanjali Sastri,
C.J. in the case of Aswini Kumar Ghose v Arabinda Bose [AIR
1952 S C 369], had held that it is not a sound principle of
construction to brush aside words in a statute as being inapposite
surplusage, if they can have appropriate application in
circumstances conceivably within the contemplation of the statute.
In Quebec Railway, Light Heat & Power Co. Ltd. v. Vandry, [AIR
1920 PC 181], it had been observed that the legislature is deemed
not to waste its words or to say anything in vain and a
construction which attributes redundancy to the legislature will
not be accepted except for compelling reasons. Similarly, it is not
permissible to add words to a statute which are not there unless
on a literal construction being given a part of the statute becomes
meaningless. But, before any words are read to repair an
omission in the Act, it should be possible to state with certaintyW.P.C. No. 1271/2009 -: 4 :-
that the words would have been inserted by the draftsman and
approved by the legislature had their attention been drawn to the
omission before the Bill had passed into a law. At times, the
intention of the legislature is found to be clear but the
unskilfulness of the draftsman in introducing certain words in the
statute results in apparent ineffectiveness of the language and in
such a situation, it may be permissible for the court to reject the
surplus words, so as to make the statute effective. . . . .”
I do not find any ambiguity in Rule 15A or any conflict between sub-
rules (2) and (4) thereof so as to look into the object or policy
underlying the statute to give it a purposive construction and
therefore, as laid down by the Supreme Court, I have to go by the
plain meaning of the rule. Sub-rule (2) states that ‘on application
submitted within the valid period of the permit’, the Secretary shall
grant extension twice, for further periods of three years each. Under
sub-rule (4), ‘on application submitted within one year of the expiry of
the permit’, the Secretary shall grant renewal once, for a period of
three years. Going by the plain meaning of the two sub-rules, it is
abundantly clear that the two rules operate in different spheres. As
per sub-rule (2), if a person applies for extension within the period of
validity of the permit, the period of validity of the permit can be
extended twice for periods of three years each. That is, if the
application for extension is made on both occasions before the expiry
of the period of validity of the permit, an applicant would get a total
period of nine years’ time to complete the construction. But, if the
applicant is not vigilant and allows the period of validity to expire, if
an application for extension is submitted within one year of the expiry
of the permit, the permit can be extended once for a period of three
years. In other words, a vigilant applicant who submits application
before the period of validity of the permit expires, he would get nine
years to complete the construction, whereas a person, who omits to
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apply for extension before the expiry of the period of validity and
allows the period of validity of the permit to expire, if applies within
one year from the date of expiry, would get only six years to complete
the construction. There is no ambiguity in the language used in the
rule in that regard and the meaning is loud and clear obviating the
necessity of any purposive interpretation. In this case, since the
petitioner has already got the maximum period of six years of
extension and total period of nine years, there is no question of any
further extension of the validity of the permit. The only course open
to the petitioner is to apply for a fresh permit in accordance with the
Rules.
Therefore, I do not find any merit in this writ petition and
accordingly the same is dismissed.
S. Siri Jagan, Judge.
Tds/