IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 21574 of 2008(R)
1. K.,M.ABDULLA, S/O.MOHAMMED
... Petitioner
Vs
1. SECRETARY, PAYYANNUR MUNICIPALITY,
... Respondent
2. DISTRICT JUDGE, THALASSERY.
3. SUBORDINATE JUDGE, PAYYANNUR.
For Petitioner :SRI.M.V.AMARESAN
For Respondent :SRI.M.SASINDRAN
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :19/08/2009
O R D E R
THOTTATHIL B. RADHAKRISHNAN, J.
...........................................
WP(C).NO.21574 OF 2008
............................................
Dated this the 19th day of August, 2009
JUDGMENT
“C.R.”
1.On public demand, including the persuasions of the Bar
Association, a building was leased out to the Government on
3rd January, 1987, to house the Sub Court, Payyannur. A lease
deed was thereafter executed on 16.12.1990, for a period of
five (5) years therefrom, renewable on mutual consent for any
further period and terminable on three (3) months’ notice by
either side after the period fixed, or in the event of shifting of
the Court to a government building, whichever is earlier.
2.With the passage of time, the owners wanted to build two more
floors above the existing structure, after making modifications
to the ground floor. They were granted building permit on
29.6.1999. However, they could not commence construction
until now, August 2009, since the Sub Court is yet to be shifted
out of that premises.
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3.While the owners waited for vacant possession of the building
to carry out the construction, they had to keep the building
permit renewed thrice, from 29.6.1999, extended up to
26.7.2008, for a span of nine years. They had also to execute
lease deeds effective from earlier dates, obviously to enable
disbursement of rent. After executing Ext.P4 agreement of
lease on 23.02.2006, for a period of five (5) years from
3.01.2002, the learned District Judge issued Ext.P5 letter
informing the landowners that the construction of the building
for accommodating the Sub Court is in good progress and it is
expected to be completed by 26.01.2007 and the Court would
be shifted to the new building on such completion. In fact,
that letter was issued on the basis of an office memorandum
dated 9.10.2006, issued by the High Court. Unfortunately, the
completion of the building got further delayed. On the
representation on behalf of the landowners, the High Court
issued office memorandum dated 6.6.2008 and following that,
on 17.6.2008, learned District Judge issued Ext.P6, essentially
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requesting the land owners to wait till the court shifted to the
new building and informing them that the construction of the
new sub court building would be completed soon.
4.The land owners again made Ext.P7 representation, obviously
facing the situation that they would be running out of time to
commence construction of the building, in terms of the permit
that stood renewed and extended up to 26.7.2008. It appears
that the Bar Association drew up Ext.P8 resolution requesting
the municipality to grant special permission to the land owners
to make the construction, having regard to the delay in
delivering the building back to them, after shifting the sub
court. With this, the land owners applied to the municipal
secretary. That was rejected as per Ext.P10 stating that the
building permit was renewed from time to time for a total
period of 9 years which is the maximum period for which a
building permit could be kept alive even by renewal, in terms
of Rule 15A(10) of the Kerala Municipality Building Rules,
1999, hereinafter referred to as the ‘KMBR’.
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5.This writ petition is filed challenging the aforesaid decision
and seeking a declaration that the construction of the building
could not be commenced as permitted by the municipality only
due to the failure to surrender the building in spite of repeated
assurances and hence, for a further direction to re-consider
the application for extension of the period to build in terms of
the licences originally granted.
6.On facts, it needs to be noticed that the land owners had never
intended the building to be made available for housing the sub
court for all times to come. In fact, the renewal deeds would
show that even those documents were executed long after
each spell of continued occupation, essentially to enable
release of rent and occupation charges. The materials on
record contain the repeated statement by learned District
Judge that the construction of the judicial complex is being
completed. It is also stated by the learned Government
Pleader, on instructions, that the judicial complex is likely to
be inaugurated shortly.
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7.Ext.P2 building permit was issued on 29.6.1999. That was
issued before the KMBR came into force on 1.10.1999. By
virtue of Rule 15A (10) of KMBR, such permits could be
renewed only for a maximum period of nine years. That
prescription is well in consonance with sub rules 1 and 2 of
that Rule which provides that the period of permit issued
under KMBR shall be three years and could be renewed twice,
each for a duration of three years. Technically, therefore, the
owners’ application for further renewal after 26.7.2008 may
not be allowable in terms of statutory provisions in the KMBR
as they now stand.
8.This writ petition was filed on 16.7.2008, i.e., before
26.7.2008, the date on which the building permit would expire.
Later, an application for a fresh permit was also filed. But the
fact of the matter remains that when an application for a new
permit is made under 1999 KMBR, rather than for a renewal of
the permit earlier granted and renewed from time to time from
29.6.1999, the owners would stand compelled to obey the
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various prescriptions of the 1999 KMBR which may cause
much harm and grave injustice on the face of the fact that they
were not able to carry out the construction for no ground
attributable to them, but only to the fact that the building was
occupied for the purpose of discharging the sovereign
functions of the State, viz, judicial functions. It may be true
that the owners had to enter into agreements of renewal of the
lease. That action is only technical, because without such
agreements, the owners would not have been able to draw
even the rent.
9.The aforesaid situation raises a fundamental question as to
whether, when an impossibility of performance of the nature in
hand is created as the result of matters akin to the exercise of
the sovereign functions, would it be permissible to tie down
the citizen to a statutory provision, depriving him of his
legitimate entitlements and expectations in terms of the
statutory rules which could have been enjoyed but for the
interference by such sovereign functions.
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10.Courts of justice are, constitutionally, established throughout
the land under several statutes, for administration of justice.
The whole set up of a court is for the purpose of administration
of justice. The courts of justice in a State, from the highest to
the lowest, are by their constitution, entrusted with functions
directly connected with the administration of justice. Courts of
justice have, in accordance with their constitution, to perform
multifarious functions for due administration of justice. Laying
down the law or doing justice between the parties is of the soul
of the duties of the court though administration of justice is a
term of wider import than mere adjudication of causes from
the seat of justice. The Presiding Judge of a Court embodies in
himself the Court, and when engaged in the task of
administering justice, is assisted by a complement of clerks
and ministerial officers whose duty it is, to protect and
maintain the records, prepare the writs, serve the processes
etc. The acts in which they are engaged are acts in aid of
administration of justice.- See Baradakanta Mishra v.
Registrar of Orissa High Court, [(1974) 1 SCC 374].
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11.As recorded in Rama Rao v. Narayan, [(1969) 1 SCC 167],
in Halsbury’s Laws of England, 3rd Edn., Vol. 9, Article
809, at page 342, it is stated: “Originally the term `court’
meant, among other meanings, the sovereign’s place; it has
acquired the meaning of the place where justice is
administered and further, has come to mean the persons who
exercise judicial functions under authority derived either
immediately or mediately from the sovereign……..”. In our
Republic, in the ultimate sense, all courts derive their
authority from the People and hold it in trust for their security
and benefit. The power they exercise is nothing but the
authority of the People themselves, exercised through courts
as their agents. It is the authority and laws emanating from the
People, which the judges sit to exercise and enforce.
12.In Supreme Court Legal Aid Committee v. Union of
India [(1994) 6 SCC 731], the Apex Court stated that it is
common knowledge that a `court’ is an agency created by the
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sovereign for the purpose of administering justice. It is a place
where justice is judicially administered. It is a legal entity. It
is a Tribunal presided over by one or more Judges on whom
are conferred certain judicial powers for administering justice
in accordance with law. When a Judge takes his seat in court,
the court is said to have assembled for administering justice.
The authority to create courts is an attribute of sovereignty.
When complete in its organised aspect with all the constituent
elements of time, place and officers, a `court’ is constituted in
the general legal acceptation of the term.
13.As stated by the Apex Court in S.P. Gupta v. Union of
India, [(1981} Supp SCC 87], if there is one principle which
runs through the entire fabric of the Constitution; it is the
principle of the Rule of Law. Under the Constitution, it is the
judiciary which is entrusted with the task of keeping every
organ of the State within the limits of the law and thereby
making the rule of law meaningful and effective. Judicial
review is one of the most potent weapons in the armoury of
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law. The judiciary seeks to protect the citizen against violation
of his constitutional or legal rights or misuse or abuse of
power by the State or its officers. The judiciary stands between
the citizen and the State as a bulwark against executive
excesses and misuses or abuse of power by the executive.
14.Axiomatically, reiterating the views expressed in C.
Ravichandran Iyer v. Justice A.M. Bhattacharjee, [(1995)
5 SCC 457], it was emphasised in High Court of Judicature
at Bombay v. Shirishkumar Rangrao Patil, [(1997) 6 SCC
339], that in a democracy governed by rule of law, under a
written constitution, judiciary is the sentinel on the qui vive to
protect the fundamental rights and poised to keep even scales
of justice between the citizens and the States or the States
inter se. Rule of law and judicial review are basic features of
the Constitution. As its integral constitutional structure,
independence of the judiciary is an essential attribute of rule
of law. The Constitution of India has delineated distribution of
sovereign power between the legislature, executive and
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judiciary. As members of the judiciary, the Judges exercise the
sovereign judicial power of the State. They are holders of
public offices; which are offices of public trust and in a
democracy, such as ours, the executive, the legislature and the
judiciary constitute the three pillars of the State. It was laid
down that Judges, at whatever level they may be, represent the
State and its authority. The H’ble Supreme Court reminded
that a Government founded on anything except liberty and
justice cannot stand and no nation founded on injustice can
permanently stand. Therefore, dispensation of justice is an
essential and inevitable feature in the civilized democratic
society. Maintenance of law and order requires the presence of
an efficient system of administration of criminal justice.
15.In the speech delivered on 11.12.2004, H’ble Mr. Justice M.
Katju, as the then Chief Justice of the Madras High Court –
(The Judiciary – 2005 (2) SCC Jour 37), poses the questions:
“What is the need of a judiciary? Why have a judiciary?” The
learned Justice answers that query by saying that,
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“…………….it is in the nature of things that in
every society, in every country, there are bound
to be disputes between the people, grievances of
the people and therefore, there has to be a forum
for peaceful resolution of the disputes and
peaceful ventilation of these grievances.
Otherwise, the disputes will be resolved and the
grievances will be ventilated with bombs, bullets
and sticks in a violent manner. Therefore, the
judiciary is a great safety valve. It prevents
violence. When people have some grievances,
some disputes, they come to court, they are
heard through their lawyers, the opposite parties
are heard through their lawyers and then a
decision is given. Even if the decision goes
against that person, he has the feeling that he
was given a hearing and this pacifies him.
Otherwise, if you do not hear him, then the
feeling of injustice may turn into violence.
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Therefore, the judiciary ensures peace and
tranquility in society and that is its most
important purpose.”
16.The judicial power and dispensation of justice is part of the
sovereign function. The seat of the sovereign power, that is,
the Court, has necessarily to be sustained in larger public
interest. As noticed in Baradakanta Mishra (supra), the
whole set up of a court is for the administration of justice and
the courts have to perform multifarious functions for due
administration of justice. The presiding Judge is assisted by a
complement of clerks and ministerial officers. Records have to
be maintained. In modern day administration of courts, even
electronic gadgets are used to expedite the justice delivery
system. The need for a building for a court is fundamental to
its existence. The executive agency of a State, viz., the
Government, have the constitutional duty to provide funds for
the purpose of courts from the state exchequer which is
entrusted to it under the Constitution.
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17. Access to justice is not only a matter enumerated among the
Directive Principles of State Policy which obliges the State to
secure that the operation of the legal system promotes justice
on the basis of the equal opportunity, it is inherent in the
seminal doctrine of equality contained in Article 14 of the
Constitution that the State shall not deny equal protection of
the laws, as also equality before the law. The fundamental
entitlement of the citizenry to be governed by rule of law is
well engrafted even in the Preamble to the Constitution, which
requires that justice has to be secured to all the citizens.
Therefore, the society cannot afford to exclude the existence of
courts within the reasonable reach of the citizens, including
geographically. Hence, the State is duty bound to ensure the
presence of courts, as required. Any lethargy in the executive
providing the infrastructural support by delay in providing
requisite funds cannot, in any manner, satiate the
constitutional entitlement of the citizenry to have courts within
their reach. In P. Ramachandra Rao v. State of Karnataka,
[(2002) 4 SCC 578], the Apex Court categorically stated that
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the Union of India and the State Governments have to stand
reminded of their constitutional obligation to strengthen the
judiciary — quantitatively and qualitatively — by providing
requisite funds, manpower and infrastructure. The evolving
concept of carrying justice to the door steps of the citizens
have shown the forward march of legislations, including the
provision for Grama Nyayalayas. Lack of funds is no answer
for the delay in establishing and providing infrastructure,
including buildings, for courts.
18.In the aforesaid view of the matter, though the Government
could be sued to deliver back the building, the citizen who has
leased it out for housing the judicial seat, the Court,
necessarily carries the burden, even against his full will and
pleasure, of holding the building to aid the discharge of the
sovereign function of the State through the judiciary since the
need of a court in the locality is not one to which anyone could
shut eyes and order closure of courts, even if it be on a request
to vacate the premises.
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19.It was obviously in the aforesaid circumstance that the larger
public interest forced the learned District Judge and the Bar
Association to persuade the owners to wait to commence the
construction.
20.The KMBR is issued by the Government in exercise of powers
under the Kerala Municipality Act, 1994. That is a piece of
subordinate legislation. It contains regulatory provisions
intended to ensure safety and to provide a uniform set of rules
to govern construction activities. The provisions in the
different sub rules of rule 15 A of the KMBR are intended to
ensure that development permits and building permits are
obtained for bonafide purposes which are to be translated into
action by putting up the constructions or carrying out the
developments. The fixation of an outer time limit of nine years
for permits granted under the KMBR by providing that each
permit shall be valid for only three years and shall be renewed
only three times and the provision in Rule 15A (10) that the
renewal of permits issued before the commencement of KMBR
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shall be granted in such a way that the total valid period of
permit shall not exceed nine years, are essentially regulatory
and not intended to completely deprive the owners of the right
to build for all times to come. All that has to be is that the
person has to obtain a permit afresh after the expiry of the
said nine years.
21.But, the question here, in the ultimate analysis, would be
whether a regulatory provision as noticed above could be
forced on to a citizen in the backdrop of the constitutional
provisions, when he is faced with a situation of being
incapable of even commencing the construction owing to
reasons attributable to occupation of the building by the State
for discharge of its sovereign functions. But for the continued
occupation by the State for the purpose of its sovereign
functions of administering justice through the Court, the
landowners would have stood enabled to make the
construction in terms of the rules as to distance, set backs etc.
as they prevailed before the coming into force of the KMBR.
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The situation that the land owners are forced to suffer with the
passage of time and by the change of the law on the coming
into force of the KMBR, is directly and solely attributable to
the State’s inability to have a building owned at State expense,
to house the court. Such a situation, referable solely to the
need of the sovereign, should necessarily stand on a different
pedestal, supported by the constitutional excuse that the State
can ill afford to close down a court which is a matter of prime
need for We, the People.
22.The pronouncement of the Apex Court in New India
Assurance Co. Ltd. v. Nusli Neville Wadia, [(2008) 3 SCC
279] advises that for proper interpretation, not only the basic
principles of natural justice have to be borne in mind, but also
principles of constitutionalism involved therein. When literal
interpretation may lead to contradicting the constitutional
obligations, the superior courts have to interpret the statute in
a reasonable manner, placing itself in the chair of a reasonable
legislator/author and so done, apply the rules of purposive
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construction. This would strike the balance between the
constitutional perspective and setting of a legislation and its
enforcement in terms of the words contained in the legislation.
For this, the Apex Court profitably referred to Aharon Barak
on Purposive Interpretation in Law, (2007) to notice that there
are two elements of objectivity in approaching the effect of a
legislation, including its interpretation; the first being that the
interpreter should assume that the legislature is composed of
reasonable people seeking to achieve reasonable goals in a
reasonable manner; and second, the interpreter should accept
a non-rebuttable presumption that members of the legislative
body sought to fulfill their constitutional duties in good faith.
This formulation, Barak says, allows the interpreter to inquire
not into the subjective intent of the author, but rather, the
intent the author would have had, had he or she acted
reasonably.
23.In Bharat Petroleum Corpn. Ltd. v. Maddula Ratnavalli
[(2007) 6 SCC 81], the Apex Court stated as follows:
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“22. Parliament moreover is presumed to have
enacted a reasonable statute [see Breyer, Stephen
(2005): Active Liberty: Interpreting Our
Democratic Constitution, Knopf (Chapter on
Statutory Interpretation, p.99 for `Reasonable
Legislator Presumption’)].”
24.In Kailash Chand v. Dharam Dass [(2005) 5 SCC 375],
following Rakesh Wadhawan v. Jagdamba Industrial
Corporation [(2002) 5 SCC 440], the Apex Court held that a
statute can never be exhaustive and the legislature is
incapable of contemplating all possible situations which may
arise in future litigation and in myriad circumstances. The
scope is always there for the court to interpret the law with
pragmatism and consistently with the demands of varying
situations. The construction placed by the court on statutory
provisions has to be meaningful. The legislative intent has to
be found out and effectuated. It was noted that law is part of
social reality. Though law and justice are not synonymous
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terms, they have a close relationship as pointed out by
Americal Jurist Rawls, noticing that since one of the aims of
the law is to provide order and peace in society and since
order and peace cannot last long if it is based on injustice, it
follows that a legal system that cannot meet the demands of
justice will not survive long. It was laid down in Kailesh
Chandh (supra) that clearly, law cannot be so interpreted as
would cause oppression or be unjust. In Bharath Petroleum
(supra) it was further stated that a statutory order or
discretion exercised by a statutory authority must also be
decided on the angle of the constitutional scheme and
reasonableness and non-arbitrariness are the hallmarks of an
action by the State. In Bharath Petroleum (supra), the Apex
Court re-iterated the law noticed in Hindustan Petroleum
Corpn. Ltd. v. Darius shapur chenai [(2005) 7 SCC 627]
that right to property although is not a fundamental right,
nonetheless remains a constitutional right and any
expropriatory legislation must be construed strictly.
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25.Having identified a few principles of interpretation of the
Constitution and making reference to Janosik Robert J.;
Encyclopedia of American Judicial System and Cappelletti
Mauro: The Judicial Process in Comparative Prospect,
Hon’ble Mr.Justice D.N.Dharmadhikari, then Judge of the
Apex Court, concludes in The Principle of Constitutional
Interpretation; some reflections [(2004) 4 SCC Journal 1],
inter alia, as follows:
“:…………….the ultimate conclusion that can be
deduced is that no fixed principle, can beneficially
serve constitutional adjudication. Neither the
“originalists’ approach” nor “preferred freedoms
approach” nor “balancing of interests” singly or
collectively are enough for a sound constitutional
adjudication. Its main reason is that a Constitution
is composed more significantly of principles than
rules. This provides judges some amount of
discretion in the matter of interpretation of
constitutional provisions but this does not mean
that they may rely on their own value preferences
in construing constitutional provisions. As has been
stated above, constitutional provisions are
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described by some as “great generalities” and by
others as “great ambiguities”. The above
descriptions are to a great extent apt. The
provisions are ambiguous in the sense that in each
case the judge is called upon to furnish his own
meaning but they cannot be called “vague” because
they are sufficiently meaningful concepts capable
of lending guidance to enable the judge to
operationalise constitutional guarantees. It is the
function of the court to give effect to the logical
theory contained in the Constitution that animates
and binds together its provisions. The preamble of
the Indian Constitution is, therefore, generally
taken aid of to understand other provisions of the
Constitution because it may be said to contain the
“spirit of the Constitution”. The Constitution is a
document of liberal principles, predicated on the
primacy of a person’s worth. It is the function of
judges, as instruments of the Constitution’s logic,
to give effect to pre-existing individual rights in the
decisions of cases.
The growth of the Constitution through
interpretation by courts, is a necessity for
protection of the individual rights guaranteed by
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the Constitution. Power exercised by the court in
interpreting the Constitution through unelected
judges is not anti-democratic. Democracy cannot
survive in a system in which civil rights and
freedoms have no protection………………. ”
” ……………..Legitimacy of judicial interpretation of
the Constitution is the recognition that it is an
institution with ability to protect minorities against
majoritarian political, legal, economic, indeed
societal pressure and will. It is an institution which
protects and upholds “enduring values” enshrined
in the Constitution and ………………. is best placed
to discover the principles of constitutional law and
protect the constitutional rights.
On the basis of principles culled out above, an
integrated approach in interpretation of a
Constitution is required in the light of social,
economic and political necessities of a particular
period in which the court is called upon to
interpret. Previous precedents of the court are only
for guidance. The process of interpretation involves
making the Constitution a workable law or
instrument by treating it as a dynamic living
document which needs to be suitably interpreted to
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meet exigencies of different periods. Socio-
economic context in which the court is called upon
to interpret, therefore, always assumes greater
importance”.
(underlined to emphasise)
The learned Justice quotes the advice of
eminent jurist Mauro Cappelletti as follows:
“To enable the Apex Court, to more effectively deal
with important constitutional issues requiring
interpretation of Constitution, time and again, I
have made the point that it is a basic and most
dangerous policy error to design Supreme Courts,
national or otherwise, as organs bound to decide
legions of cases brought to them, at the cost of
overload and superficiality of decisions, rather than
providing them with techniques and/or protecting
them with access-screening capable of allowing
them to concentrate their decision-making activity
on cases of greater importance for the uniform
interpretation, evolution, and `modernization’ of the
law. The entire exercise of interpretation of the
constitutional provisions by the court is to make the
Constitution meaningful to the citizens of this
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country for whose betterment the Constitution is
meant.”
(underlined to emphasise)
26.The sublime process of dispute resolution, result rendition
and the presentation of the fruit of that verdict would be
optimally achieved only by the holistic administration of the
therapeutical admixture of the Constitution and the laws. The
primacy of the provisions of the Constitution and the
hierarchical superiority that primary legislations have over
subordinate rules often lead to questions as to whether the
subordinate legislations are in conflict with primary
enactments and whether either or both of them contradict the
constitutional provisions and principles. While it may be true
that the primary enactments and subordinate legislations
which are held to be intravires are to be enforced without any
consideration as to any inconvenience that such enforcements
may result in the sustainable balancing of the cause and effect
of such enforcement vis.a.vis. the situational conspectus in the
constitutional angle would provide the true vision to render
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justice in accordance with the Constitution and laws. The
wholesomeness of the justice delivery system depends on the
balancing of the primary enactments and subordinate
legislations, if any, with the provisions and principles of the
Constitution, which is the vision document of the society.
Therefore, the courts, in the exercise of rendering justice, are
duty bound to maintain the optimal balance between the
Constitution and the laws subservient thereto, to ensure that
justice in accordance with the Constitution and the laws is
administered upholding the rule of law.
27.With the aforesaid, striking a balance between the
unsurmountable sovereign need of the State to continue to
remain in occupation of the building in question for housing
the sub court and the constitutional right of the owners to
have carried out the construction/re-construction of the
building in terms of the building permit, it cannot but be held
that the owners ought not to be compelled to suffer a
situational oppression for no fault of theirs. The Constitution
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does not envisage such sufferance. Nor does the reasonable
legislator, standing under the constitutional vision. Never, the
subordinate rules; for, they have no room to leap beyond the
parent statutes and the Constitution. The context is one
where the owners deserve to be constitutionally protected
against the enforcement of the time limit fixed in Rule 15 A(2)
of the KMBR, which is only part of the subsidiary rules under
the Kerala Municipality Act, 1999. The one in hand is an
extra-ordinary situation warranting extra-ordinary remedies to
deal with the fact situation in hand. Hence, issuance of a writ
is called for, not in contradiction of the KMBR, but to ensure
that the relevant rule works in consonance with the
constitutional goals and within the frame work of the
Constitution and to prevent the occurrence of an event which
the reasonable legislator under the constitutional gaze would
never permit.
28.In the result, this writ petition is ordered directing that the
application of the petitioner and co-owners for renewal of the
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building permit which was live till 26.7.2008, shall be
considered and ordered granting them a further period of
three years from the date on which the existing building is
vacated by the State by housing the sub court elsewhere, to
complete the construction.
The office will ensure that a copy of this judgment is placed
before the learned District Judge also on the administrative
side for perusal.
Sd/-
THOTTATHIL B RADHAKRISHNAN,
Judge.
kkb.