{"id":232421,"date":"2009-08-19T00:00:00","date_gmt":"2009-08-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/k-vs-secretary-on-19-august-2009"},"modified":"2016-07-01T08:31:29","modified_gmt":"2016-07-01T03:01:29","slug":"k-vs-secretary-on-19-august-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/k-vs-secretary-on-19-august-2009","title":{"rendered":"K. vs Secretary on 19 August, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
K. vs Secretary on 19 August, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(C).No. 21574 of 2008(R)\n\n\n1. K.,M.ABDULLA, S\/O.MOHAMMED\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. SECRETARY, PAYYANNUR MUNICIPALITY,\n                       ...       Respondent\n\n2. DISTRICT JUDGE, THALASSERY.\n\n3. SUBORDINATE JUDGE, PAYYANNUR.\n\n                For Petitioner  :SRI.M.V.AMARESAN\n\n                For Respondent  :SRI.M.SASINDRAN\n\nThe Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN\n\n Dated :19\/08\/2009\n\n O R D E R\n              THOTTATHIL B. RADHAKRISHNAN, J.\n                     ...........................................\n                     WP(C).NO.21574 OF 2008\n                     ............................................\n              Dated this the 19th day of August, 2009\n\n\n                                JUDGMENT\n<\/pre>\n
                                                                  “C.R.”\n<\/p>\n
1.On public demand, including the persuasions of the Bar<\/p>\n
  Association, a building was leased out to the Government on<\/p>\n
  3rd January, 1987, to house the Sub Court, Payyannur. A lease<\/p>\n
  deed was thereafter executed on 16.12.1990, for a period of<\/p>\n
  five (5) years therefrom, renewable on mutual consent for any<\/p>\n
  further period and terminable on three (3) months’ notice by<\/p>\n
  either side after the period fixed, or in the event of shifting of<\/p>\n
  the Court to a government building, whichever is earlier.<\/p>\n
2.With the passage of time, the owners wanted to build two more<\/p>\n
  floors above the existing structure, after making modifications<\/p>\n
  to the ground floor. They were granted building permit on<\/p>\n
  29.6.1999. However, they could not commence construction<\/p>\n
  until now, August 2009, since the Sub Court is yet to be shifted<\/p>\n
  out of that premises.\n<\/p>\n
WPC.21574\/08<\/p>\n
                               2<\/span><\/p>\n
3.While the owners waited for vacant possession of the building<\/p>\n
  to carry out the construction, they had to keep the building<\/p>\n
  permit renewed thrice, from 29.6.1999, extended up to<\/p>\n
  26.7.2008, for a span of nine years. They had also to execute<\/p>\n
  lease deeds effective from earlier dates, obviously to enable<\/p>\n
  disbursement of rent. After executing Ext.P4 agreement of<\/p>\n
  lease on 23.02.2006, for a period of five (5) years from<\/p>\n
  3.01.2002, the learned District Judge issued Ext.P5 letter<\/p>\n
  informing the landowners that the construction of the building<\/p>\n
  for accommodating the Sub Court is in good progress and it is<\/p>\n
  expected to be completed by 26.01.2007 and the Court would<\/p>\n
  be shifted to the new building on such completion.     In fact,<\/p>\n
  that letter was issued on the basis of an office memorandum<\/p>\n
  dated 9.10.2006, issued by the High Court. Unfortunately, the<\/p>\n
  completion of the building got further delayed.       On the<\/p>\n
  representation on behalf of the landowners, the High Court<\/p>\n
  issued office memorandum dated 6.6.2008 and following that,<\/p>\n
  on 17.6.2008, learned District Judge issued Ext.P6, essentially<\/p>\n
WPC.21574\/08<\/p>\n
                                3<\/span><\/p>\n
  requesting the land owners to wait till the court shifted to the<\/p>\n
  new building and informing them that the construction of the<\/p>\n
  new sub court building would be completed soon.<\/p>\n
4.The land owners again made Ext.P7 representation, obviously<\/p>\n
  facing the situation that they would be running out of time to<\/p>\n
  commence construction of the building, in terms of the permit<\/p>\n
  that stood renewed and extended up to 26.7.2008. It appears<\/p>\n
  that the Bar Association drew up Ext.P8 resolution requesting<\/p>\n
  the municipality to grant special permission to the land owners<\/p>\n
  to make the construction, having regard to the delay in<\/p>\n
  delivering the building back to them, after shifting the sub<\/p>\n
  court. With this, the land owners applied to the municipal<\/p>\n
  secretary. That was rejected as per Ext.P10 stating that the<\/p>\n
  building permit was renewed from time to time for a total<\/p>\n
  period of 9 years which is the maximum period for which a<\/p>\n
  building permit could be kept alive even by renewal, in terms<\/p>\n
  of Rule 15A(10) of the Kerala Municipality Building Rules,<\/p>\n
  1999, hereinafter referred to as the ‘KMBR’.<\/p>\n
WPC.21574\/08<\/p>\n
                                 4<\/span><\/p>\n
5.This writ petition is filed challenging the aforesaid decision<\/p>\n
  and seeking a declaration that the construction of the building<\/p>\n
  could not be commenced as permitted by the municipality only<\/p>\n
  due to the failure to surrender the building in spite of repeated<\/p>\n
  assurances and hence, for a further direction to re-consider<\/p>\n
  the application for extension of the period to build in terms of<\/p>\n
  the licences originally granted.\n<\/p>\n<\/p>\n
6.On facts, it needs to be noticed that the land owners had never<\/p>\n
  intended the building to be made available for housing the sub<\/p>\n
  court for all times to come. In fact, the renewal deeds would<\/p>\n
  show that even those documents were executed long after<\/p>\n
  each spell of continued occupation, essentially to enable<\/p>\n
  release of rent and occupation charges. The materials on<\/p>\n
  record contain the repeated statement by learned District<\/p>\n
  Judge that the construction of the judicial complex is being<\/p>\n
  completed. It is also stated by the learned Government<\/p>\n
  Pleader, on instructions, that the judicial complex is likely to<\/p>\n
  be inaugurated shortly.\n<\/p>\n
WPC.21574\/08<\/p>\n
                                5<\/span><\/p>\n
7.Ext.P2 building permit was issued on 29.6.1999. That was<\/p>\n
  issued before the KMBR came into force on 1.10.1999. By<\/p>\n
  virtue of Rule 15A (10) of KMBR, such permits could be<\/p>\n
  renewed only for a maximum period of nine years. That<\/p>\n
  prescription is well in consonance with sub rules 1 and 2 of<\/p>\n
  that Rule which provides that the period of permit issued<\/p>\n
  under KMBR shall be three years and could be renewed twice,<\/p>\n
  each for a duration of three years. Technically, therefore, the<\/p>\n
  owners’ application for further renewal after 26.7.2008 may<\/p>\n
  not be allowable in terms of statutory provisions in the KMBR<\/p>\n
  as they now stand.\n<\/p>\n<\/p>\n
8.This writ petition was filed on 16.7.2008, i.e., before<\/p>\n
  26.7.2008, the date on which the building permit would expire.<\/p>\n
  Later, an application for a fresh permit was also filed. But the<\/p>\n
  fact of the matter remains that when an application for a new<\/p>\n
  permit is made under 1999 KMBR, rather than for a renewal of<\/p>\n
  the permit earlier granted and renewed from time to time from<\/p>\n
  29.6.1999, the owners would stand compelled to obey the<\/p>\n
WPC.21574\/08<\/p>\n
                                6<\/span><\/p>\n
  various prescriptions of the 1999 KMBR which may cause<\/p>\n
  much harm and grave injustice on the face of the fact that they<\/p>\n
  were not able to carry out the construction for no ground<\/p>\n
  attributable to them, but only to the fact that the building was<\/p>\n
  occupied for the purpose of discharging the sovereign<\/p>\n
  functions of the State, viz, judicial functions. It may be true<\/p>\n
  that the owners had to enter into agreements of renewal of the<\/p>\n
  lease. That action is only technical, because without such<\/p>\n
  agreements, the owners would not have been able to draw<\/p>\n
  even the rent.\n<\/p>\n<\/p>\n
9.The aforesaid situation raises a fundamental question as to<\/p>\n
  whether, when an impossibility of performance of the nature in<\/p>\n
  hand is created as the result of matters akin to the exercise of<\/p>\n
  the sovereign functions, would it be permissible to tie down<\/p>\n
  the citizen to a statutory provision, depriving him of his<\/p>\n
  legitimate entitlements and expectations in terms of the<\/p>\n
  statutory rules which could have been enjoyed but for the<\/p>\n
  interference by such sovereign functions.<\/p>\n
WPC.21574\/08<\/p>\n
                                 7<\/span><\/p>\n
10.Courts of justice are, constitutionally, established throughout<\/p>\n
 the land under several statutes, for administration of justice.<\/p>\n
 The whole set up of a court is for the purpose of administration<\/p>\n
 of justice. The courts of justice in a State, from the highest to<\/p>\n
 the lowest, are by their constitution, entrusted with functions<\/p>\n
 directly connected with the administration of justice. Courts of<\/p>\n
 justice have, in accordance with their constitution, to perform<\/p>\n
 multifarious functions for due administration of justice. Laying<\/p>\n
 down the law or doing justice between the parties is of the soul<\/p>\n
 of the duties of the court though administration of justice is a<\/p>\n
 term of wider import than mere adjudication of causes from<\/p>\n
 the seat of justice. The Presiding Judge of a Court embodies in<\/p>\n
 himself the Court, and when engaged in the task of<\/p>\n
 administering justice, is assisted by a complement of clerks<\/p>\n
 and ministerial officers whose duty it is, to protect and<\/p>\n
 maintain the records, prepare the writs, serve the processes<\/p>\n
 etc. The acts in which they are engaged are acts in aid of<\/p>\n
 administration of justice.- See Baradakanta Mishra v.<\/p>\n
 Registrar of Orissa High Court,<\/a> [(1974) 1 SCC 374].<\/p>\n
WPC.21574\/08<\/p>\n
                                 8<\/span><\/p>\n
11.As recorded in Rama Rao v. Narayan, [(1969) 1 SCC 167],<\/p>\n
 in Halsbury’s Laws of England, 3rd Edn., Vol. 9, Article<\/p>\n
 809, at page 342, it is stated: “Originally the term `court’<\/p>\n
 meant, among other meanings, the sovereign’s place; it has<\/p>\n
 acquired the meaning of the place where justice is<\/p>\n
 administered and further, has come to mean the persons who<\/p>\n
 exercise judicial functions under authority derived either<\/p>\n
 immediately or mediately from the sovereign……..”. In our<\/p>\n
 Republic, in the ultimate sense, all courts derive their<\/p>\n
 authority from the People and hold it in trust for their security<\/p>\n
 and benefit. The power they exercise is nothing but the<\/p>\n
 authority of the People themselves, exercised through courts<\/p>\n
 as their agents. It is the authority and laws emanating from the<\/p>\n
 People, which the judges sit to exercise and enforce.<\/p>\n
12.In Supreme Court Legal Aid Committee v. Union of<\/p>\n
 India<\/a> [(1994) 6 SCC 731], the Apex Court stated that it is<\/p>\n
 common knowledge that a `court’ is an agency created by the<\/p>\n
WPC.21574\/08<\/p>\n
                               9<\/span><\/p>\n
 sovereign for the purpose of administering justice. It is a place<\/p>\n
 where justice is judicially administered. It is a legal entity. It<\/p>\n
 is a Tribunal presided over by one or more Judges on whom<\/p>\n
 are conferred certain judicial powers for administering justice<\/p>\n
 in accordance with law. When a Judge takes his seat in court,<\/p>\n
 the court is said to have assembled for administering justice.<\/p>\n
 The authority to create courts is an attribute of sovereignty.<\/p>\n
 When complete in its organised aspect with all the constituent<\/p>\n
 elements of time, place and officers, a `court’ is constituted in<\/p>\n
 the general legal acceptation of the term.<\/p>\n
13.As stated by the Apex Court in S.P. Gupta v. Union of<\/p>\n
 India, [(1981} Supp SCC 87], if there is one principle which<\/p>\n
 runs through the entire fabric of the Constitution; it is the<\/p>\n
 principle of the Rule of Law. Under the Constitution, it is the<\/p>\n
 judiciary which is entrusted with the task of keeping every<\/p>\n
 organ of the State within the limits of the law and thereby<\/p>\n
 making the rule of law meaningful and effective. Judicial<\/p>\n
 review is one of the most potent weapons in the armoury of<\/p>\n
WPC.21574\/08<\/p>\n
                                10<\/span><\/p>\n
 law. The judiciary seeks to protect the citizen against violation<\/p>\n
 of his constitutional or legal rights or misuse or abuse of<\/p>\n
 power by the State or its officers. The judiciary stands between<\/p>\n
 the citizen and the State as a bulwark against executive<\/p>\n
 excesses and misuses or abuse of power by the executive.<\/p>\n
14.Axiomatically,  reiterating   the   views   expressed    in  C.<\/p>\n
 Ravichandran Iyer v. Justice A.M. Bhattacharjee,<\/a> [(1995)<\/p>\n
 5 SCC 457], it was emphasised in High Court of Judicature<\/p>\n
 at Bombay v. Shirishkumar Rangrao Patil, [(1997) 6 SCC<\/p>\n
 339], that in a democracy governed by rule of law, under a<\/p>\n
 written constitution, judiciary is the sentinel on the qui vive to<\/p>\n
 protect the fundamental rights and poised to keep even scales<\/p>\n
 of justice between the citizens and the States or the States<\/p>\n
 inter se. Rule of law and judicial review are basic features of<\/p>\n
 the Constitution. As its integral constitutional structure,<\/p>\n
 independence of the judiciary is an essential attribute of rule<\/p>\n
 of law. The Constitution of India has delineated distribution of<\/p>\n
 sovereign power between the legislature, executive and<\/p>\n
WPC.21574\/08<\/p>\n
                               11<\/span><\/p>\n
 judiciary. As members of the judiciary, the Judges exercise the<\/p>\n
 sovereign judicial power of the State. They are holders of<\/p>\n
 public offices; which are offices of public trust and in a<\/p>\n
 democracy, such as ours, the executive, the legislature and the<\/p>\n
 judiciary constitute the three pillars of the State. It was laid<\/p>\n
 down that Judges, at whatever level they may be, represent the<\/p>\n
 State and its authority. The H’ble Supreme Court reminded<\/p>\n
 that a Government founded on anything except liberty and<\/p>\n
 justice cannot stand and no nation founded on injustice can<\/p>\n
 permanently stand. Therefore, dispensation of justice is an<\/p>\n
 essential and inevitable feature in the civilized democratic<\/p>\n
 society. Maintenance of law and order requires the presence of<\/p>\n
 an efficient system of administration of criminal justice.<\/p>\n
15.In the speech delivered on 11.12.2004, H’ble Mr. Justice M.<\/p>\n
 Katju, as the then Chief Justice of the Madras High Court –<\/p>\n
 (The Judiciary – 2005 (2) SCC Jour 37), poses the questions:<\/p>\n
 “What is the need of a judiciary? Why have a judiciary?” The<\/p>\n
 learned Justice answers that query by saying that,<\/p>\n
WPC.21574\/08<\/p>\n
                                     12<\/span><\/p>\n
         “…………….it is in the nature of things that in<\/p>\n
         every society, in every country, there are bound<\/p>\n
         to be disputes between the people, grievances of<\/p>\n
         the people and therefore, there has to be a forum<\/p>\n
         for peaceful resolution of the disputes and<\/p>\n
         peaceful         ventilation  of   these   grievances.<\/p>\n
         Otherwise, the disputes will be resolved and the<\/p>\n
         grievances will be ventilated with bombs, bullets<\/p>\n
         and sticks in a violent manner. Therefore, the<\/p>\n
         judiciary is a great safety valve. It prevents<\/p>\n
         violence. When people have some grievances,<\/p>\n
         some disputes, they come to court, they are<\/p>\n
         heard through their lawyers, the opposite parties<\/p>\n
         are heard through their lawyers and then a<\/p>\n
         decision is given. Even if the decision goes<\/p>\n
         against that person, he has the feeling that he<\/p>\n
         was given a hearing and this pacifies him.\n<\/p>\n
         Otherwise, if you do not hear him, then the<\/p>\n
         feeling of injustice may turn into violence.<\/p>\n
WPC.21574\/08<\/p>\n
                               13<\/span><\/p>\n
         Therefore, the judiciary ensures peace and<\/p>\n
         tranquility in society and that is its most<\/p>\n
         important purpose.”\n<\/p>\n<\/p>\n
16.The judicial power and dispensation of justice is part of the<\/p>\n
 sovereign function. The seat of the sovereign power, that is,<\/p>\n
 the Court, has necessarily to be sustained in larger public<\/p>\n
 interest.  As noticed in Baradakanta Mishra (supra), the<\/p>\n
 whole set up of a court is for the administration of justice and<\/p>\n
 the courts have to perform multifarious functions for due<\/p>\n
 administration of justice. The presiding Judge is assisted by a<\/p>\n
 complement of clerks and ministerial officers. Records have to<\/p>\n
 be maintained. In modern day administration of courts, even<\/p>\n
 electronic gadgets are used to expedite the justice delivery<\/p>\n
 system. The need for a building for a court is fundamental to<\/p>\n
 its existence.    The executive agency of a State, viz., the<\/p>\n
 Government, have the constitutional duty to provide funds for<\/p>\n
 the purpose of courts from the state exchequer which is<\/p>\n
 entrusted to it under the Constitution.\n<\/p>\n
WPC.21574\/08<\/p>\n
                                14<\/span><\/p>\n
17. Access to justice is not only a matter enumerated among the<\/p>\n
 Directive Principles of State Policy which obliges the State to<\/p>\n
 secure that the operation of the legal system promotes justice<\/p>\n
 on the basis of the equal opportunity, it is inherent in the<\/p>\n
 seminal doctrine of equality contained in Article 14 of the<\/p>\n
 Constitution that the State shall not deny equal protection of<\/p>\n
 the laws, as also equality before the law.     The fundamental<\/p>\n
 entitlement of the citizenry to be governed by rule of law is<\/p>\n
 well engrafted even in the Preamble to the Constitution, which<\/p>\n
 requires that justice has to be secured to all the citizens.<\/p>\n
 Therefore, the society cannot afford to exclude the existence of<\/p>\n
 courts within the reasonable reach of the citizens, including<\/p>\n
 geographically. Hence, the State is duty bound to ensure the<\/p>\n
 presence of courts, as required. Any lethargy in the executive<\/p>\n
 providing the infrastructural support by delay in providing<\/p>\n
 requisite  funds    cannot,    in  any    manner,   satiate   the<\/p>\n
 constitutional entitlement of the citizenry to have courts within<\/p>\n
 their reach. In P. Ramachandra Rao v. State of Karnataka,<\/p>\n
 [(2002) 4 SCC 578], the Apex Court categorically stated that<\/p>\n
WPC.21574\/08<\/p>\n
                                15<\/span><\/p>\n
 the Union of India and the State Governments have to stand<\/p>\n
 reminded of their constitutional obligation to strengthen the<\/p>\n
 judiciary — quantitatively and qualitatively — by providing<\/p>\n
 requisite funds, manpower and infrastructure. The evolving<\/p>\n
 concept of carrying justice to the door steps of the citizens<\/p>\n
 have shown the forward march of legislations, including the<\/p>\n
 provision for Grama Nyayalayas. Lack of funds is no answer<\/p>\n
 for the delay in establishing and providing infrastructure,<\/p>\n
 including buildings, for courts.\n<\/p>\n<\/p>\n
18.In the aforesaid view of the matter, though the Government<\/p>\n
 could be sued to deliver back the building, the citizen who has<\/p>\n
 leased it out for housing the judicial seat, the Court,<\/p>\n
 necessarily carries the burden, even against his full will and<\/p>\n
 pleasure, of holding the building to aid the discharge of the<\/p>\n
 sovereign function of the State through the judiciary since the<\/p>\n
 need of a court in the locality is not one to which anyone could<\/p>\n
 shut eyes and order closure of courts, even if it be on a request<\/p>\n
 to vacate the premises.\n<\/p>\n
WPC.21574\/08<\/p>\n
                                16<\/span><\/p>\n
19.It was obviously in the aforesaid circumstance that the larger<\/p>\n
 public interest forced the learned District Judge and the Bar<\/p>\n
 Association to persuade the owners to wait to commence the<\/p>\n
 construction.\n<\/p>\n<\/p>\n
20.The KMBR is issued by the Government in exercise of powers<\/p>\n
 under the Kerala Municipality Act, 1994. That is a piece of<\/p>\n
 subordinate legislation.     It contains regulatory provisions<\/p>\n
 intended to ensure safety and to provide a uniform set of rules<\/p>\n
 to govern construction activities.      The provisions in the<\/p>\n
 different sub rules of rule 15 A of the KMBR are intended to<\/p>\n
 ensure that development permits and building permits are<\/p>\n
 obtained for bonafide purposes which are to be translated into<\/p>\n
 action by putting up the constructions or carrying out the<\/p>\n
 developments. The fixation of an outer time limit of nine years<\/p>\n
 for permits granted under the KMBR by providing that each<\/p>\n
 permit shall be valid for only three years and shall be renewed<\/p>\n
 only three times and the provision in Rule 15A (10) that the<\/p>\n
 renewal of permits issued before the commencement of KMBR<\/p>\n
WPC.21574\/08<\/p>\n
                               17<\/span><\/p>\n
 shall be granted in such a way that the total valid period of<\/p>\n
 permit shall not exceed nine years, are essentially regulatory<\/p>\n
 and not intended to completely deprive the owners of the right<\/p>\n
 to build for all times to come. All that has to be is that the<\/p>\n
 person has to obtain a permit afresh after the expiry of the<\/p>\n
 said nine years.\n<\/p>\n<\/p>\n
21.But, the question here, in the ultimate analysis, would be<\/p>\n
 whether a regulatory provision as noticed above could be<\/p>\n
 forced on to a citizen in the backdrop of the constitutional<\/p>\n
 provisions, when     he is faced with a situation of being<\/p>\n
 incapable of even commencing the construction owing to<\/p>\n
 reasons attributable to occupation of the building by the State<\/p>\n
 for discharge of its sovereign functions. But for the continued<\/p>\n
 occupation by the State for the purpose of its sovereign<\/p>\n
 functions of administering justice through the Court, the<\/p>\n
 landowners    would    have  stood    enabled   to   make    the<\/p>\n
 construction in terms of the rules as to distance, set backs etc.<\/p>\n
 as they prevailed before the coming into force of the KMBR.<\/p>\n
WPC.21574\/08<\/p>\n
                                18<\/span><\/p>\n
 The situation that the land owners are forced to suffer with the<\/p>\n
 passage of time and by the change of the law on the coming<\/p>\n
 into force of the KMBR, is directly and solely attributable to<\/p>\n
 the State’s inability to have a building owned at State expense,<\/p>\n
 to house the court. Such a situation, referable solely to the<\/p>\n
 need of the sovereign, should necessarily stand on a different<\/p>\n
 pedestal, supported by the constitutional excuse that the State<\/p>\n
 can ill afford to close down a court which is a matter of prime<\/p>\n
 need for We, the People.\n<\/p>\n<\/p>\n
22.The pronouncement of the Apex Court in New India<\/p>\n
 Assurance Co. Ltd. v. Nusli Neville Wadia,<\/a> [(2008) 3 SCC<\/p>\n
 279] advises that for proper interpretation, not only the basic<\/p>\n
 principles of natural justice have to be borne in mind, but also<\/p>\n
 principles of constitutionalism involved therein. When literal<\/p>\n
 interpretation may lead to contradicting the constitutional<\/p>\n
 obligations, the superior courts have to interpret the statute in<\/p>\n
 a reasonable manner, placing itself in the chair of a reasonable<\/p>\n
 legislator\/author and so done, apply the rules of purposive<\/p>\n
WPC.21574\/08<\/p>\n
                                 19<\/span><\/p>\n
 construction.    This would strike the balance between the<\/p>\n
 constitutional perspective and setting of a legislation and its<\/p>\n
 enforcement in terms of the words contained in the legislation.<\/p>\n
 For this, the Apex Court profitably referred to Aharon Barak<\/p>\n
 on Purposive Interpretation in Law, (2007) to notice that there<\/p>\n
 are two elements of objectivity in approaching the effect of a<\/p>\n
 legislation, including its interpretation; the first being that the<\/p>\n
 interpreter should assume that the legislature is composed of<\/p>\n
 reasonable people seeking to achieve reasonable goals in a<\/p>\n
 reasonable manner; and second, the interpreter should accept<\/p>\n
 a non-rebuttable presumption that members of the legislative<\/p>\n
 body sought to fulfill their constitutional duties in good faith.<\/p>\n
 This formulation, Barak says, allows the interpreter to inquire<\/p>\n
 not into the subjective intent of the author, but rather, the<\/p>\n
 intent the author would have had, had he or she acted<\/p>\n
 reasonably.\n<\/p>\n<\/p>\n
23.In Bharat Petroleum Corpn. Ltd. v. Maddula Ratnavalli<\/a><\/p>\n
 [(2007) 6 SCC 81], the Apex Court stated as follows:<\/p>\n
WPC.21574\/08<\/p>\n
                              20<\/span><\/p>\n
        “22. Parliament moreover is presumed to have<\/p>\n
        enacted a reasonable statute [see Breyer, Stephen<\/p>\n
        (2005):    Active  Liberty:   Interpreting   Our<\/p>\n
        Democratic   Constitution, Knopf    (Chapter   on<\/p>\n
        Statutory Interpretation, p.99 for `Reasonable<\/p>\n
        Legislator Presumption’)].”\n<\/p>\n<\/p>\n
24.In Kailash Chand v. Dharam Dass<\/a> [(2005) 5 SCC 375],<\/p>\n
 following Rakesh Wadhawan v. Jagdamba Industrial<\/p>\n
 Corporation<\/a> [(2002) 5 SCC 440], the Apex Court held that a<\/p>\n
 statute can never be exhaustive and the legislature is<\/p>\n
 incapable of contemplating all possible situations which may<\/p>\n
 arise in future litigation and in myriad circumstances. The<\/p>\n
 scope is always there for the court to interpret the law with<\/p>\n
 pragmatism and consistently with the demands of varying<\/p>\n
 situations. The construction placed by the court on statutory<\/p>\n
 provisions has to be meaningful. The legislative intent has to<\/p>\n
 be found out and effectuated. It was noted that law is part of<\/p>\n
 social reality. Though law and justice are not synonymous<\/p>\n
WPC.21574\/08<\/p>\n
                             21<\/span><\/p>\n
 terms, they have a close relationship as pointed out by<\/p>\n
 Americal Jurist Rawls, noticing that since one of the aims of<\/p>\n
 the law is to provide order and peace in society and since<\/p>\n
 order and peace cannot last long if it is based on injustice, it<\/p>\n
 follows that a legal system that cannot meet the demands of<\/p>\n
 justice will not survive long. It was laid down in Kailesh<\/p>\n
 Chandh (supra) that clearly, law cannot be so interpreted as<\/p>\n
 would cause oppression or be unjust. In Bharath Petroleum<\/p>\n
 (supra) it was further stated that a statutory order or<\/p>\n
 discretion exercised by a statutory authority must also be<\/p>\n
 decided on the angle of the constitutional scheme and<\/p>\n
 reasonableness and non-arbitrariness are the hallmarks of an<\/p>\n
 action by the State. In Bharath Petroleum (supra), the Apex<\/p>\n
 Court re-iterated the law noticed in Hindustan Petroleum<\/p>\n
 Corpn. Ltd. v. Darius<\/a> shapur chenai [(2005) 7 SCC 627]<\/p>\n
 that right to property although is not a fundamental right,<\/p>\n
 nonetheless   remains    a  constitutional   right   and   any<\/p>\n
 expropriatory legislation must be construed strictly.<\/p>\n
WPC.21574\/08<\/p>\n
                                    22<\/span><\/p>\n
25.Having identified a few principles of interpretation of the<\/p>\n
 Constitution and making reference to          Janosik Robert J.;<\/p>\n
 Encyclopedia of American Judicial System and Cappelletti<\/p>\n
 Mauro: The Judicial Process in Comparative Prospect,<\/p>\n
 Hon’ble Mr.Justice D.N.Dharmadhikari, then Judge of the<\/p>\n
 Apex Court, concludes in The Principle of Constitutional<\/p>\n
 Interpretation; some reflections [(2004) 4 SCC Journal 1],<\/p>\n
 inter alia, as follows:\n<\/p>\n<\/p>\n
      “:…………….the ultimate conclusion that can be<\/p>\n
      deduced is that no fixed principle, can beneficially<\/p>\n
      serve constitutional adjudication. Neither the<\/p>\n
      “originalists’ approach” nor “preferred freedoms<\/p>\n
      approach” nor “balancing of interests” singly or<\/p>\n
      collectively are enough for a sound constitutional<\/p>\n
      adjudication. Its main reason is that a Constitution<\/p>\n
      is composed more significantly of principles than<\/p>\n
      rules. This provides judges some amount of<\/p>\n
      discretion in the matter of interpretation of<\/p>\n
      constitutional provisions but this does not mean<\/p>\n
      that they may rely on their own value preferences<\/p>\n
      in construing constitutional provisions. As has been<\/p>\n
      stated        above,    constitutional provisions are<\/p>\n
WPC.21574\/08<\/p>\n
                                23<\/span><\/p>\n
      described by some as “great generalities” and by<\/p>\n
      others   as    “great   ambiguities”.    The    above<\/p>\n
      descriptions are to a great extent apt. The<\/p>\n
      provisions are ambiguous in the sense that in each<\/p>\n
      case the judge is called upon to furnish his own<\/p>\n
      meaning but they cannot be called “vague” because<\/p>\n
      they are sufficiently meaningful concepts capable<\/p>\n
      of lending guidance to enable the judge to<\/p>\n
      operationalise constitutional guarantees. It is the<\/p>\n
      function of the court to give effect to the logical<\/p>\n
      theory contained in the Constitution that animates<\/p>\n
      and binds together its provisions. The preamble of<\/p>\n
      the Indian Constitution is, therefore, generally<\/p>\n
      taken aid of to understand other provisions of the<\/p>\n
      Constitution because it may be said to contain the<\/p>\n
      “spirit of the Constitution”. The Constitution is a<\/p>\n
      document of liberal principles, predicated on the<\/p>\n
      primacy of a person’s worth. It is the function of<\/p>\n
      judges, as instruments of the Constitution’s logic,<\/p>\n
      to give effect to pre-existing individual rights in the<\/p>\n
      decisions of cases.\n<\/p><\/blockquote>\n
<\/blockquote>\n
      The    growth     of   the    Constitution    through\n\n      interpretation by courts,       is a necessity for\n\n<\/pre>\n
      protection of the individual rights guaranteed by<\/p>\n
WPC.21574\/08<\/p>\n
                                    24<\/span><\/p>\n
      the Constitution. Power exercised by the court in<\/p>\n
      interpreting the Constitution through unelected<\/p>\n
      judges is not anti-democratic. Democracy cannot<\/p>\n
      survive in a system in which civil rights and<\/p>\n
      freedoms           have   no   protection………………. ”<\/p>\n
      ” ……………..Legitimacy of judicial interpretation of<\/p>\n
      the Constitution is the recognition that it is an<\/p>\n
      institution with ability to protect minorities against<\/p>\n
      majoritarian political, legal, economic, indeed<\/p>\n
      societal pressure and will. It is an institution which<\/p>\n
      protects and upholds “enduring values” enshrined<\/p>\n
      in the Constitution and ………………. is best placed<\/p>\n
      to discover the principles of constitutional law and<\/p>\n
      protect the constitutional rights.<\/p><\/blockquote>\n
         On the basis of principles culled out above, an<\/p>\n
      integrated         approach   in   interpretation        of  a<\/p>\n
      Constitution is required in the light of social,<\/p>\n
      economic and political necessities of a particular<\/p>\n
      period in which the court is called upon to<\/p>\n
      interpret. Previous precedents of the court are only<\/p>\n
      for guidance. The process of interpretation involves<\/p>\n
      making the Constitution a workable law or<\/p>\n
      instrument by treating it as a dynamic living<\/p>\n
      document which needs to be suitably interpreted to<\/p>\n
WPC.21574\/08<\/p>\n
                               25<\/span><\/p>\n
      meet   exigencies   of   different  periods.   Socio-<\/p>\n
      economic context in which the court is called upon<\/p>\n
      to interpret, therefore, always assumes greater<\/p>\n
      importance”.\n<\/p>\n
                            (underlined to emphasise)<\/p>\n
            The learned Justice quotes the advice of<\/p>\n
      eminent jurist Mauro Cappelletti as follows:<\/p>\n
      “To enable the Apex Court, to more effectively deal<\/p>\n
      with important constitutional issues requiring<\/p>\n
      interpretation of Constitution, time and again, I<\/p>\n
      have made the point that it is a basic and most<\/p>\n
      dangerous policy error to design Supreme Courts,<\/p>\n
      national or otherwise, as organs bound to decide<\/p>\n
      legions of cases brought to them, at the cost of<\/p>\n
      overload and superficiality of decisions, rather than<\/p>\n
      providing them with techniques and\/or protecting<\/p>\n
      them with access-screening capable of allowing<\/p>\n
      them to concentrate their decision-making activity<\/p>\n
      on cases of greater importance for the uniform<\/p>\n
      interpretation, evolution, and `modernization’ of the<\/p>\n
      law. The entire exercise of interpretation of the<\/p>\n
      constitutional provisions by the court is to make the<\/p>\n
      Constitution meaningful to the citizens of this<\/p>\n
WPC.21574\/08<\/p>\n
                              26<\/span><\/p>\n
      country for whose betterment the Constitution is<\/p>\n
      meant.”\n<\/p>\n
                           (underlined to emphasise)<\/p>\n
26.The sublime process of dispute resolution, result rendition<\/p>\n
 and the presentation of the fruit of that verdict would be<\/p>\n
 optimally achieved only by the holistic administration of the<\/p>\n
 therapeutical admixture of the Constitution and the laws. The<\/p>\n
 primacy of the provisions of the Constitution and the<\/p>\n
 hierarchical superiority that primary legislations have over<\/p>\n
 subordinate rules often lead to questions as to whether the<\/p>\n
 subordinate   legislations  are   in   conflict  with  primary<\/p>\n
 enactments and whether either or both of them contradict the<\/p>\n
 constitutional provisions and principles. While it may be true<\/p>\n
 that the primary enactments and subordinate legislations<\/p>\n
 which are held to be intravires are to be enforced without any<\/p>\n
 consideration as to any inconvenience that such enforcements<\/p>\n
 may result in the sustainable balancing of the cause and effect<\/p>\n
 of such enforcement vis.a.vis. the situational conspectus in the<\/p>\n
 constitutional angle would provide the true vision to render<\/p>\n
WPC.21574\/08<\/p>\n
                               27<\/span><\/p>\n
 justice in accordance with the Constitution and laws.       The<\/p>\n
 wholesomeness of the justice delivery system depends on the<\/p>\n
 balancing of the primary enactments and subordinate<\/p>\n
 legislations, if any, with the provisions and principles of the<\/p>\n
 Constitution, which is the vision document of the society.<\/p>\n
 Therefore, the courts, in the exercise of rendering justice, are<\/p>\n
 duty bound to maintain the optimal balance between the<\/p>\n
 Constitution and the laws subservient thereto, to ensure that<\/p>\n
 justice in accordance with the Constitution and the laws is<\/p>\n
 administered upholding the rule of law.\n<\/p>\n<\/p>\n
27.With the aforesaid, striking a balance between the<\/p>\n
 unsurmountable sovereign need of the State to continue to<\/p>\n
 remain in occupation of the building in question for housing<\/p>\n
 the sub court and the constitutional right of the owners to<\/p>\n
 have carried out the construction\/re-construction of the<\/p>\n
 building in terms of the building permit, it cannot but be held<\/p>\n
 that the owners ought not to be compelled to suffer a<\/p>\n
 situational oppression for no fault of theirs. The Constitution<\/p>\n
WPC.21574\/08<\/p>\n
                                 28<\/span><\/p>\n
 does not envisage such sufferance. Nor does the reasonable<\/p>\n
 legislator, standing under the constitutional vision. Never, the<\/p>\n
 subordinate rules; for, they have no room to leap beyond the<\/p>\n
 parent statutes and the Constitution.        The context is one<\/p>\n
 where the owners deserve to be constitutionally protected<\/p>\n
 against the enforcement of the time limit fixed in Rule 15 A(2)<\/p>\n
 of the KMBR, which is only part of the subsidiary rules under<\/p>\n
 the Kerala Municipality Act, 1999. The one in hand is an<\/p>\n
 extra-ordinary situation warranting extra-ordinary remedies to<\/p>\n
 deal with the fact situation in hand. Hence, issuance of a writ<\/p>\n
 is called for, not in contradiction of the KMBR, but to ensure<\/p>\n
 that the relevant rule works in consonance with the<\/p>\n
 constitutional goals and within the frame work of the<\/p>\n
 Constitution and to prevent the occurrence of an event which<\/p>\n
 the reasonable legislator under the constitutional gaze would<\/p>\n
 never permit.\n<\/p>\n<\/p>\n
28.In the result, this writ petition is ordered directing that the<\/p>\n
 application of the petitioner and co-owners for renewal of the<\/p>\n
WPC.21574\/08<\/p>\n
                              29<\/span><\/p>\n
  building permit which was live till 26.7.2008, shall be<\/p>\n
  considered and ordered granting them a further period of<\/p>\n
  three years from the date on which the existing building is<\/p>\n
  vacated by the State by housing the sub court elsewhere, to<\/p>\n
  complete the construction.\n<\/p>\n
  The office will ensure that a copy of this judgment is placed<\/p>\n
  before the learned District Judge also on the administrative<\/p>\n
  side for perusal.\n<\/p>\n
                                         Sd\/-\n<\/p>\n
                          THOTTATHIL B RADHAKRISHNAN,
\n                                         Judge.\n<\/p>\n
kkb.<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court K. vs Secretary on 19 August, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-232421","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nK. vs Secretary on 19 August, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/k-vs-secretary-on-19-august-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"K. vs Secretary on 19 August, 2009 - 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