IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 19TH AUGUST 2009 / 28TH SRAVANA 1931 WP(C).No. 21574 of 2008(R) -------------------------- PETITIONER(S): --------------- K.,M.ABDULLA, S/O.MOHAMMED 57 YEARS, KOYYAMMADATH, PUTHIYAVALAPPU, PUTHIYANGADI, PO. MADAYI, KANNUR. BY ADV. SRI.M.V.AMARESAN RESPONDENT(S): --------------- 1. SECRETARY, PAYYANNUR MUNICIPALITY, PAYYANNUR , KANNUR. 2. DISTRICT JUDGE, THALASSERY. 3. SUBORDINATE JUDGE, PAYYANNUR. ADV. SRI.M.SASINDRAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX(WP(C) 21574/2008) PETITIONERS' EXTS. EXT.P1 TRUE COPY OF LEASE AGREEMENT DATED 16.2.1990. EXT.P2 TRUE COPY OF BUILDING PERMIT DATED 29.6.1999 SANCTIONED FROM PAYYANNUR MUNICIPALITY. EXT.P3 TRUE COPY OF LEASE AGREEMENT DATED 22.3.2001 WHEREBY THE PERIOD EXTENDED TILL 2006. EXT.P4 TRUE COPY OF LEASE AGREEMENT DATED 23.2.2006 WHICH LED TO YET ANOTHER RENEWAL TILL 2011. EXT.P5 TRUE COPY OF LETTER ISSUED FROM THE HONOURABLE DISTRICT JUDGE, THALASSERY. EXT.P6 TRUE COPY OF LETTER DATED 17.6.2008 FROM THE HONOURABLE DISTRICT JUDGE, THALASSERY. EXT.P7 TRUE COPY OF REQUEST SUBMITTED BY PETITIONER DATED 21.6.08 BEFORE THE HONOURABLE DISTRICT JUDGE, THALASSERY. EXT.P8 TRUE COPY OF RESOLUTION SUBMITTED BY THE PETITIONER BEFORE THE BAR ASSOCIATION DTD. 23.6.2008. EXT.P9 TRUE COPY OF REQUEST DATED 17.6.2008 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT. EXT.P10 TRUE COPY OF REPLY IN B.A.352/99-00 DTD. 2.7.2008 ISSUED BY THE RESPONDENT. Ext.P11 TRUE COPY OF THE BUILDING PLAN. EXT.P11(a) TRUE COPY OF POSTAL RECEIPT EVIDENCING DEPATCH OF P11. lgk 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. WPC.21574/08 2 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 WPC.21574/08 3 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'. WPC.21574/08 4 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. WPC.21574/08 5 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 WPC.21574/08 6 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. WPC.21574/08 7 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]. WPC.21574/08 8 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 WPC.21574/08 9 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 WPC.21574/08 10 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 WPC.21574/08 11 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, WPC.21574/08 12 “................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. WPC.21574/08 13 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. WPC.21574/08 14 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 WPC.21574/08 15 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. WPC.21574/08 16 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 WPC.21574/08 17 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. WPC.21574/08 18 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 WPC.21574/08 19 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: WPC.21574/08 20 “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 WPC.21574/08 21 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. WPC.21574/08 22 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