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2009 DIGILAW 273 (KER)

George v. State of Kerala

2009-03-18

S.SIRI JAGAN

body2009
Judgment : This writ petition is filed by an applicant for a building permit, challenging Ext. P3 order issued by the 3rd respondent-Secretary of the Thrissur Municipal Corporation, by which his application for renewal of a building permit was rejected on the ground that a building permit cannot be renewed more than twice. The facts of the case as disclosed by the pleadings of the parties, which are now not in dispute are as follows. 2. Pursuant to an application filed by the petitioner along with his brothers, a building permit dated 29-11-1999 was issued to them, valid for the period from 26-11-1999 to 25-11-2002. On the petitioners application dated 31-10-2002, for renewal of the permit, the same was renewed for the period from 25-11-2002 to 24-11-2005. Again, the petitioner applied for renewal of the permit and the same was again renewed for a further period of 3 years up to 25-11-2008. By Ext. P1 application dated 9-8-2008, the petitioner again requested for renewal of the permit for a further period of 18 months, which was rejected by Ext. P3 order. The petitioner challenges that order. 3. The petitioner would contend that Ext. P3 order was not served on him and he had to resort to the Right to Information Act after which only the same was served on him on 24-12-1008. In the writ petition, the only contention raised b the petitioner is that Ext. P3 order was passed without hearing him. 4. The contention of the respondents 2 and 3 in their counter affidavit is that under Rule 15A of the Kerala Municipality Building Rules, a building permit can be renewed only twice for a period of three years each and since the petitioners permit has already been renewed twice for three years each, no further extension of the permit can be granted under law. 5. In answer, the petitioner would contend that such restriction is only in sub rule (2) of Rule 15A and by virtue of sub-rule (4), the permit can be extended for a further period of three years. 5. I have considered the contentions of both sides in detail. 6. Sub Rules 1 to 4 of Rule 15A reads thus: "15A. Extension and renewal of periods of permits:- (1) A development permit or a building permit issued under these rules shall be valid for three years from the date of issue. 5. I have considered the contentions of both sides in detail. 6. Sub Rules 1 to 4 of Rule 15A reads thus: "15A. Extension and renewal of periods of permits:- (1) A development permit or a building permit issued under these rules shall be valid for three years from the date of issue. (2) The Secretary shall, on application submitted within the valid period of the permit, grant extension twice, for further periods of three years each. (3) The fee for extension of period of permits shall be ten percent of the development permit fee or building permit fee as the case may be, in force at the time of granting extension. (4) The Secretary shall, on application submitted within one year of the expiry of the permit, grant renewal, once, for a period of three years. Petitioners contention is that in view of sub-rule (4), there is ambiguity in the rule as the same is inconsistent with sub-rule (2) and therefore a purposive construction of the rule should be adopted by giving a meaning to sub-rule (4) also in which case the petitioner is entitled to extension of the period of validity of the period of the permit for a further period of three years. He relies on the decision of the Supreme Court in Union of India and another v. Hansoli Devi and others, (2002) 7 SCC 273) in support of his contention. 7. I am of the opinion that going by the very dictum laid down by the Supreme Court in Hansoli Devis case (supra), the petitioners contention should be rejected. In that decision, the Supreme Court held thus: "9. Before we embark upon an inquiry as to what would be the correct interpretation of Section 28-A, we think it appropriate to bear in mind certain basic principles of interpretation of a statute. The rule stated by Tindal, C.J. in Sussex Peerage case [(1844) 11 Cl & Fin 85] still holds the field. The aforesaid rule is to the effect: (ER p. 1057) "If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The rule stated by Tindal, C.J. in Sussex Peerage case [(1844) 11 Cl & Fin 85] still holds the field. The aforesaid rule is to the effect: (ER p. 1057) "If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver." It is a cardinal principle of construction of a statute that when the language of the statute is plain and unambiguous, then the court must give effect to the words used in the statute and it would not be open to the courts to adopt a hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. In Kirkness v. John Hudson & Co. Ltd., [(1955) 2 All E.R. 345], Lord Reid pointed out as to what is the meaning of "ambiguous" and held that: (All ER p. 366 C-D) "A provision is not ambiguous merely because it contains a word which in different contexts is capable of different meanings. It would be hard to find anywhere a sentence of any length which does not contain such a word. A provision is, in my judgment, ambiguous only if it contains a word or phrase which in that particular context is capable of having more than one meaning." It is no doubt true that if on going through the plain meaning of the language of statutes, it leads to anomalies, injustices and absurdities, then the court may look into the purpose for which the statute has been brought and would try to give a meaning, which would adhere to the purpose of the statute. Patanjali Sastri, C.J. in the case of Aswini Kumar Ghose v Arabinda Bose [AIR 1952 S C 369], had held that it is not a sound principle of construction to brush aside words in a statute as being inapposite surplus age, if they can have appropriate application in circumstances conceivably within the contemplation of the statute. In Quebec Railway, Light Heat & Power Co. In Quebec Railway, Light Heat & Power Co. Ltd. v. Vandry, [AIR 1920 PC 181], it had been observed that the legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature will not be accepted except for compelling reasons. Similarly, it is not permissible to add words to a statute which are not there unless on a literal construction being given a part of the statute becomes meaningless. But, before any words are read to repair an omission in the Act, it should be possible to state with certainty that the words would have been inserted by the draftsman and approved by the legislature had their attention been drawn to the omission before the Bill had passed into a law. At times, the intention of the legislature is found to be clear but the unskilfulness of the draftsman in introducing certain words in the statute results in apparent ineffectiveness of the language and in such a situation, it may be permissible for the court to reject the surplus words, so as to make the statute effective. . . . ." I do not find any ambiguity in Rule 15A or any conflict between sub-rules (2) and (4) thereof so as to look into the object or policy underlying the statute to give it a purposive construction and therefore, as laid down by the Supreme Court, I have to go by the plain meaning of the rule. Sub-rule (2) states that on application submitted within the valid period of the permit, the Secretary shall grant extension twice, for further periods of three years each. Under sub-rule (4), on application submitted within one year of the expiry of the permit, the Secretary shall grant renewal once, for a period of three years. Going by the plain meaning of the two sub-rules, it is abundantly clear that the two rules operate in different spheres. As per sub-rule (2), if a person applies for extension within the period of validity of the permit, the period of validity of the permit can be extended twice for periods of three years each. That is, if the application for extension is made on both occasions before the expiry of the period of validity of the permit, an applicant would get a total period of nine years time to complete the construction. That is, if the application for extension is made on both occasions before the expiry of the period of validity of the permit, an applicant would get a total period of nine years time to complete the construction. But, if the applicant is not vigilant and allows the period of validity to expire, if an application for extension is submitted within one year of the expiry of the permit, the permit can be extended once for a period of three years. In other words, a vigilant applicant who submits application before the period of validity of the permit expires, he would get nine years to complete the construction, whereas a person, who omits to apply for extension before the expiry of the period of validity and allows the period of validity of the permit to expire, if applies within one year from the date of expiry, would get only six years to complete the construction. There is no ambiguity in the language used in the rule in that regard and the meaning is loud and clear obviating the necessity of any purposive interpretation. In this case, since the petitioner has already got the maximum period of six years of extension and total period of nine years, there is no question of any further extension of the validity of the permit. The only course open to the petitioner is to apply for a fresh permit in accordance with the Rules. Therefore, I do not find any merit in this writ petition and accordingly the same is dismissed.