# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
# **PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR**
## **&**
**THE HONOURABLE MR. JUSTICE SHAJI P.CHALY**
**MONDAY, THE 12[TH ] DAY OF DECEMBER 2022/21ST AGRAHAYANA, 1944**
**R.P. NO. 277 OF 2022**
**AGAINST THE JUDGMENT DATED 20.10.2021 IN W.A. NO. 1226/2021**
**OF HIGH COURT OF KERALA**
## **REVIEW PETITIONER/APPELLANT:**
**MARIA OOMMEN AGED 42 YEARS PUTHUPALLY HOUSE, SUDARSHAN NAGAR, JAGATHY, THIRUVANANTHAPURAM, PIN – 695014**
**BY ADV. PAUL JACOB (P)**
## **RESPONDENTS/RESPONDENTS:**
**1 STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, MINISTRY OF LOCAL SELF GOVERNMENT ROOM NO 403, 4TH FLOOR, SECRETARIAT ANNEXE PALAYAM, THIRUVANANTHAPURAM PIN – 695001**
**2 MUNCIPAL CORPORATION OF THIRUVANTHAPURAM, REPRESENTED BY ITS SECRETARY MUNCIPAL CORPORATION OF THIRUVANTHAPURAM, VIKAS BHAVAN P.O, THIRUVANANTHAPURAM, PIN – 695033**
**3 TOWN PLANNER REGIONAL TOWN PLANNING OFFICE, 1ST FLOOR, UPPER ZONE, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM PIN – 695001**
R.P. No. 277/2022 in W.A. No. 1226/2021
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**R1 BY SRI. K.P. HARISH, SENIOR GOVERNMENT PLEADER R2 & R3 BY ADVS.SRI.N.NANDAKUMARA MENON (SR.) SRI.P.K.MANOJKUMAR,SC, TVPM CORPORATION SRI.SUMAN CHAKRAVARTHY**
**THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 12.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
R.P. No. 277/2022 in W.A. No. 1226/2021
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## **ORDER**
## S. Manikumar, C.J.
Seeking review of the judgment in W.A.No.1226/2021, dated 20.10.2021, instant review petition is filed _inter alia_ on the following grounds:-
- _“a. Regulation 11.3_ _**has to be read down** to give effect to those provisions in 11.1 and 11.2 of the General Town Planning Scheme for Trivandrum. While the review petitioner may not be justified in seeking a quashing of the provision itself, it is a requirement of law and statutory interpretation that Regulation 11.3_ _**has to be read down** to give effect to those provisions in 11.1, 11.2 and 11.3 of the General Town Planning Scheme for Trivandrum. In the absence of which the same would be violative of Article 14 of the Constitution of India as arbitrary, uncertain, conflicting and vague._
- _b. The challenge against Regulation 11.3 was not on the ground of constitutional or statutory violation but essentially that of interpretation of the statute. In the writ petition as well as in the appeal, the main ground of challenge was on the ground that Regulation 11 had to be interpreted 'in its entirety' giving effect to all its provisions and without causing redundancy to any provision. Regulation 11.3 has to be read down to give effect to those provisions in 11.1 and 11.2 of the General Town Planning Scheme for Trivandrum._
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- _c. This Hon'ble Court relied upon about 14 judgments touching various aspects of statutory interpretation including 'doctrine of plain reading', 'doctrine of harmonious construction' and 'doctrine of redundancy' while interpreting Regulation 11 of the Trivandrum Town Planning Scheme All those judgments point to the requirement that Regulation 11.2 be given effect to along with the other provisions in the Regulation Effectively, it means that the footnote to 11.3 is required to be read down as not applicable to 11.2 or is an exception to the footnote to 11.3._
- _d. The rule/doctrine of reading down is effectively a rule of harmonious construction. It is well established that reading down of a provision is used for the limited purpose of making the particular provision workable and to bring it in harmony with other provisions of the statute. A reading down of the provision is necessary to make it effective, workable and ensure the attainment of the object of the Act._
- _e. The Hon'ble Supreme in Subramanian Swamy v Raju, (2014) 8 SCC 390 while relying on its decision in Delhi Transport Corpn. v. D.T.C. Mazdoor Congress 1991 Supp_
- _(1) SCC 600 noted that:_
_61. Reading down the provisions of a statute cannot be resorted to when the meaning thereof is plain and unambiguous and the legislative intent is clear. The fundamental principle of the "reading down" doctrine can be summarised as follows. Courts must read the legislation literally in the first instance. If on such reading and understanding the vice of unconstitutionality is attracted, the courts must explore whether there has been an unintended legislative omission. If such an intendment can be reasonably implied without undertaking what, unmistakably, would be a legislative exercise, the Act may be read down to save it from unconstitutionality. The above is a fairly well-established and well-accepted principle of interpretation which having been reiterated by this Court time and again would obviate the necessity of any recall of the huge number of precedents available except, perhaps, the view of Sawant, J. (majority view)_
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_in DTC Mazdoor Congress [1991 Supp (1) SCC 600: 1991 SCC (L&S) 1213] which succinctly sums up the position is, therefore, extracted below: (SCC pp. 72829, para 255)_
_255. It is thus clear that the doctrine of reading down or of recasting the statute can be applied in limited situations. It is essentially used, firstly, for saving a statute from being struck down on account of its unconstitutionality. It is an extension of the principle that when two are - possible one rendering it constitutional and the other making it unconstitutional the former should be preferred. The unconstitutionality may spring from either the incompetence of the legislature to enact the statute or from its violation of any of the provisions of the Constitution. The second situation which summons its aid is where the provisions of the statute are vague and ambiguous and it is possible to gather the intentions of the legislature from the object of the statute, the context in which the provision occurs and the purpose for which it is made. However, when the provision is cast in a definite and unambiguous language and its intention is clear, it is not permissible either to mend or bend it even if such recasting is in accord with good reason and conscience. In such circumstances, it is not possible for the court to remake the statute. Its only duty is to strike it down and leave it to the legislature if it so desires, to amend it. What is further, if the remaking of the statute by the courts is to lead to its distortion that course is to be scrupulously avoided. One of the situations further where the doctrine can never be called into play is where the statute requires extensive additions and deletions. Not only it is no part of the court's duty to undertake such exercise, but it is beyond its jurisdiction to do so._
- _f. Further, the Hon'ble Supreme Court in ANZ Grindlays Bank Ltd and Ors. vs. Directorate of Enforcement and Ors. (2004) 6 SCC 531 observed that:_
_4. In order to make the statute workable, the Court should, thus take recourse to such principles of interpretation of statute as may be necessary, keeping in view the doctrine of ut res magis valeat pereat._
_5. In that view of the matter upon taking recourse to the principle of purposive construction as has been held_
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_by a three-Judge Bench of this Court in Balram Kumar wat v. Union of India and Ors. AIR 2003 SC 3268, an attempt should be made to make Section 56 of the Act workable. It is possible to read down the provisions of Section 56 to the effect that when a company is tried for commission of an offence under the Act, a judgment of conviction may be passed against it, but having regard to the fact that it is a juristic person, no punishment of mandatory imprisonment can be imposed._
- _g. It is submitted that where an inconsistency arises between the provisions of the statute, the Hon'ble Court may harmonize / read down the provision and where such a harmonization is not possible, the only remedy available before the Court would be to strike down the concerned provision to give effect to the statute as a whole and for the intent and purpose of its construction._
- _h. It is further submitted that an interpretation leading to redundancy of statutory provisions must be avoided. Such an interpretation runs the risk of defeating the objects sought to be achieved by the Act itself. The provision cannot be interpreted in a manner that renders another provision redundant. A purposive and harmonious interpretation should be given to avoid such conflicts._
- _i. Regulation 11.3 itself exempts the provision specifically mentioned in 11.1 and 11.2. Unless the footnote to 11.3 is read down, it would effectively cloud or otherwise override the main regulations, namely 11.1, 11.2 and 11.3. This would do injustice to the statutory provision as well as the petitioner's rights guaranteed by law. It is only justifiable that this Hon'ble Court intervene, even at this late stage to do justice to the statutory provision as well as the petitioner's rights thereof._
- _j. It is submitted that the footnote cannot control the very substantive provision itself. It was held by the Hon'ble Supreme Court in V.B. Prasad vs. Manager, P.M.D.U.P. School and Ors., (2007) 10 SCC 269 that such notes_
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_appended to the statutory provision must be read in the context of the substantive provision and cannot be in derogation of the same. It is submitted that the note appended to the Regulation cannot alter the position provided as per the Regulation. The footnote cannot be construed in a manner so as to disturb the very Regulation itself. As observed by the Hon'ble Court in Punjab State Electricity Board Ltd. vs. Zora Singh and Ors, (2005) 6 SCC 776, the note appended to a Regulation is merely explanatory in nature and cannot dilute the rigor of the main provision.”_
2. However, by inviting attention of this Court to Annexure A1 notice dated 19.01.2022 filed along with review petition, Mr. Paul Jacob, learned counsel for the review petitioner submitted that pursuant to the decision made in W.A.No. 1226/2021 dated 20.10.2021, though an application dated 10.11.2021 was filed, the Assistant Engineer, Thiruvananthapuram Corporation has informed the review petitioner that the request of permit cannot be considered since the depth of 20 meter from Killiaar is not available. It is on the basis of the above notice, review petition is filed.
3. For brevity, Annexure A1 notice dated 19.01.2022, is reproduced:-
## _“_ _**Thiruvananthapuram Corporation**_
_No.E8/29330/2020 Date: 19/01/2022_
## _**NOTICE**_
_Sub: Thiruvananthapuram Corporation – Engineering DepartmentGrant of permit-Regarding._
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_Reference: 1. Decision of the Hon'ble Court dated 20.10.2021 in WA No. 1226/2021 2. Your application dated 10.11.2021_
_*****_
_Your application by Reference-(2) for grant of permit as directed in Reference- (1) order was received. You are informed that the request for permit cannot be considered since a depth of 20-meter from Killiaar is not available, in accordance with KMBR and the Master-Plan. Moreover, this is also to inform you that your application dated 04.01.2022 has been submitted with the aforesaid instructions._
_Sd/Assistant Engineer_
_Maria Oommen Puthupally House Sundar Shan Nagar, Jagathy Thiruvananthapuram_
_S.R”_
4. Reading of the above made submissions makes it clear that a decision has been taken to the effect that the request of permit made by the review petitioner, cannot be considered, having regard to the footnote in Clause 11.3 of the Notification No. G.O.(Ms.) No. 144/07/LSGD dated 31.05.2007 issued by the Local Self Government Department, Government of Kerala. That is the reason as to why the petitioner seeks for review on the grounds stated supra.
5. Seemingly, the judgment in W.A.No.1226/2021 has been complied with and a decision has been taken not to give permission. Considering the same as a decision acting upon the judgment, it is open to the review petitioner to challenge the
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notice, on any tenable grounds including those referred to in the instant review petition.
With the above observation, review petition is disposed of.
Sd/-
**S. MANIKUMAR CHIEF JUSTICE**
Sd/-
**SHAJI P. CHALY JUDGE**
DCS/12.12.2022
R.P. No. 277/2022 in W.A. No. 1226/2021
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## **APPENDIX OF RP 277/2022**
## **PETITIONER ANNEXURES**
**ANNEXURE A1**
**TRUE COPY OF THE NOTICE DATED 19.01.2022 AND NUMBERED AS E8/29330/2020 ISSUED BY THE TRIVANDRUM CORPORATION ALONG WITH ITS ENGLISH TRANSLATION**
