STATE OF KERALA v. VIJAYAN — 1978 DIGILAW 78 (KER)

Judgment :- 1. These appeals by the State and by the Cochin Devaswom Board (referred to as the Board) should be allowed and the judgment of the learned judge set aside. W. A. Nos. 199 and 201 of 1977 are by the State and by (he Board respectively, against the decision of a learned judge in O. P. No. 2392 of 1973; and W. A No 246 of 1977 is by the Board against the judgment of the same learned judge in O. P. No. 1025 of 1975. The writ petitions challenged the validity of Ext. P1 notification dated 17 111966 issued under S.25 of the Kerala Buildings (Lease and Rent Control) Act, 1965 exempting the buildings in Devaswom lands in East Pallithanam (Trichur), constructed by the Cochin Devaswom Board or out of its funds, from all the provisions of the said Act. Ext. P3 is a copy of the Memorandum by the inmates of the Devaswom buildings in East Pallithanam to the Minister for Revenue. This was supplemented by Exts. P5 and P7. The memorandum was rejected by Ext. P8 dated 22 51973. Against that a further revision Ext. P9 was filed which was rejected by Ext. P10. The writ petition was to quash Exts. P1, P8 and P10. 2.. S.25(1) of the Buildings (Lease and Rent Control) Act, reads: "25. Exemptions: (I) Notwithstanding anything contained in this Act the Government may, in public interest or for any other sufficient cause, by notification in the Gazette, exempt any building or class of buildings from all or any of the provisions of this Act." And Ext. P1 notification, which is impugned, is as follows: "PUBLIC WORKS DEPARTMENT (BUILDINGS) Notification No. 44929/B-2/66/PW dated, Trivandrum, 17th November '66 In exercise of the powers conferred by S.25 of the Kerala Buildings (Lease and Rent Control) Act, 1965. (Act 2 of 1965) the Government of Kerala hereby exempt the buildings in the Devaswom Lands in Eastern Pallithanam (Trichur) constructed by the Cochin Devaswom Board out of its funds, from all the provisions of the said Act. By order of the Governor P.U. John, Deputy Secretary" The notification was attacked on the ground that it did not either allege or disclose any public interest, nor, any reasons for the exemption; and that such reasons as were later given by the Government in support of the notification, were manifestly unsustainable and wrong. By order of the Governor P.U. John, Deputy Secretary" The notification was attacked on the ground that it did not either allege or disclose any public interest, nor, any reasons for the exemption; and that such reasons as were later given by the Government in support of the notification, were manifestly unsustainable and wrong. In Para.7 of the additional Counter Affidavit dated 213 1975, the Government disclosed the reasons for the exemption as follows: 7. The 2nd respondent has built a few houses in Eastern Pallithanam belonging to the'Vadakkunnatha' temple of the Devaswom Board in Trichur Town with its own funds. These bouses were constructed with a view to protect the flower gardens and for residential purpose of Devaswom employees. These houses have been allotted to some of the Devaswom employees and other devout Hindus who according to the Board would not do anything affecting the sanctity of the area. If the provisions of the Kerala Buildings Lease and Rent Control Act are made applicable to the buildings in Pallithanam by allotment of the buildings under the provisions of the said Act they may go to non-Hindus and thereby the sacred precincts of the Vadakkunnatha temple and its sanctity may be affected and the sentiment of the Hindu Public will be wounded. In effect such a contingency may go against the spirit of the provisions of the Hindu Religious Institution Act because the funds and property of Hindu Temples are to be used for the benefit and betterment of the Hindu Community. Above all the Travancore Devaswom Board has been exempted from the provisions of Act 2 of 1965". In effect such a contingency may go against the spirit of the provisions of the Hindu Religious Institution Act because the funds and property of Hindu Temples are to be used for the benefit and betterment of the Hindu Community. Above all the Travancore Devaswom Board has been exempted from the provisions of Act 2 of 1965". This was traversed in the Reply Affidavit dated 22 61975 of the petitioner, in Para.3 of which, it was stated that there was no flower garden at all maintained by the Devaswom in the Colony of Eastern Pallithanam houses; that the Flower Gardens referred to in the counter affidavit might be the gardens in Thekkinkad Maidan known as the Children's Park maintained by the Trichur Municipality and not by the Board; that the same was nearly 400 yards away from the Eastern Pallithanam Houses; that there are a few flower plants in front of the office buildings of the Devaswom Board; that the buildings themselves have been largely occupied by persons who are not employees of the Devaswom; that the Eastern Pallithanam Colony is far away from the Vadakkunnatba temple and its precincts; that the Devaswom Board itself had inducted non-Hindus into some of the buildings; that some of the buildings in the Eastern Pallithanam Colony are non-residential„ in one of which, a Christian firm A. P. Anthony and Company, is running a liquor shop, and in which the previous tenant was running a Hotel, open to persons of all religious sects and communities; that even as late as 1975 another building in Eastern Patlithanam was let by the Board to a Christian Shri. Poison who is running a business in tyres and other goods under the style "Stanes Dealer and love-bird Agencies"; that Christians are residing on the opposite side of the Public road which the Eastern Pallithanam buildings face; and that adjacent to the Devaswom Board buildings there is a Petrol Bunk run by a Christian firm, and hotels and restaurants including non-vegetarian restaurants run by non-Hindus. In these circumstances, it was contended that the alleged reason to preserve the sanctity of the surroundings and to prevent the possession of the buildings getting into the bands of non-Hindus was manifestly unacceptable. This argument found favour with the learned judge who held that Ext. In these circumstances, it was contended that the alleged reason to preserve the sanctity of the surroundings and to prevent the possession of the buildings getting into the bands of non-Hindus was manifestly unacceptable. This argument found favour with the learned judge who held that Ext. P1 disclosed no reasons, and that the reasons disclosed in the counter affidavit were unacceptable in view of the specific averments in the reply affidavit of the petitioner which remained unanswered... 3. The act of granting exemption under S.25 (1) of the Act is, we should think, a legislative act. There is authority that such an act of exemption need not be by an order disclosing reasons. In S 1. Syndicate Ltd v. Union of India (AIR. 1975 SC. 460) it was stated as follows: "13. The petitioners did not challenge the price fixation on the ground that a quasi-judicial procedure had to be adopted before prices are fixed even if such price fixation affects, as it must, each factory. Price fixation is more in the nature of a legislative measure even though it may be based upon objective criteria found in a report or other material. It could not, therefore, give rise to a complaint that a rule of natural justice has not been followed in fixing the price. Nevertheless, the criterion adopted must be reasonable. Reasonableness, for purposes of judging whether there was an "excess of power" or an "arbitrary" exercise of it, is really the demonstration of a reasonable nexus between the matters which are taken into account in exercising a power and the purposes of exercise of that power. This was made clear by this Court in the two cases cited on behalf of the appellants Shree Meenakshi Mills Ltd. v. Union of India, (1974) I SCC 468 - (AIR. 1974 SC 366): Panipat Cooperative Sugar Mills v. Union of India, (1973) 2 SCR 860 - (AIR. 1973 SC 537). The principle was followed in Bakul Cashew Company v. Sales Tax Officer (40 STC.178 at 187). That apart, even if the act of granting exemption were not to be regarded as legislative, there is enough authority that the public interest underlying the exemption need not be expressly recited in the notification itself. It is enough if it is made to appear de hors the notification, as for instance, in the affidavit filed on the side of the Government. It is enough if it is made to appear de hors the notification, as for instance, in the affidavit filed on the side of the Government. In State of Bombay v. Bhonji Munji (AIR. 1955 SC. 41), it was stated: "H. In our opinion, it is not necessary to set out the purpose of the requisition is the order. The desirability of such a course is obvious because when it is not done proof of the purpose must be given in other ways and that exposes the authorities to the kind of charges we find here and to the danger that the Courts will consider them well founded. But in itself an omission to set out the purpose in the order is not fatal so long as the facts are established to the satisfaction of the Court in some other way The underlying principle of our decision in 'Biswabhusan Naik v. State of Orissa'. AIR. 1954 SC. 359 (E), applies here." In Barkye Thakur v. State of Bombay (AIR. 1960 SC. 1203) a notification under S.4 of the Land Acquisition Act was attacked on the ground that it did not, on the face of it, disclose the public purpose underlying the acquisition. It was answered: "In our opinion, it is not absolutely necessary to the validity of the land acquisition proceedings that that statement should find a place in the notification actually issued. The requirements of the law will be satisfied if, is substance, it is found on investigation, and the appropriate Government is satisfied as a result of the investigation that the land was needed for the purposes of the Company, which would amount to a public purpose under Part VII. as already indicated." (page 1208) Again, in Swadeshi Cotton Mills v. State Industrial Tribunal (AIR. 1961 SC. 1381), it was observed, with respect to the provisions of S.3 of the U. P. Industrial Disputes Act: "(9). The power to past an order under S.3 arises as soon as the necessary opinion required thereunder is formed. This opinion is naturally formed before the order is made. If therefore such an opinion was formed and an order was passed thereafter, the subsequent order would be a valid exercise of the power conferred by the section. The power to past an order under S.3 arises as soon as the necessary opinion required thereunder is formed. This opinion is naturally formed before the order is made. If therefore such an opinion was formed and an order was passed thereafter, the subsequent order would be a valid exercise of the power conferred by the section. The fact that in the notification which is made thereafter to publish the order the formation of the opinion is not recited will not take away the power to make the order which had already arisen and led to the making of the order. The validity of the order therefore does not depend upon the recital of the formation of the opinion in the order but upon the actual formation of the opinion and the making of the order in consequence. It would therefore follow that if by inadvertence or otherwise the recital of the formation of the opinion is not mentioned in the preamble to the order the defect can be remedied by showing by other evidence in proceedings where challenge is made to the validity of the order, that in fact the order was made after such opinion had been formed and was thus a valid exercise of the power conferred by the law The only exception to this course would be where the statute requires that there should be a recital in the order itself before it can be validly made." The above decisions should be a sufficient answer to the challenge based on the non-disclosure of reasons in the notification itself. It would therefore be sufficient if the reasons are disclosed in the counter affidavit. 4. Next, as to the sustainability of the reasons. It is worthwhile in this connection to examine the limited scope for judicial review of the reasons urged by the Government in support of a notification of the type of Ext. P1, That fell recently for consideration by the Supreme Court in Narayan v. State of Maharashtra (AIR. 1977 SC. 183), again, with respect to the provisions of S.4 of the Land Acquisition Act. In Para.10, it was observed: "10. It is true that, in such cases, the formation of an opinion is a subjective-matter, as held by this Court repeatedly with regard to situations in which administrative authorities have to form certain opinions before taking actions they are empowered to take. In Para.10, it was observed: "10. It is true that, in such cases, the formation of an opinion is a subjective-matter, as held by this Court repeatedly with regard to situations in which administrative authorities have to form certain opinions before taking actions they are empowered to take. They are expected to know better the difference between a right or wrong opinion than Courts could ordinarily on such matters. Nevertheless, that opinion has to be based upon some relevant materials in order to pass the test which Courts do impose. That test basically is. Was the authority concerned acting within the scope of its powers or in the sphere where its opinion and discretion must be permitted to have full play? Once the Court comes to the conclusion that the authority concerned was acting within the scope of its powers and had some material, however meagre, on which it could reasonably base its opinion, the Courts should not and will not interfere. There might, however, be cases in which the power is exercised in such an obviously arbitrary or perverse fashion, without regard to the actual and undeniable facts, or in other words, so unreasonably as to leave no doubt whatsoever in the mind of a Court that there has been an excess of power. There may also be cases where the mind of the authority concerned has not been applied at all, due to misunderstanding of the law or some other reason, to what was legally imperative for it to consider." Counsel for the respondents read to us Para.11, 20, 31, 33 and 41 of the decision. We have found nothing to whittle down the principle stated in Para.10, which we have extracted. We would add that in judging the validity and the effect of a notification like Ext. PI, we are entitled to take into account how ordinarily the Governmental machinery is likely to work in taking action under S.25(1) of the Act. In answer to our question, it was fairly admitted by counsel for the respondents and we think quite rightly that no local inspection or survey of the locality by a Government official or a team of experts of the cluster of houses in Eastern Pallithanam was to be envisaged or expected. In answer to our question, it was fairly admitted by counsel for the respondents and we think quite rightly that no local inspection or survey of the locality by a Government official or a team of experts of the cluster of houses in Eastern Pallithanam was to be envisaged or expected. From the Secretarial chair the proceedings, are drawn up on a fair and objective appraisal of the circumstances and considerations which call for the exemption. Meticulous weighing of the evidence and counter-evidence, to be followed by a detailed enquiry, is unnecessary. We think the learned judge fell into error in ransacking the allegations in the counter-affidavit by pitting them against those in the reply affidavit of the petitioner and commenting or the non-traversal of these latter allegations. An over-all survey and assessment of the position, is, in the nature of things, for the Government to make; and we do not think that we would be justified in projecting our judicial interference in this sphere, on the materials disclosed. The learned judge was in our opinion, wrong in interfering with Ext. P1 assessment. 5. Counsel for the Respondent cited the decision in Irani v. The State of Madras (AIR. 1961 SC. 1731). There, S.13 of the Madras Buildings Lease and Rent Control Act, allowing Government to exempt any building from the provisions of the Act (without even any limitation of public interest as in the Kerala Act) was challenged as violative of Art.14. The Section was upheld as constitutionally valid, (vide para 13); but it was ruled that the validity of an individual grant of exemption was open to examination. Proceeding to examine the case of exemption granted, it was ruled that the four reasons disclosed for granting the exemption were extraneous and irrelevant to the policy of the Act, and hence the exemption cannot be sustained (vide para 17). The decision has no application. The reasons here given cannot be said to be extraneous and irrelevant. 6. It was complained that the disclosure of reasons should be contemporaneous with Ext. P1 notification, and that the counter affidavits sworn to in 1973 and 1975 were by someone not associated with the drawing up of the exemption notification in 1966. We see little force in the objection. The petitioners themselves are challenging in 1973 the notification made in 1966. The representations Exts. P1 notification, and that the counter affidavits sworn to in 1973 and 1975 were by someone not associated with the drawing up of the exemption notification in 1966. We see little force in the objection. The petitioners themselves are challenging in 1973 the notification made in 1966. The representations Exts. P3, P7 and P9, strictly, would not avail against delay and laches; and it comes with ill grace from the petitioners, to complain of the infirmity in the counter affidavit sworn to by an officer of the Government who had no direct knowledge of the facts at the time of the issuance of the notification. It is well-known that Government officials, very often do not stay at their posts long, but are shifted from one place to another. It is not surprising that the officers associated with the exemption notification of 1966 were not available to swear to the counter affidavit in 1973 and 1975. The deponent's knowledge was derived from the files. 7. We are of the opinion that the learned judge went wrong in quashing Exts. P1, P8 and P10. We allow these appeals by the State and by the Devaswom Board and set aside the judgment of the learned judge, and direct that O P. Nos. 2392 of 1973 and 1026 of 1975 will stand dismissed. We make no order as to costs. Allowed.