JOSEPH JOHN v. STATE OF KERALA — 1986 DIGILAW 108 (KER)

Judgment :- The petitioner claims to be the Secretary of an organisation formed for the protection of Environment in the Kottayam Town. In this O. P. the attack is against Rule 4 (3) of the Kerala Municipal Building Rules, 1968. The petitioner states that the power granted to Government to exempt any building from the operation of the Rules is not sanctioned by the Statute. At the time of hearing, counsel for the petitioner further submitted that Rule 4(3) gives arbitrary and unrestricted power to the Government or the officer authorised, to exempt buildings from the operation of the building rules and so it is discriminatory. According to the petitioner, exemption is granted by Government to make constructions in the town which result in great inconvenience to the citizens and also obstruct the future development of the town. The petitioner prays for the issue of a writ of certiorari to quash Rule 4(3) of the Kerala Municipal Building Rules as unconstitutional. 2. I heard counsel for the petitioner Mr. P. Gopalakrishnan Nair. The Kerala Municipal Building Rules 1968 were framed in exercise of the powers conferred on the Government by S.222 and S.344 of the Kerala Municipalities Act as also Ss.238 and 367 of the Kerala Municipal Corporations Act. Rule 4 (3) of the Kerala Municipal Building Rules is as follows: "4. Application for building Permit.(1) (3) Power of Government to exempt building: - The Government or any other officer authorised in this behalf may for sufficient reasons either suo motu or on application exempt any building from the operation of all or any of the provisions of these rules." Prima facie, Ss.222 and 344 of the Kerala Municipalities Act and also Ss.238 and 367 of the Kerala Municipal Corporations Act, authorise the Government of same the Rules. Petitioner's counsel contended that the Government may make rules for the regulation or restriction of the use of sites for building and for the regulation or restriction of building. But what is provided under Rule 4(3) of the Kerala Municipal Building Rules is a power in the Government to exempt any building from the operation of any of the Rules. A total exemption cannot be considered to be a regulation or restriction as contemplated by the relevant provisions of the Statute. I am unable to agree. But what is provided under Rule 4(3) of the Kerala Municipal Building Rules is a power in the Government to exempt any building from the operation of any of the Rules. A total exemption cannot be considered to be a regulation or restriction as contemplated by the relevant provisions of the Statute. I am unable to agree. The power to exempt will be taken in by the wide sweep of the rule-making power to regulate or restrict the use of sites for building and for the regulation or restriction of building.; The argument to the contrary is without force. 3. It was argued that Rule 4(3) of the Kerala Municipal Building Rules vests uncanalised, arbitrary power in the Government and so it violates Article 14 of the Constitution of India. There is no force in this submission. It should be noticed that under Rule 4(3), the Government or any other Officer, may for sufficient reasons exempt any building from the operation of any of the Rules. The order granting exemption should be only for sufficient reasons and not otherwise. That itself is a sufficient safeguard against an arbitrary exercise of power. The title and the preamble to the Act, as also the various provisions in the Act, afford some guidelines to understand the scope of rule 4(3). Normally the exercise of power vested in a statutory authority is supposed to be for the public good. The mere conferment of power in wide terms cannot by itself be open to attack, but only its arbitrary exercise, by those, upon whom the power is conferred. The power should or will be exercised, by the Government or the authorised officer under Rule 4 (3) of the Rules, only for "sufficient reasons" and beaming in mind the policy behind the Legislation. The principles that should be borne in mind when a provision of a statute is challenged as violative of Art.14, is laid down by the Supreme Court in Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar (AIR. 1958 SC. 538) (paragraph 12)- clause (v) of paragraph (12) of the judgment is relevant in this regard. Every discretionary power is not necessarily discriminatory and abuse of power cannot be easily assumed where the discretion is vested in high officials and Government. There is always a presumption that public officials will discharge their duties honestly and in accordance with the Rules of Law. Every discretionary power is not necessarily discriminatory and abuse of power cannot be easily assumed where the discretion is vested in high officials and Government. There is always a presumption that public officials will discharge their duties honestly and in accordance with the Rules of Law. The possibility of discriminatory treatment and scope for abuse cannot necessarily invalidate the Legislation. In a case where there is abuse of such power, the party aggrieved is not without any remedy. The burden of proving that there is abuse of power, is on the person who alleges the same. Normally, the State Government will be presumed to use it fairly and justly till the contrary is proved. The decisions of the Supreme Court in Mis. Pannalal binjraj v. Union of India (AIR. 1957 SC. 397) at pages 408 and 409 and P. J. Irani v. State of Madras (ATR.1961 SC. 1731) at page 1737 lay down the above principles. 4. Judged in the light of the above well-settled principles of law, I am of the view that Rule 4(3) of the Kerala Municipal Building Rules is not open to attack as in any way conferring arbitrary or uncanalised power violating Art.14 of the Constitution. The Rule, as such is not open to attack as discriminatory. If and when the power under Rule 4(3) is exercised arbitrarily or in an unfair manner, in any case, it is open to the petitioner on proof thereof, to assail such action. 5. In the circumstances, I hold that Rule 4(3) of the Kerala Municipal Building Rules is constitutional and valid. The OP. is without merit. It is dismissed in ligroin. Issue carbon copies of this judgment to counsel for the petitioner and also on usual terrace.