KURIEN v. STATE OF KERALA — 1987 DIGILAW 571 (KER)

Judgment :- 1. Petitioner was the tenant of a portion of the building owned by the 2nd respondent. Proceedings under the Kerala Buildings (Lease and Rent Control) Act. 1965. (for short the Act) were initiated for evicting the petitioner. The eviction was sought under S.11 (3) and 11 (4) (i) of the Act. The tenant opposed the petition on many grounds. He alleged that the lease arrangement was one entered into prior to 1-4-1940. The Rent Control Court accepted the tenant's contentions and dismissed the application on 17-6-1969. The 2nd respondent took up the matter in appeal in B.R.C. A.S. No. 27 of 1969. The appellate authority. the Subordinate Judge. Kottayam. allowed the recovery on the ground of bona fide requirement to re-construct the building. The claim under S.11(3) was denied. The tenant and the landlord took up the matter in revision before the District Court. Both revision petitions were dismissed on 8-6-1971. The tenant took up the matter in revision before this court in C.R.P. No. 787 of 1971. A Division Bench of this court dismissed that revision on 5-4-1972 granting three months time to the tenant for vacating the building and six months' time to the landlord. after recovery of possession of the building for re-construction. The land-lord got possession of the building on 10-8-1972. The construction of the new building was completed on 22-11-1973. The land-lord occupied the entire building. The tenant was not given any portion of it. Thereupon he approached the Rent Control Court for getting a portion of the new building allotted to him. The Rent Control Court dismissed that application on 16-8-1979. On appeal. the Appellate Authority set aside the order of the Rent Control Court and directed the Rent Control Court to determine the actual portion to be given to the tenant and for assessing the amount of damages claimed by the tenant. The 2nd resplendent challenged that order in revision before the District Court. Kottayam in B R.C. R.P. No.1 of 1982. On 26-3-1982. the District Court dismissed that revision petition. The 2nd respondent filed C.R.P. No. 1177 of 1982 before this court against the order of the District Court. 2. The 2nd respondent moved the Government en 21-1-1978. to exempt his building from the purview of the Act. under S.25(1) of the Act. The Government dismissed that petition on 3-6-1981. On 26-3-1982. the District Court dismissed that revision petition. The 2nd respondent filed C.R.P. No. 1177 of 1982 before this court against the order of the District Court. 2. The 2nd respondent moved the Government en 21-1-1978. to exempt his building from the purview of the Act. under S.25(1) of the Act. The Government dismissed that petition on 3-6-1981. After filing the C.R.P. No. 1177 of 1982 before this court. the 2nd respondent again moved the Government for exempting his building under S.25(1) of the Act. By Ext P4 notification dated 18-6-1983. the Government exempted the building belonging to the 2nd respondent from the operation of the 3rd proviso to clause (iv) of sub-s. (4) of S.11 of the Act. That notification is under challenge. 3. Since the 2nd respondent got Ext. P4 notification exempting his building from the purview of the 3rd proviso to S.11(4) (iv) of the Act he got C.R.P. No. 1177/1982 dismissed as not pressed. 4. The learned Counsel appearing for the petitioner submits that all the authorities under the Act as also the Division Bench of this court negatived the 2nd respondent's claims for recovery of the building on the ground of bona fide need for own occupation. In the light of that finding. the Government was not justified in coming to the conclusion that the 2nd respondent's establishment requires the entire building for carrying on its business. It is also argued that the petitioner got his rights under the 3rd proviso to S.11(4) (iv) established before all the authorities under the Act. That right is now sought to be taken away by Ext. P4 notification. According to Counsel. the notification cannot go to deny the petitioner's rights which he got by the orders of the Appellate Authority and the Revisional Court. Lastly. it is contended that the exercise of power under S.25(1) in issuing Ext. P4 notification was mala fide. arbitrary and illegal. 5. As directed by this court. the learned Government Pleader produced before court the Government files relating to the issue of orders in respect of the 2nd respondent's building. The 2nd respondent's application dated 21-1-1978 praying for exempting the building from the purview of the Act was dealt with by the Government in file No. 14328/E2/78/PW. From this file. it is seen that when it was submitted to the then Minister in charge of Public Works Department. The 2nd respondent's application dated 21-1-1978 praying for exempting the building from the purview of the Act was dealt with by the Government in file No. 14328/E2/78/PW. From this file. it is seen that when it was submitted to the then Minister in charge of Public Works Department. he put forward a query. "what is the public interest in this case?" The Office opened: "The petitioner in running the press has been rendering valuable service to the public by priming and publishing useful books in different languages in the educational and cultural fields. This is the public interest in the present case under which the exemption requested for can be granted." The Secretary to Government noted: "I do not feel that the printing and publishing of books as a commercial undertaking can be termed public interest. The request may be rejected." In pursuance to the said order of the Secretary to Government. endorsed by the Minister. the 2nd respondent's request was rejected. 6. The 2nd respondent approached the Government again by filing a petition dated 5-7-1982. That application was dealt with by the Government in the file leading to G.O.(MS). 69/83/PW dated 18-6-1983 (Ext. P4). After hearing the parties. the Special Secretary to Government. P.W.D.. gave the following opinion: "The earlier representation was rejected on the ground that there was no public interest served by giving exemption. On a reading of the Act it is clear that it is not necessary that public interest should be served by any exemptions and the only point is whether there is any other sufficient cause for granting such an exemption. In this particular case M/s. Vidyarthi Mitram Press is occupying the building for their own use and they have stated that there is no space available for being let out. District Collector has also recommended that exemption may be granted to the building as requested by the petitioner. So. exemption may be granted to the buildings Nos. XVII/291 and XVII/291A. of Kottayam Municipality from operation of S.11(4) of the Kerala Buildings (Lease & Rent Control) Act. 1965." (emphasis supplied) In pursuance to this opinion the Government have issued Ext. P4. 7. A detailed counter affidavit has been filed on behalf of the State. Attempt has been made therein to sustain the notification in public interest. XVII/291 and XVII/291A. of Kottayam Municipality from operation of S.11(4) of the Kerala Buildings (Lease & Rent Control) Act. 1965." (emphasis supplied) In pursuance to this opinion the Government have issued Ext. P4. 7. A detailed counter affidavit has been filed on behalf of the State. Attempt has been made therein to sustain the notification in public interest. Para.7 of the counter affidavit is in the following terms: "It is clear from the explanatory note of the impugned notification that the Government have issued the same in public interest. The establishment Vidyarthi Mithram Press and Book Depot is a registered small scale Industrial Unit and that if any space in the building is let out. it will affect the scope of their operation and result in retrenchment of labourers. Government have issued the notification only after careful consideration of all aspects. Therefore there is nothing illegal. incompetent or unjust on the part of the 1st respondent. Ia issuing the said notification. Government have exercised only the cowers invested with them under S.1(3) and 25(1) of the Kerala Buildings (Lease and Rent Control) Act. Therefore the petitioners contention has no merit." 8. The 2nd respondent has filed another counter affidavit. justifying the notification. According to him the Government acted well within its jurisdiction under S.25(1) of the Act in issuing the notification. 9. S.25(1) of the Act is in the following terms: "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." Now the aspect to be gone into is whether the Government were justified in issuing Ext.P4 notification under the above provision. At the outset. it has to be observed that the Government did not find any public interest in issuing the notification as evident from the Government files referred to earlier. So the question is whether there was any other sufficient cause justifying the issue of Ext.P4 notification. 10. The 2nd respondent approached the Rent Control Court for evicting the petitioner under S.11 (3) and 11 (4) (iv) of the Act. His claim under S.11 (3) was negatived by all the authorities. He was allowed recovery solely ob the ground of bona fide requirement to re-construct the building. 10. The 2nd respondent approached the Rent Control Court for evicting the petitioner under S.11 (3) and 11 (4) (iv) of the Act. His claim under S.11 (3) was negatived by all the authorities. He was allowed recovery solely ob the ground of bona fide requirement to re-construct the building. That right was given to him subject to the provisions contained in S.11(4)(iv)of the Act. That is. the 2nd respondent was granted recovery of the building subject to the petitioner's right to have the re-constructed building allotted to him with the liability to pay its fair rent. The Division Bench while disposing of the C.R.Ps. 787 and 1078 of 1971 observed: "We also give the landlord time for six months to reconstruct the building after recovery of possession of the building." This time limit was fixed by this court to see that the tenant evicted from the premises should not be kept away indefinitely. After having obtained the possession of the building with the liability to put back the petitioner into possession. he had moved the Government to get Ext.P4 notification. The attempt on the part of the 2nd respondent was to ignore the mandate of the statute and the directions given by this court. 11. Reconstruction of the building was completed on 22-11-1973. The 2nd respondent occupied the entire building. The petitioner moved the Rent Control Court for getting possession of the reconstructed building. His application was rejected. The appellate authority and the revisional authority granted his prayer. The 2nd respondent took up the matter before this court in C.R.P. No. 1177 of 1982. After Ext.P4 Notification. he got that C.R.P. dismissed as not pressed. 12. In Madan Mohan Pathak & Another v. Union of India and Others (1978 (2) S.C.C. 50). a Bench consisting of seven judges considered the impact of Life Insurance Corporation (Modification of Settlement) Act. 1976. cd decision rendered by the High Court of Calcutta Beg. C.J.. in his concurring judgment observed: "Even if S.3 of the Act seeks to take away the basis of the judgment of the Calcutta High Court. without mentioning it. by enacting what may appear to be a law. yet. I think that. where the rights of the citizen against the State are concerned. we should adopt an interpretation which upholds those rights. Therefore. without mentioning it. by enacting what may appear to be a law. yet. I think that. where the rights of the citizen against the State are concerned. we should adopt an interpretation which upholds those rights. Therefore. according to the Interpretation I prefer to adopt the rights which had passed into those embodied in a judgment and became the basis of a mandamus from the High Court could not be taken away in this indirect fashion." This observation is is consonant; with the judgment delivered by Bhagwati. J.. on behalf of himself. Krishna Iyer and Desai. JJ. It applies to the facts before me. The rights of the petitioner to get possession of the reconstructed building has been recognised by the authorities under the Act. That decision baa not been interfered with by this court eventhough the 2nd respondent sought to challenge it. by filing C. R. P. No. 1177 of 1982. Thus the petitioner secured a light to get possession of the building. That right is sought to be interfered with by Ext. P4 in as indirect fashion. It cannot be allowed. 13. The Madras Buildings (Lease and Rent Control) Act. 1949. contains a provision similar to that in S.25(1) of the Kerala Act. Vires of that Section came up for consideration before a Constitution Bench of the Supreme Court in P. J. Irani v. State of Madras and another (A. I. R.1961 S. C. 1731). While upholding the validity of the Section. Their Lordships observed: "The entire basis for upholding the constitutional validity of S.13 of the Act and considering that it did not offend the equal protection of the law guaranteed by Art.14 of the Constitution was. that the discretion or the power conferred upon the Government was not unguided. uncanalised or arbitrary but that it bad to be exercised in accordance with the policy and object of the enactment gatherable from the preamble as well as its operative provisions. The order itself might on its face have shown that it conformed to this requirement is which event it would have been for the party challenging the validily of the order to establish to the satisfaction of the Court that it was malafide or bad been passed on grounds not contemplated by or extraneous to the object and purpose of the enactment or the principles which should have governed the exercise of the power. For instance if the exemption had been in favour of a particular class of buildings. say those belonging to charities religious or secular the classification would have been apparent in the very order of exemption. Where. however. the exemption granted is not of any class of buildings which would ex facie disclose a classification. but the exemption is of a specified building owned by A or in which B is a tenant. then primafacie it would be discriminatory and when the legality of the order is challenged. its intra vires character could be sustained only by disclosing the reasons which led to the passing of the order." The reasons for issuing Ext. P4. as seen from the notification itself are that the establishment of the 2nd respondent is a registered small scale industrial unit. that according to its scheme if any space in the building is 1st out. it will affect the scope of their operation and result in retrenchment of labourers. This reason. to say the least. is no other sufficient cause contemplated under S.25(1). All small scale industrial units are not to be given exemption is respect of the buildings owned or possessed by it. The reason that if its space in the building is let out. it will affect the scope of their operation and result in retrenchment of labourers is so vague that no reliance can be placed on it. There is no material before court to see whether the above statements are factually correct or not. No data is available. Apart from the assertion made by the 2nd respondent in his application before the Government. no material was placed before the Government to substantiate the observations made in the explanatory note published along with Ext.P4 notification. 14. In S. Kandaswamy Chettiar v. State of Tamil Nadu and another (1985(1) S.C.C.290). Their Lordships had to consider the validity of the notification granting exemption to the buildings owned by Public Religious and Charitable Endowments and Trust from the provisions of the Tamil Nadu Act. Their Lordships observed that the power to grant exemption must be exercised in accordance with the policy and object of the enactment gatherable from the Preamble as well as its operative provisions and without subverting the general purposes of the enactment. The Act with which I am concerned. inter alia. Their Lordships observed that the power to grant exemption must be exercised in accordance with the policy and object of the enactment gatherable from the Preamble as well as its operative provisions and without subverting the general purposes of the enactment. The Act with which I am concerned. inter alia. is meant for giving protection to tenants from unnecessary harassments at the hands of hostile landlords. In the instant case the 2nd respondent wanted recovery on the ground of bona fide need for own occupation. This claim was denied by all authorities. Thereafter the Government cannot be allowed to take a decision that the 2nd respondent should be allowed to use the entire building for his own use. Ext. P4 has indirectly interfered with the orders of courts declining eviction under S 11(3) of the Act. The action of the Government is illegal. It has gone to defeat the very policy of the Act. The purpose of issuing Ext. P4 was only to deny the petitioner the rights accrued to him under the Act and by virtue of the various orders passed by the authorities under the Act and by this court. Such a subversive action cannot be upheld by the court. 15. The learned Counsel appearing for the 2nd respondent relies on the decision in State of Kerala v. Vijayan (1978 K. L. T. 342) in support of Ext. P4 notification. In the said decision. the Division Bench upheld the notification giving exemption to a building constructed by the Cochin Devaswom Board in the land belonging to it. Their Lordships observed that the act of granting exemption under S.25(1) is a legislative act. and that meticulous weighing of the evidence and counter evidence to be followed by a detailed enquiry is unnecessary in deciding whether the Government acted in accordance with law. The Division Bench observed: "An overall 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." In this view the court upheld the notification granting exemption. The said decision has no application to the facts before me. 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." In this view the court upheld the notification granting exemption. The said decision has no application to the facts before me. The reasonings adopted by this court for upholding the notification in relation to the buildings belonging to the Devaswom Board cannot be pressed into service in the case of a building owned by a private individual. As observed by the Constitution Bench of the Supreme Court in P. J. Irani v. State of Madras & another (A.I.R.1961 S.C.1731). if the exemption is of a specified building owned by an individual. it must be supported by the Government by disclosing the reasons which led to the passing of the order and the court will be justified in looking into those reasons. No such reason has been put forward by Government to support Ext. P4. The files would shew that exemption was not granted. for any public interest. But in the counter affidavit filed in court. the notification is sought to be supported on the ground of public interest. This inconsistent stand goes a long way to show that the notification was issued not for any valid reason. It has gone only to defeat the purpose of the Act. 16. By Ext. P4 notification. the petitioner has been singled out by deying him the rights which accrued to him under the 3rd proviso to S.11(4)(iv) of the Act. The petitioner is even deprived of the right to complain against the said denial. He is visited with disability which a person similarly situated is not subjected to. Viewed in this manner it has to be held that Ext. P4 notification is violative of the principles contained in Art.14 of the Constitution as well. 17. In view of what has been stated above. I hold that the Government acted beyond its power in issuing Ext. P4 notification. It has to be struck down. I do so. The result. therefore. is the original petition is allowed. Ext. P4 notification is quashed. No costs.