JAYAKARAN Vs. KERALA HEALTH R AND W SOCIETY

JUDGEMENT

(1.) In this Original Petition the petitioner prays for the issuance of a writ of certiorari or any other appropriate writ, order or direction quashing Ext. P2 G.O.(MS)No.27/84 PW dated 17-3-1984, a notification issued by the second respondent State of Kerala in exercise of the powers conferred on it by sub-section (1) of S.25 of the Kerala Buildings (Lease & Rent) Control Act, 1965 (2 of 1965) (hereinafter referred to as 'the Act') exempting in public interest the buildings owned by the first respondent. The main grounds of attack against Ext. P2 is that it is vitiated by errors apparent on the face of the record and violation of the principles of natural justice.

(2.) Having heard learned counsel for the petitioner and learned counsel appearing for the respondents, I am of the view that the petitioner is not entitled to succeed in this Original petition. Learned counsel appearing for the first respondent brought to my notice the decision of the Supreme Court reported in K. Kandaswami Chettiar v. State of T.N. ( AIR 1985 SC 257 ) and a host of other decisions including the decisions of this court reported in Shylaja Manoharlal v. State of Kerala ( 1987 (2) KLT 515 ), Jacob Kurien v. Kerala State Housing Board & others ( 1987 (2) KLT 889 ) and State of Kerala v. Vijayan ( 1978 KLT 342 ) bearing on the subject which says that the act of granting exemption under S.25(1) of the Act is a legislative act and such an act of exemption need not be by an order disclosing reasons. Even if reasons are needed, they are found in the counter affidavit filed by the first respondent wherein it is stated that the first respondent is a charitable institution whose function is "to provide rooms in hospitals to the public on a no profit basis." Grant of exemption in favour of charitable bodies like the petitioner must be held to be in public interest. Even though no reasons are stated in the notification granting exemption, it is enough if it is stated in the counter affidavit. The notification granting exemption is undisputably being in public interest, the same is not open to challenge on the ground urged in the Original Petition.

(3.) Before closing, I would like to sound a word of caution. I shall not be understood as having held that whenever and to whomsoever the Government grants exemption in exercise of the power conferred on it under S.25 of the Act the same is immune from attack on the ground that the power exercised is legislative in character. It is quite possible to argue that the power conferred on the Government under S.25 of the Act is to exercise a particular discretionary power which is subject to the test of reasonableness. (See in this connection the decision of the Supreme Court reported in Indian Express Newspaper (Bombay) Pvt. Ltd. & others v. Union of India, etc. ( AIR 1986 SC 515 ). Now, is there any yardstick to decide the reasonableness of a discretionary power In his often quoted celebrated judgment Lord Greene M.R. laid down the following proposition which has become known as the Wednesbury Principle:-