BALAN Vs. GOPALAN NAIR

JUDGEMENT

(1.) THE petitioner who is a landlord filed an application for evicting the tenant, the 1st respondent, before the Rent Control Court, on the ground that he bona fide needed the building for his own occupation. THE Rent Control Court dismissed the application finding that the petitioner did not establish the bona fide need. An appeal was preferred to the Subordinate Judge and he held that under S. 11 (xi) (1) of the kerala Buildings (Lease and Rent Control) Act, the Government have published a notification and that under the notification the tenant who is an employee of the State Government was exempt from eviction, and therefore dismissed the appeal (Ext P-1 ). THE petitioner filed a revision from Ext. P-1 and the revisional authority confirmed Ext. P-1 order. Ext. P2 is a copy of that order.

(2.) THESE two orders are being challenged on the ground that the notification published by the Government under S. 11 (xi ) (1) is unconstitutional and should have been ignored by the authorities. S. 11 (xi) (1) is as follows: "notwithstanding anything contained in sub-section (1) (10) no order for eviction for putting the land-lord in possession shall be passed against any tenant who is engaged in any employment, or class of employment notified by the Government as an essential service for the purpose of this sub-section, unless the landlord is himself engaged in any employment or class of employment which has been so notified, and the landlord required the building for his own occupation. " On 16-12-1961 the Government published the notification. The material portion of that notification reads as follows: "the Government of Kerala hereby notify that the following tenants shall be deemed to be engaged in essential service for the purposes of the said section, viz. , Employees of the State government. " Mr. Krishna Iyer, appearing for the petitioner, submitted that the subsection does not lay down any criteria for deciding the question which are essential services, and therefore the sub-section violates the provisions of Art. 14 of the Constitution. It was submitted by him that there is no indication in the subsection about the principles to be followed when making a notification under it, for designating an employment or class of employment as essential service and that since there is no legislative guidance to control the Government in making the classification whether an employment or class of employment is an essential service or not, the power to issue the notification is uncanalised and is liable to be abused. It was also submitted that the government did not bestow that intelligent care which it ought to have bestowed upon the question when it decided that all the employees of the Government service belong to the essential service; and as there was no intelligent decision of the question whether all the employees of the Government belong to the essential service, the notification is bad. I think the argument is not entitled to much weight. It is for the Government to decide whether an employment or class of employment is an essential service for the purpose of the said sub-section. The decision of the Government that an employment or a class of employment is essential service is binding upon this court. Probably the only matter which this Court may enquire into is whether there was a bona fide decision by the Government after taking into consideration all the aspects of the question. I cannot say that the decision of the Government that all the employees of the Government belong to essential service for the purpose of the sub-section was so unreasonable as to characterise that decision as arbitrary or discriminatory. The ultimate decision whether an employment or a class of employment is an essential service for the purpose of the section must rest with the Government and that decision, I think, would not be open to challenge in this Court unless it is shown that the decision was arrived at mala fide or in entire disregard of all the principles of reasonable classification. I therefore overrule the contention that the notification is bad, for the reason that the sub-section violates Art. 14 of the Constitution.

(3.) THE last argument was that the notification was published only on 16-12-1961 viz. after the decision of the case by the Rent Control Court and therefore it should not have been taken note of by the appellate or the revisional authority. THEre are a number of rulings of this Court wherein it has been held that it is open to an appellate or revisional authority to take into account subsequent changes in legislation in moulding the relief to be granted. It is only necessary to cite the decision in 1961 KLT. 114 and 1959 KLT. 361 for the purpose. I therefore overrule this contention also. In the result there is no merit in this writ petition and i dismiss it without any order as to costs. Dismissed.