JOSEPH JOHN Vs. STATE OF KERALA

JUDGEMENT

(1.) 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 R.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 bearing, counsel for the petitioner further submitted that R.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 R.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 S.238 and 367 of the Kerala Municipal Corporations Act. R.4(3) of the Kerala Municipal Building Rules is as follows:

(3.) It was argued that R.4(3) of the Kerala Municipal Building Rules vests uncanalised, arbitrary power in the Government and so it violates Art.14 of the Constitution of India. There is no force in this submission. It should be noticed that under R.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 R.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 R.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. 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 ( AIR 1961 SC 1731 ) at page 1737 lay down the above principles.