STATE OF KERALA Vs. VIJAYAN

JUDGEMENT

(1.) THESE appeals by the State and by the Cochin Devaswom board (referred to as the Board) should be allowed and the judgment of the learned judge set aside. W. A. Nos. 199 and 201 of 1977 are by the State and by (he Board respectively, against the decision of a learned judge in O. P. No. 2392 of 1973; and W. A No 246 of 1977 is by the Board against the judgment of the same learned judge in O. P. No. 1025 of 1975. The writ petitions challenged the validity of Ext. P1 notification dated 17 111966 issued under S. 25 of the kerala Buildings (Lease and Rent Control) Act, 1965 exempting the buildings in devaswom lands in East Pallithanam (Trichur), constructed by the Cochin devaswom Board or out of its funds, from all the provisions of the said Act. Ext. P3 is a copy of the Memorandum by the inmates of the Devaswom buildings in east Pallithanam to the Minister for Revenue. This was supplemented by Exts. P5 and P7. The memorandum was rejected by Ext. P8 dated 22 51973. Against that a further revision Ext. P9 was filed which was rejected by Ext. P10. The writ petition was to quash Exts. P1, P8 and P10.

(2.) . S. 25 (1) of the Buildings (Lease and Rent Control)Act, reads: "25. Exemptions: (I) 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. " And Ext. P1 notification, which is impugned, is as follows: "public WORKS DEPARTMENT (BUILDINGS) Notification No. 44929/b-2/66/pw dated, Trivandrum, 17th November '66 In exercise of the powers conferred by S. 25 of the Kerala buildings (Lease and Rent Control) Act, 1965. (Act 2 of 1965) the Government of kerala hereby exempt the buildings in the Devaswom Lands in Eastern Pallithanam (Trichur) constructed by the Cochin Devaswom Board out of its funds, from all the provisions of the said Act. By order of the Governor P. U. John, Deputy secretary" The notification was attacked on the ground that it did not either allege or disclose any public interest, nor, any reasons for the exemption; and that such reasons as were later given by the Government in support of the notification, were manifestly unsustainable and wrong. In Para. 7 of the additional Counter Affidavit dated 213 1975, the Government disclosed the reasons for the exemption as follows: 7. The 2nd respondent has built a few houses in Eastern pallithanam belonging to the'vadakkunnatha' temple of the Devaswom Board in trichur Town with its own funds. These bouses were constructed with a view to protect the flower gardens and for residential purpose of Devaswom employees. These houses have been allotted to some of the Devaswom employees and other devout Hindus who according to the Board would not do anything affecting the sanctity of the area. If the provisions of the Kerala Buildings Lease and Rent control Act are made applicable to the buildings in Pallithanam by allotment of the buildings under the provisions of the said Act they may go to non-Hindus and thereby the sacred precincts of the Vadakkunnatha temple and its sanctity may be affected and the sentiment of the Hindu Public will be wounded. In effect such a contingency may go against the spirit of the provisions of the hindu Religious Institution Act because the funds and property of Hindu Temples are to be used for the benefit and betterment of the Hindu Community. Above all the Travancore Devaswom Board has been exempted from the provisions of Act 2 of 1965". This was traversed in the Reply Affidavit dated 22 61975 of the petitioner, in Para. 3 of which, it was stated that there was no flower garden at all maintained by the Devaswom in the Colony of Eastern Pallithanam houses; that the Flower Gardens referred to in the counter affidavit might be the gardens in Thekkinkad Maidan known as the Children's Park maintained by the trichur Municipality and not by the Board; that the same was nearly 400 yards away from the Eastern Pallithanam Houses; that there are a few flower plants in front of the office buildings of the Devaswom Board; that the buildings themselves have been largely occupied by persons who are not employees of the devaswom; that the Eastern Pallithanam Colony is far away from the vadakkunnatba temple and its precincts; that the Devaswom Board itself had inducted non-Hindus into some of the buildings; that some of the buildings in the Eastern Pallithanam Colony are non-residential in one of which, a Christian firm A. P. Anthony and Company, is running a liquor shop, and in which the previous tenant was running a Hotel, open to persons of all religious sects and communities; that even as late as 1975 another building in Eastern Patlithanam was let by the Board to a Christian Shri. Poison who is running a business in tyres and other goods under the style "stanes Dealer and love-bird agencies"; that Christians are residing on the opposite side of the Public road which the Eastern Pallithanam buildings face; and that adjacent to the devaswom Board buildings there is a Petrol Bunk run by a Christian firm, and hotels and restaurants including non-vegetarian restaurants run by non-Hindus. In these circumstances, it was contended that the alleged reason to preserve the sanctity of the surroundings and to prevent the possession of the buildings getting into the bands of non-Hindus was manifestly unacceptable. This argument found favour with the learned judge who held that Ext. P1 disclosed no reasons, and that the reasons disclosed in the counter affidavit were unacceptable in view of the specific averments in the reply affidavit of the petitioner which remained unanswered. . .

(3.) COUNSEL for the Respondent cited the decision in Irani v. The State of Madras (AIR. 1961 SC. 1731 ). There, S. 13 of the Madras buildings Lease and Rent Control Act, allowing Government to exempt any building from the provisions of the Act (without even any limitation of public interest as in the Kerala Act) was challenged as violative of Art. 14. The Section was upheld as constitutionally valid, (vide para 13); but it was ruled that the validity of an individual grant of exemption was open to examination. Proceeding to examine the case of exemption granted, it was ruled that the four reasons disclosed for granting the exemption were extraneous and irrelevant to the policy of the Act, and hence the exemption cannot be sustained (vide para 17 ). The decision has no application. The reasons here given cannot be said to be extraneous and irrelevant.