V J JOB Vs. STATE OF KERALA

JUDGEMENT

(1.) IN all these writ petitions tenants of buildings owned by certain minority religions figure as petitioners. The Government of Kerala, in exercise of the powers conferred by S. 25 (1) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (Act 2 of 1965) (for short 'the Act') issued a notification as per G. O. (MS) No. 14/92/hsg dated 07-03-1992 exempting in public interest the buildings of churches, mosques, of all the minority religions from the provisions of S. 4, 5, 7, 8, 11 and 13 of the Act. Subsequently, the aforesaid notification issued in 1992 was amended by Notification dated 30-10-1996 vide SRO No. 769/96. The effect of the amendment is that while the 1992 Notification exempted buildings of all churches/mosques of all minority religions from the provisions of the Act referred to therein, the latter Notification of 1996 widened the scope of exemption by exempting the buildings of all Dioceses, Arch-dioceses, Monastries, Convents, Wakfs and Madrassas in the State also from the purview of the Act. For the sake of convenience and easy reference S. 25 of the Act and the two exemption notifications referred to above are reproduced as follows: " 25. Exemptions - (1) 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. (2) Without prejudice to the generality of the foregoing power, the Government may, by notification in the Gazette, exempt from the provisions of S. 4, 5, 6, 7 and 8 any class of buildings the construction of which has begun after the commencement of this Act, and in respect of which, (a) the assessment to property tax or house tax by a local authority is based on a monthly rent of fifty rupees or more; or (b) there has been no such assessment to property tax or house tax by a local authority and the monthly rent will be fifty rupees or more, having regard to prevailing rates of rent in the locality for similar accommodation similar circumstances and the Accommodation Controller certifies that rent of the building will be fifty rupees or more. Explanation: - For the purposes of this sub-section, construction shall not include reconditioning or renovation or partial reconstruction. " " 92. Notification: Buildings of all Churches/mosques of Minority. S. R. O. No. 435/92. IN exercise of the powers conferred by sub-s. (1) of S. 25 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (2 of 1965), the Government of Kerala hereby exempt, in public interest, the buildings of all Churches/mosques of all the minority religions from the provisions of S. 4, 5, 7, 8, 11 and 13 of the said Act. G. O. (Ms) No. 14/92/hsg dated 7-3-92 in KG No. 14 dated 7-4-92. " " 96 Notification: GOVERNMENT OF KERALA HOUSING DEPARTMENt NOTIFICATIOn GO (Ms) No. 40/96/hsg Thiruvananthapuram, 30th October 1996. S. R. O. No. 769/96. IN exercise of the powers conferred by sub-s. (1) of S. 25 of the Kerala Buildings (Lease and Rent Control) Act (2 of 1965), the Government of Kerala hereby exempt building of all Dioceses, Arch-dioceses, Monastries, Convents, Wakfs and Madrassas also from the provisions of S. 4, 5, 7, 8, 11 and 13 of the Kerala Buildings (L. ease and Rent Control) Act, 1965 and consequently make the following amendment to the notification issued in G. O. (Ms) No. 14/92/hsg dated 7th March 1992 in the Kerala Gazette No. 14 dated 7th April, 1992, namely: Amendment IN the said notification after the words "minority religions" and before the words "from the provisions," the words "and buildings of all dioceses. Arch-dioceses Monastries. Convents. Wakfs and Madrassas in the State" shall be interested. By Order of the Governor, MINNIE MATHEW Secretary to Government. "

(2.) THE challenge in all these writ petitions is directed against the exemption notification (s) issued by the Government in exercise of the power under S. 25 (1) of the Act. THE grounds of attack against the exemption notifications are that there is total non-application of mind by the Government in issuing the exemption notification which amounts to arbitrary exercise of discretionary power by a statutory authority, that there was absolutely no material before the Government enabling it to consider the question of exemption in a legal and unbiassed manner thereby vitiating the exemption notification as violative of Art. 14 of the Constitution of India, that it deprives the petitioners of the protection of the beneficial provisions of the Act which is available to the tenants of other buildings similarly situated, the notification cannot be said to serve any public purpose because the beneficiaries of the notification are in no way different from the landlords left out of the notification, the classification has no nexus with the object for the achievement of which the power to grant exemption has been conferred upon the Government, the exemption notification is in violation of Art. 15 (1) of the Constitution of India and the secular fabric enshrined therein etc. Per contra it was contended in justification of the exemption notification that it was issued in tune with the purpose and policy of the Act, that S. 25 of the Act confers power on the government to exempt in public interest any building or class of buildings from the provisions of the Act, the exemption notification is issued to subserve the purpose and policy of the Act, the Government has applied its mind which it is required to do before it issued the exemption notification and that the same is not in violation of the provisions of the Constitution of India or any other Law. It was also contended that the Act of granting exemption under S. 25 (1) of the Act is a legislative act and as such an act of exemption need not be by an order disclosing reasons. Reliance was also placed on the Full Bench decision of this Court in Lakshmanan v. Mohamood (1992 (1) KLT 85 (FB)) and other decisions touching on the subject.

(3.) IT is by now settled that the executive authority exercising statutory power is bound to comply with the provisions of Art. 14 of the Constitution of India, which must be deemed to be implicit in the exercise of that power. Therefore, the question arises whether the exemption notification is in -operative as violative of Art. 14 of the Constitution of India being one issued arbitrarily based on no materials, whether the classification made by the exemption notification is an unreasonable classification not based on any intelligible differentia bearing reasonable nexus with the object sought to be achieved, and whether it violates Art. 15 (1) of the Constitution of India and the secular fabric of the Constitution which is one of its basic structures. Admittedly, the exemption notification has been issued without specifying any valid reason. All that is stated in the Explanatory note to the notification is that the Government of India Minority Commission recommended that the Church properties in the State be exempted from the Act and therefore the Government is satisfied, it is necessary in public interest to exempt the buildings of all Churches/mosques of all the Minority Religions from the provisions of S. 4, 5, 7, 8, 11 and 13 of the Act, under sub-section 1 of S. 25 of the said Act. While the State Government exercises statutory power of granting exemption from the provisions of a benevolent legislation, we expect the Government to produce the files before this Court in order to enable this court to ascertain the reasons which prompted the Government to issue the exemption notification. Strangely enough, no files have been produced by the State is content with the filing of a perfunctory counter affidavit in a couple of cases unaccompanied even by a petition for adoption of the same in the connected writ petitions. Filing of such a ritualistic counter affidavit is not a substitute for production of files and it is settled that what is not contained in the files cannot be supplemented by a counter. Therefore, production of files assumes paramount importance in these batch of cases. With the issuance of rule-nisi in a writ petition seeking a writ of certiorari, the authority concerned is bound to place the files containing all relevant materials, which persuaded the authority to issue the impugned notification before the court in an attempt to convince the court that there was a bona fide exercise of power by the Government leading to the issuance of the impugned notification. Besides, the materials contained in the counter affidavit are not at all sufficient to arrive at a conclusion that there is proper application of mind by xxx the Government before it issued a blanket exemption notification in one stroke. We may at once observe that the power is issuance is an exemption notification is to be exercised sparingly and in exceptional cases based on appreciation of all relevant materials produced before it and in public interest. In State of Madhya Pradesh v. Kanhaiyalal (1970 M. P. L. J. 974) the Supreme Court clarified that the rule of thumb cannot be the basis for granting exemption by the State. IT was also clarified that any institution covered by the exemption has to allege why it has become necessary to apply for exemption and thereafter the State Government was required to apply its mind to those facts and circumstances to ascertain whether the claim for exemption was germane to the policy of the Act, as is clear from the following observation of the Supreme Court in Kanhaiyalal's case noted supra: " 4. Before we can hold in favour of the State Government, we must be satisfied that the ground of exemption was germane to the policy of the Act. In those case there is no affidavit by any officer who had anything to do with the order granting exemption. The returns filed on behalf of the State Government do not throw any light on this question. IT would appear that in granting the exemption the State applied merely a rule of thumb and issued the notification on the basis of the assertion by the Trust that the entire rental income from the property was being applied to meet the expenses of the Trust. Such a statement only allows an institution to apply for exemption under S. 3 (2 ). By itself it is not enough. Any institution covered by S. 3 (2) had to allege why it had become necessary for it to apply for exemption. IT was not the case of the Trust that they wanted to evict the tenants because they wanted the whole of the accommodation itself nor was it their plea that the income according to them was very low compared to prevailing rates of rent and that it was wholly inadequate for meeting the expenses of the Trust, If grounds like these or other relevant grounds had been alleged it would have been open to the State Government to consider the same and pass an order thereon. In our view , the State Government did not apply its mind which it was required to do under the Act before issuing a notification and the return does not disclose any ground which was germane to the purposes of the Act to support the claim for exemption. " Therefore, the mere fact that the building is owned by an institution, religious or charitable and that the whole of the income derived from the building is utilised for that institution would not enable the State Government to issue a notification granting an exemption in respect of that building. As observed by the Supreme Court these are only conditions of eligibility which enable the institution concerned to apply for exemption, but something more has to be proved or shown before the State Government for grant of exemption and any institution seeking exemption has to allege why it has become necessary for it to apply for exemption. The Supreme Court further points out the circumstances, which will enable the institutions to the grant of an exemption. These circumstances are that the institution wanted to evict the tenant because it wanted the accommodation itself or that the income from the accommodation was very low compared to prevailing rates of rent and it was wholly inadequate for meeting the expenses of the institution. Grounds like these can enable an institution to submit an application for grant of exemption under the Act. Applying the aforesaid principles to the facts of the present case it must be held that the exemption notification in question has been issued without application of mind, thereby vitiating it in its entirety. There is nothing whatsoever on record to ascertain why and how the State Government decided to grant the exemption. There is nothing on record to consider whether the condition (s) precedent necessary for granting exemption are satisfied. Since the effect of the exemption notification is to deprive the petitioners all the benefits conferred on them by the Act and to leave them to the mercy of the landlords, strong reasons were required to justify exemption. IT was also obligatory on the part of the Government to place all materials on record for consideration of this Court which obligation has not been discharged.