M. RAMASWAMI ASARI Vs. THE STATE OF MADRAS, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HOME DEPT. AND ANOTHER

JUDGEMENT

(1.) This petition by a tenant is to quash an order of the first respondent dated 16th April 1964, and made under S. 29 of the Madras Buildings (Lease and Rent Control) Act, 1960, exempting premises No. 128, South Avani Moola St., Madurai, from the provisions of S. 10 of the Act. The petitioner has been in occupation of the premises since June 1952. There is no dispute that the premises belong to the second respondent. At the time the premises was let out to the petitioner, the second respondent was a minor. On his attainment of the age of majority and his marriage, he applied to the Government for exemption on the ground that he had no other house of his own at Madurai and was actually residing in a rented premises. After asking for the explanation of the petitioner, the Government made the impugned order being satisfied that this is a case which justified grant of exemption. Mr. Rajarama Aiyar for the petitioner contends that the Government in making the order was misled by its view that the premises were both residential and non -residential and that in such a case no remedy was open to the petitioner under the provisions of the Act, Learned Counsel relies on Dakshinamurthi v/s. Thulja Bai, 65 L.W. 242, and contends that where it is not shown that the purpose of the tenancy is predominantly for one or other purpose, a petition for eviction would lie in any event. The penultimate paragraph of that judgment no doubt supports the contention. There is no finding by the Government in the instant case as to the predominant purpose of the tenancy.

(2.) But, in my view, that does not in any way vitiate the impugned order. The power of the Government under S. 29 of the Act is a very wide power and its exercise is not controlled by any other provision in the Act, as will be apparent from the opening words of the section. The purpose of this power is to soften the rigour or hardship in the working of the Act which is an emergency legislation. It follows, therefore, that the power may properly and justly be used for that purpose. Whether the purpose exists or not will be a matter for decision in each case in the light of the particular facts. An exemption being in the very nature an exception to the general protection provided under the Act, it may prima facie be discriminatory and, therefore, each order under S. 29 of the Act may call for examination. Ex facie, the order therefore must appear that it has been made for justifiable purposes. Summing up the nature of the power, this Court in Pannalal Jagannath Prasad Gupta v/s. State of Madras, 74 L.W. 604, observed:

(3.) I continue to hold the same view. Jagannath Prasad Gupta v/s. State of Madras : : (1963) 1 M.L.J. 415 = 76 L.W. 223, has also concurred with it.