The King Cathedral Vs. John Ancheril & Anr  Insc 334 (24 July 2001)
Babu & Shivaraj V. Patil Rajendra Babu, J. :
C.A. Nos. 5781/2000, 6375/2000, 6376/2000, 6378/2000, 6380/2000, 6381/2000,
6372/2000,6374/2000,6382/2000, 6373/2000 and C.A. No4456/2001 (arising out of
S.L.P. (C) No. 11259/2000)]
J U D
G M E N T
5781/2000, 6375/2000, 6376/2000, 6378/ 2000, 6380/2000, 6381/2000, 6372/2000,
6374/2000 and C.A. No.4456/2001 (arising out of S.L.P. (C) No. 11259/2000)
granted in S.L.P. (C) No. 11259/2000.
notifications were issued under Section 25 of the Kerala Buildings (Lease and
Rent Control) Act, 1965 (for short the Act) one S.R.O. No. 435/92 issued on
7.3.92 published in the Kerala Gazette on 7.4.92, which exempted in public
interest the buildings of all Churches/Mosques of all the minority religions
from the provisions of Sections 4, 5, 7, 8, 11 and 13 of the Act and another
notification S.R.O.No. 769/96 was published exempting buildings of all Dioceses,
Arch- dioceses, Monasteries, Convents, Wakfs and Madarsas also from the
provisions of Sections 4, 5, 7, 8, 11 and 13 of the Act and amended earlier
notification. A batch of writ petitions was filed in the High Court challenging
the validity of these notifications. The High Court held that there is no
application of mind by the Government in issuing the impugned notifications
resulting in arbitrary exercise of the discretionary powers conferred upon a
statutory authority and there is no material before the Government to exercise
such exemption. In reaching this conclusion, the High Court took into
consideration that the buildings of Churches or Mosques are commercially used
and, therefore, granting of exemption under Section 25 of the Act on the basis of
ownership is not right. The High Court also proceeded to consider the scope of
secular nature of the Constitution and observed that conferment of power upon
the Government to grant such blanket exemptions would defeat the very power
conferred on it.
counter affidavit the State supported the exemptions on the basis of the law
declared by this Court. This Court in P.J. Irani v. State of Madras, 1962 (2)
SCR 169, held that a similar power vested under the Madras Buildings (Lease and
Rent Control) Act, 1949 to exempt any building from the provisions of the
Madras Act is not violative of Article 14 of the Constitution by holding that
the charitable and religious trusts or endowments fall into a separate class .
In S. Kandaswamy Chettiar v.State of Tamil Nadu & Anr., 1985 (1) SCC 290,
this Court upheld grant of total exemption in respect of buildings belonging to
public trusts, religious or charitable in nature, on the basis that such trusts
constituted a well recognised distinct group inasmuch they not only serve
public purpose, but the disbursement of their income is governed by the objects
with which they are created On an earlier occasion in Jayakaran v. Kerala
Health R&W Society, 1994 (1) KLT 24, the High Court held as follows : -
Grant of exemption in favour of charitable bodies like the petitioner must be
held to be in public interest. Even though no reasons are stated in the
notification granting exemption it is enough if it is stated in the
counter-affidavit. The notification granting exemption is undisputably being in
public interest, the same is not open to challenge on the ground urged in the
High Court after referring to the said decision held that the exercise of
discretionary power is subject to test of reasonableness but observed that by
one stroke the entire buildings owned by minority religions in the State have
been taken away from the purview of the Act without being supported by any
material enabling the Government to consider the issue in a legal and proper
manner uninfluenced by any extraneous considerations or acting under the
dictation of a third party.
High Court compared the provisions under the Tamil Nadu Buildings (Lease and
Rent Control) Act, 1960 considered in S. Kandaswamy Chettiar case (supra) and
the provisions of the Act under consideration and drew a distinct between the
two provisions. The relevant portions of the said two Acts are as follows :
29 of the Tamil Nadu Act Section 25 of the Act 29. Exemption Notwithstanding
any thing contained in this Act, the Government may, subject to such conditions
as they deem fit, by notification, exempt any building or class of buildings
from all or any of the provisions of this Act.
anything contained in this Act, the Government may, in public interest or for
any other sufficient cause, by notification in the Gazette, exempt any of the
provisions of the Act.
High Court noticed that the power of exemption under Section 29 of the Tamil Nadu
Act is general in nature, while such power could be exercised under the Act
only in public interest or for any other sufficient cause. But, we find that
distinction sought to be made by the High Court on the basis of language of
these two provisions is not well founded. The Government may grant exemption
and while granting exemption even under the Tamil Nadu Act it has got to bear
in mind that it should be in public interest or for any other sufficient cause
and it cannot be whimsical or arbitrary exercise of these powers as such action
could attract the wrath of Article 14 of the Constitution. Therefore,
distinction sought to be made by the High Court between these two provisions is
not of much materiality.
law had been stated by this Court to the effect that public religious or
charitable endowments or trusts constitute a well recognised group which serves
not only public purposes, but disbursement of their income is governed by the
objects with which they are created and buildings belonging to such endowments
or trusts clearly fall into a class distinct from the buildings owned by
private landlords. It is in respect of three areas a regulation would be made
under the Act, as has been done in other similar enactments and these areas are
(i) with respect to regulation of lease of buildings (residential or
non-residential); (ii) control of rent of such buildings and (iii) control of
eviction of tenants from such buildings. A public trust, as has been held in S.
Kandaswamy Chettiar case (supra), is not likely to unreasonably act either in
the matter of enhancement of rent or eviction of tenants being institutions of
religion or charity. On that basis, this Court upheld the validity of the
exemption granted under the Tamil Nadu Act in favour of such trust or
present case, the contention has been specifically put forth that the
appellants fall into that very category which came up for consideration before
this Court in S. Kandaswamy Chettiar case (supra).
no distinction can be made between that class of owners of the buildings in that
case and in the present case. We do not understand as to what other material
was required by the Court in a matter of this nature if the contention put
forth before this Court is not that Churches or Mosques, Dioceses,
Arch-dioceses, Monasteries, Convents, Wakfs and Madarsas are not religious and
charitable in nature.
Rao, the learned counsel appearing for the contesting respondents, submitted
that there is total non-application of mind by the Government in the matter of
grant of exemption and the guidelines indicated in S. Kandaswamy Chettiar case
(supra) have not been followed in the present case and, therefore, the
exemption should not have been granted in the present case. In S. Kandaswamy Chettiar
case (supra) an affidavit had been filed as to the lower rents that was being
paid and the tenants were exploiting the situation and brought the charitable
institutions to a situation of helplessness and that position not having been
challenged the Court made those orders. If we bear in mind the fact that the
purpose of the Act is apparently to prevent unreasonable eviction and also to
control rent and if the trustees of religious and public charities are given
freedom to charge normal market rent with the further freedom to evict the
tenants for not paying such market rent, the result would be unjust and causes
hardship to them.
apprehension, by itself, is not sufficient. There is no material on record to
show that in any of these cases the landlords would resort to such a course of
action. On the other hand, if the building belonging to such public trust or
religious institution is exempt from Act, the purpose of the trust could be
carried out much better is quite clear. If that is the object with which the
Government has granted exemption, we do not think, there is any reason to quash
the notifications impugned before the High Court.
High Court has unnecessarily gone at tangent on various constitutional and
administrative law questions which are wholly unnecessary to be decided in the present
case. The High Court ought to have riveted its attention only to the aspect
whether there was due application of mind to the issue of notifications in
question in terms of the provisions of the Act and, if that aspect was
satisfied, no further questions arose for consideration in the present case and
thus the observations made by the High Court, in our view with respect, are
argument is sought to be raised on the basis of ownership of property that
there should not have been a distinction as is being made in the present case.
That was the very basis of distinction made in case of statutory bodies like
the Housing Board, local authorities which was noticed in the Jayakaran v. Kerala
Health R & W Society case (supra) or registered Wakfs which was considered
in Lakshmanan v. Mohamood, 1992 (1) KLT 85 (FB). When such bodies or
institutions falling to a distinct class by themselves and exemption granted to
them would serve a public purpose, namely, to carry out the objects of the
trust or the endowment or religious activity in a broad sense, we do not think
that the fine distinction sought to be made by the High Court in this regard is
is placed before us on the decision in Rohtas Industries Ltd. v. S.D. Agarwal
& Anr., 1969 (3) SCR 108, to contend that if there is no material at all
upon which the authority could form the requisite opinion, the Court may infer
that the authority passed the order without applying its mind to the relevant
facts. But, in the present case, we should look at the fact that this Court had
in S. Kandaswamy Chettiar case (supra) explained the scope of the provisions
similar to Section 25 of the Act and the parameters within which such power
could be exercised.
the Kerala High Court in Jayakaran v. Kerala Health R & W Society case
(supra) had upheld the notification as being in public interest even in the
absence of any reasons being stated in the notification. Again, the same Court
had upheld a similar notification in relation to property belonging to Devaswom
Board in State of Kerala v. Vijayan, 1978 KLT 342, and to a wakf in Lakshmanan
v. Mohamood case (supra). Therefore, we think that the decision of the High
Court has to be set aside and the notifications issued impugned in the two writ
petitions are held to be valid.
writ petitions deserve to be dismissed by allowing civil appeals.
6373/2000 and 6382/2000 In view of the orders made in Civil Appeal No.
5628/2000 and connected matters, these civil appeals shall stand dismissed.
RAJENDRA BABU ] J.
SHIVARAJ V. PATIL ] JULY 24, 2001.