Sahul Hameed vs State of Tamil Nadu

K.B.N. Singh, C.J.—All these writ appeals and petitions raise . a common question regarding the validity Of. G. 0. Ms. 200 Home, Dt. 16-

8-1976 and have been heard together and are being disposed of by a common order. The said Government order which is under challenge. has

been passed by the Government in the exercise of power conferred under S. 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960

(hereinafter referred to as the Act) exempting all the buildings owned by Hindu,, Christian and Muslim religious Public Trusts and Public Charitable

Trusts from all the provisions of the said Act. Earlier to the said Government Order G. 0. Ms. No. 1998 Home dated 12-8-1974, u/s 29,

(exempting all the buildings owned by the Hindu, Christian and Muslim Religious Trusts and Charitable institutions from all the provisions of the

said Act was passed. But, in supersession of the Government Order, the impugned Government Order was passed.

Learned counsel for the appellant in W. A. No. 488 of 1981 states that the appellant is in occupation of premises- No. 540 (new door

No.""281) Triplicane High Road,'' Madras-5, on a monthly rent of Rs. 60/_ under the second respondent, who ''is the chief tenant, under. the third

respondent. Second respondent filed H. R. C. No. 1941 of .1978 in the Court of Small Causes, Madras, for eviction on the ground of wilful

default and owner''s occupation. It was dismissed as withdrawn on 12-12-1978, and thereafter the second respondent filed Ejectment Suit No.

181 of 1978 in the Court of Small Causes, Madras, stating that the building was exempted from the Provisions of the Act as per G.O.Ms. No.

1998 dt. 12-8-1974, which has been superseded by the impugned G.O.Ms. No. 2000. The suit was decreed by consent on 5-9-1980, granting 9

months'' time to vacate the premises. It is at that stage he filed W. P. No'' 6563 of 1981, which was dismissed. and in'' turn It had resulted in filing

of this writ appeal''.

Learned counsel would state that

(i) the impugned Government Order is violative of Act IS of 1960;

(ii) there is a hostile discrimination between Hindus, Muslims and-Christian on one-side and, other classes of owneys of buildings on the other;

(iii) when the object of the Act is to render protection to tenants, under the impugned Government Order, it has been rendered illusory in respect

of tenants covered by the exempted - categories;

(iv) when S. 29 is available to grant exemption wherever required, no general exemption should have been. granted, and

(v) no guidelines exist for passing of the impugned, Government - Order.

The relevant sections are S. 2(2) which defines, ""building"" as follows,

building"" means any building or hut or part of a building or hut, let or to be let separately for residential or nonresidential purposes and includes-

(a) the garden grounds and out-houses; if any, appurtenant to such building, but or part of such building or but and let or to he let along with such

building or hut.

(b) any furniture supplied by the, landlord for use in such building or hut or part of a building or hut but does not include a room in a hotel or

boarding house;

Section 2(8) defines ""tenant"", as- follows:

"" tenant"" means any person by whom. or on whose account rent is payable for a building and includes the surviving spouse, -or any son, or

daughter, or the legal representative of. a deceased tenant who-

(i) in the case of a residential building, had been living with the tenant in the building as a member of the tenant''s family up to the death of the

tenant, and

(ii) in the case of a non-residential building, had been in, continuous, association. with the tenant, for the purpose of carrying on the business, of the

tenant up to the death of the tenant and continues to carry on such business thereafter, and a person continuing in possession '' after .the termination

of the tenancy in W favour, but does not include a person placed in occupation of, a building by its tenant or a person to Whom;'' the . collection of

rents or fees in a public market,, east-stand- or slaughter-house or of rents for, shops has been farmed out or 1eased by the municipal council or a

panchayat union council or the Municipal Corporation of Madras or the Municipal Corporation of Maduri

Section 29 is as follows:-

Exemptions - notwithstanding any thing contained in this Act, the Government may, subject to such conditions as they deem ft by notification,

exempt any building or A of buildings from all or any of the provisions of this Act.

Section 30 is as follows :-

Exemption in the came of certain buildings - Nothing contained in this Act shall apply ta-

(i) any building for a period of five years from the date an which"" the construction is completed and notified to the local authority concerned; or

(ii) any residential building or part thereof occupied by any one tenant if the monthly rent paid by him in respect of that building or part exceeds

(four hundred Rupees).

Explanation- For the purposes of cl. (ii), tenant'' shall include-

(a) a person to whom the tenant has transferred his rights under the lease with the written consent of the landlord; and

(b) a sub-tenant in any case where the building or part thereof has been sublet with the written consent of the landlord or whew e the lease confers

a right to sublet.

(iii) any lease of a building under which the object of the tenant is to run the business or industry with the fixtures, machinery, furniture or other

articles belonging to the landlord and situated in such building.

illustration (1) - Where a dal mill, as such is the subject matter of the law and where the intention of the tenant is In ran the business with the

machinery is the building in witch such dal mill is loused, the Act does not apply to such building

Illustration (2) - Where the lease is of land and building together with fixture fittings, cinematograph talkie equipment, machinery and other articles

the Act does not apply to such building.

illustration (3) - Where a hotel building together, with the furniture, machinery and other article or necessary for the running of hotel business is

1eased and the tenant is to run the hotel business in such bulding the Act does not apply is such building.

The preamble to the Act is as follows :

An Act to amend and consolidate the low relating to the regulation of the leting of residential and non-residential buildings and the control of rents

of such buildings and the prevention of unreasonable eviction of tenants there from in the State of Tamil Nadu.

On the first point that the impugned Government order is violative of the Act, it is contended that. when S. 30 itself provides for certain

exempted categories, no other exemption of general nature could be granted tinder S. 29, which is intended only for Individual tenancies, Section

30 lists out categories of buildings which would not come within the scope of the Act, whereas by invoking S. 29 of the Act, an exemption is

ranted which could at any the be withdrawn, if the circumstances taken in to account for granting exemption ceases to exist or the exemption

granted is abused or applied in such manner that the of the Act is defeated. G.O.Ms. No. """" an being implemented, in course of time it was brought

to the n0tioe Of the Government that consequent on issue of the said Government Order complaints regarding demand for exorbitant rent by

religious trusts and charitable institutions were received from. the tenants Of Privates trusts. It is only thereafter, an constituting that rents are not

fixed or increased arbitrarily and whenever required done in a fair manner, the impugned Government Order was Passed. This was done in respect

of as well as recognized distinct group with the avowed object; at enabling temples, religious trusts and public charitables to realize reasonable rent

or income from their property with freedom to bargain the terms of lease. Therefore, when by passing such Government Order it enabled certain

categories to be excluded or to be included. whenever necessary. dependent upon changing circumstances and the requirements of such classes of

owners of buildings, merely because under the Act certain categories haw been exempted under S. 30. it would not, mean that under S. 29, the

impugned Government order cannot be passed. when S. 29 states that notwitbstan1dinj anything contained i7i the Act, Government could exempt

any building or class of building from all or any of the Provision of the Act, such a power having been invoked the contention that The impugned

Government order, is violative of the Act, fails.

As for the second contention that there is a hostile discrimination, in B.S. Perumal Chetti and Brothers and Another Vs. The State and Others, .

a Division Bench of this Court has already held that taking into account the state of affairs in the State of Tamil Nadu, a classification made only

with regard to 1T:ndu, Christian and Muslim legions trusts and charitable institutions cannot be treated as discriminatory. No better ground had

been placed to differ from the conclusion arrived at therein, and hence the classification, as made, constitutes a we)) recognised distinct group

which is in need of deriving legitimate income by wary of rent, for the buildings owned by them, so that they we able to carry, out the endowment

and other objects to be fully and adequately carried out for the benefit of general public.

As for preamble, the main intention. of the Act is :

(i) to, regulate letting of residential and non-residential buildings.

(ii) to control rent* of such buildings; and

(iii) to prevent unreasonable eviction ad tenants there from

It is strenuously p4eaded that, when, there are several provisions in the Act, which are intended to prefect tenants by granting exemption to a class

of buildings, the main and laudable am had became illusory Learned Advocate-General relies upon the floowing passage in P. J.hani v. State of

Madras (AIR 1961 SC which is to the effect (at pr. 1738-39) :-

For instance if the exemption had been in favour of a particular class of buildings those belonging to charities- religious or secular - the

classification would have been apparent in the very order. of exemption Where, however, the exemption granted is not of any class of bu?

3&179% which would exfacie, disclose"" a classification, but the exemption is of a specified building! Owned by A, or hot which JB is a tenant,

then prima facie it would be discriminatory and whew, the legality of the order is challenged, its intra vires character could be sustained only by

disclosing the reasons which led to the passing of the order. Dealing with the validity of S. 13 of earlier Act 25 of 1949, which is identical to & ''29

of the present Act, the Supreme Court having held to this effect, he justifiably pleads that the inspiration had come only subsequent to this decision,

and when such a classification alone had been effected by invoking S. 29 of the Act, it cannot any longer be pleaded that the impugned,

Government Order defeats the objects to be achieved under the Act.

In that light of what has been held by the Supreme Court to the effect that if the exemption is in favour Of buildings belong in to religious or

secular charities~ then, the classification would have been apparent in the very order of exemption itself, the impugned Government Order having

restricted its operation only in respect of public trusts and charitable trusts belonging to Hindus, Christians and Muslims, S, 29 empowers the

government to pass, the impugned Government Order. There is nothing to restrict it,4 applicability only in respect of individual tenancies because it

contemplates exemption not only of any building, but also of class of buildings!''.

As for the last contention that there are no guidelines regarding its applicability, this is a contention without any relevance because, unlike the

earlier Government Order, the present one is cell; Fred only to public trusts and charitables trusts, which could be easily decipherable.

Mr. Padnanabhan, by referring so P, J. Irani v. State of Madras AIR INI SC 1731 contends that Art. 14 is violated by granting exemption

only limited to the categories under impugned Government Order. He relies upon paira 1% wherein it is stated as beretm*r :""He further urged that

whether or not a power to exempt 2 clam of buildings was valid, because in such a case there might possibly be am element of basification based

00 rational ground-, Vermane to carry out the Policy or Dttrpose of the Act - the same could not be predicated of the power to grant exemption

for individual buildings because in the Utter case it would be mere-ly an arbitrary exercise to Power discriminating between out blil4-ing and

another, or ""tenant and another, and which would,, therefore, render the -very confer rents of the power invalid as in violation of the equal

protection of the laws. guaranteed by Art. 14.

He then proceeds to refer to S. 10 which deals with the eviction of tenants . and S. 14 which enables recovery of possession by landlord for

repairs or for-.reconstruction and of the right of tenant to occupy the building, if not. demolished. His contention is to the effect that, when the Act

contemplates eviction of tenants under certain. stated circumstances at the instance of landlords and in'' turn confers right on tenants to get '' the

premises repaired or re-occupied, if not demolLrh6d, and if landlords of the exempted cate90ries are in need of increased `rent~. they can always

seek for fixation of airreni and augment their income. When like'' any other landlord they can also secure possession . under certain circumstances,-

, there was no valid ground existing '' for a blanket exemption to be given only to these categories from the- provisions of the Act;. The decisiored

in N. Muthuswami Naidu Vs. The State of Tamil Nadu and Another, is also relied upon to contend that the Division Bench confined it"" self only to

one point, it being that S '' 29does not empower the government to exempt a class or classer, of buildings on the basis of ownership, and not the

other aspects.'' which are, presently contended. By passing of. impugned Government Order, rights of tenants are highly Jeopardised being

deprived of valuable protection they get, and that impugned Government Order does not give any reasons as to why such tenants should be

deprived of valuable benefits under the Act.

The plea of discrimination under Art. 14 can no longer survive in view of what the -Supreme Court, in the latter portion of the said judgment,

referred. to by him in pars, 16 had indicated of ho-vv and to what extent, buildings be longing to religious or secular charities could be classified for

being exempted. When such an exemption: comes -into force., naturally protections envisaged adder the sections referred to by him, are

unavailable. Absence of such protector cannot be a valid ground to strike the impugned Government Order. When S 29 itself states that not with

standing anything contained in -the'', Act,

an exemption -could, granted, from, all or any of the provisions of -the Art.. Corresponding provisions madder,.. The, earlier Act having, been

upheld by, the Supreme Court, by relying ;Upon Ss. 10, 14 and 16 of the Act, he cannot any longer, plead that effacement of such protections

under Ss.. 10, 14, 16 and the like, would render the impugned Government Order invalid.

Mr. M. V., Krishnftn contends that as soon as private tenants are left . out, and exemption . being ''confined only to public trusts and charitable

trusts, it had resulted in contravention of .Art. 14. It is a known, fact that privat6 trusts form a class. bythemselves, and the clasification under the

impugned Government Order being, reasonable, Art. 14 is not violated.

Mr. Manickavasagam submitted that after G.O.Ms. No: 1999 was passed, tenants protested. against unreasonable evictions and exhorbitant

4emands being made for rent, and therefore. by impugned Government order also it.: had not in any manner resulted in a different situation existing

and hence, tenants, of these premises are in dire need . Of~ protection under the Act, r and. therefore the impugned Government Order deserves

to. be struck down. In, the counter-affidavit it is stated that a Fair. . Rent Fixation Committee had been constituted to ensure that rents are not

fixed'' or increased arbitrarily and whenever any increase is warranted, it should be, done in a fair manner. . When such - regulatory- measures 4re

being taken, and in, spite of~ it. if, like private trusts, these public bodies also extract unreasonable rents -or resort td arbitrary eviction, State can

at any time, revoke, the imagined Government, order, as. it - did with_ G.0.,Ms. ~ No~ 1998., it is precisely for this purpose. under S. 30, this

classification was not included.

Yet another contention put forth by some of the petitioners is, that income of trusts is not, a germane or relevant factor to be taken into

account. To counter it, Advocate-General relies upon the decision in Maim Ponnammal v. State of Madras 1662 (1) MLJ 18 where in a learned

Judge~ of this court has held that considerations such as that rent of q. trust .1 property is too low and the trust is in need of augmenting. . its

resources ~or carrying out its objects, could legiti Matov . be taken into consideration, in exercising the power, of exemption. That was a case of

an exemption applied in respect , of a particular bulding As. To how far a classification of this nature could be justihable, Adwyate-General refers

to the ruling in Baburao Shantaram More Vs. The Bombay Housing Board and Another, , in which referring to Bombay Act 57 of 1947, it was

held that exemption to a certain class of tenants bad on intelligible differentia, which would have a rational relationship to the objects sought to be

achieved, could be upheld. The decision in Fatehchand Himmatlal and Others Vs. State of Maharashtra, is referred to. to show that exemption

pertaining to liabilities due to government or local authorities from provisions of Maharashtra Debt Relief Act, is a reasonable one, on taking into

account the nature of functioning of Government, local authorities or financial institutions in extending credit facilities to debtors. It was further held,

that every cause claims its martyrs. and if the law, necessitated by practical considerations makes generalisations which hurt a few, it cannot be

held as illegal by the court. Therefore, by granting exemption, if a category of tenants is to suffer by being deprived. of protection under Act 18 of

1960 and where it had been done with the main intention to augment the income of these public trusts and charitable trusts which will have to

derive their legitimate income for carrying o1zt the objects to be achieved by them, then such an order of exemption is valid, and could be passed

in exercise of the powers conferred under S. 2(q) of Act. 18/1960. Hence, all these appeals I and petions are dismissed. No costs.

The Honble the Chief Justice

After the judgment has been delivered. an oral Prayer has been made on behalf of the petitioners in W. P. No. 4016 of 1979 and W. P. Nos.

2547, 3111 and 3113 of 1981 for a certificate to appeal to the Supreme Court under Article 133 of the Constitution. While disposing of the writ

petitions and writ appeals, we relied on the decisions of the supreme Court. We are satisfied that there is no substantial question of law of general

importance which, in our opinion, needs to be decided by the Supreme Court. Hence the oral prayer for certificate is refused.

Writ appeals and petitions- dismissed.