M.J.THOMAS v. STATE OF KERALA

K. Balakrishnan Nair & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -W.P.(C).NO.11593 of 2004-E - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of October, 2007JUDGMENTT.R. Ramachandran Nair, J.The petitioners have filed this writ petition challenging Ext.P6notification issued by the Government under Section 25 of the KeralaBuildings (Lease & Rent Control) Act, 1965 (for short 'the Act'). As per thesaid notification, the buildings of Gospel for Asia (the second respondentherein) have been exempted from various provisions of the Act.2. The petitioners are the tenants of the second respondent. Both thepetitioners are occupying different rooms, viz. X/271, X/269 and X/277 ofThiruvalla Municipality. They were inducted as tenants by Mr.JosephEapen, who sold it to one Mr. Mathai Syriac. The second respondentpurchased the building from the said Mr. Mathai Syriac. The secondpetitioner as plaintiff, had instituted O.S. No.226/2003 before the Munsiff'sCourt, Thiruvalla against any eviction by using force by the secondrespondent. He had also filed a petition under Section 13(4) of the Act tothe Accommodation Controller alleging deprivation of amenities by thesecond respondent. Subsequently, the petitioners were served with Exts.P4 WPC 11593/2004-2-and P5 notices by the landlord seeking vacant possession of the rooms.From the above notices, they came to know of the exemption granted totheir buildings as per Ext.P6 and therefore the writ petition is filedchallenging the same.3. Ext.P6 is challenged on various grounds. It is averred in the writpetition that Ext.P6 has been issued without any application of mind, theaffairs of the second respondent is fully controlled by the third respondentand his relatives and the second respondent is not a church and no publicinterest is involved in the matter. The contention therefore is that theexemption granted is in favour of an individual. It is further pointed outthat there is clear hostile discrimination between the petitioners and othertenants and Ext.P6, if allowed to stand, will deprive them the protectionallowed under the various provisions of the Act.4. The Government as well as respondents 2 and 3 have filed counteraffidavits supporting the legality of the notification. The relevant files havealso been made available by the learned Govt. Pleader for our perusal.For convenience, the notification Ext.P6 is extracted below:“S.R.O. No.822/2003 -- In exercise of the powers conferred by sub-section (1) of section 25 of the Kerala Buildings (Lease and RentControl) Act, 1965 (2 of 1965), the Government of Kerala herebyexempt in public interest the Buildings of Gospel for Asia from theprovisions of sections 4,7, 11 and 13 of the said Act.”The explanatory note shows that Government have decided in public WPC 11593/2004-3-interest, to exempt the buildings of Gospel for Asia from the provisions ofSections 4, 7, 11 and 13 of the Act.5. The petitioners have filed a reply affidavit and an additional replyaffidavit to dispute the averments in the counter affidavits filed by therespondents herein.6. The notification is one issued under Section 25 of the Act. Section25 confers the power to grant exemptions. Section 25(1) provides that:-“Notwithstanding anything contained in this Act, the Governmentmay, in public interest, or for any other sufficient cause, bynotification in the Gazette, exempt any building or class of buildingsfrom all or any of the provisions of the Act.”7. We heard learned counsel for the petitioners, Shri Bechu KurianThomas, learned Senior Advocate Shri S.V. Balakrishna Iyer, forrespondents 2 and 3 and the learned Govt. Pleader Shri Lakshminarayanan.Learned counsel for the petitioners contended that the grant of exemption tothe second respondent is a clear abuse of the power conferred under Section25(1) of the Act, on the Government. It is further pointed out that eventhough the second respondent claims to be a public religious trust, actuallythe same is founded by the third respondent and his family members and theformation of the trust is merely a camouflage and there is absolutely nopublic interest in the matter. Elaborating the arguments, the learned counselpoints out, after referring to the various provisions of the trust deeds, viz.Exts.R3(a), R3(b) and R3(c) that they will show that it is a clear case of WPC 11593/2004-4-certain family members forming a trust and acquiring properties andutilising it for their private interest. It is further pointed out that eventhough the third respondent claims to be ordained as a Bishop of the Order,it is an act by himself. It is not at all a church. It is further pointed out thatthe amounts released by them towards charity are meagre compared to thetotal income and the profit they are gaining from the properties. Relyingupon one document produced, viz. Ext.P9, learned counsel points out thatwhen the total income is reckoned, the percentage of charity work done bythe second respondent is a meagre 0.20 per cent for the year 2002. It is alsosubmitted that the action by the State is totally unreasonable and is withoutconsidering the relevant materials. The learned counsel relied upon thedecision of the Apex Court in P.J. Irani v. State of Madras (AIR 1961 SC1731) and that of this court in Moidunni Haji v.State of Kerala (1991 (2)KLT 96), to contend for the position that the notification is clearlydiscriminatory, as what is attempted is to exempt the building owned by oneparticular individual, viz. the third respondent herein. Learned counselfurther argued that the Government have issued the notification afterignoring relevant materials which had a bearing on the question and theissuance of the notification is based on totally irrelevant materials and thus,the grant of exemption attracts the vice of 'Wednesbury Unreasonablenes.'In support of the above proposition, learned counsel relied upon the WPC 11593/2004-5-principles stated by the Apex Court in Supreme Court Employees WelfareAssociation v. Union of India and another ((1989) 4 SCC 187, State ofNCT of Delhi and another v. Sanjeev alias Bittoo ((2005) 5 SCC 181)and Rameshwar Prasad and others v. Union of India and another((2006) 2 SCC 1.8. Learned Govt. Pleader pointed out, by referring to the elaboratecounter affidavit filed by them, that there is no misuse of the powerconferred under Section 25 of the Act. In fact, by separate notifications,Government had exempted the buildings of all churches/Mosques of allminority religions from the various provisions of the Act as early as in theyear 1992 vide G.O.(MS) No.14/92/HSG dated 7.3.1992 which was lateramended through another G.O. Dated 30.10.1996. Exemptions have beenextended to buildings of all Dioceses, Arch dioceses, Monasteries,Convents, Wakfs and Madrassas also. It is pointed out that thesenotifications have been upheld by this court and the Apex Court. It isfurther pointed out in the counter affidavit that the second respondent hadsubmitted a representation before the Honourable Minister for Law andHousing, seeking to extend similar exemption for the buildings owned bythe Gospel for Asia. In the representation, they had pointed out that Gospelfor Asia is an Evangelical organisation propagating Christian faith andmessage in and around Asia and it is a religious organisation. The same is WPC 11593/2004-6-a public religious trust and all buildings and properties are utilised for thesole purpose of propagating Christian faith. The organisation is providingseveral types of help to poor and needy and is carrying out variousreligious and charitable activities which are helpful for the general public atlarge.9. It is further averred in the counter affidavit that the Governmenthave called for a report from the District Collector after receipt of the saidrepresentation, who in turn, had obtained a detailed report from theTahsildar. The report revealed that Gospel for Asia is an Evangelicalorganisation propagating Christian faith and messages as well as carryingout other social and charitable activities. The other claims raised by thesecond respondent have also been verified by the Tahsildar. Based on thereport of the Tahsildar, the District Collector had submitted a detailed reportto the Government through the Commissioner of Land Revenue. Afterelaborate consideration of the report received from the District Collectorand after considering all factual aspects of the matter, the Governmentdecided to extend the benefit of the existing notification, to the case of thebuildings belonging to Gospel for Asia. The allegation that there was nopublic interest in granting the exemption, was also denied by theGovernment.10. Learned Senior Counsel who argued for respondents 2 and 3, WPC 11593/2004-7-placed reliance upon various facts pleaded in their counter affidavit. It ispointed out that the third respondent who is a Bishop, is the president of thesecond respondent. The counter affidavit narrates the circumstances underwhich the public religious trust was established with the main object, viz.religious and charitable purposes. It is pointed out in the counter affidavitthat the affairs of the second respondent is governed by the provisionscontained in the registered trust deed dated 22.6.2001, the executants ofwhich are the third respondent and seven others. Tracing the history, it isfurther pointed out that initially a public religious trust under the name ofGospel Ministries, Kadapra was established as per a deed which wasregistered on 4.10.1991 (Ext.R3(a)). The name of the trust was firstchanged from Gospel Ministries, Kadapra to Gospel Ministries India andlater to Gospel for Asia. Its office was shifted from Kadapra to Ernakulamand then from Ernakulam to Manjadi, Thiruvalla. After the trust wasformed, the three trustees had inducted four more persons as trustees witheffect from 25.9.1997 by a deed registered on that date. Ext.R3(b) is thesaid deed and Ext.R3(c) is the third deed dated 22.6.2001. A reference tothe counter affidavit brings forth the contention that Gospel for Asia ispresently part and parcel of Believers Church in India which was founded inthe year 1991. It is further submitted in the counter affidavit that propertieswere being acquired for Gospel for Asia for its gospel work including WPC 11593/2004-8-gospel ministry as well as other connected offices, charitable institutionsand activities. It is fundamentally a religious organisation established forthe purpose of propagating Christian faith as well as other social andcharitable activities. The building in dispute was purchased as in the case ofothers, for the sole purpose of developing the Gospel for Asia as well asadministering the same and for the purpose of providing free service andother allied services to the believers. It is pointed out that other charitable aswell as humanitarian works are being undertaken by the Gospel for Asia.The sum and substance of the contentions raised is that it is a publicreligious trust catering to the needs of believers as well as general public atlarge. Reference is made to the representation Ext.R3(d) filed by thembefore the Government seeking exemption to their buildings. A reading ofExt.R3(d) shows that they have in detail, explained their activities and thehardship which may occur to them if exemption is not granted. LearnedSenior counsel for respondents 2 and 3 further pointed out that varioussimilar notifications issued by the Government, have been upheld by thiscourt in the decisions reported in State of Kerala v. Vijayan (1978 KLT342 (DB), Jayakaran v. Kerala Health R & W Society (1994 (1) KLT27), a decision of a learned single judge which was approved by the ApexCourt in Christ the King Cathedral v. John Ancheril (2001) 2 KLT 946).The learned counsel further relied upon the decision of the Apex Court in WPC 11593/2004-9-AIR 1961 SC 1731 to contend for the position that the notification does notoffend Article 14 of the Constitution of India and that relevant materialshave been considered by the Government while issuing the notification.Reliance is also placed on the decisions of the Apex Court in S.Kandaswamy Chettiar v. State of Tamil Nadu (AIR 1985 SC 257) andthat of a Full Bench of this court in Lakshmanan v. Muhammed (1992 (1)KLT 85), wherein similar notifications have been upheld. Relying upon thedecisions in Parippath Chandrasekhara Rao & Sons v. Alapathi Jalaiah((1995) 3 SCC 709) and Havanji Hamsaraj v. Lurdes Church & others(AIR 1999 Kerala 425), it is argued that the contention raised by the tenantsthat the protection under the Act creates a vested right in them, is also notcorrect. 11. The files produced by the Government Pleader shows that theGovernment after receipt of the representation, called for a report from theDistrict Collector, Pathanamthitta, through the Commissioner, LandRevenue, Trivandrum. By letter dated 19.7.2003, the District Collectorforwarded the report to the Commissioner, Land Revenue. It wasspecifically pointed out that the Tahsildar had reported that the Gospel forAsia is an Evangelical organisation for propagating Christian faith andmessage as well as other social and charitable activities. It is a publicreligious trust. Several charitable as well as humanitarian works are also WPC 11593/2004-10-undertaken by the Gospel for Asia since 1997. The work of the institutionis intended for spiritual and social uplifting of all flocks of the Society. TheTahsildar also reported that Gospel for Asia provides support to thosepeople who suffered from natural calamities, for conducting marriage forpoor girls and destitutes and they undertake several relief work as well associal activities all over India. It is seen from the files that a personalhearing was also conducted. The files show that the application of thesecond respondent is supported by various trust deeds also.12. The important aspects which emerge from the factual matrixpointed out in the pleadings are that the third respondent who is a Bishop, isthe president of the second respondent. The Government has alreadyexempted the buildings belonging to churches, mosques, etc. from theprovisions of the Act. The Government considered the second respondentas a public religious trust engaged in religious and charitable activities andtherefore by issuing the notification, the Government appear to have actedin public interest.13. The above claim of the Government is stoutly opposed by thelearned counsel for the petitioners. The first question to be examined, inthe light of the contentions raised by the petitioners, is whether the secondrespondent is a public religious trust or is only a private trust controlled bythe third respondent. Ext.R3(a) is the deed of trust executed on 1.10.1991. WPC 11593/2004-11-There were three trustees. The objects show that it was formed to work forthe spiritual and social growth of the believers of the Christian faith, toestablish and run bible schools; to acquire properties; to put up churchbuildings; parsonages, and to contribute by way of donations or advancesany money required for the charitable and religious activities of the nativeevangelists and their churches. One of the objects is to run destitute homes,to offer help for marriage to the needy and to help the indigent widowswherever necessary. It is expressly stated in clause 2 that this is a religiousand charitable trust. As per clause 6, the trustees may if they deem fit, applythe trust property or the income accruing therefrom for such purposes if any,as the trustees may find expedient to carry out the objects of the trust andthe profits derived from such application shall again be applied wholly forany or all the objects and purposes of the trust in such manner as the trusteesmay decide. Clause 11 expressly prohibits the trustees from holding anyinterest in any property belonging to the trust otherwise than as a trustee.Clause 15 allows the trustees to collect donations and contributions for thetrust and may use the same for pursuing any one or more of the objects ofthe trust in preference to other object/objects or in any permutation thatthey may prefer. Later deeds, viz. Exts.R3(a) and R3(c) are in continuationof the same. Therein also, provisions are made for applying the trustproperty or income accruing therefrom, for its objects. WPC 11593/2004-12-14. The question is whether the same is a public trust or a privatetrust. Learned counsel for the petitioners argued that it is purely a privatetrust controlled by the third respondent. In support of the argument, it ispointed out that clauses 4, 6, 13, 15, and 22 of Ext.R3(b) give absolutepower to the third respondent even to exercise overriding powers in regardto any decision taken by the board of trustees or in any clause of the trustdeed. These clauses have been referred to in the arguments to show that thethird respondent controls the entire thing. The next aspect that was pointedout is that the charitable work allegedly carried out, if assessed, will showthat the amounts spent are meagre. It is pointed out that for the years 2000,2001 and 2002 the figures are the following:“2000 - Rs.34,50,018/-2001 - Rs.30,52,210/-2002 - Rs.23,87,602/-”.It is further contended that going by the income, viz. Rs. 85 crores, 98crores and 130 crores respectively for the three years, the same is negligible.15. The distinction between private and public trust is well known.In Deoki Nandan v. Muralidhar and others (AIR 1957 SC 133), thedistinction between such trusts was emphatically laid down. It was held that“the distinction between a private and a public trust is that whereas in theformer, the beneficiaries are specific individuals, in the latter, they are the WPC 11593/2004-13-general public or a class thereof. While in the former the beneficiaries arepersons who are ascertained or capable of being ascertained, in the latterthey constitute a body which is incapable of ascertainment.” Therefore, thequestion to be considered is whether the trust is or is not for the benefit ofspecified individuals or the general public or sections thereof. If the trust isnot for the benefit of the members of the family of the settlors nor for anascertained group of individuals, then it is a public trust. It is well knownthat public trusts are generally religious and charitable which are acting forthe benefit of the public in general. Going by the above test, it is clear fromExts.R3(a) toR3(c) that the beneficiaries of the trust are not individuals.They are not members of a family also. The beneficiaries are believers inChristian faith. Merely because Ext.R3(a) was brought into force in theform of a trust by three family members, it cannot be said that the same is aprivate family trust, as contended by learned counsel for the petitioners.The beneficiaries are not ascertained individuals but are unascertainedmembers of Christian faith as well as members belonging to public. Thesecond respondent Gospel for Asia is part and parcel of “Believers Church”.The third respondent is the Bishop of the church. Therefore, it is clearly areligious organisation which is propagating Christian faith. If that be so,the second respondent is clearly a public religious trust and fully satisfiesthe tests laid down by the Apex Court in Deoki Nandan v. Muralidhar WPC 11593/2004-14-and others (AIR 1957 SC 133) mentioned earlier. In Ext.R3(a) it is clearlyspelled out that the object of the trust is to work for the spiritual and socialgrowth of the believers of Christian faith, to establish and run bible schoolsand to contribute by way of donations or advances any money required forthe charitable and religious activities of the Evangelists and their churches.It is also important to notice that one of the objects is to run destitute homes,to offer marriage help to the needy and to help the indigent widows,wherever necessary. All these are not for individual beneficiaries and thebeneficiaries of the trust belong to Christian faith and other members of thepublic, an unascertained class as such. In the light of the above, it isincapable to ascertain the beneficiaries, as they are not specific individuals.16. Therefore, there is no merit in the contention of the petitioner thatit is purely a private family trust and the properties vest in the thirdrespondent herein, absolutely. That the trustees can act only for the objectsof the trust and utilise funds and properties and donations only for thepurpose of trust, is clear from the trust deeds. They cannot also utilise thefunds or properties or income for their own benefit, which is prohibited bythe several clauses of the trust deed as noticed already. These are,according to us, significant aspects which are relevant while consideringthe question whether it is a public religious trust or not. We are satisfiedthat the trust constituted is a public religious trust. WPC 11593/2004-15-17. Therefore, the question regarding validity of Ext.P6 has to beexamined in the light of the well settled principles stated by the Apex Courtand that of this court in various decisions. Both sides have relied upon theprinciples stated by the Apex Court in P.J. Irani v. State of Madras (AIR1961 SC 1731). Learned counsel for the petitioner relied upon the saiddecision to contend for the position that the notification should be regardedas discriminatory as far as it exempts the buildings owned by one particularindividual, viz. the third respondent. We have already found that the saidcontention is not correct and the second respondent is a public religioustrust. While considering a similar argument, the Apex Court in paragraph16 of the above judgment, held as follows:“Before considering this argument it is necessary to advert toa submission of the learned counsel for the appellant suggestingthat the High Court were in error in calling for the reasons whichinduced the Government to pass the orders of exemption, thoughwhen the reasons were before the Court it was in a position toexamine the legality of the order. We do not consider thissubmission well-founded. The entire basis for upholding theconstitutional validity of S.13 of the Act and considering that it didnot offend the equal protection of the law guaranteed by Art. 14 ofthe Constitution was, that the discretion or the power conferredupon Government was not unguided, uncanalised or arbitrary butthat it had to be exercised in accordance with the policy and objectof the enactment gatherable from the preamble as well as itsoperative provisions. The order itself might on its face have shownthat it conformed to this requirement, in which event it would havebeen for the party challenging the validity of the order to establishto the satisfaction of the Court that it was mala fide or had beenpassed on grounds not contemplated by or extraneous to the objectand purpose of the enactment or the principles which should havegoverned the exercise of the power. For instance, if the exemption WPC 11593/2004-16-had been in favour of a particular class of buildings, say thosebelonging to charities—religious or secular—the classificationwould have been apparent in the very order of exemption. Where,however, the exemption granted is not of any class of buildingswhich would ex facie disclose a classification, but the exemption isof a specified building owned by A or in which it is a tenant, thenprima facie it would be discriminatory and when the legality of theorder is challenged, its intra vires character could be sustained onlyby disclosing the reasons which led to the passing of the order.”Going by the above dictum and in view of our conclusion that the secondrespondent is a public religious trust, it is clear that the notification does notsuffer from any vice of arbitrariness under Article 14 of the Constitution ofIndia. In the subsequent decision of the Apex Court in AIR 1985 SC 257,the question considered was whether the total exemption granted to thebuildings of Hindu, Christian and Muslim religious and public charitabletrust is violative of Article 14 of the Constitution of India or not. Whilereferring to the question whether there were proper materials to grantexemption, their Lordships examined the nature and character of a publicreligious and charitable endowment trusts and whether they form a distinctgroup. It was further held in paragraph 9 that “they form a distinct groupwhich is well organised.” It was held that “it cannot be disputed that publicreligious and charitable endowments or trust constitute a well recogniseddistinct group in as much as they not only serve public purposes, but thedisbursement of their income is governed by the objects with which they arecreated and buildings belonging to such public religious and charitable WPC 11593/2004-17-endowments or trusts clearly fall into a distinct class different frombuildings owned by private landlords and as such, their classification to onegroup done by the State Government while issuing the impugnednotification, must be regarded as having been based on an intelligibledifferentia.” It was observed further in paragraph 15 while justifying theexemption, as follows:“Apart from this aspect of the matter it is conceivable thattrustees of buildings belonging to such public religious institutionsor public charities may desire eviction of their tenants for thepurpose of carrying out major or substantial repairs or for thepurpose of demolition and reconstruction and the StateGovernment may have felt that the trustees of such buildingsshould be able to effect evictions without being required to fulfillother onerous conditions which must be complied with by privatelandlords when they seek evictions for such purposes. In our view,therefore, the total exemption granted to such buildings under theimpugned notification is perfectly justified.”Judged in the light of the above principles, we are fully satisfied that theexemption granted to the second respondent, a public religious trust, is notviolative of Article 14 of the Constitution of India.18. In fact, similar notifications have been upheld under the sameAct, wherein exemptions have been granted to buildings belonging toCochin Devaswom Board, KHR & W Society and the buildings owned byall churches, mosques of all minority religions and buildings of Diocese,Monastries, Wakfs and Madrassas. The first of those decisions, is by aDivision Bench of this court reported in State of Kerala v. Vijayan (1978 WPC 11593/2004-18-KLT 342). The buildings therein belonged to Cochin Devaswom Board.Their Lordships held that the act of granting exemption under Section 25(1)of the Act, is a legislative act. Such an act of exemption need not be by anorder disclosing reasons. That apart, even if the act of granting exemptionis not to be regarded as legislative, there is enough authority that the publicinterest underlying the exemption, need not be expressly recited in thenotification itself. It is enough, if it is made to appear de hors thenotification as, for instance, in the affidavit filed on behalf of theGovernment. Their Lordships also observed that there is only limited scopefor judicial review of the reasons which prompted the Government to grantexemption. A learned Single Judge of this court in Jayakaran v. KeralaHealth R & W Society (1994 (1) KLT 27), after following the dictum laiddown in Kandaswamy Chettiar v. State of Tamil Nadu (AIR 1985 SC857) and by the Division Bench, in the above case, held that “grant ofexemption in favour of charitable bodies like the petitioner, must be held tobe in public interest. Even though no reasons are stated in the notificationgranting exemption, it is enough if it is stated in the counter affidavit.” Theabove decision was approved by the Apex Court in Christ the KingCathedral v. John Ancheril (2001 (2) KLT 946). Therein, the challengewas against the notification granting exemption in public interest, to thebuildings of all churches, mosques, etc., as mentioned already. While WPC 11593/2004-19-examining the contention that the notification is in violation of Article 14 ofthe Constitution of India, their Lordships held thus in paragraph 6:“The law had been stated by this Court to the effect thatpublic religious or charitable endowments or trusts constitute awell recognised group which serves not only public purposes, butdisbursement of their income is governed by the objects with whichthey are created and buildings belonging to such endowments ortrusts clearly fall into a class distinct from the buildings owned byprivate landlords. It is in respect of three areas a regulation wouldbe made under the Act, as has been done in other similarenactments and these areas are (i) with respect to regulation oflease of buildings (residential or non-residential); (ii) control ofrent of such buildings and (iii) control of eviction of tenants fromsuch buildings. A public trust, as has been held in S. KandaswamyChettiar case (supra), is not likely to unreasonably act either in thematter of enhancement of rent or eviction of tenants beinginstitutions of religion or charity. On that basis, this Court upheldthe validity of the exemption granted under the Tamil Nadu Act infavour of such trust or endowment. In the present case, thecontention has been specifically put forth that the appellants fallinto that very category which came up for consideration before thisCourt in S. Kandawamy Chettiar case (supra). Therefore, nodistinction can be made between that class of owners of thebuildings in that case and in the present case. We do notunderstand as to what other material was required by the Court in amatter of this nature if the contention put forth before this court isnot that Churches or Mosques, Dioceses, Archdioceses,Monastries, Convents, Wakfs and Madrassas are not religious andcharitable in nature.”Their Lordships further observed that “if the building belonging to suchpublic trust or religious institution is exempt from the Act, the purpose ofthe trust could be carried out much better is quite clear. It was also heldthat the question to be considered is only the aspect whether there was dueapplication of mind to the issue of notification in question in terms of the WPC 11593/2004-20-provisions of the Act and if that aspect was satisfied, no further questionarose for consideration. After referring to the Full Bench decision of thiscourt in Lakshmanan v. Mohammed (1992 (1) KLT 85(FB)), it was heldas follows: (para 9)“An argument is sought to be raised on the basis of ownershipof property that there should not have been a distinction as is beingmade in the present case. That was the very basis of distinctionmade in case of statutory bodies like the Housing Board, localauthorities which are noticed in the Jayakaran v. Kerala Health R &W Society case (supra) or registered Wakfs which was considered inLakshmanan v. Mohammed (1992 (1) KLT 85 (FB). When suchbodies or institutions falling to a distinct class by themselves andexemption granted to them would serve a public purpose, namely, tocarry out the objects of the trust or the endowment or religiousactivity in a broad sense, we do not think that the fine distinctionsought to be made by the High Court in this regard is justified.”19. We may notice herein another argument raised by the learnedcounsel for the petitioner that there is a specific provision under Section 11(7) of the Act with respect to buildings owned by religious, charitable,educational or other public institution and therefore the normal rule is thatthey should also fall in line with the requirements of the Act and the tenantsof such bodies should not be discriminated in the matter of protection undervarious provisions of the Act. Section 11(7) of the Act reads as follows:“11(7):-- Where the landlord of a building is a religious,charitable, educational or other public institution, it may, if thebuilding is needed for the purposes of the institution, apply to theRent Control Court, for an order directing the tenant to put theinstitution in possession of the building.”It only mentions that when the landlord of a building is such bodies named WPC 11593/2004-21-in the section, eviction can be ordered if the building is needed for thepurposes of the institution. That is not a ground to contend for the positionthat exemption cannot be resorted to, as Section 25 of the Act starts withthe opening words “notwithstanding anything contained in this Act”. Thesame will clearly override other provisions of the Act. It is not a case whereno guidelines are available. The Government is expected to act in publicinterest. In the light of the principles stated in the various authoritiesmentioned above, it cannot be said that no public interest is involved whilegranting exemption to the building owned by the second respondent whichis a public religious trust. It is clear from the files produced and from thecounter affidavit of the Government that all material aspects have beenconsidered by the Government before granting exemption. Reports werecalled for from the Land Revenue Commissioner and the District Collector,who in turn, has made enquiries through the Tahsildar. The Governmentwas having before it the notifications already issued exempting thebuildings owned by churches, mosques of all minority religions andbuildings of Waks, Madrassas, etc. It is clear that the Government haveacted well within its jurisdiction. That too, after considering relevantmaterials including the working of the second respondent which was foundgenuine by the revenue authorities. Therefore, it is not a case where therewas any non application of mind, as vehemently contended by the learned WPC 11593/2004-22-counsel for the petitioners.20. The other aspect pointed out by the learned counsel for thepetitioners is that the vested rights of the tenant are taken away by theimpugned notification. This contention is also not correct in the light of thedecision of the Apex Court reported in Parippath Chandrasekhara Rao &Sons v. Alapathi Jalaiah ((1995) 3 SCC 709). The difference betweenrights vesting in the landlord and the protective rights conferred on thetenants under the rent control legislation was examined in the light of asimilar challenge to a notification granting exemption. It was observed inparagraphs 12 and 13 by the Apex Court that the theory of vested right isnot available to the tenant, as the same is lost the moment the protection wastaken away. Their Lordships held as follows:“12. According to us there is a material difference betweenthe rights which accrue to a landlord under the common law and theprotection which is afforded to the tenant by such legislation as theAct. In the former case the rights and remedies of the landlord andtenant are governed by the law of contract and the law governingthe property relations. These rights and remedies continue togovern their relationship unless they are regulated by suchprotective legislation as the present Act in which case the saidrights and remedies remain suspended till the protective legislationcontinues in operation. Hence, while it can legitimately be said thatthe landlord's normal rights vested in him by the general lawcontinue to exist till and so long as they are not abridged by aspecial protective legislation in the case of the tenant, the protectiveshield extended to him survives only so long as and to the extentthe special legislation operates. In the case of the tenant, therefore,the protection does not create any vested right which can operatebeyond the period of protection or during the period the protectionis not in existence. When the protection does not exist, the normal WPC 11593/2004-23-relations of the landlord and tenant come into operation. Hence,the theory of the vested right which may validly be pleaded tosupport the landlord's case is not available to the tenant. It is forthis reason that the analogy sought to be drawn by Shri Subbaraobetween the landlord's and the tenant's rights relying upon thedecision of this court in Atma Ram Mittal is misplaced. In that casethe landlord's normal right to evict the tenant from the premises wasnot interfered with for the first ten years of the construction of thepremises by an exemption specifically incorporated in theprotective rent legislation in question. The normal right wasobviously the vested right under the general law and once accruedit continued to operate. The protection given to the tenant by therent legislation came into operation after the expiry of the period often years. Hence, notwithstanding the coming into operation of theprotection and in the absence of the provisions to the contrary, theproceedings already commenced on the basis of the vested rightcould not be defeated by mere passage of time consumed by thesaid proceedings. It is for this reason that the Court there held thatthe right which had accrued to the landlord being a vested rightcould not be denied to him by the efflux of time.13. That is not the situation in the present case where thetenant who undoubtedly had the rights and remedies under the Actto claim reliefs against the landlord, lost the same the moment theprotection was taken away, the rights and remedies being not vestedones.”We notice that the said principles have been followed by a learned SingleJudge in AIR 1999 Kerala 425 while considering a similar argument. Eventhough learned counsel for the petitioner placed heavy reliance on thedecision of a learned Single Judge in Moidunni v. State of Kerala (1991(2) KLT 96), whereby exemption granted to a building owned by onecharitable institution, was quashed by this court, a reading of the decisionshows that this court interfered with the notification after finding that theGovernment had issued the notification relying on certain incorrect facts WPC 11593/2004-24-placed before it and without knowing some material facts relating to thebuilding in question. It was also held by the learned Single Judge in thatdecision that the Government formed its opinion on incomplete andincorrect report of an officer, which cannot be justified. The circumstancesavailable herein are not similar, as already pointed out by us, as theGovernment have acted only on relevant materials and the decision is nottainted by non application of mind. 21. Then the other argument that the amount spent towardscharitable purposes is meagre, has also to be examined. While consideringthis question, it is relevant to notice that exemption has been granted to thesecond respondent not on the basis of its charitable nature alone, but afterconsidering that it is a public religious trust. The activities which arecharitable, have also been noticed by the Government while grantingexemption. Therefore, the argument of the learned counsel that the basis ofgrant of exemption is incorrect, does not appear to be sound. Even thoughExt.P9 was quoted in support to show that the amount spent towards charityis less compared to the large income, as rightly pointed out by learnedSenior Counsel for the second respondent, an over all assessment of thenature of objects and activities made by the religious trust alone, should beconsidered by this court and the assessment of the charitable activitiescannot be confined to the volume with reference to two or three years as WPC 11593/2004-25-attempted to by the petitioner herein. The contention therefore raised by thepetitioners does not survive. Once it is held that the second respondent is apublic religious trust established for religious and charitable purpose, goingby the principles stated by the Apex Court in S. Kandaswamy Chettiar v.State of Tamil Nadu (AIR 1985 SC 257) and Christ the King Cathedralv. John Ancheril (2001 (2) KLT 946) that it is an intelligible differentia allconsequences will follow to justify the issuance of the notification. Thequestion is only whether there was due application of mind for issuing thenotification in question in terms of the provisions of the Act. We aresatisfied that the said test has been completely satisfied in this case and thenotification cannot be invalidated for non application of mind and for nonconsideration of the relevant materials. Therefore, the decision makingprocess is not unreasonable or irrational and it clearly satisfies theWednesbury principles also.For all these grounds, we hold that Ext.P6 notification is valid and thewrit petition is consequently dismissed. There will be no order as to costs.(K. Balakrishnan Nair, Judge.)(T.R. Ramachandran Nair, Judge.)kav/