Kerala High Court
Adv. J. William John @ Gandeevan, Chief ... vs The State Of Kerala, Represented By The ... on 3 October, 2002
Equivalent citations: AIR 2003 KERALA 102, (2002) ILR(KER) 3 KER 415, (2002) 2 KER LJ 522, (2002) 3 KER LT 601, (2003) 1 RENCJ 116, (2003) 1 RENCR 139, (2003) 1 RENTLR 291
Author: A.K. Basheer
Bench: A.K. Basheer
JUDGMENT
Cyriac Joseph, Ag. C.J.
1. The petitioner has filed this Original Petition praying for a declaration that Sub-section (3) of Section 1 of the Kerala Buildings (Lease & Rent Control) Act, 1965 (Act 2 of 1965) as null and void as it is violative of the fundamental rights guaranteed under Articles 14 of 21 of the Constitution of India and also that Act 2 of 1965 is enforceable throughout the State of Kerala even without a resolution of the local authority concerned. The petitioner has also prayed for a writ of mandamus directing the respondents to implement the said Act throughout the State of Kerala with immediate effect.
2. For convenience, Section 1 of Act 2 of 1965 is extracted hereunder:
"1. Short title, extent, application and commencement:
(1) This Act may be called the Kerala Building (Lease and Rent Control) Act, 1965.
(2) It extends to the whole of the State of Kerala.
(3) It applies to the areas mentioned in the Schedule and the Government may, by notification in the Gazette, apply all or any of the provisions of this Act to any other area in the State with effect from such date as may be specified in the notification, and may, by like notification, cancel or modify such notification or withdraw the application of all or any of the provisions of this Act from any area mentioned in the Schedule:
Provided that no such notification shall be issued unless it is supported by a resolution passed by the local authority or authorities, if any, of the areas affected by the notification.
(4) It shall be deemed to have come into force on the first day of April, 1965."
The challenge of the petitioner is against the proviso to Sub-section (3) of Section 1 which requires that no notification under Sub-section (3) shall be issued unless it is supported by a resolution passed by the local authority or authorities, if any, of the areas affected by the notification. Act 2 of 1965 was legislated to regulate the leasing of buildings and to control the rent of such buildings in the State of Kerala. As per Sub-section (2) of Section 1, the Act extends to the whole of the State of Kerala. For making the provisions of the Act applicable to the areas mentioned in the Schedule, a pre-condition has been imposed by Sub-section (3). The pre-condition is that the local authority, if any, of the area should have passed a resolution to support the notification making the provisions of the Act applicable to area.
3. According to the petitioner, the said Act was enacted with the object of giving protection to the weaker sections based on the concept of social justice and the Rent Control Act is a self contained Statute and the rights and liabilities of the landlord and the tenant are to be governed by its provisions and not by the provisions of the Transfer of Property Act or any other law. It is true that the Legislature made the above law with a laudable object. But while making the law the Legislature itself specified that the application of the provisions of the Act to areas other than those mentioned in the Scheduled will depend on the decision of the local authority concerned. In other words, the Legislature wants the local authority to consider and recommend whether the ground realities in a particular area call for application of the provisions of the Act. Obviously, the Legislature felt that such a role should be assigned to the local authority concerned, presumably because, the local authority will be in a better position to understand and assess the ground realities and to decide whether the provisions of the Act should be applicable to the area concerned. It is possible that in view of the ground realities in a particular area, the application of the provisions of the Act may be unnecessary or it may create hardship to the persons who are likely to be affected by the application of the provisions of the Act. If the Legislature wanted to take the local authorities into confidence and to assign them a role in deciding whether the provisions of the Act should be made applicable to the area concerned, it is the legislative policy which cannot be called in question by this court unless it is unconstitutional or illegal. We do not find anything unconstitutional or illegal in the impugned provision. In the age of de-centralisation of power and devolution of powers to local bodies, the above mentioned legislative policy is a step in the positive direction. In our view, the impugned provision does not violate any of the provisions of the Constitution of India or infringe the fundamental rights of any person including the petitioner.
4. There is no merit in the Original Petition and the Original Petition is dismissed.