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1964 Supreme(MP) 116
High Court Of Madhya Pradesh
P. V. Dixit, C. J. and K. L. Pande, J.
KANHAIYALAL THAKURDAS - Appellant
Versus
GULAB BAI DIGAMBAR JAIN KANYA VIDHYALAYA - Respondents
Misc. Petn. 199 Of 1964
Decided On : 09/22/1964
Headnote:(1) Accommodation Control Act, 1961 (M.P.) - S. 3 (2) - delegation of power to executive - is not - excessive - guiding principles for exemption clearly laid down - provision is intra vires.
Section 3 (2) of the Act cannot be challenged on the ground of abdication by the Legislature of its legislative function or of excessive delegation.
The principle is now well established that the Legislature cannot delegate its essential legislative function in any case; and that it must lay down the legislative policy and principle and must afford guidance for carrying out the said policy before it delegates its subsidiary powers in that behalf. AIR 1961 SC 1731 & AIR 1961 SC 4, AIR 1954 SC 465 relied on. [Para 8
Section 3 (2) does not give to the Government unfettered and uncanalised power to exempt from the operation of the Act accommodation belonging to any institution. It enunciates with sufficient accuracy and clarity the legislative principles and policy in the matter of granting exemption. The delegation of power to the Government contained in that provision is intra vires. AIR 1961 SC 1731 followed. [Para 8
(2) Accommodation Control Act, 1961 (M.P.) - S. 3 (2) - order granting exemption under - should be passed on the grounds germane to the Act-fundamental right of equal protection should not be violated-matters to be seen while passing such order-burden of proof of bona fides of the order - when on the Government.
If an individual order exempting certain premises was passed on grounds not germane to the purpose for which the power was conferred, then the order would be bad as being one discriminatory of the tenant occupying the premises and as violating his fundamental right to equal protection of the laws. [Para 12
In dealing with the challenge to the vires of an individual order under section 3 (2) of the Act it is necessary to enquire into the question whether the grounds on which it was passed were germane to the purpose for which the power was conferred and whether the order made was for furthering the policy and purpose of the Act; and that if the order does not ex facie disclose the reasons and an exemption is granted to a specified building owned by an institution, then the Government must disclose the reasons which led to the passing of the order when its legality is challenged. [Para 13
It is clearly not possible to lay down a general rule enabling one to say whether this or that reason for granting exemption would or would not be germane to the purpose for which the power of exemption has been conferred. Each case has to be decided on its own facts and circumstances.
Where the exemption intended to be granted is likely to result in the eviction of tenants, the relevant matter to be considered is the ability or inability of the tenant to secure alternative accommodation in which he can either reside if the accommodation is residential or carryon the business which he was carrying on in a non-residential building.
Thus, exemption under section 3 (2) of the Act cannot be granted for defeating the provisions of the Act. It can only be granted for furthering the policy and purpose of the Act, namely, the regulation and control of letting, control of rent, and prevention of unreasonable eviction of tenants. [Para 15
If the ground urged for exemption is that the institution desires to augment its income by reconstruction of the building and that could not be done unless the accommodation was vacated by the tenant, the Government should consider whether keeping in view the provisions of section 12 (1) (h) and section 18 of the Act the grant of exemption from the provisions of the Act would be in furtherance of the policy and purpose of the Act. AIR 1961 SC 1731 relied on. [Para 16
( 1 ) BY this application under Article 226 of the Constitution the petitioners, who are in occupation as tenants of three tenements in a building owned by the respondent no. 1, the Gulab Bai Digumbar Jain Kanya Vidyalaya, Bhopal (hereinafter referred to as the Vidyalaya), pray for the issue of a writ of ceiliorari for quashing a notification issued by the State Government on 22nd May, 1963 under Section 3 (2) of the Madhya Pradesh Accommodation Control Act. 1961 (hereinafter referred to as the Aet) exempting the said building from all the provisions of the Act.
( 2 ) THE long title of the Act is: "an Act to provide for the regulation and control of letting and rent of accommodation and the eviction of tenants therefrom. " With this view provisions have been inserted in Chapter II of the Act regarding fixation of standard rent and prohibition of recovery of rent in excess of standard rent and unlawful charges. Section 12 lays down restriction on eviction of tenants. There are other provisions in the Act, all intended to regulate the control of letting, rent of accommodation and eviction of tenants therefrom. Section 3 (2) of the Act is as follows:-"the Government may by notification, exempt from all or any of the provisions of this Act any accommodation which is owned by any educational, religious or charitable institution or by any nursing or maternity home, the whole of the income derived from which is utilised for that institution or nursing home or maternity home. "
( 3 ) ON 5th March, 1962 an application was made to the Government by the secretary of the Vidyalaya stating that the Vidyalaya had been founded by one seth Gokulchand by a deed of trust; that in a portion of the building donated by the creator of the trust the Vidyalala was located and other portions of it were let out to tenants; that the whole of the income derived by the trust as rent from the building was being utilised for the running of the Vidyalaya; that the Vidyalaya did not have any other source of income; and that the Government had been empowered under Section 3 (2) of the Act to exempt from all or any of the provisions of the Act any accommodation owned by an institution such as the vidyalaya; and praying that the building owned by tbe trust be exempted under section 3 (2 ). Tbe Government sent the application to the Collector, Sehore, for enquiry who submitted a report recommending the grant of exemption under section 3 (2) of the Act. The Government, after considering the report of the collector, issued on 22nd May, 1963 the impugned notification in the following terms:-" in exercise of the powers (sic) by Sub-section (2) of Section 3 of the madhya Pradesh Accommorlation Control Act, 1961 (No. 41 of 1961), the State Government hereby exempt House No. 43 of Ward No. 16 in bhopal Municipal area (Ibrahimpura Bhopal) owned by Gulab Bai digambar Jain Kanya Vidhyalaya, Bhopal, an educational institution from all the provisions of the said Act. " some time after the issue of the notification the Vidyalaya served on the petitioners notices terminating their tenancies and instituted a suit for eviction of the first petitioner Kanhaiyalal from the tenement in his occupation. On 18th september, 1963 the petitioners made a representation to the State Government protesting against the grant of exemption. In their representation they stated that they were in possession of the tenements tor a long time: that there was aeute shortage of non-residential accommodation for business purposes in Bhopal; that the premises could not be put to any use except for shop-purposes, that the landlord respondent No. 1 was demanding from them exorbitant rent; that the exemption sought and granted was not bona fide and was granted by the State Government without hearing the petitioners; and that the impugned order did not also state any reasons for tbe grant of the exemption. The petitioners prayed that the exemption should be rescinded. On this representation being
