## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
**THE HONOURABLE MR. JUSTICE P.D.RAJAN**
**TUESDAY, THE 7TH DAY OF FEBRUARY 2017/18TH MAGHA, 1938**
**AS.NO. 526 OF 1996 ( ) -----------------------**
**AGAINST THE JUDGMENT IN OS NO.14/1992 OF THE SUBORDINATE JUDGE, PALAKKAD DATED 21-06-1995**
**----------------------**
## **APPELLANT(S)/PLAINTIFFS : -----------------------**
**METRO TRADING COMPANY, REPRESENTED BY MANAGING PARTNER, S.M.S. MOHISIN, S/O SYED MOHAMMED, METRO BAZAR, MARKET ROAD, PALAKKAD.**
## **BY ADV. SRI.K.MOHANA KANNAN**
## **RESPONDENT(S)/DEFENDANTS :**
**------------------------**
**1. ZILLA SAINIK WELFARE OFFICER, PALAKKAD.**
**2. THE STATE OF KERALA, REPRESENTED BY COMMISSIONER AND SECRETARY, TO GOVERNMENT GENERAL ADMINISTRATION (SAINIK WELFARE)DEPARTMENT, THIRUVANANTHAPURAM.**
**BY GOVERNMENT PLEADER SRI.B.R. MURALEEDHARAN**
**THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 07-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**NS**
## **P.D. RAJAN, J. -----------------------A.S. No.526 of 1996**
## **---------------------------------Dated this the 7[th] day of February, 2017**
## **J U D G M E N T**
This appeal is preferred by the plaintiff against the judgment in O.S. No.14 of 1992 of the Subordinate Judge, Palakkad for recovery of arrears of rent. The appellant's case is that on 10.7.1987, the 1[st] respondent took on lease, door No.24/905 of Koppam amsom to Jilla Sainik Board, Palakkad by an oral lease and the monthly rent was agreed as Rs.800/-. The lease period was for three years and for continuing the lease period, the rent was agreed to be increased by 16%. The first respondent informed that he is competent to represent the Government and he paid rent for six months. There was no payment of rent and no response from the side of respondents. In the circumstance, he filed RCP No.66 of 1991 before Rent Control Court, Palakkad for eviction on the ground of arrears of rent. He also filed the present suit for recovery of Rs.41,400/- with 6% interest from the date of the suit.
A.S. No.526/1996 2
2. In the trial court, defendants resisted the suit by filing a written statement and contended that rent could be paid only at the rate fixed by the Government according to PWD rules and Government orders. The delay in non payment of rent was due to non fixation of rent by PWD which was informed to the plaintiff. Subsequently, first defendant shifted from the office building on 6.12.1991 and PWD has fixed the rent of the building at the rate of Rs.244/- per month and the actual amount of rent is Rs.12,932/-. Out of that, he paid Rs.4800/- and the balance is only Rs.8132/-.
3. Both parties adduced both oral and documentary evidence. The plaintiff was examined as PW1 and his documents were marked as Ext.A1 to A8. The defendant's evidence consists of the oral testimony of DW1 and Ext.B1 to B4. The learned Subordinate Judge decreed the suit for a sum of Rs.8,132/- with interest at the rate of 6% per annum from the date of suit till realisation with cost of the suit. Being aggrieved by that, plaintiff preferred this appeal.
A.S. No.526/1996 3
4. The possession of the building for a period of three years on the basis of an oral lease was admitted by both parties. PW1, in his evidence, admitted that he received Rs.852.78/- per month as rent for six months in the year 1988-1989. As per Ext.A4, respondent admitted that arrears could be paid only after rent is approved by Government. It is clear from Ext.B1 that rent could be fixed only on the basis of the guidelines issued by the Government. A private building can be taken on rent for departmental use if the owner of the building accepts the rent fixed by PWD. Lower court observed that no agreement was entered into between the appellant and respondents agreeing the claimed rate, therefore, A2 agreement has no legal validity. It is also clear that the 1[st] respondent has no authority to execute a lease agreement fixing rent with the appellant without the concurrence of the Government. There is no difficulty for the appellant for getting the enhanced rent provided that the enhanced rate has to be approved by the government, which was communicated to the appellant as per Ext.B3 letter. As
A.S. No.526/1996 4
per Ext.B3, there is no difficulty in sanctioning special rate, provided the reason has also to be stated by the Government while fixing the enhanced rate. In Ext.B4 rent certificate the monthly rent fixed by the Assistant Executive Engineer, PWD, Palakkad was Rs.244/- per month. Appellant contended that the fixed rate is a meagre amount, which is not as per the rate agreed with the respondent. Even though such a contention was made by the appellant, the respondent cannot go beyond Exts.B1 to B4 documents.
5. In this context, the learned counsel appearing for the appellant submitted that the doctrine of promissory estoppal is applicable since the appellant and respondent agreed the rate of Rs.800/- per month and the arrears was Rs.41,400/- with 6% interest. Normally the doctrine of promissory estoppal cannot be invoked for enforcement of a promise which is made contrary to law. The respondent is not the competent authority to make an agreement with the appellant, since the guidelines in Exts.B1 to B4 restrict him to enter into such illegal
A.S. No.526/1996 5
agreements. Even though the appellant and respondent made an oral agreement for getting monthly rent of Rs.800/- per month and paid rent for six months, Government is the competent authority for fixing rent and the respondent has to follow the guidelines issued by the PWD. If such guidelines are not followed and not recommended by PWD, the respondent is restricted from acting upon such private agreement. Therefore the contention that the promissory estoppal is applicable is unsustainable in law.
## 6. The apex court in **M/s Shree Sidhbali Steels Ltd. and Ors.** v. **State of U.P. and Ors [AIR 2011 SC 1175]** held as follows:
It may be mentioned that the Electricity (Suppy) Act, 1948 was enacted by the Parliament to provide for the rationalization of the production and supply of electricity and generally for taking measures conducive to electrical development. The Electricity (Supply) Act, 1948 being a Central Act, the provisions of Secs.14 and 21 of the General Clauses Act, 1897 would be applicable. Section 14 of the General Clauses Act, 1897 reads as under:-
“14. Powers conferred to be exercisable from time to time.-
(1) Where, by any Central Act or Regulation made after the
A.S. No.526/1996 6
commencement of this Act, any power is conferred, then unless a different intention appears that power may be exercised from time to time as occasion requires.
(2) This section applies also to all Central Act and Regulations made on or after the fourteenth day of January, 1887.”
Whereas Section 21 of the General Clauses Act, 1897 reads as under:-
“21. Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules or bye-lawsWhere, by any Central Act or Regulations a power to issue notifications, orders, rules or bye-laws is conferred, then the power includes a power, exercisable in the like manner and subject to the like sanction and conditions, if any, to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued.”
Section 14 deals with the exercise of a power successively and has no relevance to the question whether the power claimed can at all be conferred. By Section 14 of the General Clauses Act, 1897, any power conferred by any central enactment may be exercised from time to time as occasion arises, unless a different intention appears in the Act. There is no different intention in the Electricity (Supply) Act, 1948. Therefore, the power to issue a notification under Section 49 of the Act of 1948, can be exercised from time to time if circumstances so require. Section 21 is based on the principle that power to create includes the power to destroy and also the power to alter what is created. Section 21, amongst other things, specifically deals with power to add to, amend, vary or rescind notifications. The power to rescind a notification is inherent in the power to issue the notification without any
A.S. No.526/1996 7
limitations or conditions. Section 21 embodies a rule of construction. The nature and extent of its application must be governed by the relevant statute which confers the power to issue the notification, etc. However, there is no manner of doubt that the exercise of power to make subordinate legislation includes the power to rescind the same. This is made clear by Sec.21. On that analogy an administrative decision is revocable while a judicial decision is not revocable except in special circumstances. Exercise of power of a subordinate legislation will be prospective and cannot be retrospective unless the statute authorizes such an exercise expressly or by necessary implication. The principle laid down in Section 21 is of general application. The power to rescind mentioned in Section 21 is without limitations or conditions. It is not a power so limited as to be exercised only once. The power can be exercised from time to time having regard to the exigency of time. When by a Central Act power is given to the State Government to give some relief by way of concession and/or rebate to newly established industrial units by a notification, the same can be curtailed and/or withdrawn by issuing another notification under the same provision and such exercise of power cannot be faulted on the ground of promissory estoppal. It would be profitable to remember that the purpose of the General Clauses Act is to place in one single statute different provisions as regards interpretations of words and legal principles which would otherwise have to be specified separately in many different Acts and Regulations. Whatever the General Clauses Act says whether as regards the meaning of words or as regards legal principles, has to be read into every statute to which it applies. Further, power to curtail and/or
A.S. No.526/1996 8
withdraw the notification issued under Section 49 of the Electricity (Supply ) Act, 1948 giving rebate is implead under Section 49 itself on proper interpretation of Section 21 of the General Clauses Act. Therefore, this Court is of the firm opinion that, power to curtail and/or withdraw the notification issued under Section 49 of the Electricity (Supply) Act, 1948, granting certain benefits, was available to the respondents.
In this case, the appellant has no right to claim the enhanced rate than the one decreed by the trial court. There is no merit in this appeal and it is dismissed accordingly. No order as to cost.
NS
Sd/- **P.D. RAJAN, JUDGE** / True copy / P.A. To Judge
