W.P.(C) No. 14578 of 2016 (V)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **MONDAY, THE 4TH DAY OF JULY 2016/13TH ASHADHA, 1938** **WP(C).No. 14578 of 2016 (V) ----------------------------** **PETITIONER(S): -------------** **1. N.V.JAMES, AGED 47 YEARS, S/O.VARKEY, PROPRIETOR, MARIA BAKERY, KURAVILANGADU 686633, RESIDING AT NEDUMPARMBIL HOUSE, HOUSE NO. VI/032, KUMARANELLOR, THELLAKOM POST, ADICHIRA, KOTTAYAM - 686630.** **2. CHINNAMMA JOSEPH, AGED 68 YEARS, W/O.LATE JOSEPH, KOYIKKAL STORES, KURAVILANGADU, RESIDING AT KOYIKKAL VI 486, KOZHA POST, KURAVILANGADU - 686633.** **3. P.P.KRISHNAN NAMBOODIRI, AGED 54 YEARS, RAGAM TEXTILES, KURAVILANGADU, RESIDING AT SRI RAGAM, KURICHITHANAM, KOTTAYAM - 686634.** **4. JOSE PHILIP, AGED 48 YEARS, S/O.PHILIP, ANDASSERIL, CHICKEN HOUSE, RESIDING AT ANDASSERIL HOUSE, ELACKAD PO - 686587.** **5. BENNY MATHEW, AGED 48 YEARS, S/O.MATHEW, MATTATHIL BROTHERS, RESIDING AT MATTAM HOUSE, MONIPALLY PO - 686636.** **6. POLY SEBASTIAN, AGED 53 YEARS, S/O.SEBASTIAN, RESIDING AT CHITTAKATTU HOUSE, KURAVILANGADU PO - 686633.** **7. SOJAN V THOMAS, AGED 55 YEARS, S/O.THOMAS, VALLIPALAM BANKERS, KURIVILANGAD PO - 686633, RESIDING AT VALLIPALLAM, MONIPALLY - 686636.** **--2--** **--2--** ## **WP(C).No. 14578 of 2016 (V)** **---------------------------** **8. PRAKASH ISSAC, AGED 42, ST.THOMAS TEXTILES, KURAVILANGADU PO, RESIDING AT PLATHOTATTIL HOUSE, KURIYANADU PO, MONIPALLY - 686636.** **9. ALI V.K, AGED 65 YEARS, S/O.KUNJUMOILY ALI, V.K BROTHERS, KURAVILANGADU, RESIDING AT VALIYAVEETTIL HOUSE, KURAVILANGADU PO.** ## **BY SMT.SUMATHY DANDAPANI (SENIOR ADVOCATE) ADV.SRI.MILLU DANDAPANI** **RESPONDENT(S):** - **--------------** **1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001.** **2. ST. MARY'S FORANE CHURCH, KURAVILANGADU MARTHA MARIYAM, REPRESENTED BY THE MANAGING TRUSTEE, ST. MARY'S FORANE CHURCH, KURAVILANGADU, KOTTAYAM - 686633.** **3. KERALA VYAPARI VYAVASAYI EKOPANA SAMITHI, KURAVILANGADU, REPRESENTED BY ITS PRESIDENT, (K.V.V.E.S), KURAVILANGADU PO, KOTTAYAM DISTRICT - 686633.** **R1 BY GOVERNMENT PLEADER SRI.BABY THOMAS R2 BY ADV. SRI.SIJI ANTONY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 14578 of 2016 (V) ----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS: -----------------------** **P1 : TRUE COPY OF THE ORDER GO(MS) NO. 14/92/HSG DATED 07.03.1992 ISSUED BY THE GOVERNMENT. P2 : TRUE COPY OF THE LEASE DEED NO. 942/02 DATED 17.05.2002. P3 : TRUE COPY OF THE RECEIPT NO.4023 DATED 09.03.2015 FOR RS.4448/-. P4 : TRUE COPY OF THE NOTICE ISSUED TO THE 1ST PETITIONER DATED 29.05.2015. P5 : TRUE COPY OF THE RECEIPT OF THE MONEY ORDER COUPEN DATED 26.08.2015. P5 A : TRUE COPY OF THE RECEIPT OF THE MONEY ORDER COUPON DATED 11.12.2015 FOR RS.4448/-. P5 B : TRUE COPY OF THE RECEIPT OF THE MONEY ORDER COUPON DATED 11.12.2015 FOR RS.1504/-. P5 C : TRUE COPY OF THE POSTA RECEIPT DATED 11.12.2015. P6 : TRUE COPY OF THE RECEIPT NO.313 DATED 29.09.2015 FOR RS.26524/-. P7 : TRUE COPY OF THE RECEIPT NO.314 DATED 29.09.2015 FOR RS.7625/-.** **P8 : TRUE COPY OF THE RENT AGREEMENT DATED NIL. P9 : TRUE COPY OF THE RENT AGREEMENT DATED NIL. P10 : TRUE COPY OF THE LAWYER NOTICE ISSUED TO THE 1ST PETITIONER DATED 26.12.2015. P11 : TRUE COPY OF THE LAWYER NOTICE ISSUED TO THE 1ST PETITIONER DATED 06.08.2014. P12 : TRUE COPY OF THE RECEIPT NO.560 FOR REMITTING THE RENT DATED 09.06.2015 FOR RS.19950/-. P13 : TRUE COPY OF THE RECEIPT NO.2929 FOR REMITTNG THE RENT DATED 08.10.2014 FOR RS.1899/-.** **--2--** **WP(C).No. 14578 of 2016 (V) ---------------------------** **--2--** **P14 : TRUE COPY OF THE LAWYER NOTICE ISSUED TO 3RD PETITIONER DATED 17.03.2016.** **RESPONDENT(S)' EXHIBITS: NIL -----------------------** **//TRUE COPY//** **P.S. TO JUDGE** **mbr/** ## **P.B.SURESH KUMAR, J.** ## **-----------------------------------------------** ## **W.P.(C) No.14578 of 2016** ## **-----------------------------------------------** ## **Dated 4[th] July, 2016.** ## **J U D G M E N T** The petitioners are some of the tenants in a commercial complex owned by the second respondent, St.Mary's Forane Church. The second respondent church being a church of a minority religion, it enjoys the benefit of exemption from the provisions of Sections, 4, 5, 7, 8, 11 and 13 of the Kerala Buildings (Lease and Rent Control)Act, 1965 ('the Act' for short) by virtue of a notification issued by the Government under Section 25(1) of the Act. Ext.P1 is the notification issued by the Government in this connection. The case of the petitioners is that the second respondent owned and possessed about 10 building complexes; that besides the petitioners, there are 80 other tenants who are occupying the buildings of the second respondent and that though the W.P.(C) No.14578/16 2 petitioners are paying rent to the second respondent as per the terms of the agreements periodically without any default, the second respondent is revising the rent and security deposits unilaterally without any basis. It is also the case of the petitioners that since the petitioners are unable to cope with the demands raised from time to time by the second respondent, all of them are under the threat of eviction. According to the petitioners, since the second respondent is charging rent for the portion of the buildings under occupation of the petitioners at exorbitant rates, the freedom given to them by virtue of Ext.P1 notification causes hardship to the petitioners. In other words, the case of the petitioners is that the sweeping provision contained in Ext.P1 exempting buildings of all Churches/Mosques of all the minority religions from the provisions contained in Sections 4, 5, 7, 8, 11 and 13 of the Act is unjust and arbitrary. According to the petitioners, the power under Section 25(1) of the Act to exempt a building from the purview of the provisions of the Act being a power conferred on the Government to exercise, in public interest, the exemption is W.P.(C) No.14578/16 3 not justified in so far as the buildings of the second respondent are concerned. The petitioners have produced a few documents also in this writ petition to establish their case that the rent payable by the petitioners and others are being unilaterally revised. The petitioners, therefore, seek appropriate directions to recall Ext.P1 notification in so far as it relates to the second respondent. 2. A counter affidavit has been filed by the second respondent, contending, mainly that Ext.P1 notification was though held to be arbitrary by this Court in a batch of writ petitions, the said decision was reversed by the Apex Court in **Christ The King Cathedral v. John Ancheril** [2001(2) KLT 946 (SC)]. As such, according to the second respondent, the petitioners are not entitled to any relief in this writ petition. 3. Heard the learned counsel for the petitioners as also the learned counsel for the second respondent. 4. The fact that the validity of Ext.P1 notification was upheld by the Apex Court in **Christ The King Cathedral** (supra) is not disputed by the petitioners. But, according to W.P.(C) No.14578/16 4 them, the notification was upheld by the Apex Court, as, in the cases before the Apex Court, materials were not available to indicate that the landlords in the said cases were charging rent at the normal market rates for their buildings. It is also the case of the petitioners that in so far as there is no dispute in this case that the second respondent is charging rent at the market rates, the notification is bad at least in so far as the buildings of the second respondent are concerned. The petitioners rely on the following observations of the Apex Court in **Christ The King Cathedral** (supra), in support of their case : “If we bear in mind the fact that the purpose of the Act is apparently to prevent unreasonable eviction and also to control rent and if the trustees of religious and public charities are given freedom to charge normal market rent with the further freedom to evict the tenants for not paying such market rent, the result would be unjust and causes hardship to them. But apprehension, by itself, is not sufficient. There is no material on record to show that in any of these cases the landlords would resort to such a cause of action.” According to them, since the buildings are exempted, they are unable to invoke the provisions contained Section 5(1) of the W.P.(C) No.14578/16 5 Act for fixation of fair rent for the building. 5. True, as is evident from the extracted portion of the judgment, the Apex Court has observed that if the trustees of religious and public charities are given freedom to charge normal market rates with the further freedom to evict the tenants for not paying such rents at market rate, the result would be unjust and gross hardship to the tenants. But, it is seen that the decision of the Apex Court in the said case does not rest on the said observation. A reading of the judgment would indicate that the Apex Court reversed the decision of this Court mainly for the reason that if the buildings belonging to such public and religious trusts are exempted from the purview of the Act, the purpose of the trusts can be carried out in a much better manner. As such, merely on account of the observation made by the Apex Court in the decision relied on by the petitioners, it cannot be said that all churches and religious institutions who charge rent at normal market rate from the tenants in their buildings are not entitled to the benefit of exemption. Even otherwise, the question whether a religious W.P.(C) No.14578/16 6 institution or a public trust is behaving like a private individual in the matter of charging rents from the tenants of the buildings owned by them and the question whether that institution is entitled to continue the benefit of exemption conferred on it by virtue of the notification issued by the Government in this regard are questions which are to be decided at the first instance by the Government. Aggrieved tenants cannot approach this Court straight away for an adjudication as to the eligibility or otherwise of the benefit of exemption claimed by that public trust or religious institution. The power to grant exemption includes power to withdraw, rescind and modify the exemption already granted and therefore, the issue whether a particular trust or religious institution is abusing the exemption granted to them and whether such institutions are entitled to exemption in public interest are matters for the State Government to consider at the first instance. In the circumstances, the writ petition is devoid of merits and the same is accordingly, dismissed. It is, however, made clear that this judgment will not preclude the petitioners from pointing out W.P.(C) No.14578/16 7 before the Government by way of a representation seeking orders for modification of Ext.P1 notification on the ground that the second respondent is not justified in public interest to enjoy the benefit of exemption. Sd/- **P.B.SURESH KUMAR, JUDGE.** tgs (true copy)