Case: P. J. Irani Vs. The State Of Madras

JudgmentAyyangar, J. (on behalf of himself, Sinha C. J. and Mudholkar J.)1. This is an appeal against a judgment of a Division Bench of the High Court of Madras on a certificate under Arts. 132 and 133(1) of the Constitution, and raises for consideration the constitutionality of S. 13 of the Madras Buildings (Lease and Rent Control) Act, 1949 and the legality of an order of the State Government passed thereunder.2. The facts giving rise to the appeal are briefly as follows : The dispute relates to premises No. 1, Blackers Road, Mount Road, Madras - a property which was originally owned by one Sir Haji Ismail Sair. In or about the years 1914 one Venkayya obtained a lease of this property from Sir Haji Ismail Sait and constructed a cinema theatre thereon which he ran under the name of "the Gaiety Theatre". Venkayya was adjudicated an insolvent and the Official Assignee of Madras in whom his estate including the leasehold interest in the suit site vested, obtained a further lease of the property from the representatives of Sir Haji Ismail Sait who had by then diesd for a period of 9 years from March 1926. Thereafter the Official Assignee sold the superstructure of the theatre to one Mrs. Madan to whom he also assigned the unexpired portion of the lease. Mrs. Madan, subsequently, obtained a further lease of the property from the representatives of Sir Haji Ismail Saits estate for a further period of 7 years from June 1935 Mrs. Madan was thus the owner of the super-structure and the lessee of the site, with a term which would expire in or about May 1942. While one T.S.P.L.P. Chidambaram Chetty who is the second respondent before us obtained a conveyance of all the rights which Mrs. Madan possessed in the super-structure and in the lease for a sum of Rs. 36,000/- under a registered deed dated January 4, 1937, and he ran the cinema house from then.3. There was litigation between the heirs of Sir Haji Ismail Sait, pending on the original side of the High Court of Madras, and by interim orders passed in two suits (C. S. Nos. 280 and 286 of 1939), the High Court appointed two advocates as Joint Receivers to administer the property in suit. In the the early months of 1940, one J. H. Irani the father of P. J. Irani - the appellant before us - had negotiated with the Receivers for a lease of a property adjacent to No. 1 Blackers Road with a view to construct a cinema theatre thereon. That lease was for a period of 21years and would have expired in or about April May 1961. Irani offered to the Receivers to take a lease also of the property now in dispute and on which the Gaiety theatre stood, also till April-May 1961. The Receivers then moved the Court for directions regarding the grant of the lease. The second respondent, whose term of lease would have expired in 1942, was offered by the Court the option of taking a leased for 21 years from the 1st of May, 1940 but he expressed his unwillingness to take a lease for such a long term. He was, however, willing to have the lease continued for a period of 7 years from the 1st of May 1940 i.e., for 5 years beyond the term of his then existing lease. The Court thereupon passed an order on May 2, 1940, reading :"The lessee of the Gaiety Theatre (Chidambaram Chetty) will be given a lease of seven years from this date. They will not be given any further option. On the expiry of that period, i.e., from 2nd May 1947 the same may be included in the lease of J. H. Irani at the same rate of rent at which it is being leased to the lessee of the Gaiety Theatres."In accordance with this order the Receivers of the estate of the late Sir Haji Ismail Sait executed two lease deeds (1) in favour of the second respondent for a period of 7 years from May 1, 1940 and (2) a reversionary lease in favour of J. H. Irani for a period of 13 years - 11 1/2 months commencing from May 1, 1947, i.e., on the expiry of the lease in favour of the second respondent this term being fixed so as to be conterminous with the lease of the neighbouring property which Irani was being granted.4. The term of the lease in favour of the second respondent would, therefore, have ended on May 1, 1947, but before that date Madras (Lease and Rent Control) Act, 1946 (Madras Act XV of 1946), came into force under which tenants in possession who continued in occupation of residential or non-residential buildings could not be evicted therefrom except by proceedings taken under the Act before designated officers and on stated grounds which did not include the mere expiry of the term. It is now common ground that this enactment covered the second respondents possession of the premises now in dispute and that notwithstanding the termination of the term he was statutorily entitled to continue in possession even after the expiry of the lease on May 1, 1947.5. This is the result of decisions rendered in certain proceedings between the parties to which we shall immediately refer. Irani, the reversionary lessee called upon the second respondent to surrender possession In accordance with the conditions of his lease, but the latter declined to do so relying upon the Act and the protection which it conferred upon him. Thereupon the present appellant - P. J. Irani as representing the estate of his father who had by then died, filed a suit on the original side of the Madras High Court (C.S. 479 of 1947) for evicting the second respondent from the property. It may be mentioned that the suit was based upon the allegation that what had been leased to Venkayya originally was a vacant sit without any buildings and that consequently Madras Act XV of 1946 which did not apply to leases of mere vacant sites did not apply to protect the second respondents possession. The suit was however dismissed by judgment rendered on April 22, 1948, on the finding that a building as well as the site had been included in the lease, which brought it within the scope and protection of the Act. The appellant filed an appeal against this judgment (Original side appeal 37 of 1948) which was also dismissed on July 29 1951, on the same finding. Even while the appeal was still pending before the High Court, Irani applied to the Government of Madras for exemption of the premises from the operation of the Act. By the date of this application Madras Act XV of 1949 had been repealed and its provisions substantially re-enacted in the Madras Buildings (Lease and Rent Control) Act, 1949, but as the provisions of the two enactments on the points which arise for decision in this appeal are identical it is sufficient if reference is made to those of the later Act. A provision for exemption being granted from the operation of the Act by the State Government was contained in S. 13 of the Act (Madras Buildings (Lease and Rent Control) Act, 1949), to which we shall hereafter refer as the Act, in the following terms:"Notwithstanding anything contained in this Act the State Government may by a notification in the Fort St. George Gazette exempt any building or class of buildings from all or any of the provisions of this Act."The Government, however, by their order dated June 4, 1951, rejected this application for exemption on the ground that the matter was then sub judice. After the dismissal of the appeal by the Division Bench the appellant Irani moved the Government afresh by a further petition filed in or about December 1951 praying for the same relief. The Government, by their order dated June 4, 1952, granted the exemption sought and the relevant notification which appeared in the Fort St. George Gazette ran:"In exercise of the powers conferred by Section 13 of the Madras Buildings (Lease and Rent Control) Act, 1949 (Madras Act XXV of 1949) his Excellency the Governor of Madras hereby exempts the building No. 1 Blackers Road, Mount Road, Madras (Gaiety Theatre) from all the provisions of the said Act"and it was authenticated by the Chief Secretary to Government. The second respondent thereupon made a petition to the High Court under Art. 226 of the Constitution challenging the legality and propriety of this order of exemption on the principal ground that the provision contained in S. 13 of the Act enabling the Government to exempt particular buildings from the operation of the Act, vested in them an unguided and arbitrary discretion which was unconstitutional as violate of the equal protection of the laws guaranteed by Art. 14 of the Constitution. In the affidavit in support of the petition the second respondent further averred that in the order impugned "no justification has been shown for depriving the petitioner of the beneficial provisions of the Rent Control Act." Both the State of Madras whose order was impugned as well as the appellant Irani for whose benefit the order was passed were made respondents to this writ petition was dismissed by a learned Single Judge of the High Court by order dated March 12, 1953 on the ground that the constitutional validity of S. 13 of the Act had already been upheld by a Division Bench of the Court in another case. The second respondent thereafter took the matter in appeal under Cl. 15 of the Letters Patent. At the time this appeal was heard the Bench had before it, two other appeals in which also the question whether S. 13 of the Act violated Art. 14 of the Constitution had been raised. The three appeals were heard together and this common point was first decided by a judgment pronounced on October 23, 1953. The learned Judges held that S. 13 of the Act did not offend Art. 14 of the Constitution but that individual orders granting the exemption might be examined to find out whether such orders were within the policy and purpose of the Act or whether they were discriminatory and therefore offended, Art 14. In this view the ground upon which exemption was granted in each of the three cases before them were separately considered and in the appeal by the second respondent the learned Judges after examining the reason disclosed by the Government as to why they granted exemption in the particular case, held that those reasons were not germane to the purpose for which the power of exemption had been vested in them and quashed the order of exemption.6. Irani feeling aggrieved by the decision of the High Court applied to an obtained a certificate under Arts. 132 and 133(1) of the Constitution and has filed the present appeal before us. The State of Madras has not appealed but as a respondent has filed a statement which was repeated by counsel on their behalf, that they were not interested in disputing the correctness of the judgment of the High Court but left the matter to be decided between the rival contestants, viz., Irani and the second respondent.7. Mr. Sachin Chowdhary - learned Counsel for the appellant Irani-urged substantially two points before us: (1) that the impugned order of the Government exempting the buildings under S. 13 of the Act was executive or administrative in its nature and not quasi-judicial as wrongly held by the High Court, and was, therefore, not amenable to be quashed by the issue of a writ of certiorari (2) Assuming that the order was quasi-judicial, still it could be quashed or set aside only if it were mala fide or proceeded upon grounds wholly extraneous for the purpose of the enactment and that in the instant case neither of these conditions was fulfilled and the High Court was therefore not justified in setting it aside. He further submitted that the High Court had erroneously converted itself, as it were, into a court of appeal, put itself in the place of the Government and decided the case on the basis of what the court itself would have done if it were the exempting authority. Learned counsel urged that this went beyond the supervisory jurisdiction of the High Court in the exercise of its powers under Art. 226 even when dealing with a quasi-judicial order.8. Before dealing with these points it in necessary to mention that obviously these arguments proceed upon the basis that the power conferred by S. 13 of the Act in the State Government to exempt "buildings or class of buildings" from the operation of the Act is constitutionally valid. We are saying this because Mr. Viswanatha Sastri - learned counsel for the second respondent - disputed before us the correctness of the decision of the High Court dated October 23, 1953, upholding the validity of S. 13 of the Act. It is manifest therefore that the point urged by Mr. Viswanatha Sastri should first be decided before considering the points urged in support of the appeal.9. Learned counsel for the appellant, however, raised an objection, to counsel for the respondent being permitted to contest the validity of S. 13 of the Act. He pointed out that the question of the validity of S. 13 had been decided by a judgment rendered on October 23, 1953, and that as the respondent did not prefer an appeal to this Court from that judgment, he was precluded from agitating this question in the appeal now before us. We consider this objection as without substance. By its order dated October 23, 1953, Writ Appeal 28 of 1953 against the decision in which this appeal has been brought was not disposed of but was still kept pending before the High Court for further consideration and as observed by the learned Chief Justice in that judgment:"In this view we cannnot strike down S. 13 of the Act as inconsistent with the Constitution and void but we have to examine each case on its merits."Writ Appeal 28 of 1953 was thereafter dealt with on its merits and it was this examination which resulted in its being allowed In our opinion, therefore, the two judgments have to be read together and as really part of one proceeding ,though for convenience and with a view to define the scope of the arguments the Court expressed its opinion on the constitutional point at an earlier stage. We also consider that it is doubtful if an appeal would have lain from the judgment of the High Court dated October 23, 1953, and even assuming that it did in view of the matters which we have set out earlier, the respondent cannot be precluded from contesting the correctness of the conclusion of the High Court, by reason of his not having moved this Court under Art, 136 of the Constitution. We therefore consider that the respondent is entitled to support the judgment in his favour by attacking those portions of that judgment which are against him.10. The submission of Mr. Viswanatha Sastri was that S. 13 of the Act conferred an unguided and arbitrary power on Government to discriminate between one building and another and choose at their will and pleasure particular buildings which would be subject to the provisions of the Act and others which would not be so subject, the tenants in the latter being deprived of the protection conferred on other tenants similarly situated. He further urged that whether or not a power to exempt a class of buildings was valid, because in such a case there might possibly be an element of classification based on rational grounds - grounds germane to carry out the policy or purpose of the Act - the same could not be predicated of the power to grant exemption for individual buildings because in the latter case it would be merely an arbitrary exercise of power discriminating between one building and another, or one tenant and another and which would, therefore, render the very conferment of the power invalid as in violation of the equal protection of the laws guaranteed by Art. 14(10-a)The arguments addressed to us were the same as had been urged before the learned Judges of the high Court and had been repelled by them. They pointed out that it was not correct to say that the enactment did not sufficiently disclose the policy and purpose of the Act which furnished adequate guidance for the basis of the exercise of the power of exemption. The preamble to the Act ran:"Whereas it is expedient to regulate the letting of residential and non-residential buildings and to control the rents of such building and to prevent unreasonable eviction of tenants therefrom in the State."This meant that the legislation was enacted for achieving three purpose: (1) The regulation of letting, (2) The control of rents and (3) The prevention of unreasonable eviction of tenants from residential and non-residential buildings. The Act was the latest in the series of enactments and orders dating back to the period of the Second World War when due, inter alia, to large scale movement of populations to urban areas, there was an acute shortage of accommodation in the principle towns, as a result of which tenants ousted from buildings occupied by them on the termination of their tenancies could not find alternative accommodation and were thrown on the streets, and thus owners of house-property could, it left unchecked, unfairly exploit those who sought accommodation. The enactment in terms protected the rights of tenants in occupation of buildings from being charged unreasonable rates of rent and from being unreasonably evicted therefrom. Tenants who required this protection included of course, those whose duration of tenancy under the ordinary law had expired and who would, therefore have been liable to be ejected from the buildings occupied by them. Accordingly, the definition of a "tenant" included those who continued in possession notwithstanding their term of tenancy had expired and even those against whom decrees for eviction had been passed by Civil Courts but under which eviction had not taken place.11. Though the enactment thus conferred these rights on tenants it was possible that the statutory protection could either have caused great hardship to a landlord or was the subject of abuse by the tenant himself. It was not possible for the statute itself to contemplate every such contingency and make specific provision therefor in the enactment. It was for this reason that a power of exemption in general terms was conferred on the State Government which however could be used not for the purpose of discriminating between tenant and tenant, but in order to further the policy and purpose of the Act which was, in the context of the present case, to prevent unreasonable eviction of tenants. The learned Judges of the High Court, therefore, held that while s. 13 of the Act was constitutionally valid, any individual order of exemption passed by the Government could be the subject of judicial review by the Courts for finding out whether (a) it was discriminatory so as to offend Art. 14 of the Constitution. (b) the order was made on grounds which were germane or relevant to the policy and purpose of the Act, and (c) it was not otherwise mala fide.12. We find ourselves in complete agreement with the approach and conclusion of the learned Judges of the High Court to the consideration of the question of the constitutional validity of S. 13 of the Act.13. The meaning and scope of Art. 14 of the Constitution has been the subject of several decisions of this Court, a number of which have been considered by us in some detail in Jyoti Pershad v. Administrator of Union Territory (Writ Petn. No. 67, etc. of 1959: (AIR 1961 SC 1602 ) in which we have pronounced judgment today.In view of this we find it unnecessary to traverse the same ground except to say that in the case before us enough guidance is afforded by the preamble and operative provisions of the Act, for the exercise of the discretionary power vested in Government so as to render the impugned section not open to attack as a denial of the equal protection of the laws. In our judgment, the provision now impugned belongs to the class numbered (v) in the analysis of the decision of Art. 14 by Das C. J. in Ram Krishna Dalmia v. Justice Tendolkar 1959 SCR 279 a t p. 300 (AIR 1958 SC 538 at p. 549):"A statute may not make a classification of the persons or things to whom their provisions are intended to apply and leave it to the discretion of the Government to select or classify the persons or things for applying those provisions according to the policy or the principle laid down by the statute itself for guidance of the exercised of discretion by the Government in the matter of such selection or classification. If the Government in making the selection of classification does not proceed on or follow such policy or principle, ........... the executive action but not the statute should condemned as unconstitutional."Possibly even a more apt precedent is that furnished by Inder Singh v. State of Rajasthan, 1957 SCR 605 at p. 621: ((S) AIR 1957 SC 510 at pp. 516-517) where among others, the validity of S. 15 of the Rajasthan (Protection of Tenants) Ordinance, 1949 was upheld. That section authorised the Government to exempt any person or class of persons from the operation of the Act and it was urged before this Court that this offended Art. 14. The argument was repelled, observing:"It is argued that that section does not lay down the principles on which exemption could be granted, and that the decision of the matter is left to the unfettered and uncanalised discretion of the Government, and is therefore repugnant to Art. 14. It is true that that section does not itself indicate the grounds on which exemption could be granted, but the preamble to the Ordinance sets out with sufficient clearness the policy of the legislature; and as that governs S. 15 of the Ordinance, the decision of the Government thereunder cannot be said to be unguided; Vide Harishanker Bagla v. State of Madhya Pradesh, (AIR 1954 SC 465 )."The learned Judge of the High Court were therefore correct in their conclusion that S. 13 of the Act was constitutionally valid but that individual orders of Government passed under that section could be the subject of judicial review in the manner already indicated.14. We shall now proceed to consider the points urged by learned counsel for the appellant contesting the correctness of the decision of the High Court setting aside the order of Government exempting the premises in dispute for the reason that it was passed on grounds not germane to the purpose for which the power was conferred. As already stated, the first point urged was that the order granting the exemption was an executive or an administrative order which was not amenable to being quashed by the issue of a writ of certiorari. We consider there is no substance in this objection. If the High Court were right in their view that the order of exemption was passed for reasons which did not fall within the purpose for which the power was conferred by S. 13 of the Act the order itself would be one discriminatory of the second respondent as violating his fundamental right to equal protection of the laws. In such an event Art. 226 would certainly be available to set aside such an order which affected the fundamental right of the petitioner before the Court. Indeed, it was on the ground that individual orders passed by Government by virtue of the power conferred upon it by S. 13 of the Act were examinable by the Court for their violating Art. 14 that the constitutionality of S. 13 was upheld and in the circumstances no objection could, therefore, be taken to a judicial review of such individual orders. Besides even if the order did not violate Art. 14, still if the High Court were right in the view that the same was beyond the powers conferred on Government by S. 13 of the Act,we see no substance in the contention that the Court lacks power under Art. 226 to set aside as ultra vires order vitally affecting a persons right to statuary protection against eviction. We do not consider that immunity from interference by the Courts could be sought for orders which are plainly ultra vires merely because they were passed bona fide in the sense of being without indirect motive. Particularly so when the power of the High Court under Art. 226 of the Constitution is not limited to the issue of writs falling under particular groupings, such as the certiorari, mandamus, etc., as these writs have been understood in England, but the power is general to issue any direction to the authorities, viz., for enforcement of fundamental rights as well for other purposes.15. The second point urged was, and this was the main point argued by learned counsel for the appellant,-that the learned Judges of the High Court were in error in holding (a) that the reasons given by the Government were not germane to the purpose or policy of the Act and, therefore, outside the power conferred on them by S. 13 of the Act, and (b) in constituting themselves, as it were, as an appellate authority and examining the reasons which induced the Government to grant the exemption, and pronouncing upon the correctness or otherwise of these reasons.16. Before considering this argument it is necessary to advert to a submission of the learned counsel for the appellant suggesting that the High Court were in error in calling for the reasons which induced the Government to pass the orders of exemption though w hen the reasons were before the Court it was in a position to examine the legality of the order. We do not consider this submission well-founded. The entire basis for upholding the constitutional validity of S. 13 of the Act and considering that it did not offend the equal protection of the law guaranteed by Art. 14 of the Constitution was, that the discretion or the power conferred upon Government was not unguided, uncanalised or arbitrary but that it had to be exercised in accordance with the policy and object of the enactment gatherable from the preamble as well as its operative provisions. The order itself might on its face have shown that it conformed to this requirement in which event it would have been for the party challenging the validity of the order to establish to the satisfaction of the Court that it was mala fide or had been passed on grounds not contemplated by or extraneous to, the object and purpose of the enactment or the principles which should have governed the exercise of the power. For instance, if the exemption had been in favour of a particular class of buildings, say those belonging to charities - religious or secular - the classification would have been apparent in the very order of exemption. Where, however, the exemption granted is not of any class of buildings which would ex facie disclose a classification, but the exemption is of a specified building owned by A or in which B is a tenant, then prima facie it would be discriminatory and when the legality or the order is challenged, its intra vires character could be sustained only by disclosing the reasons which led to the passing of the order.17. In the present case, when the matter was before the appellate Court the Advocate-General filed a memorandum setting out the reasons why exemption was granted in the three cases before the Court. In regard to the exemption which was the subject of controversy in Writ Appeal 28 of 1953 with which we are concerned, the memorandum which the Government filed ran :"The Government exempted the building........... for the following reasons :-(1) When the High Court offered in 1940 to lease out the premises in question for a period of 21 years, Sri Chettiar elected to take it on lease only for a period of seven years which expired in 1947. As per the High Courts order in C. S. Nos. 280 to 286 of 1939, Sri J. H. Irani, father of Sri P. J. Irani took a lease of the premises for a period of 13 years 11 1/2 months from 1947 and he deposited Rs. 10,000 towards the said lease. He is therefore entitled for the benefits from 1948 onwards.(2) Had not the Rent control Act come into force Sri P. J. Irani would have got possession in the ordinary course as per High Courts order and the terms of the lease deed. The operation of the Act is therefore really a hardship to him.(3) Sri Chettiar is only an absentee lessee and he is having several other businesses in South India.(4) The conduct of Sri Chidambaram Chettiar in refusing to surrender the possession of the building to Sri P. J. Irani who had taken a valid lease under the orders of the High Court is that of a hard litigant seeking to exploit the letter of the law without much regard to bona fides; and(5) Sri Chettiar had already managed to be in possession of the building for five more years that he was legitimately entitled to be."The learned Judges of the High Court held that the reasons which led the Government to grant the exemption were not those which were countenanced by the policy or purpose of the Act and that the order of exemption was, therefore, invalid. In doing so the learned Judges said:"Reasons 1, 2, and 4 go together and have reference to the order of the High Court in 1940 directing the Receivers to execute a lease for seven years to the appellant and after the expiry of that period to grant a lease for fourteen years to the second respondents father. It is undoubtedly true that but for the application of the Act, the second respondents father would have obtained possession of the premises after the expiry of lease in favour of the appellant. That could be said of thousands of cases in which the leases in favour of tenants have expired and, but for the Act the owners would be entitled to obtain possession of the demised premises. If this circumstance alone is sufficient to exempt any premises from the operation of the Act, then the Act itself should be repealed ........... There is no policy or principle involved in this circumstance."We agree with the learned Judges in the view here expressed. The mere fact that the tenant continued in possession after the termination of the tenancy is by itself no ground why he should be evicted from the premises, because it is the very policy of the Act to protect the right of tenants to continue in possession of the premises after the termination of their term because of the great difficulty of their obtaining alternative accommodation. The circumstance, therefore, of the termination of the second respondents tenancy cannot afford a justification for Government to say that he deserved to be evicted. It the term had not expired the tenant would have been entitled to continue in possession even if the exemption were granted.18. Learned counsel for the appellant urged that the High Court had failed to notice that the present case was one where there was a contest between two tenants and not between a landlord and a tenant and that they erred in approximating the position of the appellant to that of the landlord. We see no force in this contention because a lessee of the reversion stands in the same position as a landlord and cannot have any higher rights, nor can the appellant derive any assistance from the fact that the second respondent declined to be a lessee for any term longer than seven years when that option was offered to him by the High Court in April-May 1940.The position of the second respondent cannot be worse than if he had taken a lease for a definite term of seven years with a covenant to restore possession at the end of the period. The fact that in May 1940, the second respondent had an option to take a lease for a longer term, but of which he did not avail himself, does not make any difference or render that a ground for withdrawing from him the protection of the statute.19. We also agree with the learned Judges of the High Court that ground No. 3 is not germane for granting an exemption. As was pointed out, "the important point to be considered by the Government was whether the appellant had no other theatres at which he could carry on the business which he was carrying on at the Gaiety theatre", and this they omitted to consider. The reason why the possession of the tenant whose term had expired was afforded statutory protection was his liability to secure alternative accommodation in which either to reside in the case of residential buildings or to carry on the business which he was carrying on in the case of non-residential buildings. This was therefore a relevant matter which the Government had failed to take into account. The High Court characterised reason No. 5 as really not a reason at all and we agree with this observation. The statute had admittedly conferred upon tenants, such as the second respondent the right to continue in possession after the termination of the lease in their favour and the fact that such a tenant had exercised the rights conferred upon him by statute was certainly not an improper conduct meriting his being deprived of the statutory protection afforded by S. 7.20. The learned Judges further pointed out that the order of Government was defective, in that it had not taken into account several relevant matters as for instance the second respondent expending considerable sums to carry out improvements to the theatre in 1949, etc. which bore upon the exercise of their power, and which if taken into account would have weighed against the grant of the exemption. In view however of the conclusion reached that the reasons assigned by Government for their order were not germane to the policy and purpose of the fact, we do not consider it necessary to pursue the matter further.21. The further point urged regarding the learned Judges of the High Court having erroneously constituted themselves into a Court of appeal need not detain us long.The short answer to it is that the learned Judges had not done so. The submission ignores the distinction between findings on facts which the Court in proceedings under Art. 226 must, save in very exceptional cases, accept as correct and the relevance of those facts for considering whether their establishment satisfied the grounds necessary for the exercise of the power vested in Government under S. 13 of the Act. For instance in the case on hand, no fact found by the Government or stated by them as the reason or reasons which induced them to grant the exemption were even challenged before the High Court, the only contention urged by the second respondent which was accepted by the High Court, being that these facts were irrelevant for justifying the order.

Decision:
0[ds]Writ Appeal 28 of 1953 was thereafter dealt with on its merits and it was this examination which resulted in its being allowed In our opinion, therefore, the two judgments have to be read together and as really part of one proceeding ,though for convenience and with a view to define the scope of the arguments the Court expressed its opinion on the constitutional point at an earlier stage. We also consider that it is doubtful if an appeal would have lain from the judgment of the High Court dated October 23, 1953, and even assuming that it did in view of the matters which we have set out earlier, the respondent cannot be precluded from contesting the correctness of the conclusion of the High Court, by reason of his not having moved this Court under Art, 136 of the Constitution. We therefore consider that the respondent is entitled to support the judgment in his favour by attacking those portions of that judgment which are againstwas not possible for the statute itself to contemplate every such contingency and make specific provision therefor in the enactment. It was for this reason that a power of exemption in general terms was conferred on the State Government which however could be used not for the purpose of discriminating between tenant and tenant, but in order to further the policy and purpose of the Act which was, in the context of the present case, to prevent unreasonable eviction of tenants. The learned Judges of the High Court, therefore, held that while s. 13 of the Act was constitutionally valid, any individual order of exemption passed by the Government could be the subject of judicial review by the Courts for finding out whether (a) it was discriminatory so as to offend Art. 14 of the Constitution. (b) the order was made on grounds which were germane or relevant to the policy and purpose of the Act, and (c) it was not otherwise mala fide.12. We find ourselves in complete agreement with the approach and conclusion of the learned Judges of the High Court to the consideration of the question of the constitutional validity of S. 13 of thethe High Court were right in their view that the order of exemption was passed for reasons which did not fall within the purpose for which the power was conferred by S. 13 of the Act the order itself would be one discriminatory of the second respondent as violating his fundamental right to equal protection of the laws. In such an event Art. 226 would certainly be available to set aside such an order which affected the fundamental right of the petitioner before the Court. Indeed, it was on the ground that individual orders passed by Government by virtue of the power conferred upon it by S. 13 of the Act were examinable by the Court for their violating Art. 14 that the constitutionality of S. 13 was upheld and in the circumstances no objection could, therefore, be taken to a judicial review of such individual orders. Besides even if the order did not violate Art. 14, still if the High Court were right in the view that the same was beyond the powers conferred on Government by S. 13 of the Act,we see no substance in the contention that the Court lacks power under Art. 226 to set aside as ultra vires order vitally affecting a persons right to statuary protection against eviction. We do not consider that immunity from interference by the Courts could be sought for orders which are plainly ultra vires merely because they were passed bona fide in the sense of being without indirect motive. Particularly so when the power of the High Court under Art. 226 of the Constitution is not limited to the issue of writs falling under particular groupings, such as the certiorari, mandamus, etc., as these writs have been understood in England, but the power is general to issue any direction to the authorities, viz., for enforcement of fundamental rights as well for otherentire basis for upholding the constitutional validity of S. 13 of the Act and considering that it did not offend the equal protection of the law guaranteed by Art. 14 of the Constitution was, that the discretion or the power conferred upon Government was not unguided, uncanalised or arbitrary but that it had to be exercised in accordance with the policy and object of the enactment gatherable from the preamble as well as its operative provisions. The order itself might on its face have shown that it conformed to this requirement in which event it would have been for the party challenging the validity of the order to establish to the satisfaction of the Court that it was mala fide or had been passed on grounds not contemplated by or extraneous to, the object and purpose of the enactment or the principles which should have governed the exercise of the power. For instance, if the exemption had been in favour of a particular class of buildings, say those belonging to charities - religious or secular - the classification would have been apparent in the very order of exemption. Where, however, the exemption granted is not of any class of buildings which would ex facie disclose a classification, but the exemption is of a specified building owned by A or in which B is a tenant, then prima facie it would be discriminatory and when the legality or the order is challenged, its intra vires character could be sustained only by disclosing the reasons which led to the passing of themere fact that the tenant continued in possession after the termination of the tenancy is by itself no ground why he should be evicted from the premises, because it is the very policy of the Act to protect the right of tenants to continue in possession of the premises after the termination of their term because of the great difficulty of their obtaining alternative accommodation. The circumstance, therefore, of the termination of the second respondents tenancy cannot afford a justification for Government to say that he deserved to be evicted. It the term had not expired the tenant would have been entitled to continue in possession even if the exemption were granted.We also agree with the learned Judges of the High Court that ground No. 3 is not germane for granting an exemption. As was pointed out, "the important point to be considered by the Government was whether the appellant had no other theatres at which he could carry on the business which he was carrying on at the Gaiety theatre", and this they omitted to consider. The reason why the possession of the tenant whose term had expired was afforded statutory protection was his liability to secure alternative accommodation in which either to reside in the case of residential buildings or to carry on the business which he was carrying on in the case of non-residential buildings. This was therefore a relevant matter which the Government had failed to take into account. The High Court characterised reason No. 5 as really not a reason at all and we agree with this observation. The statute had admittedly conferred upon tenants, such as the second respondent the right to continue in possession after the termination of the lease in their favour and the fact that such a tenant had exercised the rights conferred upon him by statute was certainly not an improper conduct meriting his being deprived of the statutory protection afforded by S. 7.20. The learned Judges further pointed out that the order of Government was defective, in that it had not taken into account several relevant matters as for instance the second respondent expending considerable sums to carry out improvements to the theatre in 1949, etc. which bore upon the exercise of their power, and which if taken into account would have weighed against the grant of the exemption. In view however of the conclusion reached that the reasons assigned by Government for their order were not germane to the policy and purpose of the fact, we do not consider it necessary to pursue the matter further.21. The further point urged regarding the learned Judges of the High Court having erroneously constituted themselves into a Court of appeal need not detain us long.The short answer to it is that the learned Judges had not done so. The submission ignores the distinction between findings on facts which the Court in proceedings under Art. 226 must, save in very exceptional cases, accept as correct and the relevance of those facts for considering whether their establishment satisfied the grounds necessary for the exercise of the power vested in Government under S. 13 of the Act. For instance in the case on hand, no fact found by the Government or stated by them as the reason or reasons which induced them to grant the exemption were even challenged before the High Court, the only contention urged by the second respondent which was accepted by the High Court, being that these facts were irrelevant for justifying the order.