1. In this Original Petition the petitioner prays for the issuance of a writ of certiorari or any other appropriate writ, order or direction quashing Ext. P2 G.O(MS) No. 27/84.PW dated 17-3-1984, a notification issued by the second respondent State of Kerala in exercise of the powers conferred on it by sub-section (1) of S. 25 of the Kerala Buildings (Lease & Rent) Control Act, 1965 (2 of 1965) (hereinafter referred to as ‘the Act’) exempting in public interest the buildings owned by the first respondent. The main grounds of attack against Ext. P2 is that it is vitiated by errors apparent on the face of the record and violation of the principles of natural justice.
2. Having heard learned counsel for the petitioner and learned counsel appearing for the respondents, I am of the view that the petitioner is not entitled to succeed in this Original petition. Learned counsel appearing for the first respondent brought to my notice the decision of the Supreme Court reported in K. Kandaswami Chettiar v. Slate of T.N ((1985) 1 SCC 290 : AIR 1985 SC 257) and a host of other decisions including the decisions of this court reported in Shylaja Manoharlal v. State of Kerala (1987 (2) KLT 515), Jacob Kurien v. Kerala State Housing Board & Others (1987 (2) KLT 889) and State Of Kerala v. Vijayan (1978 KLT 342) bearing on the subject which says that the act of granting exemption under S. 25(1) of the Act is a legislative act and such an act of exemption need not be by an order disclosing reasons.
3. Even if reasons are needed, they are found in the counter affidavit filed by the first respondent wherein it is stated that the first respondent is a charitable institution whose function is “to provide rooms in hospitals to the public on a no profit basis.” Grant of exemption in favour of charitable bodies like the petitioner must be held to be in public interest. Even though no reasons are stated in the notification granting exemption, it is enough if it is stated in the counter affidavit. The notification granting exemption is undisputably being in public interest, the same is not open to challenge on the ground urged in the Original Petition.
4. Before closing, I would like to sound a word of caution. I shall not be understood as having held that whenever and to whomsoever the Government grants exemption in exercise of the power conferred on it under S. 25 of the Act the same is immune from attack on the ground that the power exercised is legislative in character. It is quite possible to argue that the power conferred on the Government under S. 25 of the Act is to exercise a particular discretionary power which is subject to the test of reasonableness. (See in this connection the decision of the Supreme Court reported in Indian Express Newspaper (Bombay) Pvt. Ltd. v. Union of India, etc. ((1985) 1 SCC 641 : AIR 1986 SC 515). Now, is there any yardstick to decide the reasonableness of a discretionary power? In his often quoted celebrated judgment Lord Greene M.R laid down the following proposition which has become known as the Wednesbury Principle—
“It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word “unreasonable” in a rather comprehensive sense. It has frequently been used and is frequently used as a general discription of the things that must no be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may trully be said, and often is said, to be acting “unreasonably”. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington L.J in Short v. Poole Corporation gave the example of the red-haired teacher, dismissed because she had red hair. This is unreasonable in one sense. In another itn is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another.”
vide Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, (1948) 1 K.B 223 at 230.
5. Wednesbury's principle has been approved by the Supreme Court in many cases. (See in this connection Indian Express Newspaper (Bombay) Pvt. Ltd. v. Union of India etc., (1985) 1 SCC 641 : AIR 1986 SC 515 supra. At any rate, no such case based on discretionary powers and reasonableness has been pressed before me and hence I do not propose to deal with that aspect any further and decide this case on the basis that the act of granting exemption under S. 25(1) of the Act is a legislative act in which case the question of reasonableness cannot be enquired into and this court cannot therefore sit in judgment over such decisions.
6. In the result, the petitioners is not entitled to succeed in this Original petition and the impugned notification is only to be upheld. I do so.
7. Original Petition is dismissed.
8. Dismissed.