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Sri La Sri Siva Shanmugha Arumugha ... vs S. Subramanian And Anr. on 11 November, 1981
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8. An appeal was preferred by the defendants and on the point "whether the suit is not maintainable and if so whether the remedy of the plaintiff is to seek the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act?", the lower Appellate Court came to the conclusion that the law as it stood on the date when the judgment was rendered will have to be administered by the Court, that on the date when the matter came up for enquiry and decision of the Court, the Government Order had been introduced, taking away the private trust from the sphere of exemption and on the date when the judgment was rendered the plaintiff, being a private trust, was one which came under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act. Therefore, the lower Appellate Court held that the Trial Court ought to have applied only the law as it then stood, namely, when the matter was taken up for trial and when the judgment was rendered and since on the date of the trial and judgment, the exemption had been taken away in respect of private trusts the suit is not maintainable. It was further held by the lower Appellate Court that the remedy of the plaintiff is only under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act and that in view of the decision in Ethirajammai v. Hassan Khanoo alias N. M. Hassan , the suit is not maintainable and the remedy of the plaintiff is only under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act and accordingly the appeal was ailowcd by the lower Appellate Court and the judgment and decree of the Trial Court were set aside.

12. On the other hand, the text of the Notifications issued by the Government of Tamil Nadu as per G.O. Ms. No. 1998, Home, dated 12th August, 1974, is as follows:

In exercise of the powers conferred by Section 29 of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (Tamil Nadu Act XVIII of 1960) the Governor of Tamil Nadu hereby exempts all the buildings owned by, the Hindu, Christian and Muslim religious trusts and Charitable Institutions from all provisions of the said Act.

13. A reading of the above G.O. Ms. No. 898, Home, dated 12th August, 1974, clearly shows that exemption has been granted from the operation of the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act (Tamil Nadu Act XVIII of 1960) with respect to all buildings owned by both public as well as private trusts. On the other hand, a reading of G.O. Ms. No. 2000, Home, dated 16th August, 1976, shows that the exemption has granted only with respect to buildings owned by the public trusts and public charitable trusts from all the provisions of the Tamil Nadu Act XVIII of 1960. We find that the exemption contemplated by G.O. Ms. No. 1998, Home, dated 12th August, 1974, inter alia applies to all the buildings owned by Hindu religious trusts and charitable institutions, without exceptions. All buildings to which the Notification applies are exempt from all the provisions of the Act without exception. It is also relevant in this connection to note that Section 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, by its provisions deals with the exemption, and the same reads as follows:

17. It is relevant in this connection to note that in Globe Theatres v. State of Madras , a Division Bench of this Court considered the constitutional validity of a similar power of exemption conferred on the State Government by an identical provision in Section 13 of the Madras Buildings (Lease and Rent Control) Act (XXV of 1949) and proceeded in that case on the footing that Government's power under the section to exempt any building or class of buildings from the provisions of the Act was purely in executive discretion. The contention that was raised before the Bench was that the discretion, as conferred by the Statute, was arbitrary. The Bench, however, expressed the view that in the context of the scheme of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1949 and its various provisions, the discretion to exempt was a guided and controlled discretion. Section 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (Tamil Nadu Act XVIII of 1960) is in the same terms and has to be viewed as conferring on the State Government an executive discretion in the matter of exemption. This view is also further strengthened by the provision under the succeeding section, Section 30 of the Act of 1960, in which by contrast, the exemption to certain classes of buildings, is exigible under the very terms of that statutory provision. Thus, it follows that the Government's power under Section 29 of the Act of 1960 is purely an executive power. It is a power which is exercisable only prospectively and if a Notification is issued with retrospective effect, the Notification, to that effect, would be ultra vires the provisions of Section 29 of the Act. In this regard, we can resort to the ratio decidendi imbedded in the decision rendered by the Supreme Court in Income tax Officer Alleppey v. M. C. Ponnoose and Ors. , In the said case, the Court was concerned with a Notification, which was stated to have retrospective operation, but the Court, on construction of the enabling provisions of the Act, held that the Notification to the extent that it was expressed to operate retrospectively was ultra vires as being in excess of the powers conferred on the executive by the Statute.

33. On a careful and anxious scrutiny of the entire evidence available on record, both oral and documentary, together with the ratio decidendi imbedded in the decisions referred to by either side in this case, this Court finds that inasmuch as the subsequent Government Order viz., G.O. Ms. No. 2000, Home, dated 16th August, 1976, does not specify that it is retrospective in its operation and it only supersedes the earlier Government Order viz., G.O. Ms. No. 1998, Home, dated 12th August, 1974, and that by the subsequent G.O. the Government, by virtue of the powers vested with it under Section 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act (Tamil Nadu Acs XVIII of 1960, has specified that the exemption is only granted to the public trusts, whereas in the earlier Government Order, the benefit of exemption could be invoked by both viz., the private as well as public trusts in getting themselves exempted from the provisions of the special enactment, namely, the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960) (Tamil Nadu Act XVIII of 1960), it is only the provisions of the earlier Government Order viz., G. O Ms. No. 1998, Home, dated 12th August, 1974, that are applicable to the instant case. Therefore, necessarily the appeal has to be allowed.