K C NAMBIAR Vs. STATE OF MADRAS
HIGH COURT OF MADRAS
STATE OF MADRAS BY ITS CHIEF SECRETARY
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Subba Rao, J. -
(1.) This is an application for issuing a writ of certiorari to call for the records and quash the order of the Government of Madras dated 9-9-1950. The petitioner is a doctor. Premises No. 2/157 Pursawalkam High Road is owned by three brothers, P. Sourirajulu Naidu, Rangarajulu Naidu and Dhanarajulu Naidu. On 10-10-1938 the petitioner took the said house on, lease for the purpose of running a nursing home, since .that time he has been running a nursing home under the name and style of "Nambiar's hospital". On 6-2-1945 Sourirajulu Naidu, since dead, filed an application before the Rent Controller, H. R. C. No. 3939 of 1945 for evicting the petitioner on the ground that he made a default in the payment of rent. But that was dismissed on 13-12-1945. In October 1946, he filed another application, H. R. C. No. 5244 of 1946, seeking to evict him on the ground that the petitioner was in arrears of rent and that he wanted the premises for his personal use. On 5-7-1947 the House Rent Controller dismissed the application. An appeal filed against that order to the Court of Small Causes, Madras, was dismissed. The landlords filed C. M. P. No. 4139 of 1948 for issuing a writ of certiorari to quash the order of the Small Cause Judge, but that was dismissed by a Divisional Bench of this court on 6-10-1948. Rangarajulu Naidu filed another application, H. R. C. No. 4788 of 1949, for evicting the petitioner, alleging that he required the upstairs for his own occupation. The House Rent Controller ordered that application. The petitioner preferred an appeal against that order to the Court of Small Causes at Madras, which held that the building was a non-residential one and that a second petition on the same facts was barred under Section 10 of the Madras Buildings (Lease and Rent Control) Act, 1949 (hereafter called the Act). That order was made on 10-4-1950. Thereafter the landlords approached the Government with a request to exempt their building from the operation of the provisions of the Act. The Government by their order dated 9-9-1950 exempted the building under Section 13 of the Act. The aforesaid petition was filed for getting the said order quashed. The Government filed a counter affidavit supporting their order, but when the application came up for final disposal, the learned counsel appearing for the Government represented that the Government did not propose to support the order but leave it to the landlords to support the same if they thought fit to do so. The landlords filed an application, C. M. p. No. 11818 to add them as party-respondents. This application was strongly opposed by the learned counsel for the petitioner. He contended that the writ nisi was issued against the Government and when they did not oppose it, the writ should be made absolute and the landlords had no locus standi to intervene in the proceedings. He further argued that in a writ of certiorari the tribunal whose order is sought to be quashed is the only necessary party and therefore the landlords need not be made parties to the petition. I cannot agree. If this contention be accepted, the High Court would be issuing writs against the interests of parties without hearing them even though they are anxious to be represented in Court. That procedure would be against all principles of natural justice. No authority has been cited to me which compels me to hold that a party affected has no right to be hoard in a writ of certiorari. It is one thing to say that in a writ of certiorari the tribunal whose order is sought to be quashed is a necessary party. But it is altogether a different thing to assert that the party affected should not be heard. If the tribunal is a necessary party, the party affected is proper party. Further to meet this situation, Title 6 of the rules to regulate proceedings under Article 226 of the Constitution has been framed which enables the court to give a hearing to the" parties affected. The said rule reads: "At the hearing of the petition, any person who . desires to be heard in opposition to the petition and appears to the court to be a proper person to be heard shall be heard, notwithstanding that he has not been served with notice, and subject to such conditions as to costs as the court may deem fit to impose." The landlords are certainly proper parties to be heard, the order of the Government is in their favour and they are interested to support it.
(2.) Nor can the petitioner rely upon the alleged concession made by the Government Pleader. The learned Government Pleader did not concede that the order made by the Government was bad and was, therefore, liable to be quashed. But what he stated was that he was asked not to support the order but leave it to the landlords to do so. For the aforesaid reasons I hold that the landlords are entitled to be made parties. I allow C. M. No. 11818 of 1951 and make them party respondents.
(3.) Learned Counsel for the landlords contended that the order of the Government in question was not a judicial act and therefore not liable to be quashed in a writ of certiorari. Arguments therefore were addressed on the question whether the order of the Government exempting the building under Section 13 of the Act is a judicial act or an administrative act Section 13 says:
"Notwithstanding anything contained in this Act; the provincial Government may, by notification in the Port St. George Gazette, exempt any building or class of buildings from all or any of the provisions of this Act." The power conferred on the Government under this section is very wide and does not depend upon any prescribed objective consideration They are not bound to give reasons. Neither the section nor the rules framed under the Act prescribe a judicial procedure for exercising the power conferred on the Government under the section. It is in the discretion of the Government to exempt a building or not. A comparative study of the provisions of S. 13 with that of other sections of the Act indicates that the Government is not expected to follow a judicial procedure in exempting a building from the operation of the Act, for wherever the legislature intended that judicial procedure should be followed, they said so, either expressly or by necessary implication. Sections 4, 5, 5-A and 6 relating to the fixing of fair rent and S. 7 for eviction of a tenant prescribe a judicial procedure for making the orders thereunder. I cannot therefore hold that the act of the Government in exempting the building from the operation of the Act is a judicial act.;
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