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Judgment
Chettur Sankaran Nair, J.—Invoking the jurisdiction of superintendence under Article 227 of the Constitution, in an eighth round litigation, Petitioner tenant challenges an order of eviction concurrently made by the Appellate and Revisional Authorities, Exts. P-12 and P-14, in that order.
Petitioner runs a ''Commercial Institute'' in the tenanted premises. On his retirement from Government service sixteen years ago, fourth Respondent landlord sought eviction of the tenanted premises, on the ground of bona fide need for own occupation. The matter was considered by the Rent Controller, Appellate Authority, Revisional Authority and then by this Court in a Revision u/s 115 of the Code of Civil Procedure. By Ext. P-9 order, this Court remitted the matter to the Rent Controller to consider whether Section 11(11)(ii) of the Kerala Buildings (Lease and Rent Control) Act, called the Act hereinafter, would govern the case. That provision gives immunity from eviction, to educational institutions recognised by the Government. The Appellate Authority by Ext. P-12, and the Revisional Authority by Ext. P-14 found that the ''Commercial Institute'' in question is not an educational institution, qualifying for exemption u/s 11(11)(ii).
This finding of the authorities below, is challenged on the ground that they erred in their conclusion. It is also urged that alien help was sought from the Kerala Education Rules to decide the issue and that legislative intent, was missed by the authorities below. Petitioner submits that the jurisdiction of this Court under Article 227 is wide enough to correct any error, committed by an inferior tribunal, with a view to secure the ends of justice.
In answer, counsel for fourth Respondent landlord, submitted that the findings are eminently reasonable, that the object of the legislation is not to confer fixity of tenure on the tenant, and that the institution in question is not an educational institution. To get the benefit u/s 11(11)(ii), the Institution should not only be an educational institution, but should also be an educational institution recognised by Government. The jurisdiction under Article 227, cannot be equated to an appellate jurisdiction on facts and it can be exercised only in cases where the findings are perverse, submits counsel for fourth Respondent.
Petitioner submits that the Institute in question is an educational institution, and that the finding otherwise, entered by the Authorities below, is erroneous. According to him any Institution that imparts knowledge, is an educational institution.
Not all terms, nor all concepts, are amenable to precise definition. They are better understood, than defined. The expression ''education'' is one such. There is no single test, nor yardstick, available to determine whether a particular activity, is educational in character. The intangibles are incommensurable.
Any form of knowledge that enables one to earn a livelihood, is not education. What equips one to earn a livelihood, is more appropriately described as ''trade'' or vocation. It may be that education also helps one to make a living. But, that is not the end itself. Education, dominantly is a process which cultivates the mind. It may be argued that not all educational institutions, elevate the alumni to a level of moral or cultural attainment. That will be an instance of the institution failing in its endeavour, and not the institution losing its character.
Education has been understood as a process that develops human personality. Theorists like Aristotle, Plato, John Amos Comenius and Jean Jacques Rousseau, have outlined the philosophy of education. Plato''s Republic conceives education as the means to moral, ethical, aesthetic and physical development of man. Athenion schools aimed at developing a cultured soul in a graceful body. In Greece, education was thought of as a means to meet the needs of an elitist society. China appointed scholars to inculcate values, including rules of behaviour for Kings. Ministers, sons, wives, etc. Teachings of confucius, dominated the curriculam and stress was put on cermonial etiquette and classical arts. In India, education was based on Vedic teachings and its great ''Gurukulas and Parishads'' strove for excellence in mind and values. During the middle ages and renaissance, the influence of Church dominated learning. Goodness was related to Christian or Judaic ethics. Even with the growth of the concept of humanism, the idea of a moral elite persisted. This is reflected in the works of Luther, Calvin and Knox. William Humboldt and Hegel, and Ors. also, laid stress on moral values. Jean Jacques Rousseau considered development of individual judgment, abilities and founding of general humanity, and not training pupil to fill set rolls, as the true objects of education. According to him, a child is to be educated as a man, not to be a priest, civil servant or soldier. Voltaire and Diderot also stressed the need for development of the individual through education, John Locke said:
Character development should come first, before learning, and the educator''s aim is to instill virtue, wisdom and good breeding into the minds of the young.
J.M. Pestalozzi advocated integrating of intellectual, moral and physioal education (head, heart and body). John Dewey, recognised as one of the greatest educationalists in the United States and propounder of philosophy known as "Instrumentalism", said:
Philosophy and education render service to each other. One indicates what social values are desirable, and the other seeks to promote them. Education is a reconstruction of accumulated values and it is life, and not merely preparation for life.
On ''Catholic Education'', Pope Pius XII said:
All aim of education is to restore the sons of Adam to their high position as children of God. Education must prepare man to do what he should do here, in order to attain the sublime end for which he is created.
According to Martin Bube, education prepares man for ''ideal relation between man and man, and to realise what it means to be a wife, husband, father, male or female''.
In different historical eras and in different cultures, a variety of concepts have prevailed regarding the purpose of education. Broadly stated, it is regarded as a means to elevate human mind to higher reaches of excellence, morally, aesthetically, culturally and spiritually. Incidentally, it may help one to find means of livelihood. But, that is not the end or aim. What is basically designed to earn income or livelihood, is vocational training, or training in a trade-not education. The decisions in S. Azeez Basha and Another Vs. Union of India (UOI), , The Ahmedabad St. Xavier''s College Society and Another Vs. State of Gujarat and Another, , Jain Digamber Chaitalya v. Shaym Sundar 1980 GLR 392 and Sethurama Menon v. Meenakshi Amma 1966 KLT 685 do not suggest a different conclusion. Viewed in this profile, a commercial institute is not an educational institution, but an institution imparting instruction in a trade or Vocational training.
Counsel for Petitioner then contended that the expression educational institution should receive a liberal-not literal, interpretation to fulfil the legislative intent or protecting tenants. He relied on the decisions in S. Mohan Lal Vs. R. Kondiah, , Vatan Mal Vs. Kailash Nath, , Shashikant Laxman Kale v. Union of India and Anr. AIR 1990 S.C. 2114 , Ashoka Marketing Ltd. and another Vs. Punjab National Bank and others, , Mani Subrat Jain Vs. Raja Ram Vohra, and Kurian v. Saramma Chacko 1964 KLT 1, to support his contention.
It is well established today, that a legislation must receive an interpretation, that advances the object sought to be achieved, and suppresses the mischief sought to be avoided The Buckingham and Carnatic Co.Ltd. Vs. Venkatiah and Another, , The Works Manager, Central Railway Workshop, Jhansi Vs. Vishwanath and Others, , B.M. Lakshmanamurthy Vs. The Employees'' State Insurance Corporation, Bangalore, , Carew and Co. v. Union of India AIR 1978 S.C. 2280 , Mohan Lal Vs. Jai Bhagwan, and Varkey v. Sarojini Amma ILR 1991 Ker 784. The position in England is also the same. In Carter v. Bradbeer 1975 (3) All ER 158, the House of Lords said:
If one looks back to the actual decisions of this House on questions of statutory construction over the past thirty years, one cannot fail to he struck, by the evidence of a trend, away from the purely literal, towards the purposive construction of statutory provisions.
Changes in the judicial approach to questions of statutory construction are not the result of some specific decision of your Lordships'' House identifiable as a landmark in this field of law. They have been fostered by the influence, persuasive and pervasive....
It needs no expatiation today, to establish that the key to interpretation is purposive construction. It has been settled in this country and elsewhere for three decades or more.
The new race of Judges are not mere technicians, but men of world, as well. We can we must indeed trust them to acquaint themselves with public policy and apply it in a reasonable way.
(Lori Raid)
But that is not to say that judicial law making can be as wide as the legislative exercise. It is not an unchartered voyage, on the sea of discovery. The limits have been indicated in judicial pronouncements. Carew and Company Ltd. Vs. Union of India (UOI), sets the high water mark. Benjamin Cardozo in ''The Nature of the Judicial Process'' (quoted with approval by the Supreme Court) said:
The Judge even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence.
He Indicated the limits within which judicial law making can be done. Judges can legislate only between gaps. They fill the open spaces in law. The limits of judicial law making are narrower, than legislative law making. In the words of the House of Lords:
Law Lords do exercise choice. Their job is to make the best decision they can from the material available. In the last analysis, they are craftsman, not treasure hunters.
(emphasis supplied)
Justice Oliver Wendell Holmes said that ''it is a misfortune if a Judge reads his conscious or Unconscious sympathy with one side or the other into law''.
The position was suckingly summed in Duport Steels Ltd. and Ors. v. Sirs and Ors. 1980 (1) All ER 529. Scarman L.J. (with whom Lord Diplock, Lord Edmund Davies, Lord Fraser and Lord Keith of Kinkel concurred), stated:
My basic criticism of all three judgments in the Court of Appeal is that in their desire to do justice, the court failed to do justice according to law. When one is considering law in the hands of the Judge, law means the body of rules and guidelines within which society requires its judges to administer justice...Justice in such societies is not left to the unguided, even if experienced, sage sitting under the spreading oak tree. In our society the judges have in some aspects of their work a discretionary power to do justice so wise that they may be regarded as lawmakers....interpretation does of course, imply in the interpreter a power of choice where different constructions are possible. But our law requires the Judge to choose the construction which in his judgment best meets the legislative purpose of the enactment... Great judges are in their different ways judicial activists. But the Constitution''s separation of powers, or more accurately functions, must be observed if judicial independence is not to be put at risk....
The purpose of the legislation, is not to benefit the tenant in every manner possible. In the words of Sabyasachi Mukherji J. in Ganpat Ram Sharma and Others Vs. Gayatri Devi, , it is a legislation beneficial both to the landlord and tenant. While the mere desire of the landlord to resume possession is not recognised as a ground for eviction, bone fide heed has been recognised as a valid ground. There may be cases where a person working at a place away from his home, puts all his life''s earnings into a house in his native village, whether he hopes to return in the evening of his life. For some returns on the investment, he may rent it out when he is away. It is not the intention of the legislature to deny the instinct of the homing pigeon, to come back to the nest in the evening. The bona fide need is recognised by Section 11(3). This cannot be stultified by notions of an overbearing assumed social purpose. That is the reason why the Supreme Court held that it is a legislation to benefit both the landlord and the tenant according to the provisions in the Act.
But, that is not the end of the matter. Even if an institution is an educational institution, one more condition will have to be satisfied to qualify for the benefit u/s 11(11)(ii) the Institution should also have been recognised by the Government. Counsel for Petitioner was unable to refer to any provision of law or order, under which recognition was granted, except Ext. P-16. If Ext. P-16 is the basis, then for non-compliance with the provisions of that order, the case of Petitioner has to be rejected. An educational institution must obtain a lease deed from the landlord, and produce it along with the application for recognition (which is on a year to year basis) according to Ext. P-16. Petitioner has no case that he has satisfied this condition, nor has he produced any acceptable piece of evidence, to establish that recognition had been granted. The Appellate authority, therefore found (Ext. P-12) and rightly too, that:
The Respondent has not produced any recognition, for conducting the Institute in the petition schedule...The Respondent has not succeeded in proving that Respondent acquired recognition for conducting the above Institute....
This finding was affirmed and endorsed by the Revisional Authority. It is unnecessary to consider this matter, concluded by a finding of fact, any further. Notwithstanding that, the Additional Advocate General was asked to state whether there is any Scheme/Rule in existence for according recognition to such Institutions. He stated that there is no scheme for according recognition, and that recognition has not been granted to such commercial institutions. A statement to that effect was filed. Quite apart from that, and more importantly, this Court has held in O.P. 5576/71 with reference to a contemporaneous period, that there was no valid scheme for granting recognition. It follows that the Institute in question is not a recognised one. For that reason, the protection u/s 11(11)(ii) is not available to Petitioner, even if it is assumed that the Institution is an educational institution.
No one can say that the authorities misdirected themselves in fact or law in finding that,
Respondent has not succeeded in proving that Respondent acquired recognition for conducting the above Institute in the plaint schedule building....
It is a basic requirement that the tenant should prove that he is entitled to get the benefit of the protection u/s 11(l1)(ii) of the Act. The findings cannot be considered perverse or unreasonable to warrant interference under Article 227.
However, counsel for Petitioner would submit that the finding aforesaid is erroneous. In referring to the Kerala Education Rules, the Authorities fell into Anr. error, submits counsel. Such errors are liable to be corrected, in the exercise of the jurisdiction under Article 227, states counsel. Even if reference to the Kerala Education Rules was not appropriate, that will not vitiate the finding, if it is supported by other reasons, as it is in this case.
Jurisdiction in an hierarchal system vary in content and sweep with the context. Not all jurisdictions are alike. The contours of the jurisdiction under Article 227 are well defined, and the jurisdiction is not in the nature of an appellate jurisdiction. In Chandavarkar Sita Ratna Rao Vs. Ashalata S. Guram, . the Supreme Court pointed put that this feature must be borne in mind, and that the jurisdiction of superintendence should not be used as a disguise for an appellate jurisdiction. In Moni Nariman Daruwala and Ors. v. Phiroz N. Bhatena and Ors. 1991 (3) S.C.C. 241 , the Supreme Court reaffirmed these observations. Quality of jurisdiction exercised under Article 227, is not in the nature of a second-first appeal on facts. Nor, does it contemplate indeterminate grounds of adjudication on facts. For that matter, findings of facts however erroneous they be, are not liable to be interfered with under Article 227 ( India Pipe Fitting Co. Vs. Fakruddin M.A. Baker and Another, . The Court observed:
Power under Article 227 is one of judicial superintendence and cannot be exercised to upset the conclusions on facts, however erroneous these may be
(emphasis supplied)
The High Court exercises the visitorial jurisdiction inhering in it as a Court of record, to ensure that inferior tribunals act within, the bounds of their jurisdiction. Interference is justified only if the findings are perverse, and perverse they are, only if they are such that no authority reasonable instructed in law or facts would have reached. Viewed, in this perspective, it is not possible to say that the Authorities below misdirected themselves in law, or to hold that the findings are perverse. For that matter, the findings are well justified.
The writ petition is without merit and is accordingly dismissed. Parties will suffer their costs.