V.A.MOHTA, J. - (1.) RESPONDENT Dr. Bhimrao Randaye, landlord of a house situated in Laxminagar, Nagpur, applied under Clauses 4 and 5 of the C.P. and Berar Letting of Houses and Rent Control Order, 1949 (the HRC Order), for fixation of fair rent for the premises let out to the petitioner - the Union of India for housing a post office. The petitioner filed a reply, inter alia, contending that since Clauses 6, 7 and 7-A of the HRC Order have been struck down as unconstitutional by a Division Bench of this Court in the case of Omprakash v. Fattelal, 1986 Mh. L.J. 414, the application was not maintainable. The Rent Controller on the basis of a Single Bench decision of this Court in the case of Ovaldas v. Shrikant, 1986 Mh. L.J. 706, came to the conclusion that as validity of Clauses 4 and 5 was upheld in Omparkash case (supra), application was maintainable and fair rent could be determined on the basis of tests enumerated in Ovaldas case (supra) even though the basis for determination fixed by Clauses 6(1), 7(1) and 7-A viz. rates prevalent on the cut off date Ist April, 1940 ceased to exist. Preliminary objection was thus overruled and the matter was set down for recording evidence. Aggrieved thereby, the present petition has been filed.
(2.) THAT such a view of Clauses 4 and 5 has been taken in Ovaldas case (supra) and that the Rent Controller was bound by that decision cannot be and is not disputed. Inviting my attention to the earlier Single Bench decision in the case Purshottamdas v. Anant, WP No. 1701 of 1981, decided on 20.3.1986, in which in which it is held that since the basis or measure of determination was declared invalid, fair rent could not be determined. It was vehemently urged by Shri Vidhwans, the learned counsel for the petitioner, that the learned Single Judge in Ovaldas case (supra) was obliged either to follow the earlier view or to refer the question to a larger Bench in case he was inclined to differ and had no jurisdiction just to mention the earlier view and ignore it. Strong reliance was placed in support upon the case of (i) Mahadeolal Kanodia v. The Administrator, AIR 1960 SC 936, (ii) K. Balakrishna Rao v. Haji Sait, (1980)1 SCC 321 and (iii) Union of India v. Godfrey Philips India Ltd., (1985)4 SCC 369. It is further contended that Ovaldas (supra) is also contrary to the law laid down in Omprakash (supra) and the question should be referred to a Full Bench. My pointed attention was drawn to the following passages in Omprakash case (supra) and to the fact that they are based upon the ratio of the case Motor General Traders v. State of Andhra Pradesh, AIR 1984 SC 121 : 1983(2) RCR 579. "In our judgment therefore, the ratio of Motor General Traders (supra) applies to Clauses 6(1) an 7(1) of th HRC Order also and hence they are declared violative of Article 14 and are struck down as such. We must make it clear that we see nothing basically wrong in initial fixing of a particular outer limit with relation to a particular cut off date. What gives a blow to the validity is indefinite continuation of the formula without any justification despite wholly changed circumstances during a long span of time of which judicial notice can be taken. ................ It is contended that a result of striking down clauses 6(1) and 7(1) as violative of Article 14, the whole HRC Order or in any case whole Chapter relating to fixation of rent should be struck down. We do not agree. The HRC Order deals with many facets of landlord-tenant relationship and fixation of fair rent is but one of them and is a separate part of the scheme. Even different provisions relating to fixation of fair rent are separable. Clause 4 refers into the width of power to determine fair rent, clause 5 to the mechanics of determination and clauses 6 and 7 to the norms on the basis of which determination is to take place. It is not our view that in such a social legislation fair rent cannot be legally determined. Indeed in our view it is necessary to do so. We have found fault merely with the norms of fixation and nothing else. Those provisions are Clauses 6, 7 and 7-A. However, it does seem to us that these provisions are inextricably mixed up with each other and are inseparable. If clauses 6(1) and 7(1) are expunged, the remainder cannot be enforced without making alterations and modifications. To make such alteration would mean judicial legislation which is impermissible. As an inevitable result clauses 6(2), 7(2) and 7-A are also struck down as unconstitutional along with clauses 6(1) and 7(1)."
(3.) TO complete the background it will be necessary to notice what the Motor General Traders case (supra) is all about. It has struck down as discriminatory Section 32(b) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, by which the said Act did not apply to any building constructed on or after 26th August, 1957, holding : "What may be unobjectionable as a transitional or temporary measure at an initial stage can still become discriminatory and hence violative of Article 14 of the Constitution if it is persisted in over a long period without any justification ......... The long period that has elapsed after the passing of the Act itself serves as a crucial factor in deciding the question whether the impugned law has become discriminatory or not because the ground on which the classification of buildings into two categories is made is not a historical or geographical one but is an economic one ...... After giving our anxious consideration to the learned arguments addressed before us, we are of the view that clause (b) of Section 32 of the Act should be declared as violative of Article 14 of the Constitution because the continuance of that provision on the statute book will imply the creation of a privileged class of landlords without any rational basis as the incentive to build which provided a nexus for a reasonable classification of such class of landlords no longer exists by lapse of time in the case of the majority of such landlords. There is no reason why after all these years they should not be brought at par with other landlords who are subject to the restrictions imposed by the Act in the matter of eviction of tenants and control of rents." ;