JAIN, J. - (1.) THIS revision petition has been filed by the tenant against the order of the Civil Judge, Churu dated February 19, 1994 by which he has allowed the appeal and set aside the order of the Munsiff, Sardar Shahar dated October 7, 1985 fixing provisional rent @ Rs. 400/- p. m. under Section 7, Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short 'the Act') and has fixed provisional rent at the agreed rate Rs. 700/- per month.
(2.) THE facts of the case giving rise to this revision petition may be summarised thus. In the year 1983, the plaintiff-non- petitioners M/s Khetsidas Sheoji Ram and its two partners (tenants) filed a suit for fixation of standard rent under section 6 of the Act against the defendant-non-petitioners (landlords) with the averments, in short, that on May 5, 1979, the suit shop was taken on monthly rent of Rs. 700/-, it is exorbitant and excessive and the prevailing rent of the neighbouring shops ranges in between Rs. 100-150/- p. m. and praying that the standard rent be fixed @ Rs. 150/- per month. In their joint written statement, the defendants admitted that the suit shop was let out to the plaintiffs on monthly rent of Rs. 700/ -. THEy have further averred that the suit shop is 'charkhani' and the agreed rent is neither excessive nor exorbitant. By order dated November 3, the Munsiff, Sardarshahar determined the provisional rent @ Rs. 400/- per month. Appeal was filed against it, it was allowed and the case was remanded for fresh determination of provisional rent. After remand, the trial Court again determined the provisional rent @ Rs. 400/- per month by its order dated October 7, 1985. As said above, appeal filed against this order was allowed and provisional rent was determined @ Rs. 700/- per month by the appellate Court. THE appellate Court observed in its order that the suit shop was taken on rent in the year 1979 after paying advance rent for four years @ 700/- per month, if this rate of rent would have been exorbitant or excessive, amount of Rs. 33,600/- would not have been paid in advance towards rent of four years, after a lapse of 15 years it cannot be said that the agreed rent is exorbitant or excessive particularly when value of rupee has considerably gone down and accordingly, fixed provisional rent at the agreed rate of Rs. 700/- per month. It has been contended by the learned counsel for the petitioners that the prevailing rent in the year 1979 of the neighbouring shops was in between 100-150/- per month, the lower Courts should have fixed provisional rent at the maximum rate of Rs. 150/- per month, affidavits of Bhanwarlal, Kushilal, Hari Ram and Udomal were filed for proving this fact and they were not at all considered. He further contended that the learned appellate Court seriously erred to fix provisional rent at the agreed rate of Rs. 700/- per month, standard rent is always less than the agreed rent and the well settled law was ignored by it while fixing provisional rent @ Rs. 700/- per month. He lastly contended that the impugned order would greatly prejudice the case of the petitioners in the suit filed for their ejectment by the non-petitioners. There is no substance in the revision petition. The first proviso to sub-section (2) of section 6 of the Act states that where the premises have been first let out after the 1st day of January 1965, the standard rent shall not exceed the basic rent thereof. Explanation given in this sub-section defines "basic rent" as the rent at which the premises were let out on the first day of January, 1962 and, if not let out on that day, rent at which they were first let out after that day. It means that if the premises have been let out for the first time after 1. 01. 1965, the agreed rent cannot be enhanced despite great price excalation and tremendous fall in the value of the rupee. In other words, rent of the premises first let out after 1965 has been freezed. If the premises have been let out prior to this date (1. 01. 1965), enhancement is permissible to the extent of 50% in the case of residential building and 150% in the case of non-residential buildings. These provisions are highly unreasonable and are hit by Article 14 of the Constitution of India. It has been observed in Ratan Arya vs. State of Tamilnadu (1), as follows : " We are entitled to take judicial notice of the enormous multifold increase of rents throughout the country, particularly in urban areas. It is common knowledge today that the accommodation which one could has possibly got for Rs. 400/- per month in 1973 will today cost at least five times more. In these days of universal day today escalation of rentals any ceiling such as that imposed by S. 30 (ii) in 1973 can only be considered to be totally artificial and irrelevant today. As held by this Court in Motor General Traders vs. State of Andhra Pradesh, (1984) 1 SCC 222 = AIR 1984 SC 121 at p. 130, a provision which was perfectly valid at the commencement of the Act could be challenged later on the ground of unconstitutionality and struck down on that basis. What was once a perfectly valid legislation may ; in course of time, become discriminatory and liable to challenge on the ground of its being violative of Article 14. After referring to some of the earlier cases Venkataramiah J. observed : ". . . . . The garb of constitutionality which it may have possessed earlier has become worn out and its unconstitutionality is now brought out to a successful challenge. " In Jagan Nath vs. Chandraban (2), it has been observed as follows: " It has, however, to be borne in mind that rent in these areas has increased enormously. So while exercising our jurisdiction under Article 136 of the Constitution, we will enhance the rent to four times. We are told that the mesne profit at present payable was Rs. 75/- per month. We direct that mesne profit/rent should be Rs. 300/- per month. " It has been observed in E. P. Royappa vs. State of Tamil Nadu (3), as follows : " In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Articles 14 strikes at arbitrariness in State action and ensure fairness and equality of treatment. The principle of reasonableness which legally as well as philosophically is an essential element of equality or non- arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14, it must be right and just and fair and not arbitrary, fanciful or oppressive. "
(3.) IT has been observed in famous case of Maneka Gandhi vs. Union of India (4), as follows : " Now, the question immediately arises as to what is the requirement of Article 14; what is the content and reach of the great equalising principle enunciated in this Article? There can be no doubt that it is a founding faith of the Constitution. IT is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must no be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. We must reiterate here what was pointed out by the majority in E. P. Royappa vs. State of Tamil Nadu (1974) 2 SCR 348 : (AIR 1974 SC 555) namely, that 'from a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies ; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14. " Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. IT must be "right and just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied. How far natural justice is an essential element of procedure established by law. " In Ajay Hasia vs. Khalid Mujib (5) at page 498 para 16, it has been observed as follows : " The true scope and ambit of Article 14 has been the subject matter of numerous decisions and it is not necessary to make any detailed reference to them. It is sufficient to state that the content and reach of Article 14 must not be confused with the doctrine of classification. Unfortunately, in the early stages of the evolution of our constitutional law, Article 14 came to be identified with the doctrine of classification because the view taken was that the Article forbids discrimination and there would be no discrimination where the classification making the differentia fulfils two conditions, namely, (1) that the classification is founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and (ii) that the differential has a rational relation to the object sought to be achieved by the impugned legislative or executive action. It was for the first time in E. P. Royappa vs. State of Tamil Nadu (1974) 2 SCR 348 : (AIR 1974 SC 555) that this Court laid bare a new dimension of Article 14 and pointed out that that Article has highly activist magnitude and it embodies a guarantee against arbitrariness. This Court speaking through one of us (Bhagwati, J.) said : " The basic principle which therefore informs both Articles 14 and 16 is equality and inhibition against discrimination. Now what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose J. "a way of life", and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt. to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. " It has been observed in Motor General Traders vs. State of Andhra Pradesh (6) at page 130 para 24, as follows : " The second answer to the above contention is that mere lapse of time does not lend constitutionality to a provision which is otherwise bad. "time does not run in favour of legislation. If it is ultra vires, it cannot gain legal strength from long failure on the part of lawyers to perceive and set up its invalidity. Albeit, lateness in an attack upon the constitutionality of a State is but a reason for exercising special caution in examining the arguments by which the attack is supported. " (See W. A. Wynes : 'legislature Executive and Judicial Powers in Australia', Fifth Edition, p. 33 ). We are constrained to pronounce upon the validity of the impugned provision at this late state because the garb of constitutionality which it may have possessed earlier has become worn out and its unconstitutionality is now brought to a successful challenge. " ;