THANVI, J. - (1.) TWO ancient maxims viz; (1) Judicis est jus dicere non dare: The judge's duty is to declare law and not to make it and (2) Talis interpretation semper fienda est, ut evitetur absurdum et inconveniens, et ne judicium sit illusorium: That interpretation must be chosen which avoids an absurdity or inconvenience and which does not make a decision of court illusory, are coupled with the controversy involved in the present seventeen writ petitions, whereby the Constitutional validity of the Rajasthan Rent Control Act, 2001, hereinafter referred-to as "the New Act" in toto and Section 32 (3) (a) of this New Act and Section 6 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, later styled as "the Old Act", have been challenged by declaring them as ultravires to the Constitution of India. Though different reliefs have been sought in these petitions but broadly, they are of three categories.
(2.) THE relief sought in the first set of petitions is to declare the New Act as ultravires to the Constitution of India; in the second set, relief prayed-for is to declare Section 32 (3) (a) of the New Act as ultravires to the Constitution of India and the third set of petitions is about the relief as to declaring Section 6 of the Old Act as ultravires to the Constitution of India vis-a-vis to recall or refer for reconsideration to a larger bench, the judgment passed by this Court on 30-9-1999 in D. B. Civil Writ Petition No. 1193/1997 "khem Chand vs. State of Rajasthan reported in 1999 (2) WLC (Raj) p. 228 (RLW 1999 (2) Raj. 908), whereby Section 6 (2) of the Old Act has been declared as ultravires to the Constitution of India. We have heard learned counsel for the parties at length including the learned Additional Advocate General and categorically scrutinized the case law cited. For the sake of convenience, first we take the contention of learned counsel for the petitioners challenging the validity of the entire New Act with regard to legislative competency and being ultravires to Article 14 of the Constitution of India. The controversy whether the relation of landlord and tenant pertaining to the house and building is to be included under the Entry XVIII of State List in Seventh Schedule of the Constitution of India or not by virtue of conflicting opinions of various High Courts, has been set at rest by later decision of the Supreme Court in Ashok Marketing Limited vs. Punjab National Bank reported in AIR 1991 SC 885, whereby the legislation relating to the relationship of landlord and tenant including the rent control will now fall under Entry VI of the Concurrent List in the Seventh Schedule of the Constitution of India and the State legislature is competent to enact the law on this subject under Clause (2) of Article 246 of the Constitution of India and being a subject of concurrent list, it has also received the assent of the President of India on 25-2-2003. Thus, the contention of the learned counsel for the petitioners that the Bill lacks legislative competence, is devoid of force. Regarding the second contention of the learned counsel for the petitioners with regard to Constitutional validity of the New Act, it has been argued that the provisions of the New Act violate Article 14 of the Constitution of India, as it fails to provide equal protection of laws to the same category of tenants. In this regard, Mr. M. R. Singhvi, learned counsel has drawn our attention to various provisions of the Old Act and the New Act, especially with regard to applicability of the Act in a particular area or class, fixation of Rent, grounds for Eviction, Constitution of separate Rent Control Tribunals, Repeal & Saving Clauses, etc. The Old Act of 1950 has been repealed in the year 2001 after a lapse of more than 50 years and its objects and reasons were broadly as follows:      " STATEMENT OF OBJECTS AND REASONs The Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (Act No. 17 of 1950) has been in force for nearly five decades and during these years the situation prevailing with regard to the premises in the State has undergone a considerable change and as a result of changed scenario, the law relating to premises warrants change. This matter has been engaging attention of the State Government for the past several years and the matter was considered time and again from all angles. The existing law owing to feeling of insecurity among the landlords in getting the premises vacated, is impeding the growth of letable premises. Hence, adequate provision for timely vacation of premises as also determination of fair rent is the necessity of the hour. Certain inbuilt safeguards for tenants are also required to be retained and certain premises are required to be kept out of the scope of new law. It has, therefore, become necessary to replace the existing law relating to control of rent and eviction of premises. " Chapter 2 of the New Act dealing with the revision of rent under Section 6 and Chapter VIII dealing with repeal & saving clause under Section 32 of the New Act corresponding to Section 6 of the Old Act, have much been debated in the second and third category of petitions and will be dealt with later on. Rest of the provisions of the Old Act have been either amended or modified or repealed in the light of the Objects & Reasons given under the new Bill as indicated above. How far the Court can declare it to be ultravires to the Constitution of India, being violative of Article 14, is a subject of decisive controversy in the present petitions. The Constitution of India is a paramount law which represents the will of the people and is a mechanism under which laws are framed. In interpreting the Constitution, the court has to see that it is a documentation of the founding face of a nation and the fundamental directions for its fulfillment, whereas in interpreting a Statute, its pith and substance has to be looked into & the duty of the Court is to find the legislative intent. The general principle of interpretation and construction of Statute is that a court presumes its constitutionality and prefers an interpretation in favour of competency of the legislature. It is only when two meanings are inferred, whereby one results into the view of the legislature in effective result and the other results into manifest absurdity or futility or palpable injustice or anomaly, the Court should adopt the second view.
(3.) AS enumerated in the Statements of Objects & Reasons of the New Act, it appears that while making the statement in the court by the Advocate General with regard to amendment in the New Act when the Constitutional validity of Section 6 (2) of the Old Act was challenged in D. B. Civil Writ Petition No. 1193/1997 "khem Chand vs. State of Rajasthan" reported in 1999 (2) WLC (Raj) 228, the legislature also thought it fit that innumerable changes have been made in the state of premises, its construction value, insecurity in the mind of the landlords in getting the premises vacated which are required by them for their livelihood vis-a-vis safety of the tenants against the exorbitant hike in rent and also keeping certain premises out of the purview of this Act and thereby repealed the Old Law within its competence. If we go by various Chapters of the New Act, Chapter 1 deals with preliminary matters about definition etc. and there is nothing in these five Sections of this Chapter which need any interpretation because it is neither absurd nor anomalous except Chapter 2 & 3, which have not been applied to certain premises and tenants. Chapter 2 & 3 deals with revision of rents and tenancy respectively and Section 32 (3) (a) will be discussed with Sections 6. The tenancy for a limited purpose under Sec. 8 & grounds of eviction of tenants under Sec. 9 of the New Act are somewhat modified and a new provision has been made for a limited period of tenancy, which was not there in the Old Act. Likewise, the grounds of eviction are almost similar except comparative hardship etc. Apart from striking out the defence under Sec. l3 (j) of the Old Act, the most important addition in the New Act is about non-applicability of these provisions of Chapter 2 and 3 of the Old Act on the premises as indicated below by virtue of clauses (i), (ii) and sub-clauses (a), (b) & (c) of clause (iii) of Section 3 of the New Act, which reads as under: Section 3. Chapters II and III not to apply to certain premises and tenancies - Nothing contained in Chapters II and III of this Act shall apply,- (i) to the new premises built or completed after the commencement of this Act and let out through a registered deed in which date of completion of such premises is mentioned; (ii) to the premises existing at the commencement of this Act, if let out after such commencement for a period of five years or more through a registered deed and the tenancy is not terminable before expiry of its duration at the option of the landlord; (iii) to any premises let out for residential purposes before or after the commencement of this Act, the monthly rent whereof is rupees seven thousand or more, in the case of the premises situated in the Municipal area of Jaipur City; rupees four thousand or more, in the case of premises let out at places situated in the Municipal areas comprising the Divisional Headquarters, Jodhpur, Ajmer, Kota, Udaipur and Bikaner; rupees two thousand or more, in case of premises let out at places situated in other Municipal areas to which this Act extends for the time being. " Rest of the sub-clauses of this Clause (iii) of Section 3 of the New Act were already existing in the Old Act. By excluding the premises built after commencement of this Act or premises existing at the commencement of this Act and let out after such commencement for five years through registered deed and also premises let out for residential purposes for Rs. 7000/- or more in municipal area of Jaipur City, Rs. 4000/- or more at the Divisional Headquarters and Rs. 2000/- or more in case of other municipal areas to which Act extends, the legislature has not transgressed its competence in making the law because it was a statutory right and not a vested right as it has been held in many judicial decisions, some of them are referred below. ;