V. MAROLI v. ARCHBISHOP OF BANGALORE — 1990 DIGILAW 687 (KAR)

RAMA, J. ( 1 ) IN the first writ petition, the petitioner has questioned the legality of the allotment of a premises in favour of the second respondent by the rent and accommodation controller, civil area, Bangalore, and the order of the deputy commissioner, Bangalore district, dismissing his appeal against the order of the rent controller. The second writ petition is presented by the allottee - the second respondent in the first writ petition - challenging the validity of sub-rule (1) (a) (10) of Rule 4 of the Karnataka rent control rules, which requires the rent controller to give priority in the matter of allotment of non-residential buildings, the rent of which exceeds Rs. 500-00, in favour of the person who has secured the consent of the landlord. For the sake of convenience, in the course of our Order, we would be referring to the parties as in the first petition. ( 2 ) BRIEF facts of the case, are these: the petitioner in W. P. No. 20391/86 is a citizen of india. He secured electrical engineering degree qualification in 1965. He went to dubai on some employment and returned in the year 1985. He secured import licence for importing machinery required for modern concrete block making issued by the government of India on 6-12-1984. A non-residential premises situated in st. Patrick's shopping arcade, residency- brigade road junction, Bangalore, was notified for allotment by the rent and accommodation controller, civil area, Bangalore, as required under Section 8 of the Karnataka Rent Control Act, 1961 the act' for short ). As many as nine persons filed applications seeking allotment. The petitioner and the second respondent were among them. The rental of the premises as notified by the rent controller was Rs. 800-00 per month. Rule 4 (1) (a) of the Karnataka rent control rules, ('the rules' for short) prescribe certain priorities required to be observed by the rent controller in making allotment of residential and non-residential premises. Sub-rule (10) thereof provided that in respect of non-residential building, the monthly rent of which exceeds Rs. 500-00, the premises should be allotted to the applicant who has secured the consent of the landlord. The petitioner had secured the consent of the landlord. Sub-rule (10) thereof provided that in respect of non-residential building, the monthly rent of which exceeds Rs. 500-00, the premises should be allotted to the applicant who has secured the consent of the landlord. The petitioner had secured the consent of the landlord. The rent controller, however, considered that the consent given by the landlord has to be taken into consideration only when the concerned applicant establishes his bona fides for the requirement of the notified premises and that as far as the petitioner was concerned, he admittedly being a non-resident Indian it was unlikely that he would make use of the premises and therefore the consent of the landlord deserves to be ignored. The rent controller considered that among the nine applicants, the second respondent's claim was genuine and accordingly proceeded to make allotment in favour of the second respondent. Aggrieved by the order of the rent controller, the petitioner preferred an appeal before the deputy commissioner, Bangalore district, under Section 12 of the act. The appellate authority agreed with the view taken by the rent controller and dismissed the appeal. Aggrieved by the said Order, the petitioner has presented this petition. ( 3 ) SRI f. l. f. alvares, the learned counsel for the petitioner, contended that when Rule 4 (1) (a) (10) expressly provided that in respect of non-residential premises, the monthly rental of which exceeded Rs. 500-00, priority must be given in the matter of allotment to any applicant who had secured the consent of the landlord, the same was binding on the rent controller and he had no discretion to go into the bona fides of the requirement of an applicant who had secured the consent of the landlord. In support of the contention, the learned counsel relied on the judgment of this court in the case of Vishalakshi v Special Deputy Commissioner, 1978 (2) kar. L. j. p. 49. In the said decision, this court held that the rent controller was bound to observe the priority prescribed under Rule 4 (1) (a) of the rules. The learned counsel also relied on another judgment of this court in Suresh Heblikar v House Rent And Accommodation Controller, 1987 (2) kar. L. j. sh. N. 335: ILR 1987 (2) kar. 1215. In the said decision, this court held that the rent controller was bound to observe the priority prescribed under Rule 4 (1) (a) of the rules. The learned counsel also relied on another judgment of this court in Suresh Heblikar v House Rent And Accommodation Controller, 1987 (2) kar. L. j. sh. N. 335: ILR 1987 (2) kar. 1215. In the said decision, this court held that the power conferred on the rent controller to make allotment was under sub-section (2) of Section 8 which itself provided that the rent controller shall observe such order of priority as may be prescribed and therefore when the rules prescribe priority in the matter of allotment, the rent controller cannot make any allotment in disregard of the priority. ( 4 ) RULE 4 (1) (a) (10) of the rules, on which the learned counsel for the petitioner relies, reads:"4. Order of priority: (1) where no direction is issued under the proviso to sub-section (2) of Section 8 the controller shall observe the following order of priority in selecting the public authority or other person in whose favour an order may be made under the said Section, namely: - (a) in case of non-residential buildings: xxx xxx xxx (10) where the monthly rent of the building,- (i) exceeds Rs. 500 to any person who has obtained the consent of the landlord for the lease of the building in his favour; (ii) is Rs. 500 or less- (a) a clinic or nursing home, when the building is required for use as such by a doctor who does not have a clinic or nursing home; (b) a general or departmental store, when the building is required by such store for business in foodgrains, food products, oil, fuel, textile, stationery and other essential commodities; (c) a restaurant run by any co-operative society or a person who does not run such business elsewhere. "the language of the Rule is very clear. No person coming under sub-rules (1) to (9) of Rule 4 (1) (a) were among the applicant seeking allotment of the premises in question. There is also no dispute that the monthly rental of the premises was Rs. 800-00, that is above Rs. 500-00 and the petitioner had secured the consent of the landlord. No person coming under sub-rules (1) to (9) of Rule 4 (1) (a) were among the applicant seeking allotment of the premises in question. There is also no dispute that the monthly rental of the premises was Rs. 800-00, that is above Rs. 500-00 and the petitioner had secured the consent of the landlord. Therefore, both having regard to the clear language of the Rule and the two decisions of this court on which the petitioner relies the rent controller could not have disregarded the priority fixed in the Rule and proceed to make allotment in favour of the second respondent, and he should have made an allotment in favour of the petitioner. ( 5 ) THE learned counsel for the second respondent Sri mohandas n. Hegde, does not dispute that Rule 4 (1) (a) (10), which gave priority in the matter of allotment of a non- residential building the monthly rental of which exceeded Rs. 500-00 to a person who had secured the consent of the landlord, was binding on the rent controller and therefore it would be difficult for him to contend to the contrary. He, however, submitted that Rule 4 (1) (a) (10) itself was liable to be declared void as offending article 14 of the Constitution of India and therefore the second respondent has presented writ petition No. 1908 of 1987 challenging the constitutional validity of Rule 4 (1) (a) (10 ). In support of this petition, the learned counsel relied on the judgment of this court in the case of Padmanabha Rao v State of Karnataka, 1987 (1) kar. L. j. p. 176, in which Section 31 of the act was struck down as violative of article 14 of the Constitution of india. Elaborating his submission, the learned counsel submitted as follows: Section 31 of the act made the Provisions of part-ill of the Act, which provided for fixation of fair rent and also procedure for eviction of tenants, inapplicable to non-residential buildings, the monthly rent of which exceeded Rs. 500-00 or the annual rental value of which exceeded Rs. 6,000-00. The Section was enacted in the year 1961. The question which came up for consideration in padmanabha rao's case 1987 (1) kar. L. j. p. 176 was as to whether the classification of non-residential premises, the monthly rental of which was Rs. 500-00 and below and those the monthly rental of which exceeded Rs. 6,000-00. The Section was enacted in the year 1961. The question which came up for consideration in padmanabha rao's case 1987 (1) kar. L. j. p. 176 was as to whether the classification of non-residential premises, the monthly rental of which was Rs. 500-00 and below and those the monthly rental of which exceeded Rs. 500-00, could be regarded as valid classification after long lapse of time, during which period there had been enormous escalation in the rental value of non-residential buildings. Following the ratio of the judgment of the Supreme Court in the case of Rattan Arya v State of Tamilnadu, 1lr 1986 kar. 2069, in which Section 30 (ii) of the tamilnadu buildings (lease and rent control) Act, 1960, was struck down as violative of article 14 of the Constitution of india, this court also struck down Section 31 of the act as violative of article 14 of the Constitution of india. The ratio of the said decision applies on all fours to the validity of Rule 4 (1) (a) (10) also. Obviously, when the Rule was framed in the year 1961, the rental value of non-residential premises was much lower and the rental value of such buildings after more than 20 years was far higher. The rental value of a non-residential building had increased during this period atleast five to six times. Therefore, even assuming that in respect of buildings the monthly rental of which was more than Rs. 500-00 in the year 1961, constituted a rational basis to give priority in the matter of allotment in favour of persons who had secured the consent of the landlord on the ground that no protection need be given under the Act, in respect of allotment of non-residential premises whose rental value was more than Rs. 500-00, the said basis might hold good now to a premises whose rental value is more than Rs. 2,000-00 or Rs. 2,500-00. Therefore, the very basis on which the rent controller was given power to make allotment of non-residential premises, the monthly rental of which is Rs. 500-00 or less, on consideration of the merits of the case of all the applicants holds good at present in favour of persons who are seeking allotment of non-residential premises, the monthly rental of which is below Rs. 2,500-00 or Rs. 2,000-00. 500-00 or less, on consideration of the merits of the case of all the applicants holds good at present in favour of persons who are seeking allotment of non-residential premises, the monthly rental of which is below Rs. 2,500-00 or Rs. 2,000-00. The Rule making authority has failed to take into account the enormous increase in the rental value of non-residential premises after the Rule was framed and had failed to take note of the fact that the rational basis which existed for Rule 4 (1) (a) (10) had disappeared and consequently the said Rule has become violative of article 14 of the Constitution of india. ( 6 ) SRI f. l. f. alvarcs, the learned counsel for the petitioner in the first writ petition, however, contended that the ratio of the decision in padmanabha rao's case 1987 (1) kar. L. j. p. 176, in which Section 31 of the act was struck down, had no application to the present case. ( 7 ) NOW, we shall proceed to consider the validity of the contention urged by the learned counsel for the parties. Section 31 of the Act, which grants exemption from the Provisions of Section 21 of the act and the other sections in part-ill of the Act, read:"31. Exemption in respect of certain buildings: nothing contained in this part shall apply to non-residential building the monthly rent of which exceeds five hundred rupees or the annual rental value of which exceeds six thousand rupees. Provided that the exemption under this Section shall not apply: (i) to any building taken on lease by a public authority or by an educational institution; or (ii) to any building occupied by more than one tenant each paying a monthly rent not exceeding five hundred rupees or an annual rent not exceeding six thousand rupees. "the question which came up for consideration in padmanabha rao's case 1987 (1) kar. L. j. p. 176 was, whether the protection of Section 21 of the act particularly in the matter of taking action for eviction against tenants, which was taken away in respect of non-residential building the monthly rental of which exceeded Rs. 500-00 in the year 1961, continued to be constitutionally valid even after more than two decades. The contention of the petitioner therein was, even on the basis that the classification of non-residential buildings, the monthly rental of which was Rs. 500-00 in the year 1961, continued to be constitutionally valid even after more than two decades. The contention of the petitioner therein was, even on the basis that the classification of non-residential buildings, the monthly rental of which was Rs. 500-00 or less, into one category and non- rcsidcntial buildings, the monthly rental of which exceeded Rs. 500-00 per month into another category and depriving the protection of Section 21 of the act to the latter categories of buildings, had a rational basis in the year 1961, the said basis had totally disappeared after two decades after the act was enacted and with the disappearance of the rational basis, the Section had become violative of article 14 of the Constitution of india. An exactly similar question had been considered by the Supreme Court in the case of rattan arya, ILR 1986 kar. 2069, in which Section 30 (ii) of the tamil nadu buildings (lease and rent control) Act, 1960, was struck down as violative of article 14 of the Constitution of india. Following the ratio of the said judgment, this court struck down Section 31 of the act in padmanabhu rao's case, 1981 (1) kar. L. j. p. 176. The relevant portion of the judgment reads:"value of a non-residential premises has increased manifold in the last 25 years. Therefore, there can be least doubt that if in 1961 a person paying a rent of more than Rs. 500/- for a non-residential building belonged to economically stronger Section, at present a person who requires a small non-residential building for even carrying a petty business would be required to pay rental of more than Rs. 500/- for a premises whose rental value was rs. 100/- or Rs. 150/- in 1961. The facts relating to the rentals paid by some of the petitioners originally and at present extracted earlier clearly indicates the escalation in rents between 1961 and 1986. In view of non-variation of the classification in Section 31 of the Act, the very persons for whose benefit the Section was enacted in the year 1961 stands deprived of the said benefit. In view of non-variation of the classification in Section 31 of the Act, the very persons for whose benefit the Section was enacted in the year 1961 stands deprived of the said benefit. It is for this reason it can safely be said that though the original classification was made on a rational basis and it had nexus to the object sought to be achieved, by efflux of time, not only the classification has become unreasonable but it has also ceased to have enxus to the object sought to be achieved. Applying the ratio in rattan arya's case, Section 31 of the act is liable to be struck down on the ground that it is violative of article 14 of the constitution. " ( 8 ) NOW the question for consideration is, as to whether the ratio of the said decision is or is not applicable to the validity of Rule 4 (l) (a) (10) of the rules. A reading of the Rule at once indicate that the Rule making authority considered in the year 1961 that the protection and safeguard in the matter of making allotment on the basis of merits of the applicant should be made available in respect of non-residential premises, the monthly rental of which is Rs. 500- 00 or less, without any reference to the consent of the landlord even if it had been given in favour of any applicant. At the same time, the Rule making authority consideed that in respect of non-residential premises, the monthly rental of which exceeded Rs. 500-00, there was no need to give any protection in the matter of allotment and that the rent controller should be required to make allotment in favour of any applicatant who had taken the consent of the landlord. There can be no doubt that the above basis was a reasonable one in the year 1961. But in view of the enormous increase in the rental value for the last more than two decades, the rational basis has disappeared. The position now is, even of a person wants to do a small or petty business and wants a premises for that purpose, it is difficult to get a suitable premises for rental of Rs. 500-00. But in view of the enormous increase in the rental value for the last more than two decades, the rational basis has disappeared. The position now is, even of a person wants to do a small or petty business and wants a premises for that purpose, it is difficult to get a suitable premises for rental of Rs. 500-00. Therefore, by efflux of time, the same protection which the Rule making authority intended to give in respect of non-residential premises, the monthly rental of which did not exceed Rs. 500-00, must hold good in respect of non-residential premises whose rental value is much mo:e than Rs. 500-00. This change in the situation has not been taken note of by the Rule making authority just as the legislature did not take note of such a change and did not bring out any amendment to Section 31 of the Act, as a result of which Section 31 was struck down. Therefore, we are of the view that there is no alternative for us than to hold that in the light of the ratio of the judgment in padinanabha rao's case, 1987 (1) kar. Lj. 176, foll. Rule 4 (l) (a) (10) of the rules is also liable to be declared void as offending article 14 of the Constitution of india. 8. The learned counsel for the petitioner, however, contended that even if we were to come to the conclusion that Rule 4 (l) (a) (10) of the rules is liable to be struck down as violative of article 14 of the Constitution in view of the ratio of the judgment in padmanabha rao's case, 1987 (1) kar. Lj. 176, foll. , such striking down would have only prospective effect and therefore as on the date on which the allotment was made Rule 4 (1) (a) (10) was in force, the order of the rent controller is liable to be struck down and there should be a direction to allot the premises in favour of the petitioner. Lj. 176, foll. , such striking down would have only prospective effect and therefore as on the date on which the allotment was made Rule 4 (1) (a) (10) was in force, the order of the rent controller is liable to be struck down and there should be a direction to allot the premises in favour of the petitioner. It is true that striking down of Section of an enactment or a Rule on the ground that rational basis which existed for its enacting or making, as the case may be, at the time when it was enacted or made had disappeared by efflux of time, does not have the effect or rendering the Section or the Rule void abinitio as it happens in a case where the provision is struck down on the ground of violation of any of the fundamental rights or on the ground that it was ultra vires the power of the legislature or the authority which made it, as on the date on which it was enacted. But even so, it is not possible to give the relief sought for by the petitioner for the reason even if we were to set aside the order of the rent controller and direct him to make a fresh allotment, in doing so he would have to take into account the fact that Rule 4 (1) (a) (10) has been struck down. Further, after having struck down Rule 4 (1) (a) (10) of the rules, we cannot direct the rent controller to make allotment in favour of the petitioner, taking into account the very Rule, which we have declared invalid. ( 9 ) FOR the aforesaid reasons, we make the following order:i. In W. P. 1908/1987: (i) the writ petition is allowed; (ii) Rule 4 (1) (a) (10) of the Karnataka rent control rules, 1961, is declared invalid. Ii. In W. P. No. 20319/1986: (i) the writ petition is dismissed. --- *** --- .