JUDGMENT - R.M. LODHA, J. :---Since both the writ petitions involve common questions of law, the same have been heard together and are disposed of by this common judgment. 2. The facts relating to Writ Petition No. 1656 of 1989 are that the petitioner (for short "the landlord") let out the first floor of house No. 83 commonly known as Sheladwale House, situated at Balapur, Tahsil Balapur, District Akola, to the respondent (for short "the tenant") some where in the year 1973-74 on monthly rent of Rs. 50/-. On 17-2-1987 the landlord moved an application under Clauses 4 and 5 of the C.P. and Bear Letting of Houses and Rent Control Order, 1949 (for short "the Rent Control Order") before the Rent Controller, Balapur, against the tenant praying therein that the rent payable by the tenant at the rate of Rs. 50/- per month was low and fair rent at the rate of Rs. 800/- per month be fixed excluding the Municipal taxes. The said application was contested by the tenant and it was submitted that the rent paid at the rate of Rs. 50/- per month was not law. The tenant also set up the defence that the suit house was constructed before 50 to 60 years and was very old. In this view of the matter, the tenant submitted that the application filed by the landlord deserves to be dismissed. The Rent Controller, Balapur, held the inquiry and after hearing the parties by its order dated 28-12-1987 dismissed the application filed by the landlord. The Rent Controller found that the landlord has failed to prove that the rent of the premises in question was insufficient and, therefore, the question of determining the fair rent did not arise. The landlord carried an appeal before the Resident Deputy Collector. The Resident Deputy by his order dated 9-3-1989 maintained the order of the Rent Controller and dismissed the appeal filed by the landlord. The order passed by the Resident Deputy Collector dated 9-3-1989 affirming the order of the Rent Controller dated 30-11-1987 rejecting the application filed by the landlord for fixation of fair rent is under challenge in this writ petition. 3. The order passed by the Resident Deputy Collector dated 9-3-1989 affirming the order of the Rent Controller dated 30-11-1987 rejecting the application filed by the landlord for fixation of fair rent is under challenge in this writ petition. 3. The brief facts relating to Writ Petition No. 1657 of 1989 are that the petitioner (for short the landlord") let out block No. 2 of house No. 83 commonly known as Sheladwada House, situated at Balapur, Tahsil Balapur, District Akola to the respondent (for short "the tenant") in the year 1968-69 for monthly rent of Rs. 45/-. The landlord moved an application on 1-12-1986 before the Rent Controller, Balapur under Clauses 4 and 5 of the Rent Controller Order against the tenant for fixation of fair rent at the rate of 500/- per month excluding municipal taxes. The said application was contested by the tenant and it was submitted that the agreed rent was as per the market rate of rent and the house being very old, the rent being paid by the tenant is fair rent and no increase in the rent is warranted. The Rent Controller held the inquiry and after hearing the parties dismissed the application filed by the landlord and held that the agreed rate of rent at the rate of 45/- per month was not insufficient and therefore the question of fixation of fair rent did not arise. The order passed by the Rent Controller date 15-10-1987 was challenged before the Resident Deputy Collector, Akola, who affirmed the order of the Rent Controller and dismissed the appeal by his order dated 9-3-1989 and both the aforesaid orders are under challenge in this writ petition. 4. I have heard the learned Counsel for the parties and perused the record of the writ petitions. 5. Mr. Mehadia, learned Counsel for the petitioners submit that on the date of filing of the application Clauses 6 and 7 of the Rent Control Order could not have been considered to be on statute book because they were declared unconstitutional by this Court and, therefore, there was no mention in the application about the year in which the premises were constructed and the application was therefore required to be considered in the light of Clauses 4 and 5 alone. Mr. Mehadia submits that subsequently this Court in (Union of India v. De. Mr. Mehadia submits that subsequently this Court in (Union of India v. De. Bhimrao Narayanrao Randaye)1, 1989 Mah.L.J. 662, has held that the provisions of Clauses 6 and 7 are constitutionally valid. Mr. Mehadia concedes that in the application filed by the landlord for fixation of fair rent it has not been stated that the disputed house was constructed before 1-4-1940 or after 1-4-1940. Mr. Mehadia submits that the said fact was not mentioned in the pleading because of the judgment of this Court in (Omprakash Mulchand Khatri v. Fattelal Magnalal and Company)2, 1986 Mah.L.J. 414 wherein Clauses 6 and 7 were declared unconstitutional. Mr. Mehadia thus submits that because of the two inconsistent judgments of this Court in the cases of Union of India and Omprakash, (cited supra) the petitioner was prejudiced and the interest of justice would be met if the orders impugned in the present writ petitions are quashed and set aside and the matters are sent back to the Rent Controller for fresh decision in accordance with law after granting the permission to the landlord to amend the pleadings in the light of Clauses 6 and 7 of Rent Control Order. 6. On the other hand the learned Counsel for the respondents submit that the pre-requisite conditions for fixation of fair rent having not been mentioned by the landlord in the application, the authorities below did not commit any error in rejecting the applications filed by the landlord. 7. Clauses 4, 5, 6 and 7 of the Rent Control Order read as under :--- "4. When on a written application by the landlord or tenant, the Controller has reason to believe that the rent of any house within his jurisdiction is insufficient or excessive as the case may be, he shall hold such enquiry as may be necessary and record a finding. 5. If, on a consideration of all the circumstances of the case, including any amount paid before the (1st December, 1952) by the tenant by way of premium or any other like sum in addition to rent, the Controller finds that the rent of the house is insufficient or excessive as the case may be, he shall determine the fair rent to be charged for the house. 6(1) In determining the rent under Clause 5 of a house constructed before 1st April, 1940 and occupied wholly or mainly for purposes of residence, the Controller shall have due regard to the prevailing rates of rent for the same or a similar house in similar circumstances during the twelve months immediately before that date and to the rental value as entered in the Municipal or Local Board Assessment Registers, as the case may be, relating to that period and shall increase the rent so determined by 12½ per cent, if he is satisfied that the house has been maintained by the landlord in a proper state of repairs. (2) In determining the fair rent under Clause 5 of a house constructed after the 1st April, 1940 and occupied wholly or mainly for purposes of residence, the Controller shall have due regard to the prevailing rates of rent for the same or a similar house in similar circumstances and also to any general increase in the cost of sites and building construction. 7(1) In determining the fair rent under Clause 5 of a house constructed before the 1st April, 1940 and occupied wholly and mainly for non-residential purposes, the Controller shall have due regard to the prevailing rates of rent for the same or a similar house in similar circumstances during the twelve months immediately before that date and may, after considering any general rise in the rental value for business or other similar purposes, increase the rent so determined upto 50% if he is satisfied that the house has been maintained by the landlord in a proper State of repair : Provided that where a house has been let for educational purposes the increase shall not exceed 12½ per cent. (2) In determining fair rent under Clause 5 of a house constructed after the 1st April, 1940 and occupied wholly or mainly for non-residential purpose, the Controller shall have due regard to the prevailing rates of rent for the same or a similar house for similar purposes and also to any general increase in the cost of site and building construction." 8. Under Clause 5 either the landlord or the tenant may move the Rent Controller for fixation of fair rent if the agreed rent is excessive or insufficient, and on moving such application if the Rent Controller is satisfied that the agreed rent is excessive or insufficient, he may hold the inquiry necessary for the purpose. According to Clause 5, if the Rent Controller finds that the agreed rent of the house is insufficient or excessive, he may determine the fair rent to be charged for such house and while so determining, he may take into consideration relevant circumstances of the case including any amount paid before 1st December, 1952 by the tenant by way of premium or any other like sum in addition to rent. Clause 6 provides that while fixing the fair rent under Clause 5 of a house constructed before 1st April, 1940, the Rent Controller shall give due regard to the market rate of rent for the same or a similar house in similar circumstances preceding twelve months before that date and to the rental value as entered in the Municipal or Local Board Assessment Registers and the rent shall be increased by 12½ per cent if he is satisfied that the house has been maintained by the landlord in a proper state of repairs. Sub-clause (2) of Clause 6 provides that while determining the fair rent under Clause 5 of a house constructed after 1st April, 1940 the Rent Controller shall take into consideration the market rate of rent for the same or a similar house in similar circumstances and also to any general increase in the cost of sites and building construction. It would be seen that sub-clauses (1) and (2) of Clause 6 refer to determination of fair rent for premises used for residential purposes and different guidelines and rate are provided for the houses constructed before 1-4-1940 and after 1-4-1940. Clause 7 deals with fixation of fair rent of house used for non-residential purpose wholly or in part. It would be seen that sub-clauses (1) and (2) of Clause 6 refer to determination of fair rent for premises used for residential purposes and different guidelines and rate are provided for the houses constructed before 1-4-1940 and after 1-4-1940. Clause 7 deals with fixation of fair rent of house used for non-residential purpose wholly or in part. Sub-clause (1) of Clause 7 provides that in determining the fair rent under Clause 5 of a house constructed before the 1st April, 1940 used for non-residential purpose wholly or in part the Rent controller shall take into consideration the prevalent rates of rent for the same or a similar house in similar circumstances preceding 12 months immediately before that date and after considering any general rise in the rental value for business or other similar purposes, may increase the rent so determined upto 50%, if he was satisfied that the house has been maintained by the landlord in a proper state of repairs. However, a proviso is added that where a house has been let for educational purposes the increase shall not exceed 12½ per cent. Under sub-clause (2) of Clause 7 while determining the fair rent under Clause 5 of a house constructed after the 1st April, 1940 and used wholly or partly for non-residential purpose, the Rent Controller is required to give due regard to the prevailing rates of rent for the same or a similar house for similar purposes and also to any general increase in the cost of site and building construction. 9. The aforesaid discussion of Clauses 4, 5, 6 and 7 would make it clear that the power to fix the fair rent is to be exercised by the Rent Controller under Clause 4 on the application to be filed by the landlord or tenant under Clause 4. The manner of exercise of power is provided in Clauses 6 and 7 and broadly two categories for both residential as well as non-residential premises have been carved out. Sub-clause (1) of Clause 6 deals with the house constructed before 1st April, 1940 used for residential purpose wholly or mainly, while sub-clause (2) of Clause 6 deals with the house constructed after 1st April, 1940 and used for residential purpose wholly or mainly. Sub-clause (1) of Clause 6 deals with the house constructed before 1st April, 1940 used for residential purpose wholly or mainly, while sub-clause (2) of Clause 6 deals with the house constructed after 1st April, 1940 and used for residential purpose wholly or mainly. Similarly sub-clause (1) of Clause 7 deals with the house constructed before 1st April, 1940 and used wholly or mainly for non-residential purpose, while sub-clause (2) of Clause 7 deals with the house constructed after 1st April, 1940 and used wholly or mainly for non-residential purpose. Since the present matter relates to the premises which are occupied wholly and mainly for non-residential purposes the manner in which the fair rent was to be fixed was provided under Clause 7. The pleading with regard to the age of construction is therefore of utmost importance in an application filed by the landlord or tenant seeking fixation of fair rent under Clauses 4 and 5 and lack of such pleading would and could not enable the Rent Controller to fix the fair rent because that can only be made by the Rent Controller on the basis of the date of construction of house, either before 1-4-1940 or after 1-4-1940. In the absence of basic and pre-requisite facts about the construction, as to whether the house for which the landlord was seeking increase in the rent was constructed before 1-4-1940 or after 1-4-1940, having been not mentioned, the application filed by the landlord was liable to be dismissed. There is no merit in the contention of the learned Counsel for the petitioner that at the time of filing of the applications Clauses 6 and 7 were declared unconstitutional and were not on the statute book and it was only that by the judgment in the case of Union of India, 1989 Mah.L.J. 662, (cited supra) the said Clauses 6 and 7 have been held to be constitutional. As observed by me above, if an application has been filed by the landlord or tenant under Clauses 4, the fair rent is to be fixed by the Rent Controller under Clause 5 in the manner as provided in Clauses 6 and 7 respectively, looking to the nature of the premises. As observed by me above, if an application has been filed by the landlord or tenant under Clauses 4, the fair rent is to be fixed by the Rent Controller under Clause 5 in the manner as provided in Clauses 6 and 7 respectively, looking to the nature of the premises. Thus it was incumbent on the part of the landlord to plead in the application in unequivocal terms that the house in question was constructed before 1-4-1940 or after 1-4-1940 and occupied wholly or mainly for non-residential purpose, and in the absence of specific pleading about the year of construction of disputed house the Rent Controller could not have determined the fair rent because for the premises constructed before 1-4-1940 increase in fair rent is at a different rate and for the premises constructed after 1-4-1930 increase in rent is different. Admittedly no date of construction has been given by the landlord either in the application filed under Clause 4 nor during the course of inquiry in his deposition. In this view of the matter, it cannot be said that the authorities below committed any error in rejecting the applications filed by the landlord for fixation of fair rent, though on different grounds. 10. Consequently there is no merit in both the writ petitions and the same are dismissed Rule is discharged. No order as to costs. 11. However, it is made clear that since the applications filed by the landlord for fixation of fair rent have been rejected on the ground that there was not specific pleading about the year of construction, it would be open to the landlord to file fresh application, if permissible under law. Petition dismissed. *****