UNION OF INDIA Vs. DR. BHIMRAO NARAYANRAO RANDAYE

JUDGEMENT

(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.

(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 :