Jan Enterprises and Others vs Aegee Enterprises

M.R. Hariharan Nair, J.—Revision Petitioners are the landlords. R.C.P. 41 of 1986 on the file of the Rent Control Court, Ernakulam was filed by the Respondent herein seeking fixation of fair rent in respect of the schedule building, the contract rent for which had been fixed as Rs. 2,400 with effect from January, 1983. The Rent Control Court allowed the petition and fixed the fair rent at Rs. 1,426 per month and that was the subject-matter of R.C.A. 77/90 of the District Court, Ernakulam. The appellate Court did not interfere with the said reduction in rent and that is why the Appellants have approached this Court with this revision.

The learned Counsel for the revision Petitioner submits that the Courts below did not have jurisdiction to decide the question of fair rent as Section 5 of Act 2/65 had become inoperative as struck down. According to the Respondent the section was operative not only on the date of filing the petition but also on the date on which the R.C.P. and R.C.A. were decided by the Courts below.

A Division Bench of this Court in Issac Ninan v. State of Kerala 1995 (2) KLT 848 struck down Sections 5, 6 and 8 of the Kerala Buildings (Lease and Rent Control) Act, 1965. The judgment was delivered on 2nd November 1995. The Rent Control Court''s decision herein was on 20th December 1989 and the decision of the appellate Court was on 18th August 1990. Whether the decision in Issac Ninan v. State of Kerala 1995 (2) KLT 848 effects the present case which had already been decided arises for consideration. First of all, it cannot be said that the impugned decision had become final as on the date of judgment in Issac Ninan as it is challenged in this revision. That apart when a law is declared as unconstitutional, its normal impact is that the Statute has to be read as if the defective sections were not there in the Act at all. Unlike in Motor General Traders and Another Vs. State of Andhra Pradesh and Others, where it was specifically held in the judgment that the striking down of Section 32 of Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act would not affect the validity of any proceeding in which the decrees and delivery have become final, there is no mention in Issac Ninan''s case (l) 1995 (2) KLT 848 that the decision will have only prospective effect. As such it has to be found that the invalidity of Section 5 of Act 2/65 is applicable to the present case also. Of course, Act 2/65 has not been struck down in its entirety and only three provisions have been struck down. Nevertheless in the application of the aforesaid principle no distinction can be made between a case where the law is struck down as invalid and a case where it is declared invalid in part. When a legislature makes a law contravening a fundamental right, the position is the same as if it had no power to legislate over the subject-matter at all and accordingly, the declaration of the invalidity of the law goes to the root of the legislative power. The necessary corollary therefore, is that though the Act was struck down only as per judgment dated 2nd November 1995 it has to be understood as meaning that the sections struck down were not in Act 2/65 ever since its commencement. The Rent Control Court had, therefore, no jurisdiction to fix fair rent even on 20th December 1989. Nor did the appellate Court have jurisdiction to decide the question of fair rent on 18th August 1990. So the decisions are invalid in so far as fixation of fair rent is concerned.

Viewed from that perspective, the revision Petitioners herein are also entitled to contend that fair rent should not have been fixed u/s 5 of Act 2/65. The Courts below have proceeded to reduce the rent payable only by applying Section 5. Fixation as above has to be found as illegal in the absence of Section 5 in Act 2/65. The impugned orders are therefore defective and liable to be set aside.

In the result, the revision is allowed and the R.C.P. 41/1996 is dismissed. The rent payable by the tenant will therefore be, the contract rent namely at the rate of Rs. 2,460 per month, for the entire period.