JUDGMENT - H.W. DHABE, J.:---Parties by Counsel, Rule heard forthwith. The respondent landlord filed an application for fixation of fair rent under Clause 4 and 5 of the C.P. Berar Letting of Houses and Rent Control Order, 1949 (for short the Rent Control Order). The learned Rent Controlled by his order dated 30-10-1980 fixed the fair rent of the suit premises in accordance with his order. In the appeal preferred by the landlord, the fair rent was enhanced by the appellate authority. The appeal filed by the tenant was dismissed. Being aggrieved, the petitioner tenant has preferred the instant with petition.

2. The Division Bench of this Court in the case of (Omprakash v. Fattelal)2, 1986 Mh.L.J. 414 has struck down the Clauses 6, 7 and 7-A of the Rent Control Order on the ground that they are violative of Article 14 of the Constitution of India. After this judgment was delivered, the learned Single Judge of this Court (Puranik. J.) In Writ Petition No. 1701 of 1981 decided on 20-3-1936 (Purushottamdas v. Anant)2 set aside the order impugned before him relying upon the aforesaid judgment of the Division Bench declaring Clauses 6, 7 and 7-A of the Rent Control Order as unconstitutional. On the basis of the above judgment, it is urged before me on behalf of the petitioner-tenant that the orders of the Rent Control Authorities impugned by the petitioner are liable to be set aside. In fact, the submission is that the application of the respondent landlord for fixation of fair rent itself is liable to be dismissed.

3. In my view although the guidelines for determination of fair rent are provided in Clauses 6, 7 and 7-A of the Rent Control Order, the application filed by the respondent landlord cannot be thrown out on the ground that the said provisions are declared unconstitutional. The application filed for fair rent is filed before the Rent Controller by the landlord or the tenant under Clauses 4 and 5 of the Rent Control Order. Clause 4 confers jurisdiction upon the Rent Controller to determine whether the rent of any house within his jurisdiction is in sufficient or excessive. Clause 5 then provides that if on consideration of all the circumstances of the case the Rent Controller finds that the rent of the house is insufficient or excessive, he can determine the fair rent, to be charged for the house. Since the validity of Clauses 4 and 5 of the Rent Control Order was not impugned and since the said clauses were not struck down by the Division Bench in the judgment cited, supra they still exist in the statute book and can be availed of by the landlord or the tenant. Hence, the application filed thereunder in the instant case would be maintainable and even though the impugned orders are liable to be set aside on the ground that they were passed on the basis of the guidelines laid down in Clauses 6, 7 and 7-A of the Rent Control Order which were declared unconstitutional the matter will have to be remanded for a fresh decision according to law.

4. The question which, however needs consideration is whether Clauses 4 and 5 of the Rent Control Order can stand pro prio vigore i.e. Independently of Clauses 6, 7 and 7-A of the Rent Control Order which provides guidelines for fixation of fair rent or must fall with the said provisions when they are struck down as unconstitutional. In my view, Clauses 4 and 5 present an integrated scheme for determination of fair rent. Clause 4 provides for a preliminary determination of the question whether the rent of the house is insufficient or excessive. Clause 5 shows that the above preliminary finding is a pre-condition for fixation of fair rent to be charged for the house. The crucial provision for fixation of fair rent is thus Clause 5. On perusal of Clause 5 it appears that the Rent Controller has to take into consideration 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 amount in addition to rent in d

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