Section 6(2) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, does not apply to tenancies created before the Act came into force and does not render such tenancies unlawful in the absence of a fair rent determination.

R.K.Choudhary, J.

1. The short facts leading to the presentation of this application under articles 226 and 227 of the Constitution of India are these:

2. In the year 1939-1940 the petitioners took orally a house in the town of Samastipur from the then landlord on a monthly rent. That landlord in February, 1941, sold the house to opposite parties 2 to 9, but the petitioners continued to remain in the house. On 1-2-1955 the above opposite parties made an application before the house controller at Samastipur under Sec.11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act III of 1947), hereinafter to be referred to as the Act, for the eviction of the petitioners on the ground of nonpayment of rent as well as on the ground of personal Necessity.

On the same day the petitioners remitted the rent for September to December, 1954, by money order, but the above opposite parties refused to accept the Same on 5-2-1955, and, there upon the petitioners, on 8-2-1935, deposited the rent for September, 1934 to January, 1955 in Court. On 14-2-1955, the house Controller held against the landlords on both the grounds and dismissed the application. An appeal preferred by the landlords before the collector was also dismissed on 18-6-1956, but the Commissioner by his order dated 15-9-1958, accepted the case of the landlord about the non-payment of rent and passed an order of eviction against the petitioners, They, therefore, filed the present application in this Court.

3. The case came up for hearing before a Division Bench of this Court on 14-4-1958, and it was argued on behalf of the petitioners that since BO fair rent of the house in question had been fixed fey the controller, the letting of the house was unlawful under the provisions of Sec. 6(2) of the Act and, therefore, the application of the landlords for eviction under the provisions of the above Act was act maintainable. On behalf of the landlords opposite parties it was contended that the tenancy having been created before the Act came into force, Sec. 6(2) could have no application.

In support of the contention raised by the petitioners reliance was placed on the ease of Ram Krishna Shukla V/s. Thakur Sri Ramjanki, AIR 1957 Pat 168 in which the view taken seems to be that Sec. 6(2) of the Act could be applicable to a tenancy Created even before the Act came into force. The Bench hearing this case entertained some doubt about the correctness of this decision and, therefore, the case has been placed before this Full Bench for disposal.

4. Mr. Srivastava appearing for the petitioners has raised three contentions in support of the application namely, (1) that the tenancy in this case having been created before the enactment of the Act the same was not applicable to it and the controller had no jurisdiction to maintain the application for eviction and the order of the Commissioner was without Jurisdiction; (2) that assuming that the Act applied to the tenancy in question, the contract of letting was void as no fair rent of the house was fixed under the provisions of the Act and consequently there was no relationship of landlord and tenant between the parties and (3) that, at any rate, the rent enhanced by the landlords after the enactment of the Act was illegal and the landlords were not entitled to recover the same to the extent of enhancement.

5. Before dealing with the above points, it may perhaps be profitable to notice the various enactments on the matter under consideration. Before February, 1942, the rights of the parties in regard to the letting of a house were governed by the Transfer of Property Act. It was, however, fell expedient to regulate the letting of buildings and the rent of the same and to prevent unreasonable eviction of tenants from the buildings,

On 24-2-1942, the Governor of Bihar, in exercise of the powers conferred by Clause (bb) of Sub-rule (2) of rule 81 of the Defence of India Rules made an order known an the Bihar House Rent C