The proviso to Section 8(1)(c) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982, is a substantive provision that provides guidelines to the Controller in determining fair rent and does not restrict the Controller's authority to fix both the maximum and minimum limits of fair rent.

A. K. Ganguly, J.

1. This writ petition has been referred to this Court by a Division Bench in view of divergence of views between two learned Single judges on the construction of Sec.8 (1) (c) of the Bihar Buildings (Lease, R and E.) Control Act, 1982 (hereinefter referred to as the said Act ).

2. Before resolving the aforesaid conflict of interpretation, this Court finds that in this writ petition a declaration has been prayed to the effect that proviso to Sec.8 (1) (c) of the said act is ultra vires. But there is no prayer for quashing or setting aside any order or proceeding. So it is not necessary for this Court to go over the facts as pleaded in the writ-petition more than what is noted below:

3. The petitioner claimed to be the owner of holding No.48/1 to Holding no.48/25 situated at Ashok Raj Path, opposite B. N. College, Patna in the name of and style of M/s. Chaudhary market. The said holding of the petitioner consists of 25 shops. The annual rental value of the said holding in the year 1978-79 was Rs.1500/- and thereafter on re-assessment, the annual rental value was assessed at Rs.3700/-. During the last annual general assessment year 1992 all the 25 shops bearing holding Nos.48/1 to 48/25 were re-assessed and the annual rental value was revised. The said revised rental value is subject-matter of challenge in Misc. Appeal No.71 cf 1988 before the 4th additional District Judge, Patna.

4. Various legal question about annual rental value and imposition of tax by Patna Municipal Corporation have been stated in the writ-petition but this Court is not going into those questions primarily because those questions have not been referred to this court and also because of the reasons that those questions are now concluded by a judgment of the Supreme Court in the case of State of Bihar V/s. Sachchidanand Kishore Prasad Sinha and others reported in 1995 (1) P. L. J. R. page 86 (S. C. ).

5. In the writ petition it has been pleaded that proviso to Sec.8 (1) (c)of the said Act restricts the power given to the Controller under the substantive part of Sec.8 (1) (c) and as such it has been urged that the proviso to Sec.8 (1) (c) of the said Act is ultra vires. Sec.8 (1) (c) and rule 3 of the bihar Buildings (Lease, Rent and Eviction) Control Rules, 1983 (hereinafter referred to as the said Rules ). Those rules are, however, framed under Sec.33 of the said Act which is the rule-making provision of the said Act.

6. Since the controversy is over interpretation of proviso to Sec.8 (1) (c) to the said Act, this Court sets put the relevant portions of the Section which is as follows: -

" 8 (1) (c ). In determining the fair rent of any other building under Sec.5 or 6, the Controller shall have due regard to the prevailing rates of rent in the locality for the same or similar accommodation in similar circumstances at any time during the twelve months preceding the first day of December, 1980, and to the increased cost of repairs, and in the case a building which has been constructed after that date, also to any general increase in the cost of site and building costruction: provided that where the Controller is satisfied, on an application made to him by the landlord under Sec.5, that the rent of a building referred to in this clause is low, the Controller shall, in determining the fair rent of such building to be payable by a tenant, fix the rent of the building at a figure which shall not be less than the average monthly rent actually paid for the same or similar accommodation by any tenant over the period of twelve months preceding the first day of December, 1980, increased by not more than 25 per cent of the average monthly rent so received by the landlord during the aforesaid period in addition to the enhancement, if any, on account of the increased cost of repairs or the general increase in the cost of sites and building construction, where such enhancement is admissible under the foregoing provision of this clause. "

7. The tw