1. This writ petition has been referred to this court by a Division Bench into view of divergence of views between two learned single judges on the construction of section 8 (1) (c) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter

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 Section 8 (1) (c) of the said Act is ultra vires. But there is no prayer for quashing or setting aside any order of proceeding. So it is not necessary for this Court to go over the facts as pleaded in the writ petition move 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 and style of M/s Chaudhary Market. The said holding of the petitioner consists of 25 shops. The annual rental value of the said holdings in the year 1978-79 was Rs. 1500/- and thereafter on reassessment, 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 reassessment and the annual rental value was revised. The said revised rental value is subject matter of challenge in Misc. Appeal No. 71 of 1988 before the 4th additional District Judge, Patna.

4. Various legal questions 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 question primarily because those questions have not been referred to this Courts and also because of the reasons that those question are now concluded by a judgment of the Supreme Court in the case of State of Bihar Vs. 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 Section 8 (1) (c) of the said Act restricts the power given to the Controller under the substantive part of section 8 (1) (c) and as such it has been urged that the proviso to Section 8 (1) (c) of the said Act is ultra vires Section 8 (1) (c) and rule 3 of the Bihar Building (Lease, Rent and Eviction) Control Rules, 1983 (hereinafter) referred to as the said Rules.) Those rules are, however, framed under section 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 Section 8 (1) (c) to the said Act, this Court sets out the relevant portions of the Section which is as follows :

“8. (1) (c) In determining the fair rent of any other building under section 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 for 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 construction :

Provided that where the Controller is satisfied, on an application made to him by the landlord under section 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 percent of the average monthly rent so received by the landlord during the aforesaid period in addition to the enhancement if any, on account of 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