Effect of holding Rule 12 as invalid by the Supreme Court.

Order:- The petitioners in the former two writ petitions are one and the same and they are the tenants of premises Nos. 16 and 17 Poonamallee High Road, Madras-3 and respondents 1 to 3 therein are the owners of the said premises. The petitioner in W.P. No. 1154 of 1971 along with his brother owns premises Nos. 40 41 and 42, Irusappa Maistry Street, Madras, while the first respondent in that writ petition is the tenant of the said premises. The prayer in the former two writ petitions is for the issue of a writ of prohibition restraining the fourth respondent in the writ petitions, who is functioning as the Rent Controller, not to proceed with H.R.C.Nos. 2489 of 1966 and 2942 of 1963 respectively, pending on his file. Those rent control petitions were filed under section 4 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, (Tamil Nadu Act XIX of 1960), hereinafter referred to as the Act, for fixation of fair rent in respect of the buildings in question. Similarly, W.P. No. 1154 of 1971 prays for the issue of a writ of prohibition restraining the second respondent therein, namely, the Rent Controller, from proceeding with the Rent Control proceedings H.R.C.No. 3885 of 1970, which was a petition filed under section 4 of the Act for fixation of fair rent.

2. For the purpose of understanding the arguments advanced before me, it is necessary to refer to the relevant provisions of the Act. Section 4 (1) of the Act states that the Controller shall, on application by the tenant or the landlord of a building and after holding such inquiry as the Controller thinks fit, fix the fair rent for such building in accordance with the principles set out in subsection (2) or in sub-section (3) as the case may be, and such other principles as may be prescribed. Sub-section (2) deals with the principles applicable to a residential building, while sub-section (4) deals with the principles applicable to a non-residential building. We are concerned in the writ petitions only with a non-residential building and as there is no substantial difference between the two sub-sections, I reproduce subsection (3) of section 4 below: —

"3 (a) The fair rent for any nonresidential building shall be at nine per cent, gross return per annum on the total cost of such building.

(b) The total cost referred to in clause

(a) shall consist of

(i) the cost of construction as calculated according to such rates for such classes of non-residential buildings as may be prescribed less the depreciation at such rates as may be prescribed ;

(ii) the market value of that portion of the site on which the non-residential building is constructed ; and shall include such allowances as may be made for considerations of locality in which the non-residential building is situated, features of architectural interest, accessibility to market, nearness to the railway station and such other amenities as may be prescribed and of the purpose for which the non-residential building is used:

Provided that such allowances shall not exceed twenty-five per cent, of the cost of construction as calculated in the manner specified in sub-clause (i).

Pursuant to the provisions contained in the Act, the Government of Tamil Nadu had framed rules called the Madras Buildings (Lease and Rent Control) Rules, 1961. As far as the fixation of fair rent is concerned, the same is dealt with in rules 8 to 14 of those Rules. Rule 8 stated that the residential building shall be classified into four different classes, depending upon the specifications and the materials used in the construction thereof as specified in Schedule I. Rule 9 provided for the calculation of cost of construction of residential buildings. Rule 10 enumerated the amenities in respect of which allowances should be made. Rule 11 classified the non-residential buildings into: (i) factories and godowns; and (ii) other non-residential buildings. Rule 12 dealt with the calculation of cost of construction of non-residential buildings. Rule 13 dealt

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