R.K Choudhary, J.:— 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 Section 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 non-payment 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 8-2-1955, deposited the rent for September, 1954 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 18-8-1956, 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 sirice no fair rent of the house in question had been fixed by the controller, the letting of the house was unlawful under the provisions of S. 6(2) of the Act and, therefore, the application of the landlords for eviction under the provisions of the above Act was not maintainable. On behalf of the landlords opposite parties it was contended that the tenancy having been created before the Act came into force, S. 6(2) could have no application.

4. In support of the contention raised by the petitioners reliance was placed on the case of Ram Krishna Shukla v. Thakur Sri Ramjanki, AIR 1957 Fat 168 in which the view taken seems to be that S. 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.

5. 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.

6. 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, felt expedient to regulate the letting of buildings and the rent of the same and to prevent unreasonable eviction of tenants from the buildings.

7. 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 as the Bihar House Rent Control Order, 1942, which was published in an extraordinary issue of the Bihar Gazette dated 25-2-1942. Paragraph 4 of that Order provided for continuation of existing tenancies from month to month; paragraph 5 provided for determination of a fair rent of house in occupation of a tenant other than a tenant from month to month and paragraph 6 provided for determination of fair rent of houses other than houses referred to in paragraph 4 or 5.

8. Under those provisions the Controller was empowered to determine the fair rent of a house in certain circumstances which need not be stated here as they have no bearing on the question at issue. The above Order was amended by a subsequent Order dated 23-12-1943, published in an extraordinary issue of the Bihar Gazette dated the 24th December, 1943. Under the above amendment certain provision of paragraph 4 of the above Order was amended, but it is not necessary to refer to that amendment as it does not touch the point in question.

9. Subsequently, in 1946, the Bihar Buildings (Lease, Rent and Eviction Control) Ordinance, 1946 Bihar Ordinance No. II of 1946) was promulgated which came into force on the first day of October, 1946. The provisions of paragraphs 5 and 6 of the Order with necessary modifications were inserted in Ss. 5 and 6 of the Ordinance. Over and above the same for the first time, by sub-section (2) of S. 6 of the Ordinance the letting of a building was made unlawful in certain circumstances. These sections run as follows:

“5.(1) When, on application by the tenant in possession of a building or otherwise, the Controller has reason to believe that the rent of that building is excessive, he shall hold a summary enquiry and record a finding.

(2) If, on a consideration of all the circumstances of the case, including any amount paid or to be paid by the tenant by way of premium or any other like sum in addition to the rent, the Controller is satisfied that the rent of the building is excessive, he shall determine the fair rent for such building.

“6.(1) The Controller may, on his own motion, and shall, on the application of the landlord or a prospective tenant and after making such inquiry as he thinks fit determine the fair rent for any building not in the occupation of a tenant and such fair rent shall be determined as for a tenancy from month to month.

(2) It shall not be lawful for a landlord to let any building the fair rent of which has not been previously determined under the provisions of sub-section (2) of S. 5 or sub-section (1) of this section.

(3) If any building the fair rent of which has been determined under sub-section (1) is let, the landlord shall be entitled to charge for each month of the tenancy—

(i) if the building is let for a period not exceeding six months, the fair rent determined under sub-section (1) increased by 10 per cent.

(ii) If the building is let for a period exceeding six, but not exceeding nine months, the fair rent determined under sub-section (1) increased by 5 per cent; and

(iii) if the building is let for a period exceeding nine months, the fair rent determined under sub-section (1)”.

10. Later on the Act, namely, the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, was enacted which received the assent of the Governor General on 14-3-1947. Sections 5 and 6 of the above Act were exactly similar to Ss. 5 and 6 of the above Ordinance. By Bihar Act V of 1951 there was an amendment of S. 5 of the Act under which the landlord also became entitled to make an application for increase of the rent if it was low. After the amendment the section reads as follows:

5.(1) when, on application by the landlord or by the tenant in possession of a building or otherwise, the Controller has reason to believe that the rent of that building is low or excessive, he shall hold a summary inquiry and record a finding.

(2) If, on a consideration of all the circumstances of the case, including any amount paid or to be paid by the tenant by way of premium or any other like sum in addition to the rent, the Controller is satisfied that the rent of the building is low or excessive, he shall determine the fair rent for such building”.

11. By Bihar Act XVI of 1955 certain important changes were introduced by way of amendment to the Act. Apart from other amendments to which no reference need be made as they are not relevant for the purpose of the present case, there were certain amendments made in Ss. 5 and 6 of the Act also. In sub-section (2) of S. 5 the words “or to be paid” were omitted.

12. In sub-section (1) of S. 6 the figure and brackets “(1)” and the words “and such fair rent shall be determined as for tenancy from month to month” were omitted and sub-sections (2) and (3) of that, section were entirely omitted. It is, however, well settled by now that these amendments have got no retrospective effect and it is conceded at the bar I that the present case will be governed by the provisions of the Act as they stood before the above amendments. I will now deal with the various contentions raised on behalf of the petitioners as stated above.

13. The first contention is, as already stated, chat the Act has no application to the tenancy in question as it was created before the Act came into force. There appears to be merit in this contention, (sic). The object of the enactment of the Act was to regulate the letting of buildings and the rent of such buildings and to prevent unreasonable eviction of tenants therefrom in this State. The Legislature intended to regulate not only the letting of buildings after the enactment of the Act but also the rent thereof and to prevent unreasonable eviction of tenants therefrom whether they were let out before or after the Act came into force.

14. It may be true that some of the provisions of the Act may not have application to tenancies created before the enactment of the Act and this aspect of the case will be considered at the time of dealing with the second contention raised on behalf of the petitioners. But there are various provisions in the Act the terms of which unambiguously indicate that they are applicable to these tenancies also which were created before the Act.

15. For example. S. 4 prohibits a landlord from increasing the rent of a house which is already in possession of a tenant either from before or after the, date of the enactment of the Act except in certain circumstances mentioned therein. Section 5 provides for the determination of fair rent of buildings which are in possession of tenants either from before or after the Act was passed.

16. Section 10 prohibits a landlord from making any interference with amenities enjoyed by the tenant whether the tenancy was created before or after the Act and S. 11 prevents unreasonable eviction of tenants from buildings even though the tenancy was created before the Act came into force. It is not, therefore, correct to say that the provisions of the Act can have no application to a tenancy created before the enactment of the Act in question?

17. Reliance has, however, been placed on behalf of the petitioners on two Bench decisions of this in Firm Matmmall Satnarain v. Mt. Rami, AIR 1945 Put 483 and Shiveshwar v. Parmeshwar*, AIR 1949 Pat 355 in which the provisions of the Act were not applied to tenancies created before the Act. But in those cases the tenancies had been determined even prior to the enactment of the Act and they, therefore, cannot be of any authority for the broad proposition formulated on behalf of the petitioners that the provisions of the Act can have no application at all to such tenancies.

18. It is submitted that the Act has no retrospective effect and in support of this contention reliance has been placed on an observation made in a single Judge decision of this Court in Dasrath Narayan v. Mahendra Prasad, 1958 BLJR 359 that the provisions of the Act did not provide for the retrospective effect. In that case what happened was this: The plaintiff was the tenant of the defendants' upper flat of a building on a monthly rent of Rs. 30.

19. This tenancy was created before 1946, the year in which the Bihar Buildings (Lease, Rent and Eviction Control) Ordinance, 1946, was promulgated. The defendants filed a petition before the house controller for eviction of the plaintiff on the ground of non-payment of rent and the house controller directed the plaintiff to vacate the house and to give back possession to the defendants. This Older was upheld by the Commissioner.

20. The plaintiff being dissatisfied with this order ultimately filed a suit before the civil court for setting aside the order of the house controller and the Commissioner. Having lost in the court of appeal below the plaintiff filed a second appeal in this Court. The question that appears to have been raised was that the tenancy having been created before the Act and the Ordinance that existed before the Act its provisions could not be applicable to it.

21. It is not clear from the report as to which of the provisions was contended to be inapplicable to such tenancy. But from the reference of the decision in Civil Revision 972 of 1954 which was one of the batch of several cases reported in AIR 1957 Pat 168 referred to above it appears that the point taken may have been that as no fair rent of the house was fixed under the provisions of the Act, there was no relationship of landlord and tenant in view of S. 6(2) of the Act.

22. In that connection it was pointed out that there is nothing in the report of that case that the tenancy was created before the Ordinance that existed before the Act, though it was clear that it was created before the Act. Imam, J., therefore, observed that the facts of the case under consideration before him were on fundamental point different from the facts of the case reported in AIR 1957 Pat 168 because the tenancy that he was dealing with was created prior to the year when no similar law existed.

23. The view that was taken by his Lordship will be considered at the time of dealing with the second contention referred to above. He, however, while referring to the decision of their Lordships in the above case in AIR 1957 Pat 168 in regard to the power of the controller under section 8(3) of, the Act fix date of the commencement of the fair rent so determined or redetermined either retrospectively or prospectively, observed that the Act has no retrospective effect. In my opinion, his Lordship was not called upon in that case to decide precisely about the retrospective character of the whole enactment and his observation is merely an obiter.

24. But as already pointed out, the view taken by his Lordship in this regard cannot be said to be correct because he has already stated that he had been through the main and important sections of the Act and he had not been able to find any provision that the provisions of the Act will have retrospective effect. I have already shown that there are certain provisions in the Act which may be applicable to tenancies created before the Act come into force and it cannot, therefore, be said generally that none of the provisions of the Act has any retrospective effect. The decision in that case on this point, therefore, must be held to be incorrect and is overruled.

25. The second contention raised is the main contention and it is on account of this contention that this case has been referred to a Full Bench. It is submitted that in order to have the relationship of landlord and tenant between the parties after the Act came into force, it was essential that a fair rent of the house should have been fixed either under S. 5(2) or under S. 6(1) of the Act, and, in the absence of fixation of a fair rent, the contract entered into by the parties, even though it was entered into before the Act came into force, must be held to be void; in other words, the contention put forward is that irrespective of the fact as to when the house was let either before or after the enactment of the Act, there must be fixation of a fair rent by the Controller under the provisions of the Act in order to create or continue a valid lease between the parties and there being no such valid lease, the Controller had no jurisdiction to entertain the application for eviction.

26. Under section 5(1) of the Act the Controller is authorised to hold a summary inquiry and record a finding about the rent of a house which is already in occupation of a ??? law or excessive either on an application being made by the landlord or by the tenant or on his own motion, if he has reason to believe that the rent of that building is low or excessive. Sub-section (2) of that section empowers the controller to determine, after such inquiry, the fair rent for such building on consideration of certain facts and circumstances if he is satisfied that the rent of a building is low or excessive.

27. sub-section (1) of S. 6 then provides for determination of such fair rent by the Controller of a building which is not in occupation of a tenant either on his own motion or on an application having been made in that regard by the landlord or a prospective tenant. Then comes section 6(2) which states that it shall not be lawful for a landlord to let any building the fair rent of which has not been previously determined under the provisions of sub-section (2) of section 5 or sub-section (1) of section 6.

28. It is on the basis of this section that the argument has been advanced that in order to have the relationship of landlord and tenant between the parties even with respect to a tenancy created before the Act, a fair rent must have been fixed by the Controller. I, however do not find any justification to accept this contention. As already stated, a fair rent, under S. 5(2) is fixed for a building which is already in occupation of a tenant. That being so, the question of letting that building does-not arise so long as the tenant is in occupation.

29. What section 6(2) makes unlawful is the letting of a building without getting the rent fixed under the provisions referred to therein and not allowing the continuation of a tenancy which was created before the Act came into force when there was no question of fixing any fair rent for a building. On a proper construction of S. 5 it appeal's that under certain circumstances a fair rent may not at all be determined for a house which is in, occupation of a tenant from before the coming into force of the Act. That section, as already stated, provides for fixation of a fair rent only on an application of a landlord or a tenant or on the own motion of the controller.

30. But there may be cases in which a landlord may not think the rent on which the house was let to be low or a tenant may not think the same to be excessive, and the controller also may not have any reason to believe the rent of that building to be at all excessive or low. In these cases, as the section stands, there is no obligation on the controller to determine any fair rent for such a building.

31. Could it then be said that in such a case the relationship of landlord and tenant between the parties created before the Act ceased to lie so after its enactment? The answer must be ‘no’.

32. In my opinion, what section 6(2) makes unlawful is the letting of a house after the Act, the, fair rent of which has not been previously deter-1 mined. It does not make the continuation of a tenancy which was created before the Act unlawful on the ground that its rent had not been previously fixed. Even on a pure grammatical construction it is impossible to think in the, case of a tenancy created before the Act to have the rent previously determined when there was no provision under which any court could determine a fair rent.

33. Counsel for the petitioners, however, has laid stress on the later portion of sub-section (2) of section 6 which speaks of the rent having been previously determined also under the provisions of sub-section (2) of section 5. His contention is that on a simple reading of that section it is not lawful for a landlord to let any building the fair rent of which has not been previously determined under the provisions of sub-section (2) of section 5. He has advanced an argument that under Section 5(2) of the Act the rent had to be determined for a building which was already in occupation of a tenant; why than the Legislature said that it shall not be lawful for a landlord to let that building?

34. His contention is that by making the above? provision the Legislature intended to make the tenancy even created before the Act unlawful unless the rent had been fixed under section 5(2) of the Act. In my opinion, this argument cannot prevail and must be overruled. What the Legislatures meant by making the above provisions is that if a house is not in occupation of a tenant, a fair rent for it must be determined under section 6(1) of the Act in order to make a tenancy created after the-Act to be lawful.

35. But, if the house is already in occupation of a tenant, a fair rent of the same may be determined in cases mentioned therein so that if after such determination there be an occasion for letting the house, say in case the tenant vacates the same, the letting may not be unlawful; in other words, if at the time the Act came into force the house was in occupation of a tenant, but the fair rent of the same was not determined under S. 5, it would be unlawful for the landlord to let it again after the tenant has vacated the house unless a fair rent for the same has been determined thereafter under S. 6(1) of the Act.

36. Let us take a case of such a tenancy before the Act. A fair rent has been determined under S. 5(2) of the Act. After that, the tenant vacates the house. The landlord will be entitled to let it at the fair rent so fixed and will not be required to make a fresh application under section 6(1) for determination of a fair rent in order to Act the house again to another tenant. But suppose during the continuation of the previous tenancy no fair rent has been fixed under section 5 and the tenant vacates the house, the landlord must get the fair rent of the house determined under section 6(1) before he would be legally entitled to let it out to another tenant.

37. It is, in my opinion, in the above sense that section 6(2) of the Act has stated that the letting of the building will not be lawful if its rent has not been previously determined under the provisions of section 5(2) or section 6(1). Any other construction to the section would lead to an absurdity which will be manifest from section 20 of the Act. That section provides that if any person contravenes any of the provisions of the Act, he snail, except in certain cases, be punishable with imprisonment for a term which may extent to two years or with fine or with both.

38. If section 6(2) is construed to mean that the letting of a house even prior to the enactment of the Act would be unlawful if the rent has not been determined under section 5(2) of the Act, the landlord will be guilty of an offence under section 20 of the Act and be liable to punishment for an act which at the time when it was done was perfectly legal and valid. Such construction, apart from leading to an absurdity, will also infringe Article 20(1) of the Constitution of India which states that no person shall be convicted of any of fence except for violation of a law in force at the time of the commission of the act charged as an of fence.

39. Counsel for the petitioners, however, has relied on the above Bench decision of this Court in AIR 1957 Pat 168. In that case their Lordships were considering a batch of several civil revision applications under section 25 of the Provincial Small Cause Courts Act which involved the interpretation of section 6(2) of the Act. Their Lordships after considering the various provisions of the Act and other laws relevant to the interpretation of a statute came rightly (if may say ??? with due respect) to the conclusion that section 6(2) of the Act makes it unlawful for the landlord to let out a house the rent of which has not been previously determined either under section 5(2) or section 6(1) of the Act.

40. After having held so, their Lordships examined the facts of the different cases in all of which except Civil Revision 972 of 1954: (AIR 1957 Pat 168) the tenancies were created after the Act came into force and disposed of these ??? in accordance with the view that they took of section 6(2) of the Act as stated above. Then their Lordships took into consideration the above Civil Revision No. 972 of 1954: (AIR 1957 Pat 168) in which the house had been let out to the defendant sometime before the Act came into force.

41. Their Lordships noticed the above fact, but, without considering is to the effect of such a tenancy, held that, in view of the above decision of section 6(2) of the Act the landlord was not entitled to recover any rent at the contract rate. As pointed out by Imam, J., in the case of 1958 BLJR 359 referred to above, their is nothing in this casa to show that the tenancy was created even before the Ordinance of 1946, referred to above, in which there were similar provisions as regards the letting of a house to be unlawful. If in that civil revision application the tenancy was created before the Act came into force but subsequent to the above Ordinance, nothing can be said against the decision in that case.

42. But reading the judgment of their Lordships I do not feel inclined to take a view that the tenancy in that case was created after the Ordinance and, therefore, their Lordships applied section 6(2) of the Act to it. It is manifest from the judgment that their Lordships meant that section 6(2) of the Act applied to that case even though the tenancy was created before any such law was enacted. The effect of the above decision has been understood to be that section 6(2) of the Act makes the tenancy void even if it was created before the Ordinance of 1916 was promulgated.

43. It is therefore, that in the beginning of my judgment I stated that the view taken in that case seems to be that section 6(2) of the Act could be applicable to a tenancy created even before the Act came into force.

44. As already pointed out, their Lordships gave no consideration to the effect of a tenancy created before the Act, nor did they give any reason why the above lav? could be applicable even to such a tenancy. In my opinion, the provision of section 6(2) of the Act was applied to Civil Revision 972 of 1954: (AIR 1957 Pat 168) by their Lordships inadvertently.

45. Be that as it may, it is perfectly clear that for the reasons already given by me, section 6(2) of the Act has no application to a tenancy created before the Act or the Ordinance that existed before the Act came into force.

46. On a careful consideration of the above provisions of law, my concluded opinion is that section 6(2) of the Act has no application to a tenancy created before the Act and the Ordinance of 1946 that existed before the Act came into force and any decision to the contrary is incorrect and must be over-ruled.

47. The third contention is that the landlord was not legally entitled to enhance the rent of he-house after the Act came into force. It is contended on behalf of the petitioners by Mr. Srivastava, as has also been stated in the application itself, that originally the rent of the house was Rs. 3 per month, but the same was increased to Rs. 5 in 1944 and to Rs. 7 in 1949. There is nothing on the record, however, to substantiate this allegation. The judgments of the courts below are absolutely silent on this point and it must, therefore, be safely presumed that it was not raised before them.

48. It is not permissible in writ applications to investigate into fresh questions of fact which are not borne out by the record. The learned counsel, therefore, is not entitled to raise this point for the first time in this application in this Court. This contention, therefore, has to be rejected in limine.

49. For the reasons given above, there appears to be no merit in this application which must be dismissed with costs. Hearing fee: Rs. 200.

50. It may be noted that the learned Government Advocate appeared for opposite party no. 1, the Commissioner of Tirhut Division, Muzarfarpur and supported the order of eviction passed by him. On behalf of the landlords opposite party the case was argued by Mr. S.P Sinha. The hearing fee therefore, will be payable to the two sets of opposite party half and half.

51. V. Ramaswami, C.J:— I agree.

52. K. Sahai, J.:— I concur.

D.H.Z

53. Application dismissed.