Supreme Court
	
	Dorothy Blake, Bridgid Elizabeth Downes, Eileen McAleese, Nuala Ladd and Patricia Hodgins
	(Plaintiffs)
	v.
	
	The Attorney General
	(Defendant)

No. 6918p of 1978 & No. 141 of 1980
[29th June, 1981]	

Status: Reported at [1982] IR 117; [1981] ILRM 34	

O’Higgins C.J.,
These two appeals relate to separate actions in which declarations were sought as to the invalidity, having regard to the provisions of the Constitution, of certain parts of the Rent Restrictions Act, 1960, as amended by the Rent Restrictions (Amendment) Act, 1967, and the Landlord and Tenant (Amendment) Act, 1971. In the Blake action declarations were sought as to the invalidity of Parts II and IV of the Act of 1960, as amended, and in the Madigan action a similar declaration is sought in respect of Part IV only. Both actions were heard together in the High Court and resulted in declarations as to invalidity being made by the trial judge, Mr. Justice McWilliam, in respect of both parts of the Act of 1960. Against this decision these appeals have been brought by the Attorney General in respect of the relief granted in each of these actions. These appeals have been heard together by this Court.
The Rent Restrictions Act, 1960, is declared by its long title to be “An Act to make provision for restricting the increase of rent and the recovery of possession of premises in certain cases and to provide for other matters connected therewith.”
As this long title indicates, the Act of 1960 is intended to operate in respect of lettings of premises to which it applies, and so to operate in respect of the amount of the rent or the recovery of possession of such premises, irrespective of the terms of any letting agreement, or of the wishes of the landlord. The premises to which the Act applies are termed “controlled dwellings.” These, with the amendments made by the Act of 1967 taken into consideration, are such dwellings that were erected before the 7th May, 1941, which, if houses, do not exceed £40 rateable valuation in Dublin or Dun Laoghaire and £30 elsewhere, and, if separate and self-contained flats, do not exceed £30 rateable valuation in Dublin and Dun Laoghaire and £20 elsewhere. Exclusions from the operation of the Act of 1960 are provided in s. 3, sub.-s. 2, which excludes, on various grounds, dwellings which by reason of date of erection or valuation would otherwise be controlled. The control effected by the Act of 1960, as amended, is said to extend to between 45,000 and 50,000 dwellings.

The restrict ion on rents
Part II of the Act of 1960 provides for the “restriction of rent of controlled dwellings.” This restriction is effected by providing for the determination of a basic rent for each controlled dwelling which, with such lawful additions as are permitted, becomes the rent which is payable. The determination of the basic rent is provided for in s. 7 and in s. 9 of the Act. Each of these sections was amended by the Act of 1967 and they are referred to in their amended form.
Section 7 of the Act of 1960 applies to a controlled dwelling in respect of which evidence is forthcoming (a) that it was on the 8th June, 1966, held by an occupying tenant under a contract of tenancy not being for more than a term of five years or under a statutory tenancy, and (b) the rent at which it was then so held. The basic rent under the section is the net rent on the 8th June, 1966. This net rent makes provision for the rates, if paid or allowed by the landlord. If rates were not paid or allowed for by the landlord, then the rent on the 8th June, 1966, is the net rent and, therefore, the basic rent. Otherwise the basic rent is the rent payable under the contract.
If the requirements of s. 7 are not satisfied, then s. 9 applies. Under this section the basic rent of controlled dwellings, not falling within s. 7, is determined by the court. Such rent must be the amount which the court considers reasonable having regard, as far as possible, to the rents of comparable dwellings. Section 10 provides for the additions which may be made to the basic rents as determined. Section II provides that the lawful rent shall, if there are no permitted additions, be the basic rent, If there be such additions, the section provides that the lawful rent shall be the sum of the basic rent and such additions.

The recovery of possession
Part IV of the Act of 1960 deals with “restrictions on recovery of possession of controlled premises.” The broad effect of these restrictions is that a landlord cannot normally recover possession of a controlled dwelling from a tenant who pays his rent, observes the other conditions of the tenancy and does not commit nuisance or waste. However, provision is made for the recovery of possession by the landlord if he can establish certain special grounds. When an order for possession is refused by reason of the provisions of the Act of 1960, the court makes an order declaring that the tenancy of the tenant arising otherwise than by virtue of that Act has terminated, and the tenant then becomes a statutory tenant. Up to the making of such an order, the tenant is commonly referred to as a non-statutory tenant.
On the death of the tenant, whether statutory or non-statutory, the surviving spouse, if there be such, and, if not, a member of the family who is bona fide residing with the tenant, becomes entitled (s. 31) to the same protection from dispossession as had been enjoyed by the tenant. Furthermore, a statutory tenant is empowered, with the consent of the landlord, to make a voluntary assignment of the dwelling. The landlord’s consent can be withheld only if greater hardship would, owing to the special circumstances of the case, be caused by granting such consent than by withholding it: see section 32. The landlord of a statutory tenant is also, for the purposes of some sections of the Act of 1960, made responsible for any repairs for which the tenant is not under a liability under his contract or by virtue of s. 42 of the Landlord and Tenant Law Amendment Act, Ireland, 1860 (commonly called Deasy’s Act).
The restrictions contained in Part IV of the Act of 1960 may have the result that, in the absence of special grounds, possession of a dwellinghouse can never be recovered by the landlord and that possession thereof, with all the features of statutory protection, can eventually pass to different generations of the tenant’s family or of the tenant’s assignee.

The Rent Restrictions Act, 1960
The Act of 1960 was the first measure dealing with rent restriction which was not expressed to be of temporary duration. As passed, the Act of 1960 applied to all dwellings erected before, or in the course of erection on, the 7th May, 1941, which were within the stated valuation limits and which were not otherwise excluded. This meant that control under the Act extended both to the older dwellings previously defined “1923 Act” premises and to the later dwellings which had been termed “non-1923 Act” premises. Rent restriction was effected by Part II of the Act of 1960 and restriction of recovery of possession by Part IV. Under s. 7 (already referred to in its amended form) the basic rent of all controlled dwellings was to be determined by reference to the rent at which they were let when the Act of 1960 came into operation on the 31st December, 1960, and the basic rent under s. 9 (already similarly referred to) was to be such amount as the court considered reasonable having regard, as far as possible, to the basic rents of comparable premises. By reason of the provisions of earlier legislation, rents determined under either of these sections were related to the rent which was, or might have been, charged for the dwelling on the 3rd August, 1914, or on the 7th May, 1941, as the case might be, subject to such flexibility as was given under s. 9 by the words “as the Court considers reasonable.” By s. 8 provision was made for the review, on the application of the landlord, of a basic rent determined under s. 7 where such rent fell short by an amount exceeding one-eighth of the rent which would have been determined under s. 9 if that section had applied, and on proof that the amount of the basic rent had been affected by special circumstances.
Unlike the legislation which it replaced, the Act of 1960 did not apply to business premises. It was, however, provided by s. 54 that tenants who had retained possession of such premises by reason of the previous legislation should be entitled to the benefit of the Landlord and Tenant Act, 1931. This section has now been repealed by s. II of the Landlord and Tenant (Amendment) Act, 1980.

The amending Acts of 1967 and 1971
The Act of 1960 was amended by the Rent Restrictions (Amendment) Act, 1967, and, in minor respects, by the Landlord and Tenant (Amendment) Act, 1971. It is the Act of 1960, so amended, which is impugned in these proceedings. The Act of 1967 decontrolled houses with a rateable valuation exceeding £40 in Dublin and Dun Laoghaire, and £30 elsewhere. It also decontrolled self-contained flats with a rateable valuation exceeding £30 in the Dublin area, and £20 elsewhere. However, tenants of dwellings so decontrolled were given a right to a new tenancy under the Landlord and Tenant Act, 1931. Where in such cases the rent which would be fixed under the Act of 1931 would cause hardship to the tenant, the court was empowered to grant a new lease for a term not exceeding ten years, subject to such rent as the court felt the tenant should be required to pay, having regard to all the circumstances. Decontrol was also to apply to any house or self-contained flat of which the landlord recovered possession; it also applied to houses having a rateable valuation in excess of £10 which, after the passing of the Act, became tenanted by a bachelor or a spinster being between 21 and 65 years of age. Such tenants were also given the benefit of the Act of 1931 ,with the benefit of the special provision for hardship already mentioned.
Section 7 of the Act of 1960 was amended to provide a new method of determining the basic rent of controlled premises. The basic rent was to be the net rent at which the controlled premises were let on the 8th June, 1966, on a contract of tenancy not being for more than five years or on a statutory tenancy. The net rent was arrived at by deducting from the gross rent the amount of the rates payable by the landlord for the year 1965-1966.
An amendment to s. 8 of the Act of 1960 enabled a landlord to apply to the District Court to review a basic rent where the landlord owned not more than six controlled houses or self-contained flats with a combined rateable valuation not exceeding £60 (in case one, at least, of them was situated in the Dublin area) or £40 in any other case. The rent, if adjusted by the court, was to be of such amount as the court considered reasonable, having regard to all the circumstances of the case but, in particular, to the necessity of avoiding financial hardship to the tenant and the landlord. It was not to exceed the maximum rent which would be fixed on the renewal of a tenancy under Part III of the Act of 1931. The provision applied only where the landlord owned the premises on the 8th June, 1966, and continuously thereafter. The time for making such an application was, however, limited to two years after the passing of the Act of 1967 on the 9th May, 1967. To succeed in such an application, the landlord had to satisfy the court that the basic rent (fixed by reference to the net rent as of the 8th June, 1966, was less than the rent which would be fixed under s. 9 of the Act of 1960 (as amended), if the case was one to which that section applied.
Section 9 was also amended to provide that, in fixing basic rents under that section, the court could have regard to rents of comparable dwellings, whether controlled or uncontrolled. Other amendments effected by the Act of 1967 do not appear to the Court to be material.
The Landlord and Tenant (Amendment) Act, 1971, effected a limited amendment to the provisions of the Act of 1960 (as amended). By s. 10 of the Act of 1971, the right given to a limited category of landlords to apply to the court to revise the basic rent of controlled premises under s. 8 of the Act of 1960 was amended. It revived the time for making such applications (originally fixed at a two-year period from the passing of the Act of 1967) for a further period of one year from the passing of the Act of 1971. This period has expired, as has the power of review contained in section 8, both in its original and its amended form.
As already indicated, these proceedings under appeal question the validity of Parts II and IV of the Act of 1960, as amended. In this judgment separate consideration is given to each of the two impugned parts having regard to the grounds of invalidity alleged.

Part 11 of the Act of 1960
In relation to Part 11, the plaintiffs submit that its provisions have the consequences detailed in the ensuing paragraphs.
The basic rent of the majority of controlled premises must be determined under s. 7 of the Act of 1960. This will be the net rent at which the premises were let on the 8th June, 1966. This rent, because of earlier legislation, necessarily has as its base either the 1914 rent (if the premises were erected prior to 1919) or the 1941 rent (if they were erected after the year 1919). While this base has been broadened to some extent by statutory increases, it still operates in restriction of the rent which may be charged, and does so to such an extent that the income derived by a landlord from a letting is slight. In relation to the properties owned by the plaintiffs, the evidence is that the market rent would be between 9 and 19 times the controlled rent. This disproportion between market and controlled rents (which is not necessarily the crucial test in this case), is not unusual and is a direct result of the rent restriction effected by the legislation.
Since the special provision for revision of basic rents which had been permitted in certain cases by s. 8 of the Act of 1960 (as amended), and by s. 10 of the Act of 1971, no longer operates, basic rents can never be reviewed once they have been determined under section 7. This means that the income derived by the landlord in all such cases is effectively frozen and tied to the net rent which was derived from the premises on the 8th June, 1966. While additions are allowed to this basic or net rent, these are referable to the actual expenditure by the landlord, whether for rates, repairs or general maintenance. Apart from yearly increases in rates, such additions as are permitted under s. 10 of the Act of 1971 are limited to the percentages of the actual expenditure set out in the section.
The imposition on the landlord of full responsibility for all repairs (except such as are the tenant’s obligation under his agreement or under Deasy’s Act) further accentuates the hardship caused to landlords of controlled dwellings, particularly in the case of older houses where maintenance is heavy and the rents small. Reliance was placed on the particular example of one of the plaintiffs’ houses - No.32 Haroldsville Avenue, Dublin. In the case of this house, the evidence established that if the landlord carried out appropriate repairs and maintenance, she would sustain an annual loss of £35. The plaintiffs contend that the general result is virtually to deprive them of all financial benefit from their property.
The plaintiffs contend that Articles 40 and 43 of the Constitution, read in the light of its preamble, have been contravened and that the legislation is to that extent invalid. As to the preamble to the Constitution, the plaintiffs rely on the following paragraph as being the basis upon which the Constitution was adopted:- “And seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations.”
The plaintiffs rely on the provisions of Article 40, ss. 1 and 3, and of Article 43 of the Constitution. On behalf of both the plaintiffs and the Attorney General, the constitutional issues have been dealt with at length, in pleadings, in written submissions and in oral argument. A condensed summary of what has been thus put forward is necessary to show the background of argument against which the Court’s decision has been reached.

The arguments
For the plaintiffs, it has been submitted that they have been denied the requirements of justice and have been treated unequally vis-à-vis other citizens who have let uncontrolled property; that the arbitrary and unfair restriction of their letting rights constitute an unjust attack on their property rights; that the State has failed to vindicate those rights; that the restrictions imposed on their property rights are not regulated by any principle of social justice; that the delimitation of those rights is unrelated to the exigencies of the common good; that if an emergency or other temporary basis for the impugned restrictions existed at any stage, it has long since passed; that the imposition of those restrictions on houses and flats merely because they happened to be built before 1941 and to have rateable valuations below specified amounts, is arbitrary, unjustifiably discriminatory and not required by the common good; that such control, regardless as it is of the means of the tenant or the hardship it may cause to the landlord, is unjust and unfair, particularly because, since December, 1972, the impugned legislation has left no means of reviewing basic rents once they have been determined by the Courts; and that the State’s failure since 1971 to amend this legislation and to redress the plaintiffs’ grievances amounts to a dereliction by the State of its duty under Article 40, s. 3, to protect them from unjust attack and to vindicate their property rights having regard to the injustice that has been done to them.
On behalf of the Attorney General, the case has been made that this legislation falls to be examined for invalidity under Article 43 of the Constitution; that s. 2 of that Article provides for the regulation and delimitation of property rights according to the principles of social justice and the exigencies of the common good; that what this impugned legislation has done is justified by s. 2 of that Article and that, accordingly, no question of non-compliance with Article 40, s. 3 arises; that the power of regulating or delimiting the rights of private property is vested in the Oireachtas by Article 6 and that it is to be presumed that, in exercising that power in relation to Article 43, it acted intra vires and with due regard to the directive principles of social justice set out in Article 45, which are not cognisable in any court; that the Court’s power to condemn this legislation under either Article 40, s. 3, or under Article 43, cannot arise unless it is shown that what was done was not permitted by Article 43, s. 2; that, if what the Oireachtas has done is permitted by Article 43, s. 2, no question of injustice requiring State action under Article 40, s. 3, sub-s. 2, can arise; that Part II of the Act of 1960 must be tested for constitutional validity as at the time of its enactment and that it cannot be held to have lost that validity by mere passage of time or changes in economic circumstances; that even if the State had any duty to review rent control periodically, it had in fact done so.

Presumption of validity
Neither the Act of 1960, nor the Acts which amended it, are expressed to be Acts passed for the purpose of delimiting the exercise of property rights with a view to reconciling such exercise with the exigencies of the common good. However, being Acts of the Oireachtas which are not unconstitutional on their face, they enjoy a presumption of validity until the contrary is clearly established. Accordingly, if authority for this legislation can be found under the provisions of Article 43, that Article can be relied on when the legislation is challenged.
Article 43 is headed by the words “private property.” It defines the attitude of the State to the concept of the private ownership of external goods and contains the State’s acknowledgement that a natural right to such exists, antecedent to positive law, and that the State will not attempt to abolish this right or the associated right to transfer, bequeath and inherit property. The Article does, however, recognise that the State “may as occasion requires delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good.” It is an Article which prohibits the abolition of private property as an institution, but at the same time permits, in particular circumstances, the regulation of the exercise of that right and of the general right to transfer, bequeath and inherit property. In short, it is an Article directed to the State and to its attitude to these rights, which are declared to be antecedent to positive law. It does not deal with a citizen’s right to a particular item of property, such as controlled premises. Such rights are dealt with in Article 40 under the heading “personal rights” and are specifically designated among the personal rights of citizens. Under Article 40 the State is bound, in its laws, to respect and as far as practicable to defend and vindicate the personal rights of citizens.
There exists, therefore, a double protection for the property rights of a citizen. As far as he is concerned, the State cannot abolish or attempt to abolish the right of private ownership as an institution or the general right to transfer, bequeath and inherit property. In addition, he has the further protection under Article 40 as to the exercise by him of his own property rights in particular items of property.
This question of the relationship of Article 40, s. 3, sub-s. 2, to Article 43 was discussed in The Attorney General v. Southern Industrial Trust Ltd (1957) 94 I.L.T.R. 161. In that case Lavery J., when delivering the judgment of the Court, said at p. 176 of the report:- “In any event, in the opinion of the Court, the property rights guaranteed are to be found in Article 43 and not elsewhere and the rights guaranteed by Article 40 are those stated in Article 43.”
The Court is unable to accept this view. Article 43 does not state what the rights of property are. It recognises private property as an institution and forbids its abolition. The rights in respect of particular items of property are protected by Article 40, s. 3, sub-s. 2, by which the State undertakes by its laws to protect from unjust attack and, in the case of injustice done, to vindicate the property rights of every citizen. It is the duty of the Courts to protect such property rights from unjust attack and the decision as to what is such an attack is to be made by the Courts. This view has acceptable judicial support. In his judgment in the High Court in The Attorney General v. Southern Industrial Trust Ltd (1957) 94 I.L.R.M. 161. Davitt P. gave his view as to the relationship between the two Articles in the following terms at p. 168 of the report:- 

 “If the matter were res integra and untouched by authority I confess that my reading of these articles [Article 40.3.2 and Article 43] would be as follows: There is a clear distinction to be drawn between (1) the general and natural right of man to own property, (2) the right of the individual to the property which he does own, and (3) his right to make what use he likes of that property; and I think this distinction is to be observed in these articles. Article 40.3. seems to me to be the only provision in the Constitution which protects the individual’s rights to the property which he does own. By it the State guarantees to respect this right and by its laws, as far as practicable, to defend it and as best it may to protect it from unjust attack, and where injustice has been done to vindicate it. This is no absolute guarantee but is qualified in more than one respect. It impliedly guarantees that the State itself will not by its laws unjustly attack the right; and I think that the justice or otherwise of any legislative interference with the right has to be considered in relation, inter alia, to the proclaimed objects with which the Constitution was enacted, including the promotion of the common good.”

The application of Article 40.3.2
In this case the plaintiffs’ claim that their rights to the private property in question have been subjected, by the impugned legislation, to unjust attack and that what has been done is in breach of Article 40, s. 3, sub-s. 2, of the Constitution. In the opinion of the Court, this legislation cannot be regarded as regulating or delimiting the property rights comprehended by Article 43. Accordingly, it requires to be examined for its validity in relation to the provisions of Article 40, s. 3, sub-s. 2. Therefore, the question to be decided is whether the impugned provisions of the Act of 1960 (as amended) constitute an unjust attack on the property rights of the plaintiffs.

The subject of the constitutional challenge	
Before entering upon this question, it is necessary to clarify certain matters. As already indicated, the Act of 1960 was amended extensively by the Act of 1967. The amendments included an extension of the power to review certain rents given to the court by s. 8 and a widening of the permitted basis for comparison on the determination of rents under section 9. However, by s. 4, sub-s. 3, of the Act of 1967, it was provided that no application for the review of rent under s. 8 of the Act of 1960 could be made after the expiration of two years from the passing of the Act of 1967 on the 9th May, 1967. This sub-s. 3 was in turn amended - in so far as it related to reviews under s. 8, sub-s. (1A), of the Act of 1960- by s. 10 of the Act of 1971 which revived and extended the power of the court to review under subs. (1A) for one year after the passing of the Act of 1971 on the 7th December, 1971. Accordingly, the power to review has now ceased.
In considering the validity of the impugned parts of this legislation, the Court cannot have regard to provisions which have been amended or repealed or which no longer operate. The Court proposes to consider this legislation as it now operates following the last amendment, which was effected by s. 10 of the Act of 1971.

Examination of Part II
As already indicated, the long title of the Act of 1960 describes it as “an Act to make provision for restricting the increase of rent and the recovery of possession in certain cases and to provide for other matters connected therewith.” (Emphasis added)
Part II of the Act of 1960 contains the statutory provisions by means of which rents are determined and increases restricted. The legislation which contains these provisions is not limited in its duration. Its terms are mandatory and, generally, do not permit any person affected by its provisions to contract out of their application. The result is that the property rights of the owners of affected houses and dwellings are interfered with, without their consent, and agreements entered into by them for the letting of such premises are, if contrary to the statutory provisions, overridden and rendered ineffective. To the extent, therefore, that these statutory provisions interfere with and render ineffective the exercise by the owners of the houses and dwellings affected of their property rights in relation thereto, they constitute, in the opinion of the Court, an attack upon such rights. The question which must be decided, however, is whether such attack is unjust and therefore in contravention of the provisions of Article 40, s. 3, sub-s. 2, of the Constitution.
In this regard it should first be noted that, in accordance with its long title, the Act of 1960 makes provision for restricting rents only “in certain cases.” As already indicated, these cases comprise lettings of houses or dwellings within specified valuation limits which were built or constructed prior to 7th May, 1941. No reason for this selection is apparent from the impugned legislation and, apart from the fact that rent control existed only in such cases in the previous temporary legislation, no reason was advanced by counsel for the Attorney General. The result is that lettings of all houses and dwellings outside the specified valuation limits and of all such houses and dwellings, irrespective of valuation, built after 1941 are free of any form of rent control.
Further, the legislation expressly excludes all lettings of dwellings made under the Labourers Acts, 1883-1958 or the Housing of the Working Classes Acts, 1890-1958 (to be read in conjunction with s. 120 of the Housing Act, 1966) and thereby excludes the many thousands of lettings made by local authorities to persons in need of housing assistance.
It is further to be noted that the statutory provisions contained in Part II of the Act of 1960 operate in respect of the house or dwelling controlled, irrespective of the means of the tenant. Neither the means of the tenant nor the lack of means of, or possible hardship to, the landlord may be considered in determining the permitted rent. Therefore, it is apparent that in this legislation rent control is applied only to some houses and dwellings and not to others; that the basis for the selection is not related to the needs of the tenants, to the financial or economic resources of the landlords, or to any established social necessity; and that, since the legislation is now not limited in duration, it is not associated with any particular temporary or emergency situation.
Such legislation, to escape the description of being unfair and unjust, would require some adequate compensatory factor for those whose rights are so arbitrarily and detrimentally affected. No such compensatory factor is to be found in the impugned provisions of Part II of the Act of 1960.
The vast majority of the rents in question are determined under the provisions of s. 7 of the Act of 1960. This section declares that the basic rent of premises to which it applies shall be the net rent at which such premises were let on the 8th June, 1966. The net rent, where the landlord paid or allowed a deduction in respect of rates, is declared to be the rent payable less the rates; otherwise it is the rent payable on the specified date. However, the rent payable on the 8th June, 1966, was in all cases regulated by the rent control legislation previously in force. This had the effect that all rents so payable were related to the rent chargeable in 1914 in respect of the older controlled dwellings, and to the rent charged on the 7th May, 1941, in respect of the later ones. It was alleged by the plaintiffs, and not seriously disputed by the Attorney General, that the direct effect of this control has been that rents have been pegged or frozen at a level which is usually oppressively uneconomic and which is further eroded by the statutory obligation to repair and maintain the controlled premises.
Section 9 of the Act of 1960 applies only to cases not covered by section 7. It permits determination by the court of such rent as the court considers reasonable having regard to the rents of “dwellings which are comparable in regard to location, accommodation, amenities, state of repair and rateable valuation.” It is accepted by the plaintiffs that rents determined under s. 9 of the Act of 1960 are comparably higher than rents determined under s. 7 and that, accordingly, such rents yield an element of profit for the owner.
Once basic rents are determined under s. 7 or s. 9 of the Act of 1960, no review thereof is now permitted. The temporary revival of the power to review under s. 7 in certain cases, provided by the Act of 1971, has long since expired. This means that all owners whose rents are controlled are restricted in their income to the amount of the basic rent and to such lawful additions as may be related to increases in rates and to a percentage of actual expenditure on maintenance, repair or improvement. This absence of any power to review such rents, irrespective of changes in conditions, is in itself a circumstance of inherent injustice which cannot be ignored. When this is coupled with the absence of any provision for compensating the owners whose rental incomes are thus permanently frozen, regardless of the significant diminution in the value of money, the conclusion that injustice has been done is inevitable.
In the opinion of the Court, the provisions of Part II of the Act of 1960 (as amended) restrict the property rights of one group of citizens for the benefit of another group. This is done, without compensation and without regard to the financial capacity or the financial needs of either group, in legislation which provides no limitation on the period of restriction, gives no opportunity for review and allows no modification of the operation of the restriction. It is, therefore, both unfair and arbitrary. These provisions constitute an unjust attack on the property rights of landlords of controlled dwellings and are, therefore, contrary to the provisions of Article 40, s. 3, subs. 2, of the Constitution.

Examination of Part IV
Section 29 in Part IV of the Act of 1960 restricts the landlord’s right to recover possession of controlled premises. It is also impugned in these proceedings as being invalid having regard to the provisions of Article 40, s. 3, sub-s. 2, of the Constitution. The relevant provisions in Part IV are mandatory and constitute an interference with the normal property rights of the landlords affected. It is an interference which has the effect, in some cases, of causing an almost permanent alienation from the landlord of the right to get possession of the premises, because of the extensive right of the tenant’s family to retain possession after the tenant’s death.
In the view of the Court, a restriction to this extent of a landlord’s right to obtain possession of rented premises is not in itself constitutionally invalid, provided the restriction is made on a basis that is not unconstitutionally unfair or oppressive, or has due regard both to the personal property rights of the landlord and the rights that should be accorded to tenants having regard to the common good. However, the restriction on the right to recover possession contained in Part IV of the Act of 1960 is not distinguishable, or capable of being saved, by such considerations. It is an integral part of the arbitrary and unfair statutory scheme whereby tenants of controlled dwellings are singled out for specially favourable treatment, both as to rent and as to the right to retain possession, regardless of whether they have any social or financial need for such preferential treatment and regardless of whether the landlords have the ability to bear the burden of providing such preferential treatment.
Even if Part IV could be said not to be infected with the constitutional infirmity which invalidates the provisions governing rent control, it could survive the challenge made to its constitutionality only if it could be held to have been enacted by the Oireachtas in a manner and in a context that would leave it with a separate and self-contained existence as a duly enacted measure representing the law-making will of the Oireachtas: see Maher v. The Attorney General [1973] I.R. 140 (at p. 147); The State (Attorney General) v. Shaw [1970] I.R. 317, and the varying views expressed in King v. The Director of Public Prosecutions [1981] I.R. 233.
It is clear that it was not so enacted. It acquired a legislative existence as an integral part of a statutory scheme in which controlled dwellings, and only controlled dwellings, had attached to them restrictions as to rent and as to the right to recover possession. For the reasons given earlier in this judgment, those provisions as to rent restriction amount to an unconstitutional interference with the property rights of the relevant landlords. Even if it could be held that the restrictions on the right to recover possession contained in Part IV did not suffer from the same fatal invalidity, those provisions could not be given a life of their own as representing duly enacted provisions. The whole of the provisions governing both rent control and right to possession were enacted (and re-enacted) as a package and, as such, were intended to have an interconnected statutory operation. It would be impossible to say that if the Houses of the Oireachtas had been presented with the option of enacting the restrictions on getting possession of controlled premises that are contained in Part IV, as a type of control separate and distinct from the control of the rents of such dwellings, they would have enacted Part IV on its own. It is a hypothesis that never became a parliamentary choice, express or implied. It would be impossible, therefore, to say that the Houses of the Oireachtas ever visualised the existence of Part IV as distinct from Part II. Neither of those Parts can be deemed to have been given a viable statutory existence apart from the other.
Accordingly, Part IV must also fall as part of an unconstitutionally unjust attack on the property rights of the landlords affected.

Further observations
This decision has the effect that a statutory protection which many thousands of families relied on for the continuance of the existing tenancies in the dwellings in which they live is no longer available to them. A ruling of this nature on the constitutional validity of a particular statutory provision usually exhausts the functions of this Court. In this instance, however, because of the special features of the case and the consequences involved, the Court considers that some further observations are called for.
The removal from the affected tenants of the degree of security of possession and of rent control which they hitherto enjoyed will leave a statutory void. The Court assumes that the situation thereby created will receive the immediate attention of the Oireachtas and that new legislation will be speedily enacted. Such legislation may be expected to provide for the determination of fair rents, for a degree of security of tenure and for other relevant social and economic factors. Pending the enactment of such legislation as may be decided upon, it may be possible in many cases for agreement to be reached between landlords and tenants. Where, however, such agreement is not possible, either because of the tenant’s inability to pay the rent demanded or because of the landlord’s determination to recover possession, considerable hardship would be caused in certain cases if possession were obtained by the ejectment of the tenant. This Court does not wish to pre-empt or prejudge any situation of litigation that may flow from this judgment. It desires to emphasise, however, that it is the duty of the Courts to have regard to the basic requirements of justice when exercising their jurisdiction. In this regard, in the reasonable expectation of new legislation, when a decree for possession is sought, the court should, where justice so warrants, in a case where the now condemned provisions of Part IV would have given a defence against the recovery of possession, either adjourn the case or grant a decree for possession with such stay as appears proper in the circumstances.