Niyaz Ahmad Khan Vs. Mahmood Rahmat Ullah Khan & ANR.  INSC
797 (5 May
Reportable CIVIL APPELLATE
JURISDICTION CIVIL APPEAL NO.3372 OF 2008 (Arising out of SLP [C]
No.18453/2006) Niyas Ahmad Khan ... Appellant (s) Versus Mahmood Rahmat Ullah
Khan & Anr. ... Respondent (s) ORDER R.V.RAVEENDRAN, J.
Leave granted. Heard both sides.
2. The appellant is the tenant and
the respondents are the landlords. On allotment of the premises which is the
subject matter of the proceedings to the appellant, the rent was fixed as
Rs.150/- per month under section 16(9) of the U.P.Urban Buildings (Regulation
of Letting, Rent and Eviction) Act, 1972 (`Act' for short) in the year 1985.
The respondents initiated proceedings for eviction of the appellant under
section 21(1)(a) of the Act in the year 1998, on the ground that they required
the premises for their own 2 use. The Prescribed Authority dismissed the
petition for eviction and that was confirmed by the Appellate Authority by
dismissing the appeal by the respondents. Feeling aggrieved, the respondents
filed a writ petition before the Allahabad High Court under Article 226/227 of
the Constitution of India.
3. While admitting the said writ
petition filed by the landlords, a learned Single Judge of the Allahabad High
Court issued an interim direction dated 17.10.2006 to the tenant (appellate
herein) to pay rent at the rate of Rs.12,050/- per month with effect from
October, 2006 with a further direction that if the rent at that rate is not
paid for two consecutive months, the landlord could evict the tenant by
coercive process with the aid of police. The learned Judge has justified his
interim direction on the ground that in exercise of writ jurisdiction the High
Court can reasonably increase the rent so as to bring it on par with the
prevailing market rentals. The increased rent was assessed in the following
(i) Rent for six rooms (at
Rs.1500/- per room) Rs.9000/- (ii) Kitchen Rs. 500/- (iii) Three verandahs (at
Rs.500/- per verandah) Rs.1500/- (iv) Open terrace Rs. 300/- (v) Three
latrines/bathrooms (at Rs.250 each) Rs. 750/- -------------- 3 TOTAL
Rs.12,050/- ======== The tenant has challenged the said interim order of the
High Court in this appeal by special leave.
4. The premises in question is
governed by the provisions of the Act.
The said Act contains provisions
relating to fixation of standard rent and for increase in rent. Where the
statute specifically provides for fixation of rent and increase in rent, it is
impermissible for the High Court to ignore those provisions and direct the
tenant to pay an arbitrarily assessed rent. Neither the power of judicial
review under Article 226 nor the power of superintendence under Article 227,
can be exercised in a manner ignoring or violating the specific provisions of a
statute. While purporting to exercise the power under Article 227 to keep
inferior courts and tribunals within the limits of their authority, the High
Court should not itself cross the limits of its authority.
5. In this case, the landlord
filed an eviction petition seeking possession on the ground that they bona fide
required the suit premises for their own use. The said request was rejected
both by the Prescribed Authority and by 4 the Appellate Authority. The landlord
therefore approached the High Court challenging the said rejection by filing a
writ petition. The prayer in the writ petition was for quashing the orders of
the Prescribed Authority and the Appellate Authority and for grant of an order
of eviction. There was no prayer for a direction for payment of any rent or for
payment of any increased rent. When the grievance in the writ petition was only
in regard to refusal of an order of eviction under section 21(1)(a) of the Act,
there is no justification for directing payment of a higher rent either pending
consideration of the writ petition or otherwise.
6. Even assuming that the High
Court has power to increase the rent, we fail to understand how in the absence
of any evidence -- either oral or documentary or by way of affidavit, the learned
Single Judge could assess the rent as Rs.12,050 which is more than 48 times,
the rent of Rs.250 earlier determined. The learned Single Judge did not
consider any of the relevant circumstances like the market value of the
building on the date of letting, prevailing rentals in the locality as on the
date of letting, the size or situation or amenities, age of construction,
latest assessment of the building or other circumstances. Further, when a
premises consisting of several rooms, verandahs, kitchen, terrace, bathrooms,
latrines, is let out as a single 5 unit, the question of assessing the rent
with reference to each room or portion of such premises separately does not
arise. The learned Judge's observation that by taking a pragmatic approach he
was assessing the rent at Rs.12,050, to say the least, is arbitrary and
contrary to law.
7. The learned counsel for
respondent-landlord submitted that in several cases, this court has rejected
the challenge to similar orders by refusing to grant special leave. Dismissal
of a special leave petition, in limine does not preclude this Court from
examining the same issue in other cases. Further, where the rent is increased
reasonably, having regard to the fact that the interim direction is purely a
temporary arrangement during the pendency of the writ petition, it is possible
that this Court might have refused to interfere under Article 136 of the
Constitution of India. Every wrong or doubtful exercise of jurisdiction does
not call for grant of special leave, particularly if the order has not resulted
in any injustice. In fact, in several cases, this Court has set aside the
similar interim directions for payment of excessive rents.
8. We should however note the
distinction between cases where a writ petition is filed by the tenant
challenging the order of eviction and seeking 6 stay of execution thereof, and
cases where a writ petition is filed by the landlord challenging the rejection
of a petition for eviction. What we have stated above is with reference to writ
petitions filed by landlords. In writ petitions filed by tenants, while
granting stay of execution of the order of eviction pending disposal of writ
petition, the High Court has the discretion to impose reasonable conditions to
safeguard the interests of the landlord.
But even in such cases the High
Court cannot obviously impose conditions which are ex facie arbitrary and
oppressive thereby making the order of stay illusory. When a tenant files a
writ petition challenging the order of eviction, the High Court may reject the
writ petition if it finds no merit in the case of the tenant; or in some cases,
the High Court may admit the writ petition but refuse to grant stay of
execution, in which event, the tenant may be evicted, but can claim restoration
of possession if he ultimately succeeds in the writ petition; or in some cases,
the High Court finding the case fit for admission, may grant stay of eviction,
with or without conditions, so that status quo is maintained till the matter is
decided. Where the High Court chooses to impose any conditions in regard to
stay, such conditions should not be unreasonable or oppressive or in terrorem.
Adopting some arbitrary figure as prevailing market rent without any basis and
directing the tenant to pay absurdly high rent would be considered oppressive
and unreasonable 7 even when such direction is issued as a condition for stay
of eviction. High Court should desist from doing so.
9. To sum up, in writ petitions by
landlord against rejection of eviction petitions, there is no scope for issue
of any interim direction to the tenant to pay higher rent. But in writ
petitions by tenants against grant of eviction, the High Court may, as a
condition of stay, direct the tenant to pay higher rent during the pendency of
the writ petition. This again is subject to two limitations. First, the
condition should be reasonable. Second, there should not be any bar in the
respective State rent control legislation in regard to such increase in rent.
Be that as it may.
10. The appeal is allowed and the
order dated 17.10.2006 passed by the High Court directing the tenant to pay
rent at the rate of Rs.12050/- per month from October, 2006 is set aside.
(R V Raveendran) New Delhi;