Rani & Ors. Vs. Sri Chand & Ors.  INSC 1543 (7 September 2009)
Appeal No. 6140-6141 of 2009) SEPTEMBER 7, 2009 [S.H. KAPADIA AND AFTAB ALAM,
JJ.]  14 (ADDL.) S.C.R. 295 The following Order of the Court was
delivered by ORDER Application for deletion of the name of Respondent No.4 is
The respondents (Landlord) instituted proceedings for eviction of
the appellants (Tenant) from three different premises let out to them at
different times. One of the proceedings was in respect of a go-down let out to
the appellants at the monthly rental of Rs.50/-. The other was in regard to a
shop with the monthly rental of Rs.35/- and the third was for a kothari on the
monthly rental of Rs.15/-.
The Prescribed Authority/Munsif, Deoband, Saharanpur, consolidated
the three proceedings and by a common judgment and order dated 8 November, 1983
dismissed all the three eviction/release petitions filed by the respondents.
Against the order passed by the Prescribed Authority the
respondents preferred appeals before the Additional Judge, Saharanpur. The
appellate authority allowed the appeal relating to the go-down and ordered its
release/ eviction of the appellants by judgment and order dated 30 May, 1989.
By the same judgment, however, it rejected the respondents' appeals in regard
to the other two premises, namely, the shop and the kothari.
The respondents filed two writ petitions before the Allahabad High
Court challenging the orders rejecting his eviction/release petitions in
respect of the shop and the kothari. The appellants too approached the High
Court in a writ petition against the judgment of the appellate authority in so
far as it allowed release of the go- down in favour of the respondents. The
High Court, like the two courts below, heard all the three writ petitions
together and disposed them of by a common judgment and order dated 19 August,
2008. The High Court held that the judgment and order passed by the lower
appellate court was eminently just and in accordance with law. It therefore,
dismissed all the three writ petitions.
But the High Court did not stop there. It felt that the existing
rent of the shop and the kothari (in regard to which the landlord's
eviction/release petitions were finally rejected) was very low and was liable
to be increased. It, accordingly, passed the following order:
existing rent of Rs.50/- per month for two accommodations, kothari and shop
left in the occupation of the tenant, is extremely inadequate. Accordingly, it
is directed that w.e.f. August 2008 onwards tenants shall pay rent for the
portion left in their occupation, i.e. kothari and shop at the total rate of
Rs.500/- per month"
Aggrieved by the order of the High Court increasing the rent of
the shop and the kothari from Rs.50/- pm to Rs.500/- pm, the appellants have
come in appeal.
In a recent judgment dated 27 August, 2009 in C.A. No. 5835 of
2009 (State of Maharashtra and Anr. vs. M/s Super Max International Pvt. Ltd.
& Ors) a three-Judge Bench of this Court examined the question of the
Court's authority to increase the existing rent or to direct the tenant to
pay/deposit in court an amount in excess of the existing monthly rent. The
Court upheld the court's power and authority to make such a direction in cases
where the tenant goes to the superior court in appeal or revision against a
decree or order of eviction. But at the same time it made clear that in a case
where the landlord goes to the superior court against an order rejecting his
application for eviction/release, it is not open to the Court to direct any
increase in the monthly contractual/statutory rent of the premises. In this
regard the decision in the M/s Super Max International referred to an earlier
decision of this court in Niyas Ahmed Khan vs. Mahmood Rahmat Ullah Khan,
(2008) 7 SCC 539 and made the following observations:
In Niyas Ahmed Khan, the position was quite different. The landlord's
application for eviction of the tenant on grounds of personal necessity was
turned down by the prescribed authority. The order of the prescribed authority
was confirmed by the appellate authority. The landlord challenged the orders
passed by the two authorities under the Rent Control Act in a writ petition
filed before the Allahabad High Court and while admitting the writ petition the
Court gave an interim direction to the tenant to pay rent at the rate of
Rs.12,050/- per month (in place of the contractual monthly rent of Rs.150/-).
The Court further directed that if the rent fixed by it was not paid for two
consecutive months the landlord could evict the tenant by coercive means taking
the aid of police. In appeal by the tenant, this Court naturally frowned upon
the interim order passed by the High Court and in paragraph 10 of the decision
observed as follows:
To sum up, in writ petitions by landlords 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 increases in rent. Be that as it may." "
In light of the decisions in Niyas Ahmed Khan and State of
Maharashtra, the High Court judgment in so far as it enhanced the monthly rent
of the shop and the kothari in occupation of the appellants from Rs.50/- pm to
Rs.500/- pm is clearly unsustainable.
It may be noted here that the High Court has sought to justify its
direction to the appellants to pay the monthly rent for the shop and the
kothari at a rate ten times higher than the existing rent by pointing out that
in the U.P. Rent Control Act there is no provision for enhancement of rent
after October, 1972 (except where the Landlord is the Government or a public
charitable or public religious trust). It has also relied upon decisions of
this Court in (i) M.V. Acharya vs. State of Maharashtra AIR 1998 SC 602, (ii)
Satyawati Sharma vs. Union of India & Anr., (2008) 5 SCC 287 Corporation of
India, AIR 1996 SC 2410. There is nothing in either M. V. Acharya or Satyawati
Sharma to suggest that in the absence of any provision in the Rent Control Act,
the High Court can assume the authority and the power to enhance manifold the
contractual/statutory rent payable by the tenant in a writ petition filed by
the landlord against an order rejecting his eviction/release application.
Further, the reliance placed by the High Court on the decision in Shangrila is
equally misplaced. The decision in Shangrila was rendered in a very different
set of facts and under the Public Premises (Eviction of Unauthorised Occupants)
Act, 1971 which has not only a different scheme but altogether different object
and purpose than the Rent Act. But in Shangrila too, in paragraph 8 of the decision
it was observed as follows:
is thus plain and clear that unless the occupant is first adjudged as an
unauthorized occupant, his liability to pay damages does not arise. In other
words, if he is an unauthorized occupant, he may be required to pay rent but
Similarly, the absence of any provision for enhancement of rent
after a cut off date in the Rent Act may be an issue for consideration in a
different context (as in M. V. Acharya) but in a writ petition filed by the
landlord against an order rejecting his eviction/release application that
cannot be made a ground for the High Court to assume the authority to enhance
the existing rent. It needs to be realised that a tenant against whom the
eviction/release application filed by the landlord has been rejected by the
courts below enjoys all the protections afforded by the Rent Act, including the
one against the enhancement of rent. That being the position, it is not open to
the High Court, to summarily strip the tenant of the statutory protection and
enhance the existing rent in a completely unguided and subjective manner.
For the reasons stated above we find the High Court order
enhancing the rent of the shop and the kothari from Rs.50/- to Rs.500/- pm quite
unsustainable. To that extent, the High Court order is set aside.
The appeals are allowed to the limited extent, but without any
order as to costs.