NIYAS AHMAD KHANversusMAHMOOD RAHMAT ULLAH KHAN & ANR.

                        [2008] 7 S.C.R. 744


A                      NIYAS AHMAD KHAN
                                  \I.
           MAHMOOD RAHMAT ULLAH KHAN & ANR.
               (Civil Appeal No. 3372 of 2008)
                            MAY 5, 2008
        [R.V. RAVEENDRAN AND LOKESHWAR SINGH
                       PANTA, JJ.]
          Rent Control and Eviction - Petition seeking eviction -
    On the ground of bonafide requirement - Rejection of - Writ
C   petition against r(f/ection - High Court by interim order
    increasing the rent drastically- On appeal, held: The direction
    of the High Court is ·oppressive and unreasonable - In a writ
    petition by landlord, against rejection of eviction, there is no
    scope for issue of any interim direction to the tenant to pay
D   higher rent - The writ petition being against order of refusal
    t~_.~:e,nt ~viction on bonafide ground and there being no .
    prayer regarding rent, High Court was not right in increasing      :
    the rent - The statute governing the premises, since
    specifically provided for fixation and increase. of rent, High
E   Court could not have increased the rent ignoring those
    provisions - Uttar Pradesh Urban Buildings (Regulation of
    Letting, Rent and Eviction) Act, 1972 :_ s. 21 (1) (a) -
    Interlocutory Order - Constitution of India, 1950 -Article 227.
         Constitution of India, 1950:
F        Articles 226 and 227 - Power of Judicial review and
    superintendence - Scope of - Held. High Court cannot
    exercise its power of judicial review and superintendence,
    ignoring or violating the specific prov1s1ons of a statute.

G         Article 136 - Special Leave Pet1t1on - Dismissal of, in
    limine - Held Dismissal of Special Leave Petlf1on in limine
                                                                                  ,.
    does not preclude Supreme Court from exammmg the same                         ;

    issue in other cases - Practice and Procedure.
                                                                           ,_••
         Respondent-landlord filed a petition u/s 21 (1) (a) c
H                           744                                                   1
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           NIYAS AHMAD KHAN v. MAHMOOD RAHMAT ULLAH               7-45
                          KHAN &ANR.

          Uttar Pradesh Urban Buildings (regulation of Letting, Rent A
          and Eviction) Act, 1972 on the ground of bonaflde.
          requirement. Prescribed Authority as well as ·appellate
          Authority dismissed the eviction petition. Landlord .filed
          writ petition questioning the order of the Authorities.
          High Court by an interim order increased the rent from B
          Rs.150/-per month to Rs. 12,050/- per month by as~essing
          each portion of the premises separately. Hence the
          present appeal.
               Allowing the appeal, the Court
                                                                         c
                HELD: 1.1 The premises. in question is governed by
          the provisions of Uttar Pradesh Urban Buildings
          (Regulation of Letting, Rent and Eviction) Act, 1972. The
          Act contains provisions relating to fixation of standard
          rent and for increase in rent. Where the statute specifically
rp        provides for fixation of rent and increase in rent, it is
                                                                        D
          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 E
          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.
          [Para 4) [748-G-H; 749-A)                                     F

                1.2 In the writ petition, 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
                                                                       G
          section 21 (1 )(a) of the Act, there is no justification for
u         directing payment of a higher rent either pending
    __.
          consideration of the writ petition or otherwise. [Para 5)
          [749-C-D]
               1.3 Even assuming that the High Court has pow~r to        H
   746      SUPREME COURT REPORTS               (2008) 7 S.C.R.


A increase the rent, High Court could not assess the rent at
  the amount which is more than 48 times, the rent earlier
  determined, in the absence of any evidence - either oral
  or documentary or by way of affidavit, Single Judge did
  not consider any of the relevant circumstances like the
B 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,
c verandahs, kitchen, terrace, bathrooms, latrines, is let out
  as a single unit, the question of assessing the rent with
  reference to each room or portion of such premises
  separately does not arise. The High Court's observation
  that by taking a pragmatic approach it is assessing the
  rent, is arbitrary and contrary to law. [Para 6) [749-E-H]
0
        1.4 There is distinction between cases where a writ
  petition is filed by the tenant challenging the order of
  eviction and seeking stay of execution thereof, and cases
  where a writ petition is filed by the landlord challenging
E the rejection of a petition for eviction. 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 even when
  such direction is issued as a condition for stay of eviction.
F High Court should desist from doing so. 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
G 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
H rent. [Paras 8 and 9) (750-D; 751-A-D]
          NIYAS AHMAD KHAN v. MAHMOOD RAHMAT ULLAH                   747
                KHAN & ANR. [R.V. RAVEENDRAN J.]
 ..J.
              2. Dismissal of a special leave petition, in limine does A'
         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 B
         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.
         [Para 7] [750-A-C]                                                c
             CIVIL APPELLATE JURISDICTION : Civil Appeal No.
         3372 of 2008.
              From the Interim Order dated 17/10/2006 of the High Court
         of Judicature at Allahabad in Civil Mise. W.P. No. 46934/2002
                                                                           D
  '\:·        J.C. Gupta, Bimal Roy Jad, Sunita Pandit, Rajesh andO.
         Singh for the Appellant.
              Amit Rana, Parveen, lrshad Ahmad, Aseem Mehrotra and
         Abhijat P. Medh for the Respondents.
                                                                           E
              The Order of the Court was delivered by
              R.V. RAVEENDRAN, J. 1. Leave granted. Heard bottl
         sides.
                2. The appellant is the tenant and the respondents are the F
         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
                                                                            G
         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 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
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     748         SuPRE..,E COURT REPORTS                  [2008) 7 S.C.R.


A 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 .teamed Single Judge of the Allahabad High Court
B 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 effecffrom October, 2006 with a further direction that if the
  rent at th~t rate is not paid for two consecutive months, the
  landlord could evict the tenant by coercive process with the aid
C of police. The learn.~ Judge has justified his interim direction
  on the grotmd tha.t in exercise of writ jurisdiction the High Court
  can reasonably increase the rent so as to bring it on par with
  the prevaiUngmarket rent<Hs. The increased rent was assessed
  in the following manner :
0
       (t) Rent for six rooms (at Rs.1500/- per room)         Rs.9000/-
       tit) Kitchen                                            Rs. 500/-
       (iii} Three verandahs (at Rs.500/- per verandah)       Rs.1500/-
 E     (iv) Open terr.ace                                      Rs. 300/-
       {v) Three latrines/bathrooms (at Rs.250 each)           Rs. 750/-

                                             TOTAL          Rs.12,050/-
                                                       -------------
 F        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
. •. pf the Act. The !>aid Act contains provisions relating to fixation
·a   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
 H superintendence under Article 227, can be exercised in a
           NIYASAHMAD KHAN v. MAHMOOD RAHMAT ULLAH                      749
                KHAN &ANR. (RV. RAVEENDRAN J.]
~.

         manner ignoring or violating the specific provisions of a statute. A
         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 a
•        premises for their own use. The said request was rejected both
         by the Prescribed Authority and by 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 c
         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 0
:i:      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, E
         1he 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
         1he relevant circumstances like the market value of the building
         .on the date of letting, prevailing rentals in the locality as on the F
;h"       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
          fQQmS, verandahs, kitchen, terrace, bathrooms, latrines, is let
          out a$ a single unit, the question of assessing the rent with G
          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.
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               l;
    750       SUPREME COURT REPORTS                     [2008) 7 S.C.R.

                                                                            i..

A       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
B 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
c 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
D where a writ petition is filed by the tenant challenging the order
  of eviction and seeking stay of execution thereof, and cases              .i.

  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
E 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
F 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
G
  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
H
 NIYAS AHMAD KHAN v. MAHMOOD RAHMAT ULLAH                      751
       KHAN & ANR. [R.V. RAVEENDRAN J.]

conditions in regard to stay, such conditions should not be           A
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 even when such
direction is issued as a condition for stay of eviction. High Court   B
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 C
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. D
      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.
K.K.T.                                          Appeal allowed.       E




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