IN THE SUPREME COURT OF INDIA 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)

O R D E R

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  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 manner :   

(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/-

           -------------- 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  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 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 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 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.  

……………………………J. (R V Raveendran)

………………………….J.            (Lokeshwar Singh Panta)  

New Delhi, May 5, 2008.