Abdul Latif vs Mohd. Shafi alias Zumma and Another

S.D. Agarwala, J.—This petition is directed against the order dated 15th of July, 1986 passed by the prescribed authority u/s 28(4) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 U.P. Act XIII of 1972, hereinafter referred to as the Act.

Mohd. Shafi, Respondent No. 1, moved an application u/s 28(4) of the Act for issue of a direction to the landlord to carry out major repairs or on the failure of the landlord to permit him to carry out the repairs. A further request was made that in ease he carries out the repairs then he be permitted to adjust the amount towards rent in accordance with law.

The Petitioner is the landlord. The property in dispute is a shop let out to the tenant Mohammad Shafi, Respondent No. 1 at the rate of Rs. 10/- per mensem.

In reply to the application moved by the Respondent No. 1 tenant, the Petitioner filed objections contesting that the property in dispute requires major repairs. In fact, the case which was set up by him was that the Petitioner had moved an application for release of the shop in dispute u/s 21(1)(b) of the Act and as such the application moved by the tenant for major repairs was not maintainable in law.

The prescribed authority by an order dated 15th July, 1986, which has been impugned in the present petition, without going into the extent of the repairs has allowed the application and has directed the Petitioner-landlord to make the repairs and if he does not do it himself, the tenant has been permitted to do so to the extent of Rs. 300/-.

I have heard the learned Counsel for the parties.

Learned Counsel for the Petitioner has contended firstly that once an application for release has been made by the landlord u/s 21(1)(b) of the Act, the application u/s 28(4) of the Act for a direction to carry on major repairs was not maintainable in law and the court below has erred in omitting to consider this question. The second contention which has been raised is that in any case the impugned order is invalid for the reason that major repairs have been permitted for an amount which exceeds more than two years'' rent.

Section 21(1)(b) of the Act authorises the landlord to move an application for release of the building on the ground that the building is in a dilapidated condition and is required for the purposes of demolition and new construction.

Once an application has been made by the landlord stating therein that the building is in a dilapidated condition and the prescribed authority comes to the conclusion that the building is in a dilapidated condition, then the question of major repairs to the said building does not arise. It is always open to the prescribed authority while considering the application u/s 21(1)(b) of the Act to record a finding as to whether only major repairs would serve the purpose or the condition of the property is such that it requires demolition. Section 28(4) is only a summary remedy. If an application u/s 28(4) of the Act is allowed during the pendency of an application u/s 21(1)(b) Of the Act, it is likely to affect the application moved by the landlord for release of the accommodation on the ground that the building is in dilapidated condition and requires demolition. In my opinion, consequently, once the application is made for release u/s 21(1)(b) of the Act, the application u/s 28(4) of the Act for carrying out major repairs is not maintainable. I agree with the first submission made by the learned Counsel for the Petitioner.

In regard to the second contention also it is not disputed that the rate of rent is Rs. 10/- per mensem. u/s 28(5)(b) of the Act, the major repairs could be permitted to be made by the tenant to the extent that it shall not be more than the amount of two years'' rent. The two years'' rent would amount to Rs. 240/- only in this case. Rs. 300/- is much more than Rs. 240/-. The second contention of the learned Counsel for the Petitioner is also consequently well founded.

In the result, the petition is allowed. The order dated 15th July, 1986 is hereby quashed. The parties are directed to bear their own costs.