Smt. Rama Sharma vs Prescribed Authority, Mainpuri and another

J.C. Gupta, J.—Heard petitioner''s counsel. This is landlord''s petition. By means of this writ petition, the petitioner has challenged the order dated 25.5.1999 passed by the Prescribed Authority allowing the application of the tenant moved u/s 28 of the U. P. Act No. 13 of 1972.

The first contention of the learned counsel for the petitioner is that the application in question was barred by limitation as the same was moved beyond six months period from the alleged injury and the learned counsel for the petitioner invited the attention of the Court to the provisions of Section 29 of the Act. The contention of the petitioner''s counsel is however, untenable. Subsection (1) of Section 29 applies only where mischief or any other offence is committed in the course of collective disturbance. This sub-section has no application to the commission of mischief by the landlord or anyone else individually. This view of mine is supported by a decision of this Court in Sudhakar Shukla and another v. R. K. Agrawal and others 1983 (1) ARC 165. Further, sub-section (2) of Section 29 applies where the building under tenancy is wholly or partly destroyed in consequence of fire, tempest, flood or excessive rainfall and under the said provision, the tenant has, been conferred a right to re-erect the building at his own expense after giving a notice in writing to the landlord within one month from such injury. This provision also has no application to the facts of present case where the tenant alleged that the roof was damaged by the landlord himself so that the tenant could leave the said premises on his own.

It was next argued that the property in question has, been released in favour of the landlord, as such application u/s 28 of the Act was not maintainable. It is true that release order has been made in favour of the landlord by the Prescribed Authority but undisputedly an appeal u/s 22 of the Act is still pending and so long as the same is not decided the tenant will have a right to beneficial enjoyment of tenanted accommodation and he cannot be deprived of the same by the acts and omissions of the landlord.

It was next argued that in respect of the same cause of action, the tenant had earlier moved an application u/s 28 of the Act and the same was dismissed by the Prescribed Authority, therefore, subsequent application was not maintainable. This point has been dealt with elaborately by the Prescribed Authority in the impugned order. It may not be out of place to mention here that the previous application was made by the tenant without serving mandatory notice as contemplated u/s 28, as such the application was defective and could not be entertained by the prescribed authority. It is well-established that service of notice as contemplated u/s 28 is a condition precedent for moving application u/s 28 of the Act. There has been no adjudication of the rights of the parties when earlier application was rejected. The mere fact that the tenant was not given liberty to move a fresh application would not be a bar for moving another application u/s 28 after serving a notice as required u/s 28 of the Act. The instant application moved u/s 28 of the Act was thus maintainable. No other point was pressed. Finding no merit, this writ petition is dismissed in limine.