Judgment: Brijesh Kumar 1. The dispute in the present writ petition centers round a shop which was refused to be released in favour of petitioner in proceedings initiated by them under section 21 of Act 13 of 1972 (hereinafter referred to as the Act) and the appeal filed against the order of the prescribed authority also met the same fate. Certified copies of the judgments passed by the prescribed authority and the appellate court have been filed as Annexures 1 and 2. Respectively to the petition. 2". I have heard learned counsels for the parties. Initially, it appears that one Ashiq Ali was the tenant of the shop in question situate in Bazar Shambha in the town of Shahabad, district Hardoi. Ashiq Ali met within his death sometime before eviction proceedings were initiated, impleading his heirs as opposite parties, the petitioners, namely, the landlords of the shop in dispute sought release of the shop in their favour and eviction of the opposite parties on the ground that walls and roof of the shop had fallen down; it is in a dilapidated condition, they wanted to demolish the shop and reconstruct it. After reconstruction, they wanted to settle their sons to carry on business in the said shop. The shop was thus required for their personal need. 3. The application was contested by the opposite parties saying that the shop was not needed by the petitioners and since the shop had totally fallen down, it is not a "building" within the meaning of the term as defined under the Act, hence the provisions of the Act are not applicable to the premises in question. It was also pleaded that the shop was mortgaged with some Chandra Dutt, who had also been given right to realise half of the rent, hence he was also a necessary party and for non-joinder of necessary party, the proceedings were bad. 4. The prescribed authority after framing issues decided the case against the present petitioners and dismissed their application. It was held that the shop was not bona fide required by the petitioners. It was also held that the need of opposite parties were greater. The proceeding were held to be maintainable even in absence of Chandra Dutt as party to the proceedings and also that the provisions of the Act were applicable to the premises in question. It was held that the shop was not bona fide required by the petitioners. It was also held that the need of opposite parties were greater. The proceeding were held to be maintainable even in absence of Chandra Dutt as party to the proceedings and also that the provisions of the Act were applicable to the premises in question. The prescribed authority also recorded a finding that the shop was in a dilapidated condition within the meaning of section 21 (1) (b) of the Act, but compliance with Rule 17 of the Rules framed under the Act was not made as it was found that the estimate of demolition and reconstruction did not include cost of demolition likely to be incurred. The application was, therefore, rejected. The order of the prescribed authority was impugned by filling an appeal. The appeal, as indicated earlier, was also dismissed. The appellate court upheld the findings recorded by the prescribed authority. It held that the petitioners failed to established that the accommodation was bona fide seeded for establishing their sons. It also found that the shop was in a dilapidated condition but the petitioners failed to establish that they had sufficient means to demolish and reconstruct the building as in the estimate prepared by one J.K. Sharma, cost which was likely to be incurred in demolition of the building, was not included and thus Rule 17 of the Rules was not complied with- It was observed that the amount shown to be deposited in the pass-book of A.W. I Raees Ahmad, son of Zafar Hussain was sufficient only for raising of walls and for putting up a roof over the walls. 5. Learned counsel for the petitioners has mainly submitted that on the findings recorded by the courts below the application should not have been dismissed for the reason that the estimate submitted by the Engineer J. K. Sharma did not include cost of demolition. It has been submitted that the amount which may have to be incurred in demolition, if at all, would be so negligible and meagre that its non-inclusion in the estimate would not disentitle the petitioners for relief under section 21 (1) (b) of the Act. So far the capacity of petitioners for reconstruction is concerned, it has been submitted that according to the observations made by the appellate court, son of petitioner no. So far the capacity of petitioners for reconstruction is concerned, it has been submitted that according to the observations made by the appellate court, son of petitioner no. 1 had filed his pass-book showing that he had a bank balance of Rs. 2,000/- which was sufficient for the purpose. The learned counsel for the petitioners has placed reliance upon a case reported in Mohd. Idrrs v. IHrd Addl. District and Sessions Judge, 1986 (1) ARC 272, where it has been held that if a negligible amount, likely to be incurred in demolition, is not included in the estimate, it would not be a just and proper ground to reject the application. 6. Learned counsel appearing for the opposite parties, while submitting that the application was rightly rejected for non-compliance with Rule 17 of the Rules framed under the Act, also submitted that the shop in question could not be said to be in a dilapidated condition, hence the application moved under section 21 (1) (b) of the Act was liable to be rejected on that ground as well. In this connection it may be observed that a perusal of the order passed by the prescribed authority while dealing with issue no. 5 shows that in para 3 of the written statement, the opposite parties had themselves pleaded that the shop was in a dilapidated condition and that it is without any roof, hence the provisions of the Act would not be applicable whereas now the argument is sought to be raised from a different angle, namely, the shop is not in a dilapidated condition inasmuch as it can be repaired and used as shop. The finding of the two courts below is to the effect that the building is an dilapidated condition. That is now sought to be challenged while taking a different stand. Normally the opposite parties would not be allowed to take up a contrary stand on factual position, but I propose to deal with this contention as this point has been very vehemently argued on the basis of certain decisions of other High Courts and this court. Taking the factual position in regard to the condition of disputed accommodation, it requires only application of law, hence the opposite parties were allowed to raise this plea. Taking the factual position in regard to the condition of disputed accommodation, it requires only application of law, hence the opposite parties were allowed to raise this plea. With a view to show that the accommodation in question, is not in dilapidated condition, learned counsel for the opposite parties has drawn my attention to the report of Sri J. K. Sharma as contained in Annexure-4, according to which the existing position of the shop is as under : " (a) Eastern wall of the shop is 9'-0" i.e. of full height requires no raising. c (b) Back wall is 4'-9" high it requires raising by 4'-3" to be 9'-0" high. (c) Western wall is 5'-4" to 5'-10" high it requires raising by 3'-8" to be 9'-0" (d) Front and intermediate wall is 4'-6" and 7'-6" high respectively these walls require to be constructed from the plainth after dismantling them as the doors are to be fixed in these walls." The submission is that some of the walls are strong enough to bear the load of slab; one of the walls is standing to its full height i.e. 9 ft., two other walls appear to be partly fallen and have to be raised to come to the height of ft, two walls require to be constructed from the plinth after dismantling them, as doors are to be fixed. It is submitted that such accommodation only* requires repairs by raising the walls and putting up a roof. In this connection reliance has been placed upon a case reported in Ullal Dinkar Rao v. M. Ratna Bai, AIR 1958 Mysore 77. In that case, the tenant had applied under the provisions of Madras Buildings (lease and Rent Control) Act for restoration of the amenities of cow-shed and bath-room which had been destroyed due to heavy rains. The roof of cow-shed and bath-room also appears to have destroyed. The court ordered for restoration of amenities although new roofs were to be put up. It was held that- it only amounted to repairs and not reconstruction. On the basis of above judgment, it has been submitted that in the present case also, it would only amount to 'repairs' even though there is no roof and the same may have to be put up afresh. 7. It was held that- it only amounted to repairs and not reconstruction. On the basis of above judgment, it has been submitted that in the present case also, it would only amount to 'repairs' even though there is no roof and the same may have to be put up afresh. 7. While holding that it amounted to 'repairs' and not 'reconstruction' in the case of Ullal Dinkar Rao (supra), the court, relied upon certain cases including 19il (1) K.B. 905 A, which was approved in (E) Bhodesia Railway Ltd. v. Income-tax Collector, Bachuanaland, 1933 AC 363, where it was observed, " 'Repair' and 'renew' are not words expressive of a clear contract. Repair, always involves renewal, renewal of a part, of a subordinate part. A skylight leaks, repair is effected by hacking out the putties, putting in new ones, and renewing the paint. A roof falls out of repair, the necessary work is to replace the decayed timbers by sound wood........." Repair is restoration by renewal, or replacement of subsidiary parts of a whole. The court further went on to observe, "Renewal, as distinguished from repair, is reconstruction of the entirely meaning by the entirety not necessarily the whole but substantially the whole subject-matter under discussion." The observation further is, "The question of repair is in every case one of degree, and the test is whether the act to be, done is one which in substance is the renewal or replacement of defective parts, or the renewal or replacement of substantially the whole." 8. Following the decision in the case of Bhodesia Railway Ltd, (supra), in AIR 1952 Mad. 689 , Commissioner of Income-tax, Exfees Profits Tax Madras v. Rama Sugar Mills Ltd., it was observed, "Renewal is a repair it is only restoration by renewal or replacement, of subsidiary parts of a whole. If, on the other hand, it amounts to a reconstruction of the entirety or of substantially the whole of the subject-matter, it is not a repair but a reconstruction. If, on the other hand, it amounts to a reconstruction of the entirety or of substantially the whole of the subject-matter, it is not a repair but a reconstruction. The test, therefore, which decides the question whether a thing is a "repair" or not, is to see whether the act actually done is one which in substance is a replacement of defective parts or a replacement of the entirety or a substantial part of the subject-matter." What is clearly deduce able from the judgments referred to above, is that question of reconstruction of repair is related to the facts and circumstances of each case. In one case, the same may amount to 'repair' but in other, it may be a 'reconstruction'. For example, if a tenant has only one room in his tenancy which falls down* including its roof, its restoration by raising fallen walls and putting a new roof, may amount to reconstruction, but in case the accommodation in his tenancy includes 4-5 rooms and one room falls down, its restoration in the manner indicated above, may amount to 'repair' because In the latter case, the' accommodation In the tenancy as a whole was not affected in entirety but only a part of the whole is required to be restored while in the former case, the whole accommodation was affected entirety. It appears that cow-shed and bath-room, in the case of 'Ullal Dinkar Rao' (supra), were only a small part of the entire accommodation, hence replacement of roofs over cow-shed and bath room was held to have fallen in the category of 'repair' and not 'reconstruction'. In my view, therefore, it is not necessary that in every case and in all circumstances where a new roof is to be constructed, it would always be a case of 'repair' and not 'reconstruction'. 9. Another case relied upon by the tenant is reported in Sri Bihariji. v Sitaram, 1959 AWR 128. The tenant, in that case, had prayed for putting of a roof which had fallen down, rendering the accommodation without being wind-proof and water-proof. One of the submissions made on behalf of the landlord, it appears, was that it would amount to reconstruction of the entire house. It appears that major portion of the roof over a room had fallen down. The same was ordered to be repaired. One of the submissions made on behalf of the landlord, it appears, was that it would amount to reconstruction of the entire house. It appears that major portion of the roof over a room had fallen down. The same was ordered to be repaired. It was found to be only a part of the accommodation, as would be evident from the observation made to the effect, In any case, if the petitioner had any material to substantiate the plea that the repair will amount to 'reconstruction' of the entire house, he can bring this fact to the notice of the learned Munsif. No material has been placed before me to justify his contention. It is logically inferable from the said observation that in some circumstances, putting of a roof may amount to 'repair' and in other circumstances, to 'reconstruction', depending upon the facts and circumstances of the case. 10. Next, on behalf of the landlord, reliance has been upon a case reported in Pyarelal v IV Additional District Judge, Bijnor, 1980 ARC 240. In this case also, it was held that no hard and fast rule can be laid down on the point as to when a building becomes a dilapidated building. It is a matter which is to be decided on facts of each case. It has also been observed. "The word 'dilapidated' means 'in the state of disrepair' but it is not necessary that the building should be in a fallen state or ruinous condition." Applying the principles as laid down in the cases referred to in the earlier paras of this judgment, it would be clear that in the case in hand, it would amount only to 'reconstruction' of the accommodation and not 'repair' of the same. The shop in question is the only accommodation in the tenancy of opposite parties. The entire subject matter of tenancy is affected. Major and substantial work is to be done. Since whole accommodation in entirety is affected, it would be a case of "reconstruction" while raising two walls to full height and demolishing a wall and raising a new wall in its place and then putting up a roof afresh. All this work pertains to the entire tenanted accommodation. In my view, therefore, there is no scope to contend that it amounts to 'repair' and not 'reconstruction'. All this work pertains to the entire tenanted accommodation. In my view, therefore, there is no scope to contend that it amounts to 'repair' and not 'reconstruction'. I also do not find any substance in the submission that the accommodation is not in dilapidated condition. A roofless structure with two half walls and one wall requiring demolition would definitely be a structure in dilapidated condition. As a matter of fact, such a condition of structure can well be termed as 'ruinous condition'. , 11. On the basis of the case of 'Pyrelal (supra)', it has been submitted that there is distinction between the two phrases, i.e. 'requires demolition' as used in Rule 17 of the Rules and 'is required for the purposes of demolition and reconstruction' as used in Section 21 (1) (b) of the Act. It has been contended that there is no categorical finding to the effect that the accommodation requires demolition. In this connection, reliance has been placed upon a case reported in Sibbo v. I Additional District Judge, Ghaziabad, 1983 (I) ARC 33. In one of the later decisions it was observed that it would be difficult to draw a distinction between the above noted two phrases used in Rule 17 and clause (b) of Section 21 (I; of the Act as. Rule 17 will not give any other meaning except that provided under the provisions of the Act. It may, however, not be necessary to go into that aspect any further as I find that the appellate court, in para 8 of the judgment, has confirmed the finding recorded by the trial court to the effect, "......that the shop is dilapidated and requires reconstruction," In my view, the finding that the accommodation is dilapidated and requires reconstruction is nothing but to express the same and say that the building 'requires demolition'. The finding that the building is dilapidated and requires reconstruction, includes the stage of demolition. Therefore, in my view, the necessary finding has been recorded by the courts below as would be evident from para 8 of the aforesaid judgment of appellate court. 12. So far the other point about non-compliance of Rule 17 of the Rules is concerned, i.e. The estimate does not include the cost of demolition, it may be observed that it is a very minor omission which cannot be over emphasised, nor undue weight can be given to this point. 12. So far the other point about non-compliance of Rule 17 of the Rules is concerned, i.e. The estimate does not include the cost of demolition, it may be observed that it is a very minor omission which cannot be over emphasised, nor undue weight can be given to this point. It is no doubt, required under the law that the estimate should also include the cost of demolition, but the interpretation of said rule does not require beating of the words but real intent is to be seen. SO far demolition is concerned, the structure in question has no roof to be demolished. Two half walls are to be raised to the full height and no demolition is involved in doing so. One of the walls is intact in full. What is required to be demolished is only walls of one side which have to be raised from the plinth. According to the report of the Engineer, pulling down of this wall which has no burden of roof over it, would involve nominal expenditure in its demolition. Such as insignificant or negligible expenditure cannot outweigh all requirements which are duly fulfilled or satisfied. A view away from reality cannot be taken. It would be nothing but beating about the technicalities to throw out the petition merely for the reason that in the estimate, cost of pulling down the walls of one side has not been included. In this connection, learned counsel for the petitioners referred to a case reported in Mohammad Idris v. III Addl. District and Sessions Judge, Pratapgarh, (1986) 1 ARC 972. In case, where conditions as laid down under Section 21 (1) (b) of the Act 13 of 1972 and Rule 17 are fulfilled, it may not be necessary for the applicant to prove bona fide need. It may be observed that the finding of courts below that the accommodation was not bona fide required by the applicant is also not satisfactory. However, it is not necessary to go into that aspect of the matter. In view of the discussion held above, the writ petition deserves to be allowed. It is a petition of the year 1980. The petitioners, it appear, had applied for release of the accommodation in the year 1974. That as to say, sixteen years have passed. However, it is not necessary to go into that aspect of the matter. In view of the discussion held above, the writ petition deserves to be allowed. It is a petition of the year 1980. The petitioners, it appear, had applied for release of the accommodation in the year 1974. That as to say, sixteen years have passed. It would, therefore, bean appropriate case in which while remanding the matter, the court below may be directed to dispose of the case within a short period. 13. In the result, the writ petition is allowed and the judgments and orders passed by opposite parties No. 1 and 2, contained in Annexures 1 and 2 to the writ petition respectively are set aside. The case is remanded to opposite party no 2 who shall dispose of the application in the light of observations made in this judgment within a period of four months from the date of production of a copy of the judgment before him. 14. There would, however, be no order as to costs. Petition allowed.