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2001 DIGILAW 566 (ALL)

RAJA MAHESH CHAND v. KUNWAR BAHADUR

2001-05-24

B.K.RATHI

body2001
B. K. RATHI, J. ( 1 ) THE petitioner is the landlord of shop situated in Bara Bazar. Aligarh of which the respondent no. 2 is the tenant. He moved an application under Section 28 (4) of U. P. Act No. XIII of 1972 (hereinafter referred to as "act") for major repair in the shop. The said application is Annexure no. 1 to the writ petition. The petitioner-landlord contested the application. However, it has been allowed in part by order dated 28. 4. 2001. The respondent No. 1 has been permitted to carry out the repairs spending not more than Rs. 3. 200 by order Annexure No. 4 to the writ petition. Therefore, the petitioner has invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India with the request to quash the order dated 28. 4. 2001. Annexure no. 6 to the writ petition passed by the prescribed authority. ( 2 ) I have heard Sri Rajesh Tandon, senior advocate for the petitioner and Sri M. K. Gupta, learned counsel for the respondent. ( 3 ) THE first argument of the learned counsel for the petitioner is that the application under section 28 (4) of the Act is Annexure No. 1 to the writ petition. According to para 4 of this application, the roof of the outer khan of the shop which was of wooden beams has fallen down and the roof required reconstruction. It is pleaded that it has fallen down in the rain. It is contended that there is roofless structure. Therefore, the tenancy stood terminated and it cannot be permitted to be reconstructed. Learned counsel in support of the argument has referred to the decision of the Apex Court in Vannattankandy Ibrayi v. Kunhabdulla Hajee, 2001 (1) SCC 564 . In this case, the tenanted premises was destroyed by natural calamity. Therefore, it was held that the tenancy could not subsist. In view of this decision of the Apex Court, it has been argued that the tenancy did not continue and the application under Section 28 (4) is not maintainable. ( 4 ) THE argument of the learned counsel cannot be accepted and the above decision of the Apex court has no application to the facts, in this case, from the application. ( 4 ) THE argument of the learned counsel cannot be accepted and the above decision of the Apex court has no application to the facts, in this case, from the application. Annexure No. 1 to the writ petition, it appears that the shop has two khans and the roof of only one khan has fallen down. The entire tenanted premises has not destroyed. Therefore, the tenancy subsists. The application under Section 28 (4) is, therefore, maintainable. ( 5 ) THE next argument of the learned counsel for the petitioner is that before moving the application under clause (4) of Section 28, a notice is required to be served under clause (1) of that section. Sub-section (2) requires that in the notice, the tenant-shall intimate to the landlord his willingness to pay enhanced rent in accordance with the provisions of Section 6. It is contended that this was not complied with either in the notice nor in the application. That neither in the notice nor in the application, it has been mentioned that the respondent is willing to pay the enhanced rent in accordance with the provisions of Section 6. That, therefore, the application is not maintainable. In support of the argument, learned counsel has referred to the decision of this Court in Ghanshyam Dass Chaudhary v. Hargovind Tewari and another, 1976 (2) ALR 462. In this case also, this Court was dealing with application under Section 28 (4) of the Act. The following observation was made, which is relevant in the present case : "in such cases, the tenant has to apply to the prescribed authority under sub-section (4) of section 28. A prior notice under sub-section (1) of Section 28 is a sine qua non of an application under sub-section (4) also. It is only in the event of the landlord failing to comply with such notice that a cause to action accrues to the tenant to invoke the jurisdiction of the prescribed authority for passing an order under sub-section (5 ). It is further implicit in the provisions of this section read as a whole that the notice must confirm to certain terms and conditions. Any order which is passed in ignorance of such conditions precedent would be a plainly erroneous order in law. Briefly, the requirements of notice may be noted. It is further implicit in the provisions of this section read as a whole that the notice must confirm to certain terms and conditions. Any order which is passed in ignorance of such conditions precedent would be a plainly erroneous order in law. Briefly, the requirements of notice may be noted. In the first place, such notice must give a period of one month to the landlord from the date of service of the notice for carrying out the repairs. Secondly, the notice must contain an estimate of the expenditure of the proposed repairs because such estimate of the cost would really determine the jurisdiction of the prescribed authority. Thirdly, a notice in a case where the cost of white washing or repairs is likely to exceed one months rent in a year must also intimate to the landlord the tenants willingness to pay enhanced rent in accordance with the provisions of Section 6. Fourthly, in a case where the cost of keeping the building wind-proof and water-proof is likely to exceed two monthss rent, the notice must also intimate to the landlord the tenants willingness to pay enhanced rent in accordance with the provisions of Section 6 of the Act. It is only after serving a notice satisfying these require- ments of law that an application under sub-section (4) can be granted. " ( 6 ) ON the basis of this authority, it has been argued that it is mandatory that compliance of the provisions of clause (2) of Section 28 should be made in the notice as well as in the application. That all the conditions mentioned in the cited case should be complied with otherwise the application is not maintainable. ( 7 ) AS against this, it has been argued by Sri M. K. Gupta, learned counsel for the respondent that omission to make this fact is not material. That in the impugned order. Annexure No. 6 to the writ petition, there is order regarding the compliance of sub-section (2 ). That, therefore, there is no illegality in the order. ( 8 ) I have perused the order dated 28. 4. 2001, Annexure No. 1 to the writ petition. That in the impugned order. Annexure No. 6 to the writ petition, there is order regarding the compliance of sub-section (2 ). That, therefore, there is no illegality in the order. ( 8 ) I have perused the order dated 28. 4. 2001, Annexure No. 1 to the writ petition. The order is exhaustive and it is mentioned that the expenses incurred shall be adjusted in the rent under section 28 (6) and after adjustment of rent in six months, the enhanced rent shall be paid in accordance with the provisions of Section 6 of the Act. ( 9 ) THE question is whether the imposing of the conditions in the order can rectify the mistake of the tenant in not complying with the provisions of clause (2) of Section 28. Clause (2) of the section requires that the tenant shall intimate the landlord in the notice his willingness to pay the enhanced rent in accordance with the provisions of Section 6 of the Act. The non-compliance of the said provisions, therefore, cannot be rectified by the order and vitiates the notice under sub-section (1 ). ( 10 ) IN my opinion, in this case, the notice served by the respondent under sub-section (1) is vitiated for non-compliance of the offer as mentioned in sub-section (2 ). This fact should also have been mentioned in the application moved under clause (4) but it was also not mentioned. ( 11 ) THE application under Section 28 (4) is, therefore, not maintainable. The order allowing the order cannot be maintained. The writ petition is allowed and the order dated 28. 4. 2001 passed by the prescribed authority, Annexure No. 6 to the writ petition is quashed.