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2010 DIGILAW 868 (ALL)

Krishna v. Vijai Kumar Gupta

2010-03-16

DEVENDRA PRATAP SINGH

body2010
JUDGMENT Hon'ble Devendra Pratap Singh,J. Heard learned counsel for the petitioner and Sri Komal Mehrotra for the caveator. 2. This petition is directed against concurrent orders dated 18.3.2008 and 23.2.2010 by which the application of the respondent landlord for release of the building under Section 21(1)(b) for demolition and reconstruction has been allowed by both the courts below. 3. The courts below have recorded a categorical finding of fact that the disputed accommodation is in a dilapidated condition and requires reconstruction after demolition and it has also been found that the provision of Rule 17 of the Rules framed under U.P. Act No. 13 of 1972 has been complied. 4. Learned counsel for the petitioner has failed to point out any error of law much less an error apparent on the face of record. 5. However, it is urged that the courts below ought to have fixed a reasonable time for reconstruction and handing over the shop to the petitioner tenant. 6. Under the Act a landlord is entitled to demolish and reconstruct a building which is in a dilapidated condition and there is also an option of re-entry of the outgoing tenant, but there is no provision under which a time limit could be provided by the courts below for reconstructing the new building in the place of the dilapidated building and for period within which the delivery of reconstructed portion be handed over to the outgoing tenant. In several cases this lacuna has been noticed. Recently a learned Single Judge of this Court in the case of Balkishan and others Vs. Prescribed Authority and another [ 2009 (1) ARC 549 ] having found that there is the aforesaid lacuna in the Act, has rectified it by imposing the condition on the basis of a decision of the Apex Court rendered in the case of Syed Jalil Abbas Vs. Mohd. Yaminh, [ AIR 2004 SC 3683 ]. This position is not disputed by the counsel for the respondent also. 7. Admittedly, the rent of the dilapidated accommodation which is to be demolished is Rs. 70/- per month and both parties agree that after reconstruction the tentative rent be fixed at Rs. 500/- per month subject to orders which may be passed by the rent controller with regard to fixation of fresh rent. Accordingly, this writ petition is dismissed. 7. Admittedly, the rent of the dilapidated accommodation which is to be demolished is Rs. 70/- per month and both parties agree that after reconstruction the tentative rent be fixed at Rs. 500/- per month subject to orders which may be passed by the rent controller with regard to fixation of fresh rent. Accordingly, this writ petition is dismissed. However, the petitioner tenant on his undertaking, is directed to vacate the premises on or before 30.6.2010 whereafter the landlord undertakes to reconstruct the shop within a period of six months from the date of receiving the possession of the shop and thereafter give possession of one shop within four weeks thereafter to the petitioner tenant at the tentative rent of Rs. 500/- per month. In case the possession of the reconstructed shop is not handed over to the petitioner tenant within the aforesaid prescribed time, the petitioner tenant would be entitled to damages at the same rate of Rs. 500/- per month till the possession is handed over to him. However, it is clarified, that the rate of rent which has been fixed tentatively by this Court, may be refixed on the application of either of the parties by the rent controller after hearing the parties. 8. In the circumstances of the case, no order as to costs.