JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri B.Dayal, learned counsel for the petitioner and Sri Iqbal Ahmad, learned counsel for the respondent No. 3. 2. A suit for recovery of arrears of rent and ejectment i.e. S.C.C. Suit No. 11 of 1987 was filed by the petitioner on the ground that the shop in question was damaged in a riot which took place in 1978 and thereafter it was reconstructed by the landlord himself at his own cost hence Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972) (hereinafter referred to as “Act, 1972”) was not applicable in view of Section 2(2) of Act, 1972 wherein it is provided that Act, 1972 would not be applicable to a new construction for a period of 10 years. The Courts below have held that question whether cost of construction was incurred by landlord or tenant is wholly irrelevant for the purpose of Section 29 of Act, 1972 which is for the benefit of tenant and irrespective of the fact who got the reconstruction made, mere fact that the shop was reconstructed in 1978 it shall not make the Act inapplicable when the tenant was occupying premises in question before enactment of Act, 1972 and before such reconstruction, the Act, 1972 was applicable to the shop in question. It is contended that these finding of Courts below are patently illegal. Sri Dayal contended that the Courts below have committed patent error in construing Section 29 of Act, 1972 which does not apply to a case where reconstruction has been made by the landlord himself incurring cost on his own and is confined to those cases only where reconstruction of damaged accommodation has been made by tenant incurring his own expenses. 3. Learned counsel appearing for the respondent however defended the impugned orders on the basis of reasoning contained therein and said that here is a case where the shop was damaged completely for something not attributable to the tenant and therefore factum of new construction should not be taken a pretext to deprive him protection under Act, 1972. He thus submitted that in exercise of powers under Article 226/227 this Court may not interfere in this matter. 4. He thus submitted that in exercise of powers under Article 226/227 this Court may not interfere in this matter. 4. Section 29 of Act, 1972 reads as under: “Special protection to tenants of buildings destroyed by collective disturbances, etc.—(1) Where in consequence of the commission of mischief or any other offence in the course of collective disturbances, any building under tenancy is wholly or partly destroyed, the tenant shall have the right to re-erect it wholly or partly, as the case may be, at his own expenses within a period of six months from such injury : Provided that if such injury was occasioned by the wrongful act or default of the tenant he shall not be entitled to avail himself of the benefit of this provision. (2) Where in consequence of fire, tempest, flood or excessive rainfall, any building under tenancy is wholly or partly destroyed the tenant shall have the right to re-erect or repair it wholly or partly, as the case may be, at his own expense after giving a notice in writing to the landlord within a period of one month from such injury : Provided that the tenant shall not be entitled to avail himself of the benefit of this provision— (a) if such injury was occasioned by his own wrongful act or default; or (b) in respect of any re-erection or repair made before he has given a notice as aforesaid to the landlord or before the expiration of a period of fifteen days after such notice, or if the landlord in the meantime makes an application under Section 21, before the disposal of such application; or (c) in respect of any re-erection or repair made after the expiration of a period of six months from such injury or,if the landlord has made any application as aforesaid, from the disposal thereof. (3) Where the tenant, before the commencement of this Act, has made any re-erection or repair in exercise of his rights under Section 19 of the old Act, or after the commencement of this Act makes any re-erection in the exercise of his right under sub-section (1) or sub-section (2),— (a) the property so re-erected or repaired shall be comprised in the tenancy; (b) the tenant shall not be entitled, whether during the tenancy or after its determination, to demolish the property or parts so erected or repaired or to remove any material used therein other than any fixtures of a movable nature; (c) Notwithstanding, anything contained in sub-section (2) of Section 2, the provisions of this Act shall apply to the building so re-erected : Provided that no application shall be maintainable under Section 21 in respect of any such building on the ground mentioned in clause (b) of sub-section (1) thereof within a period of three years from the completion of such re-erection.” 5. A bare perusal of Section 29 sub-sections (1), (2) and (3) clearly shows that it protect interest of tenant where building was under his tenancy, wholly or partly, has been destroyed for the reasons not attributable to the tenant. It has conferred a right upon him to get it reconstructed wholly or partly, as the case may be, at his own expenses. Sub-section (3) further says, that, where such a reconstruction has been made by the tenant in exercise of power under sub-sections (1) and (2), such reconstruction shall not be treated to be new construction and therefore exemption under Section 2(2) of the Act, 1972 shall not be applicable to such reconstructed building. However, the entire Section 29 nowhere talks of a situation where the building under tenancy has been reconstructed by the landlord himself at his own expenses. 6. In my view, Section 29 of Act, 1972 would have no application at all and it shall not be attracted where for any reason whatsoever a building has been damaged, partly or wholly, and the same has been reconstructed by the landlord himself incurring his own expenses. In that circumstance, applicability of Act, 1972 will have to be considered by excluding Section 29. 7. In that circumstance, applicability of Act, 1972 will have to be considered by excluding Section 29. 7. A new construction made would attract the exemption under Section 2(2) read with Explanation thereof where “construction” has been defined as under: “construction” includes any new construction in place of an existing building which has been wholly or substantially demolished. 8. Regard being had to what I have discussed above, the question whether building under tenancy was reconstructed by tenant incurring his own expenses or by landlord is an important issue to be decided so as to find out applicability of Section 29 of Act, 1972. 9. In the present case Courts below having expressed an opinion that this aspect is wholly irrelevant have clearly erred in law. The erroneous findings in this regard is evident from the following: ^^vr% iz’uxr nqdku naxs esa {kfrxzLr gksus ds ckn oknh }kjk rkehj djk;h xbZ] vFkok izfroknh }kjk rkehj djkbZ xbZ] blls okn ij dksbZ izfrdwy izHkko ugha iM+rk] D;ksafd 1978 ds naxs esa nqdku {kfrxzLr gksus ds ckn iqu% iqjkuh uhoksa ij rkehj djkbZ xbZ gSA ,slk mHk; i{kksa dh lk{; ls Li"V gSA** 10. The above approach and finding and the inference drawn thereon regarding applicability of the Act, 1972 is clearly erroneous. 11. The view, I have taken hereat, may at first flush appears to be slightly hard to those tenants who have suffered on account of a building under their tenancy destroyed, wholly or partly, for the reasons not attributable to them that is mentioned in sub-sections (1) and (2) of Section 29 of Act, 1972 but reconstruction/new construction has been made by landlord voluntarily. 12. To me, legislative intention in enacting Section 29 of Act, 1972 appears to be that tenant, if has incurred substantial expenses in construction of a building under his tenancy, damaged for certain reasons for which he is not responsible, such a tenant after incurring substantial expenses should not be allowed to be ejected without enjoying property for a reasonable time after its reconstruction. However, where the landlord himself has constructed the building, that situation does not arise. It further recognizes the principle that destruction of property under tenancy would have the consequence of destruction of lease, and, relationship of landlord and tenant would disappear immediately thereupon. However, where the landlord himself has constructed the building, that situation does not arise. It further recognizes the principle that destruction of property under tenancy would have the consequence of destruction of lease, and, relationship of landlord and tenant would disappear immediately thereupon. Section 29 of Act, 1972 infact is an exception to the said principle giving an option left with the tenant or lessee to continue with the lease by getting the destroyed building reconstructed incurring his own expenses but when the tenant has not exercised such option and building is constructed again by landlord himself, tenant cannot claim either continuance of lease rights or a kind of right of re-entry therein by relying upon Section 29 of Act, 1972 which does not contemplate a situation where construction has been made after destruction of building under tenancy wholly or partly, cost of which has been incurred by the landlord. 13. The issue in question having not been dealt with, in my view, strictly in accordance with law and since the Courts below have not recorded any positive finding as to who has constructed the building in question after its destruction on account of riot in 1978 which finding would be material for deciding whether Section 29 of Act, 1972 would be attracted in this case or not and I find it appropriate to remit the matter back to the Trial Court to consider and decide this issue and in case it finds that building was reconstructed at the cost of landlord, there can be no dispute that Section 29 of Act, 1972 shall not be applicable in this case and in that circumstances by virtue of Section 2(2), Act, 1972 itself would not apply and the matter has to be proceeded and decided accordingly. 14. In the result, the writ petition is allowed. The impugned orders dated 7.11.1994 and 7.2.1996 (Annexures 10 and 11 to the writ petition) are hereby set aside. The matter is remanded to the Trial Court to decide the matter afresh in the light of the observation made above and in accordance with law. 15. Since the matter is of 1987, Trial Court is directed to decide S.C.C. Suit No. 11 of 1987 afresh expeditiously and in any case within one year from the date of production of a certified copy of this order. 16. No costs. ——————