R. R. K. Trivedi, J. - (1.) IN this writ petition counter and rejoinder affidavit have been exchanged. Both the learned counsel have agreed that the writ petition may be decided finally at this stage.
(2.) THE facts necessary to follow the controversy, which is subject matter of this writ petition, are that the petitioner who is a tenant of a shop, made an application under section 28 of U. P. Act No. XIII of 1972, here-in-after referred to as 'Act', before Prescribed Authority for an order requiring the respondent no. 2 landlord to carry out certain repairs in the accommodation in dispute. A copy of the application has been filed as Annexure-1 to the writ petition, perusal of which shows that the petitioner claimed repairs of the two doors and the roof. In paragraph no, 10 of this application the petitioner has specifically stated that in carrying out the aforesaid repairs the amount required may be mors than two years rent and in that case he is prepared to enhance the rent of the shop in dispute. It has been further stated that the notice was served on respondent no. 2 on 18th January. 1989 which was replied by respondent no 2 on 23rd January 1989 and he refused to accept the request of petitioner regarding repairs. Hence the application was filed. THE aforesaid application of petitioner was contested by respondent no. 2 interalia on the ground that as tenancy of the petitioner has been terminated, he is not entitled for the relief claimed by him. Further in paragraph no. 18 it was stated that though the shop in dispute is an old construction but it is in good condition and it does not require any repairs as alleged. It was also stated that the petitioner has made several alterations without his permission. Prescribed Authority after hearing parties by his order dated 22nd November, 1996 rejected application of petitioner on the ground that as repairs claimed by him shall require an investment of amount exceeding two years rent, the relief claimed in the application cannot be granted. Aggrieved by aforesaid order of the Prescribed Authority, tenant has approached this Court under Article 226 of the Constitution I have heard learned counsel for the parties and perused material on record. Learned counsel for the petitioner after referring to the provisions contained in section 28 of the Act submitted that the prescribed authority has failed to apply the provisions correctly and has rejected application under misconception of law. It is submitted that it is landlord's obligation to keep the building under tenancy wind proof and water proof. This obligation is unconditional and the limit of two years rent referred to in section 28 (5) (b) of the Act cannot be applied in discharging the aforesaid obligation. It has been further submitted that as property belonged to landlord no limit has been fixed while requiring him to carry out major repairs. The alleged limit can only be applied while permitting tenants to carry out the requisite repairs. Learned counsel for the respondents has, however, placed reliance on cases of Mohemmad Rati v. Prescribed Authority/Munsif City, Saharanpur, 1988 (1) ARC 29 and Abdul Latif v. Mohammad Shah, 1987 ALJ 273 and has submitted that if the likely investment in the proposed repairs exceeded two years rent, the application was not maintainable end has rightly been rejected and the order passed by the Prescribed Authority does not suffer from any error of law.
(3.) AFTER considering rival contentions of the learned counsel for the parties, in my opinion, serious question involved in this writ petition is as to what extent the landlord can be compelled to incur monetary liability while discharging his obligation under sub section (2) of section 26 of the Act which is being quoted below | "The landlord shall be bound to keep the building under tenancy wind proof and water proof and, subject to any J contract in writing to the contrary, carry out periodical white washing and repairs," On perusal of the aforesaid provision it is clear that there is an unqualified obligation on the part of the landlord to keep the building wind proof and waterproof daring the subsistence of the tenancy. Further subject to any contract between landlord and tenant in writing to the contrary the landlord is also liable to carry out periodical white washing and repairs. These obligations of the landlord can be enforced under section 28 of the Act which is being reproduced below : "28. Enforcement of landlord's obligation regarding repairs etc (1) If the landlord fails to carry out whitewashing or repairs as required by subsection (2) of section 26, the tenant may, by notice in writing, call upon him to carry out the same within one month from the date of service of such notice. (2) Where the cost of the requisite whitewashing or repairs is likely to exceed the amount of (two months rent) in a year, then the tenant in his notice shall also intimate to the landlord his willingness to pay enhanced rent in accordance with the provisions of section 6 (3) If the landlord falls to comply with the notice the tenant may himself carry out the whitewashing or repairs at a cost not exceeding (two months' rent) in a year and deduct the amount from the rent, and in any such case he shall furnish the account of the expenditure incurred to the landlord. (4) Where the tenant claims that the building requires whitewashing or repairs to such extent that the cost thereof is likely to exceed the amount of (two months's rent) In a year, hereinafter in this section referred to as 'major repairs', and the landlord either declines his responsibility to carry out the same or fails to comply with the notice, the tenant may apply to the prescribed authority for an order under sub-section 5. (5) The Prescribed Authority en receiving an application under sub section (4) may, after giving an opportunity of hearing to the parties : (a) either reject the application; or (b) require the landlord to carry out the requisite major repairs within such period as may be specified in the order, and on his failure to do so, permit the tenant to carry out those repairs at a cost not exceeding such amount (which shall tot be more than the amount of two years' rent) and within such period as may be specified In the order. (6) Where in pursuance of an order under sub-section (5) any major repairs are carried out by the tenant, he shall furnish an account of the expenditure to the prescribed authority, which shall certify the amount recoverable by the tenant, and thereupon such amount, unless paid or otherwise adjusted by the landlord, may be deducted by the tenant from the rent in monthly instalments not exceeding twenty-five per cent of one months' rent and in assy such case, the enhancement of rent under section 6 shall come into effect only from the month following the month In which the cost is fully recovered by the tenant (7) No appeal or revision shall lie from any order of the prescribed authority under sub-section (5) or sub-section (6) which shall be final." As clear from the perusal of section 23,. sub sections (1) (2) and (3) thereof deal with whitewashing and other repairs. However in case tenant claims that the building requires repairs to such extent that the cost thereof may exceed the amount of two months" rent same has been termed as major repairs and if the landlord declines his responsibility to carry out the same on being called upon to make the required repairs, an application may be moved to the prescribed authority for an order under sub-section (5). A perusal of section 28 (5) (b) of the Act shows that the prescribed authority after he ring the parties may require the landlord to carry cut the requisite major repairs within such period as may be specified in the order, and on his failure to do so, permit the tenant to carry out those repairs at a cost not exceeding such amount and within such period as may be specified in the order. The amount has been fixed in the same clause which shall not be more than two years rent. Sub section (6) of section 28 requires tenant to furnish an account of the expenditure to the prescribed authority, who shall certify the amount recoverable by the tenant, and which if not paid or otherwise adjusted by landlord, may be deducted by the tenant from the rent in monthly instalment, which shall not exceed twenty five per cent of the monthly rent. It further contemplates that the enhancement of rent as contemplated under section 6 of the Act shall came into effect from the month following the month In which the cost incurred by tenant is fully recovered.;