R. M. Sahai, J. - (1.) THIS petition is directed against order passed by Prescribed Authority u/Sec. 28 (1) of U. P. Act XIII of 1972 (hereinafter referred to as Act). An application was filed by opposite party, who is a tenant, claiming that as petitioner has failed to carry out the necessary repairs as required by sub-section (2) of Section 26, he may be directed to carry out the same and on his failure to do so the opposite party may be permitted to do it of its own and the expenses for the same may be adjusted towards the rent payable by him. The application has been allowed against which the landlord has come to this Court.
(2.) FROM the order of Prescribed Authority it appears these proceedings were initiated by the tenant while application for release filed by landlord was pending in appeal. The argument of petitioner that it was counter-move by the tenant cannot be accepted and the Prescribed. Authority rightly held that proceedings for keeping premises wind proof and water proof and for release are independant of each other. So long the application u/Sec. 26 is not finally allowed the tenant has a right to claim that premises be kept as' contemplated u/Sec. 28 of the Act. The right, however, cannot be exercised except as provided in law. For that the initial requirement is to send a notice to landlord calling upon him to carry out the repairs within one month from the date of service of the notice. There is no finding of the Prescribed authority that this notice was served. Without this finding the application could not be allowed specially when petitioner had set up defence that no notice was received by him. Not only this copy of notice sent by the opposite party does not appear to have been filed before the Prescribed Authority. In these circumstances the order passed by- him was in violation of sub-section (1) of Section 28 of the Act. Learned counsel for tenant, however, pointed out that even if the order is being quashed and the authority is being directed to decide the application afresh and record the finding of service of notice, interest of opposite party may be safeguarded. After hearing the learned counsel for parties it appears expedient to permit tenant to carry out necessary repairs so that he may carry on his business in the shop till the disposal of the release application filed u/Sec. 21 (1) (a). The expenses incurred by him shall be subject to following conditions- (1) Any amount in excess of two years' rent shall not be liability of the petitioner. (2) In respect of even two years' rent if the application u/Sec. 28 is ultimately dismissed the opposite party shall not be entitled to claim any adjustment of the same. (3) Any repair which shall be made hereinafter shall not be taken into account while deciding the application u/Sec. 21 on ground that the building is dilapidated and is needed for demolition and reconstruction. That controversy shall be decided on the facts as it existed prior to carrying out of the repairs in pursuance of order passed by the Court. In the result this petition succeeds and is allowed. The order passed by the Prescribed Authority is quashed. He is directed to decide the application filed by the opposite party afresh in accordance with law. The decision shall be subject to what has been observed above. Parties shall bear their own costs. -Petition allowed.;