M.N.SHUKLA, J. - (1.) THIS is a petition under Article 226 of the Constitution on behalf of a landlord challenging the order of the Prescribed Authority dated September 30, 1974 purporting to have been passed under Section 28(4) of the U.P. Urban Buildings (Re­gulation of Letting, Rent and Eviction) Act (hereinafter referred to as the Act).
(2.) AN application under Section 28 (4) of the Act was presented by the tenant-opposite party No. 1, viz., Hargovind Tamoli,_some time in 1973. The petitioner landlord filed a written statement on Septem­ber 27, 1973 replying to the allegations made therein. Before mov­ing the Prescribed Authority opposite party No. 1 had served a notice dated August 6, 1973 asking the landlord to carry out certain minor repairs so as to make the building under tenancy wind-proof and water-proof within seven days of the service of the notice. The no­tice was silent as to the quantum of costs likely to be incurred in making the proposed repairs. The application under Section 28(4) was in no way an improvement upon the notice and suffered from the same omissions. The landlord, on the other hand, expressly raised all these legal objections in paragraphs 6, 7 and 10 of his writ­ten statement. Completely obvious, however, of all the questions of law which the case gave rise to the prescribed authority allowed the tenant's application and by his impugned order dated September 30, 1974 directed the landlord to carry out the repairs claimed by the ten­ant within one month of the order, failing which the tenant was per­mitted to carry out the repairs himself, and deduct the same from the rent after furnishing the account of the expenditure to the pres­cribed Authority. I am constrained to observe that the impugned order is mani­festly perverse, illegal and unsustainable. The learned Munsif Ma­gistrate who disposed of the application appears to be wholly incap­able of understanding the legal import of Section 28 of the Act. He seems to have passed orders in a routine manner, without applying his mind to the questions of law which such application involved. An analysis of Section 28 reveals that it contemplates two kinds of repairs, viz., minor repairs and major repairs. Minor repairs provided for in Section 26(2) imply, firstly, such things as periodi­cal whitewashing and repair, and secondly, an obligation on the part of the landlord to keep the building under tenancy wind-proof and waterproof. Where the carrying out of minor repairs of the first type, viz. periodical whitewashing etc. entails a cost not exceed­ing the amount of one month's rent in a year, the tenant is entitled to carry out such repairs himself after giving notice to the landlord. It is, however, only when the landlord fails to comply with such no­tice that a right accrues to the tenant to effect these repairs himself and deduct the cost from the rent payable by him and furnish ex­penditure so incurred to the landlord. Where, however, the demand of the tenant is that the landlord should make the building wind-proof and water-proof, the tenant is entitled to do it himself after giving a notice of one month to the landlord, provided that the ex­penditure incurred for achieving this object does not exceed two months' rent. So far I have only considered those provisions of Sec­tion 28 which relate to minor repairs the cost whereof does not ex­ceed one month's rent in the case of whitewashing etc. and two months' rent in the case of repairs necessary for keeping the build­ing wind-proof and water-proof.
(3.) THE other provisions of Section 28 are applicable to a situation in which the tenant asks for periodical white-washing and minor re­pairs involving a cost exceeding one month's rent in a year or re­quires such repairs as are necessary for keeping the building wind-proof and water-proof, entailing an expenditure of more than two months' rent. Such repairs have been given the nomenclature of 'major repairs' in the section, considering perhaps the major expendi­ture required for such repairs. 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 of 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 conform 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 whitewashing or repairs is likely to exceed one month's rent in a year must also intimate to the landlord the ten­ant's 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 months' rent, the notice must also intimate to the landlord the tenant's 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 requirements of law that an application under sub-section (4) can be granted. In the present case there was a complete disregard of the provi­sions of Section 28 of the Act and the order of the Prescribed Autho­rity is nothing but a travesty of its provisions It completely lost sight of the fact that no notice calling upon the landlord to parry out the repairs within a month was at all served by the tenant. In the notice there was no mention of the particulars or the estimate of expenditure likely to be incurred. The notice did not even mention that in case the proposed expenditure exceeded one month's rent the tenant was willing to pay enhanced rent in accordance with the pro­visions of Section 6. If the cost of the repairs did not exceed me month's rent or two months' rent, as the case may be. it was open to the tenant to carry out those repairs himself and no application un­der Section 28 (4) could have been made. It is only when the above-mentioned pecuniary limit was exceeded that the jurisdiction of the Prescribed Authority could be exercised. Thus, it deludes my po­wer of comprehension as to how the Prescribed Authority felt satis­fied that he was competent to entertain an application of this nature in these circumstances. The impugned order suffers from all the infirmities which a breach of Section 28 can lead to and it is surpris­ing that the learned Munsif Magistrate (Prescribed Authority) failed to perceive any one of them. I find myself absolutely unable to sus­tain the impugned order. I, therefore, allow this writ petition with costs and set aside the impugned order dated September 30, 1974.;