RAJA MAHESH CHAND Vs. KUNWAR BAHADUR

JUDGEMENT

(1.) The petitioner is the landlord of shop situated in Bara Bazar. Aligarh of which the respondent No. 2 is the tenant. He moved an application under Section 28 (4) of U. P. Act No. XIII of 1972 (hereinafter referred to as "Act") for major repair in the shop. The said application is Annexure No. 1 to the writ petition. The petitioner-landlord contested the application. However, it has been allowed in part by order dated 28.4.2001. The respondent No. 1 has been permitted to carry out the repairs spending not more than Rs. 3.200 by order Annexure No. 4 to the writ petition. Therefore, the petitioner has invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India with the request to quash the order dated 28.4.2001. Annexure No. 6 to the writ petition passed by the prescribed authority.

(2.) I have heard Sri Rajesh Tandon, senior advocate for the petitioner and Sri M. K. Gupta, learned counsel for the respondent.

(3.) The first argument of the learned counsel for the petitioner is that the application under Section 28 (4) of the Act is Annexure No. 1 to the writ petition. According to para 4 of this application, the roof of the outer khan of the shop which was of wooden beams has fallen down and the roof required reconstruction. It is pleaded that it has fallen down in the rain. It is contended that there is roofless structure. Therefore, the tenancy stood terminated and it cannot be permitted to be reconstructed. Learned counsel in support of the argument has referred to the decision of the Apex Court in Vannattankandy Ibrayi v. Kunhabdulla Hajee, 2001 (1) SCC 564. In this case, the tenanted premises was destroyed by natural calamity. Therefore, it was held that the tenancy could not subsist. In view of this decision of the Apex Court, it has been argued that the tenancy did not continue and the application under Section 28 (4) is not maintainable.