Mohd. Ibrahim vs 1st Additional District Judge and Another

S.D. Agarwala, J.—This is a Petition under Article 226 of the Constitution of India challenging the order passed by the 1st Additional District Judge, Bareilly dated 30th July, 1988 in a pending appeal u/s 22 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act), permitting the tenant to raise and repair the boundary walls of the house in dispute.

The case of the Petitioner is that appellate authority u/s 22 of the Act has no jurisdiction to pass the impugned order.

The facts giving rise to the present Petition are as follows namely, that an application had been filed u/s 21 of the Act for release of the accommodation in dispute. This application was allowed by the Prescribed Authority on 21st May, 1985. The tenant aggrieved by the decision, filed an appeal u/s 22 of the Act. During the pendency of this appeal, the tenant moved an application for permission to make necessary repairs of the boundary walls of the house in dispute and it is in consequence of this application that the impugned order has been passed.

Learned Counsel for the Petitioner has urged that the Appellate Authority u/s 22 of the Act, has no jurisdiction to pass the impugned order. The remedy available to the Petitioner was u/s 28 of the Act.

Section 28 of the Act specifically lays down that in case the landlord fails to carry out the white washing or repairs in the tenanted property then the tenant by a notice in writing may call upon the landlord to carry out the same within one month from the date of service of such notice. In case the landlord fails to comply with the said notice then it is open to the tenant to apply to the Prescribed Authority for seeking appropriate relief. It is, therefore, clear that under the Act, a specific remedy is provided to a tenant for moving the Prescribed Authority for the purpose of getting the tenanted property repaired. This order the Prescribed Authority can pass after hearing the landlord. u/s 22 of the Act, the appellate authority has been given the power to affirm, vary or rescind the order passed by the Prescribed Authority. It has also the power to take additional evidence and stay the operation of the order in appeal, but the Appellate Authority has no power to pass an order of a nature which could only be passed u/s 28 of the Act.

In view of the above, I am of the opinion that the argument of the Learned Counsel for the Petitioner is well-founded. The Appellate Authority had no jurisdiction to pass the impugned order.

In the result, the Petition is allowed. The order dated 30th July, 1988 is, hereby, quashed. It is further observed that it will be open to the tenant Respondent to move a proper application u/s 28 of the Act for necessary reliefs.

A copy of this order may be given to Learned Counsel within a week on payment of usual charges.