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Harish Kumar v. The District Judge Moradabad And Others - WRIT - A No. 12619 of 1984  RD-AH 9765 (22 May 2007)
(Judgment reserved on 11.5.2007)
(Judgment delivered on 22.5.2007)
Civil Misc. Review Application No.177869 of 2005
(On behalf of Vishnu Saran Agarwal - Respondent no.3)
Civil Misc. Writ Petition No.12619 of 1984
Shri Harish Kumar vs. District Judge, Moradabad and others
After hearing learned counsel for both the parties this writ petition was dismissed by me on 9.8.2005 with certain directions.
Both the courts below had allowed the release application of the landlord-respondent under section 21(1)(b) of U.P. Act No.13 of 1972 on the ground that tenanted building was in a dilapidated condition. Last but one paragraph of the judgment dated 9.8.2005 containing the directions is quoted below:-
"Accordingly writ petition is dismissed. It is directed that tenant petitioner shall within six months from today hand over possession of the building in dispute to the landlord respondents. Landlord respondents are also directed to get the map of new construction passed or re-validated by the competent authority and supply a Photostat copy of the same alongwith order of sanction or re-validation to the tenant. If due to any reason the said sanction or re-validation takes more time then tenant shall be liable to vacate within 15 days from the date of receipt of intimation of the same. Within six months from the date of getting possession landlord shall reconstruct the house. After reconstruction the newly constructed house shall be given on rent to the tenant as provided under section 24 of the Act. The rent of new house shall be 1/120 of the total cost incurred by landlord in making reconstruction. If any difficulty is felt in implementation of this order including fixation of rent then any party may file application before the Prescribed Authority in this regard which shall be promptly decided after due notice to the other party."
Thereafter, on behalf of landlord-respondent review application was filed on 7.9.2005.
Heard learned counsel for the parties on review application. The prayer in the review application is that the direction of handing over of newly constructed portion to the tenant may be deleted from the judgment. The main ground of review is that one of the tenants (i.e. one of the heirs of deceased original tenant) had purchased a house and the said fact had been brought on record through supplementary affidavit in the writ petition before its decision. The precise allegation was that Harish Kumar who alone filed the writ petition had purchased the house. Initially Lalta Prasad father of Harish Kumar was the tenant. After his death tenancy was inherited by his sons, wife and daughter i.e. petitioner and respondents 4 to 8 in the writ petition. Petitioner has admitted that he has purchased the house even though number of the rooms in the said house is disputed.
During arguments learned counsel for the landlords-respondents offered that in case tenants agreed to give up their right of re-entry then landlord was ready to pay damages/compensation of Rs.35,000/- to the tenants in lieu of relinquishment of their right of re-entry. The tenants have out rightly rejected the said offer.
In my order dated 9.8.2005 tenant was directed to deliver possession within six months. No attempt was made to deliver the possession. Learned counsel for the tenant has stated that in view of filing of this review petition possession was not delivered. However, no application for exemption from delivery of possession was filed in the review petition.
The Supreme Court in S.J. Abbas vs. M. Yamin A.I.R. 2004 S.C. 3683 'while interpreting Madhya Pradesh Rent Control Act directed that for delay in delivery of newly constructed portion to the tenant landlords must be liable to pay damages equivalent to the rent of the newly constructed portion.' In view of the said authority I had given similar directions in my judgment which have been quoted above. However, under Section 24(2) of U.P. Act No.13 of 1972 tenant is entitled to allotment of new building only if he proves his requirement. Said sub -section is quoted below:-
S. 24 (2) : Where the landlord after obtaining a release order under clause (b) of sub-section (1) of Section 21 demolishes a building and constructs a new building or buildings on its site, then the District Magistrate may, on an application being made in that behlaf by the original tenant within such time as may be prescribed, allot to him the new building or such one of them as the District Magistrate after considering his requirements thinks fit, and thereupon that tenant shall be liable to pay as rent for such building an amount equivalent to one per cent per month of the cost of construction thereof (including the cost of demolition of the old building but not including the value of the land) and the building shall, subject to the tenant's liability to pay rent as aforesaid, be subject to the provisions of this Act, and where the tenant makes no such application or refuses or fails to take that building on lease within the time allowed by the District Magistrate, or subsequently ceases to occupy it or otherwise vacates it, that building shall also be exempt from the operation of this Act for the period or the remaining period, as the case may be, specified in sub-section (2) of Section 2.
As no time for re-construction is provided under Section 21(1)(b) or Section 24(2) hence in appropriate cases the court directs the landlord to make construction within fixed period.
However, in view of the fact that the tenant has already purchased a house I do not consider it necessary to maintain the directions for re-construction and handing over of the possession of re-constructed portion to the tenant.
Accordingly, judgment and order dated 8.5.2005 is modified and the above quoted para is deleted there from. It is directed that rights of the parties shall strictly be governed by Section 24(2) of U.P. Act No.13 of 1972.
The amount of rent deposited by the tenant under the above order dated 8.5.2005 either under Section 30 or before Prescribed authority shall atonce be paid to the landlord. In case petitioner-tenant indicates his desire through registered notice to the landlord within six months to accept Rs.35,000/- in lieu of his right of re-entry then the landlord shall pay Rs.35,000/- to the tenant-petitioner within two months from receipt of registered notice and thereupon right of re-entry of the tenants shall stand relinquished.
Review petition is accordingly disposed of.
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