S.U. Khan, J.@mdashLandlady Smt. Sarla Goyal - respondent No. 2 filed three release applications against her three tenants u/s 21(1)(b) of UP.
Act No. 13 of 1972. In the said applications release of the shops in the occupation of the tenants was sought on the ground that the shops were in
dilapidated condition. Applications were filed against Nazir Ahmad since deceased and survived by the petitioners, Kundan Lal Sahai and Abdul
Rahim. The applications were registered as P.A. case No. 190, 191 and 192 of 1974 on the file of Prescribed Authority, Meerut. In all the three
cases tenants agreed to vacate the shops provided the landlady reconstructed them. Accordingly all the three release applications were allowed on
27.8.1976 with the direction that landlady should give one month''s notice to the tenants to vacate the shops and within sixty days from taking
possession of the shops landlady should reconstruct and deliver possession of the newly constructed shops to the tenants. The said order was not
challenged initially. In-fact the said order was passed on compromise hence it could not be challenged. Thereafter landlady also filed eviction suits
against the three tenants which were dismissed. Thereafter in terms of compromise order dated 27.8.1976, notices were given by the landlady to
all the tenants in June 1984 and on the failure of the tenants to vacate the premises, landlady filed execution applications u/s 23 of the Act. The
tenants filed objections stating that the execution applications having been filed on 31.7.1984 i.e. after about eight years were barred by time and
that by filing suit for eviction landlady had waived her right to get possession in pursuance of order dated 27.8.1976. It was also stated in the
objections by the tenants that order dated 27.8.1976 was bad in law as landlady had not complied with the provisions of Rule 17 of the Rules
framed under the Act. Prescribed authority over ruled the objections and directed the tenants to deliver possession within fifteen days of the order
failing which landlady was permitted to take steps for taking the possession through court amin. The said orders were passed on 4.11.1985. The
said orders were challenged by all the three tenants through three writ petitions. In the instant writ petition the said order was challenged by legal
representatives of Nazir Ahmad. The other tenant Abdul Rahim filed writ petition No. 17318 of 1985 and the third tenant Kundan Lal Sahai filed
writ petition No. 17320 of 1985. Kundan Lal Sahai got his writ petition dismissed as infructuous on 8.4.2005 on the ground that he had purchased
the shop in dispute. Writ petition of Abdul Rahim was dismissed in default on 24.5.2005.
2. Learned counsel for the petitioner stated that in September 1997 he had filed a Supplementary affidavit alongwith an application. The said
application and affidavits were not on record hence learned counsel for the petitioner supplied duplicate copy of the same which is placed on
record. In para-3 of the Supplementary affidavit it has been stated that above the shop in dispute landlady has raised new constructions and is
carrying on business therefrom. Photographs have also been filed as Annexures S.A. 1 and 2 respectively which clearly show that above the shop
in dispute new constructions have been raised. No counter affidavit to the said Supplementary affidavit has been filed. During arguments no one
appeared on behalf of landlady-respondent No. 2. In the Supplementary affidavit it has also been stated in para-6 that the shop in possession of
Abdul Rahim was vacated by him and landlady let out the same to one Chhotey Lal in the year 1992 on Rs. 200/- per month rent and premium of
Rs. 1 lac. Probably it is for this reason that no one appeared to press the writ petition of Abdul Rahim (writ petition No. 173118 of 1985) and it
was dismissed in default on 24.5.2005.
3. In the impugned order there is absolutely no error. It is doubtful as to whether there is any limitation to file an application u/s 23 of the Act for
execution of the release order u/s 21 of the Act. In any case if any limitation is to be read for such application then it will have to be twelve years,
the limitation which is prescribed under the Limitation Act for filing execution application for execution of decree of a suit. Filing of suit for eviction
and its dismissal in between release order and filing of execution application could not have any effect on execution.
4. However, in view of the subsequent fact of construction of building over the property in dispute, the initial order of 27.8.1976 allowing release
application on the basis of compromise has become un-executable. The ground floor cannot be demolished without demolishing the building
constructed at first and other floors. No one has appeared on behalf of the landlady to assert that in case possession is delivered to her by the
petitioners then she will demolish the entire construction including the newly constructed portion over the shop in dispute. No counter affidavit has
also been filed to the Supplementary affidavit filed by the petitioners.
5. In view of the above writ petition is allowed even though on different grounds and order of the Prescribed authority dated 4.11.1985 is set
aside.
6. I have held in Khursheeda v. A.D.J. 2004 (2) A.R.C. 64 that while granting relief to the tenant against eviction in respect of building covered by
Rent Control Act writ court is empowered to enhance the rent to a reasonable extent. In para-6 of the Supplementary affidavit it has been stated
that in the year 1992 similarly situate adjoining shop which was vacated by Abdul Rahim was let out to Chhotey Lal after receiving Rs. 1 lac as
premium and on a monthly rent of Rs. 200/- while Abdul Rahim was paying only Rs. 8.50/- per month as rent. If that was the position in 1992 then
today the market value of the shop in dispute must not be less than about Rs. 3 lacs. Existing rent appears to be about Rs. 10/- or 20/- per month,
which is virtually as well as actually no rent.
7. Accordingly, it is directed that with effect from January 2006 onwards tenants-petitioners shall pay rent to the landlady-respondent No. 2 at the
rate of Rs. 1,000/- per month.