JUDGMENT S.U. Khan, J.
1. This is tenants' writ petition arising out of proceedings of release under Section 21(1)(b) of U.P. Act No. 13 of 1972 initiated by landlord respondent No. 3, Pandit Rama Shanker Misra Trust, Rawat Bara, Agra against petitioners No. 1 and 2 (both the petitioners have died and have been substituted by their legal representatives). Release application was registered as P.A Case No. 77 of 1977. Building in dispute is situate at 104-A Mahatma Gandhi Road, Agra Cantt and rent of which is Rs. 15 and paisa 63. Accommodation in dispute consists of four big rooms, one store, two Verandahs and open peace of land. Total area of the land was initially about 28500 square meters however according to learned counsel for the tenant petitioner, about 7000 square meters of land was surrendered in January 1977. Still the total area in possession of the tenant is about 21000 square meters. The area of the land covered by constructed portion is only about 300 square meters. In the release application, it was pleaded that building was more than 15o years old and after demolishing it landlord Trust intended it to construct the colonies for defence people and an English Medium School. It was further pleaded that the trust was a public charitable trust.
2. One of the defences taken by the tenant was that suit was not maintainable as all the trustees had not filed the same. On behalf of the respondent No. 3, a resolution passed by all the trustees was filed in which it was mentioned that Manager was authorized to file the suit. Release application was filed by the Manager Shiv Shanker Misra. I have held in Trust S.L.N. Dev v. A.D.J 2003(2) ARC 730 that even one or some of the trustees are entitled to file suit for eviction of tenant.
3. In respect of dilapidated condition of the building, Engineer's report was filed by the trust to the effect that building was in a dilapidated condition. A contrary report was filed on behalf of the tenant.
4. The prescribed authority/ Munsif Fatehabad Agra allowed the release application on 18.11.1982. Against the said judgment and order an appeal was filed by the petitioners being Rent Control Appeal No. 59 of 1982, which was heard and decided by III A.D.J Agra.
5. Initially there was some confusion as to whether release application was filed under clause (a) or clause (b) of Section 21(1) of the Act. Appellate court enquired from the learned counsel for the trust landlord to clarify the position. Before appellate court it was stated that the application was only under clause (b) i.e. for demolition and reconstruction on the ground of dilapidated condition of the building not clause (a) i.e. for personal need.
6. Appellate court after a very detailed discussion of the material on record categorically held that the building was in a dilapidated condition. Appellate court held that building was constructed of mud and mortar and was more than 150 years old; that there was a dilapidated overhead water tank; that main building had roof of stone slabs over wooden sleepers and some of the roofs had already collapsed in part. It was further held that the most of the walls of the building were in dangerous condition. It was further held that some portion of the walls specifically south-east corner had already collapsed down in part. Appellate court also considered the report of S.P. Agarwal filed on behalf of the tenant and found that he had not given details of the condition of walls and rooms and only formal description of the constructed portion was given. It was also argued before the appellate court as well as this court that provisions of Rule 17 of the Rules framed under the Act had not been complied with and Trust did not have financial capacity to construct. When release application was filed Trust had given the estimate of expenditure to be about Rs 54 Lakhs and had shown that it had 8 Lakhs in cash. The said estimate was required for entire construction, residential colonies for defence personnel and English Medium School. Tenant is in possession of four rooms accommodation hence after demolition and reconstruction he is entitled to only four rooms accommodation by virtue of Section 21(1)(b) and Section 24 of the Act. Appellate court also found that trust had several properties and it had ample financial capacity. Appellate court after a very detailed discussion found that the building was in a dilapidated condition and landlord trust had financial capacity to make construction. Appellate court also held that other provisions of Rule 17 had been complied with. Accordingly appeal was dismissed on 10.9.1987 hence this writ petition.
7. I do not find least error in the judgment and order passed by the courts below particularly lower appellate court. Lower appellate court after exhaustive and meticulous discussion of the material available on record rightly came to the conclusion that building in dispute was in a dilapidated condition.
8. However there is one lacuna in Section 21(1)(b) of the Act. It does not provide for any time schedule to construct. That lacuna may be filled up by appropriate order of the court while allowing release application under Section 21(1)(b) of the Act.
9. Accordingly writ petition is dismissed.
10. However it is directed that within three months from today tenant petitioner shall hand over possession of the entire accommodation in dispute to the landlord Trust respondent No. 3 including constructed portion as well as open land. Landlord Trust is required to reconstruct a four room house on 300 square meters on the land out of the entire property in possession of the tenants. This house need not be at the same place where the present constructed portion exists. However it shall be within the accommodation in dispute i.e. any where in total area of about 21000 square meters which is in tenancy occupation of the tenant petitioner. The house must have proper access. The house shall be constructed within six months from the date on which possession is delivered to the landlord Trust by the tenant. Rent of the newly constructed house shall tentatively be Rs. 1500/- per month. However any of the parties may apply before prescribed authority to fix the rent at one percent per month of the cost of construction of the aforesaid house. In case within six months from taking possession, landlord Trust does not construct the house and deliver possession of the same to the tenant then since after six months of taking possession till newly constructed house is given to the tenant, landlord shall be liable to pay damages to the tenant at the rate of Rs. 1500/- per month. In the rest of the portion of the entire accommodation in dispute including open land (total area about 21000 square meters) landlord Trust is entitled to make any such construction which it likes and use the same for any purpose it likes which must of course be in accordance with the purposes of the Trust.