The construction of a concrete roof in place of a corrugated sheet roof is an improvement and not a repair, and the House Controller cannot direct the landlord to undertake such an improvement under the guise of repair.

RAMNANDAN PRASAD, J.

1. The petitioners have filed this writ application under Art.226 of the Constitution of India for issuance of a writ of certiorari quashing the orders contained in Annexures-1, 2 and 3 of this writ application. Annexure-1 is the order dated 9-1-1978 passed by the House Controller of Motihari purporting to be an order under S.10(4) of the Bihar Buildings (Lease. Rent and Eviction) Control Act 1977 (hereinafter called the Act), whereby he directed the petitioners to complete the repair works at an estimated cost of Rs. 2500.00 in the portion of the building which was let out by them to respondent No. 4 Shanker Prasad Kanaujja within 15 days failing which respondent No. 4 was ordered to complete the said repair works and to recover the costs incurred thereon by adjustment of rent or by any other legal means. Annexure-2 is the order passed by the Collector of East Champaran in the appeal filed by the petitioners against the said order, being Revenue Appeal No. 124/77-78 under the provisions of S.21 of the Act, by which he rejected the appeal and upheld the order passed by the House Controller. Annexure-3 is the order passed by the Commissioner in the revision preferred by the petitioners against the order of the Collector contained in Annexure-1 being Case No. 60H of 1979-80 by which he upheld the order of the Collector and dismissed the revision application.

2. The petitioners are the owners of the building in a portion of which respondent No. 4 was the tenant on a monthly rent of Rs. 45/- per month. The portion in possession of respondent No. 4 consisted of one room and a verandah having corrugated sheet roof in which he held a shop of Dabur Products. The case of the petitioners is that respondent No. 4 himself vacated the building after April, 1976 and himself removed all the materials of the shop including signboard of the shop. He, however, kept some furniture in the room and assured the petitioners that he would remove that also. Thereafter, the petitioners removed the corrugated iron sheets of the roof of the verandah as it had become dilapidated and started constructing cement roof, but they could not complete the same due to shortage of funds. The case of respondent No. 4, however, is that he had vacated the premises in his occupation on the request of the petitioners that they would be reconstructing the roof, but he continued to be in possession of the room in which he had kept his furniture of the shop. We are, however, not concerned with this controversy here as the undisputed position is that the roof of the verandah in the occupation of respondent No. 4 had become dilapidated and the corrugated iron sheets thereof had been removed by the petitioners for constructing a new roof.

3. Subsequently, respondent No. 4 filed a petition before the House Controller, Motihari, (Sub-divisional Magistrate, Motihari), who is respondent No. 3. in this writ application, under Ss.9 and 10 of the Act which was numbered as 17 HC of 1976 on account of the failure of the petitioners to complete the repair works. Thereupon, the petitioners were called upon to show cause which they did. In their show cause petition they inter alia denied the relationship of landlord and tenant between the parties. Thereafter, the House Controller asked the Assistant District Supply Officer to make an enquiry into the matter which he did and submitted a report to the House Controller. According to his report the approximate costs of the repair works which included the reconstruction of the roof of the verandah and electric fittings would be to the tune at Rs. 2500.00 only. After hearing the parties, the House Controller passed the order contained in Annexure-1 directing the petitioners to do the said repair works at an estimated cost of Rs. 2500 within 15 days failing which respondent No. 1 was asked to do the same and adjust the costs towards the rent or recover the same otherwise according to law, after recording his finding