Ajay Kr.Tripathi, J.

1. The landlords Deo Narayan Choudhary and his nephew Chandra Prakash are before us as appellants aggrieved by order dated 9th February, 1998 passed in C.WJ.C. No. 7955 of 1996.

2. The dispute has had many rounds between the landlords, the appellants and the tenants, the respondents. A brief background may be noted.

3. The landlords had rented out the house in question which is Housing Board Flat bearing No. MIG 148 located at main road of Kankarbagh, at Patna, to the mother of respondent nos. 5 to 7, who is now deceased. The house is supposed to have some vacant land also. The original tenant, namely, M/s Roohi Shoghi had taken the house on rent for a period of 11 months starting from 1.1.1985 on a monthly rental of Rs. 2,600/-. This lease was subsequently extended twice for 11 months each and the same had finally expired on 31.12.1987.

4. It is stated by the appellants that appellant no. 1 being a retired Government servant served a notice on lessee for vacation of the house in question but the same was not vacated. Therefore, with the intention to put pressure on the tenant instead of taking recourse to an eviction proceeding decided to move the House Controller for fixation of fair rent. It may be pointed out that the landlord in the year 1983 had got a fair rent fixed by the House Controller at Rs. 3,186/- per month with effect from 1.4.1981. However since they were no takers of the house at the fair rent fixed, the appellants decided to lease out the premises to the mother of respondent nos. 5 to 7 at a lessor rent of Rs. 2600.00 per month only.

5. On the basis of the application moved by the appellants the House Controller registered a case bearing B.B.C. Case No. 216 of 1988. The matter was contested between the parties. The House Controller, respondent no. 4, directed an Executive Magistrate, namely, Sri A.H. Rahi to make spot enquiry of the building and submit his report. The Executive Magistrate after enquiry submitted his report on 25.4.1988 which is annexure-1 to the writ application. The Executive Magistrate in his report recommended the fair rent of the built up area consisting of 1724 Sq.ft. to be fixed at the rate of Rs. 2.25 paise per sq. ft. amounting to Rs. 3,879/-, Rs. 568, for new construction at the rate of Rs. 1.50 per sq.ft. and Rs. 2,021/- for remaining vacant land of 2021 sq. ft. at the rate of Rs. 1/-. A sum total of the revised fair rent was recommended of Rs. 6468/- per month.

6. It is relevant to point out that the report of the Executive Magistrate dated 24.4.1988 was based on ipse dixit rather on the parametres laid down under Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (hereinafter as B.B.C. Act). The relevant provisions in this regard are Section 8 read with Rule 3(ii) sub-rule (a) to (g).

7. In any determination of fair rent the parametres laid down in the section and rule has to be taken into consideration or else it shall fall foul of the power conferred upon the House Controller. The House Controller however accepted the recommendation of the Executive Magistrate in toto and fixed the fair rent of Rs. 6,468/-per month vide his order dated 5.9.1988. It is stated that belatedly an appeal was filed by the tenants which was dismissed as being time barred by the Additional Collector, the appellate authority. The mother of respondent nos. 5 to 7 filed a revision before the Commissioner and the Commissioner remanded the matter to the Additional Collector to hear the matter on merit after condoning the delay. On remand the matter was heard on merit.

However, the Additional Collector again vide order dated 13.7.1993 dismissed the appeal upholding the order of the House Controller.

8. The tenants thereafter filed a revision before the Commissioner challenging the order of the Additional Collector though samewhat belated. In the meantime the appellants i.e. the landlord, filed a petition before the House Controller for withdrawal of the rent which had been