RAM KRISHNA CHAUKHANI Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner is the "'owner and 'landlord ' within the meaning of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 ( 'the Act ' in short) of a house bearing holding No. 30A within Ward No. 8 at Forbesganj. Respondent No. 3 Gopal Prasad Sah has been a tenant in portion of the house where he used to carry on his business. The premises in occupation of the said respondent sustained extensive damage as a result of the rains and storm on 11.5.96. He filed an application before the Sub - Divisional Officer -cum -Controller, Araria, seeking direction to the petitioner to make repairs in terpis of Section 9 of the Act. The Sub - Divisional Officer, it may be mentioned, is vested with the powers of Controller under the said Act. The application was registered as Misc. Case No. 217M/96. By order dated 11.9.96 the Controller held that the premises in question was completely destroyed as a result of the storm to the extent that it could not be repaired; the structure would in fact require reconstruction. Observing that under the Act, the Controller can pass orders for repairs and not reconstruction, he further held that the application filed by respondent no.3 was beyond his competence. On these findings the application was disposed of. Respondent No. 3 did not prefer any appeal against the said order; instead, on 30.6.97 he filed a fresh application seeking similar relief which was registered as Misc. Case No. 127M/97. The petitioner pursuant to notice, appeared before the Controller and pointed out that similar application had been rejected earlier by his predecessor. The objection of the petitioner, however, was overruled. The Controller held that his predecessor had ignored the report of the Officer - in -charge and under an erroneous impression that the prayer of the respondent lays outside his jurisdiction, did not pass any positive order. The Controller further held that what the respondent sought in the application was 'repairs ' and not 'reconstruction ', which come within the ambit of Section 9 of the Act. On these findings he directed the petitioner to make the repairs, the cost of which would be borne by the respondent.

(2.) MR . Y.V.Giri, learned counsel for the petitioner, contended that the Controller committed error in reviewing the order passed by his predecessor. He submitted that as no appeal against the previous order dated 11.9.96 was preferred by respondent no.3, the same became final and could not be reopened. Reference was made to provisions of Sections 24(3) and 30 of the Act in this regard. Mr. Giri also contended that the impugned order has been passed under a totally wrong notion that it was a case of repairs as distinct from reconstruction. He pointed out that as the premises in question had been completely destroyed, it required 'reconstruction ' which does not come within the ambit of the powers of the Controller under Section 9 of the Act.

(3.) SECTION 9 of the Act runs as follows : - ''9. Directions for repair to the building. -(1) Every landlord shall carry out the repairs which he is bound, under any law, contract or custom, to make to a building in the possession of tenant. Explanation. - In this sub -section ''repairs '' include annual white -washing, recolouring and periodical repairs. (2) If the landlord fails to carry out annual white -washing, recolouring and periodical repairs, which he is bound to make, the tenant may by notice require him to carry out the same within one month from the date of service of the notice and, on the landlord 's failure to do so within the said period, the tenant may himself carry out the same at a cost not exceeding one month's rent for the building and deduct such cost from the rent. (3) If the landlord neglects to carry out repair, other than those referred to in sub -section (2), which he is bound to make, the Controller shall, on application by the tenant, which shall specify the approximate cost of such repairs, cause a notice to be served on the landlord to appear and show cause, within such time as may be fixed against the application. (4) If the landlord does not appear in obedience to the notice or if he appears but fails to satisfy the Controller as to why he should not be directed to carry out the repairs or such of them as he finds the landlord is bound to make, the Controller shall after making such inquiry as may be necessary direct him to carry out the same within time to be fixed, and on the landlord 's failure to comply with such direction, the Controller may permit the tenant to carry out such repairs at a cost not exceeding such amount as may be specified in the order and to recover such cost from the landlord. It shall, therefore, be lawful, for the tenant to make such repairs and to deduct the cost thereof from the rent or to recover it otherwise from the landlord if it were a debt due to him by the landlord : Provided that if, the Controller is satisfied that the repairs involved were due to the negligence of the tenant, he will order the tenant to make such repairs and the cost of repair shall be borne by the tenant and the same shall not be recoverable from the landlord by deduction from the rent. '' From a plain reading of the above provisions it would appear that the landlord is required to carry out only such repairs which ''he is bound under any law, contract or custom to make in a building. If the landlord fails to carry out annual white -washing, recolouring and periodical repairs, which he is bound to make, the tenant may by notice require him to carry out the same and if he neglects to do so, he may get the same done upto the limit of one month 's rent and adjust the amount against the house -rent. For repairs other than annual white washing, re -colouring or periodical repairs which also the landlord is bound to make, the tenant may apply before the Controller for direction to the landlord to carry out the repairs. After show cause and opportunity of hearing the Controller may direct him to carry out the ''repairs or such of them as he finds the landlord is bound to make '', and where the landlord fails to comply with such direction, the Controller may permit the tenant to carry out such repairs at his own cost and deduct the same from the rent or recover it otherwise from the landlord as if it were a debt due to him by the landlord.