Judgment 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. 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 about the existence of the relationship of landlord and tenant between the parties. The petitioners filed an appeal against this order before the Collector of East Champaran which was numbered as Revenue Appeal No. 124/76. The petitioners filed an appeal against this order before the Collector of East Champaran which was numbered as Revenue Appeal No. 124/76. The Collector by his judgment dated 18-6-1979 dismissed this appeal. Thereafter, the petitioners unsuccessfully filed a revision application which was numbered as 60-H of 197980 before the Commissioner of Tirhut Division. While dismissing the revision application, the Commissioner held that the reconstruction of the roof was only a Repair and not a Reconstruction. 4. The main contention of the learned counsel for the petitioners is that they could not be called upon by the House Controller to erect a concrete roof over the verandah in question when the original roof was made of corrugated sheets only. According to him such a construction could not be called Repair within the meaning of S.10 of the Act. In this connection his further submission is that the order of the House Controller was unreasonable and violated the principle of natural justice as the petitioners have been called upon to do the repair works at an estimated cost of Rs. 2500.00 when the monthly rent of the portion in occupation of respondent No. 4 was only Rs. 45/- per month, and if they did repairs as directed by him they would not be getting any rent for about 55 months. 5. Sec.10 is as follows :- "(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 a tenant." (2) If the landlord fails to carry out annual whitewashing, 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 notice and on the landlords failure to do so within the said period, the tenant may himself carry out the same at a cost not exceeding one months rent for the building and deduct such costs from the rent. (3) If the landlord neglects to carry out any repairs, other than those referred to in sub-sec. (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. (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 falls 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 further enquiry as may be necessary direct him to carry out the same within a time to be fixed; and on the landlords 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 thereafter 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 as if it were a debt due to him by the landlord : Provided that no order for the carrying out of repairs under this sub-section shall be made, if the Controller is satisfied that the repairs involved were due to the negligence of the tenant." 6 The word Repair has not been defined in the Act. However, its import has been considered in some cases. In Hansrai Tirathram V/s. Administrator Municipality, Jammu (AIR 1963 J and K 18) K.V. Gopalakrishnan Nair, J. considered the significance of the word Repair and observed as follows (p. (19):- " Repair and renew are not words expressive of a clear contract. Repair always involves renewal; renewal of a part; of a subordinate part. A skylight leaks, repair is effected by hacking out the putties, putting in new ones, and renewing the paint. A roof falls out of repair; the necessary work is to replace the decayed timbers by sound wood; to substitute sound tiles or slates for those which are cracked, broken or missing to make good the flaushings and the like. Part of a garden wall tumbles down; repair is effected by building it up again with new mortar, and. so far as necessary, new bricks or stone. Part of a garden wall tumbles down; repair is effected by building it up again with new mortar, and. so far as necessary, new bricks or stone. Repair is restoration by renewal or replacement of subsidiary parts of a whole. Renewal, as distinguished from repair, is reconstruction of the entirety, meaning by the entirety not necessarily the whole but substantially the whole subject-matter under discussion. I agree that if repair of the whole subject matter has become impossible a covenant to repair does not carry an obligation to renew or replace. That has been affirmed by Lister V/s. Lane, (1893) 2 QB 212 and Wright V/s. Lawson (1903) 19 TLR 203 on appeal p. 510. But if that which I have said is accurate, it follows that the question of repair is in every case one of degree, and the test is whether the act to be done is one which in substance is the renewal or replacement of defective parts, or the renewal or replacement of substantially the whole." A reference was made by Nair, J. to the decision in Highland Railway Co. V/s. Balderston (1889) 2 Tax Cas 485 which was approved by Lord Macmillan in (AIR 1933 PC 222) in the case of Rhodesia Railway Ltd. V/s. Income-tax Collector Bechuanaland. It was observed in that case that :- "Although a replacement of worn out iron rails by new iron rails could be a repair, substitution of steel rails for iron rails was held to be a material alteration and an improvement in the corpus and therefore not a repair." 7. The view expressed in the case of Hansraj Tirathram (AIR 1963 J and K 18) was quoted with approval by Ganesan. J. in the case of Doraipandi Konar V/s. P. Sundara Pathar ( AIR 1970 Mad 291 ). In this decision Ganesan, J. also referred to the decision of Allahabad High Court in Ram Ashray V/s. Hiralal (AIR 1949 All 681) in which it has been stated that where a Pucca Building is demolished and a new building is constructed, the new construction shall be regarded as an improvement. In this decision Ganesan, J. also referred to the decision of Allahabad High Court in Ram Ashray V/s. Hiralal (AIR 1949 All 681) in which it has been stated that where a Pucca Building is demolished and a new building is constructed, the new construction shall be regarded as an improvement. Relying on this decision it was observed by Ganesan, J. at page 297 that : "An addition, material alteration or anything which substantially improves a thing in value from the original condition except in so far as it is necessary to carry out such restoration cannot be said to be merely repair of that thing, it will be bringing into existence an altered thing, an improved thing, a new thing for all intents and purposes." It was further observed that : "...... it would be impossible to say that the conversion of the mud walls into brickwalls and the mud floor into cement floor would be mere repair. It would clearly constitute a material alteration and an improvement in that the nature and composition of the flooring and the walls had undergone a complete change and the value had considerably enhanced." 8. I find myself in agreement with the views expressed by Nair, J. and Ganesan. J. in the aforesaid cases and accordingly hold that the construction of concrete roof in place of corrugated sheet roof would be a definite improvement and the same cannot be regarded as mere repair as the concrete roof would be definitely an improved thing and a new thing for all intents and purposes and the value of the building would also be considerably enhanced by the said construction. In this view of the matter it must be held that the House Controller could not ask the petitioners to construct concrete roof in place of the corrugated sheet-roof in the garb of asking them to carry out the repairs under the provisions of sub-sec.(4) of S.10 of the Act, as it would amount to asking the landlords to make substantial improvement and not merely restoration to the original position. Thus, it is obvious that the House Controller exceeded his jurisdiction in giving such a direction to the petitioners and as such this order has to be quashed. 9. The order of the House Controller also appears to be unreasonable as the landlord of a building fetching monthly rent of Rs. Thus, it is obvious that the House Controller exceeded his jurisdiction in giving such a direction to the petitioners and as such this order has to be quashed. 9. The order of the House Controller also appears to be unreasonable as the landlord of a building fetching monthly rent of Rs. 45/- only could not be asked to undertake repair works at an estimated cost of Rs. 2500/-. This estimated cost would be equivalent to the rent for about 55 months and as such the landlord would not be getting any rent for these 55 months. Evidently, the landlord cannot be compelled to undertake any unremunerative and disproportionate repair work. 10. Since the Collector and the Commissioner have affirmed the order at the House Controller, their orders have also to be quashed as they suffer from the same infirmities. 11. In the result, the application is allowed and the orders contained in Annexures-1, 2 and 3 are quashed. The matter is remitted back to the House Controller of Motihari to pass suitable order in the matter after giving the parties an opportunity of being heard. In the circumstances of the case the parties would bear their own costs. S.SARWAR ALI, J. 12 I agree.