http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11  

CASE NO.: Appeal (civil) 2908 1999         Appeal (civil)  2909    1999

PETITIONER: VANNATTANKANDY IBRAYI

       Vs.

RESPONDENT: KUNHABDULLA HAJEE

DATE OF JUDGMENT:       13/12/2000

BENCH: V.N.Khare, S.N.Phukan

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J       J U D G M E N T

     KHARE, J.

     In  these  appeals,  two   questions  that  arise  for consideration are these - (a) whether the tenancy in respect of  the premises governed by The Kerala Buildings (Lease and Rent  Control)  Act (hereinafter referred to as  the  State Rent  Act)  is extinguished by destruction of  the  subject matter  of tenancy i.e.  the premises by natural  calamities and  (b)  on the destruction of property whether  the  civil court  has  jurisdiction to entertain and try the  suit  for recovery of possession of land brought by the landlord.  The case  in  brief is that the predecessor-in-interest  of  the respondent    landlord    let   out    a   shop    to    the defendant-appellant herein.  The said shop was raised to the ground due to accidental fire on 9.1.1990 and there remained only   the  vacant  land.    The  appellant-  tenant,  after destruction  of the shop constructed a new shop on the  same site  without the consent and permission of the  respondent- landlord.  Under such circumstances, the respondent landlord filed  a suit for mandatory injunction for demolition of the new  shop  constructed by the appellant and for recovery  of possession  of  the  land on which the old  super  structure stood.  The contention of the appellant in the suit was that he  was entitled to put up a new super structure in place of the  old  one  since by virtue of Section 108(B)(e)  of  the Transfer  of  Property Act (hereinafter referred to as  the Act)  he, having not opted to render the tenancy void,  the tenancy  subsists.   The  trial court was of the  view  that after  the destruction of the shop the tenancy in respect of land  still  subsists and the plaintiff is not  entitled  to recover  the possession of the site over which the old  shop existed.   However,  the  trial  Court  granted  decree  for mandatory injunction directing the appellant to demolish and remove  the  new shop constructed by him as the same  having been  constructed without the consent and permission of  the landlord.    The  plaintiff-respondent,  as   well  as   the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11  

defendant-appellant,  filed  separate  appeals  against  the decree  of  the  trial  court.  The  First  Appellate  Court dismissed  both  the appeals and affirmed the decree of  the trial  court.   Aggrieved, both the defendant-appellant  and the  plaintiff-respondent  preferred   two  separate  Second appeals.   The High Court allowed the second appeal filed by the  plaintiff-respondent, whereas, the second appeal  filed by  the  defendant-appellant was dismissed.  The High  Court was  of  the  view  that on the  total  destruction  of  the premises  by natural calamity the tenancy stood extinguished and,  therefore, the landlord is entitled to the decree  for recovery  of possession of the land.  It is in this way  the defendant-appellant is in appeal before this Court.

     Before  we proceed to discuss the questions formulated above,  it is necessary to state the admitted facts of  this case.   It  is  not  disputed that the  shop  of  which  the appellant  was a tenant was governed by the State Rent  Act. It  is  also  not  disputed   that  the  tenanted  shop  was completely  destroyed due to natural calamity i.e.  by  fire and  it  was  not pulled down by the landlord.  It  is  also admitted  that as a result of destruction, the land on which the super structure stood was reduced to vacant land.  It is also not disputed that what was let out to the appellant was shop and not land beneath the shop.  It is also not disputed that  the  tenant made a new construction on the  same  site without  the permission and consent of the landlord and  the same was unauthorised.

     Learned counsel appearing for the appellant urged that even  if the tenanted shop was totally destroyed, there  was no  destruction  of the tenancy.  His argument is  that  the appellant  is entitled to squat on the vacant land by virtue of Section 108(B)(e) of the Act, as he has not exercised the option  for rendering the tenancy void.  In other words, the argument  is  that  even  if  the  tenanted  shop  has  been completely  destroyed making it impossible for the tenant to occupy  or  use it, still the tenancy subsists in favour  of the appellant.

     In  Simper  vs.  Coomba, (1948) 1 All  England  Report 306,  a building was destroyed by explosion of a bomb during Second  World  War.  The question arose whether tenancy  was extinguished  by  the  destruction of  the  building.   Lord Denning,  J.   held  that  it was not.   The  Learned  Judge observed thus:

     The  position  at  common law is plain.   She  had  a contractual   tenancy  and  that   tenancy  has  never  been determined  by due notice to quit.  It, therefore, continues in  existence.   The destruction of the house by a bomb  did not  determine  the  tenancy.  It is well settled  that  the destruction  of  a  house does not by itself  determine  the tenancy of the land on which it stands.

     This  statement  of law does not explain  whether  the destruction of a house will destroy the tenancy of the house itself  but only indicates its effect on the tenancy of  the land.   In  Woodfalls  Law  of Landlord  and  Tenant,  28th edition,  Vol.   I para 1-2056, page 928 -  the  proposition stated as thus:

        A  demise  must   have  a  subject-matter,  either

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11  

corporeal   or  incorporeal.   If   the  subject  matter  is destroyed  entirely,  it is submitted that the  lease  comes automatically  to an end, for there is no longer any demise. The  mere  destruction  of a building on land is  not  total destruction of the subject matter of a lease of the land and building.  So demise continues.

     The  last  two sentences, i.e.  The mere  .. and  building,  so  demise continues are based  upon  the decision  by Lord Denning in Simper vs.  Coomba (supra).  It appears  that  in  Simper vs.  Coomba (supra), there  was  a tenancy   of  building  and  land   and  therefore,  it   is inapplicable  in  the  case where tenancy is in  respect  of building  alone  governed by the State Rent Act which  is  a case before us.

     In   Article  592  of   American  Jurisprudence,   the statement of law on the consequences of complete destruction of a building is stated as under:

     592.  Complete destruction.  The common-law rule that a  lessee  is  not relieved of his obligation  to  pay  rent through  the accidental destruction of the building  demised to him presupposes that some part of the premises remains in existence  for occupation by the tenant, irrespective of the destruction.  If the destruction of the premises is complete -  nothing remaining, the subject matter or thing leased  no longer  existing  then the liability of the tenant for  rent cases.   Thus,  it has been held that the destruction  of the property extinguishes the liability for rent, as under a lease  of  a river front and landing consisting of a  narrow footing  at the base of a bluff without any wharf, dock,  or pier,   where  the  unprecedented   ravages  of  the   river effectually took away the use of the landing by washing away all  but  a  shallow  fragment of the  lot.     Upon  the termination  of  lease in advance of the expiration  of  the term,  by reason of the destruction of the leased  premises, the  lessor is entitled to recover such part of the rent for the  entire  terms  as  is proportionate to  the  period  of occupancy by the lessee.

     The consequence of destruction of buildings has been discussed  by R.E.Megarry and H.W.R.Wade in The Law of Real Property as under:

     Destruction  of  buildings.  If there is a  lease  of land  and  buildings, the destruction of the buildings  does not  affect the continuance of the lease, so that the lessee remains entitled to possession of the land and any buildings that  may  subsequently be erected on it.  But the  complete destruction  of the while of the demised premises, as  where an  upper-floor flat is destroyed by fire, produces problems that  yet  have to be solved.  One view is that the  tenancy would  come  to  an  end,  and  with  it  liability  on  the covenants,  for there would no longer be any physical entity which  the  tenant could hold of his landlord for any  term, and  there can hardly be tenure without a tenement.  Another view  is  that  the tenancy (and with it  liability  on  the covenants)  would endure in the air space formerly  occupied by the flat, and would thus attach to the corresponding flat in  any building erected to replace the building  destroyed. The  former view has theoretical attractions, and the latter

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11  

view practical merits, not free from possible complications, e.g.,  if  there  were substantial differences  between  the segments  of  air  space occupied by the old flats  and  the new.

     In  Mahadeo Prasad vs.  Calcutta D & C Company (A.I.R) 1961 Cal.70), it was held thus:

     The  structure  has  been demolished and  is  not  in existence,  so  no question of tenants option  arises  with regard  to  the non-existing properties.  The structure  was leased  out, not the land underlying and after the structure was  demolished,  the tenant cannot be put in possession  of that  structure as a matter of fact even if he would like to be so put in possession.

     In  George vs.  Varghese (1979 K.L.T.  859), there was a  complete  destruction of a shop let out to the tenant  by fire.    The   tenant  shifted   his   business   elsewhere. Subsequently,  the  landlord put up a fresh construction  on that  very  site  where the earlier tenanted  shop  existed. After  the shop was constructed, the tenant claimed that his tenancy  continued  and  he  is   entitled  to  occupy   the re-constructed  shop.  The Kerala High Court held that where after  the  destruction of the lease hold property  landlord constructed  new shop, the tenant cannot compel the landlord to  surrender  possession of newly constructed shop  on  the premise that the old contract of tenancy continued.

     In  Thomas  vs.  Moram Mar Baselious Ougen  (AIR  1979 Kerala,  156), the tenanted shop was wholly destroyed due to fire.   The landlord brought a suit for recovery of  arrears of  rent,  eviction  and  recovery of  damages  as  well  as injunction  restraining the tenant from construction to  any unauthorised structure on the land.  The tenant defended the suit  by  asserting that notwithstanding the destruction  of the shop his monthly tenancy continued.  The High Court held thus:

     It is presumably to avoid a contingency of the lessee being fastened with the liability of payment of rent even if a  material  part  of the property be  wholly  destroyed  or rendered substantially and permanently unfit for the purpose for which it was let, that the tenant is conferred an option by  S.108(e)  to treat the contract as void.  That does  not mean  that  in a case where the subject matter of the  lease like  the building here is totally destroyed, the tenant  is entitled  to  squat  on the ground where  the  building  was situate  or construct a new building in its place or require the landlord to put up a new structure.

     A lease as such could be determined only in one of the ways  pointed out in S.111 of the Transfer of Property  Act. These  ways of determination denote the continued  existence of  the subject matter of the lease.  Under S.108(e) even if a  material  part  of  the lease is  destroyed  or  rendered substantially  or  permanently  unfit for the  purposes  for which  it was let out and such injury is not covered by  the lessee,  the lease though continuing can be treated as  void by  the lessee and thus get rid of his liabilities under the demise.   But it would be too much to say that if there is a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11  

total  destruction  of the subject matter of the lease,  and that too on account of the wrongful act of the lessee he can treat  the  lease  as continuing, and either  construct  the building  in  the  place  of the destroyed  building    the subject  matter  of  the lease or require  the  landlord  to reconstruct  the  building.  The lease being a  transfer  to enjoy  the property transferred, with the total  destruction of   the  property  the  lease   cannot  be  considered   as continuing,  there cannot be a lease subsisting in regard to a  property not in existence.  Therefore the first defendant is liable to be evicted."

     In  Siddharthan vs.  Ramadasan (AIR 1984 Kerala  181), it  was held that when there was a total destruction of  the shop  the tenancy stood extinguished as the demise must have a  subject matter and if the same is destroyed, the  tenancy comes to an end.

     The aforesaid decisions show that where the tenancy is exclusively  for  premises  and  not for  land  and  on  the destruction  of  the  subject   matter  the  tenancy  stands extinguished.  However, the Bombay High Court in Hind Rubber Industries   Pvt.    Ltd.     vs.    Tayebhai   Mohammedbhai Bagasarwalla  (AIR 1996 Bombay 389) and a Division Bench  of Kerala  High  Court in V.Kalpakam Amma vs.   Muthurama  Iyer Muthurkrishna  Iyer  (AIR  1995  Kerala  99)  have  taken  a contrary view of the matter.

     Learned  counsel  appearing for the appellant  pressed into service the aforesaid two decisions, one in Hind Rubber Industries Pvt Ltd.  (supra) and second in V.  Kalpakam Amma (supra)  and  contended  that  on  the  destruction  of  the building   the   tenancy  right  of   the  tenant   is   not extinguished.   It  is  also  stated that  a  special  leave petition   filed  against  the   decision  in  Hind   Rubber Industries  Pvt.  Ltd.  (supra) was dismissed by this  Court and,  therefore,  the said decision has seal of approval  by this  Court.   In  the case of Hind Rubber  Industries  Pvt. Ltd.   (supra) the plaintiff was the owner of the  building. The  said  building  was let out to the  defendant  and  the building so let out caught fire and the building occupied by the  defendant  was  gutted and  destroyed.   The  plaintiff brought a suit in the City Civil Court, Bombay for mandatory injunction  restraining the defendant from carrying out  any work  or construction on the disputed land or enter upon the said  laid.  The defendant raised an objection that the suit filed  by  the  plaintiff  in   City  Civil  Court  was  not maintainable.   A preliminary issue was struck as to whether the Court had jurisdiction to entertain the suit.  The trial Court held that it had jurisdiction to entertain and try the suit.   On a Civil Revision petition filed by the defendant, the  Bombay High Court held that since on the destruction of the   property   the  tenancy  is   not   extinguished   and relationship  of  landlord  and tenant continued  to  exist, therefore  the  City  Civil  Court had  no  jurisdiction  to entertain and try the suit.  While holding so the High Court relied  upon  Section 108 (B) (e) of the Act which  runs  as under:

     108(B)(e)  If by fire, tempest or flood, or  violence of  any  army or of a mob, or other irresistible force,  any material  part  of  the  property  be  wholly  destroyed  or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11  

rendered  substantially  and  permanently   unfit  for   the purposes  for  which  it was let, the lease  shall,  at  the option of the lessee, be void;

     Provided  that,  if  the injury be occasioned  by  the wrongful  act  or  default of the lessee, he  shall  not  be entitled to avail himself of the benefit of this provision;

     The  aforesaid  Section  provides   that  in  case  of destruction  of  the property by fire, tempest or flood,  or violence  of  any  army lease may be rendered  void  at  the option of the lessee provided that such injury to the leased property  has  not  been occasioned by the wrongful  act  or default  of  the  lessee.  According to the High  Court  the rights  of  the tenant in leased property subsisted even  if the  leased premises has been destroyed by fire, unless  the tenant  exercises  his option that the tenancy  is  rendered void.   The question therefore arises whether on destruction of  tenanted shop governed by the State Rent Act, the tenant can  assert his possession on the vacant land on the footing that  the  tenancy continued to exist under Section 108  (B) (e)  of  the Act.  In other words whether in  the  aforesaid situation  the  provisions  of Section 108 (B) (e)  has  any application.

     In  V.  Kalapakam Ammas case (supra) the Kerala  High Court  held that where a premises governed by the State Rent Act  is  destroyed by fire the tenancy does not continue  to exist  under Section 108 (B) (e) since the said Section  has no application to such a situation.  However, the High Court held  that the tenants tenancy continued to exist under the State Rent Act by virtue of the definition of the building in the Act.

     In  V.  Dhanapal Chettiar vs.  Yesodai Ammal [1979 (4) SCC  214 ] the question arose as to whether the landlord  is required to give notice under Section 106 of the Transfer of Property  Act  before filing a petition for  eviction  under Tamil  Nadu Building (Lease and Rent Control) Act.  In  that context it was held thus :

     Purely  as  a matter of contract a lease  comes  into existence  under  the Transfer of property Act.  But in  all social  legislations meant for the protection of the  needy, there is appreciable inroad on the freedom of contract and a person  becomes  a  tenant of a landlord  even  against  his wishes  on the allotment of a particular premises to him  by the  authority  concerned.   Now,   under  the  Transfer  of Property  Act  no ground for eviction of a tenant has to  be made  out  once  a contractual tenancy is put to an  end  by service  of  a valid notice under Section 106.  Once such  a notice  is  served it is open to the lessor to  enforce  his right of recovery of possession of property.  But when under the  various  State  Rent Acts it has been provided  that  a tenant  can  be evicted on the grounds mentioned in  certain sections  of the said Acts no question of determination of a tenancy  by notice arises.  Once the liability to be evicted is  incurred by the tenant he cannot turn round and say that the  contractual lease has not been determined.  The  action of  the  landlord in instituting a suit for eviction on  the ground mentioned in any State Rent Act will be tantamount to an  expression  of his intention that he does not  want  the tenant  to continue as his lessee and the jural relationship of  lessor and lessee will come to an end on the passing  of an  order  or  decree for eviction.  Until  then  under  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11  

extended  definition of the word tenant under the  various State  Rent  Acts  the tenants continues to be  tenant  even though the contractual tenancy has been determined by giving of  a  valid  notice under Section 106 of  the  Transfer  of Property Act, 1882.

     In Pradesh Kumar Bajpai vs.  Binod Behari Sarkar [1980 (3) SRR 348] it was held that where a Rent Act is applicable to  a  premises  and landlord applies for  eviction  on  the ground  of default in payment of arrears of rent the  tenant cannot  claim  benefit under Section 114 of the Act and  ask for  opportunity  to deposit arrears.  It was  further  held that the tenant is not entitled to seek double protection of the State Rent Act and the Transfer of Property Act.

     In  K.K.  Krishnan vs.  M.K.  Vijaya Ragavan  [1980(4) SCC 88] this Court held that the right conferred on landlord and  tenant by virtue of Section 108 and other provisions of the  Transfer  of Property Act has no application where  the premises is governed by the State Rent Act and if the tenant has  sought  to  proceed  with under the Rent  Act  for  his eviction  the tenant cannot resist the said eviction on  the basis of rights conferred by the Transfer of Property Act.

     In  Prithvichand  Ramchand  Sablok vs.   S.Y.   Shinde [1993 (3) SCC 271] it was held that the provisions contained under  the Rent Control Act being a special provision  would exclude  the  operation  of Section 114 of the  Transfer  of Property  Act.   In  substance it was held that  a  building cannot be governed by the provisions of two Acts, one by the State Rent Act and other by the Transfer of Property Act.

     From the aforesaid decisions there is no doubt that if a  building  is  governed by the State Rent Act  the  tenant cannot  claim benefit of the provisions of Sections 106, 108 and  114  of the Act.  Let us test the arguments of  learned counsel  for  the appellant that on the destruction  of  the shop the tenant can resist his dispossession on the strength of  Section 108(B)(e).  In this case what was let out to the tenant  was a shop for occupation to carry on business.   On the  destruction of the shop the tenant has ceased to occupy the  shop and he was no longer carrying on business therein. A  perusal of Section 108(B)(e) shows that where a  premises has  fallen  down under the circumstances mentioned  therein the  destruction  of  the  shop itself does  not  amount  to determination  of tenancy under section 111 of the Act.   In other  words there is no automatic determination of  tenancy and  it  continues to exist.  If the tenancy continues,  the tenant  can only squat on the vacant land but cannot use the shop for carrying on business as it is destroyed and further he cannot construct any shop on the vacant land.  Under such circumstances  it is tenant who is to suffer as he is unable to  enjoy  the fruits of the tenancy but he is saddled  with the  liability  to pay monthly rent to the landlord.  It  is for  such  a situation the tenant has been given  an  option under  Section 108(B)(e) of the Transfer of Property Act  to render  the  lease  of the premises as void  and  avoid  the liability  to  pay  monthly rent to the  landlord.   Section 108(B)(e)  cannot be interpreted to mean that the tenant  is entitled to squat on the open land in hope that in future if any  shop  is  constructed on the site where  the  old  shop existed  he would have right to occupy the newly constructed premises  on  the strength of original contract of  tenancy. The  lease  of  a shop is transfer of the property  for  its

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11  

enjoyment.  On destruction of the shop the tenancy cannot be said   to  be  continuing  since   the  tenancy  of  a  shop presupposes  a  property  in existence and there  cannot  be subsisting  tenancy where the property is not in  existence. Thus  when the tenanted shop has been completely  destroyed, the  tenancy  right stands extinguished as the  demise  must have  a  subject  matter  and if the same is  no  longer  in existence,  there  is an end of the tenancy  and  therefore, Section  108(B)(e) of the Act has no application in case  of premises  governed  by  the  State   Rent  Act  when  it  is completely destroyed by natural calamities.

     Coming  to  V.   Kalapakam   Ammas  decision  (supra) wherein  it was held that on the destruction of the tenanted premises, the tenancy continues under the State Rent Act, we would  like to examine the provisions of the State Rent Act. The  State  Rent Act was passed with a view to regulate  the leasing  of  buildings  and  to control  the  rent  of  such buildings  in  the State of Kerala.  The State Rent  Act  is applicable  only to the buildings and not to the land.   The Act  is  not intended to govern the vacant land.  Section  2 (1) of the Kerala Rent Act defines building which reads as under:

     2 (1) building means any building or hut or part of a  building  or  hut,  let  or  to  be  let  separately  for residential or non-residential purposes and includes

     (a)  the garden, grounds, wells, tanks and structures, if  any, appurtenant to such building, hut, or part of  such building  or  hut,  and  let or to be let  along  with  such building or hut;

     (b)  any furniture supplied by the landlord for use in such building or hut or part of a building or hut;

     (c)  any  fittings  or   machinery  belonging  to  the landlord,  affixed to or installed in such building or  part of such building, and intended to be used for the tenant for or in connection with the purpose for which such building or part of such building is let or to be let,

     but  does  not include a room in a hotel  or  boarding house;

     Section 4(1) of the State Rent Act provides that every landlord  may  within  fifteen days  before  completion  and shall,  within  fifteen  days   after  the  construction  or reconstruction of a building intended to be let out or after a building becomes vacant by his ceasing to occupy it, or by the termination of a tenancy, or by release from requisition give  notice  of availability or vacancy in writing  to  the Accommodation  Controller.   Sub-section  (3) of  Section  4 provides  that  if  the Accommodation  Controller  does  not intimate  to  the landlord in writing that the  building  of which  notice  has been given is required for  the  purposes mentioned  therein  the landlord shall be at liberty to  let the  building  to  any  tenant  or  to  occupy  it  himself. Sub-section  (5)  of Section 4 further provides that if  the Accommodation  Controller allots the building to any  person mentioned in sub-section (3), such person shall be deemed to be  the  tenant of the landlord on terms of tenancy  as  has

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11  

been  agreed  upon  between the landlord and tenant  and  in default  of an agreement, as may be determined under Section 5  of the Act.  Section 5 further provides the determination of  fair  rent.  Section 11 provides the grounds on which  a tenant  can  be  evicted from the premises governed  by  the State  Rent  Act.  Sub-Section 4 (iv) of Section 11  of  the Kerala Rent Act provides that a tenant can be evicted if the building is in such a condition that it needs reconstruction and  if  the landlord requires bona fide to reconstruct  the same  and  he satisfies the Court that he has the  plan  and licence  and  ability  to  built.  Proviso  to  clause  (iv) provides  that  a landlord who evicts a tenant and does  not reconstruct  completely the building within a time which may be  fixed or extended by the Rent Control Court is liable to a  fine if it is proved that he has been wilfully neglecting to  reconstruct  completely the building within  such  time. Second proviso to clause (iv) of sub- section (4) of Section 11 further provides that the Court shall have power to issue directions  regarding the reconstruction of the building and on  failure of compliance by the landlord to give effect  to the  order  in  any  manner  the   Court  deem  fit  and  in appropriate cases to put the tenant back in possession.  The third  proviso to clause (iv) further provides that a tenant who   was   evicted  on  the   ground  of   demolition   and reconstruction  shall  have  the first option  to  have  the reconstructed building allotted to him with liability to pay its  fair  rent.  The aforesaid provisions would  show  that where  a  building  is governed by the State  Rent  Act  the landlord  is not free to let out the building to a tenant of his  own  choice  or on a rent which he may dictate  to  the tenant  and  the tenancy that comes into existence is not  a contractual  tenancy  and  further  the State  Rent  Act  is applicable to the building and not to the vacant land.

     In  V.   Kalpakam Amma (supra) the Kerala  High  Court relying  up on the definition of the building in the State Rent Act held that there cannot be a building without a site and  once a structure is put up in the land the site becomes part  of the structure and thereafter the site becomes  part of  the building and on that basis the High Court held  that once the premises covered by the State Rent Act is raised to the  ground  tenancy continues to survive in respect of  the vacant   land.   In  our  view   this  is  not  the  correct interpretation  of  Section  2(1)  of the  State  Rent  Act. Section  2(1)  uses the words part of a building  or  hut. The words part of the building do not refer to the land on which the building is constructed but it refers to any other super structure which is part of that main building e.g.  in addition  to  the main building if there is any other  super structure in the said premises i.e.  motor garage or servant quarter  and the same would be part of the building and  not the  land on which the building has been so constructed.  So far the appurtenant land which is beneficial for the purpose of  use  of the building is also the part of  the  building. Thus  according  to the definition of the Building in  the State  Rent  Act  the  building   would  include  any  other additional   super  structure  in   the  same  premises  and appurtenant  land.  We are, therefore, of the view that  the interpretation  put by the Kerala High Court of Section 2(1) for  holding  that the words part of a building means  the land  on  which  the building has been  constructed  is  not correct.   The provisions of the State Rent Act clearly show that the State Rent Act is self contained Act and the rights and liabilities of landlord and tenant are determined by the provisions  contained  therein and not by the provisions  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11  

the  Transfer of Property Act or any other law.  The  rights of  a  landlord  under  the general  law  are  substantially curtailed by the provisions of the State Rent Act as the Act is  designed  to  confer  benefit to  tenants  by  providing accommodation   and  to  protect   them  from   unreasonable eviction.   In  the  present case what we find is  that  the subject  matter  of  tenancy  was the shop  room  which  was completely  destroyed  on account of accidental fire and  it was not possible for the tenant to use the shop for which he took  the  shop on rent.  After the shop was  destroyed  the tenant,  without  consent  or permission  of  the  landlord, cannot  put up a new construction on the site where the  old structure stood.  If it is held that despite the destruction of  the shop, tenancy over the vacant land continued  unless the tenant exercises his option under Section 108 (B) (e) of the  Act the situation that emerges is that the tenant would continue  as a tenant of a non-existing building and  liable to  pay  rent to the landlord when he is unable to  use  the shop.   The  tenancy of the shop, which was let out,  was  a super  structure and what is protected by the State Rent Act is  the occupation of the tenant in the super structure.  If the  argument  of  appellants counsel is accepted  then  it would  mean  that although the tenant on the destruction  of the shop cannot put up a new structure on the old site still he  would continue to squat on the vacant land.  Under  such situation  it  is difficult to hold that the tenancy is  not extinguished  on  the  total  destruction  of  the  premises governed  by  the  State Rent Act.  Under English Law  in  a contractual  tenancy  in  respect of building and  land  the liability  to  pay  the rent by the tenant to  the  landlord continues  even  on the destruction of the building  whereas there  is  no  liability of the tenant to pay  rent  to  the landlord  on the destruction of the premises governed by the State  Rent  Act.  Therefore, the view taken by  the  Bombay High  Court  in Hind Rubber Industries Pvt.   Ltd.   (supra) does  not  lay down the correct view of law.  This Court  on number  of  times has held that any special  leave  petition dismissed  by  this  Court without giving a  reason  has  no binding  force on its subsequent decisions.  Therefore,  the two  aforesaid cases relied on by counsel for the  appellant are of no assistance to the argument advanced by him.

     However,  the  situation  would be different  where  a landlord himself pulls down a building governed by the State Rent  Act.  In such a situation the provisions contained  in Section  11  of  the  State Rent Act  would  be  immediately attracted  and the Rent Control Court would be free to  pass appropriate order.

     Coming  to  the next question whether the Civil  Court was  competent  to entertain and try the suit filed  by  the respondent  for  recovery of possession of the vacant  land. As already stated above, the tenancy in the present case was of  a  shop room which was let out to the tenant.   What  is protected  by  the State Rent Act is the occupation  of  the tenant  in  the  super  structure.  The  subject  matter  of tenancy  having been completely destroyed the tenant can  no longer use the said shop and in fact he has ceased to occupy the  said  shop.  Section 11 of the State Rent Act does  not provide  for  eviction  of  the  tenant  on  the  ground  of destruction  of  the building or the super structure.   Thus when  there is no super structure in existence the  landlord cannot claim recovery of possession of vacant site under the State Rent Act.  The only remedy available to him is to file a  suit in a Civil Court for recovery of possession of land.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11  

In  view  of  the matter the Civil Court  was  competent  to entertain and try the suit filed by the respondent landlord.

     For the aforesaid reason we are in full agreement with the view taken by the High Court.  Consequently, the appeals fail  and  are accordingly dismissed but there shall  be  no order as to costs.