1 ao1271.11 group.sxw IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION. Appeal from Order No. 1271 of 2011 WITH Civil Application No. 1671/2011 IN AO No. 1271/2011 Mr. Peter Cajetan Travasso of Bombay Indian Christian inhabitant, r/at: 8, Travasso Bungalow, 393, New Girgaonkar Wadi, Sitladevi Temple Road, Mahim, Mumbai 400 016. 2. Mrs. Jovita Sequira nee Jovita Max Travasso of Bombay Flat No. 8, House No. 6/6A, Travasso Mansion (address as above) 3. Mr. Stanislaus Max Travasso of Bombay. r/at: 8, Travasso Bungalow(address as above) 4. Mr. Terence Max Travasso of Bombay r/at: 8, Travasso Bungalow(address as above) 5. Mrs. Shirley Cardoz nee Shirley Travasso of Bombay Flat No. 5, House No. 6/6A, Travasso Mansion (address as above) 6. Mrs. June Alvares nee Ms. June Travasso of Bombay r/at: 19, Hind Mansion, Sitladevi Temple Road, Mahim, Mumbai. ....Appellants v/s. Ignatius Pereria of Bombay r/at: Room No. 6, Building No. 14-A, Ground floor, 393, New Girgaonkar Wadi, Sitladevi Temple, Mahim, Mumbai 400 016. 2 ao1271.11 group.sxw 2. Municipal Corporation of Greater Mumbai, G-North Ward, Dadar, Mumbai 400 028. 3. The Executive Engineer, G-North, MBR&R Board, Sonawale Building, Shindewadi, S.A. Palav Marg, Dadar (E), Mumbai 400 014. ....Respondents ALONGWITH Appeal from Order No. 1349 of 2011 WITH Civil Application No. 1759/2011 IN AO No. 1349/2011 Mr. Peter Cajetan Travasso of Bombay Indian Christian inhabitant, r/at: 8, Travasso Bungalow, 393, New Girgaonkar Wadi, Sitladevi Temple Road, Mahim, Mumbai 400 016. 2. Mrs. Jovita Sequira nee Jovita Max Travasso of Bombay Flat No. 8, House No. 6/6A, Travasso Mansion (address as above) 3. Mr. Stanislaus Max Travasso of Bombay. r/at: 8, Travasso Bungalow(address as above) 4. Mr. Terence Max Travasso of Bombay r/at: 8, Travasso Bungalow(address as above) 5. Mrs. Shirley Cardoz nee Shirley Travasso of Bombay Flat No. 5, House No. 6/6A, Travasso Mansion (address as above) 6. Mrs. June Alvares nee 3 ao1271.11 group.sxw Ms. June Travasso of Bombay r/at: 19, Hind Mansion, Sitladevi Temple Road, Mahim, Mumbai. ....Appellants v/s. Rashida M. Hasan of Bombay r/at: Room No. 1A, Building No. 14-A, Ground floor, 393, New Girgaonkar Wadi, Sitladevi Temple, Mahim, Mumbai 400 016. 2. Municipal Corporation of Greater Mumbai, G-North Ward, Dadar, Mumbai 400 028. 3. The Executive Engineer, G-North, MBR&R Board, Sonawale Building, Shindewadi, S.A. Palav Marg, Dadar (E), Mumbai 400 014. ....Respondents ALONGWITH Appeal from Order No. 1350 of 2011 WITH Civil Application No. 1760/2011 IN AO No. 1350/2011 Mr. Peter Cajetan Travasso of Bombay Indian Christian inhabitant, r/at: 8, Travasso Bungalow, 393, New Girgaonkar Wadi, Sitladevi Temple Road, Mahim, Mumbai 400 016. 2. Mrs. Jovita Sequira nee Jovita Max Travasso of Bombay Flat No. 8, House No. 6/6A, Travasso Mansion (address as above) 3. Mr. Stanislaus Max Travasso of 4 ao1271.11 group.sxw Bombay. r/at: 8, Travasso Bungalow(address as above) 4. Mr. Terence Max Travasso of Bombay r/at: 8, Travasso Bungalow(address as above) 5. Mrs. Shirley Cardoz nee Shirley Travasso of Bombay Flat No. 5, House No. 6/6A, Travasso Mansion (address as above) 6. Mrs. June Alvares nee Ms. June Travasso of Bombay r/at: 19, Hind Mansion, Sitladevi Temple Road, Mahim, Mumbai. ....Appellants v/s. Ronnie Noronha of Bombay r/at: Room Nos. 5 & 5A,Building No. 14-A, Ground floor, 393, New Girgaonkar Wadi, Sitladevi Temple, Mahim, Mumbai 400 016. 2. Municipal Corporation of Greater Mumbai, G-North Ward, Dadar, Mumbai 400 028. 3. The Executive Engineer, G-North, MBR&R Board, Sonawale Building, Shindewadi, S.A. Palav Marg, Dadar (E), Mumbai 400 014. ....Respondents ALONGWITH Appeal from Order No. 1351 of 2011 WITH Civil Application No. 1761/2011 IN AO No. 1351/2011 Mr. Peter Cajetan Travasso of Bombay Indian 5 ao1271.11 group.sxw Christian inhabitant, r/at: 8, Travasso Bungalow, 393, New Girgaonkar Wadi, Sitladevi Temple Road, Mahim, Mumbai 400 016. 2. Mrs. Jovita Sequira nee Jovita Max Travasso of Bombay Flat No. 8, House No. 6/6A, Travasso Mansion (address as above) 3. Mr. Stanislaus Max Travasso of Bombay. r/at: 8, Travasso Bungalow(address as above) 4. Mr. Terence Max Travasso of Bombay r/at: 8, Travasso Bungalow(address as above) 5. Mrs. Shirley Cardoz nee Shirley Travasso of Bombay Flat No. 5, House No. 6/6A, Travasso Mansion (address as above) 6. Mrs. June Alvares nee Ms. June Travasso of Bombay r/at: 19, Hind Mansion, Sitladevi Temple Road, Mahim, Mumbai. ....Appellants v/s. Annie Fernandes of Bombay r/at: Room No. 2, Building No. 14-A, Ground floor, 393, New Girgaonkar Wadi, Sitladevi Temple, Mahim, Mumbai 400 016. 2. Municipal Corporation of Greater Mumbai, G-North Ward, Dadar, Mumbai 400 028. 3. The Executive Engineer, G-North, MBR&R Board, Sonawale Building, Shindewadi, 6 ao1271.11 group.sxw S.A. Palav Marg, Dadar (E), Mumbai 400 014. ....Respondents ALONGWITH Appeal from Order No. 1352 of 2011 WITH Civil Application No. 1762/2011 IN AO No. 1352/2011 Mr. Peter Cajetan Travasso of Bombay Indian Christian inhabitant, r/at: 8, Travasso Bungalow, 393, New Girgaonkar Wadi, Sitladevi Temple Road, Mahim, Mumbai 400 016. 2. Mrs. Jovita Sequira nee Jovita Max Travasso of Bombay Flat No. 8, House No. 6/6A, Travasso Mansion (address as above) 3. Mr. Stanislaus Max Travasso of Bombay. r/at: 8, Travasso Bungalow(address as above) 4. Mr. Terence Max Travasso of Bombay r/at: 8, Travasso Bungalow(address as above) 5. Mrs. Shirley Cardoz nee Shirley Travasso of Bombay Flat No. 5, House No. 6/6A, Travasso Mansion (address as above) 6. Mrs. June Alvares nee Ms. June Travasso of Bombay r/at: 19, Hind Mansion, Sitladevi Temple Road, Mahim, Mumbai. ....Appellants v/s. Secrement Fernandes of Bombay r/at: Room No. 3A, Building No. 14-A, Ground floor, 393, New Girgaonkar Wadi, Sitladevi Temple, Mahim, 7 ao1271.11 group.sxw Mumbai 400 016. 2. Municipal Corporation of Greater Mumbai, G-North Ward, Dadar, Mumbai 400 028. 3. The Executive Engineer, G-North, MBR&R Board, Sonawale Building, Shindewadi, S.A. Palav Marg, Dadar (E), Mumbai 400 014. ....Respondents ALONGWITH Appeal from Order No. 1353 of 2011 WITH Civil Application No. 1763/2011 IN AO No. 1353/2011 Mr. Peter Cajetan Travasso of Bombay Indian Christian inhabitant, r/at: 8, Travasso Bungalow, 393, New Girgaonkar Wadi, Sitladevi Temple Road, Mahim, Mumbai 400 016. 2. Mrs. Jovita Sequira nee Jovita Max Travasso of Bombay Flat No. 8, House No. 6/6A, Travasso Mansion (address as above) 3. Mr. Stanislaus Max Travasso of Bombay. r/at: 8, Travasso Bungalow(address as above) 4. Mr. Terence Max Travasso of Bombay r/at: 8, Travasso Bungalow(address as above) 5. Mrs. Shirley Cardoz nee Shirley Travasso of Bombay Flat No. 5, House No. 6/6A, Travasso Mansion (address as above) 6. Mrs. June Alvares nee 8 ao1271.11 group.sxw Ms. June Travasso of Bombay r/at: 19, Hind Mansion, Sitladevi Temple Road, Mahim, Mumbai. ....Appellants v/s. Paul Gracias of Bombay r/at: Room No. 4, Building No. 14-A, Ground floor, 393, New Girgaonkar Wadi, Sitladevi Temple, Mahim, Mumbai 400 016. 2. Municipal Corporation of Greater Mumbai, G-North Ward, Dadar, Mumbai 400 028. 3. The Executive Engineer, G-North, MBR&R Board, Sonawale Building, Shindewadi, S.A. Palav Marg, Dadar (E), Mumbai 400 014. ....Respondents ALONGWITH Appeal from Order No. 1354 of 2011 WITH Civil Application No. 1764/2011 IN AO No. 1354/2011 Mr. Peter Cajetan Travasso of Bombay Indian Christian inhabitant, r/at: 8, Travasso Bungalow, 393, New Girgaonkar Wadi, Sitladevi Temple Road, Mahim, Mumbai 400 016. 2. Mrs. Jovita Sequira nee Jovita Max Travasso of Bombay Flat No. 8, House No. 6/6A, Travasso Mansion (address as above) 3. Mr. Stanislaus Max Travasso of Bombay. 9 ao1271.11 group.sxw r/at: 8, Travasso Bungalow(address as above) 4. Mr. Terence Max Travasso of Bombay r/at: 8, Travasso Bungalow(address as above) 5. Mrs. Shirley Cardoz nee Shirley Travasso of Bombay Flat No. 5, House No. 6/6A, Travasso Mansion (address as above) 6. Mrs. June Alvares nee Ms. June Travasso of Bombay r/at: 19, Hind Mansion, Sitladevi Temple Road, Mahim, Mumbai. ....Appellants v/s. Anthony D’Souza of Bombay r/at: Room No. 3, Building No. 14-A, Ground floor, 393, New Girgaonkar Wadi, Sitladevi Temple, Mahim, Mumbai 400 016. 2. Municipal Corporation of Greater Mumbai, G-North Ward, Dadar, Mumbai 400 028. 3. The Executive Engineer, G-North, MBR&R Board, Sonawale Building, Shindewadi, S.A. Palav Marg, Dadar (E), Mumbai 400 014. ....Respondents ALONGWITH Appeal from Order No. 1355 of 2011 WITH Civil Application No. 1765/2011 IN AO No. 1355/2011 Mr. Peter Cajetan Travasso of Bombay Indian Christian inhabitant, r/at: 8, Travasso Bungalow, 393, New Girgaonkar Wadi, Sitladevi Temple Road, 10 ao1271.11 group.sxw Mahim, Mumbai 400 016. 2. Mrs. Jovita Sequira nee Jovita Max Travasso of Bombay Flat No. 8, House No. 6/6A, Travasso Mansion (address as above) 3. Mr. Stanislaus Max Travasso of Bombay. r/at: 8, Travasso Bungalow(address as above) 4. Mr. Terence Max Travasso of Bombay r/at: 8, Travasso Bungalow(address as above) 5. Mrs. Shirley Cardoz nee Shirley Travasso of Bombay Flat No. 5, House No. 6/6A, Travasso Mansion (address as above) 6. Mrs. June Alvares nee Ms. June Travasso of Bombay r/at: 19, Hind Mansion, Sitladevi Temple Road, Mahim, Mumbai. ....Appellants v/s. Vijay Gaikwad of Bombay r/at: Room No. 2A, Building No. 14-A, Ground floor, 393, New Girgaonkar Wadi, Sitladevi Temple, Mahim, Mumbai 400 016. 2. Municipal Corporation of Greater Mumbai, G-North Ward, Dadar, Mumbai 400 028. 3. The Executive Engineer, G-North, MBR&R Board, Sonawale Building, Shindewadi, S.A. Palav Marg, Dadar (E), Mumbai 400 014. ....Respondents 11 ao1271.11 group.sxw ALONGWITH Appeal from Order No. 1356 of 2011 WITH Civil Application No. 1766/2011 IN AO No. 1356/2011 Mr. Peter Cajetan Travasso of Bombay Indian Christian inhabitant, r/at: 8, Travasso Bungalow, 393, New Girgaonkar Wadi, Sitladevi Temple Road, Mahim, Mumbai 400 016. 2. Mrs. Jovita Sequira nee Jovita Max Travasso of Bombay Flat No. 8, House No. 6/6A, Travasso Mansion (address as above) 3. Mr. Stanislaus Max Travasso of Bombay. r/at: 8, Travasso Bungalow(address as above) 4. Mr. Terence Max Travasso of Bombay r/at: 8, Travasso Bungalow(address as above) 5. Mrs. Shirley Cardoz nee Shirley Travasso of Bombay Flat No. 5, House No. 6/6A, Travasso Mansion (address as above) 6. Mrs. June Alvares nee Ms. June Travasso of Bombay r/at: 19, Hind Mansion, Sitladevi Temple Road, Mahim, Mumbai. ....Appellants v/s. Anthony D’Souza of Bombay r/at: Room No.1, Building No. 14-A, Ground floor, 393, New Girgaonkar Wadi, Sitladevi Temple, Mahim, Mumbai 400 016. 2. Municipal Corporation of Greater 12 ao1271.11 group.sxw Mumbai, G-North Ward, Dadar, Mumbai 400 028. 3. The Executive Engineer, G-North, MBR&R Board, Sonawale Building, Shindewadi, S.A. Palav Marg, Dadar (E), Mumbai 400 014. ....Respondents ALONGWITH Appeal from Order No. 1357 of 2011 WITH Civil Application No. 1767/2011 IN AO No. 1357/2011 Mr. Peter Cajetan Travasso of Bombay Indian Christian inhabitant, r/at: 8, Travasso Bungalow, 393, New Girgaonkar Wadi, Sitladevi Temple Road, Mahim, Mumbai 400 016. 2. Mrs. Jovita Sequira nee Jovita Max Travasso of Bombay Flat No. 8, House No. 6/6A, Travasso Mansion (address as above) 3. Mr. Stanislaus Max Travasso of Bombay. r/at: 8, Travasso Bungalow(address as above) 4. Mr. Terence Max Travasso of Bombay r/at: 8, Travasso Bungalow(address as above) 5. Mrs. Shirley Cardoz nee Shirley Travasso of Bombay Flat No. 5, House No. 6/6A, Travasso Mansion (address as above) 6. Mrs. June Alvares nee Ms. June Travasso of Bombay r/at: 19, Hind Mansion, Sitladevi 13 ao1271.11 group.sxw Temple Road, Mahim, Mumbai. ....Appellants v/s. Rukmani P. Tambe of Bombay r/at: Room No. 6A, Building No. 14-A, Ground floor, 393, New Girgaonkar Wadi, Sitladevi Temple, Mahim, Mumbai 400 016. 2. Municipal Corporation of Greater Mumbai, G-North Ward, Dadar, Mumbai 400 028. 3. The Executive Engineer, G-North, MBR&R Board, Sonawale Building, Shindewadi, S.A. Palav Marg, Dadar (E), Mumbai 400 014. ....Respondents ALONGWITH Appeal from Order No. 1358 of 2011 WITH Civil Application No. 1768/2011 IN AO No. 1358/2011 Mr. Peter Cajetan Travasso of Bombay Indian Christian iinhabitant, r/at: 8, Travasso Bungalow, 393, New Girgaonkar Wadi, Sitladevi Temple Road, Mahim, Mumbai 400 016. ....Appellant v/s. Octaviano A. Fernandes of Bombay r/at: Room No. 7, Building No. 14-A, Ground floor, 393, New Girgaonkar Wadi, Sitladevi Temple, Mahim, Mumbai 400 016. 2. Municipal Corporation of Greater Mumbai, 14 ao1271.11 group.sxw G-North Ward, Dadar, Mumbai 400 028. 3. The Executive Engineer, G-North, MBR&R Board, Sonawale Building, Shindewadi, S.A. Palav Marg, Dadar (E), Mumbai 400 014. ....Respondents Mr. P.S.Dani i/b. Ms. Yasmin Bhansali & co. for the appellants in all matters. Mr. P.M. Pradhan i/b. Ajit Kenjale for respondent no. 1 in AO No. 1349/2011, 1350/2011, 1351/2011, 1352/2001, 1353/2011, 1354/2011 & 1355/2011. Ms. K.K. Soran for respondent no.2 in all the matters. Mr. V.R. Walawalkar i/b. V.S. Kapse for respondent no.1 in AO 1356/11, 1357/11 and 1358/11. Ms. Minal M. Kule i/b. Shri P.G. Lad for resp. no.3 in AO 1354/11, 1355/11, 1356/11 and 1357/11. CORAM: R.M. BORDE, J. 12th December, 2011 JUDGMENT: Heard Counsel for the parties. Admit. With the consent of the parties, appeals are taken up for final disposal. 2. The appellants-original owners of the property are taking exception to the order passed by the trial Court on 9th November, 2011 thereby directing return of plaint for presentation to proper forum. Since the order passed by the trial Court is similar in all the matters, these Appeal from Orders are being disposed of by common judgment. 3. The appellants-original plaintiffs presented suit claiming possession of the suit property for mandatory and permanent injunction. Plaintiffs claim to 15 ao1271.11 group.sxw be owners of the suit property and suit structure consisting of 14 looms in building no. 14A which according to plaintiff was completely gutted down due to fire on 12th December, 2010. The total area of the suit structure is 1400 sq. feet and each of the defendant possesses an area to the extent of 100 sq. feet. It is the contention of the plaintiff that as a result of fire defendants-tenants are rendered homeless. The plaintiffs issued a letter to MHADA and informed that they are willing to bear the expenses of reconstruction of the structure and further requested the defendants 2 and 3 not to issue no objection certificate to defendant no.1 for reconstruction of the structure. According to plaintiffs, the defendant no.1 in each of the matter carried out construction activities which is illegal and not contemplated by provisions of MHADA Act. According to plaintiffs as a result of destruction of structure the tenancy of defendant no.1 came to an end and they do not have any right in respect of the suit land. The defendants also do not have entitlement to unauthorised construction over the suit premises. The plaintiff as such claims a decree of recovery of possession of the land. 4. The defendants appeared and denied the adverse contentions. The defendants raised one preliminary objection as regards jurisdiction of the Civil Court in view of Section 177 of MHADA Act, 1976 so also in view of provisions of Section 33 of the Maharashtra Rents Control Act. The case of the defendants appears to be that the whole structure is not gutted down and they are entitled to carry out the repairs and reconstruction with the permission of MHADA. It is further contended by the defendants that the affected persons applied to MHADA under Section 101 and 102 of MHADA Act for repair and reconstruction of the structure which was destroyed due to fire and MHADA has issued no objection certificate on 22nd June, 2011 in respect of the repairs. According to defendants the suit presented by the plaintiff has become infructuous and is liable to be dismissed. 16 ao1271.11 group.sxw 5. After presentation of the suit initially ad-interim order was passed by the trial Court on an application tendered by the plaintiff which was subject matter of challenge in different appeals before this Court. This Court had directed the trial Court to decide the preliminary objection raised by the defendants in respect of jurisdiction of the Court under Section 9A of the Code of Civil Procedure and the ad-interim order passed by the trial Court was required to be construed as an interim order passed under Section 9A (ii) of the Code of Civil Procedure. The trial Court accordingly considered the preliminary objections and recorded finding to the effect that Civil Court has no jurisdiction to entertain the suit in view of provisions of Section 17 of MHADA Act and directed return of the plaint. It would be appropriate to reproduce the prayers made by the plaintiffs. Prayers (a)(b)& (c) contained in Para 18 of the plaint read thus: “(a) for a decree of this Hon’ble Court against the Defendant No.1 to handover the possession of the land admeasuring 100 sq.ft under the unauthorised structure admeasuring 100 sq. ft, being Room No. 2A on the ground floor, Building No. 14 A, 393, New Girgaonkar Wadi, Sitladevi Temple Road, Mahim, Mumbai 400 016 to the plaintiffs; (b) that the Defendant No.1, be directed by an order of this Hon’ble Court to demolish and/or forthwith remove the unauthorised structure admeasuring 100 sq. ft being Room No. 2A, Ground Floor, New Girgaonkar Wadi, Sitladevi Temple Road, Mahim, Mumbai 400 016. (c) that the Defendant Nos. 2 and 3, be restrained by an Order and permanent injunction of this Hon’ble Court from issuing any NOC to Defendant No.1 for reconstruction of Room No. 2A, Ground Floor on Building No. 14A, New Girgaonkar Wadi, Sitladevi Temple Road, Mahim, Mumbai – 400 016.” 17 ao1271.11 group.sxw 6. The first prayer is in respect of recovery of possession of land admeasuring 100 sq. feet under the unauthorised structure and the second prayer relates to demolition and removal of unauthorised structure for purpose of handing over of possession. The preliminary issues framed by the Court are thus: (i) Whether the suit is barred under Section 171 of MHADA Act? (ii) Whether the present suit is barred by virtue of Section 33 of the Maharashtra Rent Control Act? 7. It is the contention of the appellant that the trial Court has recorded the findings on issue no.2 in favour of the plaintiff and as such some of prayers contained in the plaint are liable to be considered. It was, therefore, not appropriate for the trial Court to direct return of plaint. The plaintiff could have been put to option and could have been asked to make choice as regards the prayers contained in the plaint. It is also contended that even otherwise the order passed by the trial Court directing return of plaint is unsustainable. 8. It is the specific case of the plaintiff that the whole building is destructed due to fire and is not capable of being put to user for occupation of the tenants. It is contended that since the whole building is destructed or demolished, the tenants are not liable to be put in possession of the structures and in absence of structures, the tenants do not have entitlement to the land. It is thus the contention of the plaintiff that the plaintiff is entitled to recovery of possession of land below the structure, the structure having been demolished due to fire. Reliance is placed on the judgment in the matter of Vannattankandy Ibrayi v/s. Kunhabdulla Hajee (2001) 1 SCC 564. The plaintiff argued that the view taken by this Court in Hind Rubber Industries matter that in spite of destruction 18 ao1271.11 group.sxw of the structure, the plaintiffs do have interest in the land below the structure, their tenancy continues, has been specifically over ruled by the Apex Court. My attention is invited to Paragraph 14 and 23 of the Judgment which reads thus:- “14. Learned counsel appearing for the appellant pressed into service the aforesaid two decisions, one in Hind Rubber Industries Pvt Ltd. and second in V. Kalpakam Amma 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 (P) Ltd. was dismissed by this Court and, therefore, the said decision has the seal of approval by this Court. In the case of Hind Rubber Industries(P) Ltd. 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 entering upon the said laid. The defendant raised an objection that the suit filed by the plaintiff in the 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 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; 19 ao1271.11 group.sxw The aforesaid Section provides that in case of destruction of the property by fire, tempest or flood, or violence of any army, the 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 the 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) have any application. 23. In V. Kalpakam Amma the Kerala High Court relying upon 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 superstructure 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 superstructure 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