Case: Vannattankandy Ibrayi Vs. Kunhabdulla Hajee

2. 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 into 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 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.

Reasoning: 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 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.25. 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 passe appropriate order.26. 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. In view of the matter the Civil Court was competent to entertain and try the suit filed by the respondent landlord.