Holding

A tenancy of a building governed by the State Rent Act is extinguished upon the building's total destruction, and Section 108(8)(e) of the Transfer of Property Act does not apply; the landlord may recover possession of the land via a civil suit.

Summary

The appellant, a tenant of a shop let under the Kerala Buildings (Lease and Rent Control) Act, 1965, saw the shop completely destroyed by fire. He rebuilt a new shop on the vacant land without the landlord's consent, prompting the landlord to sue for demolition of the new structure and possession of the land. The trial court held that the tenancy subsisted over the land, but the Kerala High Court reversed this, finding that total destruction of the demised building extinguished the tenancy, allowing the landlord to recover possession. The appellant appealed to the Supreme Court, contending that Section 108(8)(e) of the Transfer of Property Act kept the tenancy alive because he had not opted to void it. The Supreme Court held that a lease of a building ceases when the building is wholly destroyed, that Section 108(8)(e) does not apply to premises governed by the State Rent Act, and that the landlord may seek possession of the land through a civil suit. Consequently, the Court dismissed the appellant's appeal and upheld the landlord's right to possession.

Issues considered

Whether total destruction of a building governed by the Kerala Buildings (Lease and Rent Control) Act extinguishes the tenancy.
Whether Section 108(8)(e) of the Transfer of Property Act applies to a tenancy governed by the State Rent Act after such destruction.
Whether a civil court has jurisdiction to entertain a suit for recovery of possession of the vacant land after the building's destruction.

Legislation cited

Constitution of Indias. Article 136
Kerala Buildings (Lease and Rent Control) Act, 1965s. 11, s. 2(1), s. 4, s. 5
Transfer of Property Act, 1882s. 108(8)(e), s. 111

Subjects

tenancy extinguishmentbuilding destructionKerala Buildings (Lease and Rent Control) ActTransfer of Property ActSection 108evictioncivil suit for possessionlandlord-tenant law

Judgment

A VANNATTANKANDY IBRAYI
v.
KUNHABDULLA HAJEE

DECEMBER 13, 2000

B [V.N. KHARE AND S.N. PHUKAN, JJ.]

Rent Control & Eviction:

Kera/a Buildings (Lease and Rent Control) Act, 1965-Sections 2(1)
C & I I-Transfer of Property Act, 1882-Section 108 (B)(e)-App/icability
of-Tenancy right over a building-After complete destruction of the same by
natural calamity- Held, the tenancy right stands extinguished- -Since the
Rent Act is applicable only to the buildings and not to the land--Section
108(B)(e) has no application in case ofpremises governed by State Rent Act.
D Constitution of India, 1950-Article 136-Special leave petition-
Decision in-Dismissing without assigning any reason-Held, has no binding
force on its subsequent decision-Doctrine of precedence.

Words and Phrases- 'Building'-Meaning of-Jn the context of Kera/a
E Buildings (Lease and Rent Control) Act, 1965.

A shop was let out to the appellant-tenant, which was totally destroyed
due to natural calamity and the premises was reduced to a vacant land.
Appellant reconstructed a new shop on the land without the consent of the
landlord-respondent. Landlord filed a suit for mandatory injunction for
F demolition of the new shop and for possession of the land.

Trial Court held that after the destruction of the shop the tenancy in
respect of the land still subsisted and therefore landlord was not entitled to
recover the possession of the shop as the same was constructed without
consent.
G
Respondent-landlord and appellant-tenant, both filed appeal against the
decree, which were dismissed by the first appellate court. Respondent as well
as the appellant filed second appeal to High Court. The appeal of the
Respondent-landlord was allowed while the appeal of the Appellant-tenant was
H dismissed, holding that due to total destruction of the premises by natural
630
VANNA TT ANKANDY IBRA YI v. KUNHABDULLA HAJEE 631
calamity, the tenancy stood extinguished and therefore landlord was entitled A
to the decree of recovery of possession of the land.

In appeal to this Court, the appellant contended that even if the tenanted
shop was totally destroyed, there was no destruction of the tenancy and that
the appellant is entitled to squat on the vacant land by virtue of Section
I 08(8)(e) of Transfer of Property Act, as he had not exercised the option for B
rendering the tenancy void.

Dismissing the appeals, the Court

HELD : 1. 1. When the tenanted shop has been completely destroyed,
the tenancy right stands extinguished as the demise must have a subject matter c
and if the same is no longer in existence, there is an end of tenancy and
therefore, Section 108(8)(e) of Transfer of Property Act has no application
in case of premises governed by State Rent Act when it is completely destroyed
by natural calamities. The tenant has been given an option under Section
108(B)(e) of Transfer of Property Act to render the lease of the premises as D
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 the hope that in future if any shop is constructed on the site
where the old shop existed, he would have the 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 enjoyment. On destruction E
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. (641-B, C, DI

1.2. 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 Transfer of F
Property Act (640-F(

V. Dhanapal Chettiar v. Yesodai Ammal (1979( 4 SCC 214; Pradesh
Kumar Bajpai v. Binod Behari Sarkar. (198013SCR348; K.K. Krishnan v.
M.K. Vijay Ragavan, ( 1980( 4 SCC 88 and Pri1hvichand Ramchand Sablok v. G
S. V. Shinde, (1993( 3 SCC 271, relied on.

Mahadeo Prasadv. Calcutta D and C Company, AIR (1961) Cal. 70;
George v. Verghese, (1979) K.L.T. 859; Thomas v. Moram Mar Baselious
Ougen, AIR (1979) Kerala, 156 and Siddharlhan v. Ramadasan, AIR (1984)
Kerala 181, approved. H
632 SUPREME COURT REPORTS (2000) SUPP. 5 S.C.R.

A Hind Rubber Industries Pvt. ltd. v. Tayebhai Mohammedbhai
Bagasarwal/a, AIR (1996) Bombay, 389 and V Kalpakam Amma v. Mathurama
Iyer Muthurkrishna Iyer, AIR (1995) Kerala 99, overruled.

Simper v. Coomba, (1948) 1 All England Report 306; Woodfalls' Law of
B Landlord and Tenant, 28th Edition, Vol. 1, Page 928 and "The Law of Real
Property" by R.E. Megarry and H.W.R. Wade, referred to.

2. 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
Kera la Rent Act uses the words "part of a building or hut". The words "part
C of the building" do not refer to the land on which the building is constructed
but it refers to any super structure which is part of the main building e.g. in
addition to the main building if there is any 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 the use of
D 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.
1641-F; 643-C, D, El

E V Kalpakam Amma v. Muthuramma Iyer Muthurkrishna Iyer, AIR (1995)
Kerala 99, overruled.

3. The Civil Court was competent to entertain and try the suit filed by
the respondent landlord. The subject matter of tenancy having been completely
destroyed the tenant can no longer use the said shop. Section 11 of the State
F 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. 1644-F, GI

G 4. Any special leave petition dismissed by Supreme Court without giving
a reason has no binding force on its subsequent decisions. (644-D(

CIVIL APPELLATE NOS. 2908-2909 of 1999.

From the Judgment and Order dated 20.5.98 of the Kerala High Court
H m S.A. :-.lo. 327 and 3'34of1997.
VANNATTANKANDYIBRAYI v. KUNHABDULLA HAJEE[KHARE,J.] 633
P. Krishnamurthy, Sr. Adv., Romy Chako and Rajiv Mehta for the A
Appellant.

T.L. V. Iyer, Sr. Adv., Subramoniam Prasad and Ms. Astha Tyagi for the
Respondent.

The Judgment of the Court was delivered by B
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 C
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. l .1990 and there remained only D
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 E
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 IOS(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 F .
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 defendant-appellant, G
filed separate appeals against the decree of the trial court. The First Appellate
Court dismissed both the appeals and affirmed the decree ofthe 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 &ppeal filed by the defendant-
appellant was dismissed. The High Court was of the view fuat on the total H
634 SUPREME COURT REPORTS (2000] SUPP. 5 S.C.R.

A 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
B 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 Le. 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
C 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.

D 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 I 08(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
E tenanted shop has been completely destr:>yed making it impossible for the
tenant to occupy or use it, still the tenancy subsists in favour of the appellant.

In Simper v. Coomba, (1948) I 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.
F 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
G 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
H edition, Vol. I para 1-2056, page 928 - the proposition stated as thus:
VANNATTANKANDY !BRA YI v. KUNHABDULLA HAJEE [KHARE,J .) 635
" A demise must have a subject-matter, either corporeal or incorporeal. A
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."
B.
The last two sentences, i.e. "The mere ............................. and building", "so
demise continues" are based upon the decision by Lord Denning in Simper
v. Coomba, (supra). It appears that in Simper v. 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 C
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 D
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 ceases .......... Thus, it has been
held that the destruction of the property extinguishes the liability for F
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 F
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 G
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 H
636 SUPREME COURT REPORTS (2000] SUPP 5 S.C.R.

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

In Mahadeo Prasadv. Calcutta D & C Company, (A.LR) 1961 Cal.70),
it was held thus:

D "The structure has been demolished and is not in existence, so no
question of tenant's 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."
E
In George v. 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
F 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.
G In Thomas v. 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
H• notwithstanding the destruction of the shop his monthly tenancy continued.
VANNATTANKANDYIBRAY!v.KUNHABDULLAHAJEE[KHARE,J.] 637
The High Court held thus: A
"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 B
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
buildin~ 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 C
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. I08(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 D
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 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 E
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."
F
In Siddharthan v. 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.
G
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. v. Tayebhai Mohammedbhai Bagasarwal/a, AIR
( 1996) Bombay 389 and a Division Bench of Kera/a High Court in V. Kalpakam
Amma v. Muthurama Iyer Muthurkrishna Iyer, AIR (1995) Kerala 99 have H
638 SUPREME COURT REPORTS [2000] SUPP. 5 S.C.R.

A 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
seccnd in V. Kalpakam Amma (supra) and contended that on the destruction
of the building t.he tenancy right of the tenant is not extinguished. It is also
B 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
C fire and the building occupit:d 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 land. 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
D 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
E the suit. While holding so the High Court relied upon Section I08 (B) (e) of
the Act which runs as under:

108(8)(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
F 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
G 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
H to the High Court the rights of the tenant in leased property subsisted even
VANNATTANKANDYIBRA YI v. KUNHABDULLAHAJEE[KHARE,J.) 639
if the leased premises has been destroyed by fire, unless the tenant exercises A
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) B
has any application.

In V. Kalapakam Amma's 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 (8) (e) since the said
Section has no application to such a situation. However, the High Court held C
that the tenant's tenancy continued to exist under the State Rent Act by
virtue of the definition of the "building" in the Act.

In V. Dhanapal Chettiar v. Yesodai Ammal, (1979] 4 SCC 214 the
question arose as to whether the landlord is required to give notice under
Section I 06 of the Transfer of Property Act before filing a petition for eviction D
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 E
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 F
I 06. 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 G
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 H
640 SUPREME COURT REPORTS [2000] SUPP. 5 S.C.R.

A end on the passing of an order or decree for eviction. Until then under
the extended definition of the word 'tenant' under the various State
Rent Acts the tenants continues to be tenant even though the
contractual tenancy has i:>een determined by giving of a valid notice
under Section I 06 of the Transfer of Property Act, 1882."

B In Pradesh Kumar Bajpai v. Binod Behari Sarkar, [1980]; SCR 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
C entitled to seek double protection of the State Rent Act and the Transfer of
Property Act.

In K.K. Krishnan v. M.K. Vijaya Ragavan, [1980] 4 SCC 88 this Court
held that the right conferred on landlord and tenant by virtue of Section I 08
and other provisions of the Transfer of Property Act has no application where
D the premises is governed by the State Rent Act and if the tenant has sought
t9 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 Sab/ok v. S. Y. Shinde, [ 1993] 3 SCC 271] it
E 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.

F 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 I 06, I 08 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
G 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 IOS(B)(e) shows that where a premises has fallen down under the
circumstances mentioned therein the distruction of the shop itself does not
amount to determination of tenancy under Section 111 of the Act. In other
H words there is no automatic detennination of tenancy and it continues to
VANNATTANKANDYIBRAYI v. KUNHABDULLAHAJEE[KHARE,J.] 641

exist. If the tenancy continues, the tenant can only squat on the vacant land A
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 B
Section 108(8)(e) of the Transfer of Property Act to render the lease of the
\I premises as void and avoid the liability to pay monthly rent to the landlord.
,.,,.J \
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 C
• lease of a shop is transfer of the property for its 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
1 tenancy where the property is not in existence. Thus when the tenanted shop

has been completely destroyed, the tenancy right stands extinguished as the D
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
r 10 application in case of premises governed by the State Rent Act when it
iu completely destroyed by natural calamities.

Coming to V. Kalapakam Amma 's decision (supra) wherein it was held E
th.at on the destruction of the tenanted premises, the tenancy continues under
th~· 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
bu ii.dings 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 i·s not intended to govern the vacant land. Section 2 (I) of the Kerala Rent F
Act dllfines 'building' which reads as under:

"2 (I) "building" means any building or hut or part of a building or
hut, 1~t or to be let separately for residential or non-residential purposes
and ncludes -
G
(a) the garden, grounds, wells, tanks and structures, if any,
appurte:iant 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; H
642 SUPREME COURT REPORTS [2000] SUPP. 5 S.C.R.

A (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,

B 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
C 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 libert) 1
D 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 th.e
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 bet •n
agreed upon between the landlord and tenant and in default of an agreemt:nt,
as may be determined under Section 5 of the Act. Section 5 further provi<des
E 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. S.ub-
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 reconstru~tion
and if the landlord requires bona fide to reconstruct the same and he satisfies
F the Court that he has the plan and licence and ability to built. Prov iso to
clause (iv) provides that a landlord who evicts a tenant and dor.:s 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
G 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
H building allotted to him with liability to pay its fair rent. The aforesaid provisions
VANNATTANKANDY IBRA YI v. KUNHABDULLA HAJEE [KHARE, J.] 643

would show that where a building is governed by the State Rent Act the A
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 upon the B
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 C
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
rtifor 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 D
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 E
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 F
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 G
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 H
644 SUPREME COURT REPORTS (2000] SUPP. 5 S.C.R.

A option under Section 108 (B) (e) of the Act the situation that <:merges 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.
B If the argument of appellant's counsel is accepted then it would mean that
although the tenant on the destruction of th~ 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
< \..

C 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 oflaw.
This Court on number of times has held that any special leave petition ....
D 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
E 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
F 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
G 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
possessiori of land. Jn view of the matter the Civil Court was competent to
H entertain and try the suit filed by the respondent landlord.
VANNAlTANKANDY IBRAYI v. KUNHABDULLA HAJEE [KHARE, J.) 645
For the aforesaid reason we are in full agreement with the view taken A
by the High Court. Consequently, the appeals fail and are accordingly dismissed
but there shall be no order as to costs.

K.K.T. Appeals dismissed.