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.