BHAGCHAND AHUJA Vs. B DE SOUZA

JUDGEMENT

(1.) This matter has come before the Division Bench to resolve the question if statutory tenancy under the Orissa House Rent Control Act stands determined on the destruction of the house and the tenant ceases to be governed by the Act on the destruction of the house, D. P. Mohapatra, J. in Vishnu Deo Roy v. B. De. Souza and Anr., 65(1988) CLT 522, held that on the demolition of house, statutory tenancy did not stand determined. But at the hearing of this appeal, a statement from the judgment in Second Appeal No. 319 of 1980 decided on 14 -9 -1988 rendered by G. B. Pattnaik, J. to the following effect was relied upon : '...Tenancy can be determined by the landlord not on account of the default of the tenant in the matter of payment of rent but on account of the destruction of the structures itself as well as by service of notice under Section 106 of the Transfer of Property Act ... ' Having regard to the points formulated for decision in the paragraph -6 of the said judgment, it was not necessary to decide if statutory tenancy stood determined on account of the destruction of the house. That observation was pressed into service at the hearing by the Single Judge. Hence, this reference to Division Bench.

(2.) THAT the defendant -appellant was inducted as a tenant in respect of a shed standing over a piece of land, that the said shed was destroyed on the night between 8th and 9th February, 1977 by fire and that notice was issued by the plaintiff -appellant under Section 106 of the Transfer of Property Act requiring the defendant -appellant to quit have been found by the Courts below. It has also been found that the defendant put up a structure over the land after the shed was destroyed by fire. Both the Courts below have directed eviction. They have also held that in view of the destruction of the shed, tenancy stood terminated and thus, Orissa House Rent Control Act had no application and the suit was cognisable by the Civil Court.

(3.) IN V. Sidharthan v. Pattiori Ramadasan, AIR 1984 Kerala 131, it was held that were the subject -matter of a lease like the building was totally destroyed, the tenant was not entitled to squat on the ground where the building stood or construct a new building in its place or require the landlord to put up a new structure. Reliance was placed on woodfall's Law of Landlord and Tenant, where it has been said : 'A demise must have a subject -matter, either 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 Division Bench relied upon some earlier decisions of that very Court and a decision of the Calcutta High Court in Mahadeo Prasad v. Calcutta D. and C. Co. AIR 1961 Cal. 70, where it was held that where the structure had been demolished and was not in existence, so no question of tenant's option arose with regard to the non -existing properties. The same view was taken by a learned Single Judge of the Madras High Court, in K. Mohamed Sheriff v. V.P.S. Mohamed Thasim Sahib, AIR 1964 Madras 453. There it was held that when the structure has been destroyed, the provisions contained in Buildings (Lease and Rent Control) Act was not applicable. That would apply when there was a structure on the property. The learned Judge referred to certain observation from 'The Rent Acts', 4th Edition by Megarry, where the learned author has observed: 'the restriction of the Acts do not inhere in the land after the demolition of the dwelling house, but remains only so long as it is there.' Reliance was placed on a decision of the Calcutta High Court in Kshitish Chandra Mandal v. Shiba Rani Debi and Ors., AIR 1950 Cal. 441 where it was held that the doctrine of frustration contained in Section 56 of the Contract Act also applied to leases and the lease came to an end by destruction by fire.