Thangakani Ammal and Others vs A.K.A. Khaja Mohideen Sahib and Another

Nainar Sundaram, J.—This revision is directed against the orders of the Appellate Authority under the Tamil Nadu Buildings (Lease and

Rent Control) Act (18 of 1960), hereinafter referred to as the Act. Certain material facts have got to be stated so that the questions involved in the

case may be appreciated and considered in the proper light. One S.P. Periasami Nadar was the owner of the property concerned. He leased out

the property concerned to A.K.A. Khaja Mohideen Sahib and A.K.A. Mohammed Ismail Sahib, the respondents in this revision. According to

the said Periasami Nadar, respondents 1 and 2 herein committed default in the payment of the rents, they sublet portions of the property to

Chelladurai Nadar and Jaya Pandia Nadar without his written consent and he required the property for demolition and reconstruction. On these

grounds, the said Periasami Nadar instituted proceedings for eviction under the Act in H.R.C.O.P. No. 43 of 1973 on the file of the Principal

District Munsif (Rent Controller,) Tirunelveli. Respondents 1 and 2 herein contested the petition for eviction and their main contention was that the

property demised to them is not a ''building'' within the meaning of the Act and the proceedings instituted under the Act were wholly incompetent.

Chelladurai Nadar and Jaya Pandia Nadar, who were arrayed as respondents 3 and 4 before the Rent Controller, were content to plead that they

had been in possession of the concerned portions for the last six years to the knowledge of Periasami Nadar and it is not tenable for him to make

sub-letting a ground for evicting the respondents. During the pendency of H.R.C.O.P. No. 43 of 1973, Periasami Nadar died and his legal

representatives were brought on record. Chelladurai Nadar, the third respondent before the Rent Controller also died and his legal representatives

were brought on record. On an appraisal of the materials on record, the Rent Controller came to the conclusion that respondents 1 and 2 herein

took on lease only a ''building'' within the meaning of the Act, that the requirement of the landlords of the building for the purpose of demolition and

reconstruction is bona fide and that the sub-letting is without the written consent of the landlords. However, the Rent Controller held against the

landlords on the question of wilful default. On the basis of the findings rendered by him, the Rent Controller ordered eviction of the respondents

before him. A.K.A. Khaja Mohideen Sahib and A.K.A. Mohammed Ismail Sahib, respondents 1 and 2 before the Rent Controller chose to file an

appeal, C.M.A. No. 7 of 1974 to the Appellate Authority (Principal Subordinate Judge). Tirunelveli, against the orders of eviction passed by the

Rent Controller. The Appellate Authority considered the questions involved after allowing an application, I.A. No. 45 of 1974 whereby an

unregistered lease document was sought to be admitted as additional evidence. The said document was admitted and marked as Ex. B-14. The

Appellate Authority mooted the main question for consideration as to whether the subject-matter of demise between the parties is a ""building''

within the meaning of the Act and found the case in favour of the tenants. All the other questions involved, viz., with regard to the requirement of

the premises for demolition and reconstruction practically lost their significance because the grounds for eviction could be urged only if the property

demised is a ''building'' within the meaning of the Act. However, the Appellate Authority found the points against the landlords. The present

revision is filed against the orders of the Appellate Authority.

Mr. K. Parasaran, learned counsel appearing for the petitioners-landlords, submits that the property demised in the present case would come

within the definition of ''building'' under the Act. Though it was pleaded earlier that covered structures were leased out to the tenants for the

purpose of conducting a timber shop therein and that subsequently, at the request of the tenants, the roof was removed for the purpose of raising

the walls and putting up a new roof by them to suit the convenience of the tenants, it has been now conceded that what was demised was a site

with a structure 24'' x 12�'' x 9'' or only walls and certain windows and a door and there was no roof over such structures. According to Mr. K.

Parasaran, learned counsel for the petitioner, considering the purpose of the demise, these structures would constitute a ''building'' within the

meaning of the Act. Learned counsel would rely on the dictum of the Supreme Court in Ghanshiam Das v. Debi Prasad (1966) 3 S.C.R. 875=

(1966) 2 S.C.J. 749=A.I.R. 1998 S.C. 1966. In that case, the Court was concerned with the provisions of the U.P. Zamindari Abolition and

Land Reforms Act and it was held that a brick kiln with no walls and no roof, but a mere pit dug in the ground with tome bricks by its sides is not a

''building'' within the meaning of S. 9 of the U.P. Zamindari Abolition and Land Reforms Act. The discussion of the Court on the question will be

better appreciated if the relevant passage is extracted--

The word ''building'' has not been defined in the Act and must, therefore, be construed in its ordinary grammatical sense unless there is something in

the context or object of the statute to show that it is used in a special sense different from its ordinary grammatical sense. In the Webster''s New

International Dictionary the word building'' has been defined as follows: ""That which is built special; (a) as now generally used as fabric or edifice,

framed or constructed, designed to stand more or less permanently and covering a space of land for use as a dwelling, store-house, factory, shelter

for beasts or some other useful purpose. Building in this sense does not include a mere wall, fence, monument, hoarding or similar structure though

designed for permanent use where it stands, nor a steamboat, ship or other vessal of navigation."" ""From this definition it does not appear that the

existence of a roof is always necessary for a structure to be regarded as a building. Residential buildings ordinarily have roofs but there can be non-

residential building for which a roof is not necessary. A large stadium or an open air swimming pool constructed at a considerable expense would

be a building as it is a permanent structure and designed for a useful purpose.

It is quite clear from the above that the stress is on the purpose for which the structures are put and demised. If the structures put up and demised

will serve a useful purpose, it may be possible to hold that the structures demised could come within the meaning of ''building'' under the Act.

The question as to what would constitute a ''building'' under special statutes has been considered in the past in a number of judicial precedents,

in proceedings under the Madras Buildings (Lease and Rent Control) Act 15 of 1946. A Division Bench of this Court consisting of Satyanarayana

Rao and Raghava Rao, JJ., in Irani v. Chidambaram Chettiar 65 L.W. 713=1952-2 M.L.J. 221 had to consider a case where the subject-matter

of the lease consisted of (1) the site underneath the actual building known as ""Gaiety Theatre"" which belonged to the lessee: (2) the small sheds at

one end of the premises and (3) all the vacant space within, exclusive of the theatre and the sheds; and the question arose as to whether what was

let out is a ''building'' within the definition of the statute., Satyanarayana Rao, J., considered the question as follows:

A ''building'' is defined in the Act as meaning 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 and out-houses, 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. This definition is not very helpful in arriving at the meaning of the word ''building'' as it states that a building means any building. But, what is a

building ? If we take the derivative meaning of the word ''building'', it means that which is built. It may be a wall; it may be a structure not fit for

human habitation; it may be anything and not necessarily a house. The legislature could not have intended to use the word in its derivative sense as

it is clear from the object of the Act, which was to prevent unreasonable eviction of tenants from residential and non-residential buildings and to

control the rents. The inclusion of a hut in the definition and the other indications in sub-clauses (a) and (b) point to the fact that the word is used to

denote a structure of the nature of a house intended for human habitation or for using it for non-residential purposes such as carrying on a business.

The word ''building'' is used in several Acts, English and Indian, enacted for different objects and the learned counsel on both sides drew our

attention to some of the decisions. Lord Esher, M.R. gives the definition of a building as an ""inclosure of brick or stone work covered in by a roof.

Having regard to the Indian conditions, the inclosure need not necessarily be of brick or stone work. It may consist of mud walls; but, it must. I

think be covered in by a roof. I think this definition accords with the ordinary conception of a building.

......Dealing with the same word under the Calcutta Municipal Act, S.151, the Calcutta High Court held in Corporation of Calcutta v. Binoy

Krishna Bose 1911-15 C.W.N. 84 that a boundary or compound wall was not a ''building'' and that the word was not used in the Act and should

not be interpreted in its derivative sense.

(Page 717)

Raghava Rao, J., dealt with the question by a separate judgment and the approach of the learned Judge on the question involved is better

appreciated if the relevant passage in his judgment is extracted.

In my opinion the word ''building'' is a more generic word than house. A building need have no roof while a house must have. A house is,

according to Tomlin''s Law Dictionary, a place of dwelling or habitation which means ordinarily that there must be a roof for it which provides

shelter. Of course neither building nor house need be of brick or stone as I have already remarked. It seems to me that even if ''building'' generally

indicated a structure of brick or stone and with a roof as defined by Lord Esher M.R., it may be that definitions under special Acts contemplate a

building without a roof and a building not made of brick or stone....................''Building''. In the etymological sense means ''anything built'' and there

is no reason why if that is the intendment of the legislature in connection with a particular enactment, compound walls with the space inside may not

be regarded as a building.

(pages 727-728)

In Official Trustee of Madras v. United Commercial Syndicate 68 L.W. 56 a Division Bench of this Court consisting of Rajamannar, C.J., and

Rajagopala Ayyangar, J., was concerned with a property which consisted of a site enclosed by compound walls on all the four sides with two

latrines. The question arose as to whether the property will constitute a ''building'' within the meaning of the Madras Buildings (Lease and Rent

Control) Act. The learned Judges followed the dictum of the earlier Bench in Irani v. Chidambaram Chettiar 65 L.W. 713=1952-2 M.L.J. 221

referred to above and held that mere compound walls enclosing a space cannot in any view of the accepted interpretation of the word ''building''

be considered as a ''building'' within the meaning of the Act. The learned Judges held that even if the walls and the latrines were included within the

scope of the lease, the requirements of the provisions of the Act would not be satisfied.

A similar question arose for consideration by Jaghanmohan Reddy, J., under the Madras Estates Abolition and Conversion into Ryotwari Act

(26 of 1948) in V. Chandramani v. Collector of Visakhapatnam AIR 1957 A.P. 367 and the learned Judge of the Andhra Pradesh High Court,

after referring to the ratio decidendi of the Bench of this Court in Irani v. Chidambaram Chettiar 65 L.W. 713=1952-2 M.L.J. 221 observed as

follows:

From the various authorities cited therein it appears to me that any superstructure which is intended for the use and occupation as a habitation or

for purposes of trade, manufacture or commerce or some other structure constituting a fabric or edifice will be deemed to be a building. A mere

wall or a fence or a gate enclosing lands certainly cannot come under that definition. From this point of view the market has not only a compound

wall enclosing a site but it has structures which can be utilised for commercial purposes viz., market. Therefore it comes within the definition of

building under S.18(5) of the Estates Land Act.

(Page 869)

Ismail, J., in Abdul Azeez and Sons. v. Mavali Rajan S.A. No. 1150 of 1974, d. 7th January 1977 was concerned with a case arising under

S.30 of the Act. In that particular case, after surrender of possession of