JUDGMENT
K.R. Vyas, J.
1. This application is filed by the applicant, whoclaims to be the original tenant of the propertiesbearing Municipal Census No. 291/2 of erstwhile TarunCommercial Mills LImited, taken over by the Gujarat StateTextile Corporation Limited (In Liquidation) with aprayer to hand over the vacant and peaceful possession ofthe property by directing the Official Liquidator toremove the seal applied thereon.
2. It is the case of the applicant that as a ‘Karta’of Maneklal Raychand Shah, HUF, had taken on rent a Shopfrom a Textile Mill which was predecessor in title ofTarun Commercial Mills Limited at monthly rent of Rs.15/. It is the case of the applicant that he has paidrent from time to time to the said owner and thereafterto Tarun Commercial Mills Limited. The said Undertakingwas nationalised and the Gujarat State TextileCorporation Limited took over the whole undertaking. Asa result of which, the shop which was owned by the TarunCommercial Mills Limited came to be owned by GujaratState Textile Corporation Ltd. and the applicant has infact paid rent to GSTC also from time to time. Itappears that GSTC Ltd. became a sick company and areference was made to the Board of Industrial andFinancial Reconstruction (BIFR) under the provisions ofthe Sick COmpanies (Special Provisions) Act. It furtherappears that the BIFR opined that the GSTC Limiteddeserves to be wound up. Accordingly, this Court haspassed an order of winding up of GSTC Limited, andconsequently, the Official Liquidator has taken over thepossession of all the assets and undertakings of GSTCLimited. In the process of taking over of the saidUndertaking the Official Liquidator sealed the shop whichwas in possession of the applicant and, therefore, thepresent application is filed.
3. The Official Liquidator has submitted a report on26.8.1998 pursuant to the order dated 22.7.1998. It isstated therein that he had gone to the premises inquestion for the purpose of spot inspection with thecompany of Managing Director of G.I.D.C. (Agent of theOfficial Liquidator) and the ex-Director Shri I.A.Vohra. They have observed that the premises in questioncollapsed during the rainy season, alongwith otheradjacent shops. On making enquiry they found out thatthe shop in question collapsed on 6.6.1998. They haveobserved that there is no roof or walls and the entirepremises has collapsed and only some debris and about 9gurdles (iron rods) in rusted conditions are lying at thesite of the 3 collapsed shops. In view of thesecircumstances, it was observed that there was no questionof opening the seal of the Official Liquidator andhanding over the possession of the premises to theapplicant after inspection.
4. Regarding the merits of the case, the OfficialLiquidator has requested the Ex-Director of the G.S.T.C.Ltd. ( In Liquidation )to say in the matter.Accordingly, Shri I.A. Vohra, Ex-Director of the Company(In Liquidation) by his letter dated 3.10.1997 informedthe Official Liquidator that the Tarun Commercial Millsis one of the units of the G.S.T.C. Ltd. The plant andmachinery and structure have already been sold and thesame was demolished and only land remains to be sold.There are some tenant on the western side of the Mills.It is further stated in the said letter that the presentapplicant is one of the tenant and is in default ofpayment of rent from October, 1979 till date.
5. In view of the said fact, the Official Liquidatorhas submitted that at the first instance the applicantmay be directed to pay the arrears of rent of thepremises in question to the Official Liquidator for theperiod from October,1979 to till date, and since thepremises in question is now lying collapsed there is nopurpose in allowing the applicant to continue as tenant.
6. In view of this factual position, it is clearthat the applicant is a tenant of the shop, situated onthe western side of the Mills, however, he is in defaultof payment of rent from October, 1979 till the date. Thereceipt produced by the applicant issued by the TarunCommercial Mills Limited are prior to 1979. Thereafterno receipts of the payment of rent is produced. Mr.Shaikh after inviting my attention to the payment of Rs.725/ alleged to have been made to GSTC by Demand Draft on1.11.1991 contended that the said transaction would go toshow that the applicant has paid the amount of rent up to1991. In absence of any receipt issued by the GSTCLimited, it is not possible for me to hold that the saidpayment was towards the rent up to 1991. In substance,there is no evidence regarding payment of rent from 1979up to 6.6.1998 when the premises collapsed. In view ofthis, it can safely be concluded that the applicant is atenant in arrears. Mr. Shaikh submitted that theapplicant is prepared to pay all the arrears of rent ofthe premises in question provided the possession of thesuit premises is restored to him. From the reportsubmitted by the Official Liquidator, it is clear thatthe suit shop is collapsed as back as on 6.6.1998. Thereis no roof or walls except some debris,and no structureis there and, therefore, there is no question of handingover the possession of the premises to the applicant.Mr. Shaikh invited my attention to the decision of thisCourt in the case of Tribhovandas Purshottamdas Thakkarvs. Chimanlal Keshavlal Rana & Ors., reported in 12 GLR,p. 556. In the said decision, this Court has laid downthat the doctrine of frustration does not ordinarilyapply to leases even after premises are destroyed. Therelationship of landlord and tenant continue to existand, therefore, tenant entitled to restoration ofstatus-quo. That was the case, wherein the landlorddemolished the part of the premises belonged to thetenant in his absence and constructed a building. Insubstance, the landlord took advantage of absence of thetenant and took forcible possession for which morecriminal cases were filed between the parties. That isnot the case here. The premises in question isdemolished because of heavy rain, an act of God. In myopinion, the doctrine of frustration will certainly applyto the facts of the case. Sec. 108 Cluase (e) of theTransfer of Property Act lends support to my view, whichprovides as under:
“If by fire, tempest or flood, or violence of anarmy or of a mob, or other irresistible force,any material part of the property be whollydestroyed or rendered substantially andpermanently unfit for the purposes for which itwas let, the lease shall, at the option of thelessee, be void.”
7. The aforesaid provisions makes it clear thatwhere, amongst others, the demised premises have beenwholly destroyed by an act of God or by an act of Stateor by any other factor or cause beyond human control thelease between the parties subsists unless the lesseechooses to avoid it. If the circumstances beyond humancontrol such as those specified in clause-(e) of sec. 108 the demised premises are destroyed and yet if thelessee chooses not to avoid the lease cannot beavoided.In the facts and circumstances of the case,thedemised premises which were in possession of theapplicant is destroyed by any reason beyond human controland, therefore, the lease or the relationship of landlordand tenant between the applicant and the company came toan end. In view of this finding recorded by me, I am ofthe view that the decision cited by Mr. Shaikh in thecase of Tribhovandas Purshottamdas Thakkar (supra) is notapplicable to the facts of the case. As observedearlier, that was a case the landlord demolished thewhole premises which was in possession of the tenant andreconstructed the entire building new in absence of thetenant without determining his tenancy and withoutrecovering possession from him in the manner provided bylaw and thus, took law in his own hands and unilaterallydestroyed tenant’s right to immovable property renderingthe tenant helpless. The present case is distinct fromthe facts of the said case.In view of what is discussedabove, I see no merits in the present application.
8. The application stands rejected. There shall beno order as to costs.