(1.) The second appeal is by the plaintiff in a suit brought for recovery of possession of a property leased by the plaintiff to the 1st defendant for the purpose of carrying on a petrol trade. The 1st defendant, under some arrangement with the 2nd defendant, Messrs. Burmah Shell Oil Storage and Distributing Company, had installed certain constructions in the schedule property viz.,
(1) Underground petrol tank.
(2) Petrol pump.
(3) Air compressor.
(4) Air tower with gate
(5) A tall sign board.
(6) A banging sign board.
The defence was that the lease was one for a commercial purpose, and as the lessee had constructed buildings for the said purpose, be was entitled to be protected by S.106 of the Kerala Land Reforms Act 1 of 1964) which, is so far as is material, reads as follows:
"106(1). Notwithstanding anything contained in this Act or in any other law, or in any contract, or in any order or decree of court, where on any land leased for commercial or industrial purpose, the lessee has constructed buildings for such commercial or industrial purpose before the 20th May, 1967, he shall not be liable to be evicted from such land, but shall be liable to pay rent under the contract of tenancy, and such rent shall be liable to be varied every twelve years.
Explanation:-- For the purposes of this Section --
(a) 'Lessee' includes a legal representative or an assignee of the lessee, and
(b) 'building' means a permanent or a temporary building and includes a shed.
... .... ... ..."
The defence was upheld by both the courts below and the plaintiff's suit was dismissed.
(2.) Counsel for the appellant contended that the items mentioned above all belonged to the 2nd defendant, and under some arrangement for agency with the 2nd defendant, the 1st defendant had installed the constructions on the land which had been leased. This seems to make little difference. The 'Section only requires that the lessee should have constructed the buildings. Whether he did so by 1eave and license or with permission of some third party, or with the materials of the third party seem to make little difference. In this case, the 1st defendant under some arrangement with the 2nd defendant had installed the structures. That satisfies the requirement of 'construction' within the meaning of the Section; the rest is a matter inter se between the 1st and 2nd defendants.
(3.) It was then contended that the structures above referred to would not be 'buildings' within the meaning of the Section. The meaning of the term 'buildings' has been expounded in the decision of the Supreme Court in State of Bombay v. Venkat Rao ( AIR 1966 SC 991 ). It was observed: --
"The word 'buildings' should, therefore, be given its literal meaning as something which is built. Mr. Bindra's contention, however, is that for a structure to be regarded as a building, it should have walls and a roof and in support of this contention he relied upon the decision in Moir v. Williams, (1892) 1 QB 264. In that case Lord Easher has observed that the term building generally means all enclosures of brick and stone covered by a roof. But he has also made it clear that the meaning to be given to that word must depend upon the enactment in which the word is used and the context in which it is used. There, what was being considered was, the provisions of the Metropolitan Buildings Act, 1855 (18 and 19 Vict. c. 122) which dealt with residential houses. He also relied upon the decision in Morrison v. Commissioners of Inland Revenue, 1915 (I) KB 716 at p. 722. That was a case under the Finance (1909-10) Act, 1910 (10 Niw. 7, c. 8). The observations on which he relied are as follows: --
'It is quite clear that the expression buildings does not mean everything that can by any means be described as built; it means buildings in a more narrow sense than structures because there are other structures of a limited class which under the terms of the sub section may also be taken into consideration.'
Far from these observations helping him they clearly show that the natural or ordinary meaning to be given to the word 'buildings' is something which has been built. That meaning would be modified if the provisions of law justify giving some other meaning. Finally he relied upon the decision in Samuel Small v. Parkway Auto Supplies, 49 Am, LR 1361 at page 1363. The observations relied on by him are as follows:
'The word 'building' in its ordinary sense denotes a structure or edifice including a space within its walls and usually covered with a roof, such as a house, a church, a shop, a barn or a shed.'
... ... ... ...
The word 'building' cannot be held to include every species of erection on land, such as fences, gates or other like structures. Taken in its broadest sense, it can mean only an erection intended for use and occupation as a habitation or for some purpose of trade, manufacture, ornament or use, constituting a fabric or edifice, such as a house, a store, a church, a shed ............' These observations must be considered in the context of the Act which was being construed and in the context in which they were made. There the Court had to consider whether erection of gasoline pumps and construction of underground gasoline tanks and pits with concrete sides sunken in the ground are within a restrictive covenant that no building of any kind shall be erected or maintained within a certain distance of a street. In the particular context buildings had, according to the Court, to be given its popular meaning. That case, therefore, does not assist the appellants."
In Ghanshlam Das v. Debi Prasad ( AIR 1966 SC 1998 ) it was observed:
"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 Websters New International Dictionary the word 'building' has been defined as follows:
'That which is built specify (a) as now generally used a 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 steam boat, ship or other vessel 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 a 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. The question as to what is a 'building' under S.9 of the Act must always be a question of degree a question depending on the facts and circumstance of each case. As Blackburn, J. observed in R. v. Neath Canal Navigation Co., (1871) 40 LJ MC 193 (197),
'The masonry on the sides of a canal is not sufficient to constitute it a 'building'. A London street, though paved and faced with stonework, would yet be 'land'; whilst the Holborn Viaduct would be a 'building!'
The question for determination in the, present case, therefore, is whether the kiln leased out to the appellant is a 'building' within the meaning of S.9 of the Act. It has been found by the first appellate Court that the brick kiln has no site and is not a roofed structure. It has a mere pit with some bricks by its sides. It is also admitted in this case that there was no structure standing on the Bhatta. Upon these facts, it is clear that the brick kiln has no walls and no roof but it is a mere pit dug in the ground with bricks by its side. In the circumstances, we are of the opinion that the brick kiln leased out to the appellant, in the present case, is not a 'building' within the meaning of S.9 of the Act. It follows, therefore, that the title to both the plots Nos. 596 and 597 along with the brick kiln vested in the State Government with effect from July 1, 1952 and the respondents are not entitled to claim any rent from the appellant for the period from October 1, 1952 to September 30, 1953."
A Full Bench of this Court in Govinda Pillai v. Govinda Pillai ( 1971 KLT 87 (FB.)) with respect to S.106 of the Act itself observed thus:
"What is contemplated by S.106 of the Act appears to us to be some investment by the tenant, or the incurring of expense for putting up some permanent structure, which is apt for the industrial or commercial purpose, for which the lease was granted. That would be a detriment suffered by the tenant which; even if not expressly authorised, must have been expected by the owner, having regard to the purpose of the lease."
In the light of these principles, I am of the view that the installation of the structures on the premises amounts to the construction of a building within the meaning of S.106. To hold otherwise appears to be would be destructive of the very object that the Section is intended to serve.
The decision of the courts below is correct. I dismiss the second appeal with costs.;