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2012 DIGILAW 169 (HP)

Shri Satya Parkash v. Karam Chand

2012-04-09

V.K.SHARMA

body2012
JUDGEMENT V.K. Sharma, J. (Oral).The petitioner (landlord) having been successful before the learned Rent Controller, but having failed before the learned FirstAppellate Authority is in revision before this Court. 2.The eviction petition was filed on three fold grounds of arrears of rent, the tenant having ceased to occupy the tenanted premises for a continuous period of twelve months without reasonable cause and the premises are required by the landlord to settle his son in business. It was allowed on the first two grounds as admittedly the ground of bona fide requirement was not available to the landlord under the Himachal Pradesh Urban Rent Control Act, 1987 (in short ‘The Act’) as the tenanted premises are commercial in nature and such ground is available only in respect of residential premises. 3.The case of the tenant was that initially a bigger premises was let out to him by the landlord, who later on requested him to vacate a part thereof to settle his son in business, which request was acceded. According to the tenant, he was carrying on the business of manufacturing and selling of wooden and steel furniture in the premises initially let out to him by the landlord. After he vacated a part thereof on the request of the landlord to enable him to settle his son in business, he shifted the manufacturing component of the business to another premises situate at Anu and continued booking orders in the demised premises. It is also his case that the electricity meter remained in the part of the premises which was vacated by him in favour of the landlord and there is no electricity meter in the demised premises. Thus, the admitted case of the tenant is that he is using the demised premises only for the purpose of booking orders. 4.The parties have led oral and documentary evidence. In the oral evidence, whereas the case of the landlord is that the tenant has ceased to occupy the tenanted premises for the last about 6-7 years prior to filing of the petition, according to the tenant, he is in continuous occupation of the said premises, which are being put to use by him for booking orders. However, admittedly, there is no electricity meter in the premises for the last about 14-15 years. The tenanted premises are also not being used for storing or selling any furniture articles. However, admittedly, there is no electricity meter in the premises for the last about 14-15 years. The tenanted premises are also not being used for storing or selling any furniture articles. RW-3 Shri R.N. Puri, Shops and Commercial Establishments Inspector, has proved Registration Certificate, Ex. RW­3/A, and forms No. 6 and 7, Ex. RW-3/B and Ex. RW-3/C, to show that the tenant was issued Registration certificate in respect of his furniture business in the tenanted premises for the period 1995-96 to 2001-02 for which he had employed three workmen, namely, Madan Lal, Pawan Kumar and Sonu Ram, yet the fact remains that even according to the tenant himself, he had shifted his business of manufacturing of furniture from the tenanted premises to Anu earlier to that and as such these documents do not have much relevance for the present controversy. For the same reason licences, Ex. RW-5/1 to RW-5/7, which pertain to the period 1994-95 to 2000-01 also do not have much relevance. 5.Now arises the question whether the possession of the tenant over the demised premises would amount to occupation thereof for the purposes of the Act or not. In this regard, it shall be apt to make reference to the law laid down by the Hon’ble Apex Court and this Court on the subject. 6.In somewhat similar circumstances in Ram Dass vs. Davinder, (2004) 3 Supreme Court Cases 684, the Hon’ble Supreme Court has held as under vide para 7 of the report:“7.The terms “possession” and “occupy” are incommon parlance used interchangeably. However, in law, possession over a property may amount to holding it as an owner but to occupy is to keep possession of by being present in it. The rent control legislations are the outcome of paucity of accommodations. Most of the rent control legislations, in force in different States, expect the tenant to occupy the tenancy premises. If he himself ceases to occupy and parts with possession in favour of someone else, it provides a ground for eviction. Similarly, some legislations provide it as a ground of eviction if the tenant has just ceased to occupy the tenancy premises though he may have continued to retain possession thereof. The scheme of the Haryana Act is also to insist on the tenant remaining in occupation of the premises. Similarly, some legislations provide it as a ground of eviction if the tenant has just ceased to occupy the tenancy premises though he may have continued to retain possession thereof. The scheme of the Haryana Act is also to insist on the tenant remaining in occupation of the premises. Consistently with what has been mutually agreed upon, the tenant is expected to make useful use of the property and subject the tenancy premises to any permissible and useful activity by actually being there. To answer that the tenant has a right to possess the tenancy premises and he has continued in juridical possession thereof. The Act protects the tenants from eviction and enacts specifically the grounds on the availability whereof the tenant may be directed to be evicted. It is for the landlord to make out a ground for eviction. The burden of proof lies on him. However, the onus remains shifting. Once the landlord has been able to show that the tenancy premises wee not being used for the purpose for which they were let out and the tenant has discontinued such activities in the tenancy premises as would have required the tenant’s actually being in the premises, the ground for eviction is made out. The availability of a reasonable cause for ceasing to occupy the premises would obviously be within the knowledge and, at times, within the exclusive knowledge of the tenant. Once the premises have been shown by evidence to be not in occupation of the tenant, the pleading of the landlord that such non-user is without reasonable cause has the effect of putting the tenant on notice to plead and prove the availability of reasonable cause for ceasing to occupy the tenancy premises.” 7. In Rachhpal Singh vs. Chander Mohan, 1999 (2) SLJ 1311, this Court has held as under vide paras 10, 11 and 18: “.. ... ...10.On appreciation of above evidence, along with the documentary evidence on the record, both the Rent Controller as well as the Appellate Authority have come to the conclusion that the petition has not been able to satisfactorily explain why he had rented another shop at Nan gal Mor and also why there was non-consumption of electricity in respect of the shop in dispute. In this connection reference may be made to para 17 of the order of the Rent Controller. In this connection reference may be made to para 17 of the order of the Rent Controller. Similarly, the Appellate Authority has also come to the conclusion that had the petitioner transacted his business from the shop in dispute, there should have been consumption of electricity. This, however, is belied by the evidence produced by the landlord (respondent), namely, the statement of Charanjit (PW 5), according to him, the reading in the electric meter installed there remained steady at 5640 units rights from May, 1990 till March, 1993. 11.Another circumstances which has been stressed by the Appellate Authority in paragraph 26 of its impugned order is the non-production of the accounts books or any voucher or bill even by the petitioner showing that he had transacted business from the shop in dispute. The learned counsel for the petitioner has taken this Court through the evidence of the parties and has submitted that in the eviction petition the period during which the shop in dispute was lying locked has not been stated. But this argument is untenable inasmuch as in para 18 of the eviction petition containing the grounds it is categorically stated that ‘the tenant has ceased to occupy the shop in dispute for a continuous period of more than 12 months i.e. for the last about more than seven years without any reasonable cause’. It is also stated that the shop in dispute is locked and no business is being run by the petitioner. ..18.Applying the ration of the Supreme Court rulings cited by the learned counsel for the respondent and referred to above, to the facts of the present case, it would be seen that both the Rent Controller as well as the appellate authority, have on a correct appreciation of the evidence on the record came to the conclusion that the petition being a tenant had ceased to occupy the shop in dispute for a continuous period of more than 12 months without reasonable cause as provided under Section 14(2)(v) of the Act. Thus, the revisional power of this Court cannot be exercised to reappraise the evidence, in view of the concurrent findings averred at by both the Courts below. The revisional power of this Court under Section 24(5) of the Act is pari material with the corresponding provisions of the Urban Rent Control Law of the neighbouring States of Punjab and Haryana. Thus, the revisional power of this Court cannot be exercised to reappraise the evidence, in view of the concurrent findings averred at by both the Courts below. The revisional power of this Court under Section 24(5) of the Act is pari material with the corresponding provisions of the Urban Rent Control Law of the neighbouring States of Punjab and Haryana. In these circumstances the rulings cited by the learned counsel for the respondent and referred to above apply with full force to the facts of the present case and consequently no ground whatsoever has been made out for interference against the impugned order of the two Courts below.” 8.Similarly, this Court as held in Shri Pyare Lal Sehgal vs. Smt. Kamlesh Verma, Latest HLJ 2000 (HP) 442, in para 33 as under: “33.The expression “occupation” conveys the idea of continuity, a continuous series of transactions and implies regularity. Further more time is a necessary ingredient which need not be protracted but should not be momentary. Therefore, isolated, casual, semi-occasional or temporary possession will not be “occupation”. Therefore, the expression “occupation” with reference to the context that is as used in Section 14(2)(v) of the act does not mean mere possession but actual user of the premises.” 9. Reliance has been placed on behalf of the tenant on Smt. Bimla Devi vs. 1st Addl. Distt. Judge and others, AIR 1984 Supreme Court 1376. However, suffice to say that the facts of the case relied upon are clearly distinguishable from the facts of this case. The case before the Hon’ble Supreme Court was that the tenant was retaining possession of the tenanted premises by keeping his household articles therein and living in some other premises. In the present case, not even a single article of furniture is shown to have been stored in the demised premises for sale. 10. The case before the Hon’ble Supreme Court was that the tenant was retaining possession of the tenanted premises by keeping his household articles therein and living in some other premises. In the present case, not even a single article of furniture is shown to have been stored in the demised premises for sale. 10. While applying the ratio of the above judicial pronouncements, particularly the law laid down by the Hon’ble Supreme Court in Ram Dass vs. Davinder (supra), it would be seen that in the facts and circumstances of the case in hand and on an over all view of the matter, it can be safely inferred that though the tenant may be retaining possession of the tenanted premises in the strict legal sense of the word, yet he has ceased to occupy the tenanted premises for a period of more than 12 months prior to filing of the eviction petition without reasonable cause. The factum that there is no electricity meter in the tenanted premises for the past many years and the tenant is also not storing or selling any furniture articles in those premises is also a pointer towards the inference that he, in fact, has ceased to occupy the premises. Still further, the tenant has failed to bring on record any documentary evidence to show that he, in fact, is carrying on any business from the tenanted premises by booking orders etc. Such assertion appears to have been made only with a view to show that he has not ceased to occupy the tenanted premises and being a self serving statement, supported only by oral evidence of interested witnesses, cannot be safely relied upon. 11. In view of the above, the petition is allowed. Consequently, whereas the impugned judgment dated 17.02.2005 of the learned Appellate Authority shall stand reversed, the order of eviction dated 03.03.2004, passed by the learned Rent Controller, in favour of the landlord and against the tenant shall stand restored and thereby the petition for eviction shall stand allowed under Section 14(2)(v) of Act, on the ground that the tenant has ceased to occupy the tenanted premises for a continuous period of more than 12 months without any reasonable cause. The ground of eviction due to non­payment of arrears of rent is no more available to the landlord as such arrears are stated to have already been paid. 12. The ground of eviction due to non­payment of arrears of rent is no more available to the landlord as such arrears are stated to have already been paid. 12. The petition, so also pending CMP(s), if any, stand disposed of in the above terms.