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Himachal Pradesh High Court · body

2012 DIGILAW 911 (HP)

Som Dutt Dhiman v. Mandir Arya Samaj

2012-12-01

DEV DARSHAN SUD

body2012
Judgment Dev Darshan, J. This revision petition under Section 24(5) of the H.P. Urban Rent Control Act, 1987 (hereinafter referred to as the Act) has been preferred by the tenants/petitioners against the order of the learned Appellate Authority-I, Sirmaur District at Nahan, H.P. affirming the order of eviction of the petitioners/tenants from the demised premises which consists of a shop belonging to the respondent/landlord passed by the learned Rent Controller (I), Sirmaur District at Nahan. 2. The eviction petition under Section 14 of the Act was instituted by the landlord/respondent through its Secretary on the grounds (a) that the tenant is in arrears of rent and (b) that he has ceased to occupy the suit premises continuously for a period of 12 months prior to the institution of the petition without any reasonable cause. These averments were denied. The parties went to evidence on three settled issues which included determination of the arrears of rent, question as to whether the tenant had ceased to occupy the premises and particularly on the maintainability of the petition. 3. On the issue of arrears of rent, PW1 Shri Darshan Lal proved on record payment of rent upto 31.3.2002. thereafter there was no payment. Rent of Rs.40/- per month was admitted by the tenant and it was pleaded that the rent from April, 2002 to July, 2002 had been sent by money order but postal authorities had not delivered this money to the landlord. The learned Rent Controller holds that the rent was due from 1.4.2002 to 31.10.2003, that is for 19 months which works out to Rs.760/- and holds that a sum of Rs.51/- was due as interest. On the question of ceasing to occupy, the learned Rent Controller on the evidence of PW1 Shri Darshan Lal and PW3 Shri Ajay Kakkar, who was a neighbour of the tenant/petitioner holds that the premises were not occupied by the tenant continuously for a period of twelve months prior to the institution of the petition and that no reasonable cause for not doing so was proved on the record. PW2 Shri Rakesh Kumar from the Electricity Board proved on record Ex. P-2 which proved that the electricity meter was installed in the disputed premises. PW2 Shri Rakesh Kumar from the Electricity Board proved on record Ex. P-2 which proved that the electricity meter was installed in the disputed premises. There was reading of 1895 units on 11.5.2001 and thereafter there was no consumption of electricity between 11.05.2001 to 17.07.2001 as also when the meter reader again visited the premises in September, 2001, November, 2001, January, 2002, March, 2002, May, 2002 and July, 2002 when the words P.L. (premises locked) were recorded. The petition was filed on 18.7.2002. Section 14 (2)(v) of the Act provides:- “……………………………………………………………………. S. 14(2) (v). that the tenant has ceased to occupy the building or rented land for a continuous period of twelve months without reasonable cause; the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application; Provided that the Controller my give the tenant a reasonable time for putting the landlord in possession of the building or rented land and may extend such time so as not to exceed the three months in the aggregate.” 4. On the evidence on record, the learned Rent Controller holds that the relevant period as required was from 18.7.2001 to 17.7.2002 and during this period the disputed premises were found locked and there was no consumption of electricity. The defence of the petitioner/tenant was that he used to close his shop in the early hours of the evening and it was for this reason that there was no electricity consumption. This plea was rejected by the learned Rent Controller on the ground that some electricity must have been consumed by the tenant for the use of fan and heater etc. during the day time depending on the season. The shop in question was being used by the tenant for manufacturing and selling of the furniture articles. He admitted that he had an electric drill and planer used in the shop and if these instruments were being used by him for working then in that eventuality some electricity would be consumed which was not the proved case of the tenant. No evidence was produced on record to show that the raw material was purchased for manufacturing furniture items or any accounts evidencing the sale of furniture. No evidence was produced on record to show that the raw material was purchased for manufacturing furniture items or any accounts evidencing the sale of furniture. Two other points taken by the tenant/petitioner were that he was being helped by his grand-son and son in the running/managing the business. His son who was earlier employed and had retired used to fabricate the furniture. But strangely enough neither his son nor his grand-son were produced to support this allegation. The witness produced by the tenant/petitioner had stated that he used to get the furniture manufactured/fabricated from carpenters engaged on daily basis. It is also the case of the tenant/petitioner that he was not keeping good health and in this event he used to open his shop casually and not regularly. There was no evidence on record to establish these facts. The petition was accordingly allowed and eviction order passed. In appeal, the learned Appellate Authority affirmed these findings. 5. I have heard learned counsel appearing for the parties and have also gone through the entire record. Learned counsel appearing for the petitioners/tenants submits that both the learned Courts below were incorrect in appreciating the evidence and not considering the proved facts on record. I find that one of the ground taken and urged even before the learned Appellate Authority is regarding the consumption of electricity which according to the learned counsel appearing for the petitioner proves that he was actually in occupation. The point was that when PW2 Rakesh Kumar was cross-examined he stated that as many as 1935 units were consumed in December, 2001 but the figure was wrongly written as such because the extract Ex. P2 which was produced on record shows that from May, 2001 to July, 2002 it remained as 1895. It was only in September, 2002 when the figure touched 1935 units and not before that. It is a clerical mistake of which no benefit could be derived by the petitioner/tenant. What I find form extract Ex. P2 is that reading of 1875 units remained constant from May, 2000 to April, 2001 and in May, 2001 the figure was 1895 unit and thereafter upto July, 2002 it remained as 1895 and thereafter from September, 2002 the reading is 1935 units upto December, 2002 and in January, 2003 it was 1975 units. This submission, therefore, cannot be accepted. P2 is that reading of 1875 units remained constant from May, 2000 to April, 2001 and in May, 2001 the figure was 1895 unit and thereafter upto July, 2002 it remained as 1895 and thereafter from September, 2002 the reading is 1935 units upto December, 2002 and in January, 2003 it was 1975 units. This submission, therefore, cannot be accepted. What has to be considered in terms of the statutory provisions of the Act is that it is 12 months preceding the filing of the petition which would be July, 2001 to July, 2002 and during this period again the reading remained constantly 1895 units. This is not the only factor which has been considered by the learned Courts below but there was no evidence as to whether any commercial activity was carried out in the premises. The defence of the tenant was that his son and grand son were helping him in manufacturing and selling of the furniture whereas witness of the tenant had stated that the work was being performed by hired carpenters on daily wages but none of them has been produced in evidence. There was no oral or documentary evidence to establish these allegations. The law on this point is well settled by this Court in C.R. No.159 of 2000, titled Shan Mohd. Versus Mohinder Pal and others, decided on 27th August, 2012 wherein I have considered the law in extenso on the question of ceasing to occupy. 6. In Vipin Kumar versus Raj Kumar, 2010(3) Shim.LC 168 this Court holds that when the tenant was failed to prove that he was conducting any business from the premises he is liable to be ejected. 7. In Payre Lal Sehgal versus Smt. Kamlesh Verma, 2000(2) Cur. L. J. (H.P.) 77 this Court holds: “33. The expression occupation conveys the idea of continuity, a continuous series of transaction and implies regularity. Furthermore 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 more possession but actual user of the premises.” (p.84) 8. In Dunlop India Ltd. Vs. 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 more possession but actual user of the premises.” (p.84) 8. In Dunlop India Ltd. Vs. A.A. Rahna and another, (2011)5 SSC 778 the Supreme Court while considering the provisions of Kerla Buildings (Lease and Rent Control) Act, 1965 and interpreting Section 11(4)(v) holds: “13. The High Court referred to the expression “reasonable cause” used in Section 11(4)(v) and the judgment in Paulina Joseph v. Idukki District Wholesale Coop. Consumer Stores Ltd. (2006)1KLT 603, and observed: “interpreting the scope and meaning of ‘reasonable cause’ provided in Section 11(4)(v) of the Act a Division Bench of this Court in Paulina Joseph v. Idukki District Wholesale Coop. Consumer Stores Ltd., held that if there is a plausible explanation to the question why the business was not run in the premises continuously, it may be a relevant fact in considering whether there was reasonable cause for cessation of occupation. But it is held that existence of such reasonable cause depends on the facts and circumstances of each cases. It is further held that the occupation of the building depends on the purpose for which it is let and the purpose for which it is used. The nature of the business and the requirement of the physical presence or otherwise of the tenant in the building for the conduct of the business is a relevant fact. But in this case on considering the facts of the requirement of physical presence is highly essential to observe that the tenant Company is continuing in occupation, because the tenanted premises is occupied as their office and godown. The burden to prove that there is reasonable cause for non-occupation is solely on the tenant when it is proved that there is cessation of physical occupation. The question to be examined is whether on the facts of this case the tenant was successful in proving any such reasonable cause. The rent control petitions were filed during the years 2002 and 2003. It has come out in evidence that the tenant ceased to occupy the premises since last so many years from the date of filing of the rent control petition itself. The rent control petitions were filed during the years 2002 and 2003. It has come out in evidence that the tenant ceased to occupy the premises since last so many years from the date of filing of the rent control petition itself. Further, it has come out in evidence that since the lapse of more than six years from filing of rent control petitions, still as on today, it is conceded that the Company could not resume business of physical occupation at the tenanted premises. Therefore we have no hesitation to hold that the tenant was not successful in establishing any genuine intention or hope of reviving the physical occupation nor was it successful in establishing any reasonable cause for the cessation of occupation.” 21. The word “occupy” used in Section 11(4)(v) is not synonymous with legal possession in technical sense. It means actual possession of the tenanted building or use thereof for the purpose for which it is let out. If the building is let out for residential purpose and the tenant is shown to be continuously absent from the building for six months, the Court may presume that he has ceased to occupy the building or abandoned it. If the building is let out for business or commercial purpose, complete cessation of the business/commercial activity may given rise to a presumption that the tenant has ceased to occupy the premises. In either case, legal possession of the building by the tenant will, by itself, be not sufficient for refusing an order of eviction unless the tenant proves that there was reasonable cause for his having ceased to occupy the building. 22. The initial burden to show that the tenant has ceased to occupy the building continuously for 6months is always on the landlord. He has to adduce tangible evidence to prove the fact that as on the date of filing the petition, the tenant was not occupying the building continuously for six months. Once such evidence is adduced, the burden shifts on the tenant to prove that there was reasonable cause for his having ceased to occupy the tenanted premises for a continuous period of six months. 23. Once such evidence is adduced, the burden shifts on the tenant to prove that there was reasonable cause for his having ceased to occupy the tenanted premises for a continuous period of six months. 23. No strait-jacket formula can be evolved for determining as to what is the reasonable cause and each case is required to be decided keeping in view the nature of the lease, the purpose for which the premises are let out and the evidence of the parties. If the building, as defined in Section 2(1), is let out for industrial or commercial/business purpose and the same is not used for the said purpose continuously for a period of six months, the tenant cannot plead financial crunch as a ground to justify non occupation of the building unless cogent evidence is produced by him to prove that he could not carry on the industrial or commercial business activity due to fiscal reasons which were beyond his control. If the tenant does not use the building for the purpose for which it is let out, he cannot be said to occupying the building merely because he has put some furniture or articles or machinery under his lock and key. 24. At this stage, we may notice some precedents which throw some light on the true interpretation of the expressions “occupy” and “reasonable cause” used in Section 11(4) (v) of the 1965 Act. In Ram Dass v. Davinder (2004)3 SCC 684 this Court interpreted Section 13(2) (v) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 in terms of which an order of eviction could be passed against the tenant if he is shown to have ceased to occupy the premises continuously for a period of 4 months without reasonable cause. Respondent Davinder was tenant in the shop belonging to appellant-Ram Dass. The appellant filed a petition for eviction of the respondent on the ground that he had ceased to occupy the shop for a continuous period of 4 months without any reasonable cause. The Rent Controller analysed the pleadings of the parties and evidence produced by them and held that the appellant has been able to prove that the respondent had ceased to occupy the premises for a continuous period for more than 4 months and there was no reasonable cause for doing so. The Rent Controller analysed the pleadings of the parties and evidence produced by them and held that the appellant has been able to prove that the respondent had ceased to occupy the premises for a continuous period for more than 4 months and there was no reasonable cause for doing so. The plea of the respondent that he had kept the shop closed intermittently due to sickness was not accepted by the Rent Controller. The Appellate Authority, on an independent evaluation of the evidence, confirmed the finding of the Rent Controller. The High Court allowed the revision filed by the respondent and set aside the orders of the Rent Controller and the Appellate Authority. This Court reversed the order of the High Court and restored the one passed by the Rent Controller. 25. The Court highlighted the distinction between the terms “possession” and “occupy” in the context of Rent Control Legislation in the following words (Ram Dass case (2204)3 SCC 684, SCC pp. 687-88): “7. The terms “possession” and “occupy” are in common parlance used interchangeably. However, in law, possession over a property may amount holding it as an owner but by 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 through 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 p[remises to any permissible and useful activity by actually being there. To the landlord’s plea of the tenant having ceased to occupy the premises it is no 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. To the landlord’s plea of the tenant having ceased to occupy the premises it is no 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 keeps shifting. Once the landlord has been able to show that the tenancy premises were 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 nonuser is without reasonable cause has the effect of putting the tenant on notice of reasonable cause for ceasing to occupation the tenant premises.” (Emphasis Supplied)” (pp. 791-796) The provisions of both Kerala Buildings (Lease and Rent Control) Act and Himachal Pradesh Urban Rent Control Act who are in pari materia except that in the Kerala Act period is six months and in H.P. Rent Act the period is one year. 9. Both the learned two Courts having concurrently found against the petitioner/tenant even if I re-appreciate evidence, I cannot persuade myself to hold that there has been perversity in the conclusion arrived at by both the learned Courts below. In these circumstances, I do not find that the law on the point has not been appreciated properly and thus there is no merit in the submissions made by learned counsel appearing for the petitioners/tenants, therefore, the revision is accordingly dismissed. No order as to costs. 10. All pending applications also stand disposed of.