IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.R. No. 52 of 2010. Reserved on : 11.11.2010. Decided on 18.11.2010. Kashmiri Lal. …Petitioner. -Versus- Data Ram. .…Respondent. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1Yes __________________________________________________________ For the petitioner : Mr. Rajnish Maniktala, Advocate. For the respondent. : Mr. N.K. Thakur, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: This is tenant’s petition, under Section 24 (5) of the Himachal Pradesh Urban Rent Control Act, 1987 against the judgment dated 23.2.2010, passed by the learned Appellate Authority, Una in Rent Appeal No. 1 of 2008. 2. Material facts necessary for adjudication of this petition are that the respondent-landlord (hereinafter referred to as “the landlord” for convenience sake), has sought eviction of the petitioner-tenant (hereinafter referred to as “the tenant” for convenience sake) from the demised premises consisting of one room shop situate in ward No. 1, Municipal Committee, Una, on the following grounds: “i) that the tenant is in arrears of rent at the rate of `5550/- per month from 01.07.1998 to 31st December, 2000 `16,500/- plus 10% increase 1 Whether the reporters of the local papers may be allowed to see the judgment? - 2 - in agreed rent under Section 5(2) of H.P. Urban Rent Control Act at the rate of `55-00 from 1.3.99 to 31.12.2000 amounting to `1210-00 total rent due `17,710-00 plus interest at the rate of 9% `1992/- plus House Tax at the rate of `12.5% on the annual rents. 2213/-. Total 21,915/-. The respondent has not paid or tendered the aforesaid arrears in spite of repeated request. ii) that the respondent tenant has joined Govt. Service as a Conductor in Pepsu Roadways Transport Corporation Patiala for the last two years and the shop in dispute is locked and no business is being run in the same for the last two years, thus the respondent tenant has ceased to occupy the premises in dispute for a continuous period of two years.” 3. The petition was contested by the tenant. Case of the tenant was that the shop in question was being run in partnership with Smt. Anita, his wife vide partnership deed dated 08.04.1998. According to him, the rent of the premises for the months of May to July, 1998 amounting to `1650/- was paid to the landlord against receipt dated 10.08.1998. The rent for the months from August to October, 1998 had been received by the son of the landlord, though no receipt was issued. It was further averred that the rent from October till December, 1998 had been paid to the landlord at his shop in the main Bazar, Una, however, no receipt had been issued by the landlord. He had admitted that he was in arrears of rent w.e.f. January, 1999. However, according to him, he has never refused to pay the same. 4. Learned Rent Controller framed the following issues: - 3 - 1. Whether the respondent is in arrears of rent, as alleged? OPA. 2. Whether the respondent has ceased to occupy the premises in dispute for a continuous period of 12 months from filing the petition without reasonable cause, as alleged? OPA. 3. Relief. 5. Learned Rent Controller allowed the petition and the tenant was ordered to vacate the premises in question since he has ceased to occupy the premises in question for a continuous period of 12 months prior to the date of filing the petition and he was also found in arrears of rent since August, 1998 till the passing of the order alongwith 9% interest per annum amounting to `82,684.25/-. The tenant was allowed time of one month from the date of order to pay arrears of rent. Tenant preferred an appeal before the Appellate Authority. The Appellate Authority dismissed the appeal on 23.02.2010. Hence, this petition against the judgment dated 23.02.2010. 6. Mr. Rajnish Maniktala, learned counsel for the petitioner has strenuously argued that the judgment of the Appellate Authority is contrary to the principles of law. According to him, the learned Courts below have failed to appreciate the oral as well as documentary evidence. 7. Mr. N.K. Thakur, learned counsel for the respondent has supported the judgment dated 23.02.2010. 8. I have heard the learned counsel for the parties and gone through the pleadings carefully. - 4 - 9. During the course of hearing, Mr. Rajnish Maniktala, learned counsel for the petitioner has confined his submissions only to the issue whether the tenant has ceased to occupy the premises for a continuous period of 12 months before the filing of petition? 10. The landlord has examined six witnesses. AW-1 is Shri Darshan Kumar, Junior Engineer, H.P.S.E.B. Sub-Division, Una. According to him, he has brought the ledger of meter No. 1660/C. This meter was in the name of Shri Datta Ram. According to the ledger, from April, 1999 to January, 2000, the shop in question remained locked. In January, 2000, twenty units were consumed and in April, no electricity was consumed. In June, 2000, only five units were consumed. Thereafter, till May, 2001, the shop remained closed. He also deposed that in June, 2001, ten units of electricity was consumed and thereafter till the date of recording of his statement, the shop remained closed. 11. AW-2 Datta Ram is the landlord. According to him he has given the premises on rent to the tenant 28-29 years back. He then stated that the tenant has started working in Pepsu Roadways as Conductor and the shop in question remained closed since January, 1999 till the date of recording of his statement. According to him, the tenant has locked the premises and no business is transacted from the disputed shop. 12. AW-3 is Shri Piare Lal. He has proved the site plan Ex. P-1. AW-4 is Shri Gurcharan Singh. According to him, the - 5 - CST No. of the shop is 1590. The business transaction took place till 1997-98 and thereafter, it was closed. 13. AW-5 is Shri Kartar Singh. According to him, the shop in question was registered only up to 1998 and thereafter, no registration has taken place. 14. RW-1 is Shri Dharam Singh. He is the Notary Public. According to him, he has registered the partnership deed Ex. RW-1/A. In his cross-examination, he has admitted that the stamp impression is present only on first two pages and the remaining pages do not carry any stamp impression. 15. RW-2 Shri Kashmiri Lal is the tenant. According to him, the partnership deed was entered in March, 1998, wherein his wife was also made partner. He claimed that he had paid electricity bills of `100-150/- every month either himself or through the landlord. He has admitted that in the month of January, 2000, 20 units of electricity was consumed and in the month of April, no electricity was consumed. He was ignorant that the shop remained closed till May, 2001. He has also admitted that the sales tax was assessed only up to 1998. 16. RW-3 Smt. Anita Devi is the wife of tenant. According to her, she is running the shop in the absence of her husband. According to her, monthly electricity bill was between 200-250, but sometimes it was less. She also admitted that there was no consumption of electricity in the month of April, 2000. But, she has explained that it was due to the ill-health of her father-in-law and she used to come to shop for one or two hours only and some times, she never visited the shop. She has also admitted that no sale-tax assessment has taken place after - 6 - 1998. She has also claimed that she used to get the work done on part time basis. 17. RW-4 Hussan Lal has supported the version of tenant. According to him, earlier the tenant used to run the shop and thereafter, it was being run by his wife. He also stated that the shop was regularly opened and it never remained continuously closed for a period of one or two years. 18. RW-5 Shubh Dev Singh is the witness to partnership-deed. In his cross-examination, he claimed that the shop was being run by the tenant. 19. What emerges from the evidence led by the parties, is that the tenant has consumed only 20 units in January, 2000. No electricity was consumed in the month of April, 2000 and the shop remained closed w.e.f. April, 1999 to January, 2000. The premises also remained closed w.e.f. May, 2001 and only ten units electricity was consumed in June, 2001. The tenant has not produced any evidence to rebut the same. He has not placed on record the copy of electricity bill. This circumstance of non-consumption of electricity goes against the tenant. It is not in dispute that the tenant has been working as Conductor at Patiala. The partnership-deed has not been proved in accordance with law. It has come in the statement of RW-1 Dharam Singh that only first two pages bears the stamp impression and the remaining pages do not carry any stamp impression. The tenant has not paid any sales tax after 1998. The entries with regard to weights and measurements and the rate list are very important to prove whether the tenant was using the premises in question or not. The tenant has not led - 7 - any evidence that the shop in question was being run in partner-ship. As per the statement of AW-1, shop has remained closed for a considerable period and the electricity consumed was also very meagre. The sales tax etc. has not been paid after 1998 and there was no registration after 1998 for the purpose of weights and measurements and rate list as per the statements of AW-5 and AW-6. Thus, it can safely be presumed that the shop in question has remained closed for a period of 12 months without any reasonable cause. 20. Their Lordships of the Hon’ble Supreme Court in Vora Rahimbhai Haji Hasanbhai Popat Versus Vora Sunderlal Nanilal and another (1985) 4 Supreme Court Cases 551 while interpreting the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, have held that even non-user of the premises for any purpose whatsoever for six months or more would make the tenant liable to eviction. In this case, the premises admittedly let out for business and that business was stopped for 4-5 years before institution of eviction suit. Their Lordships have held as under: “12. Shri Sheth also referred to Section 12 and Section 13 of the Act and contended that these are the only two sections which give protection to the tenant and unless the conditions in the two sections are satisfied the tenant cannot be evicted. What was let out by the plaintiff to the defendant- tenant was the land and not the superstructures and so Shri Sheth argues that the non-user of the superstructures does not amount to non-user of the land. On the own showing of the defendant- respondent he had shifted his business to Baroda and, therefore, he is not using the land for any - 8 - purpose whatsoever. Broadly speaking a premises can be let out either for residential or for business purposes. In the instant case on the own showing of the defendant-respondent, it had been taken for the purpose of tobacco business and that business had been stopped for a period of 4 to 5 years before the institution of the suit as the business had expanded and the defendant had shifted to Baroda. Therefore, it can be safely presumed that the land is not being used for the purpose for which it has been proved to have been let out.” 21. The Apex Court in M/s. Babu Ram Gopal and others Versus Mathra Dass, AIR 1990 Supreme Court 879 while interpreting Section 13(2)(v) of the East Punjab Urban Rent Restriction Act have held that when the business is stopped continuously for four months, the tenant is liable to be evicted. Their Lordships have held as under: “3. The grounds on which a tenant can be asked to quit are mentioned under S. 13(2) of the Act, and under clause (v) thereof the controller may pass an order for the tenant's eviction if he is satisfied, "13(2)(v) : That where the building is situated in a place other than a hill-station, the tenant has ceased to occupy the building for, a continuous period of four months without reasonable cause," Mrs. Urmila Kapoor appearing in support of the appeal contended that the appellant has all along been in possession of the shop which was never vacated and merely for the reason that the shop remained closed for a temporary period he can not be said to have ceased to occupy the same. The argument is that the appellant's occupation of the shop was never interrupted as it was in his - 9 - effective control, although closed and secured under the appellant's lock which nobody ever disturbed. We do not find ourselves in a position to accept he interpretation of the section as attempted on behalf of the appellant. The reason of including the clause (v) in S. 13(2) is to ensure that buildings, which are scarce in number specially in the towns, necessitating rent control legislation, do not remain unused at the instance of tenants who do not actually need them. A tenant Who is in possession of a building in the legal sense only cannot be said to be in occupation thereof for the purpose of S. 13(2)(v) ; otherwise a question of his eviction as envisaged in that section would not arise. The section, by making provisions for his ejectment, assumes that he is in possession, but, still includes cessation of occupation as one of the grounds. The clause, therefore, has to be interpreted in this back ground and it must take colour from the context. We, therefore, hold that if a tenant stops the business which he is carrying on in a shop and closes the premises continuously for a period of four months without a reasonable, cause he will be liable for eviction.” 22. The Apex Court in Ram Dass Versus Davinder (2004) 3 Supreme Court Cases 684 have held that the burden of proof lies on the landlord but the onus remains shifting. Their Lordships have further held that once the premises have been proved 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 tenanted premises. - 10 - Their Lordships have explained the position between words “Possession” and “Occupy”. Their Lordships have held as under: “7. The terms "possession" and "occupy" are in common 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 it. The Rent Control Legislations are 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. 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 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 preemies 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 were not being used for the purpose for which they were let out and the tenant has discontinued such activities in the tenancy premises - 11 - 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 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. 23. The learned Single Judge in Om Parkash versus Subhash Chand 2003(2) Shim. L.C. 217 has held that non- consumption of electricity is a very material and relevant factor to decide the question of non-occupation of demised premises. 24. Similarly, the learned Single Judge in Gurbachan Singh Versus Ravinder Nath Bhalla and others Latest HLJ 2006 (HP) 177 has held that the occasional visits by the tenant would not amount to of occupation. No consumption of electricity in tenanted premises between July 1988 to June, 1989 except for the period January, 1989, when the consumption of 40 units shown, was a circumstance against the tenant. 25. The expression “reasonable Cause” has been explained by a Division Bench of Kerala High Court in Kallullathil Sasidharan Versus Kadeesumma and Others 2010 (2) RCR (Rent) 221 as under: “9. The mooted question for consideration is as to whether in exercise of revisional jurisdiction this Court can look into or make a search as to whether - 12 - there was any reasonable cause for the alleged non- occupation, when the cessation of occupation was not at all admitted and when the specific plea and evidence was only total denial of the alleged cessation. The “reasonable cause” contemplated under Section 11(4) (v) of the Act should be a cause which is not within the control of the tenant and should prevent him from putting the tenanted premises to regular use and occupation. When it comes to the case of commercial space it should be a cause which prevents the tenant from continuing with the business activity which could not be rectified by the tenant within his control of affairs. In order to get the benefit of “reasonable cause” enumerated in Section 11(4) (v), the tenant is expected to concede that there was cessation of occupation and that such cessation was due to some reasonable cause, which was beyond his control. In a case where there is stout denial of the allegations regarding cessation, the tenant is not justified in banking upon any “reasonable cause” which was neither pleaded nor proved to contend that the cessation was justifiable. Hence, we are of the considered opinion that the arguments advanced before this Court for the first time, appealing to take judicial notice of any event as ‘reasonable cause’ for the cessation of occupation, could not be entertained in exercise of the attenuated jurisdiction, which is revisional in nature. Therefore, we find no illegality, irregularity or impropriety with respect to the concurrent findings of the courts below. Accordingly, the revision petition deserves no merit and the same is liable to be dismissed. However, considering the totality of factual circumstances, we feel that it is only just and proper to grant reasonable time for the tenant to surrender vacant possession of the building.” - 13 - 26. In Harjeet Singh Bedi Versus Ishwar Devi and another 2010(2) RCR (Rent), 310, the Learned Single Judge of Punjab and Haryana High Court has held that when electricity of shop had been disconnected for two years for non-payment of bill, which the tenant was required to pay under the agreement, it was inconceivable to accept that averred business could have been run in tenanted premises without consumption of electricity. The learned Single Judge has held as under: “8. It was in view of the tenor of the pleadings that the learned Appellate Authority recorded a finding that the tenant had not disputed that “the electricity connection of the demised shop has been disconnected for the last about years as alleged by the petitioner”. In the context of the averment made by the tenant (to the effect that it was the landlord who had got the electricity connection disconnected), the learned Appellate Authority noticed the terms and conditions of the rent note Ex. PW/B which categorically indicated that the electricity charges were required to be paid by the tenant himself. In this case, petitioner/tenant had conceded the factum of execution of the impugned rent note. When the respondent-landlord stepped into witness box, as his own witness, as PW-2, a suggestion was put to him that he did not accept the rent and electricity charges (from the tenant). That suggestion was utilized by the learned Appellate Authority to draw an inference against the petitioner-tenant in view of the proven contents of the rent note which imposed a liability upon the petitioner-tenant to pay electricity charges directly to the P.S.E.B. 9. In obtaining that finding, the learned Appellate Authority also drew sustenance from the sustenance from the substantive testimony of PW-4 Rajinder Pal Singh, photographer, who proved - 14 - photographs Ex. PW4/1 to Ex. PW-4/13 which (photographs) were supportive of the fact of closure of the shop. It is in testimony of photographer aforementioned that he had taken nine photographs on 28.12.2002; while he had taken other four photographs on 10.5.2003. He also proved negatives E. PW4/14 to Ex. PW4/26 and the relevant bill Ex. PW4/27 dated 8.12.2002. It would also be pertinent to notice here that petitioner-tenants had, while denying non functional aspect of the tenanted premises, averred that they have been throughout running Tent House business in those premises and there also was a cable connection and ceiling fan installed therein. It was also the plea that four migrant labourers had been engaged in the business aforementioned. Those averred four migrant labourers/workers were not examined at the trial. No documentation to prove the obtaining/running of a cable connection in the premises was adduced. The ceiling fan averred to have been installed in the tenanted premises could not have been run in the absence of electricity connection. In the totality of the circumstances of the case the learned Appellate Authority was fully justified in holding that it was inconceivable to expect that averred business could have been run in the tenanted premises without consumption of electricity.” 27. Accordingly, in view of the observations made hereinabove, there is no merit in this petition and the same is dismissed. No costs. (Rajiv Sharma) Judge November 18, 2010. (bhupender) - 15 - - 16 -