IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.R. No. 83 of 2009. Reserved on : 10.11.2010. Decided on 18.11.2010. Kashmir Singh. …Petitioner. -Versus- Sachin and Others. .…Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1Yes __________________________________________________________ For the petitioner : Mr. N.K. Thakur, Advocate. For the respondents. : Mr. Ajay Sharma, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: This is tenant’s petition, under Section 24 of the Himachal Pradesh Urban Rent Control Act, 1971 against the judgment dated 22.05.2009, passed by the learned Appellate Authority, Una. 2. Material facts necessary for adjudication of this petition are that the respondents-landlords (hereinafter referred to as “the landlords” for convenience sake), had filed a petition against the petitioner-tenant (hereinafter referred to as “the tenant” for convenience sake) for his eviction from the shop premises on the ground of arrears of rent from May, 2000 till the filing of the petition and also on the ground that the tenant had ceased to occupy the demised premises for a continuous period of more than 12 months without reasonable cause. 1 Whether the reporters of the local papers may be allowed to see the judgment? - 2 - 3. Case of the landlords was that the premises were rented-out to the tenant vide a rent note dated 22.03.1970 @ `30/- per month, which was enhanced to `40/- per month. According to the landlords, the tenant has not paid the rent from May, 2000 till the filing of the petition and premises were locked for the last five years, resulting in cracks in the building and the same has become dilapidated and unsafe for human habitation. It is on these grounds, the landlords have sought ejectment of the tenant from the premises and to restore the possession to the landlords. 4. The petition was resisted by the tenant. He has denied the allegations made in the petition. According to him, earlier he was running a haberdashery (Maniari) shop. However, subsequently he changed his business to disposable items. According to him, he has paid rent upto June, 2004, but the landlords did not issue any receipt. 5. The landlords filed rejoinder to the reply filed by the tenant. Learned Rent Controller framed the issues on 05.09.2005. Learned Rent Controller allowed the petition, partly on the ground of arrears of rent and rejected the plea of the landlords that the tenant has ‘ceased to occupy’ the premises for a continuous period of twelve months without reasonable cause. 6. Feeling aggrieved by the orders passed by the learned Rent Controller, dated 01.02.2007, the landlords preferred an appeal before the Appellate Authority. The Appellate Authority allowed the appeal on 22.05.2009. Hence, this petition against the judgment/order dated 22.05.2009. - 3 - 7. Mr. Naresh Thakur, learned counsel for the petitioner has strenuously argued that the judgment of the learned Appellate Authority is against the principles of law. According to him, the findings recorded by the learned Appellate Authority are contrary to the oral as well as documentary evidence. In other words, according to him, the evidence has not been correctly appreciated by the appellate Court. 8. Mr. Ajay Sharma, learned counsel for the respondents has supported the judgment dated 22.05.2009. 9. I have heard the learned counsel for the parties and gone through the records carefully. 10. Mr. N.K. Thakur, learned counsel for the petitioner has only advanced his arguments as far as eviction of his client was ordered on the ground that he has ‘ceased to occupy’ the premises for a continuous period of more than 12 months without reasonable cause. 11. One of the landlords, Upender Nath has tendered evidence by way of an affidavit. He has deposed that the shop is owned by the landlords and they inducted petitioner as tenant on a monthly rent of `30/- in the year 1970. The same was enhanced to `40/- in 1976. He further deposed that the tenant has not paid rent from May, 2000 till the date of his examination. According to him, the tenant has kept the premises closed for the last more than six years and, as such, he has ceased to occupy the same. He then stated that the building has developed cracks and the same had become dilapidated. Ex.AW-1/A site plan has been proved by PW-1. Shadi Lal (AW-2) - 4 - has testified that the tenant was working in his industry at Tahliwal since January 2003 to August 2003. 12. Madan Lal was examined AW-4, who was working as Clerk in HPSEB office Santokhgarh. According to him, the meter reading in respect of meter No. SC-161/C (new number 56-01960) in January, 2002 was 20 units, in March, 2002, it was 40 units. In May, 2002, the premises were found locked. The consumption in July, 2002 was 50 units. He then testified that from July, 2002 to September, 2004, as per their record, the premises were locked. Thereafter, from January, 2004 to February, 2006, the premises were found locked and the consumption of electricity was nil. 13. AW-5 Sohan Lal is Shop Inspector. According to him, no licence for the shop has been issued in the name of tenant. 14. According to AW-6 Baggu, the landlords were owners and the shop was closed for six years. 15. Tenant has also examined Sohan Lal Inspector as RW-1. He has proved the certificates Ex. RW-1/A and RW-1/B. However, in his cross-examination, he has admitted that the licence was not renewed from 2001 to 2006 and it was renewed on 03.08.2006 only. 16. Ajay Kumar, Clerk (RW-2) from the Excise and Taxation Department has proved on record the acknowledgments Ex. RW-2/A to RW-2/C. According to him, these were issued under the scheme “self assessment”. According to him, as per the records, CST No. of this shop is Una-III-196-CST 315. - 5 - 17. RW-3 Kamal Kishore has supported the version of tenant. According to him, the tenant was running the shop. 18. The tenant has appeared as RW-4. According to him, he had obtained the licence from the shop Inspector. He also produced form No. 7 Ext. RW-4/A to RW-4/C. In his cross- examination, he has admitted that he used to obtain receipt after paying the rent. He further deposed that he left the business of Maniari about two and half years back. He got the licence renewed after filing of the petition. The tenant has also produced on record electricity bills Ex.R-1 and R-2, ledger Ex. R- 3, Shop licence Ex. RW-1/A, RW-1/B, acknowledgment Ex. RW- 2/A, RW-2/B and RW-2/C and Forms Ex. RW-4/A to RW-4/C. 19. According to the examination-in-chief of Upender Nath, one of the landlords, the shop had remained closed for more than six years. According to AW-4 Madan Lal, the premises were found locked in May, 2002. The consumption in July, 2002 was 50 units. He further deposed that from July, 2002 to September, 2004, the premises were found locked and thereafter, the premises were found locked from January, 2004 to February, 2006. He also deposed that the consumption of electricity w.e.f. January, 2004 to February, 2006 was nil. 20. Now, as far as the shop lincence is concerned, the same was valid from 1993 to 2002 and thereafter, it was renewed in 2006 only on 8.03.2006. Shri Sohan Lal has been examined by the landlords as well as by the tenant. The other documents relied upon by the tenant, i.e., Ex.RW-4/A, RW-4/B and RW-4/C pertain to the years 1996-97, 1998-99 and 2001.2002. The only inference which can be drawn from the - 6 - evidence, is that the tenant has ceased to occupy the premises in question without reasonable cause for more than 12 months. The findings recorded by the learned Rent Controller are in conformity with law. The landlord has proved by leading tangible evidence on record that the tenant has ceased to occupy the premises for a continuous period of 12 months without reasonable cause. 21. 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 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 - 7 - 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.” 22. 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 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 - 8 - 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.” 23. 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. 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 - 9 - 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 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- - 10 - 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. 24. Mr. Naresh Thakur, learned counsel for the petitioner has relied upon Dr. Gulshan Kumar Versus Sh. Sudershan Kumar, 2002(3) Shim. L.C. 366. The facts of this case were different from the present case. In this case, there was duly issued licence and the electricity was consumed, however, in the instant case, the licence has been renewed only in 2006 and the premises, as per the report of AW-4 has remained locked for a considerable period. 25. 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. 26. 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. 27. 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 - 11 - Court can look into or make a search as to whether 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.” - 12 - 28. 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 except 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 - 13 - substantive testimony of PW-4 Rajinder Pal Singh, photographer, who proved 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.” 29. 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) - 14 - - 15 -