Dismissed

Bhuvnesh Kumar Sood v. Joginder Singh

Himachal Pradesh HC5 Sept 2012CR/13/2012

Case brief

AI extract

What is this about?

This court dismissed a civil revision petition challenging an eviction order under section 14(2)(v) of the H.P. Urban Rent Control Act. The court held that evidence of nil electricity consumption proved non-occupation for over twelve months, and no reasonable cause for absence was shown by the tenant, thus upholding the eviction.

What did the court decide?

Ejection of the tenant from the suit premises to be executed forthwith by 30th September, 2013.

Bhuvnesh Kumar Sood Vs Joginder Singh — Landlord and Tenant | Himachal Pradesh HC (2012)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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Civil Revision No.13 of 2012. Date of Decision: 5^th September, 2012.

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_________________________________________________________ Mr. Bhuvnesh Kumar Sood son of Shri Daya Ram, resident of House No. 114, Lower Bazar, Shimla-1.

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….Petitioner.

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Versus

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Shri Joginder Singh son of Late Shri Sardar Darbara Singh, resident of House No.120, Lower Bazar, Shimla, H.P.

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…... Respondent.

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Civil Revision under Section 24(5) of the H.P. Urban Rent Control Act, 1987.

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_________________________________________________________ Coram

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The Hon’ble Mr. Justice Dev Darshan Sud, J.

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Whether approved for reporting?¹ Yes.

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For the Petitioner:	Mr. Bimal Gupta, Advocate.
For the respondent:	Mr. Satyen Vaidya,Advocate.
*Dev Darshan, J. (oral)*

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This revision petition has been preferred by the petitioner, who is the tenant and the respondent before the learned trial Court against the order of ejectment passed by the learned Rent Controller on the ground that he is ceased to occupy the suit premises consisting of three rooms including improved kitchen and bath on the second floor and a common toilet on the first floor, House No.114, Lower Bazar, Shimla continuously for a period of 12 months prior to the institution of the petition.

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The respondent herein is the landlord who instituted eviction proceedings under Section 14 of the H.P. Urban Rent Control Act, 1987 (hereinafter referred to as the Act) on the pleadings that the respondent/petitioner herein is the tenant in one residential set, consists

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1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes.

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of three rooms including improved kitchen and bath in the second floor and common toilet on the first floor on annual rent of Rs.3000/-. It was pleaded that the premises were let out to Smt. Shanti Devi, the mother of the tenant on 20.9.1961. The eviction was sought on the grounds (a) that the respondent had ceased to occupy the premises continuously for a period of 12 months immediately prior to filing of the petition as they had been lying locked continuously for the last more than 3 years and (b) that the tenant had after commencement of the H.P. Urban Rent Control Act, 1987 been allotted residential accommodation by the Himachal Pradesh State Electricity Board (hereinafter referred to as HPSEB) at Kelston, Shimla which was occupied by him and such accommodation was reasonably sufficient for his requirements.

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The petition was resisted as being not maintainable. The averments made in the petition are denied. The learned Rent Controller settled five issues out of which the first issue was with respect the fact that as to whether the tenant had ceased to occupy the suit premises continuously for a period of 12 months immediately preceding the date of filing of the petition. Second issue requiring determination was as to whether the respondent had acquired reasonably sufficient accommodation for his requirements and also for the requirement of his family members. The onus of both these issues was on the landlord/respondent herein. The other three issues pertain, onus of which was upon the tenant/petitioner herein, as to whether the petition was bad for non joinder of necessary parties, whether there was no relationship of land lord and tenant between the parties and whether the petitioner is estopped from instituting the petition.

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First two issues were found in favour of the landlord and against the tenant and other three issues, the onus of which was upon the tenant were found against him. The learned Rent Controller holds that there was no evidence or material on record to establish that the petition is bad for non joinder of necessary parties and the petitioner/landlord is estopped from filing the petition. Issue 1 and 4 were considered together. Learned Rent Controller holds that on the plea raised by the tenant that earlier the house in question belonged/was owned by his father but because of certain exigency it was auctioned and was purchased by the petitioner but the suit premises were never sold in this auction and remained in the possession of the mother of the tenant. It was also urged that the brother of the tenant is also in possession of these premises and since he has not been arrayed as a party respondent in the petition, the petition is bad for non joinder of necessary parties. The learned Rent Controller, holds that the respondent/tenant has not produced even a single document on record to prove that the suit premises was kept out of the auction or were not auctioned and in these circumstances, it cannot be said that he was the owner thereof. The landlord had proved rent receipts showing the payment of rent regularly and on this count, the status of the petitioner was that of a tenant. I do not find that this finding as perverse. This plea has been raised without any factual foundation. There is no document of title which has been submitted on record to prove the ownership by the mother of the petitioner herein.

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On the other aspect, the petitioner appeared as PW1 and corroborated his stand that the respondent was a tenant and had not been in occupation of the suit premises since the last 12-14 years and

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rent receipts 20.10.1993, 18.5.1994, 15.5.1995, 5.6.1996, 3.6.1998, 3.6.1999, 1.6.2002, 5.5.2003, 9.5.2005, 12.5.2007 and 9.5.2008 which were produced on record by the landlord/respondent herein prove that the rent was tendered to him by the petitioner/tenant. PW4 Nek Ram was working in the Electricity Department, proves that the account No. BCD 282-D pertaining to the meter installed in the name of Smt. Shanti Devi in the suit premises. The consumption record of the electricity from May, 2005 to June, 2008 was nil. The details were proved on record as Ex.PW 4/A. He was cross-examined but nothing material could be elicited which would destroy the veracity of his statement in his examination-in-chief.

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Respondent has appeared as RW-1 and stated that at the time of auction it was agreed that the 3^rd floor should not be vacated, they (family members of the tenant) could stay there forever. He and his elder brother were residing in the suit premises. Large sum of money was spent by them on improvements and maintaining the suit premises and they never kept it locked permanently. He produced on record copy of jamabandi Ex. RW1/A, bills RW 1/B and RW1/C, receipts RW1/D and Ex.RW1/F. The learned Rent Controller holds and rightly so that bill Ex.RW1/B, receipts Ex.RW1/D and Ex.RW1/E pertain to September, 2008 and August, 2008 and receipt Ex.RW1/F and Bill Ex.RW1./C pertain to the year 1999 and petition was in fact instituted on 8.5.2008 and not even a single bill has been produced regarding the consumption of electricity for 12 months prior to the institution of the rent petition. There was no evidence of consumption of any gas or water and other services which might have been used by him. There was no electricity consumption from May, 2005 to June, 2008 as proved

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on record which established that the suit premises were not occupied by him. In these circumstances, the learned Rent Controller holds that the tenant had ceased to occupy the suit premises.

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Adverting to the other issue that after commencement of the Act, the tenant was allotted accommodation by the HPSEB at Kelston, this fact is supported by Shri Sohan Lal Verma, PW2 from the HPSEB department, who stated that the respondent/tenant had retired as Member Operation, HPSEB and he had allotted type IV accommodation at Kelston, Shimla on 28.2.2008 with the order Ex.PW2/A. This accommodation was occupied by the respondents on 4^th March, 2008 which was evidenced by report Ext. PW2/B. Learned trial Rent Controller relied upon the decision in Diwan Chand Bhalla versus Dr. A.K. Bhoil, 1990 (2) Sim. L. C. 146 and accepted the contention that this constitutes allotment of alternate accommodation entitling the landlord to an order of eviction.

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The tenant appealed, the learned Appellate Authority reappreciated the entire evidence and submissions made, rejected the contention of the tenant that the petition was bad for non joinder of necessary parties. His contention was that in some execution proceedings premises were put to auction which were purchased by the landlord, his brother and mother jointly. There were no records to this effect and in this view of the matter submission was rejected more especially when it was found that the mother of the petitioner herein starting paying rent to the landlord.

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On the second submission made that his brother who was in the Army, was also residing in the premises, there was no evidence to establish this fact. On the 3^rd point raised that the petitioner had

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ceased to occupy the premises, the learned Appellate Authority relied upon the decision of the Supreme Court Dunlop India Ltd. Vs. A.A. Rehna and another, AIR 2011 SC 2198 interpreting the term “occupy” in the context of Kerla Buildings (Lease and Rent Control) Act, 1965. The learned Appellate Authority noted the provisions of both Kerala Buildings (Lease and Rent Control) and Himachal Pradesh Urban Rent Control Act who were in pari materia except that in the Kerala Act period is six months and in H.P. Rent Act the period is one year. The Court holds:

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“17. 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.

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18. The initial burden to show that the tenant has ceased to occupy the building continuously for six months 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. 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

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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.

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19. 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.

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20. In Ram Dass v. Davinder (2004)3 SCC 684: (AIR 2004 SAC 2162 :2004 AIR SCW 2078), 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 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. The

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Court highlighted the distinction between the terms “possession” and “occupy” in the context of Rent Control Legislation in the following words:

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“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. It is for the landlord to make out a g round 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 non-user is without reasonable cause has the effect of

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putting the tenant on notice of reasonable cause for ceasing to occupation the tenant premises.” (Emphasis Supplied)”

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(pp2208-2210)

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Adverting to this question further the learned Appellate Authority holds that Ex.PW4/A clearly establishes that there was no consumption of electricity from May, 2005 to June, 2008 proving the claim of the landlord that the petitioner herein had ceased to occupy the premises for continuous period of 12 months without reasonable cause which entitles the landlord for an order of eviction. The ground for eviction under the Himachal Act provides:-

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“S. 14(2) (v). that the tenant has ceased to occupy the building or rented land for a continuous period of telve months without reasonable cause;

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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;

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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.”

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The learned Appellate Authority holds that there was no evidence on record to prove that the tenant had not ceased to occupy such premises or there was reasonable cause to do so. The appeal was dismissed. 11. It is these orders, the petitioner now challenges in revision before this Court. What I find from the evidence on record is that there is no rebuttal to the evidence of the respondent herein/landlord establishing non occupancy of the premises which stand established and no reasonable cause has been proved which prevented the petitioner from occupying the suit premises. The tenant seeks re-

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appreciation of the evidence on the ground of perversity which I find totally lacking. True it is that in revisional proceedings under the Act this Court can always interfere in case it finds unreasonable and perverse conclusion being arrived at on the basis of what has been proved on record but at the same time I cannot accept, even after re-appreciating the evidence, that there is any perversity in the findings of the learned Courts below who have appreciated the evidence in accordance with principles of the law of evidence and calls for no interference. This petition is, therefore, dismissed with these observations that the petitioner herein/tenant shall handover the vacant and peaceful possession of the suit premises to the respondent herein/landlord on or before 30^th September, 2013 . Need less to say that he shall keep paying the use and occupation charges failing which the order of eviction shall become executable forthwith. No order as to the costs.

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All pending applications also stand disposed of.

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( Dev Darshan Sud), 5^th September, 2012. Judge (jai)

Bhuvnesh Kumar Sood v. Joginder Singh

Case brief

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Bhuvnesh Kumar Sood v. Joginder Singh

Case brief

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