TMI Blog1992 (12) TMI 232X X X X Extracts X X X X X X X X Extracts X X X X ..... nt ceased to occupy the Building for more than six months without reasonable cause. Provisional authority did not interfere with the finding. Consequently, the tenant now faces threat of imminent eviction. Hence he filed this original petition under Article 227 of the Constitution in challenge of the said order of eviction. Tenant was conducting a hotel business in the building. Landlord alleged that the tenant kept the building closed for about one year preceding the date of application. Tenant disputed the allegation and contended that he was conducting business in the building all through. Landlord took out a commission to inspect the shop and the commissioner who went to the place found the shop remaining closed and also observed certai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on account of commissioner's failure to give intimation regarding the second visit, would not render his testimony in court vitiated. Commissioner's testimony in court has to be considered like any other evidence of any other witness. As the fact finding courts placed reliance on his evidence, the revision. court rightly refrained from upsetting the finding. 4 . Learned counsel alternatively contended that Rent Control Court went wrong in holding that burden of proof is on the tenant to prove that he was in occupation for some time. The basis for the said contention is the observation made by the Rent Control Court that in the circumstances the presumption is that the tenant has ceased to occupy the building for six months con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ach case. 6 . Be that as it may, burden is on the landlord to prove that the tenant ceased to occupy the building for six months. But it is hard to expect a landlord to prove the precise period during which his tenant ceased to occupy the building. However, if the court is satisfied on the evidence and/or with the aid of presumptions that the tenant did not occupy the building for such length of time as would cover the statutory period, then the burden would shift to the tenant to show that he had reasonable cause for such non-occupation. 7. Learned counsel for the petitioner/tenant, relying on the observation made by the Commissioner that some, utensils were found in the room, contended that when there is evidence of possession of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er an activity amounts to occupation. In R.P. Mehta's case Rughubar Dayal, J. speaking for the bench said that the word occupation when used in Rent Control statutes must be understood in the particular context in which it is used. Looking at the context in Section 11(4) (v) of the Act it is doubtless that the word occupation is used to denote the tenants actual physical use of the building either by himself or through his agents or employees. Hence the tenant cannot upset the presumption of non-occupation by merely pointing out features of his legal possession the premises. 10. Learned counsel for the petitioner referred me to the decision of a larger bench (five judges) of Allahabad High Court (Ram Mani Devi v. R.C. E. Officer ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
