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2001 DIGILAW 207 (PNJ)

Prem Kumar Patel v. Inderjit Singh Grewal

2001-02-13

N.K.SUD

body2001
Judgment N.K.Sud, J. 1. This Civil Revision is directed against the order of the Rent Controller, Ludhiana, dated 7.9.2001 whereby the application by the petitioner seeking leave to defend has been declined. 2. The two respondents had jointly purchased House No. 100-I, Sarabha Nagar, Ludhiana in the year 1982. The ground floor of this house was given on rent to the petitioner in year 1984. It is not disputed that the respondents are persons of Indian origin and have been settled in England for employment for the last more than 16 years. Accordingly, they are Non-resident Indians. They filed a petition under Section 13-B read with section 18-A of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the `Act) for eviction of the petitioner from the tenanted portion of House No. 100-I, Sarabha Nagar, Ludhiana on the ground that it is required by them for their own use. The respondent No. 1 had come to India and had filed the petition on his own behalf as well as on behalf of respondent No. 2 who had duly authorised him to do so. It was explained that respondent No. 2, the other co-owner, is his fathers sister. She is an unmarried lady of 73 years of age and is suffering from paralyses. She is on wheel chair and is totally dependent on respondent No. 1 and therefore she intends to settle down in India along with him. It was also alleged that a son of respondent No. 1, who is of marriageable age, as also an unmarried sister of his presently residing in the first floor of the premises since September, 2000 and this portion of property was insufficient for the use of respondents. It was further alleged that respondent No. 1 also wanted to perform the marriage of his son in the premises in dispute and, thereafter, reside in the aforesaid house. It was also pointed out that there was no other house except first floor of the building in dispute in possession of the respondents and the said portion is without any drawing room, dining room or guest room. 3. Notice was served on the petitioner, who put in appearance before the Rent Controller and filed the present application for leave to defend. The leave to defend was sought on three grounds, viz. 3. Notice was served on the petitioner, who put in appearance before the Rent Controller and filed the present application for leave to defend. The leave to defend was sought on three grounds, viz. :- i) that respondent No. 2 had not returned to India and, therefore, she could not invoke the provisions of Section 13-B of the Act; ii) that the respondents have no intention to return to India permanently. They are residing in England where they are well settled; and iii) that the respondents have sufficient accommodation on first floor of the house in dispute and, as such, their requirement for personal use is not bona fide. The Rent Controller, however, rejected the application of the petitioner vide the impugned order. Hence this revision petition. 4 Mr. Sumeet Mahajan appeared on behalf of the petitioner and reiterated the pleas raised before the Rent Controller. According to him, the petitioner had made out a prima facie case by raising such pleas which gave rise to triable issues. Therefore, the leave to defend sought by the petitioner ought to have been granted. According to him, the Rent Controller at the stage of consideration of the application of the petitioner was not justified in going into the merits of the objections raised by him. He relied on the decision of the Supreme Court in Inderjeet Kaur v. Nirpal Singh, JT 2001(1) SC 308 : 2001(1) RCR (Rent) 33 (SC) in this behalf. He also placed reliance on the decisions of this Court in Prit Pal Kaur v. B.S. Ahuja, 1996(2) RLR 305 : 1996(1) RCR (Rent) 630 (P&H), The Punjab & Sind Bank and others v. Kashmir Singh Bhullar (K.S. Bhullar), 1996(1) RCR (Rent) 671 (P&H) : 1996(2) RLR 296, Surjan Singh v. Krishan Lal Garg, 1996(1) RCR (Rent) 610 (P&H) : 1996(2) RLR 300 and K.G.P. Pillai v. Subhash Chander Pathania, 1996(2) RLR 218 to contend that the pleas of the respondents that the accommodation available with them in the first floor was not sufficient or suitable are justiciable points and as such, the leave to defend could not be declined. He also highlighted the fact that respondent No. 2 had not come to India and, therefore, was not entitled to file the petition under section 13-B of the Act. 5. On the other hand, Mr. He also highlighted the fact that respondent No. 2 had not come to India and, therefore, was not entitled to file the petition under section 13-B of the Act. 5. On the other hand, Mr. Akshay Bhan, Advocate, appearing on behalf of the respondents, controverted the contentions raised on behalf of the petitioner. He referred to the provisions of Section 13-B of the Act to show that sufficiency or insufficiency of the accommodation already available with the landlords was not a relevant consideration for a petition under Section 13-B of the Act. For this purpose, he placed reliance on the decision of this Court in Savitri Devi Dutta v. Smt. Shakuntla Khullar, 1990(2) RCR 274. Accordingly to him, if the landlord shows that the conditions as specified in Section 13-B(1) have been satisfied, he is entitled for immediate possession of the building in dispute. He supported the findings of the Rent Controller who had opined that all the ingredients of Section 13-B stood proved and, therefore, the respondents were entitled to eviction of the tenant from the demised premises. He also drew my attention to the decision of this Court in Tarsem Lal v. State of Punjab and others, 2002(1) 130 PLR 89 : 2001(2) RCR (Rent) 444 (P&H)(DB) in which vires of section 13-B of the Act has been upheld. He especially referred to the observations made in para-7 wherein it has been observed that vide section 13-B, a right had been conferred upon Non-resident Indians to receive immediate possession of one rented building. 6. I have considered the rival contentions and have gone through the authorities cited before me. 7. He especially referred to the observations made in para-7 wherein it has been observed that vide section 13-B, a right had been conferred upon Non-resident Indians to receive immediate possession of one rented building. 6. I have considered the rival contentions and have gone through the authorities cited before me. 7. Section 13-B of the Act reads as under :- "13-B. - Right to recover immediate possession of residential building or scheduled building and non-residential building to accrue to Non- resident Indian - (1) When an owner is a Non-Resident Indian and returns to India and the residential building or scheduled building and/or non- residential building, as the case may be, let out by him or her is required for his or her own use, or for the use of any one ordinarily living with and dependent upon him or order he or she may apply to the Controller for immediate possession of such building or buildings, as the case may be : Provided that a right to apply in respect of such a building under this section shall be available only after a period of five years from the date of becoming the owner of such a building and shall be available only once during the life time of such an owner. (2) Where the owner referred to in sub-section (1), has let out more than one residential building or scheduled building and/or non- residential building, it shall be open to him or her to make an application under that sub-section in respect of only one residential building and/or one non-residential building, each chosen by him or her. (3) Where an owner recovers possession of a building under this section, he or she shall not transfer it through sale or any other means or let it out for a period of five years from the date of taking possession of the said building failing which the evicted tenant may apply to the Controller for an order directing that he shall be restored the possession of the said building and the Controller shall make an order accordingly." 8. A plain reading of this provision clearly shows that it is a once in a lifetime concession given to the Non-resident Indians to get one rented building vacated in a summary manner. A plain reading of this provision clearly shows that it is a once in a lifetime concession given to the Non-resident Indians to get one rented building vacated in a summary manner. The Rent Controller has correctly pointed out that for getting the benefit of this provision, a landlord has to prove the following three ingredients :- i) that the landlord is a Non-resident Indian; ii) that the landlord has returned to India; and iii) that the landlord should be the owner of the property for the last five years. Once these three ingredients are proved, a mere prayer of the landlord that the tenanted premises is required for his or her own use, or for the use of any one ordinarily living with and dependent on him or her, entitles him/her to get the immediate possession of the property. 9. In the present case, there is no dispute that the landlords are Non- resident Indians. It is also evident that respondent No. 1 has returned to India as he has filed the petition personally. It is also not in dispute that the landlords have owned the property in dispute for more than five years. According to Mr. Mahajan, to claim the benefit of this provisions a landlord must prove that he has returned to India permanently with the intention to settle down. He pointed out that in the application for leave to defend, the tenant had clearly stated that respondent No. 2 had not returned to India and that even respondent No. 1 had no intention to settle down in India as he was well settled in England. Thus, according to him, a prima facie case had been made out giving rise to triable issues and as such leave to defend should have been granted to the tenant. 10. I am unable to agree with the interpretation of Section 13-B sought to be placed by Mr. Mahajan. He wants me to read the words "returns to India" as "returns to India permanently with an intention to settle in India". This cannot be done. It is a well settled principle of interpretation that a provision has to be interpreted on the basis of its plain language. Neither any word can be added nor omitted from consideration. All that Section 13-B requires is that a Non-resident should return to India and claim that he requires the building for his own use. This cannot be done. It is a well settled principle of interpretation that a provision has to be interpreted on the basis of its plain language. Neither any word can be added nor omitted from consideration. All that Section 13-B requires is that a Non-resident should return to India and claim that he requires the building for his own use. There is no further requirement that he should also claim much less prove that he intends to settle down in India permanently. Thus, the contention of the petitioner that the landlord had no intention to settle down permanently in India is irrelevant for the purposes of Section 13-B. However, there appears to be merit in the contention that respondent No. 2 could not have filed the petition as she had not returned to India. The language of this provision does not show that it is necessary that the Non-resident Indian should return to India to be able to file the petition. However, even if this objection were to be upheld, the petitioner would not be entitled to any relief as he shall still be liable to be evicted on the application of respondent No. 1, the other co-owner. 11. Similarly, the other objection raised by the petitioner that there was sufficient accommodation with the respondents on the first floor has been rightly held to be not available to a tenant in a petition under Section 13-B of the Act. All the judgments of this Court cited by the petitioner relate to section 13-A of the Act, relevant portion of which is reproduced below :- "13-A. Right to recover immediate possession of residential or scheduled building to accrue to certain persons. All the judgments of this Court cited by the petitioner relate to section 13-A of the Act, relevant portion of which is reproduced below :- "13-A. Right to recover immediate possession of residential or scheduled building to accrue to certain persons. - Where a specified landlord at any time, within one year prior to or within one year after the date of his retirement or after his retirement but within one year of the date of commencement of the East Punjab Urban Rent Restriction (Amendment) Act, 1985, whichever is later, applies to the Controller along with a certificate from the authority competent to remove him from service indicating the date of his retirement and his affidavit to the effect that he does not own and possess any other suitable accommodation in the local area in which he intends to reside to recover possession of his residential building or scheduled building, as the case may be, for his own occupation, there shall accrue, on and from the date of such application to such specified landlord, notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force or in any contract (whether expressed or implied), custom or usage to the contrary, a right to recover immediately the possession of such residential building or scheduled building or any part or parts of such building if it is let out in part or parts : xx xx xx xx xx xx xx xx xx xx" 12. A plain reading of the aforesaid provision shows that the landlord has to prove his intention `to reside in the property in question. He also has to show that he does not "own and possess any other suitable accommodation" in that area where he intends to reside. This makes the suitability and sufficiency of the accommodation already in possession of the landlord a relevant consideration for recovering the possession of tenanted premises under section 13-A of the Act. That being so, the points of suitability and sufficiency are justiciable and in case, a tenant raises them in an application for leave to defend, the leave has to be granted. Similar is the requirement of section 14(1)(e) of the Delhi Rent Control Act, 1956 which was under consideration before the Supreme Court in Inderjeet Kaurs case (supra). That being so, the points of suitability and sufficiency are justiciable and in case, a tenant raises them in an application for leave to defend, the leave has to be granted. Similar is the requirement of section 14(1)(e) of the Delhi Rent Control Act, 1956 which was under consideration before the Supreme Court in Inderjeet Kaurs case (supra). As against this, Section 13-B merely requires a claim that the property is required by the landlord for his own use or for the use of his dependents. The requirement of building can be for any purpose and not necessarily for his permanent residence. Unlike section 13-A, the ownership or possession of other suitable accommodation in the same area is no bar on a Non-resident Indian to get one building of his choice vacated under Section 13-B. It is also significant to note that section 13-B provides for recovery of possession of one entire building. Once it is claimed by the Non-resident Indian that he requires it for his own use, the objection that a portion of the building is sufficient for his requirement is of no consequence. He would still be entitled to the possession of one whole building. 13. Thus, none of the objections raised by the petitioner make out a prima facie case for leave to defend the petition under Section 13-B of the Act. 14. It is also worth noting that the provisions of section 13-B confer a right on a Non-resident Indian to recover immediate possession of a rented building at mere asking. However, this right is subject to various restrictions and many safeguards have been provided against its misuse. For example, the building sought to be evicted must have been owned by the landlord for a period of not less than five years. This ensures that no benami transactions in the names of Non-resident Indians are entered into in order to evict a tenant. Similarly, this right can be exercised only once in ones lifetime and that too in respect of only one building. Further, it has also been provided that if possession of a building is recovered under this provision, it can neither be sold or transferred nor be let out for a period of five years from the date of taking possession. Similarly, this right can be exercised only once in ones lifetime and that too in respect of only one building. Further, it has also been provided that if possession of a building is recovered under this provision, it can neither be sold or transferred nor be let out for a period of five years from the date of taking possession. Further the Punjab Act No. 9 of 2001 dated 31.5.2001 vide which Section 13-B had been inserted in the Act also inserted sub-section (2-B) in Section 19, which reads as under :- "(2-B) The owner who is a Non-resident Indian and who having evicted a tenant from a residential building or a scheduled building and/or non-residential building in pursuance of an order made under Section 13-B does not occupy it for a continuous period of three months from the date of such eviction, or lets out the whole or any part of the such building from which the tenant was evicted to any person other than the tenant in contravention of the provisions of sub-section (3) of the Section 13-B, shall be punishable with imprisonment for a term which may extend to six months or with fine which may be extended to one thousand rupees or both." This provision ensures that any contravention of the provision of Section 13-B is also punishable with imprisonment. It also enjoins upon the Non-resident Indian to occupy it within 3 months of the date on which a tenant is evicted. Thus, there are ample safeguards provided against the misuse of this provision. Accordingly, I find no merit in this revision petition which is dismissed. No costs.