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2003 DIGILAW 324 (PNJ)

Kamlesh Devi Alias Keshi v. Chanan Singh

2003-02-20

M.M.KUMAR

body2003
Judgment M.M.Kumar, J. 1. This petition filed under sub-section (8) of Section 18 A of the East Punjab Urban Rent Restriction Act, 1949 (for brevity the Act) challenges the order dated 15.4.2002 passed by the Rent Controller, Phillaur directing the ejectment of the tenant petitioner from the demised house. The Rent Controller had allowed the ejectment petition filed by the landlord- respondent under Section 13-B of the Act which has been added vide punjab Ordinance No. 10 of 2002 and Punjab Act No. IX of 2001. 2. The landlord-respondent Chanan Singh filed ejectment petition No. 6 of 2001 on 9.4.2001 under Section 13-B of the Act claiming that he is a Non Resident Indian (for brevity `NRI) and is in immediate need of possession of the house in dispute. It was further alleged that the landlord-respondent is owner of the property in dispute and has been residing abroad. The landlord-respondent further claimed that the property was rented to the tenant-petitioner @ Rs. 500/- p.m. uptil January, 2001. The ejectment of tenant-petitioner is sought on the ground that the landlord-respondent wants to settle in India and he is in need of the house in dispute for his personal use and occupation. Further ground of material impairment of the value of the house and sub-letting have also been pleaded. 3. The tenant-petitioner opposed the application by making the averments that the landlord-respondent had earlier filed a petition for ejectment in respect of the same property and it was registered as ejectment petition No. 15 of 2000 dated 20.10.2000. The tenant-petitioner further averred that rent upto 31.1.2001 to the tune of Rs. 23,500/- was paid. The stand of the tenant- petitioner is that the landlord-respondent has other properties situated in village Goraya which are in his possession which would be sufficient for his needs and there is no need for the landlord-respondent to evict the tenant- petitioner from the premises which is in her possession. `NRI status of the landlord-respondent was also denied. On the basis of the pleadings of the parties, the Rent Controller framed the following issues : "1. Whether the petitioner is Non Resident Indian ? OPA. 2. Whether the properly in dispute is needed by petitioner for own use and occupation ? OPA. 3. Whether the respondent has impaired the value materially of the suit property ? OPA. 4. Relief." 4. On Issue Nos. Whether the petitioner is Non Resident Indian ? OPA. 2. Whether the properly in dispute is needed by petitioner for own use and occupation ? OPA. 3. Whether the respondent has impaired the value materially of the suit property ? OPA. 4. Relief." 4. On Issue Nos. 1 and 2 it has been held that the landlord-respondent is an `NRI and is covered by the expression defined by Section 2(dd) of the Act. It has further been held that the landlord-respondent answers all the requirements of the newly added Section 13-B of the Act. 5. On Issue No. 3, the landlord-respondent failed to bring on record any evidence to prove that the tenant-petitioner had materially impaired the value of the property in dispute and therefore this issue was decided against the landlord-respondent. The findings of fact recorded by the Rent Controller on Issue Nos. 1 and 2 reads as under : "Petitioner Chanan Singh himself has stepped into the witness box as AW 1 and he has deposed that he has been residing in England for the last 35 years and he proved his passport, copy of which is Ex. AW 1 on the record. This passport has been issued by the Government of United Kingdom of Great Britain and Northern Ireland. Even the witness of respondent namely, Gurmej Kaur (PW 2) in her cross-examination has admitted that petitioner is Non Resident Indian and he is residing in abroad and he usually comes to India from time to time. So, there is clear cut admission of N.R.I. status of petitioner on the record." "....... it is clear that N.R.I. means a person of Indian origin who is either permanently or temporarily settled outside India in either case or taking up employment outside India or for carrying on a business or vacation outside India. So, from the passport and from the admission of RW2 Gurmej Kaur, it is clear that petitioner is Non Resident Indian." "Petitioner Chanan Singh, while appearing in the witness box as AW 1 has deposed that he has been residing abroad for the last 35 years and he has now retired and the property in dispute is needed by him. The petitioner has placed on record the photostat copy of judgment passed by Honble Mr. The petitioner has placed on record the photostat copy of judgment passed by Honble Mr. Justice N.K. Sud of Honble Punjab and Haryana High Court dated 13.2.2002, titled Prem Kumar v. Inderjit Singh Grewal and others, 2002(2) RCR (Rent) 203 (P&H). In this judgement it is held by the Honble Punjab and Haryana High Court that a landlord has to prove three ingredients as follows : 1. That the landlord is N.R.I. 2. That the landlord has returned to India and 3. That the landlord should be the owner of the property for the last five years. In the present case, it has proved that the landlord is NRI and he has returned to India and he is the owner of the property in dispute. As now he has stated that he is in need of the property in dispute for his own use and occupation, so it is proved that the suit property is needed by him for his own use and occupation, as such, the respondent is liable to be evicted from the property in dispute as such, both these issues are held in favour of the petitioner and against the respondent." 6. I have heard Shri Satinder Khanna, learned counsel for the tenant- petitioner who has argued that the landlord-respondent does not fulfill the basic requirements of Section 13-B of the Act in as much as he has not returned to India. The learned counsel has drawn my attention to the cause title to argue that the ejectment petition filed by the Rent Controller was instituted through the power of attorney of the landlord-respondent which shows that the landlord-respondent has not yet come to India which demonstrated that he had no intention either to settle in this country temporarily or permanently. On that basis, the learned counsel submitted that the ground of personal necessity by an NRI is a camouflage. In support of his submission, the learned counsel has placed reliance on a judgment of this Court in the case of Prem Kumar Patel v. Inderjit Singh Grewal and others, 2002(2) RCR (Rent) 203 (P&H) : 2002(3) PLR 829 wherein this Court laid down that the requirement of Section 13-B of the Act would be that an `NRI must return to India and he could then claim that he required the building for his own use. The learned counsel has further submitted that as a matter of fact the landlord-respondent has no intention to return to India because all his children are settled in United Kingdom whereas he himself migrated to United Kingdom in the year 1950 and that he holds a British pass-port. 7. Shri B.S. Bali, learned counsel for the landlord-respondent has submitted that the landlord-respondent has appeared as a witness and was subjected to lengthy cross-examination by the tenant-petitioner before the Rent Controller. According to the learned counsel it is not necessary that the landlord under Section 13-B of the Act must first come and stay in this country and only then he can pursue his remedy under Section 13-B of the Act. Learned counsel has further argued that the tenant-petitioner is not entitled to go into the intention of the landlord-respondent on the basis that his children are settled in United Kingdom. According to the learned counsel the findings of facts recorded by the Rent Controller are well founded and are supported by the evidence and therefore there is no reason to reverse those findings of facts. 8. I have thoughtfully considered the respective submissions made by the learned counsel for the parties and am of the view that the instant petition is liable to be dismissed because object of incorporating Section 13-B of the Act vide Ordinance No. 10 of 2000 and Act No IX of 2001 was to make a special provision in the Act in the aid of special class of landlord namely `NRI so far as to enable them to recover possession of the tenanted premises for self- occupation or the occupation or the use of anyone ordinarily living with and dependent upon them. A perusal of statement of reasons and objects appended with Act No. IX of 2001 would show that on the representations of the various associations of non-resident Indians highlighting the plight of Indian residents returning to India after their long years of stay in foreign countries they did not find the conditions in their home land congenial on their return either to settle down or to take up any business. Necessity was felt because of the rigid legal provision of existing rent laws which made it extremely difficult nee impossible for them to recover vacant possession of their residential building from the tenants. Necessity was felt because of the rigid legal provision of existing rent laws which made it extremely difficult nee impossible for them to recover vacant possession of their residential building from the tenants. With this object in view and to provide relief to them to enable them to recover possession of residential or scheduled building and/or non-residential building for their own use, the State of Punjab issued Ordinance No. 10 of 2000 and then incorporated amendment. 9. It is further pertinent to mention that in J. Chatterjee v. Mohinder Kaur Uppal and another, 2000(2) RCR (Rent) 462 (SC) : (2000) 7 SCC 510 the Supreme Court while examining the provisions concerning widow land-lady which is another type of specified landlord has laid down that the basic rule of interpretation in such like cases would be to read the statute in the light of the object of the provisions of Rent Control Legislation. The observations of their Lordships read as under : "From the afore-mentioned statutory provisions, the legislative intent is clear that if an application for eviction of a tenant is filed by a widow to recover the premises in question for her self-occupation, the Controller shall pass an order for eviction of the tenant from the premises with utmost expedition. The provision is intended to serve the social need to help a widow in getting possession of the premises required for her personal occupation. To subserve that purpose she has been included in the special class of landlord who are entitled to recover possession of the premises let out by them when they require the same for self-occupation and special provision has been made in Section 25(B) providing for an inquiry by the Controller following a summary procedure to satisfy himself that the plea of self-occupation taken by the widow/landlady is a general (sic genuine) and bona fide one and not a mere pretence to get the tenant evicted form the premises. For that reason, heavy burden is placed on the tenant to satisfy the Controller by filing an affidavit stating such facts which, if believed, will sufficiently prove that the plea of need of personal occupation by the petitioner widow is nothing but a presence. For that reason, heavy burden is placed on the tenant to satisfy the Controller by filing an affidavit stating such facts which, if believed, will sufficiently prove that the plea of need of personal occupation by the petitioner widow is nothing but a presence. Whether leave to defend will be granted to the tenant in a case depends on the facts and circumstances of the case as emanating from averments in the eviction petition filed by the landlord and the affidavit filed by the tenant seeking leave to defend the eviction petition. No hard and fast rule or strait-jacket formula can be laid down for judging the question. It is to be kept in mind by the Controller and the courts that the petition for eviction filed by a widow under Section 14 D should not be frustrated by granting leave to the tenant to raise any plea denying/refuting the case pleaded in the eviction petition. Unless a real and substantial case is made out on the averments made in the affidavit filed by the tenant in support of the petition filed under Section 25B of the Act, the proceeding should not be dragged on unnecessarily and should be disposed of with due expedition. A balance has to be maintained between the general object of the statute which is to provide protection to the tenants against arbitrary action of the landlords for their eviction and the assistance to be referred to the special class of landlords including a widow to recover possession of premises let out by her for self- occupation. We are aware that in some decided cases this Court has leaned in favour of granting leave to the tenant to defend the eviction petition but on a closer look at the decisions it will be clear that the cases were decided considering the facts and circumstances involved therein. At the cost of repetition, we may state that the decision on question of grant of leave to defend depends on the facts and circumstances of the case." (emphasis supplied). 10. The provisions of Section 13-B of the Act has to be interpreted and examined in the light of statement of objects and reasons appended to Act No. IX of 2001 as has been observed by the Supreme Court in J. Chatterjees case (supra). Section 13-B of the Act reads as under : "13(B). 10. The provisions of Section 13-B of the Act has to be interpreted and examined in the light of statement of objects and reasons appended to Act No. IX of 2001 as has been observed by the Supreme Court in J. Chatterjees case (supra). Section 13-B of the Act reads as under : "13(B). Right to recover immediate possession of residential building to accrue to Non resident Indian - (1) Where an owner is a Non resident Indian and returns to India 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, he own use, or for the use of any one ordinarily living with and dependent on him or her, 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 or one scheduled building and/or 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." 11. A perusal of the above Section makes the intention of the legislature evident that the specified landlord must apply to the Controller for recovering immediate possession of either residential building or scheduled building and/or non-residential building let out by him for his or her own use. A perusal of the above Section makes the intention of the legislature evident that the specified landlord must apply to the Controller for recovering immediate possession of either residential building or scheduled building and/or non-residential building let out by him for his or her own use. The element of expeditious acquisition of possession is clear from the use of expression `immediate. It further requires that an NRI could recover possession of only such building which is under his ownership for the last over five years and the benefits is available only for once during the life time of such an owner Sub-clause (3) of clause 13-B of the Act further makes it clear that such a building of which possession has been recovered under this provision cannot be transferred through sale or any other means or let out for a period five years. If any of the events takes place like transfer, letting out etc. then the evicted tenant has been clothed with the right to apply to the Controller with a prayer for an order directing that specified landlord shall restore back the possession of the building to him. Therefore, it is evident that stringent provision has been made against the NRI in case he succeeds n evicting the tenant. The requirements of sub-section (i) of Section 13-B of the Act is : a) that the applicant shall be non-resident Indian; b) the applicant has returned to India; c) that he requires the property for his or her own use or for the use of any one ordinarily living and dependent upon him and or her; and d) he should be owner of the property for the last over five years. 12. When the facts of the instant case are examined in the light of the above principles it is clear that the landlord-respondent is a non-resident Indian, he has returned to India and his need is established. It has also been found that he is owner for the last five years as he purchased the property n the year 1969 vide sale deed Mark `A. Therefore, I do not find any legal infirmity in the findings of facts recorded by Rent Controller. It has also been found that he is owner for the last five years as he purchased the property n the year 1969 vide sale deed Mark `A. Therefore, I do not find any legal infirmity in the findings of facts recorded by Rent Controller. If the landlord-respondent transfers it by sale or let out the demised premises then enough protection has been provided to the tenant-petitioner for getting re- possession of the building by making an appropriate application to the Rent Controller. 13. The argument that the landlord-respondent has not returned to India advanced by the counsel for the tenant-petitioner has not impressed me because there is nothing on the record to suggest to the contrary as has been found by the Rent Controller that he has actually returned to India. At the time when the petition was filed he might have come to India and gone back. It is also clear that the landlord-respondent has appeared in the witness box and was subjected to lengthy cross-examination. Merely because in the cause title his description is through his general power of attorney showing that he himself was residing abroad would not lead to a conclusion that he has either not returned to India or has no intention to do so. It is not expected that non resident Indian would first come to India, live in a rented accommodation or in hotels during the pendency of his ejectment petition and then after succeeding in ejecting the tenant he would shift to his property. If such an interpretation is followed then probably no NRI landlord could ever succeed in getting the eviction order passed. In the present case, the application for ejectment of the tenant-petitioner was filed on 9.5.2001 and it was decided on 15.4.2002. Thereafter, the instant petition has been filed which is pending in this Court. It is not expected that the landlord-respondent would keep waiting in a hotel or rented accommodation from 9.5.2001 till date. This would be highly impracticable and literal construction. Therefore, I have no hesitation in rejecting the afore mentioned argument as it would result in defeating the object for which the amendment has been made. 14. It is not expected that the landlord-respondent would keep waiting in a hotel or rented accommodation from 9.5.2001 till date. This would be highly impracticable and literal construction. Therefore, I have no hesitation in rejecting the afore mentioned argument as it would result in defeating the object for which the amendment has been made. 14. The other arguments that the landlord-respondent has no intention to return to India does not need any deep probe because it is not unknown that in the evening of their live home sickness and loneliness overtakes that `NRI and there is every desire to come back to the roots which are provided by their own country as nothing survives for them to do in the foreign land after their retirement. It has come in evidence that the landlord-respondent has now retired which is evident from para 11 of the order passed by the Rent Controller. Therefore, I have no hesitation in rejecting this submission. 15. For the reasons recorded above, this petition fails and the same is dismissed.