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2004 DIGILAW 353 (PNJ)

Jagdish Lal v. Devi Dayal Sharma

2004-03-23

VINEY MITTAL

body2004
Judgment Viney Mittal, J. 1. The tenant is the petitioner before this Court. His ejectment has been ordered by the learned Rent Controller on a petition filed by the landlord-respondent under section 13-B of the East Punjab Urban Rent Restriction Act. 2. The landlord filed the aforesaid ejectment petition claiming that he was a Non Resident Indian and the tenant was in possession of the shop owned by him on a rent of Rs. 550/- per month for the last more than 5 years. It was claimed that the landlord had returned to India from Canada on December 3, 2001 and as such the shop in question was required by him for his personal use. Accordingly, the landlord claimed that he was entitled to get immediate possession of the shop in dispute through the ejectment of the tenant. 3. The tenant contested the ejectment petition filed by the landlord. The status of the landlord as Non Resident Indian was also contested. It was claimed that the landlord had not returned to India with an intention to settle here since he was a Canadian citizen and was permanently settled in Canada. It was also claimed that the present petition had been filed by the landlord with a mala fide intention to get the tenant ejected from the shop in question with a view to increase the rate of rent or to sell the same. 4. The learned Rent Controller after taking into consideration the entire evidence led by the parties held that the landlord was shown to be a Non Resident Indian and as such entitled to the benefit of the provisions of section 13-B of the Act. On that basis, the learned Rent Controller further held that the landlord required the premises in dispute for this bona fide requirement. On the basis of the aforesaid findings, the learned Rent Controller ordered the ejectment of the tenant. 5. The tenant has felt aggrieved and has approached this court through the present petition. 6. I have heard Shri Sanjay Gupta, the learned counsel for the petitioner at some length and with his assistance have also gone through the record of the case. 7. 5. The tenant has felt aggrieved and has approached this court through the present petition. 6. I have heard Shri Sanjay Gupta, the learned counsel for the petitioner at some length and with his assistance have also gone through the record of the case. 7. Shri Sanjay Gupta, the learned counsel appearing for the petitioner has argued that the landlord was not shown to be a Non Resident Indian in as much as he had never shifted outside India with an intention to permanently reside there or to carry on his own business, therefore his case could not be taken to be covered under section 2(dd) of the Act. It is further argued by the learned counsel that in any case the benefit of section 13-B of the Act could not be taken by the present landlord in as much as the landlord being a Canadian citizen could not be taken to have ever intended to come back to India. 8. Having given my thoughtful consideration to the arguments raised by the learned counsel for the petitioner, I do not find myself in agreement with the same. 9. For the sake of convenience, the provisions of section 2(dd) of the Act may be noticed as follows : "NRI means a person of Indian origin who is either permanently or temporarily settled outside India in either case : (a) for or on taking up employment outside India or (b) for carrying on a business or vocation outside India or (c) for any other purpose, in such circumstances as would indicate his intention to stay outside India for an uncertain period." 10. The provisions of section 13-B of the Act may also be noticed at this stage : "Section 13-B - Right to recover immediate possession of residential building or Scheduled building and non-residential building to accrue to Non- residential Indian. (1) Where an owner is a non-residential 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 on him or her, he or she may apply to the Controller for immediately possession of such building or buildings, as the case may be. provided that a right to apply in respect of such building under this section shall be available only after a period of five years from the date of becoming the owner of such building and shall be available only once during the life time of such an owner. (2) Where the owner referred to in sub-section (2) 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 the 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 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. From the perusal of section 2(dd) of the Act, it is apparent that an NRI has been defined to be a person of Indian origin who is either permanently or temporarily settled outside India in either cases i.e. for or on taking up employment outside India; for carrying on a business or vocation outside India; or for any other purpose, in such circumstances as would indicate his intention to stay outside India for an uncertain period. 12. It is not in dispute that the landlord had specifically pleaded and has also proved that he had shifted to Canada with an intention to remain there for uncertain period. He was granted the Canadian citizenship. Thus, even if it be taken that the landlord had shifted to Canada after his retirement from service in India, still his case would be squarely covered by the Sub-Clause (c) of section 2(dd) of the Act. The scope of the provisions of section 2(dd) of the Act has been considered by this Court in the case of Sohan Lal v. Swaran Kaur, 2003(2) RCR(Rent) 407 (P&H). The following observations may be noticed with advantage : "The expression "NRI" used in section 2(dd) of the Act has been clearly defined and there is no ambiguity necessitating any external aid for interpreting the same. The following observations may be noticed with advantage : "The expression "NRI" used in section 2(dd) of the Act has been clearly defined and there is no ambiguity necessitating any external aid for interpreting the same. The ordinary meaning of the expression NRI given in Section 2(dd) of the Act is that person of Indian Origin living abroad whether settled permanently or temporarily. The purpose of his living abroad has been amplified either for taking up employment outside Indias or for carrying on business or vocation outside India or for any other purpose as would indicate his intention to stay outside India for uncertain period. Therefore, the definition of expression NRI can not be confined to only those who are holding Indian Passport and continue to be the Indian citizens. The definition in fact embraces all those categories of Indians living abroad whether citizens or non-citizens, whether born in India or abroad, whether carrying Indian or foreign passport. It appears that as long as he is owner of a property in the State of Punjab Legislature has intentionally used a wider expression to include large number of categories of NRIs." It was further observed as follows : "A perusal of clause (a) of Sub-Section (1) of Section 5 of the 1955 Act shows that any person could be registered as citizen of India by the prescribed authority provided that he is not already such citizen by virtue of the provision of the Constitution or any other provisions of the 1955 Act. If such a person is of Indian Origin and is ordinarily resident of India and have been so resident for five years before making an application for registration he could also be registered as a citizen. The explanation further provides that an applicant would be considered a person of Indian Origin if he or either of his parents was born in undivided India. It thus becomes evident that person of Indian origin is a class apart from the citizens. By no stretch of imagination it could be held that the citizens alone could be considered as NRIs within the meaning of Section 2(dd) of the Act. The concept of `Citizenship is different than the broader concept of persons of Indian Origin who are to include NRIs. The definition of Indian origin as given in the `Card Scheme is even more broader. The concept of `Citizenship is different than the broader concept of persons of Indian Origin who are to include NRIs. The definition of Indian origin as given in the `Card Scheme is even more broader. It has included in the definition of PIO in clause 2(ii) all those persons as the persons of Indian Origin if he or she or either of his parents of great grand parents was born in and permanently resident in India as defined in the Government of India Act, 1935 and other territories that became part of India thereafter provided neither was at any time a citizen of any of the countries like Pakistan, Bangladesh and other countries as may be specified by the Central Government from time to time." 13. Faced with the aforesaid difficulty, the learned counsel for the tenant argued that the circumstances of the case showed that the landlord who had acquired the Canadian citizenship had no intention to come back to India and as such the ejectment application being mala fide was liable to be dismissed. 14. In fact the aforesaid contention of the learned counsel is also without any basis. The landlord has categorically stated in his statement that he has already returned to India. He has further maintained that he wanted to start his own business in the shop in dispute. It is well settled that it is for the landlord to choose the place of his stay. The courts cannot substitute their own opinion or judgment in place of the landlord. Once the landlord has chosen to come back to his own country in the evening of his life, then it cannot be suggested that the aforesaid desire of the landlord was not bona fide. It is not uncommon that people in their old age settled and living abroad, come back to India. In fact almost in identical circumstances this court in Kamlesh Devi alias Keshi v. Chanan Singh, 2003(1) RCR(Rent) 725 (P&H) has held as follows : "14. It is not uncommon that people in their old age settled and living abroad, come back to India. In fact almost in identical circumstances this court in Kamlesh Devi alias Keshi v. Chanan Singh, 2003(1) RCR(Rent) 725 (P&H) has held as follows : "14. The other argument 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. Even otherwise, the provisions of section 13-B of the Act are summary in nature. The aforesaid provisions have provided a life time concession only once to an NRI to get rented building vacated in the aforesaid summary manner. The observations made by this Court in Prem Kumar Patel v. Inderjit Singh Grewal, 2002(2) RCR(Rent) 203 (P&H) may be noticed at this stage : "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 the one whole building." 16. In view of the aforesaid discussion, I do not find any justification to interfere in the present revision petition. He would still be entitled to the possession of the one whole building." 16. In view of the aforesaid discussion, I do not find any justification to interfere in the present revision petition. The order of ejectment passed by the learned Rent Controller is not shown to be erroneous in any manner and accordingly, the present revision being without any merit is dismissed.