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2007 DIGILAW 103 (PNJ)

Mukesh Kumar v. Santosh Kumari

2007-01-19

HEMANT GUPTA

body2007
Judgment Hemant Gupta, J. 1. The challenge in the present revision petition is to the order of ejectment passed by the learned Rent Controller on 25.10.2005 whereby the petitioner (hereinafter to be referred as the tenant) was ordered to be evicted from a portion of House No. NB-248, Laxmipura, Jalandhar City. 2. That respondents herein (hereinafter to be referred as the landlords) being Non-Resident Indians have sought ejectment of the petitioner in summary manner under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter to be referred as the Act) on the ground that earlier the property was owned by Shri Hans Raj who has purchased the same on 4.3.1963. Hans Raj died on 23.2.1981 and thereafter the landlords inherited the premises in dispute. The landlords are Non Resident Indians and settled in England and that portion in possession of the tenant and the adjoining portion in possession of another tenant is required for their residence. 3. The tenant was allowed to contest the petition. The tenant denied the allegation that landlord No. 1 has returned to India only with a view to settle at Jalandhar and other landlords have also the intention to return to India. The landlords are British citizens and holding British passports and, therefore, are not entitled to invoke the provisions of Section 13-B of the Act. 4. After considering the evidence led by the parties, the learned Rent controller returned a finding that the landlords are the owners of the property in question and there exists relationship of landlord and tenant between the parties. The stand of the landlords that respondent No. 1 herein has already returned to India and residing with some relatives was accepted. The learned Rent Controller negated the plea raised by the tenant that only one tenant can be ordered to be evicted in terms of Section 13-B of the Act as the building as defined in Section 2(a) of the Act means any building or parts of the building let for any purpose and, therefore, a landlord can recover possession of the entire building if the landlord requires the entire building. The tenant cannot ask the landlord to get possession of one portion and to share the entire building with them and to jointly reside with the other tenants in the said building. 5. The tenant cannot ask the landlord to get possession of one portion and to share the entire building with them and to jointly reside with the other tenants in the said building. 5. Learned counsel for the petitioner has vehemently argued that in terms of Section 13-B of the Act, the landlord is entitled to seek ejectment of one tenant alone. Since another tenant in the adjoining portion has been evicted, the landlords cannot seek ejectment of the petitioner under section 13-B of the Act but has to take recourse of eviction of the tenant under section 13 of the Act alone. However, I do not find any substance in the said argument raised by learned counsel for the petitioner. Following clauses of the Act are relevant for determination of the argument raised by learned counsel for the petitioner:- "2. Definitions :- In this Act, unless there is anything repugnant in the subject or context :- (a) "building" means any building or part of a building let for any purpose whether being actually used for that purpose or not, including any land, godowns, outhouses, or furniture let therewith, but does not include a room in hotel, hostel or boarding-house. Definitions :- In this Act, unless there is anything repugnant in the subject or context :- (a) "building" means any building or part of a building let for any purpose whether being actually used for that purpose or not, including any land, godowns, outhouses, or furniture let therewith, but does not include a room in hotel, hostel or boarding-house. 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 Provided further that nothing in this section shall be so construed as conferring a right, on any person to recover possession of more than one residential or scheduled building inclusive of any part or parts thereof if it is let out in part or parts : Provided further that the Controller may give the tenant a reasonable period for putting the specified landlord or, as the case may be, the widow, widower, child, grandchild or widowed daughter-in-law in possession of the residential building or scheduled building, as the case may be, and may extend such time so as not to exceed three months in the aggregate. Explanation : For the purposes of this section, the expression "retirement" means termination of service of a specified landlord otherwise than by resignation. 13-B. Right to recover immediate possession of residential building or scheduled building and/or non-residential building to accrue to Non-resident Indian :- (1) Where 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 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 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 before the expiry of 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." 6. A Division Bench of this Court in Sardarni Sampuran Kaur and others v. Sant Singh and another, 1982(1) RCR(Rent) 413 : (1983)85 PLR 449, has held that the definition of building in section 2(a) has to be given a contextual meaning. A Division Bench of this Court in Sardarni Sampuran Kaur and others v. Sant Singh and another, 1982(1) RCR(Rent) 413 : (1983)85 PLR 449, has held that the definition of building in section 2(a) has to be given a contextual meaning. For the purpose of eviction of a tenant of a portion of a larger building, the premises in possession of the tenant is a building within the meaning of Section 2(a) of the Act but where the ground of eviction is that the building has become unfit and unsafe for human habitation then in the context of Section 2(a) of the Act it is the larger integrated building which is required to be taken into consideration. It has been held to the following effect :- "......Herein what first deserves highlighting is the fact that the definition of the word building in Section 2 of the Act is not in terms absolute but is subject to contextual limitations. The very opening part of the said section makes it explicit that the definition is to apply only if there is nothing repugnant in the subject or the context. Consequently, the use of the word building in section 13(3)(a)(iii) has to be viewed in its particular textual context and not with any inflexible absoluteness of the literal terms of clause (a) of Section 2 of the Act. Therefore, it would be possible to construe the word building as used in section 13(3)(a)(iii) of the Act to include the integrated larger building as a whole rather than the part thereof demised to a particular tenant alone......" 7. Under section 13-B of the Act, a landlord is entitled to seek ejectment of the tenant from one residential or scheduled building. Therefore, one residential building cannot be interpreted to mean the building in possession of the tenant but an integrated building in which the landlord wishes to reside. If different portions of one integrated building has been let out to different tenants, then all the tenants can be evicted. If the interpretation suggested by the petitioner is to be accepted that the right of eviction is confined in respect of a portion of such building in possession of one tenant, it negates the very objective of providing summary eviction to Non-Resident Indians in terms of Section 13-B of the Act. 8. If the interpretation suggested by the petitioner is to be accepted that the right of eviction is confined in respect of a portion of such building in possession of one tenant, it negates the very objective of providing summary eviction to Non-Resident Indians in terms of Section 13-B of the Act. 8. Honble Supreme Court in Zenobia Bhanot v. P.K. Vasudeva and another, 1996(1) RCR(Rent) 72 : (1996-1)112 PLR 220, while interpreting pari materia provisions of Section 13-A of the Act conferring summary eviction in favour of specific landlords i.e. the landlord who is holding an appointment in public service, has held to the following effect :- ".........The provisions of the statute are clear. The right is given to a specified landlord to recover immediate possession of the residential building. He should have retired from the service and should file an affidavit that he does not own and possess any other suitable accommodation to reside. In such a case, he can require possession of his residential or scheduled building for his own occupation. The right is given to the landlord notwithstanding any other provision in the Act or any other law or any contract to the contrary to recover immediately the possession of such residential building. If such residential building is let out in parts, the landlord is given the option to recover immediately the possession of such residential building itself or any part or parts of such building, in cases where it is let out in part or parts. In cases where the building is let out in parts, the parts so let out, will form part of the building itself. All that the second proviso provides is that the said right shall not enable the landlord to recover possession of more than one residential or scheduled building inclusive or any part or parts thereof, if the building is let out in part or parts. There are no words in Section 13-A of the Act to import the idea that if a residential building is let out in parts, each part will become a residential building thereby fettering the specified landlord to avail the concession only from a part...." 9. In the present case, the premises in possession of the tenant is a small portion in a house constructed over an area of 42 feet x 62 feet. In the present case, the premises in possession of the tenant is a small portion in a house constructed over an area of 42 feet x 62 feet. If the landlord cannot seek eviction of the petitioner who is in possession of one room, it will defeat the intention of the legislature conferring right of eviction upon a landlord which has been upheld by the Honble Supreme Court in Baldev Singh Bajwa v. Monish Saini, 2005(2) RCR(Rent) 470 : 2005(4) RCR(Civil) 492 : (2005)12 Supreme Court Cases 778. 10. No other argument has been raised on behalf of the petitioner. 11. In view of the above, I do not find any patent illegality or material irregularity in the order of eviction passed by the learned Rent Controller which may warrant interference by this Court in exercise of its revisional jurisdiction. 12. Consequently, the present revision petition is dismissed. However, the petitioner is granted one month time to vacate the premises in dispute.