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2010 DIGILAW 2091 (PNJ)

Narayan Dass v. Teja Singh

2010-07-22

ALOK SINGH

body2010
Judgment Alok Singh, J. 1. Present revision petition is filed under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (for brevity the Act) by the tenant challenging the judgment passed by learned Rent Controller dated 4.4.2006, whereby learned Rent Controller, Ludhiana has directed eviction of the tenant, petitioner herein, under Section 13B of the Act. 2. Brief facts of the present case are that landlord, respondent No. 1 herein, filed an eviction petition, subsequently converted under Section 13B of the Act, for eviction of the tenant/petitioner, claiming that he is an NRI; he is owner of the property for more than five years before the filing of eviction petition; property in question was given to the tenant/petitioner on rent @ Rs.1800/- per month in the year 1998; landlord has returned to India and requires tenanted premises for his use and occupation; landlord wants to start modernized Auto Spare Unit in the entire building. 3. Tenant/petitioner sought leave to defend on the ground that landlord has also filed similar application against one Devinder Singh who is also occupying one shop forming part of the property, hence, two eviction applications under Section 13B of the Act are not maintainable. It is further averted by the tenant in the application seeking leave to defend that landlord/respondent No.l is also in possession of ample accommodation and is not entitled to invoke Section 13B of the Act. Learned Rent Controller has declined to grant leave to defend vide impugned order dated 4.4.2006 and also passed order of eviction. 4. Learned Counsel for the petitioner/tenant vehemently argued that since landlord has also filed application against the tenant Devinder Singh, hence, present application under Section 13B of the Act is not maintainable. He further argued that Devinder Singh has vacated the tenanted portion, hence, so called need of the landlord has come to an end. 5. Learned Counsel for the landlord/respondent argued that if different tenants are occupying different portions in the same building then different applications under Section 13B of the Act are maintainable. It has further been argued by learned Counsel for the landlord that initially petitions were moved against present petitioner and Devinder Singh under Section 13 of the Act, however, after introduction of Section 13B of the Act, applications were moved to convert the same into Section 13B of the Act. It has further been argued by learned Counsel for the landlord that initially petitions were moved against present petitioner and Devinder Singh under Section 13 of the Act, however, after introduction of Section 13B of the Act, applications were moved to convert the same into Section 13B of the Act. In the present case, petition was directed to be converted into Section 13B of the Act in view of the introduction of Section 13B in the Rent Act. However, Devinder Singh, had entered into the settlement with the landlord and vacated the property. Learned Counsel for the landlord further argued that in a petition for eviction under Section 13-B of the Act every presumption regarding bona fide and genuine need is in favour of the landlord and tenant/petitioner has to rebut the presumption by way of cogent evidence which ought to have been filed with the application seeking leave to defend. 6. It is undisputed that petitioner is an NRI and is an owner for five years of the building before filing the eviction petition. Relationship of landlord and tenant between the landlord/respondent No. 1 and tenant/petitioner is also not in dispute. The need set up by the landlord in the eviction petition is that he needs the entire building to start modernized Auto Spare Unit in the entire building. He intends to come back and settle in India. 7. The Honble Apex Court in the matter of Baldev Singh Bajwa v. Monish Saini reported in 2005(12) S.C.C. 778 in paragraphs No.20, 26 and 28 has observed as under:- "20. The legislative intent of expeditious disposal of the application for ejectment of the tenant filed by the NRI landlord is reflected from the summary procedure prescribed under Section 18-A of the Act of 1949 which requires the Controller to take up the matter on day-to-day basis till the conclusion of the hearing of an application. The Legislature wants the decision of the Controller to be final and does not provide any appeal or second appeal against the order of eviction, it is only the High Court which can exercise the power of consideration of the case, whether the decision of the Controller is in accordance with law. Section 13-B gives right of ejectment to special category of landlord who is NRI (Non Resident Indian); and owner of the premises for five years before action is commenced. Section 13-B gives right of ejectment to special category of landlord who is NRI (Non Resident Indian); and owner of the premises for five years before action is commenced. Such a landlord is permitted to file an application for ejectment only once during his life time. Sub-s. (3) of Section 13-B imposes a restriction that he shall not transfer through sale or any other means or lease out the ejected premises before the expiry of the period of five years from the date of taking possession of the said building. Not only that, if there is a breach of any of the conditions of sub-section (3) of Section 13-B, the tenant is given a right of restoration of possession of the said building. Under sub-section (2-B) of Section 19 the landlord has to take possession and keep it for a continuous period of three months and he is prohibited from letting out the whole or any part of such building to any other person except the evicted tenant and any contravention thereof, he shall be liable for punishment of imprisonment to the term which can be extended upto six months. These restrictions and conditions inculcate inbuilt strong presumption that the need of the landlord is genuine. Landlord, after the decree for possession, is bound to possess the accommodation. Landlord is prohibited from transferring it or letting it out for a period of five years. Virtually conditions and restrictions imposed on the NRI landlord makes it improbable for any NRI landlord to approach the Court for ejectment of a tenant unless his need is bona fide. No unscrupulous landlord probably, under this Sections, would approach the Court for ejectment of the tenant considering the onerous conditions imposed on him by which practically he is deprived of his right in the property not only as a lessor but also as the owner of the property. There is a restriction imposed even on the transfer of the property by sale or any other manner. The restriction imposed on the landlord by all probability points to the genuine requirement of the landlord. In our view there are inbuilt protections in the relevant provisions, for the tenants that whenever the landlord would approach the court he would approach when his need is genuine and bona fide. It is, ofcourse, subject to tenants right to rebut it but with strong and cogent evidence. In our view there are inbuilt protections in the relevant provisions, for the tenants that whenever the landlord would approach the court he would approach when his need is genuine and bona fide. It is, ofcourse, subject to tenants right to rebut it but with strong and cogent evidence. In our view, the proceeding taken up under Section 13-B by the NRI landlords for the ejectment of the tenant, the Court shall presume that landlords need pleaded in the petition is genuine and bona fide. But this would not dis-entitle the tenant from proving that in fact and in law the requirement of the landlord is not genuine. A heavy burden would lie on the tenant to prove that the requirement of the landlord is not genuine. To prove this fact the tenant will be called upon to give all the necessary facts and particulars supported by documentary evidence, if available, to support his plea in the affidavit itself so that the Controller will be in a position to adjudicate and decide the question of genuine or bona fide requirement of the landlord. A mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlords favour that his requirement of occupation of the premises is real and genuine. 26. On the interpretation given by us and on a plain reading of the provisions, once in a lifetime possession is given to a NRI to get one building vacated in a summary manner. A Non-resident Indian landlord is required to prove that:- (i) he is a NRI; (ii) that he has return to India permanently or for the temporary period; (iii) requirement of the accommodation by him or his dependent is genuine and; (iv) he is the owner of the property for the last five years before the institution of the proceedings for ejectment before the Controller. The tenants affidavit asking for leave to contest the NRI landlords application should confine to the grounds which NRI landlord is required to prove, to get ejectment under Section 13-B of the Act. The Controllers power to give leave to contest the application filed under Section 13-B circumscribe to the grounds and inquiry to the aspects specified in the Section 13-B. The tenant would he entitled for leave to contest only if he makes a strong case to challenge those grounds. The Controllers power to give leave to contest the application filed under Section 13-B circumscribe to the grounds and inquiry to the aspects specified in the Section 13-B. The tenant would he entitled for leave to contest only if he makes a strong case to challenge those grounds. Inquiry would be confined to Section 13-B and no other aspect shall be considered by the Controller. 28. In the facts and circumstances of the case, the High Court was right in holding that the landlord is not required to prove that he would permanently return to India. From the available material on record it is apparent that the tenant had not placed before the Controller the cogent material in his affidavit or along with the affidavit to prove that the landlord is in possession of reasonable suitable accommodation as owner, in his possession, to indicate that landlords need was not genuine and bona fide. In this circumstance, we do not find any infirmity in the order passed neither by the Controller refusing to grant leave to contest nor by the High Court dismissing the revision petition of the appellant." 8. As per dictum of the Honble Apex Court in the matter of Baldev Singh (supra) a heavy burden is on the tenant to prove that requirement of the landlord is not genuine and to prove this fact, tenant shall give all the necessary facts and particulars supported by documentary evidence in the affidavit itself alongwith an application seeking leave to defend. In the present case, petitioner/tenant has not given particulars of another building available with the landlord. Landlords case that he requires entire building to start modernized Auto Spare Unit stands proved on the refusal of permission to the tenant to defend. 9. Learned Single Judge of this Court in the matter of Harbhajan Singh v. Gurdial Singh (2006-2)143 P.L.R. 23 in paragraph No.8 has observed as under:- "8. Therefore, the mere fact that each of the petitioners has been inducted in a separate defined area or in part of the premises as a tenant will not disentitle the landlord to seek eviction of the tenants from the entire building. To seek eviction, each part let out would be building so as to maintain an eviction petition under the Act. To seek eviction, each part let out would be building so as to maintain an eviction petition under the Act. But to determine the requirement of landlord for use of the building for his bona fide personal requirement, it would be integrated building of which the tenant was inducted in part. It is not the case of the tenants that each of the portion let out has been assigned separate Municipal number and the site plans in respect of such portions were sanctioned separately. Thus, it is a case of one integrated large building portions of which were let out to different tenants. Therefore, under section 13-B of the Act, the landlord has a right to seek ejectment from a building which is in possession of the tenants." 10. In view of the judgment in the matter of Harbhajan Singh (supra) filing of another application against Devinder Singh for the part of the same building and getting possession of that tenanted portion of Devinder Singh will not make present eviction petition nonmaintainable. 11. No other point is argued. 12. Considering entire material available on record, I do not find any illegality or perversity in the impugned judgment dated 4.4.2006 passed by learned Rent Controller. Impugned judgment requires no interference, hence, is dismissed with costs, which is assessed at Rs.20,000/-.