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2010 DIGILAW 2695 (PNJ)

Suresh Kumar Uppal v. Jiwan Singh Kalsi

2010-09-20

MAHESH GROVER

body2010
Judgment Mahesh Grover, J. 1. This common judgment will dispose of the aforementioned two revision petitions as the same have been preferred against one judgment dated 2,4.2010 passed by the Rent Controller, Ludhiana in Rent Application No. 62 of 2007. 2. Respondent no.1- Jiwan Singh Kalsi, who is a Non-Resident Indian (for short, N.R.I.) filed the abovesaid rent application under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 (for brevity, the Act) seeking eviction of his four tenants including the petitioners herein from the tenanted shops on the ground that he requires the demised premises for his bona fide need as he contemplates to set up a Restaurant and Hotel therein. It was pleaded by respondent no.l that the property bearing no. BXV- 998,Miller Ganj, G.T.Road, Ludhiana of which the demised premises are a part, was owned by him as he along with his brother had purchased the same vide registered sale deed dated 29.6.1964; that during a family settlement, the aforesaid property came to be exclusively owned by him; that the demised premises, which are four shops and are situated at ground floor, were rented out to the petitioners & respondent nos. 3 & 4 - Ganga Ram and Sanjiv Kumar on different dates vide separate rent notes; that they were paying rent regularly to him and were running their businesses therein; that the building in question consists of three storeys; that he wants to set up a restaurant and Hotel on the ground floor; that in the evening of life, he wants to come to India and to invest for running the said business; that he is not owning any other property within the urban limits of Ludhiana nor has he vacated any such non-residential building there and that he is entitled to recover the possession of the demised premises under the provisions of Section 13-B of the Act. 3. Upon notice having been given to the petitioners and respondent nos. 3 & 4, three applications for grant of leave to defend were moved by petitioner-Suresh Kumar Uppal, petitioner- Om Parkash Pandey & respondent no.3- Ganga Ram. 3. Upon notice having been given to the petitioners and respondent nos. 3 & 4, three applications for grant of leave to defend were moved by petitioner-Suresh Kumar Uppal, petitioner- Om Parkash Pandey & respondent no.3- Ganga Ram. In his application, petitioner-Suresh Kumar Uppal averred that respondent no.l was not an N.R.I.; that he had not shifted or come to India permanently which is a pre-condition for filing an eviction application and that respondent no.l is permanently settled in United Kingdom along with his family and has no intention to shift to India. Petitioner-Suresh Kumar stated that respondent no. 1 had told him that if he did not want to vacate the shop under his occupation, then he could purchase the same, but as the sale consideration offered by him was less, the deal could not fructify. He, thus, pleaded that respondent no. 1 did not have any bona fide need. It was averred that respondent no. 1 was owner and in possession of another property bearing no. B.XV.132, G.T.Road, Miller Ganj, Ludhiana, which is commercial in nature, but this fact has not been disclosed by him. In their applications, petitioner- Om Parkash Pandey and respondent no.3-Ganga Ram had also pleaded on the similar lines. By the impugned judgment, the Rent Controller, after hearing the counsel for the parties and perusal the material on record, dismissed the applications for leave to defend, accepted the eviction application and ordered the ejectment of the petitioners and respondent nos. 3 & 4 from the demised premises. 4. Feeling aggrieved, the petitioners have instituted these two revision petitions. 5. Learned counsel for the petitioners has raised multi-fold arguments in support of the plea of the petitioners that their applications under Section 18-A of the Act should have been allowed. In brief, his contentions can be summed up as under:- (1) The demised premises do not exclusively belong to respondent no.l as he is merely a co-owner and that in the absence of all the co-owners prosecuting the petition, the instant proceedings by one co-owner who claims to be N.R.I., the entire premises cannot be got vacated. (2) The bona fide of respondent no. 1 is questionable. (3) The petitioners were entitled to reasonable opportunity to present their case. (2) The bona fide of respondent no. 1 is questionable. (3) The petitioners were entitled to reasonable opportunity to present their case. (4) The special power of attorney through whom the eviction application was filed, was not authorised to institute the proceedings especially when the need was pleaded to be personal necessity of the owner and that there was no relationship of landlord and tenant. 6. I have thoughtfully considered the contentions of the learned counsel for the petitioners and have perused the impugned judgment. Respondent no.1 invoked the provisions of Section 13-B of the Act which is a special legislation. A combined reading of these provisions along with those of Section 19 (2B) of the Act reveals that the requirements which ought to be satisfied by such an owner are:- 1. He is a Non Resident Indian. 2. He is owner of the demised premises for 5 years before he applied to Controller for possession. (2) He requires the same for his own use or for use of any one ordinarily living with him and is dependent on him. (3) He has not availed of the benefit of the provisions of Section 13-B of the Act more than once during his life time. (4) He has choice to select one amongst several other residential buildings and/ or non-residential buildings. (5) If he gets possession under Section 13-B(2), he shall neither transfer it either by sale or by any other mode nor he shall let it out for the period of five years. (6)After getting possession, he should occupy the premises continuously for a period of 3 months. (7) He is prohibited from letting out the whole or any part of that building from which the tenant has been evicted to any other person except the tenant who had been evicted. Respondent no. 1 pleaded that he is a Non Resident Indian and this fact was not disputed by the petitioners when they admitted in their applications under Section 18-A of the Act that he was settled in United Kingdom. In this view of the matter, the status of respondent no. 1 as Non Resident Indian stands established. 7. The contention of the petitioners that respondent no.l is a co-owner and is not an exclusive owner of the demised premises is belied from the record. In this view of the matter, the status of respondent no. 1 as Non Resident Indian stands established. 7. The contention of the petitioners that respondent no.l is a co-owner and is not an exclusive owner of the demised premises is belied from the record. It has specifically been pleaded by respondent no.l that during an oral family settlement dated 22.3.1995, he and his brother had partitioned the properties and the property in question fell to his share. To further corroborate the factum of family settlement, respondent no. 1 placed on record copy of jamabandi for the year 2004-2008 wherein he has been shown as exclusive owner of the property in question. Therefore, this contention has to be repelled, as also the contention that one co-owner cannot seek eviction of the entire premises. It is a settled proposition of law that one co-owner can do so unless it is objected to by the other co-owners, who choose to take a deviant stand. No such material is on record to show any objection of other co-owners. 8. The next condition which respondent no. 1 was required to be fulfilled was that he was owner of the demised premises for more than five years. A perusal of sale deed dated 29.6.1964 shows that the property in question was purchased by respondent no.l and his brother. Thereafter, as noticed above, the same fell to his share in a family partition in the year 1995. Thus, he was exclusive owner of the demised premises for more than five years. 9. It has also not been shown that respondent no.l has availed of the benefit of Secetion 13-B of the Act in respect of any other building or that he has initiated any proceedings under the provisions of that Section earlier as well. 10. In view of the above, the essential ingredients for invoking the provisions of Section 13-B of the Act stood adequately established. 11. The plea of the petitioners that the attorney through whom the eviction application was filed could not state about the bona fide requirement of respondent no.l to possess the demised premises does not merit acceptance. The petitioners did not raise this contention before the Rent Controller. Besides, a tenant does not deserve any indulgence when he disputes the fact that the demised premises was not let out to him by the landlord. The petitioners did not raise this contention before the Rent Controller. Besides, a tenant does not deserve any indulgence when he disputes the fact that the demised premises was not let out to him by the landlord. The record shows that demised premises were let out by the respondent and his special attorney. It is a settled proposition that an attorney acts on behalf of the principal. The petitioners, who have tried to deny the relationship of landlord and tenant, in my opinion, are not entitled to any equity in law. The question of deposition by the attorney did not arise, as in proceedings under Section 13-B , special procedure which is summary in nature, has been prescribed under Section 18-A of the Act. That apart, a contention was also raised by the petitioners that the demised premises measures 205 square yards and that is not sufficient to run a hotel business. I am afraid, the petitioners have no locus standi to question the right of the landlord to utilize the demised premised in any manner in which he chooses and in any eventuality, if the demised premises is not utilized for the stated purpose, they have remedy under the law. 12. In Baldev Singh Bajwa v. Monish Saini, 1 (2005)12 SC 442 : 2005(4) R.C.R. (Civil) 492, their Lordships of the Apex Court observed as follows:- "19. From (the aforesaid decisions the requirement of the landlord of the suit accommodation is to be established as genuine need and not a pretext to get the accommodation vacated. The provisions of Sections 18-A(4) and (5) concede to the tenants right to defend the proceedings initiated under Section 13-B showing that the requirement of the landlord is not genuine or bona fide. The legislative intent for setting up of a special procedure for NRI landlords is obvious from the legislative intent which has been deliberately designed making distinction between the ordinary landlords and special category of landlords. The Controllers power to give leave to contest the application filed under Section 13-B is restricted by the condition that the affidavit.filed by the tenant discloses such fact as would disentitle the landlord from obtaining an order for recovery of possession. It is needless to say that in the summary proceedings the tenants right to contest the application would be restricted to the parameters of Section 13-B of the Act. It is needless to say that in the summary proceedings the tenants right to contest the application would be restricted to the parameters of Section 13-B of the Act. He cannot widen the scope of his defence by relying on any other fact which does not fall within the parameters of Section 13-B. The tenants defence is restricted and cannot go beyond the scope of the provisions of the Act applicable to the NRI landlord. Under Section 13-B the landlord is entitled for eviction if he requires the suit accommodation for his or her use or the use of the dependent, (who) ordinarily lives with him or her. The requirement would necessarily to be genuine or bona fide requirement and it cannot be said that although the requirement is not genuine or bona fide, he would be entitled to the ejectment of the tenant nor it can be said that in no circumstances the tenant will not be (will be ?) allowed to prove that the requirement of the landlord is not genuine or bona fide. A tenants right to defend the claim of the landlord under Section 13-B for ejectment would arise if the tenant could be able to show that the landlord in the proceedings is not NRI landlord; that he is not the owner thereof or that his ownership is not for the required period of five years before the institution of proceedings and that the landlords requirement is not bona fide. 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. Such a landlord is permitted to file an application for ejectment only once during his life time. 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-section (3) of Section 13-B imnoses 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 subsection (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 section, 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............" (Emphasis supplied)." 13. 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............" (Emphasis supplied)." 13. Thus, in view of the aforequoted observations of the Supreme Court, there is a strong presumption of law regarding the bona fide need of the landlord, who invokes the provisions of Section 13-B of the Act, which , in the instant case, has not been adequately overturned by the pleadings of the petitioners and the material on record. 14. Consequently, 1 am of the considered opinion that there is no infirmity in the impugned judgment of the Rent Controller. 15. The revision petitions are, therefore, dismissed, being devoid of any merit.