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2014 DIGILAW 1659 (PNJ)

Jaswinder Singh v. Mewa Singh

2014-12-01

SURINDER GUPTA

body2014
Surinder Gupta, J. 1. This revision petition has been filed against order dated 09.01.2013 passed by learned Rent Controller, SAS Nagar (Mohali), whereby application filed by revision petitioner Jaswinder Singh seeking leave to contest the petition filed by respondent No. 1-landlord under Section 13-B of East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act), was dismissed. The case of respondent No. 1 -landlord, in brief, is that he had purchased the demised premises from its earlier allottee Kanwaljit Singh and allotment letter was issued in his favour in the year 1999. Respondent No. 1 is Non-Resident Indian and is holding permanent residency of Greece at his address, 146 AGXIALOU, St. 18544, Piraeus (Greece). His permanent residence permit issued by the authorities of Greece on his passport also reflects the same. The passport dated 12.7.1996 with expiry on 11.7.2006, dated 9.3.2001 with expiry on 11.7.2006 and dated 5.6.2006 with expiry on 4.6.2016 were duly issued to respondent No. 1 from Athens (Greece). Respondent No. 1 is having right to vote at Greece. The declaration record of respondent No. 1, for right to vote, on the electoral register of Municipality of Piraeus, Greece also reflects the same. 2. As per respondent No. 1, revision petitioner was initially inducted as tenant of booth No. 26, Phase-1, SAS Nagar (Mohali) (including basement and first floor) on 1.1.2003. The terms of rent were settled from time to time and from January, 2011, rent was settled as ` 13,000 per month. 3. Respondent No. 1 projected his requirement for the demised premises in para 11(i) of his petition which reads as follows:-- "(i) That the petitioner is an NRI who is owner of the demised premises for more than 5 years and is resident of Greece. The petitioner wants to start a business of computer cyber cafe, Photostat, internet etc. in the demised premises for himself and for the establishment of his son Satvir Singh, who is having a vast knowledge and experience of computer networking systems and internet. The son of the petitioner is also upgrading his qualification of BCA, which is directly related to the field of computers. in the demised premises for himself and for the establishment of his son Satvir Singh, who is having a vast knowledge and experience of computer networking systems and internet. The son of the petitioner is also upgrading his qualification of BCA, which is directly related to the field of computers. Alongwith his son Satvir Singh, the petitioner also want to settle his daughter Amandeep Kaur in the field of business consultancy by opening her office in the demised premises because the daughter of the petitioner is holding a decree of MBA in the major field of Human Resources and minor field of Marketing. The petitioner alongwith his son and daughter, choosing it to be a permanent abode for his children, because city SAS Nagar also comes on the world map and is flourishing widely with good opportunity of business due to the stepping of multinational companies in the development of business opportunities in the city for which the petitioner want to take complete benefit of the same by establishing and exploring business for his children over here. The need of the petitioner is genuine and bonafide." 4. Respondent No. 1 has also referred to the violation of other provisions of the Act, which are not relevant or require discussion while deciding this revision petition. 5. In his application under Section 18-A(5) of the Act, revision petitioner Jaswinder Singh raised the plea that respondent No. 1-landlord has not come to the Court with clean hands by concealing material facts. It has been alleged that the premises in dispute was required by respondent No. 1-landlord in order to support his children, who have no intention to start the business as alleged. The son of respondent No. 1 is minor and studying while his daughter does not require this premises. Respondent No. 1 is in occupation of SCF No. 23 Phase-6 Mohali, where he is running the business in the name and style of "M/s. Interseas Marritime S.A. of Travel Agency. As he is already in possession of the above premises, his requirement projected in this petition is a prayer for additional accommodation and revision petitioner is required to be granted leave to contest on this score only. It is also pleaded that respondent No. 1-landlord is not covered under the definition of Non-Resident Indian. He is running his business in SCF No. 23 Phase-6 Mohali and is permanent resident of India. It is also pleaded that respondent No. 1-landlord is not covered under the definition of Non-Resident Indian. He is running his business in SCF No. 23 Phase-6 Mohali and is permanent resident of India. He had been going out of India for short period of time on temporary visa to different countries i.e. Canada, Bahrain, Greece and England. For coming under the definition of Non-Resident Indian, it is imperative for the respondent-landlord to prove on record that he has permanently settled outside India for a continuous period of time, which is lacking in his case. Mere issuance of resident permit by the Government of Greece is of no consequences particularly when the petitioner had hardly visited Greece. A perusal of the passport produced by the respondent No. 1 shows that he had hardly been out of India. 6. In reply, respondent No. 1-landlord has stated that he is holding permanent resident permit of Greece, which is valid upto 4th of June, 2016 and also has the right to vote there, as such, he is a Non-Resident Indian. The averments of the revision petitioner in the application seeking leave to contest were controverted and denied interalia pleading that demised premises was required by respondent No. 1-landlord to start the business of Computer Cyber Cafi, Photostat, Internet etc. where he want to settle his son Satvir Singh and daughter Mandeep Kaur. It is admitted that he at present is running his business under the name and style of "M/s. Interseas Marritime S.A. at ground floor of SCF No. 23, Phase-6, Mohali. The first floor of that premises has been rented out by respondent No. 1 to Satinderjit Singh, resident of village Tughalwal, District Gurdaspur and second floor has been rented out to M/s. Advance Engineers and Consultants and M/s. Advance Engineers India Pvt. Ltd. Respondent No. 1-landlord has however, avoided to give any specific reply to the plea of the respondent that he is residing in India for the last four years and has seldom gone abroad. On the other hand, he has pleaded that "there is no such provision under the Act which can curtail, restrict or control the visits of Non-Resident Indian abroad." The petitioner went to Greece from 17.02.2011 to 05.03.2011, from 03.08.2011 to 01.09.2011 and from 26.02.2012 to 09.03.2012. The above fact is duly reflected in the entries of his passport. 7. On the other hand, he has pleaded that "there is no such provision under the Act which can curtail, restrict or control the visits of Non-Resident Indian abroad." The petitioner went to Greece from 17.02.2011 to 05.03.2011, from 03.08.2011 to 01.09.2011 and from 26.02.2012 to 09.03.2012. The above fact is duly reflected in the entries of his passport. 7. Learned Rent Controller vide impugned order rejected all the pleas raised by revision petitioners and declined the application for grant of leave to contest and passed orders of ejectment of petitioner from demised premises. 8. I have heard learned counsel for the parties and perused the paper book with their assistance. 9. Section 2(dd) of the Act gives definition of Non-Resident Indian as follows:-- "(dd) "Nor resident Indian" 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 a uncertain period." 10. In this case, as admitted by respondent No. 1-landlord, he is carrying on his business in SCF No. 23, Phase-6, Mohali. As per respondent No. 1, he possessed permanent residency of Greece valid upto June, 2016 but as per the details given by him in para (XV) of reply, he had visited Greece during the period of February 2011 till the date of filing reply i.e. 14th December, 2014, on following occasions:-- (i) 17.02.2011 to 05.03.2011 17 days (ii) 03.08.2011 to 01 09.2011 30 days (iii) 26.02.2012 to 09.03.2012 12 days 11. It shows that respondent No. 1 had visited Greece for a period of only 59 days in a span of about two years. The above data as given by respondent No. 1-landlord himself require to be looked into to make out as to whether respondent No. 1-landlord falls under the definition of Non-Resident Indian, who is either permanently or temporarily settled outside India and whether a visit for 59 days to a country which has given him permanent residency reflects that respondent No. 1 has settled outside India. It is also to be seen as to whether he is permanently or temporarily settled outside India for or on taking employment, for carrying on his business or on vacation or for any other purpose. It is also a point to be looked into as to whether his visit of 59 days in two years to Greece indicates his intention to settle outside India for an uncertain period. 12. Learned Rent Controller has relied upon the grant of permanent resident status by the State of Greece to respondent No. 1 to reach a conclusion that he is a Non-Resident Indian. The facts and circumstances narrated above and the provisions of Section 2(dd) were neither discussed nor kept in view while reaching a conclusion that this petition under Section 13-B of the Act is maintainable. This provided sufficient reason to allow leave to defend to the revision petitioner to contest the status of respondent as 'Non-Resident Indian' and his competence to file petition under Section 13-B of the Act. 13. Learned counsel for revision petitioner has further argued that requirement of respondent No. 1-landlord is an additional requirement as he is already carrying on his business in SCF No. 23 Phase-6 Mohali and when additional accommodation is required, leave to contest should be allowed. He has relied upon the observations of Coordinate Bench of this Court in case Mrs. Kushal Takhar v. Gurinder Singh, 2009(1) R.C.R. (Civil) 629 : 2009(1) R.C.R. (Rent) 33 : 2009(1) PLR 344 and Nelson Christopher v. Pritam Singh 2010(1) R.C.R. (Rent) 16 : 2010(1) PLR 311 . 14. The above contention of learned counsel for the revision petitioner is not tenable as respondent No. 1-landlord in this case has sought eviction of the revision petitioner for bona fide personal necessity of his son and daughter. Section 13-B of the Act allows the landlord to get the demised premises under the occupation of tenant vacated for his or her use or for the use of anyone ordinarily living with him or dependent on him or her. It is no more res integra that requirement of son and daughter is personal bona fide need of landlord, If respondent No. 1- landlord has sought the premises for the bona fide need of his son and daughter, it is not an additional requirement of additional accommodation. In Mrs. It is no more res integra that requirement of son and daughter is personal bona fide need of landlord, If respondent No. 1- landlord has sought the premises for the bona fide need of his son and daughter, it is not an additional requirement of additional accommodation. In Mrs. Kushal Takhar's case (supra), the landlady was already in occupation of first and second floor of the house and was seeking ejectment of the tenant from the ground floor. Under these circumstances, it was held that landlord cannot be permitted with summary mechanism to seek the ejectment of tenant. The observation in Nelson Christopher's case (supra), is based on facts and circumstances not applicable to the present case. This argument of learned counsel for revision petitioner has no merits, as such, is discarded. In view of my above discussion, the impugned order passed by learned Rent Controller suffers from legal infirmity as it has not fully appreciated the pleas raised by the revision petitioner and the ground taken by respondent No. 1-landlord to find as to whether he is covered under the definition of Non-Resident Indian and the petition filed under Section 13-B of the Act, is maintainable or not. To prove a plea taken by respondent No. 1-landlord that he is Non-Resident Indian, evidence is required. This revision petition as such, is accepted. The impugned order of learned Rent Controller is set aside and the application of revision petitioners seeking leave to contest is allowed. Learned Rent Controller is directed to proceed with the ejectment petition filed by respondent No. 1 -landlord in accordance with law. Parties to appear before Rent Controller, SAS Nagar (Mohali) on 22.12.2014.