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2024 DIGILAW 872 (PNJ)

P. S. Hosiery Factory v. Gulshan Rai Saini

2024-05-17

GURBIR SINGH

body2024
JUDGMENT : Mr. Gurbir Singh, J. Vide this common judgment, two revision petitions i.e. CR-1296- 2022 (O&M) and CR-1318-2022 (O&M) shall be disposed of. 2. For the sake of convenience, facts are being taken from CR-1296- 2022 (O&M). The parties hereinafter shall be addressed to as per their original status before the learned Rent Controller. 3. Challenge in the present revision petition filed under Article 227 of the Constitution of India is to the order dated 20.08.2019 (Annexure P-4), passed by learned Civil Judge (Junior Division), Ludhiana (for brevity – Rent Controller), whereby application filed by the petitioner for dismissal of ejectment petition, has been declined. 4. The facts in brief, necessary for proper adjudication of the present revision petition, are that petitioner-landlord Gulshan Rai Saini filed ejectment petition dated 24.05.2017 (Annexure P-1), under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short – the Act of 1949), for ejectment of the respondents-tenants, on the ground that Gobind Ram – father of the petitioner purchased the property in question vide sale deed dated 06.08.1957 and he let out one shop i.e. shop no.2, forming part of the said property, to the respondents-tenants vide rent note dated 19.04.1988. Gobind Ram died leaving behind his wife Krishna Devi as sole owner of the property in question on the basis of Will dated 30.09.2003. Krishna Devi died leaving behind the petitioner and other legal heirs, who inherited the property. There exists relationship of landlord and tenants between the parties. Ejectment petition has been filed under Section 13 of the Act of 1949 on the grounds of non-payment of arrears of rent and bona fide requirement of the shop for running business by the petitioner and his brother. The tenants contested the petition. During pendency of the petition, an application was moved by the tenants for dismissal of eviction petition on the ground that the petitioner is an NRI (non-resident Indian) and as per provisions of Section 75 of the Punjab Rent Act, 1995 (for short – the Act of 1995), the petition filed by the petitioner-landlord for ejectment of respondents-tenants can only be filed under the said Act. However, the learned Trial Court, vide impugned order dated 20.08.2019, dismissed the said application on the ground that although the petitioner is an NRI but the ejectment petition has been filed being a regular landlord and not as an NRI landlord and the provisions of Section 75(2) of the Act of 1995 would not be applicable in the present case. 5. Learned counsel for the tenants has argued that the petition for ejectment has been filed by NRI being co-sharer in the property. Therefore, provisions of Section 75(2) of the Act of 1995 should have been applied. The cases belonging to the properties owned by NRIs can only be filed under the Act of 1995 after its commencement and not under the Act of 1949. 6. Learned counsel for the landlord, on the other hand, has argued that the ejectment petition has not been filed for immediate possession of the tenanted premises but has been filed as a regular landlord. Tenancy was created long time back. So, the provisions of the Act of 1949 are applicable to the instant petition. 7. I have heard the submissions of learned counsel appearing for the parties and have carefully perused the record. 8. Admittedly, as per version of the landlord, he has inherited the property from his mother along with other legal heirs. So, landlord is also co-sharer of the tenanted premises. The tenancy was created on 19.04.1988. The Act of 1995 came into force on 30.11.2013. The ejectment petition has been filed on 24.05.2017 under Section 13 of the Act of 1949, for ejectment of the tenants from the shop in question. As per Section 3(a) of the Act of 1995, all premises, which were let out prior to 30.11.2013, have to be governed by the Act of 1949. Section 3 of the Act of 1949 is as under :- “[3. As per Section 3(a) of the Act of 1995, all premises, which were let out prior to 30.11.2013, have to be governed by the Act of 1949. Section 3 of the Act of 1949 is as under :- “[3. Premises exempted from the operation of the Act (1) Nothing in this Act shall apply,- (a) to any premises let out before the commencement of this Act: (b) to any premises belonging to or let out to the State Government or the Government of India or a local authority: (c) to any premises constructed on or after the commencement of this Act, for a period of fifteen years from the date of completion of construction; Explanation I – The expression “date of completion of construction” shall mean the date of completion as intimated to the concerned authority or of assessment to property tax, whichever is earlier, and, where the premises has been constructed in stages, the date on which the initial building was completed and an intimation thereof was sent to the concerned authority or was assessed to property tax, whichever is earlier. Explanation II – The expression “premises constructed” shall include – (i) re-building of more than seventy five per cent of an existing building; and (ii) additional construction to an existing building; (d) to any premises let out to citizens of a foreign country or an embassy, High Commission, legation or commission of a foreign State or such international organization, as may be specified by the State Government, by notification in the Official Gazette; (e) to any premises belonging to such religious, charitable or educational trust or class of trusts, as may be specified by the state Government, by notification in the Official Gazette; (f) to any premises let out by a hire-purchaser, lessee or sub-lessee (by whatever name called), who has been allotted such premises by the Punjab Urban Development Authority or any other local authority by way of an agreement of hire-purchase, lease or sublease, even before the full ownership rights accrue to such hire-purchaser, lessee or sub-lessee, as the case may be. (2) For non-residential premises, contract renting shall be admissible during the subsisting period of contract. Such premises shall be governed by the conditions of the contract and litigation under any other law shall not be permissible. (2) For non-residential premises, contract renting shall be admissible during the subsisting period of contract. Such premises shall be governed by the conditions of the contract and litigation under any other law shall not be permissible. A landlord violating the conditions laid down in the contract and agreed to by the parties shall not be entitled for rent for the period of violation and if the tenant violates the conditions, he shall be liable to pay double the rent for the period, in question, in addition to immediate dispossession through the Rent Authority.]” 9. Section 75 of the Act of 1995 pertains to repeal and savings. As per Section 75(2) of the Act of 1995, all cases pertaining to premises, let out prior to the commencement of this Act, shall be governed by the Act of 1949 except owned by NRIs. Section 75(2) of the Act of 1995 reads as under :- “[75. Repeal and savings - (1) xx xx xx xx xx (2) Notwithstanding the repeal of the East Punjab Urban Rent Restriction Act, 1949 (East Punjab Act No.III of 1949), under subsection (1), all cases and other proceedings in respect of the premises, other than owned by a non-resident Indian, let out prior to the commencement of this Act shall be governed and disposed of in accordance with the provisions of the Act so repealed.]” 10. In the Act of 1949, the term “landlord” is defined under Section 2(c) of the said Act, which reads as under:- “2. Definitions:- (c) “landlord” means any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf or for the benefit, of any other person, or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who sublets any building or rented land in the manner hereinafter authorised, and, every person from time to time deriving title under a landlord;” 11. Under the Act of 1995, the term “landlord” is defined under Section 2(c) of the said Act, which reads as under :- “2. Under the Act of 1995, the term “landlord” is defined under Section 2(c) of the said Act, which reads as under :- “2. Definitions:- (c) “Landlord” means a person who, for the time being is receiving or entitled to receive the rent of any premises, whether on his own account or on account of or on behalf of, or for the benefit of any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent, if the premises were let to a tenant;” 12. Under the Act of 1949 or under the Act of 1995, ejectment petition can be filed by a person who may not be the owner but should be landlord, as defined in the respective Acts. 13. Originally, there was no provision in the Act of 1949 to recover immediate possession by an NRI, who wanted to return to India and property is required by a landlord for personal use etc. Vide Punjab Act No.9 of 2001 dated 31.05.2001, Section 13-B was added, whereby right to recover immediate possession of the tenanted premises was accrued to NRI landlord. Section 13-B of the Act of 1949 reads as under:- “[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.]” 14. The aforesaid provision has now been retained in Section 24(3) of the Act of 1995, whereby right has been given to the NRI landlord to recover immediate possession. Section 24(3) of the Act of 1995 is as under :- “[24. Right to recover immediate possession of premises to accrue to widows, handicapped persons, old persons, freedom fighters and non-resident Indians - (1) xx xx xx xx (2) xx xx xx xx (3) Where an owner is a non-resident Indian and returns to India for permanent residence, he or she may apply to the Rent Authority for recovery of immediate possession of residential or/and non-residential premises let out by him or her on or prior to the commencement of this Act, which are required for his or her use, or for the use of any one ordinarily living with and dependent on him or her. Explanation – “non-resident Indian” means a person of Indian origin, who is either permanently or temporarily settled outside India, in either case – (i) for or on taking up employment outside India; or (ii) for carrying on a business or vocation outside India; or (iii) for any other purpose, in such circumstances, as would indicate his intention to stay outside India for an uncertain period.] 15. Thus, under the Act of 1949, a landlord can file a petition for ejectment of the tenant on different grounds. As per the said Act, in addition, an NRI landlord, who is owner of the property, can file a petition for ejectment for immediate possession from the tenant. Thus, under the Act of 1949, a landlord can file a petition for ejectment of the tenant on different grounds. As per the said Act, in addition, an NRI landlord, who is owner of the property, can file a petition for ejectment for immediate possession from the tenant. Similarly, under the Act of 1995, a landlord can file a petition for ejectment on different grounds but NRI landlord can also file a petition for immediate possession of the tenanted premises if the same is owned by him. 16. In the present case, the ejectment petition has been filed by the landlord for ejectment of the tenant and not for immediate possession under the Act of 1949. As per the provisions of Section 75(2) of the Act of 1995, the tenancy, which was accrued prior to coming of the Act of 1995, shall be governed and disposed of in accordance with the provisions of the Act of 1949. Since the ejectment petition has been filed with regard to tenancy created prior to coming of the Act of 1995 and is not for immediate possession by the NRI landlord, so, the petition under the Act of 1949 is maintainable. 17. In the light of the above discussion, it is held as under :- A. If the tenancy is created prior to 30.11.2013 and ejectment petition is filed by the NRI landlord for possession, on different grounds, but not for immediate possession as owner of the property, as per Section 13-B of the Act of 1949, then the provisions of the Act of 1949 are applicable. B. If ejectment is sought by the NRI landlord, being owner of the property, for immediate possession, then the provisions of the Act of 1995 shall be applicable and petition under Section 13-B of the Act of 1949 is not maintainable. 18. Accordingly, in view of what has been discussed in preceding paragraphs, I do not find any illegality or perversity in the impugned order dated 20.08.2019 passed by learned Trial Court so as to warrant interference at the hands of this Court. The present revision petition is without any merit and the same is, therefore, dismissed. 19. Pending applications, if any, shall stand disposed of along with this judgment. 20. A photocopy of this judgment be placed on the file of other connected matter.