Monjit Kaur vs Faqir Chand on 3 December, 2014

[Cites 12, Cited by 1]

Punjab-Haryana High Court

Monjit Kaur vs Faqir Chand on 3 December, 2014

Challenge in the present revision petition, filed by the petitioner- landlady, is to the order dated 06.07.2013 (Annexure P4), passed by the Rent Controller, Bathinda, wherein it has allowed the application to contest, filed under Section 18-A(5) of the East Punjab Urban Rent Restriction Act, 1949 (for short, the 'Act'). The reasoning given by the Rent Controller, in its one page order, whereby the brief background of the case was given, is that there are certain grounds given in the application to give an opportunity to contest the application and therefore, in the interest of justice, the said application was allowed. Relevant portion of the order read as under:

"As per the averments of the applicant/respondent he has sufficient evidence and he has already mentioned certain grounds in his application for giving opportunity to defend the petition against the petitioner and in case respondent is not allowed to contest the eviction application by granting leave to contest, he will suffer irreparable loss and an opportunity of being heard is must. Hence in the interest of justice, the application is allowed. Now, to come up on 23.07.2013 for filing reply to the main petition."

SAILESH RANJAN 2014.12.31 12:32 I attest to the accuracy and integrity of this document CR No.6417 of 2013 -2-

A perusal of the paperbook would go on to show that an application under Section 13-B of the Act was filed by the petitioner-landlady for possession of the shop on the ground that she holds a Malaysian passport and was married to an Indian citizen, who is in Government service and she fell within the definition of an NRI and was owner of a portion of the building which comprised of two shops. Her father was the initial owner, who left a registered Will, giving the building to a son and five daughters and on account of the death of the father, as per the family settlement dated 21.04.2005, partition proceedings had been effected. The disputed shop and the adjoining shop went to the share of the petitioner and therefore, she was the owner for more than 5 years. It was alleged that she had returned to India in March, 2011 and intended to settle at Bathinda permanently. The shop in question was to be used to start business of departmental store with the help of her son, Sukhjinder Singh, who was unemployed and idle.

The application was contested by filing an application to leave to contest under Section 18-A (5) of the Act, in which, various grounds were taken that the landlady was not falling under the definition of NRI, as defined under Section 2 (dd) of the Act as she was not born in India and was of foreign origin and the eviction proceedings were contested. An earlier petition had been filed for personal necessity, which had been dismissed as withdrawn on 14.08.2008 and that she had other shops and therefore, she was estopped by her own act and conduct.

In the reply to the application, the pleadings under Section 13-B were reiterated that she was an NRI and the sale deed in favour of her father was appended and that even if she was born in Malaysia, she would be an NRI as her father was of Indian origin and nationality and was the owner of the shop. The SAILESH RANJAN registered Will gave her the title on account of the death of her father and as per 2014.12.31 12:32 I attest to the accuracy and integrity of this document CR No.6417 of 2013 -3- the family settlement, she was entitled to get the building vacated. The earlier petition was filed under ordinary law, which was withdrawn on 14.08.2008, since she was not the owner for 5 years but that would not take away her rights of special remedy and whether there was bona fide requirement and therefore, leave to contest should be declined.

As noticed, in a terse one paragraph, the leave to contest has been granted. Under Section 18-A of the Act, procedure has been laid down for disposal of application under Section 13-B of the Act which provides that where the Non-Resident Indian is an owner and returns to India and requires any residential building or shop or non-residential building, let out by him/her for own use or the use of any other ordinarily person living with him or dependent upon him/her, provided that the ownership is of 5 years, the benefit can be granted only for once in the lifetime.

Under Section 18-A of the Act, procedure is laid down for the disposal of the application and summons have to be issued in the form specified upon the service being effected. The tenant is to seek leave to contest the application for eviction from the Rent Controller by stating the ground of affidavit under Section 18-A(5) of the Act and the Rent Controller may give the tenant leave to contest, if affidavit filed by the tenant discloses such facts as would disentitle the landlord for the recovery of possession. Section 18-A(4) & (5) reads as under:

"(4) The tenant on whom the service of summons has been declared to have been validly made under sub-section (3), shall have no right to contest the prayer for eviction from the residential building or scheduled building , as the case may be, unless he files an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller as hereinafter provided, and in default of his appearance in pursuance of the summons or his obtaining such leave, the statement made by the SAILESH RANJAN 2014.12.31 12:32 I attest to the accuracy and specified landlord or, as the case may be, the widow, widower, child, integrity of this document CR No.6417 of 2013 -4- grandchild or the widowed daughter-in-law of such specified landlord or as the case may be, the widow, widower, child, grandchild or the widowed daughter-in-law of such specified landlord in the application for eviction shall be deemed to be admitted by the tenant and the applicant shall be entitled to an order for eviction of the tenant.

(5) The Controller may give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the specified landlord or, as the case may be, the widow, widower, child, grand-child or widowed daughter-in-law of such specified landlord or the owner, who is a non-resident Indian from obtaining an order for the recovery of possession of the residential building or scheduled building and/or non-residential building, as the case may be, under (Section 13-A or Section 13-B)."

Thus, it is apparent that the Rent Controller has to come to a finding that the affidavit discloses such facts which disentitles the landlord from obtaining the order for recovery of possession of the building in question under Section 13-B of the Act. This judicial exercise has necessarily to be done by passing a speaking order and reasons have to be given. The issue regarding the leave to contest, under Section 25-B(5) of the Delhi Rent Control Act, 1958 was discussed by a three Judges Bench of the Apex Court in Precision Steel Engineering Works Vs. Prem Deva Niranjan Deva Tayal 1982 (3) SCC 270. It was held that the leave to contest is to be granted if the affidavit disclose the fact which would disentitle the landlord for an order of recovery of possession. The language of the provision in that case provided that the Rent Controller shall give the tenant leave to contest. In Inderjeet Kaur Vs. Nirpal Singh 2000 (8) SCC 350 also, the said provision was again considered and it was held that a triable issue is to be raised and the duty placed upon the Rent Controller is to grant leave, in such circumstances and a balanced approach is to be taken, keeping in mind the interests of both the landlord and the tenant.

SAILESH RANJAN 2014.12.31 12:32

A Full Bench of this Court in Anwar Ali Vs. Gian Kaur 2012 (2) I attest to the accuracy and integrity of this document CR No.6417 of 2013 -5- PLR 554 examined the issue as to whether what would be the consequences following the refusal of leave to contest to tenant under Section 13-B. It was held that once leave is refused, a deeming provision is there whereby eviction of the tenant has to be ordered as natural consequence. Relevant observations read as under:

"2. A conjoint reading of the aforesaid two provisions of the Act would go to show that the legislature in its wisdom thought it is necessary to engraft provisions for expeditious disposal of petitions for eviction filed by Non- residential landlord. Under Section 13-B, leave to defend, has to be sought by a tenant and only upon such leave being granted, it would be open for the tenant to contest the claim of the landlord with regard to his requirement of the tenanted premises. Once leave is refused, Section 18-A (4) introduces a deeming provision by which the claim of the landlord with regard to the need for the premises is to be presumed.

3. Apart from the specific provisions of the Act, reproduced above, particularly those contained in sub-section 4 of Section 18-A, the Apex Court in Baldev Singh Bajwa v. Monish Saini, 2005(2) R.C.R. (Rent) 470 : 2005(4) R.C.R.(Civil) 492 : AIR 2006 Supreme Court 59 had occasion to deal with the very same provisions of the Act.

After an elaborate discussion, which is available in the text of the judgment, the Apex Court came to a conclusion that the provisions of Section 13-B would require the tenant to bring on record evidence of a very strong character to rebut the legal presumption that is inbuilt in Section 18-A of the Act with regard to the need of the N.R.I. landlord in respect of the tenanted premise. Only upon such convincing evidence being laid i before the Rent Controller, leave to defend can be granted, failing which, obviously, the legal presumption with regard to the need of the landlord would continue to hold the field."

As noticed, in the language of the section that in the case of 13-B application, the Rent Controller may give the tenant leave to contest and thus, a triable issue has to be necessarily made out and the application has to disclose such facts as would disentitle the owner to recover immediate possession of the SAILESH RANJAN 2014.12.31 12:32 I attest to the accuracy and integrity of this document CR No.6417 of 2013 -6- building. In Baldev Singh Bajwa Vs. Monish Saini 2006 AIR SC 59, the presumption in favour of the NRI owner of the property limited the right of the tenant and it has been held that the tenant would be entitled to leave to contest only if he makes out a strong case to challenge the grounds for ejectment and the enquiry had to be limited to the four requirements laid down under the Act. The basic ingredients which had to be fulfilled are as under:

"(i) that the landlord has to be a owner of the premises in question for a period of 5 years prior to the institution of the petitioner,

(ii) that the landlord should be non-resident Indian falling within the definition of Section 2(dd) of the Act,

(iii) that there has to be a intention to return to India,

(iv) that there has to be a bona fide requirement of the premises in question."

The application for leave to contest has, thus, to raise a triable issue regarding the said 4 issues mentioned above. The other issues which pertain are of no relevance and the Rent Controller is only to adjudicate on the said 4 issues for decision. In the present case, as noticed, the said exercise was not done by the Rent Controller and the absence of reasons was apparent.

It is settled principle of law that reasons give clarity to an order and in the absence of the same, the order is not sustainable. Reliance can be placed upon the judgment rendered by the Apex Court in Union of India & others Vs. Jaiprakash Singh & another AIR 2007 SC 1363. Relevant observations read as under:

"7. Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief, in its order indicative of an application of its mind, all the more when its order is amenable to further avenue of challenge. The absence of reasons has rendered the High Court's judgment not sustainable.

8. Even in respect of administrative orders Lord Denning M.R. in Breen v. Amalgamated Engineering Union 1971 (1) All E.R. 1148 SAILESH RANJAN 2014.12.31 12:32 I attest to the accuracy and observed "The giving of reasons is one of the fundamentals of integrity of this document CR No.6417 of 2013 -7- good administration". In Alexander Machinery (Dudley) Ltd. v. Crabtree 1974 LCR 120 it was observed: "Failure to give reasons amounts to denial of justice". Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at". Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The "inscrutable face of a sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance."

In the present case, the reasons given, as reproduced above do not show as to what prevailed with the Rent Controller to grant leave to contest, as the provisions of the Act provide for immediate recovery and the Rent Controller has to record its satisfaction so that this Court is in a position to appreciate as to what weighted with the Rent Controller while granting the leave to contest, which would be obviously denying the petitioner owner the right of immediate eviction and giving a benefit to the tenant to contest by way of leading evidence.

Thus, keeping in view the provisions of the Act, this Court is of the opinion that the order dated 06.07.2013 (Annexure P4), passed is bereft of any reasons and the same is hereby quashed. The Rent Controller, Bathinda is directed to decide the leave to contest application, afresh, keeping in mind the principles laid down above. The necessary exercise be carried out within a period of 2 months from the date of receipt of a certified copy of this order.

Revision petition stands allowed in the abovestated terms.


            03.12.2014                                                        (G.S.SANDHAWALIA)
            sailesh
SAILESH RANJAN
2014.12.31 12:32                                                                     JUDGE
I attest to the accuracy and
integrity of this document

Unlock Advanced Research with PRISMAI

Punjab-Haryana High Court