Punjab-Haryana High Court
Ranjit Puri vs Dr.Mohinder Paul Singh on 3 April, 2012
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
CR No.89 of 2012 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CR No.89 of 2012 (O & M)
Date of decision:03.04.2012
Ranjit Puri .....Petitioner
Versus
Dr.Mohinder Paul Singh .....Respondent
CORAM : HON'BLE MR.JUSTICE G.S.SANDHAWALIA
Present: Mr.Divanshu Jain, Advocate, for the petitioner,
Dr.Amarpreet Sandhu, Advocate, for the respondent.
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G.S.Sandhawalia J. (Oral)
1. The present revision petition arises from the order dated 21.11.2011 whereby the application under Section 10 CPC for stay of proceedings was filed by the petitioner-tenant on the ground that similar matters were pending in SLP No.189 of 2011 and have been adjourned for awaiting decision of the said SLP.
2. The Rent Controller, Chandigarh, vide impugned order, held that the counsel for the petitioner-tenant had failed to show that there is any general order whereby the proceedings of pending cases have to be stayed under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 (for brevity, 'the Act') by the High Court or the Hon'ble Apex Court and dismissed the said application and directed that the case would come up for 05.01.2012 for consideration on application on leave to defend.
3. Counsel for the petitioner-tenant contends that the issue regarding the definition of NRI has been raised in various proceedings before this Court and in CR No.8131 of 2010 titled Anita Sood & others Vs. Manjit Singh and a challenge was made on the ground that under the provisions of CR No.89 of 2012 2 Citizenship Act, 1955 that if a person is not registered as Overseas Indian under Section 7-A of the Act, he cannot be considered to be a NRI and cannot avail any of the facilities available to him. This plea was reiterated in the said case on 03.01.2011 and it was contended that the matter is now pending before Hon'ble Apex Court in SLP No.4716 of 2011. It was further submitted that in Dr.Ved Pal Kaushal Vs. Harcharan Singh & another 2010 (4) PLR 637, the issue was again sought to be raised that a person who had come to India before 31.05.2001, whether he would be falling under the definition of Section 2 (dd) of the Act and is entitled to seek eviction under Section 13-B of the Act and SLP No.189 of 2011 is pending consideration before the Hon'ble Apex Court. Similarly, two SLP Nos.13091-92 of 2011 are also pending decision before the Hon'ble Apex Court regarding the definition of NRI landlord. Accordingly, it is contended that the Rent Controller, Chandigarh was in error in declining the stay since the issue in dispute was pending before the Hon'ble Apex Court.
4. On the contrary, counsel for the respondent-landlord contends that this Court in Harjinder Singh Vs. Baljit Kaur 2012 (1) RCR (Civil) 184 has considered this issue and held that the definition of NRI has already been clarified in Baldev Singh Bajwa Vs. Monish Saini 2005 (2) RCR (Civil) 492 and Sohan Lal Vs. Swaran Kaur 2003 (2) RCR 407. Therefore, there was no illegality or irregularity in the order passed by the Rent Controller, Chandigarh.
5. The submission of the counsel for the respondent has merit. Section 2(dd) of the Act reads as under:
"(dd) " Non-resident Indian" means a person of Indian origin, who is either permanently or temporarily settled outside India in either case -CR No.89 of 2012 3
(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."
In Sohan Lal's case (supra), this Court held as under:
"19. The expression 'NRI' used in Section 2(dd) of the Act has been clearly defined and there is no ambiguity necessitating any external aid for interpreting the same. The ordinary meaning of the expression 'NRI' given in Section 2(dd) of the Act is that a person of Indian origin living abroad whether settled permanently or temporarily. The purpose of his living abroad has been amplified either for taking up employment outside India or for carrying on business or vacation outside India or for any other purpose as would indicate his intention to stay outside India for uncertain period. Therefore, the definition of expression 'NRI' cannot be confined to only those who are holding Indian passport and continue to be the Indian citizens. The definition infact embraces all those categories of Indians living abroad whether citizens or non-citizens, whether born in India or abroad, whether carrying Indian or foreign passport. It appears that as long as he is owner of a property in the State of Punjab legislature has intentionally used a wider expression to include large number of categories of NRIs."
Para Nos.24 & 25 of the same are also relevant which reads as under:
"24. A perusal of clause (a) of sub-section (1) of Section 5 of the 1955 Act shows that any person could be registered as citizen of India by the prescribed authority provided that he is not already such citizen by virtue of the provision of the Constitution or any other provisions of the 1955 Act. If such a person is of Indian origin and is ordinarily resident of India and have been so resident for five years before making an application for registration he could also be registered as a citizen. The explanation further provides that an applicant would be considered a person of Indian origin if he or either of his parents was born in undivided India. It thus becomes evident CR No.89 of 2012 4 that person of Indian origin is a class apart from the citizens. By no stretch of imagination it could be held that the citizens alone could be the person of Indian origin and could be considered as NRIs within the meaning of Section 2(dd) of the Act. The concept of 'citizenship' is different than the broader concept of person of Indian origin who are to include NRIs. The definition of 'Indian origin' as given in the 'Card Scheme' is even more broader. It has included in the definition of PIO in clause 2(ii) all those persons as the persons of Indian origin if he or she or either of his parents or grand parents or great grand parents was born in and permanently resident of India as defined in the Government of India Act, 1935 and other territories that became part of India thereafter provided neither was at any time a citizen of any of the countries like Pakistan, Bangladesh and other countries as may be specified by the Central Government from time to time.
25. The question as to whether a NRI would include all classes of persons of Indian origin or only specified categories can more appropriately be answered once it is remembered that such a person has to be the owner of the property in order to become eligible to maintain a petition for ejectment of a tenant. Ownership is a concept which consists of bundle of rights. Such as a right of possession; right of enjoying the usufruct of the land and so on. This concept has been incorporated in various provisions of the Transfer of Property Act, 1882. Therefore, it is only that NRI who is a person of Indian origin and is owner of the property under the tenancy of a tenant who has been given the right to initiate ejectment proceedings under Section 13-B of the Act. The NRIs and the persons of Indian origin who have acquired citizenship abroad would either continue to be the owner of the property or would acquire the property lateron by investing in India. Certain provisions were made in the Foreign Exchange Regulation Act, 1973 (for brevity, 'the FERA') regulating the acquisition of property by NRIs or by the persons of Indian origin who have acquired citizenship of foreign Nations. Even FERA has now been repealed and replaced by the Foreign Exchange Management Act, 1999 liberalising many stringent provisions. Therefore, the NRIs or the persons of CR No.89 of 2012 5 Indian origin who acquired citizenship abroad are not debarred to be the owner of the property in India or Punjab. Once a NRI or a person of Indian origin who have acquired citizenship abroad is owner for over five years of the property rented out to a tenant, he would be covered by the definition of NRI given in Section 2(dd) of the Act. Therefore, the definition of NRI being a person of Indian origin does not need to be limited either by referring to the Foreigns Act, 1946 or the Citizenship Act, 1955 or by reference to the Card Scheme. It appears that all the aforementioned statutes have different area of operation than the provisions of Section 13(B) and other cognate provisions incorporated by amendment of 2001. It is well settled that once language of the statute is plain and unambiguous, then no external aid should be employed to interpret the provisions of such a statute. In this regard, reliance could be placed on the judgment of the Supreme Court in Ravindra Kumar's case (supra)."
Thereafter, the Hon'ble Supreme Court, in the celebrated judgment of Baldev Singh Bajwa (supra) also went on to hold that only persons who had gone out of India and temporarily settled there for the purposes of undertaking certain courses or degrees of University would not be a NRI. The definition of NRI pertains to that of a person of Indian origin settled outside India and in the present case, the petitioner is holding a U.S. passport. Admittedly, the place of birth of the respondent-landlord is India, and therefore, he falls within the definition of a NRI landlord as has been held in the judgments referred above. The provisions of Section 13-B of the Act have been extended to Chandigarh as per notification dated 09.10.2009 and this notification was challenged before a Division Bench of this Court in Asha Chawla & others Vs. Union of India & others 2011 (4) PLR 376 and the Division Bench was pleased to dismiss the said writ petition. The said matter is also pending before the Hon'ble Apex Court. It CR No.89 of 2012 6 is thus clear that the notification has not been stayed and the operation of law cannot be put to stop in view of the pendencies of matters before the Hon'ble Apex Court or this Court in the absence of any interim order. The Hon'ble Apex Court, in different SLPs, has stayed eviction` which are peculiar to the said cases and it is not acceptable that Rent Controllers will be barred from proceeding with the trial of cases under Section 13-B of the Act on account of the fact that the tenants are setting up fresh challenge to the definition of NRI landlord.
6. Accordingly, there is no merit in the present revision petition and the same is dismissed.
03.04.2012 (G.S.Sandhawalia) sailesh JUDGE