Punjab-Haryana High Court
Dalip Singh vs Gurdip Singh on 26 July, 2011
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
C.R.No.277 of 2011 1
IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH.
C.R.No.277 of 2011
Date of decision:26.7.2011
Dalip Singh
...Petitioner
vs
Gurdip Singh
....Respondent
CORAM: MR.JUSTICE RAKESH KUMAR GARG.
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Present: Mr.Arihant Jain, Advocate, for the petitioner.
Mr.Divanshu Jain, Advocate, for the respondent.
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Rakesh Kumar Garg,J.
This is tenant's revision petition challenging the impugned order, whereby, his application for leave to contest the eviction application filed under Section 13-B of the East Punjab Urban Rent Restriction Act ( for short "the Act") by the respondent-landlord was declined and further he was directed to hand over the vacant possession of the demised premises.
The brief facts out of which this petition has arisen, as culled out by the Rent Controller, Ludhiana, reads as follows:-
"The petitioner is Non Resident Indian and holder of Passport No.WBB66074 issued at Canada. It has been further averred that earlier Smt.Raj Kaur wife of Fauja Singh was owner/landlady of the property in dispute. She died intestate on 10.2.1977. Her husband Fauja Singh has pre-deceased her who died intestate on 20th April, 1956. The brother of the petitioner Ranbir Singh has also expired on 24.5.1970 and now the petitioner and her sister Joginder Kaur are the only legal heirs of deceased Raj Kaur and they are co-sharer in the property in dispute. The entire property is shown in the site plan attached with the petition. The respondent is tenantunder the petitioner C.R.No.277 of 2011 2 in the shop as shown red in the site plan attached. The petitioner has also appointed his sister Joginder Kaur as his Special Attorney vide Special Power of Attoney dt.2.2.01 to prosecute the present petition/legal proceedings in all respect. The respondent is a tenant in the shop forming part of property as shown red in the site plan attached under the petitioner at a monthly rent of Rs.450/-. Thus there exists a relationship of landlord and tenant between the parties. The petitioner is a specified landlord defined under Section 2(dd) of the East Punjab Urban rent restriction Act, 1949 as amended by Act No.9 of 2001 and is at present R/O Canada and has returned to India for a short time. He requires the premises in question for his own use and occupation and for use and occupation of his family. Hence, the present petition.
Upon notice, petitioner appeared and filed an application for grant of leave to contest on the following grounds:-
i) That the petition filed by the petitioner under section 13-B of the East Punjab Urban Rent Restriction Act, 1949 as amended by Act No. 9 of 2001 is not legally maintainable since it does not fall under section 13-B of the East Punjab Urban Rent Restriction Act as well as the petition does not fulfill the requirements of section 13-B of the East Punjab Urban Rent Restriction Act.
ii) That, admittedly there is no relationship of landlord and tenant between the parties and this is serious question to be decided by this Hon'ble Court. The petitioner has no locus standi to file the present petition. He is neither owner nor landlord of the property in question.
iii) That in para No.5 of the petition, it is clearly mentioned that Gurdip Singh has filed another ejectment petition against one Om Parkash another tenant in a shop bearing Property No.B-
V-361 (Old) B-XI-333 9New), Benjamin Road, Ludhiana. The said property No.B-V-361 (Old) B-XI-333 (New) C.R.No.277 of 2011 3 Benjamin Road,Ludhiana consists of five shops and vacant site measuring about 350 sq.yards. The front five shops have been let out to different tenants and has a separate passage. All these shops have been let out separately and under the definition contained in section 2-A of the East Punjab Urban rent Restriction Act, each shop let out to the tenant is a building and the provisions of East Punjab Urban rent restriction Act as amended by Act No.9 of 2001 in sub para 2 gives right to landlord to get vacated only one non residential building. Admittedly all shops in possession of different tenants are let out for commercial purposes and are non residential buildings. Thus, the ejectment petition against two different tenants in possession of two separate shops is not maintainable and law does not permit to have two shops vacated. This is a very serious point to be decided and warrant grant of leave to contest.
iv) That the petition is also bad as provisions of section 13-B of East Punjab Urban rent restriction Act are not fulfilled. All the shops are in possession of different tenants and so as to qualify the requirement of section 13-B, the landlord has to allege and prove his return to India. The petitioner occasionally visits India and goes out of India and otherwise he is permanent resident of India.
v) That without prejudice to the rights of the applicant, it is submitted that the petitioner as per the averments in possession of huge building as well as vacant site which he has not shown in the plan. As such, the petition is based on concealment of facts which disentitle him to file petition u/s 13-B of the Rent Act.
vi) That as per the averments made by the petitioner in the petition that he is an old man of 80 years and as such he is not capable of doing any business as alleged much less the business of cycle stand. Thus, his need as per the allegations is not proved. Moreover, he has not got any plan sanctioned C.R.No.277 of 2011 4 for starting such a business nor any license has been obtained as required under the law.
The aforesaid application filed by the petitioner was contested by the respondent-landlord submitting that the application was not maintainable and the bare perusal of the entire application shows that there was no cogent and convincing ground for granting the petitioner leave to contest.
The Rent Controller vide impugned order dated 22.11.2010 held that there was no triable issue and the application filed by the petitioner for leave to contest, was without any merit. While dismissing the application , the Rent Controller further directed the petitioner to hand over the vacant possession of the demised premises. The relevant part of the order reads thus:-
" I have heard counsel for the parties and have gone through the case law referred above carefully. As per Section 13-B of the East Punjab Urban rent restriction Act, where as NRI landlord seek eviction of the respondent he has to prove the following requirement:-
Firstly: He is non resident Indian.
Secondly: He has returned to India permanently, or for the temporary period.
Thirdly: Genuine requirement of accommodation by him or his deponent.
Fourthly: He is owner of the property for the last five years before the institution of the proceedings.
Petitioner by way of documentary evidence has proved an record that he is NRI and he wants to return to India to settle his business here and also for the purpose of treatment of his wife. He has produced medical record relating to his wife. To prove his ownership he has produced on record allotment letter dated 10.10.60 in his favour. All the requirement u/s 13B has been C.R.No.277 of 2011 5 fulfilled by the petitioner. Though the respondent has disputed relations of tenant and landlord between the parties. But the applicant/respondent has already admitted that the petitioner is owner/landlord of the property. In the earlier petition filed by the petitioner the respondent has also tendered rent in that petition in favour of the petitioner and after tendering the rent the petition was dismissed as withdrawn by the petitioner. Now in this petition respondent cannot say that petitioner is not owner of the demised shop. The petitioner has produced on record TSI which shows that the applicant/respondent is tenant under the petitioner. He has also produced on record copy of allotment letter dated 10.10.60. The petitioner has further produced on record copy of the passport which shows that he is NRI and is now living at Canada. He has further proved on record that he has come to India for starting his business of car parking and further for the treatment of his wife. The petitioner has proved all the requirements as provided under section 13B of the Act and he has proved on record that he is NRI and wants to come back to India and his requirement is bona fide and he is owner of the property for the last more than five years from the date of filing of the petition. The contention of the applicant/respondent that the landlord can get vacated only one shop as per provisions of the Act is not maintainable. As per case law produced by the petitioner he can vacate each shop from the tenant. There is no triable issue and the application under section 13B of the Act filed by the respondent/applicant is devoid of merits and the same is hereby dismissed...."
The petitioner tenant approached this Court challenging the aforesaid order. At the time of motion hearing on 21.1.2011 on the contentions of the petitioner, the following order was passed:-
" Learned counsel for the petitioner, inter alia, contends that according to the averments made in the eviction petition, the property was originally owned by Rai Kaur wife of Fauja C.R.No.277 of 2011 6 Singh, who dies intestate and ultimately it has devolved upon the petitioner Gurdip Singh and his sister Joginder Kaur, who have become the co-owners. The petition for eviction has been filed only at the instance of Gurdip Singh under Section 13-B of the East Punjab Urban Rent restriction Act, 1949 ( for short "the Act") whereas the other co-owner is not having the same status of NRI. He further submits that the question whether NRI/landlord, who is co-owner with the other landlords, who do not have the same status, as that of NRI can maintain a petition for eviction of the tenant from the properly jointly owned by them is already referred to to the Larger Bench of this Court in C.R.No.4025 of 2006 titled as Smt. Bachan Singh Vs. Kabul Singh decided on 29.9.2010.
Notice of motion for 28.1.2011.
Dasti only".
Since the issue, as raised by the learned counsel for the petitioner at the time of motion hearing, was pending before a Division Bench of this Court,vide order dated 3.2.2011, the present revision petition was ordered to be adjourned sine die to await the aforesaid decision On an application filed by the respondent-landlord this Court vide order dated 12.5.2011 ordered the listing of the case as the judgment in C.R.No.4025 of 2006 titled as Smt. Bachan Kaur and others v. Kabal Singh and another had been passed on 26.4.2011. Copy of the aforesaid judgment was also placed on the record of this case by the respondent- landlord. On 12.7.2011, learned counsel appearing on behalf of the petitioner has very fairly stated before this Court that the question of law, as raised by him before this Court at the time of motion hearing is squarely covered against the petitioner by the aforesaid judgment. However, he urged that there are other issues which are to be argued. C.R.No.277 of 2011 7
Learned counsel for the petitioner argued that even if the petitioner was not entitled to leave to contest still the eviction order could not have been passed against him as there was no material/evidence as required under the provisions of section 13-B of the Act. before the Rent Controller to hold that the respondent-landlord was entitled to the vacant possession According to the learned counsel for the petitioner, even the respondent-landlord has not stepped into the witness box. It has been further argued by the learned counsel for the petitioner that admittedly the respondent-landlord had filed many other eviction petitions against his tenants for the other tenanted premises seeking the benefit of section 13-B of the Act, whereas, the respondent-landlord is entitled to seek ejectment of only one residential building. Lastly, it has been argued that the need of the respondent-landlord was not bona fide as he was having sufficient accommodation and has got vacated other shops from the tenants. Learned counsel also made an attempt to argue that another petition filed by the respondent-landlord for ejectment under section 13 of the Act was pending and, therefore, he could not have filed the instant petition in view of bar of section 14(2) of the Act, and thus the impugned order was liable to be set aside.
However, learned counsel for the respondent has submitted before this Court that all the arguments, as raised by the learned counsel for the petitioner, have been settled against him by the judgments of the Apex Court as well as this Court and thus, there is no arguable point in the present revision petition and the same is liable to be dismissed.
I have heard the learned counsel for the parties, perused the impugned order as well as other documents placed on record of the case. I C.R.No.277 of 2011 8 have also perused the averments made in this petition and the judgments relied upon by the learned counsel for the respondents.
It is useful to refer to the provisions of Section 18-A(4) of the Act, which reads thus:-
18-A.Special procedure for disposal of applications under section 13-A or section 13-B:- (1) xx xx (2) and (3) xx xx xx (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 and/or non residential 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 specified landlord, or, as the case may be, the widow, widower, child, grandchild or the widowed daughter-in-law of such specified landlord or the owner, who is a non resident Indian 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."
A bare reading of the aforesaid provision would show that in case of refusal to grant leave to contest to the tenant, the statement made by the specified landlord in the application for eviction shall be deemed to be admitted by the respondent and the applicant shall be entitled to an order of eviction of the tenant. In view of the aforesaid provision, the argument of the learned counsel for the petitioner that there is no evidence/material to prove the case of eviction against him does not arise at all.
Another argument raised by the learned counsel for the C.R.No.277 of 2011 9 petitioner that the respondent-landlord has already got evicted one tenant from a part of the tenant premises under section 13-B of the Act, therefore, he cannot get the other tenants including the petitioner evicted from the other shops, is also liable to be rejected in view of the judgment of this Court passed in M/s Bhandari General Store and another v. Makhan singh Grewal, 2006(2) P.L.R. 167. The relevant part of the judgment reads thus:-
"In my opinion, the aforesaid judgment of the Supreme Court squarely covers the case of the respondent-landlord. In this case also, one building was let out in different parts and in that situation, he is entitled to recover the immediate possession of all the parts by filing different petitions. The question whether the different parts let out to different tenants are part of the one building or separate buildings is a question of fact which is to be determined on the fact and circumstances of each cases. Before getting ejectment of different tenants from different parts, it has to be established that all the parts let out to different tenants are part of one building. In the instant case, the Rent Controller, on the basis of evidence available on record has recorded a finding of fact that all the 13 shops are part and parcel of the building. In this regard, the Rent Controller has relied upon various photographs, site plan and the report of the Architect, which clearly established that all the shops constitute one building and the suit building as a single unit was constructed at one time. I do not find any illegality or perversity in the said finding of fact. Thus, in my opinion, the ejectment orders passed against the petitioners regarding two different shops which form part of one building, cannot be said to be illegal on the ground that under Section 13B of the Act, the landlord has already got vacated one shop, which was also part of the said building."C.R.No.277 of 2011 10
Admittedly, the Special Leave Petition filed against this judgment has been dismissed by the Hon'ble Apex Court, and there is no dispute that other tenanted premises for which petitions are pending are part/unit of the same building.
It may also be relevant to mention at this stage that in view of the judgment of this Court in the case of M/s Trehan Auto Parts v. Kuldip Singh Sahi, 2009 (2) R.C.R.(Rent) 680, wherein it has been held that remedy emanating from section 13-B is entirely different from the one under Section 13 and, therefore, the proceedings taken by the landlord for ejectment under the general provision of the Act could not debar landlord to pursue his petition under section 13-B, the pendency of any petition under section 13 of the Act on behalf of the petitioner is meaningless and argument raised in this regard is liable to be rejected.
It is again well settled by a catena of judgments of the Apex Court that the landlord is the best judge of his need and it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. When a landlord asserts that he requires his building for his own occupation, the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. In fact, when the other conditions of the provisions of section 13-B, are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide, and the onus is upon the tenant to prove that need of the landlord is not bona-fide. There is nothing on record to rebut the aforesaid presumption which is in favour of the respondent-landlord. C.R.No.277 of 2011 11
Thus, I find no merit in this revision petition and the same is dismissed.
(Rakesh Kumar Garg) Judge July 26, 2011 rk