Punjab-Haryana High Court
Bachittar Singh vs Jaswant Singh Saggu on 12 March, 2012
Author: G. S. Sandhawalia
Bench: G.S.Sandhawalia
Civil Revision No.1105 of 2012 -1-
*****
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.1105 of 2012 (O&M)
Date of decision: 12.3.2012
Bachittar Singh ....Petitioner
Vs.
Jaswant Singh Saggu ....Respondent
CORAM: HON'BLE MR.JUSTICE G.S.SANDHAWALIA
Present: Mr.Mansur Ali, Advocate for the petitioner.
*****
G. S. SANDHAWALIA, J.
Civil Misc. No.4646-C-II of 2012 Prayer made in the application is for grant of exemption from filing the certified copies of Annexures P-1 to P-7 and for allowing to place on record the certified copy along with photostat copy of order passed by the learned Rent Controller, Ludhiana dated 17.1.2012.
In view of the averments made in the application, which are supported by affidavit, the Civil Misc. Application is allowed. CR No.1105 of 2012
1. The present petition by the tenant is directed against the order dated 17.1.2012 whereby the Rent Controller, Ludhiana had declined the application under Section 18-A of the East Punjab Rent Restriction Act, 1949 (hereinafter referred to as "the Rent Act") for the leave to contest to the tenant by holding that no triable issue Civil Revision No.1105 of 2012 -2- ***** arises and resultantly passed the ejectment order from the shop measuring 10' X 30' shown as red in the site plan which form part of the property bearing municipal No.8/253(New) 1137 (old), Nagar Panchayat, Mullanpur Dakha, G.T.Road, Tehsil and District Ludhiana.
2. That the ejectment petition under Section 13-B of the Rent Act was filed on 11.11.2010 by the respondent-landlord seeking ejectment of the shop in question details of which are mentioned above on the ground that the property consists of residential portion and besides this there were two shops on front side facing towards Ludhiana-Ferozepur Road on the northern side. Out of these two shops, the shop in dispute was shown in red colour and now under the possession of the petitioner-tenant whereas the other shop was in possession of another tenant called Amar Singh. It was alleged that father of the respondent-landlord had owned this property and one residential house at village at Kanjarwala, Tehsil and District Ludhiana and he had expired on 7.7.1991 leaving behind registered will dated 24.8.1979 and on the basis of the said will, the property devolved upon the landlord and his brother and mutation No. 14091 dated 23.12.1999 had been sanctioned in the name of the petitioner and his brother Gurmit Singh whereas residential house devolved upon the elder brother namely Surjit Singh. There were also two sisters, who had been duly compensated and had migrated to Canada and there was specific recital regarding this in the registered will whereas Smt. Kartar Kaur, mother of landlord had pre- deceased Nahar Singh, her husband. It was accordingly contended Civil Revision No.1105 of 2012 -3- ***** that name of the landlord along with his brother stood duly projected as owner in the revenue record and the same fell in the limits of Nagar Panchayat Mullanpur Dakha, Tehsil and District Ludhiana and they were owners for more than 18 years and shop in question formed part of the property aforementioned. It was also contended that the landlord and his brother had purchased another property bearing No.8/134, situated in the area of old Grain Market within the limits of Nagar Panchayat Mullanpur Dakha, Tehsil and District Ludhiana. Accordingly, it was contended that the landlord was born on 20.7.1951, at Mandi Dakha Mullanpur (then called as Adda Dakha) and had his education in the Government High School, Dakha and passed his matriculation. Thereafter, landlord had studied at G.H.G, Khalsa College, Gurusar Sudhar, Tehsil Raikot, District Ludhiana and passed pre-university examination way back in April, 1968. After passing pre-university examination, the landlord pursued his further studies at Government College of Science Education & Research, Jagraon and passed B.Sc. Examination (three years degree course) in April, 1971. Thereafter landlord had done post- graduation from the same college and passed M.Sc. In April, 1974 and was Indian by birth and presently was holder of Candian passport No.QA823000 having migrated to Canada in the month of July, 1974. The landlord was having a perpetual contact with his near relatives and friends in India and had been visiting India and was married in Phillaur, District Jalandhar and was having three sons who were also having their spouses from Punjab. Accordingly, it had Civil Revision No.1105 of 2012 -4- ***** been pleaded that he had deep roots in India and value for Indian culture in all respects. The petitioner was 59 years of age and intending to spend large portion of evening of his live while staying in India in company of his family members. The shop in question had been originally let out way back in 1983 at a monthly rent of Rs.250/- per month which was increased to Rs.450/- in the year 1991 and his father used to receive the rent. The tenant had also filed suit for permanent injunction titled Bachittar Singh Vs. Jaswant Singh and another against him whereby he had been arrayed as respondent no.1 apart from his brother Surjit Singh and there was regular jural relationship of landlord and tenant inter-se between the parties. Accordingly, it was pleaded that the landlord intended to spend evening of his life while residing in India and intended to open General Store with able assistance of his wife Rupinder Kaur and his sons namely, Ramandip Singh, Sandip Singh and Ajay Singh in the demised premises. The adjoining shop, which was under occupation of another tenant namely Amar Singh which also forms part and parcel of the same building (property bearing Municipal No.8/253 (New), 1137 (old) ), for which a separate petition was being filed against the said tenant. The said shop could be used for running General Store while staying in the residential portion of property aforementioned and the landlord could carry on his business smoothly in the shop in question and other adjoining shop while residing in the residential portion of the building which was in occupation of the tenant and Amar Singh and was at a prime location Civil Revision No.1105 of 2012 -5- ***** for running of business of every kind. It was also contended that the landlord and his brother Gurmit Singh were owners of the property bearing Municipal No.8/134 situated in the area of old Grain Market within limits of Nagar Panchayat Mullanpur Dakha, and he and his brother Gurmit Singh had made mutual adjustment and the property in dispute had fallen to his share whereas the other property situated in the area of Old Grain Market had been left exclusively for Gurmit Singh. There was no other proceedings between the parties inter-se except the suit for permanent injunction and, therefore, the landlord was entitled for the possession of shop in question.
3. That on service of summons of the petitioner under Section 13-B of the Rent Act, the tenant (present petitioner) filed an application that the son of Nahar Singh, namely, Surjit Singh used to receive rent and Jaswant Singh who filed the ejectment petition did not come forward to receive the rent from the tenant and he only came in January, 2009 and threatened to dispossess him from the tenanted premises which had led to filing of the suit for permanent injunction to save his possession. It was, accordingly, pleaded that Jaswant Singh was not a Non Resident Indian (for short "NRI") as required under the law for initiating the process under Section 13-B of the Rent Act. He was not the owner of the tenanted premises and Nahar Singh was still the owner. Jaswant Singh had no bonafide requirement and his requirement was whimsical and fanciful and he wanted to sell the property after getting it vacated and he contacted some real estate agents in this regard and started negotiations with Civil Revision No.1105 of 2012 -6- ***** them and he orally entered into an agreement to sell with some persons to sell the tenanted premises. He also owns other commercial as well residential properties in the same locality/area. Accordingly, leave to contest was prayed for.
4. In the reply to the aforesaid application filed by the tenant , it was clarified that Nahar Singh had died on 7.7.1991 and survived by present petition and his brothers Gurmit Singh and Surjit Singh and two daughters. The registered will dated 24.8.1979 to show the ownership was pressed into contention and the mutation bearing No.14091 dated 23.12.1999 sanctioned in the name of the landlord and his brother Gurmit Singh. It was accordingly contended that Surjit Singh had been receiving the rent on behalf of the landlord and the residential house situated in village Kanjarwal had devolved upon him being elder brother. It was also contended that in the civil suit for permanent injunction filed by the plaintiff, who was tenant he had admitted the receipt of rent by Surjit Singh on behalf of the landlord and other legal representatives of late Nahar Singh. Accordingly, it was replied that he was the landlord on the basis of mutation No.14091 dated 23.12.1999 sanctioned in his favour and he was owner for all intents and purposes. The fact being of Indian origin was again pressed into contention whereby he had spent majority of his childhood here and thereafter migrated to Canada in July, 1974. Reference of details of his passport were also mentioned and that he intended to settle in India in the company of his family members. Accordingly, it was contended that the landlord was the Civil Revision No.1105 of 2012 -7- ***** owner for the last more than 18 years of the shop in question on the basis of mutation and required it for his own use and occupation.
5. Keeping in view the above contentions, the Rent Controller held that admittedly the father of the petitioner was owner of the two shops and the residential portion and as per Jamabandi for the year 2005-06, the petitioner was owner of the suit property since last more than five years as required under Section 13-B of the Rent Act by placing reliance upon Lakhwinder Kumar and others Vs. Pavittar Kaur through Lrs and others 2010 (Suppl.) CCC 033 and accordingly, keeping in view the bonafide necessity and need of the landlord came to the conclusion that he wanted to settle in India and had been given a right under Section 13-B of the Rent Act to invoke his choice once in a life to get one building vacated and thus held that no triable issue was raised and dismissed the application for leave to contest and ordered ejectment of the tenant from the shop in dispute.
6. The present revision petition has been filed by the tenant in which it has been argued firstly that the ownership of the landlord was in dispute as he was setting up a case of partition with his brothers and alleging that the shop in question and adjoining shop (bearing property No.8/253 (New) 1137(old) would go to him whereas shop in the old Grain Market would go to his brother Gurmit Singh and, therefore, reliance has been placed upon Kundan Singh Vs. Lal Singh 2005(1) Rent Control Reporter 194 to contend that a triable issue was arising. The second submission made by the Civil Revision No.1105 of 2012 -8- ***** counsel for the petitioner-tenant was that the landlord was a co- sharer and it was triable issue and, therefore, leave should have been granted and above said judgment again was pressed into action and reliance was also placed upon the judgment of this Court dated 4.3.2011 passed in Civil Revision No.4259 of 2010 Harwinder Pal Kaur and another Vs. Kuldeep Singh Gurm @ Kuldeep Singh and others to contend that the Hon'ble Supreme Court in Charan Dass Duggal Vs. Brahma Nand (1983) 1 Supreme Court Cases 301 has held that where tenant raised a triable issue then leave to defend must be granted. The last submission made by the counsel was that the matter is pending before the Hon'ble Supreme Court regarding the issue about the NRI status and to persons holding passports other than passports issued by the Government of India and status of citizenship under the overseas citizens and, therefore, petitioner- tenant was entitled to be protected till the decision of the Hon'ble Supreme Court.
7. The submissions of the counsel for the petitioner-tenant though are attractive but not acceptable. Admittedly, the landlord was a Canadian passport holder and as already elaborated in detail as to how he belongs to Indian origin having studied at Ludhiana District and migrated to Canada in the year 1974. His wife also belongs to Jalandhar and his brothers are residing in Ludhiana and, therefore, there can be no doubt that he falls in the definition of NRI as defined under Section 2(dd) of the Act which defines that Non-resident Indian means a person of Indian origin, who is either permanently or Civil Revision No.1105 of 2012 -9- ***** temporarily settled outside India in either case taking up employment outside India or for carrying on a business or vocation outside India and has intention to stay outside India for uncertain period. The landlord has brought on record the fact that property has been mutated in his name on the basis of registered will dated 24.8.1979 left by his father in his name on 23.12.1999 whereby he had been made co-owner along with his brother namely Gurmit Singh. The present petition having been filed on 11.11.2010 there can be no doubt that he has been owner of the property in question for more than the required period of five years. The revenue record i.e. Jamabandi for the year 2005-06 has also been referred to show the same. The landlord has expressed his desire to return to India and to start his business in the shop in question alongwith adjacent shop. The intention to return to India is, thus, clear and the conditions which have been laid down by the Hon'ble Supreme Court in Baldev Singh Bajwa Vs. Monish Saini AIR 2006 (SC) 59, thus, stands fulfilled. The first submission of the petitioner-tenant that partition has been set up in the petition under Section 13-B of the Rent Act is without any basis since there is a prima facie case in favour of the landlord as his title is established by virtue of a registered will and mutation entered in his favour, even though it is in favour of his brother also. Reference to the judgment of Kundan Singh's case (supra) is of no help since in that case leave to contest had been granted to the tenant and the landlord was in a revision and plea of oral partition had been set up which was not accepted by the Civil Revision No.1105 of 2012 -10- ***** Rent Controller and the leave had been granted. In the present case, admittedly the ownership is already in favour of the landlord though he is a co-sharer. The Division Bench of this Court in Smt. Bachan Kaur and others Vs. Kabal Singh and another 2011 (2) RCR (Civil) 886 has held that a co-owner is owner in each part of the property and is entitled to seek ejectment of the tenant from the premises by placing reliance upon the judgment of the Hon'ble Supreme Court in M/s India Umbrella Manufacturing Co. and others v. Bhagabandei Agarwalla (dead) by Lrs. Smt. Savitri Agarwalla, (2004)3 SCC 178. The relevant observations of the Division Bench reads as under:-
"A co-owner is owner of each part of the property in husband like manner with other co-owners. He is entitled to seek ejectment of tenant in premises for benefit and for the benefit of all other co-owners. Such right is subject to one exception that none of the remaining co-owner objects to such action of the petitioning co-owner. If one of the owners happens to be a NRI, he does not relinquish his character and status as that of co-owner. Thus an order of ejectment obtained by a NRI - co-owner will bind other co-owners but will not entitle other NRI and/or an co-owner to seek ejectment of tenant from another building either owned solely by such co-owner or jointly with other persons as co-owner in exercise of right of eviction granted to an NRI by Section 13-B of the Civil Revision No.1105 of 2012 -11- ***** Punjab Act. Thus in respect of first question of law, it is held that a co-owner, who is Non-Resident Indian, even when other co-owners are not Non-Resident Indians, can maintain a petition for ejectment for the benefit of all the co-owners."
8. Accordingly, reliance placed upon the judgment of Hon'ble the Supreme Court in Charan Dass Duggal's case (supra) to contend that where triable issue arises, leave should be granted cannot be accepted. There is no quarrel with the proposition but in the present case a perusal of application to leave to contest goes on to show that the only grounds agitated were as under:-
"a) That Jaswant Singh is not a Non Resident Indian (NRI) as required under the law for initiating the process under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949.
b) That Jaswant Singh is not the owner of the tenanted premises. As per the record of Nagar Panchayat, Nahar Singh is still owner of the property in dispute.
c) That this Jaswant Singh is having no personal necessity as his requirement is not bonafide and the circumstances shows that the requirement of Jaswant Singh is whimsical and fanciful. He is trying to sell the property after getting it vacated from the petitioner and he contacted some real estate agents in this regard and started negotiations Civil Revision No.1105 of 2012 -12- ***** with them and he orally entered into an agreement to sell with some persons to sell these tenanted premises.
d) That he also owns other commercial as well as residential property in the same locality/area."
9. Admittedly, the landlord is having a Canadian passport and, thus, there is no substance in ground (a). Similarly regarding ground (b) the landlord is owner of the property in dispute which stand mutated in his favour and regarding ground (c) he had specifically said that he intends to return to India and start business of a General store in the property in question whereas ground (d) he has also mentioned that he owns other property which is in the old Grain Market along with his brother Gurmit Singh which is to go to him. Accordingly, it cannot be said that there is any fault with the order of the Rent Controller in view of the fact that all the parameters provided for in the celebrated case of Baldev Singh Bajwa's (supra) had been fulfilled which are laid down in para 26, which reads as under:-
"On the interpretation given by us and on a plain reading of the provisions, once in a lifetime possession is given to a NRI to get one building vacated in a summary manner. A Non-resident Indian landlord is required to prove that:-
(i) he is a NRI; (ii) that he has return to India permanently or for the temporary period; (iii) requirement of the accommodation by him or his dependent is genuine and; Civil Revision No.1105 of 2012 -13-
*****
(iv) he is the owner of the property for the last five years before the institution of the proceedings for ejectment before the Controller. The tenant's affidavit asking for leave to contest the NRI landlord's application should confine to the grounds which NRI landlord is required to prove, to get ejectment under Section 13-B of the Act. The Controller's power to give leave to contest the application filed under Section 13-B circumscribe to the grounds and inquiry to the aspects specified in the Section 13-B. The tenant would be entitled for leave to contest only if he makes a strong case to challenge those grounds. Inquiry would be confined to Section 13-B and no other aspect shall be considered by the Controller."
10. The submission of the counsel that the matter is pending before Hon'ble the Supreme Court regarding status of person holding foreign passports is also without any basis since the Hon'ble Supreme court in Baldev Singh Bajwa's case (supra) while noticing the fact has also taken into contention that a case of a person holding Canadian passport and doing service in United Kingdom and having been born in Delhi and migrated to the United Kingdom and accordingly, held that it is not necessary that person should be a citizen of India and shifted to a foreign country or that because he held a foreign passport, he would not be an NRI and upheld the order of the High Court which had affirmed the order of the Rent Controller refusing to grant leave to contest. The relevant portion reads as Civil Revision No.1105 of 2012 -14- ***** under:-
"24. Definition of ``Non-resident Indian'' (NRI) under the Act contemplates that any person who is of an Indian origin, and who has settled either permanently or temporarily outside India for taking up employment; or for carrying on a business or vocation outside India; or for any other purpose in such circumstances as would indicate to stay outside India for an uncertain period, would be a Non-resident Indian. Thus to be a NRI, it is sufficient that a person of an Indian origin establishes that he has permanently or temporarily settled outside India for his business or on account of his employment, or for any other purpose which would indicate his intention to stay outside India for an uncertain period. Therefore, any person who has gone out of India and temporarily settled there for the purposes of undertaking certain course or degree of University would not be a NRI because his stay could not be said to be for an uncertain period. A person to be an NRI, first should be of an Indian origin. The phrase ``Indian Origin'' has not been defined in the Act of 1949. The dictionary and in ordinary parlance phrase ``origin'' refers to persons parentage or ancestry. The person whose parent, grand-parents, or great-grand parents were born in India and permanently resided in India would be an NRI for the purposes of the Act of Civil Revision No.1105 of 2012 -15- ***** 1949. It is not necessary that the person should be a citizen of India and shifted to the foreign country or that because he holds foreign passport he would not be NRI. In the appeals before us, there is no challenge that the landlords are not the NRIs within the meaning of the Act because they do not have the Indian origin. Submissions of the learned counsel for the appellants is to bring the case within the four corners of Section 2 (dd) and 13-B of the Act of 1949, it is necessary that NRI has to return to India permanently. We are unable to agree with the interpretation of Section 2(dd) and 13-B sought to be placed by the learned counsel. Return to India could not be read as return to India permanently with an intention to settle in India permanently. If we read the phrase ``return to India'' along with the definition of the ``NRI'' under Section 2(dd) of the Act, it is clear that the special category of landlords NRI could also be a person who has settled permanently outside India. Thus permanent resident outside India being NRI can claim ejectment.
25. When we read Section 13-B along with the definition of the NRI it is apparent that the person who is a permanently residing outside India can also claim possession under Section 13-B of the Act. All that is required under Section 13-B is that a NRI should return to India and claim the premises for his/her use or for the use Civil Revision No.1105 of 2012 -16- ***** of any dependent ordinarily living with him. There is no requirement that he has permanently settled in India on his return or he has returned to Indian with an intention to permanently settle in India. A NRI may require the accommodation for expansion of his business which he is carrying on in other country or requires the accommodation for his temporary stay. Under Section 13- B, a NRI can also claim ejectment of the tenant from the premises for the purposes of any other person who is dependent on him and is ordinarily living with him, which makes it clear that although a NRI resides permanently in other country, he could get the accommodation vacated for the need of his dependent who ordinarily lives with him and he intends to come to India, choosing it to be his permanent abode. We do not find any substance in the submissions made by the learned counsel that the words ``return to India'' under Section 13-B of the Act denotes return to India permanently.
11. That reference has also been made to order of this Court dated 1.6.2011 passed in Civil Revision No.2592 of 2011 Vishal Jain and others Vs. Rani Atma wherein dispossession had been stayed and record of the case had been summoned in view of the fact that the matter is pending before this Court and the order being an interim order passed by this Court it has no binding precedent in view of the above discussion regarding the status of NRI having been Civil Revision No.1105 of 2012 -17- ***** finalised by the Hon'ble Supreme Court in Baldev Singh Bajwa's case (supra). The observation made by the Hon'ble Supreme Court are binding upon this Court and the principle of law has already been settled.
12. The question of bonafides had been considered by Hon'ble Supreme Court in Baldev Singh Bajwa's case (supra) and has been held that if the landlord does not use the property for which it was being got vacated, he is liable to be proceeded against under Section 19(2-B) and also liable to be punished with imprisonment for a term which may extend to six months or a fine which may extent to Rs.1000/- or both. Similarly a safeguard has also been provided in Section 13-B(3) which gives the tenant a right to file an application for restoration of possession if the owner transfers or lets out the property within five years from taking possession.
13. Thus, keeping all these parameters in mind, no fault can be found with the order of the Rent Controller whereby application for leave to contest had been dismissed. The tenant is given three months' time to vacate the premises in question and eviction order would not be executed before three months from the date of passing of the judgment.
13. Accordingly, the revision petition is dismissed.
(G.S.SANDHAWALIA) JUDGE 12.3.2012 Pka Civil Revision No.1105 of 2012 -18- *****