Punjab-Haryana High Court
Yogesh Kumar Walia vs Joginder Singh on 24 September, 2012
Author: Hemant Gupta
Bench: Hemant Gupta, Rajiv Narain Raina
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Date of decision: 24.9.2012
CR No. 3288 of 2010
Yogesh Kumar Walia ......Petitioner
vs.
Joginder Singh .....Respondent
CORAM: - HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE RAJIV NARAIN RAINA Present: - Ms. Priya Gupta, Advocate for the petitioner.
Mr. Sunil Chadha, Advocate for respondents.
HEMANT GUPTA, J Petitioner-tenant is in revision aggrieved against the order dated 22.4.2010 (Annexure P-7), whereby an application for leave to defend filed by the petitioner to cross-examine the landlord was declined. The challenge is also to another order dated 22.4.2010 (Annexure P-8) wherein an order of eviction was passed against the petitioner under Section 13-B of the East Punjab Urban Rent Restriction Act 1949 (for short the 'Act').
The brief facts leading to the aforesaid orders are that the respondent filed a petition under Section 13-B of the Act on 6.8.2009, alleging therein, that his father Mehanga Singh was the owner of the property in question. He died on 23.4.2009 and that he along with his brother succeeded to the estate of Mehanga Singh on the basis of registered Will dated 20.11.1984. He, a Non Resident CR No. 3288 of 2010 -2- Indian (NRI), is entitled to seek eviction in terms of Section 13-B of the Act inserted vide the Punjab Act No. 9 of 2001.
On 30.7.2012, the learned Single Bench expressed his disagreement with the judgment of a learned Single Bench of this Court reported as 2008 (1) Punjab Law Reporter 33, Ved Parkash Sharma, vs. Ranbir Singh Sahota and another and referred the matter to the Larger Bench. It is in pursuance of such order, the matter has been placed before this Bench.
Learned counsel for the petitioner has vehemently argued that in terms of Section 13-B of the Act, an NRI- owner is entitled to seek eviction only if he is an NRI for a period of five years before filing of the petition. In the present case, respondent inherited the right in the property on the death of his father on 23.4.2009 and has sought eviction soon thereafter. Therefore, he is not entitled to seek summary eviction of a tenant contemplated under Section 13-B of the Act. It is argued that in Ved Parkash Sharma's case (supra), the land owner had died in the year 1976, whereas the provisions of Section 13-B of the Act came to be introduced vide the Punjab Act No 9 of 2001. Therefore, the owner was an NRI for a period of five years, prior to the filing of the petition. Thus, such judgment is not applicable to the facts and circumstances of the present case.
On the other hand, the learned counsel for the respondent has relied upon the said judgment and also a judgment of Hon'ble the Supreme Court in Baldev Singh Bajwa vs. Monish Saini, AIR 2006 SC 59.
Before we consider the respective arguments of learned counsel for the parties, Section 13-B of the Act would need reproduction: - CR No. 3288 of 2010 -3-
"13.B Right to recovery 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-resident 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) ............................................................................................... (3) ..............................................................................................."
It is the proviso which is the subject matter of interpretation before this Court. Such proviso was also the subject matter of interpretation before a Division Bench of this Court in Smt. Bachan Kaur and ors vs. Kabal Singh and another, Civil Revision No. 4025 of 2006 decided on 26.4.2011, in which one of us (Hemant Gupta, J) was a member. One of the arguments raised in the aforesaid case was that the benefit of the Section 13- B of the Act can be availed by only that NRI who has let the building to the tenant after becoming owner of the building for five years. The Court held to the following effect: -
"In the Punjab Act, as originally enacted, the word owner is not used in the entire Act. Section 13-B of the Punjab Act confers a right of eviction to an owner for the first time. Therefore, an ordinary meaning of such expression has to be applied while interpreting the provisions of the Punjab Act. The proviso to sub- section (1) of Section 13-B of the Punjab Act, regulates the right of eviction of such owner i.e. after a period of five years from the date of becoming the owner of such a building. The proviso is an exception to the substantive provision when it restricts right of such owner to seek eviction after five years and is explanatory, when it provides that an owner shall be entitled to seek eviction after five years of becoming owner. The right of eviction under the Punjab Act, has been given to an owner in respect of residential, scheduled or non residential building let out by him or her, required for his or her use or for the use of anyone ordinarily living with or dependent upon him or her. The proviso explains that an CR No. 3288 of 2010 -4- owner is entitled to seek ejectment after five years of acquiring title. It is well settled that all words in the statute have to be given meaning. The argument that an NRI is entitled to seek eviction after five years of becoming owner only if the tenant has been inducted by him does not serve the purport of the Act. If such meaning is assigned, the right of eviction given to NRI becomes otiose. Therefore, restricting the right of eviction to an owner who has let out the building alone cannot be reconciled with the proviso. The harmonious construction of proviso and the substantive provision is possible by accepting the argument that the tenant need not be necessarily inducted by the petitioner- owner more so when a tenancy is interest in the immoveable property transferred with the property itself.
The ownership of the building is the necessary condition for maintaining the eviction petition under Section 13-B of the Punjab Act. The letting out by the petitioner is not a sine-qua-non to maintain eviction petition in terms of the Punjab Act. One can acquire ownership right by virtue of a purchase or by inheritance. Though in our opinion, the title derived by inheritance is legal consequence and should exclude limit of five years, but since the said question has not been debated before us, we so no more in the present case. We leave such question to be decided in an appropriate case later. Therefore, an owner has a right to seek eviction after the period of five years from the date of becoming owner of such building, irrespective of the fact that the building has been let out by him or her. Once a person has become owner of the property, the tenancy rights being attached to the building stand transferred to him in the same manner as all other rights to a building, which has been purchased by him or her. The object of granting summary right of eviction to a Non Resident Indian is to provide mechanism for possession of their own residential building, as an exception to rigid legal provisions of the existing provisions of the law. Such right is manifested when right of eviction is conferred on an owner. If the argument of the learned counsel for the tenants is to be accepted that the intention was to restrict the right of eviction to only those NRI's who have let out the premises, such interpretation would negative the very purpose of the insertion of the mechanism of summary eviction contemplated under Section 13-B of the Act."
It was noticed that the question in respect of title derived by inheritance is a legal consequence but was left open to be decided in an appropriate case.
The proviso to Section 13-B of the Act contemplates that the right of eviction shall be available after "the period of five years from the date of becoming the owner of such a building". In Ved Parkash Sharma's CR No. 3288 of 2010 -5- case (supra), Ranbir Singh Sahota and Major Randhir Singh purchased the property in question on 23.7.1968. Major Randhir Singh, one of the original co-owner died on 17.1.1976 leaving behind respondent No. 2 and his mother Daljit Kaur (died on 3.3.2002) as the legal heirs. Another son of Major Randhir Singh also died on 1.4.1995. Both the respondents i.e. Ranbir Singh Sahota and the successor-in-interest of Major Randhir Singh were NRIs. It was observed that respondent No. 2 inherited the share of his father along with his mother and that he is co-owner in his own right since 17.1.1996, the date of death of his father. The argument was raised that respondent No. 2 derived exclusive right over the property after the death of his mother Daljit Kaur on 3.3.2002. Therefore, he cannot be said to be the owner of the property, in question, for a period of five years immediately prior to the filing of the present petition. It was held to the following effect: -
10. However, I do not find any merit in the arguments raised by learned Counsel for the petitioner. The property in question was purchased by respondent No. 1 and father of respondent No. 2 in the year 1968. Respondent No. 2 has not acquired the property for the first time in the year 2002. In fact, the property has been inherited by respondent No. 2. The bar contained in proviso to Section 13-B (1) of the Act that one should be owner of the property for a period of five years can be said to be applicable in respect of the property purchased for the first time. But if the property has been inherited, it can be said that the proceedings under Section 13-B of the Act are being misused for eviction of a tenant. The purpose of such restrictions seems to be that a Non Resident Indian may not buy the property only to seek ejectment of a tenant and, thus, indulge in malpractice of eviction of tenants.
11. Even otherwise, the matter can be examined from another angle as well. The father of the petitioner who purchased the property died on 17.01.1976. After his death, respondent No. 2 inherited the share of his father along with mother Daljit Kaur, other brothers and sisters. Therefore, he is co-owner in his own right since 17.01.1976 as well.CR No. 3288 of 2010 -6-
We find that para 10 has to be read keeping in view the facts of the aforesaid case wherein respondent No. 2, an NRI became co-owner on the death of his father whereas the right to seek summary eviction arose only in the year 2001 i.e. five years later, though the petition was filed in the year 2006. In these facts, it was held that the proviso does not restrict his rights to seek eviction of a tenant.
However, in the present case, respondent acquired ownership rights only in April 2009 after the death of his father. The respondent was not owner for the period of five years on the date of presentation of the petition as a Non Resident Indian. The right of eviction is conferred on an NRI who is possessed of such estate for a period of five years prior to the filing of the petition. But if the deceased owner was also an NRI, then the period of his ownership as an NRI can be taken into consideration for the reason that the ownership does not remain in abeyance.
The expression five years from the date of "becoming the owner of such a building" has different connotation in respect of acquiring of right as an NRI for the first time and as legatee of an NRI. The opening of succession will not affect the right of an owner to seek eviction as an NRI by clubbing the period of ownership of the predecessor and the present owner, if both happen to be NRIs. But where the predecessor as in the present case is not an NRI and the legatee seeks benefit of summary eviction then he can avail such right only after a period of five years from the date of becoming the owner of such a building.
The judgment of the Hon'ble Supreme Court in Baldev Singh Bajwa case (supra) is not applicable to the facts of the present case, as it was not a case of rights of owner consequent to opening of succession. CR No. 3288 of 2010 -7-
The right of ownership accrued to the respondent only on the death of his father i.e. on 23.4.2009. Therefore, he does not satisfy the pre- conditions to seek summary eviction of the tenant under Section 13-B of the Act. Thus the petition to seek the summary eviction of the tenant was not maintainable.
In view of the above, the present petition is allowed and the orders dated 22.4.2010 (Annexure P-7) and (Annexure P-8) are set aside.
(HEMANT GUPTA) JUDGE (RAJIV NARAIN RAINA) JUDGE 24.9.2012 preeti