Punjab-Haryana High Court
Manohar Lal Mahajan vs Kuldip Singh Mahal on 20 March, 2012
Author: G.S. Sandhawalia
Bench: G.S. Sandhawalia
C.R. No. 1663 of 2012 (O & M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.R. No. 1663 of 2012 (O & M)
DATE OF DECISION: March 20, 2012
Manohar Lal Mahajan .........PETITIONER(S)
VERSUS
Kuldip Singh Mahal ......RESPONDENT(S)
CORAM: HON'BLE MR. JUSTICE G.S. SANDHAWALIA
Present: Mr. JaideepVerma, Advocate,
for Mr. Ravi Kant, Advocate,
for the applicant-petitioner.
G.S. SANDHAWALIA, J. (Oral)
C.M. No. 7286-CII of 2012 The application filed under Section 151 CPC for placing on record the affidavit of Ravi Kant Kangra, Advocate is allowed.
Affidavit is taken on record and on oral request of the counsel, main revision petition is pre-poned and taken up for hearing today itself alongwith connected miscellaneous applications. C.M. No. 7003-CII of 2012 The application filed under Section 151 CPC seeking exemption from filing certified copy of orders dated 08.03.2011 passed by Rent Controller, Chandigarh as well as Annexures P-1 and P-2 and to file the photocopies of orders dated 08.03.2011 and Annexures P-1 and P-2 is allowed, in view of the averments made in the application, which are duly supported by an affidavit.
C.R. No. 1663 of 2012 (O & M) 2C.M. No. 7004-CII of 2012 Application filed under Section 5 of the Limitation Act for condoning delay of 282 days in filing the revision is allowed, in view of the averments made in the application, which are duly supported by an affidavit alongwith the affidavit of Sh. Ravi Kant Kangra, Advocate.
Delay condoned.
C.M. No. 7005-CII of 2012 in/and C.R. No. 1663 of 2012
1. The present revision petition is directed against the order dated 08.03.2011 whereby the Rent Controller, Chandigarh has dismissed the application of the tenant under Section 18-A of the East Punjab Urban Rent Restriction Act, 1949 (for short 'The Act') and held that there is no triable issue and accordingly ordered ejectment of the tenant from the premises in question which are measuring 4' x 18' approximately on the back side of ground floor of SCO No. 289, Sector 35-D, Chandigarh.
2. The respondent-landlord filed petition under Section 13-B of the Act alleging that he was owner and landlord of the premises in question and the tenant had been inducted long back and the rate of rent was `150 per month excluding electricity and water charges. It was contended in the petition that his family consists of himself, wife, two daughters and a son and he wanted to settle his children in India and he was a NRI since the passport had been issued by the United States of America. The photocopy of the said passport was also appended and it was pleaded that there was no other property of the petitioner except the shop-cum-office in question, in which he was seeking eviction of all the tenants by filing separate petitions against each tenant so that the petitioner could start the business in the C.R. No. 1663 of 2012 (O & M) 3 entire shop-cum-office. It was further pleaded that the petitioner had retired in the year 1987 and he wanted to settle his children in the premises in question. It was further pleaded that the building in question had been completed in the year 1973 and the completion certificate had been obtained from the competent authority Annexure P-3 and the requirement of the petitioner was bona fide.
3. The tenant filed leave to contest application, in which it was contended that Kuldip Singh Mahal was not the owner of the property since the rent was being deposited in the account of Sh. H.S. Mahal who had rented out the property in dispute to the tenant in the year 1973 and there was no intimation in writing to the tenant regarding the change of owner of the property. It was also pleaded that the petitioner therein was no more the citizen of India and, therefore, the petition under Section 13-B of the Act was not maintainable. Reliance was also placed upon the electricity bill to show that the electricity connection was in the name of Sh. H.S. Mahal. The bona fides of the petitioner were also denied on the ground that he had been living in USA since the early sixties and, therefore, he was not likely to come back to India and having taken retirement, he and his family have been settled in USA.
4. The said application was contested by the owner by filing reply wherein, it was mentioned that he was the owner of the property in question and the premises were let out by Sh. H.S. Mahal on behalf of the present petitioner and was in the knowledge of the respondent and the age was not a consideration for starting any business and he wanted to settle himself alongwith his children in India and wanted to live in his own culture and he had sufficient funds to purchase a residential house and stay as and when C.R. No. 1663 of 2012 (O & M) 4 the shop-cum-office fell vacant.
5. The Rent Controller, on the basis of the pleadings, came to the conclusion that there was an allotment letter No. 3725 dated 31.03.1970 issued by the Chandigarh Administration, U.T., Chandigarh in favour of the owner and also took into consideration the occupation certificate issued by the Chandigarh Administration for use of the building in question. The factum that the owner was having the citizenship of USA was noticed in view of the passport issued in favour of the owner and it was noticed that Sh. H.S. Mahal was none else but the father of the owner and, therefore, he had let out the premises in question. The intention to come back was also noticed and accordingly, it was held that all the ingredients of Section 13-B of the Act were duly fulfilled and the present petition was filed after a period of more than five years of allotment thereof. Reliance was placed upon the judgment of this Court rendered in Lakhwinder Kumar vs. Pavitter Kaur (dead) through LRs 2010 (3) RCR 279 to hold that it was not necessary for the owner to let out the premises and even an authorized person can let out the same premises.
6. On the issue of bona fide aspect, reliance was placed upon Rachpal Singh and others vs. Gurmit Kaur and others, 2009 (3) Civil Court Cases, 667 (SC) and the intention of the landlord to come back was also taken into consideration and accordingly, the application for leave to contest was dismissed by distinguishing the judgment relied upon by the tenant in case of Kundan Singh vs. Lal Singh, 2005 (1) Rent Control Reporter 194 (P & H) and accordingly, vide separate order of the same day, the ejectment was also passed and the tenant was granted two months' time to hand over the vacant possession of the premises. Resultantly, the present C.R. No. 1663 of 2012 (O & M) 5 revision petition has been filed.
7. Counsel for the petitioner has argued that the order is not sustainable and triable issues are made out and leave to contest has been wrongly denied and the ejectment order has been wrongly passed.
8. The submission of the counsel is not acceptable as the Rent Controller, Chandigarh has taken into consideration the fact that the four essential ingredients of Section 13-B of the Act are fulfilled which are; that admittedly, there is an allotment letter dated 31.03.1970 in favour of the owner. There is an occupation certificate also in favour of the owner after the building was completed and the intention of the owner coming back to India is very clear that he wants to come back and start business in the premises in question and is also seeking eviction of all the tenants by filing separate petitions. The owner is also a US citizen and he is a Non-Resident Indian as defined under Section 2(dd) of the Act as he had gone abroad for taking employment outside India and had been residing abroad for a long period. The contention of the counsel for the petitioner that the allotment letter was issued way-back in the year 1970 and there is no other proof of ownership is not acceptable as the tenant has to place some document on record to show that Kuldip Singh Mahal was no longer the owner which would make out a triable issue and evidence had to be adduced. The submission that the letting out by Sh. H.S. Mahal, father and not by Kuldip Singh Mahal is also without any basis in view of the judgment of a Division Bench of this Court rendered in Smt. Bachan Kaur and others vs. Kabal Singh and another, 2011 (2) RCR (Civil) 886. In the said judgment, the Division Bench of this Court framed the following question of law and answered it accordingly:-
C.R. No. 1663 of 2012 (O & M) 6
"2. Whether the premises from which eviction is sought under Section 13-B of the Act is to be let out by NRI/landlord or his duly authorized person acting on his behalf, or it can also include the letting by some other co- owner or predecessor-in-interest in their own right and not under the authority of NRI/landloard?"
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 C.R. No. 1663 of 2012 (O & M) 7 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. The expression let out by him in the context of Section 13-B of the Punjab Act, does not require strict interpretation as interpreted by the Supreme Court in Nathi Devi's case (supra), as such interpretation is neither warranted nor advances the purpose of granting summary right of eviction under Section 13-B of the Punjab Act. Therefore, the Judgment in Nathi Devi's case (supra) cannot be applied to the cases arising out of the Punjab Act.
9. Thus, in view of the binding precedent of the Division Bench of the Court that the letting out can be by some other person also, the C.R. No. 1663 of 2012 (O & M) 8 submission made by the counsel is not acceptable. The next submission of the counsel is that the bona fides of the owner are not clear as he has stayed abroad and, therefore, he is not likely to come back and his desire is only to get the premises vacated. The Hon'ble Apex Court, in Baldev Singh Bajwa vs. Monish Saini, 2005 (4) RCR (Civil) 492 has categorically held that the plain reading of the Statute has to be taken into consideration and there is a presumption in favour of the NRI owner. The relevant portion of the judgment reads as under:-
"22. The golden rule of construction is that when the words of legislation are plain and unambiguous, effect must be given to them. The basic principle on which this rule is based since the words must have spoken as clearly to legislatures, as to judges, it may be safely presumed that the legislature intended what the words plainly say. The legislative intent of the enactment may be gathered from several sources which is, from the statute itself, from the preamble to the statute, from the statement of objects and reasons, from the legislative debates, reports of committees and commissions which preceded the legislation and finally from all legitimate and admissible sources from where they may be allowed. Record may be had from legislative history and latest legislation also. But the primary rule of construction would be to ascertain the plain language used in the enactment which advances the purpose and object of the legislation. No doubt the legislative intent in enacting Section 13-B, is to provide for immediate possession of the C.R. No. 1663 of 2012 (O & M) 9 accommodation owned by the NRI but it cannot be assumed that the legislature wants the NRI landlord/ owner, to get the possession of the accommodation from the tenant even if he does not require it and the need pleaded is proved to be a mere pretext to get the accommodation vacated. Had that not been the intention of the legislatures, the phrase `required' by the NRI landlord would not have been used in Section 13-B. The classified landlords are given the benefit of summary trial under Section 18-A of the Act. The summary trial is in two parts. Sub-s. 4 provides that after the service of summons the tenant has no right to contest the prayer for eviction from the residential building, or schedule 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 provided in Sub-s. 5 of Section 13-B to contest the matter. If the tenant defaults to appear in pursuance of summons or when he does not get leave to contest, the controller shall presume the statements made by the NRI in his petition have been admitted by the tenant and pass an order of eviction. This eventuality is contemplated when a tenant does not appear in pursuance of the summon issued and served or where the leave to contest has not been granted by the Controller. The second facet of the Section comes into operation when the leave to contest is granted by the Controller. Sub-s. (6) of Section 18-A provides that the C.R. No. 1663 of 2012 (O & M) 10 controller has to commence the hearing of the petition not later than one month from the date on which the leave was granted to the tenant to contest and he has to hear the application from day-to-day till the hearing is concluded and the application is decided. It is further provided that the procedure which shall be followed in deciding the application would be as is being practiced by Court of Small Causes. No appeal or second appeal is provided. From the aforesaid, it is absolutely apparent that even when leave would be given to the tenant to contest, legislatures have taken care of expeditious disposal of the petition for ejectment filed by the NRI landlord. Trial of the issue of bona fide requirement of the landlord in the procedure prescribed would not take much time and thus we cannot accept the argument that the phrase ``required'' used by the legislature in Section 13-B would not mean bona fide or genuine requirement and the Section has to be construed as and when the allegation is made by the landlord of his need, it is to be taken as gospel truth and the tenant's right to defend on that count is completely extinguished and given a go-by. We do not think High Court is right in holding that mere prayer of the NRI landlord that tenanted premises is required by him or his dependent living with him entails decree of eviction on the mere allegation of requirement and no leave to contest can be given in respect of cases which are covered by various provisions restricting the right of the landlord to deal with the premises taken C.R. No. 1663 of 2012 (O & M) 11 possession of by him in pursuance of the decree for eviction passed by the Controller under Section 13-B of the Act of 1949. We hold that allegations made by the NRI landlord of his requirement shall be presumed to be genuine and bona fide unless rebutted by the tenant by placement of cogent and material facts and evidence in support thereof at the stage of `leave to contest' before the Controller. We feel any other interpretation would completely whittled down and deny the tenant's right to show and prove that landlord does not in fact, or in law require suit premises.
26. 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 returned to India permanently or for the temporary period; (iii) requirement of the accommodation by him or his dependent is genuine; (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 C.R. No. 1663 of 2012 (O & M) 12 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 last submission made by the counsel for the petitioner is that the issue of persons holding foreign passports is pending before the Hon'ble Supreme Court of India and, therefore, since the owner was a U.S. passport holder and, therefore, he cannot be said to be under the category of NRI. The said submission is also without any basis. The Hon'ble Supreme Court of India in Baldev Singh's Bajwa's case (supra) has held that 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 an NRI because his stay could not be said to be for an uncertain period. In this case, the owner of the property has been settled abroad since 1960. It is the case of the tenant himself that he has been residing abroad long and he is not likely to come back. Therefore, it cannot be said that the person is not a NRI as defined under Section 2(dd) of the Act. In this context, the relevant portion of Baldev Singh Bajwa's case (supra) reads as 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 is 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 C.R. No. 1663 of 2012 (O & M) 13 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 for 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 India origin. The phrase "Indian Origin" has not been defined in the Act of 1949. The dictionary and in ordinary parlance phrase "origin" refers to person's parentage or ancestry. The person whose parent, grant-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 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. Submission of the learned counsel for the appellants is to bring the case within the four corners of Sections 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 Sections 2(dd) and 13-B sought to be placed by the learned counsel. Return to India could not be read as C.R. No. 1663 of 2012 (O & M) 14 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" could also be a person who has settled permanently outside India. Thus permanent resident outside India being NRI can claim ejectment."
11. Thus, taking cumulative look at all these aspects, it is clear that the owner has satisfied all the ingredients of Section 13-B of the Act and this aspect has been examined by the Rent Controller in detail. No illegality or perversity can be found in the orders which are under challenge which would warrant interference in revisional jurisdiction of this Court.
12. Accordingly, the present revision petition is dismissed.
20.03.2012 (G.S. SANDHAWALIA) shivani JUDGE