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Punjab-Haryana High Court

Gurcharan Singh @ Charan Singh And ... vs Kewal Krishan And Others on 27 March, 2012

Author: G.S.Sandhawalia

Bench: G.S.Sandhawalia

 C.R. No.1805 of 2012                                                 1

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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH C.R. No.1805 of 2012(O&M) Date of decision: 27.3.2012 Gurcharan Singh @ Charan Singh and another ......Petitioners Vs Kewal Krishan and others ......Respondents CORAM: HON'BLE MR.JUSTICE G.S.SANDHAWALIA *** Present: Mr. Hitesh Kaplish, Advocate, for the petitioner.

**** G.S.SANDHAWALIA J, (Oral).

1. The challenge in the present petition by the tenant is to the order dated 19.9.2011 passed under Section 13-B of of the East Punjab Urban Rent Restriction Act, 1949 (for brevity, the Rent Act') whereby the petition of the NRI-landlord has been allowed and the ejectment has been ordered after full fledged trial after allowing the application of leave to contest.

2. The case of the NRI-landlord was that the premises in question were owned by his father and thereafter his mother, namely, Mayawanti and sister Sudesh Kumari became owner of the building in question vide judgment and decreed dated 4.11.1985 passed in civil suit C.R. No.1805 of 2012 2 **** No.84 of 2.4.1985. The mother of the landlord had executed a registered will dated 23.12.1985 in favour of the landlord and thus, he is co-owner of the building in question and entitled to file ejectment petition. It is averred in the petition under Section 13-B of the Rent Act that the landlord along with his brother Surinder Pal and sister Sudesh Kumari are Non Resident Indians. Originally the portion of the building was let out to Ajit Singh, who has died and respondents No.1 to 4 are legal heirs of Ajit Singh. At present none of the legal heirs of Ajit Singh is doing any work in the said portion of the building in question and respondent no.5 claimed that he was in possession and running the business of M/s Khera Travelers. The landlord pleaded that he was owner of the building in question for the last more than five years and required the building in question for his own and family's use and occupation being an old man of about 76 years and was a retired person. The landlord and his wife were residing in United Kingdom and it was pleaded that they had come to India permanently and were to live in the building since the climate of the United Kingdom being very cold was unbearable for them. Even otherwise, the landlord had decided to live in his native country and thus was in need of the premises in question and he had three sons and grand children and he did not own any other building except the premises in question. There were other tenants also in the building in question and separate ejectment petitions were being filed against them as the landlord needs the full building for his occupation. The landlord had no other building in the urban area of Phagwara, Tehsil Kapurthala except the building in dispute. It was also pleaded that the landlord had no other residential or non-residential building or had not rented out any building prior to filing the present petition and there was no previous litigation pending between the parties. C.R. No.1805 of 2012 3

**** Earlier the petition under Section 13-B of the Rent Act had been dismissed in default vide order dated 6.5.2004 and this fact was mentioned in the present petition under Section 13-B of the Rent Act. It was mentioned that the landlord was abroad and the petition was filed through his attorney, namely, Prem Pal, who failed to continue the same without any information to him. Thereafter, the landlord came from abroad on 17.3.2006 and came to know about the order dated 6.5.2004.

3. The tenants-respondents No.1 to 4 did not appear and were proceeded against exparte by the Rent Controller, Phagwara and tenants- respondents No.5 & 6 appeared and filed an application for seeking permission to leave to contest under Section 18-A, which was dismissed by the Rent Controller, Phagwara vide order 26.2.2008 but the same was allowed by this Court in Civil Revision No.2729 of 2008 vide order dated 18.11.2010 and leave to contest was granted to tenants-respondents No.5 & 6. Accordingly, they filed written statement wherein it was denied that father of the landlord had purchased the building in question vide registered sale deed dated 31.1.1953. It was also denied that Mayawanti and Sudesh Kumari became owners of the building in dispute vide judgment and decree dated 4.11.1985 and there was any will dated 23.12.1985. Accordingly, the ownership of the landlord for the last more than five years was denied and even it was pleaded that the sale deed dated 31.1.1953 did not pertain to the property in question. The relationship of the landlord and tenants was also denied and it was also pleaded that the tenants-respondents no.5 & 6 have taken the property in question on rent from its real owner Kuldeep Chand and had been depositing the rent in the saving bank account of the owner of the property at Punjab National Bank, branch Phagwara. The factum of coming back of C.R. No.1805 of 2012 4 **** the landlord and his family was denied and it was pleaded that the property was let out for commercial purpose and the same could not be got vacated by the landlord. It was also pleaded that the landlord was in possession of many other premises within the municipal limits, Phagwara and the landlord was well settled in England along with his family members including his sons, daughter-in-law, grand children and the landlord could not live in India in his old age. The factum of the earlier petition having been dismissed was also raised and thus, the landlord has no cause to file the present petition.

4. On the basis of the pleadings, the Rent Controller framed the following issues:-

"1. Whether the petitioner is non resident Indian?OPP

2. Whether the petitioner is the owner of the property in dispute?OPP

3. Whether the petitioner requires the premises in dispute for his personal necessity?OPP

4. If issues No.1,2,3 are proved, whether the petitioner is entitled to an order of eviction against the respondent?OPP

5. Whether the petition is not maintainable?OPR

6. Whether the petition is barred by principle of resjudicata?OPR

7. Relief."

5. Taking into account the evidence on record, the Rent Controller, Phagwara came to the conclusion that the the landlord had passport bearing No.464444175 issued by the United Kingdom of Great Britain and Northern Ireland and the place of birth of the landlord was Paddi Jagir which is in India and, accordingly, it was held that the landlord was a NRI and owner of the property in view of the sale deed dated 31.1.1953 Ex.P3. The revenue record Ex.P13 to Ex.P22 was taken into consideration to hold that he was owner of the property alongwith the C.R. No.1805 of 2012 5 **** judgment and decree dated 4.11.1985 Ex.P6 and Ex.P7 respectively vide which Mayawanti and Sudesh Kumari his mother and sister had become owner of the property. The contention of the tenant that the property was not the part of Khasra numbers mentioned in the decree sheet Ex. P7 was brushed aside as no evidence was placed on record to show that the property in question was not the part of the Khasra numbers mentioned by the landlord and neither any other khasra numbers had been pleaded to prove that the property fall in those numbers. The fact that only power of attorney of the respondent no.5 appeared and he had also pleaded ignorance of all material facts also prevailed with the Rent Controller. The factum of the death of Ram Rattan and Maya Wanti on 30.9.1982 and 18.4.1995 respectively and their death certificates Ex.P5 and Ex.P8 were taken into consideration and accordingly after taking into account the binding precedent of the Division Bench judgment of this Court in Smt. Bachan Kaur and others Vs. Kabal Singh and another 2011 (2) RCR (Civil) 886, the Rent Controller, Phagwara came to the conclusion that being co-owner, the landlord had a right to file the petition and he was owner of the building in question for the last more than five years. The bonafide necessity was also taken into account and merely because the landlord was an old man of 76 years and he was residing in United Kingdom was held not to be a ground to reject the ejectment petition. After taking into consideration Sections 13-B (3) and Section 19 (2-B) which provided protection to the tenant to come back into the premises, the ejectment petition was allowed by the Rent Controller, Phagwara. Resultantly the present revision petition has been filed.

6. Counsel for the petitioners has contended that an earlier petition had been dismissed in default and, therefore, the second petition C.R. No.1805 of 2012 6 **** was not maintainable in view of provisions of Section 13-B of the Rent Act which provides that only one petition can be preferred and the right is available only once during the life time of such owner. However, counsel for the petitioners has been fair enough to concede that against the same landlord another tenant had approached this court and raised the same plea and this Court had rejected the said plea in case titled Davinder Singh Vs. Kewal Krishan 2007(3) PLR 432 and held as under:-

"I do not find any substance in the aforesaid contention raised by the counsel for the petitioner. In my opinion, the Non- Resident Indian landlord has been given one time right in his life to get the rented premises evicted from the tenant for his personal use and occupation. Undisputedly, in this case on earlier occasion, no ejectment order was passed against the petitioner. Only the application filed by the respondent-landlord was dismissed in default prior to issuance of summons to the petitioner. Therefore, merely because the earlier ejectment application was dismissed in default, the filing of the second petition is not barred under the law. The interpretation suggested by the petitioner cannot be accepted as it will go contrary to the main object of the provisions which provides that Non Resident Indian landlord is entitled to evict his tenant once in his life time from the demised premises for his use and occupation. Thus, I do not find any illegality in the impugned order passed by the Rent Controller."

7. Resultantly, the submission made by the counsel that once the earlier petition had been dismissed in default, the second petition was not C.R. No.1805 of 2012 7 **** maintainable does not carry any weight. Admittedly, the first petition was not decided on merits and the said rider would only be there, if the petition is decided on merits and the second petition for the same relief would be barred. The Rent Controller, Phagwara has taken into consideration the binding precedent of this Court and after seeing all the required parameters are fulfilled which pertain to the Non Resident Indian requiring the premises for his own personal necessity and being the owner for the last more than five years, there cannot be found any fault or illegality in the orders of the Rent Controller, Phagwara. The Hon'ble Apex Court in the celebrated case of Baldev Singh Bajwa Vs. Monish Saini AIR 2006 (SC) 59 has laid down that there has to be presumption in favour of the bonafide requirement of the NRI and in para no.22 recorded as under:-

"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 C.R. No.1805 of 2012 8 **** purpose and object of the legislation. No doubt the legislative intent in enacting Section 13-B, is to provide for immediate possession of the 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 C.R. No.1805 of 2012 9 **** comes into operation when the leave to contest is granted by the Controller. Sub-s. (6) of Section 18-A provides that the 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 C.R. No.1805 of 2012 10 **** provisions restricting the right of the landlord to deal with the premises taken 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."

8. The last submission made by the counsel is that the landlord was not a NRI since he is having a British passport. The said submission can also not be accepted as it has been held in Sohan Lal Vs. Swaran Kaur 2003(2) R.C.R.(Rent) 407 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 vocation 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 C.R. No.1805 of 2012 11 **** 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.

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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 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 C.R. No.1805 of 2012 12 **** 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 in 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 C.R. No.1805 of 2012 13 **** 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 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).

xxx xxxx xxxx

31. A choice has also been given to the owner under C.R. No.1805 of 2012 14 **** Section 13-B of the Act to choose a building if he has more than one under the occupation of tenants from which he seeks his eviction. The only condition is that he must be owner for more than 5 years and the right of Section 13-B of the Act is available only once during the lifetime of such an owner. Therefore, I am of the firm view that the expression NRI would include any person of Indian origin who is owner of the property under the tenancy of another person. The right conferred by Section 13-B of the Act cannot be confined only to citizens."

27.3.2012                                       (G.S.SANDHAWALIA)
Pka                                                       JUDGE