IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. (1) C.R. No.4776 of 2010 (O&M) Arun Kumar Puri. ....... Petitioner. Versus Iqbal Singh. ....... Respondent. (2) C.R. No.4777 of 2010 (O&M) Deep Raj. ....... Petitioner. Versus Iqbal Singh. ....... Respondent. Date of Decision: 2.8.2010 CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... Present: Shri Hitesh Kaplish, Advocate for the petitioners. .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. By this judgment, I propose to dispose of the above mentioned C.R.No.4776 of 2010 (O&M) -2- .... two revision petitions, which, although have been preferred against different orders of the Rent Controller,Phagwara, but involves common questions of law and facts. Respondent-Iqbal Singh filed two separate applications under Section 13-B of the East Punjab Urban Rent Restriction Act,1949 (for short, `the Act') for eviction of the petitioners from two shops (hereinafter described as `the demised premises') owned by him. It was pleaded by respondent no.1 that he was a Non Resident Indian (referred to hereinafter as ` N.R.I.'); that he is owner of the demised premises for the last more than five years as the land on which the eight shops including the shops in question were constructed, was purchased vide sale deed dated 14.2.1978; that he has retired from service in United Kingdom and wants to settle in India permanently; that the demised premises were let out to the petitioners on different dates and rent notes were duly executed in that regard; that now he requires the demised premises for his own use and occupation as he intends for residence and also for opening a restaurant as the rear portion of the building which is in his possession and of which the demised premises are a part, is insufficient for his residence; and that the petitioners were requested to vacate the demised premises,but they refused to do so. Upon notice, the petitioners appeared and filed applications for leave to defend in which they denied the relationship of tenants and landlord between them and respondent no.1 by pleading that he was not owner of the demised premises. It was also pleaded by them that respondent no.1 was not N.R.I. and the demised premises were not required by him for his C.R.No.4776 of 2010 (O&M) -3- .... personal use and occupation. After hearing the parties, the Rent Controller dismissed the applications for leave to defend, accepted the prayer of respondent no.1 and ordered the ejectment of the petitioners from the demised premises, giving rise to the instant revision petitions. I have heard the learned counsel for the petitioners and have perused the impugned judgments. To avail the benefit of Section 13-B of the Act which is a special right available to an N.R.I., he has to satisfy certain conditions which are apparent from the combined reading of the said section and Section 19(2-B) of the Act and the same are as follows:- “(1) He should be owner of building for 5 years before he applied to Controller for possession. (2) He should require the same for his own use or for use of any one ordinarily living with him and is dependent on him. (3) Right under Section 13-B of immediate possession could be availed of only once during the life time of such an owner/NRI landlord. (4) He has choice to select one amongst several other residential buildings and/ or non-residential buildings. (5) If he gets possession under Section 13-B(2), he shall neither transfer it either by sale or by any other mode nor he shall let it out for the period of five years – In case of breach, the tenant is entitled to seek restoration of C.R.No.4776 of 2010 (O&M) -4- .... possession. (6)After getting possession he should occupy the premises continuously for a period of 3 months. (7) He is prohibited from letting out the whole or any part of that building from which the tenant was evicted to any other person except the tenant who had been evicted. On the other hand, the tenant equally has some defences available to him in which he can lay a challenge to an eviction application while seeking leave to defend. They are:- 1. Landlord is not an N.R.I. 2. Landlord is not owner of the demised premises. 3. Landlord is not owner of the demised premises for last five years before institution of the proceedings. 4. Landlord 's requirement is not bona fide and is a pretext to get the demised premises vacated. In the instant petitions, although, the petitioners had raised aforementioned pleas, but the Rent Controller did not find merit in them. It was averred by them that respondent no.1 had not shifted to India forever and has not come to India and, thus, impliedly they admitted that he is an N.R.I. Respondent no.1 has also placed on record a copy of his passport which showed that he used to visit India. The petitioners could not place on record any material to off-set the claim of respondent no.1 being an N.R.I. Respondent no.1 further placed on record a copy of sale deed vide which the land on which the demised premises along with other shops C.R.No.4776 of 2010 (O&M) -5- .... were constructed, was purchased. Thus, the second ingredient, viz., he was owner of the demised premises for the last five years, was also satisfied. In so far as the bona fide need of respondent no.1 is concerned, he has specifically pleaded that the demised premises are required by him for opening a restaurant and for his residence. The petitioners cannot doubt the genuineness of the need of respondent no.1 being tenants. However, they denied the relationship of landlord and tenant between them and respondent no.1 and in view of this fact alone, they have no locus standi to question him that he is not in need of demised premises or that he has sufficient accommodation in his occupation. The plea of the petitioners that respondent no.1 is in occupation of more property which is situated in the backside of the demised premises is also without any meaning as the provisions of Section 13-B of the Act restricts the benefit to one such property and it has not been shown by the petitioners that any such benefit has been availed of by him on an earlier occasion pertaining to any other property. Their Lordships of the Supreme Court in Baldev Singh Bajwa Versus Monish Saini, 2005(4) R.C.R. (Civil) 492 dealt with a matter pertaining to an N.R.I. and after noticing a number of judgements on the subject, observed as under:- “19. From the aforesaid decisions the requirement of the landlord of the suit accommodation is to be established as genuine need and not a pretext to get the accommodation vacated. The provisions of Sections 18-A(4) and (5) concede to C.R.No.4776 of 2010 (O&M) -6- .... the tenant's right to defend the proceedings initiated under Section 13-B showing that the requirement of the landlord is not genuine or bona fide. The legislative intent for setting up of a special procedure for NRI landlords is obvious from the legislative intent which has been deliberately designed making distinction between the ordinary landlords and special category of landlords. The Controller's power to give leave to contest the application filed under Section 13-B is restricted by the condition that the affidavit filed by the tenant discloses such fact as would disentitle the landlord from obtaining an order for recovery of possession. It is needless to say that in the summary proceedings the tenant's right to contest the application would be restricted to the parameters of Section 13-B of the Act. He cannot widen the scope of his defence by relying on any other fact which does not fall within the parameters of Section 13-B. The tenant's defence is restricted and cannot go beyond the scope of the provisions of the Act applicable to the NRI landlord. Under Section 13-B the landlord is entitled for eviction if he requires the suit accommodation for his or her use or the use of the dependent, (who) ordinarily lives with him or her. The requirement would necessarily to be genuine or bona fide requirement and it cannot be said that although the requirement is not genuine or bona fide, he would be entitled to the ejectment of the tenant nor it can be said that in no C.R.No.4776 of 2010 (O&M) -7- .... circumstances the tenant will not be (will be ?) allowed to prove that the requirement of the landlord is not genuine or bona fide. A tenant's right to defend the claim of the landlord under Section 13-B for ejectment would arise if the tenant could be able to show that the landlord in the proceedings is not NRI landlord; that he is not the owner thereof or that his ownership is not for the required period of five years before the institution of proceedings and that the landlord's requirement is not bona fide. 20. The legislative intent of expeditious disposal of the application for ejectment of the tenant filed by the NRI landlord is reflected from the summary procedure prescribed under Section 18-A of the Act of 1949 which requires the Controller to take up the matter on day-to-day basis till the conclusion of the hearing of an application. The Legislature wants the decision of the Controller to be final and does not provide any appeal or second appeal against the order of eviction, it is only the High Court which can exercise the power of consideration of the case, whether the decision of the Controller is in accordance with law. Section 13-B gives right of ejectment to special category of landlord who is NRI (Non- Resident Indian); and owner of the premises for five years before action is commenced. Such a landlord is permitted to file an application for ejectment only once during his life time. C.R.No.4776 of 2010 (O&M) -8- .... Sub-section (3) of Section 13-B imposes a restriction that he shall not transfer through sale or any other means or lease out the ejected premises before the expiry of the period of five years from the date of taking possession of the said building. Not only that, if there is a breach of any of the conditions of sub-section (3) of Section 13-B, the tenant is given a right of restoration of possession of the said building. Under sub- section (2-B) of Section 19 the landlord has to take possession and keep it for a continuous period of three months and he is prohibited from letting out the whole or any part of such building to any other person except the evicted tenant and any contravention thereof, he shall be liable for punishment of imprisonment to the term which can be extended upto six months. These restrictions and conditions inculcate inbuilt strong presumption that the need of the landlord is genuine. Landlord, after the decree for possession, is bound to possess the accommodation. Landlord is prohibited from transferring it or letting it out for a period of five years. Virtually conditions and restrictions imposed on the NRI landlord makes it improbable for any NRI landlord to approach the Court for ejectment of a tenant unless his need is bona fide. No unscrupulous landlord probably, under this section, would approach the Court for ejectment of the tenant considering the onerous conditions imposed on him by which practically he is C.R.No.4776 of 2010 (O&M) -9- .... deprived of his right in the property not only as a lessor but also as the owner of the property. There is a restriction imposed even on the transfer of the property by sale or any other manner. The restriction imposed on the landlord by all probability points to the genuine requirement of the landlord. In our view, there are inbuilt protections in the relevant provisions, for the tenants that whenever the landlord would approach the Court he would approach when his need is genuine and bona fide............”( Emphasis supplied). On the basis of the above discussion, I do not find any infirmity in the impugned judgments and the same are upheld. In the result, the revision petitions are dismissed being devoid of any merit. All pending civil miscellaneous applications are also dismissed in view of the above. August 02,2010 ( Mahesh Grover ) “SCM” Judge