IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.1571 of 2010 (O&M) Date of decision: 8.12.2011 Padam Nabh & Sons -----Petitioners Vs. Yash Pal -----Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG 1. Whether reporters of local newspapers may be allowed to see judgment? 2. To be referred to reporters or not? 3. Whether the judgment should be reported in the Digest? Present:- Mr. Vikas Bahl, Advocate for the petitioners. Mr. R.K. Handa, Advocate, Mr. Madan Sandhu, Advocate & Mr. Rajan Malhotra, Advocate for the respondent. --- RAKESH KUMAR GARG, J. 1. This is tenant’s revision petition challenging the order dated 19.1.2010 of the Rent Controller, Shaheed Bhagat Singh Nagar (Nawanshahr) vide which, the petition filed under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 (for short, “the Act”) by the respondent-landlord has been allowed and the petitioner-tenant has been ordered to be evicted from the premises in question. 2. The brief facts of the case are that respondent-Yash Pal filed an ejectment petition under Section 13-B of the Act claiming himself to be specified landlord of the premises in C.R. No.1571 of 2010 question being a Non-Resident Indian (NRI). He had gone to Australia in March, 1996 and was holder of Australian passport. He returned from Australia on 4.2.2004. It was further averred that the respondent was a co-owner in the building in part of which the demised premises were located on the Southern side on ground floor along with his brother Pardeep Kumar who was also an NRI and was in Australia for the last about 15 years. Brij Lal father of the respondent had purchased the building vide sale deed dated 6.2.1989 registered on 7.2.1989. Said Brij Lal expired in the year 1991 and by way of inheritance, the building mentioned above was acquired by the respondent and his brother Pardeep Kumar in equal shares. The petitioners were statutory tenants in the tenanted portion initially under Sat Parkash son of Jaswant Rai, resident of Nawanshahr, the vendor of the property and after the purchase of property by father of the respondent, they became tenants under him and after his death, the respondent along with his brother became landlords of the petitioners. The respondent returned to India and required the tenanted premises for opening of a departmental store in the building. Except the said building, the respondent do not have any other building within the Municipal limits of Nawanshahr nor he has ever got vacated any such like building after coming into force of the Act. Thus, it was prayed that the ejectment of the petitioners be ordered. 2 C.R. No.1571 of 2010 3. Initially, Shri D.P. Singla, the Rent Controller, Nawanshahr vide order dated 11.2.2006 dismissed the application moved by the petitioners seeking leave to contest the ejectment petition. The petitioner-tenant filed revision petition before this Court which was allowed vide order dated 28.11.2008 setting aside the aforesaid order dated 11.2.2006 of the Rent Controller and the petitioners were granted leave to contest. Thereafter, the petitioners filed written statement stating that the respondent was not an NRI and had not returned to India from Australia. It was further stated that the ownership of the respondent along with his brother over the demised premises was matter of record. However, it was denied that the same had fallen to the share of the respondent along with his brother. However, the petitioners admitted themselves to be the tenants under the respondent. It was also stated that the property was situated in Dana Mandi which was not suitable for any business except the business of wheat and paddy. It was also alleged that the family of the respondent was also not residing with him in Nawanshahr and he had left Nawanshahr for the last about 4-5 years ago with his family and the instant petition filed was to take the undue advantage of the provisions of the Act. It was also stated that the respondent had got many other properties situated within the municipal limits of Nawanshahr. Thus, it was prayed that the petition be dismissed. 3 C.R. No.1571 of 2010 4. It may also be relevant to mention here that Padam Nabh, predecessor-in-interest of the petitioners died during the pendency of this petition before the Rent Controller after the leave to contest the petition was allowed and the petitioners came on record. The rejoinder to the written statement was also filed, wherein the allegations of the written statement were denied and that of the ejectment petition were reiterated. From the pleadings of the parties, the following issues were framed:- “(1) Whether the petitioner is entitled to immediate possession of the demised premises under Section 13-B of the Act? OPP (2) Whether the petition is bad for non-joinder of the co-owners? OPR (3) Relief.” 5. After considering the evidence on record, the Rent Controller found that the petition filed by one of the co-owners was maintainable and other landlord was not necessary party even if the said co-owner was also an NRI. The Rent Controller also found that the status of the respondent as NRI-landlord and that he was owner of the suit property for the last more than 5 years from the date of institution of the petition stood established on record and was, thus, entitled to vacant possession of the demised premises. The relevant paragraph of the impugned order reads thus:- “11. I have given thoughtful consideration to the rival contentions of the learned counsel for the parties and 4 C.R. No.1571 of 2010 have gone through the record of the case, minutely. The definition of NRI is given under Section 2(dd), which is reproduced as under:- “Non-resident Indian” means a person of Indian origin, who is either permanently or temporarily settled outside India in either case:- (a) for or on taking up employment outside India; or (b) for carrying on a business or vocation outside India; or (c) for any other purpose, in such circumstances, as would indicate his intention to stay outside India for a uncertain period.” The definition of building is given under section 2(a), which is also reproduced as under:- “building” means any building or part of a building let for any purpose whether being actually used for that purpose or not, including any land, godowns, out-houses, or furniture let therewith, but does not include a room in a hotel, hostel or boarding-house”. As per section 13-B of the Act, the opening lines of section 13-B of the Act starts with “where an owner is a NRI and returns to India and the residential building or scheduled building or non-residential 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”. From the bare perusal of definition of NRI, it is clear that any individual who is residing abroad on 5 C.R. No.1571 of 2010 permanent or temporary basis for the purpose of taking up employment or carrying on business or any other vocation outside India and being owner of property for about five years, has a right to seek ejectment or tenant for his bona fide necessity and requirement. It is once in a life time right which is given to NRI landlord to get one building vacated in summary manner and what NRI is required to prove is that he is NRI; that he has returned to India permanent or temporary period and his requirement is genuine and he is owner of the property for the last five years before the institution of the ejectment proceedings. Separate procedure stands enacted by the legislature in the shape of section 13-B of the Act to provide immediate possession to the NRI landlords. In the case in hand, the petitioner has duly proved to the satisfaction of this Court that he is Indian by origin and he is NRI and is settled in Australia. As far as the apprehension raised by learned counsel for the respondents is concerned, same are fully protected under sub section 3 in which the possession of property can be restored in case it is sold within the prescribed period or it is not used by the landlord for the purpose for which it was ordered for which it was sought to be ejected and it has been so held in SAT PAL VERSUS OM PARKASH 2007(2) CIVIL COURT CASES 309 (P&H), that possession can be restored to such a tenant if there is violation of provisions of section 13-B of the Act. I agree with the contentions raised by learned counsel for the petitioner-landlord that the bona fide of the landlord can not be prejudged merely on the ground that there are apprehensions in the mind of the tenant and I am also further agree with 6 C.R. No.1571 of 2010 the learned counsel for the petitioner that the petitioner/NRI is not required to have done any spade work for running departmental store in shape of project report, viability report, process for opening up departmental store or running departmental store in the vacant portion before institution of the petition or during the pendency of the petition as the wish and desire of the landlord to open up departmental store in the entire building or in his own share after getting the property vacated is a right which is vested in the landlord, which is not to be seen from the tenant’s point of view. Therefore, the evidence which has come on record establishes the status of the petitioner as NRI landlord, owner of demised premises for the last more than five years from the date of institution of the petition is also proved. The pronouncements which have been relied upon by the counsel for the petitioner are fully applicable to the present facts of the case. Hence, this issue is decided in favour of the petitioner and against the respondent.” 6. Challenging the aforesaid order, learned counsel for the petitioners has submitted before this Court that from the perusal of the petition under Section 13-B of the Act, it is clearly made out that the demised premises were let out to the petitioners by one Sat Parkash son of Jaswant Rai and it is apparent that the respondent had not let out the premises and thus, one of the necessary ingredients of the aforesaid provisions that the person who filed the petition should have let out the premises in question, is missing and thus, the instant revision 7 C.R. No.1571 of 2010 petition was not maintainable as there was no relationship of landlord and tenant between the parties. 7. The argument as raised is without any merit. In the written statement, the petitioners have themselves admitted to be the tenants under the respondent, though the respondent has specifically pleaded that initially the petitioners were inducted as tenants by their vendor Sat Parkash. 8. Faced with this situation, learned counsel for the petitioners has placed reliance upon a judgment of the Hon’ble Supreme Court in Nathi Devi v. Radha Devi Gupta AIR 2005 SC 648 to contend that the benefit of the aforesaid special provisions under Section 13-B of the Act confers a special right on such an NRI who himself had let out the premises which are now required by such an NRI for his own use. Since in the instant case, admittedly, the demised premises was not let out by the respondent himself, the benefit of Section 13-B could not have been extended in the instant case. 9. However, it may be noticed at this stage that a Division Bench of this Court in the case of Smt. Bachan Kaur & others v. Kabal Singh & another 2011(1) RCR (Rent) 368 after discussing the judgment of the Hon’ble Supreme in the case of Nathi Devi v. Radha Devi Gupta (supra) and Surjit Singh Kalra v. Union of India 1991(2) SCC 87 has held that a co-owner NRI can seek eviction of the tenant in the building though the tenant was not inducted by such an NRI and for maintaining of petition 8 C.R. No.1571 of 2010 under Section 13-B of the Act, letting out by the petitioner- landlord was not a sine qua non. The relevant paragraph of the aforesaid judgment reads thus:- “18. 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 9 C.R. No.1571 of 2010 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.” 10. It may further be observed here that the Division Bench of this Court in Smt. Bachan Kaur & others v. Kabal Singh & another (supra) found that in the case of Nathi Devi v. Radha Devi Gupta (supra), the Hon’ble Supreme Court was interpreting the terms of Section 14(6) and 14-D of the Delhi Act, which deals with distinct grounds of eviction whereas Section 13-B of the Act itself contains the provision of acquisition of title. 11. Faced with this situation, learned counsel for the petitioners has further argued that in the instant case, the respondent-landlord who admittedly is holding an Australian passport, cannot be said to be an NRI as defined under Section 2 (dd) of the Act, as the respondent was a foreign National and had come to India on a tourist visa and had failed to provide any authenticated document to prove that he was registered as a person of Indian origin. 10 C.R. No.1571 of 2010 12. In fact, the aforesaid argument has already been answered by the Hon’ble Supreme Court in matter of Baldev Singh Bajwa v. Monish Saini 2005(12) SCC 778 in paras 9 and 23, which reads thus:- “9. East Punjab Urban Rent Restricting (Amendment) Ordinance 2000 (Ordinance No. 10 of 2000) was promulgated and published in the Punjab Government Gazette (Extraordinary), vide Notification No. 33/Leg/2000 dated 27th December 2000. Later on the Ordinance was made Act No. 9 of 2001. The relevant provisions with which we are concerned in the present appeals, on the submissions made by the learned counsel appearing for respective parties are Section 13-B, and 19(2-B) which are re-produced below along with the Statement of Object and Reasons of introductions of new provisions:- "The State Government had been receiving representations from various N.R.I.s individuals and through their associations highlighting the plight of Indian residents returning to India after long years abroad. It was represented that the NRIs having spent long years of their life abroad did not find conditions congenial in their own country on their return either to settle down or to take up any business. On account of rigid legal provisions of existing Rent laws, the NRIs were unable to recover possession of their own residential building from the tenants. Government having considered the situation had decided that the existing Rent Legislation viz. East Punjab Urban Rent Restriction Act 1949 should be amended to provide relief to 11 C.R. No.1571 of 2010 NRIs to enable them to recover possession of a residential or scheduled building and/or one non residential building for their own use. 23. 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 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.” 12 C.R. No.1571 of 2010 13. Faced with this situation, learned counsel for the petitioner has submitted that SLP No.189 of 2011 involving the same question with regard to definition of “NRI” is pending before the Hon’ble Supreme Court. 14. It is not in dispute that following the law laid down by the Hon’ble Supreme Court in the case of Baldev Singh Bajwa v. Monish Saini (supra), this Court had not accepted the argument raised, as above in Civil Revision No.8131 of 2010 Anita Sood & others v. Manjit Singh decided on 3.1.2011 and the judgment of this Court has not been stayed by the Hon’ble Supreme Court. No other point has been raised. 15. In view of the aforesaid discussion, I find no merit in this petition. 16. Dismissed. December 08, 2011 ( RAKESH KUMAR GARG ) ak JUDGE 13