CR No. 5052 of 2005 1 In the High Court of Punjab and Haryana at Chandigarh. CR No. 5052 of 2005 Decided on February 03,2011. Kanwaljit Singh --Petitioner vs. Banarsi Dass --Respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Sumeet Mahajan,Sr.Advocate, with Mr.Vaibhav Sehgal,Advocate,for the petitioner Mr.Naresh Prabhakar,Advocate,for the respondent Rakesh Kumar Jain, J, (Oral) The petitioner is the landlord who has filed this petition under Section 13-B of the East Punjab Rent Restriction Act,1949 (for short,'the Act'), seeking eviction of the respondent/tenant from property No.E-204, Phase IV-A, Focal Point, Dhandari Kalan, Ludhiana. In the said petition, the respondent had filed an application seeking 'leave to defend', which has been allowed by the impugned order dated 06.8.2005 only on the ground that the petitioner is not the owner and is rather a lessee having a lease of 99 years of the demised premises from the Punjab State Small Industries Corporation Limited, Chandigarh (for short,'the Corporation') which was allotted to him vide allotment letter dated 13.5.1982. CR No. 5052 of 2005 2 The case set up is that the petitioner is the owner of the demised premises by virtue of allotment. He had let it out to the respondent in the year 1992 on a monthly rent of Rs.650/- besides house tax and electricity charges. Thereafter, one more shop was let out to the respondent by removing the intervening wall and the rent of the shop was increased from Rs.650/- to Rs.2600/- per month besides house tax and electricity charges. He filed the petition for eviction on the ground that he is Non-Resident Indian and requires the premises in dispute for his personal use and occupation. The learned Rent Controller allowed the application of the respondent to contest the eviction petition on the ground that since he is a lessee of the Corporation, therefore, he himself is a tenant in the premises and is not an owner and as Section 13-B of the Act, provides that an eviction petition can be maintained by a Non-Resident Indian only after a period of five years from the date of becoming owner, hence, it was found that it is a debatable question which shall be decided only after 'leave to contest' is granted. Aggrieved against the order, the present revision petition was preferred in this Court in which notice of motion was issued. In response, Mr.Sukant Prabhakar,Advocate, appeared for the respondent. During the pendency of the revision petition, unfortunately, Sh.Sukant Prabhakar,Advocate had expired. Thereafter, Mr.Naresh Prabhakar, Advocate, father of Mr.Sukant Prabhakar, Advocate, appeared on his behalf and requested the Court that he may be allowed CR No. 5052 of 2005 3 to inform the respondent about the non-availability of his counsel due to his sudden demise. This Court had granted permission and as such, Mr.Naresh Prabhakar,Advocate, had written a letter to the respondent about the pendency of this case and absence of the earlier counsel. Again time was granted to him for sending another letter through registered post. On 20.1.2011, Sh.Naresh Prabhakar,Advocate, had written a letter by registered post and has placed a copy thereof on record along-with the postal receipt. He submits that he had also sent a telegram to the respondent, but no one had contacted him despite all these efforts having been made. In the meantime, unfortunately, fire had broken in the High Court on 30.1.2011 in which some record of the civil revisions has been burnt and the record of the present case is one of them. This Court then requested the learned counsel for the petitioner to supply a photostat copy of the record which is handed over to the Court on the basis of which the present case has been heard and is being decided. The core issue of this case is as to“whether a licensee of a property for a period of 99 years having a right to possession and transfer falls within the definition of owner for the purpose of a petition filed under Section 13-B of the Act ?” In order to answer the question which has been posed by the learned counsel for the petitioner, he has relied upon a decision of the Supreme Court in the case of Swadesh Ranjan Sinha Vs Haradeb Banerjee (1991) 4 Supreme Court Cases 572. On the other hand, learned counsel for the respondent has submitted that the ownership is not the only question involved in this CR No. 5052 of 2005 4 case as it is observed by the Rent Controller that there are some hyper- technical defects taken by the respondent/tenant which have not been decided by the Rent Controller. He, however, while defending the order passed by the Rent Controller in his favour, has not cited any judgment. I have heard the learned counsel for the parties and have perused the available record with their assistance. The question involved in this case is the same which has been posed before the Supreme Court in the case of Swadesh Ranjan Sinha (Supra) as is evident from the opening line of paragraph 3 of the judgment which reads as under:- The only question which arises in the present appeal is:- “whether or not the plaintiff is the owner of the suit premises for the purpose of instituting a suit for eviction in terms of the Act ?” The facts of the case of Swadesh Ranjan Sinha (Supra) are that the landlord was allotted a flat by the Kadamtola Housing Co- operative Society, Calcutta (for short, the “Society”), which was one of the 16 flats held by the Society under a 99 years lease granted by the Calcutta Metropolitan Development Authority under a registered document. The Society in turn allotted these flats to its members among whom the appellant is the one, a sub lessee under the Society with a heritable and transferable title. He subsequently inducted the respondent in his flat as tenant on a rent of Rs.110/- per month. Thereafter, he issued a notice of termination of tenancy to the CR No. 5052 of 2005 5 respondent Haradev Banerjee to vacate the premises as it was required by him for his own personal use and occupation. His petition was allowed by the trial Court but the first Appellate Court reversed the order of the trial Court on the ground that Swadesh Ranjan Sinha was a lessee for a period of 99 years and was not the owner. The said order was confirmed by the High Court and as such appeal was taken to the Supreme Court where the aforesaid question was raised. The Supreme Court while deciding the aforesaid lis between the parties had referred to Section 13 of the West Bengal Premises Tenancy Act, 1956, in which Section13 (1) (ff) reads as under:- “Subject to the provisions of sub-section (3-A) where the premises are reasonably required by the landlord for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held and the landlord or such person is not in possession of any reasonably suitable accommodation”. The sine-qua-non in Section 13 (1) (ff) of the Act is obviously the status of the landlord of ownership and not merely of the landlord. Thus, the question before the Supreme Court was whether a person who is lessee for 99 years having a heritable and transferable right is the owner against a person who is not the owner. In this regard, following findings have been recorded by the Supreme Court in para Nos.7,8,9 and 10:- 7.It is submitted on behalf of the respondent that the appellant, although a 'landlord' within the meaning of Section 2, is not an owner so as to be able to seek eviction on the ground specified under clause (ff) of sub-section (1) of Section 13. The contention is that the appellant is only a lessee, and that too in terms of a sub-lease of 99 years CR No. 5052 of 2005 6 granted by a Society which is itself holding a lease for the same period. Such a lessee is not an owner, for his rights are not absolute. He cannot claim to be an owner for the purpose of seeking eviction by recourse to the provisions of an Act which is intended to protect the tenant and prevent eviction except on specified grounds. The expression owner should be so strictly construed as to exclude any person having less than full ownership right. 8. “Ownership denotes the relation between a person and an object forming the subject matter of his ownership. It consists in a complex of rights, all of which are right in rem, being good against all the world and not merely against specific person.” (Salmond on Jurisprudence,12 th edn; Ch.8,p 246 et seq). There are various rights or incidents of ownership all of which need not necessary be present in every case. They may include a right to possess, use and enjoy the thing owned; and a right to consume, destroy or alienate it. Such a right may be indeterminate in duration and residuary in character. A person has a right to possess the thing which he owns, even when he is not in possession, but only retains a reversionary interest, i.e. A right to repossess the thing on the termination of a certain period or on the happening of a certain event. 9. All that a plaintiff needs to prove is that he has a better title than the defendant. He has no burden to show that he has the best of all possible titles. His ownership is good against all the world except the true owner. The rights of an owner are seldom absolute, and often are in many respects controlled and regulated by statute. The question, however, is whether he has a superior right or interest vis-a-vis the person challenging it. 10. The plaintiff is an allottee in terms of the West Bengal Cooperative Society Act,1983 : (see Sections 87 and 89). He has a right t possess the premises for a period of 99 years as a heritable and transferable property. During that period he has a right to let out the premises and enjoy the rental income therefrom, subject to the statutory terms and conditions of allotment. The certificate of allotment is the conclusive evidence of his title or interest. It is true that he has to obtain the written consent of the Society before letting out the CR No. 5052 of 2005 7 premises. But once let out in accordance with terms of allotment specified in the statute, he is entitled to enjoy the income from the property. Although he is a lessee in relation to the Society, and his rights and interests are subject to the terms and conditions of allotment, he is the owner of the property having a superior right in relation to the defendant. As far as the defendant is concerned, the plaintiff is his landlord and the owner of the premises for all purposes dealt with under the provisions of the Act”. After going through the aforesaid observations and keeping in view the facts and circumstances of the case, I am of the view that the question posed by the learned counsel for the petitioner is to be answered in his favour. As such, the present revision is allowed and the impugned order in which the Rent Controller has held that the petitioner is merely a lease holder and is not the owner despite the fact that the lease is for a period of 99 years giving the petitioner right of transfer and inheritance as per clause of the lease, is set aside. Insofar as the arguments raised by the learned counsel for the respondent that there were other issues involved, the Rent Controller has specifically observed in the impugned order that some hyper technical grounds were taken by the applicant/tenant to earn leave to contest but the only ground which favours him is the ground of ownership of the premises. Reading of these observations leads to the conclusion that the hyper technical grounds were considered by the Court and rejected. Since leave to defend is being declined by this Court, the matter is remanded back to the Rent Controller, Ludhiana, to pass order CR No. 5052 of 2005 8 of eviction in accordance with law. The parties are directed to appear on 28.2.2011. February 03,2011 (Rakesh Kumar Jain) RR Judge