CR No.3577 of 2010 (O&M) - 1 – IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ***** CR No.3577 of 2010 (O&M) Date of Decision: 04.07.2011 Ashok Goel . . .Petitioner Versus Wing Commander Harbhajan Singh Bhatia . . . Respondent ***** CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN ***** Present: Mr.Divanshu Jain, Advocate, for the petitioner. Mr.Vikas Bahl, Advocate, for the respondent. ***** RAKESH KUMAR JAIN, J. The tenant has come up in revision against the order of the Rent Controller, Chandigarh dated 03.04.2010 by which his application filed under Section 18-A (5) of the East Punjab Urban Rent Restriction Act, 1949 (for short ‘the Act’) seeking leave to defend the petition filed by the landlord under Section 13-B of the Act in respect of the annexe portion above garage of House No.1592, Sector 33D, Chandigarh has been declined. In short, the landlord filed petition under Section 13-B of the Act in respect of the demised premises which was allegedly let out in October 2005 @ `5000/- per month with 10% increase every year. It is alleged by the landlord that he is holding Indian passport and permanent resident card issued by the United States of America. He had taken immigration visa on 18.10.2005 for residing with his daughter Ms.Gagandeep Bhatia who was working at that time in USA. They had gone to USA for an uncertain period but due to recession in USA his daughter Ms.Gagandeep Bhatia is out of job and is to come back to India. She is 37 years of age and unmarried. They require independent and separate accommodation for her, who is dependent upon him. In order to contest the eviction petition, the tenant applied for leave to defend under Section 18-A (5) of the Act in which he CR No.3577 of 2010 (O&M) - 2 – alleged that the landlord does not fall within the definition of ‘Non Resident Indian’ and possess sufficient accommodation. The application was contested by the landlord by filing reply. The learned Rent Controller, however, vide his order dated 3.4.2010 dismissed the application for leave to defend and ordered eviction of the tenant which lead to the filing of the present revision petition. Learned counsel for the tenant argued that the landlord has got one kanal house in which there are three rooms, therefore, the demised premises is required only as an additional accommodation by him. In this regard, he has relied upon a decision of this Court in the case of “Mrs. Kushal Takhar Vs. Gurinder Singh” 2009 (1) RCR (Civil) 629. He has further argued that the landlord does not fall within the definition of NRI as he had gone to America only for a short duration whereas the word used under Section 13-B is “Settled”. He has also relied upon a decision of the Supreme Court in the case of “Inderjeet Kaur Vs. Nirpal Singh” 2001 (1) RCR (Rent) 33. In reply, learned counsel for the landlord has submitted that the judgment in the case of Mrs. Kushal Takhar (Supra) is altogether on different footings as it pertains to a case under Section 13-A of the Act in which the landlord has to file an affidavit with regard to the suitability of the accommodation in his possession which is conspicuously absent in a petition to be filed under Section 13-B of the Act. In this regard he also relied upon a decision of this Court in the case of “Prem Kumar Patel Vs. Inderjit Singh Grewal” 2002 (2) RCR (Rent) 203. In respect of second submission of learned counsel for the tenant, learned counsel for the landlord has relied upon a decision of this Court in the case of “Satnam Singh Vs. Avtar Singh” 2009 (3) RCR (Civil) 759. I have heard both the learned counsel for the parties and perused the record. The basic facts of the case are not much in dispute as the relationship of landlord and tenant is admitted. The counsel for the tenant has only raised two issues before this Court namely, the need of the landlord is not genuine as he is asking for additional accommodation and that he does not fall within the definition of NRI as he had not settled in foreign country for a long period. Before adverting to his arguments, it would be relevant to refer to provisions of Sections 13-A and 13-B of the Act which are reproduced as under: - “Section 13-A Right to recover immediate possession of residential or schedule building to CR No.3577 of 2010 (O&M) - 3 – accrue to certain persons - where a specified landlord at any time within one year prior to or within one year after the date of his retirement or after his retirement but within one year of the date of commencement of the East Punjab Urban Rent Restriction (Amendment) Act, 1985, whichever is later, applies to the Controller along with a certificate from the authority competent to remove him from service indicting the date of his retirement and his affidavit to the effect that he does not own and possess any other suitable accommodation in the local area in which he intends to reside to recover possession of his residential building or scheduled building, as the case may be, for his own occupation there shall accrue on and from the date of such application to such specified landlord, notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force or in any contract (whether expressed or implied), custom or usage to the contrary, right to recover immediately the possession of such residential building or scheduled building or any part or parts of such building if it is let out in part of parts: Provided that in case of death of the specified landlord, the widow or widower of such specified landlord and in the case of death of such widow or widower, a child or a grand-child or a widowed daughter-in-law who was dependent upon such specified landlord at the time of his death shall be entitled to make an application under this Section to the Controller : CR No.3577 of 2010 (O&M) - 4 – (a) in the case of death of such specified landlord, before the commencement of the East Punjab Urban Rent Restriction (Amendment) Act, 1985, within one year of such commencement; (b) in the case of death of such specified landlord, after such commencement, but before the date of his retirement, within one year of the date of his death; (c) in the case of death of such specified landlord, after such commencement and the date of his retirement, with one year of the date of such retirement. and on the date of such application the right to recover the possession of the residential building or scheduled building, as the case may be, which belonged to such specified landlord at the time of his death shall accrue to the applicant. Provided further that nothing in this section shall be so construed as conferring a right, on any person to recover possession of more than one residential or scheduled building inclusive of any part or parts thereof if it is let out in parts or parts: Provided further that the Controller may give the tenant a reasonable period for putting the specified landlord or, as the case may be, the widow, widower, child, grand-child or widowed daughter-in-law in possession of the residential building or scheduled building, as the case may be, and may extend such time so as not to exceed three months in the aggregate. Explanation: - For the purposes of this second, the expression “retirement” means termination of service of specified landlord otherwise than by resignation” Section 13-B Right to recover immediate possession of residential or scheduled building and /or non-residential building to accrue to CR No.3577 of 2010 (O&M) - 5 – Non-resident Indian - (1) Where an owner is a Non Resident Indian and returns to India and the residential building or Scheduled building and / 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: Provided that a right to apply in respect of such a building under this Section, shall be available after a period of five years from the date of becoming the owner of such a building and shall be available only once during the life time of such an owner. (2) Where the owner referred to in sub-Section (1) has let out more than one residential building or scheduled building and / or non-residential building, it shall be open to him or her to make an application under that Sub – Section in respect of only one residential building or one scheduled building and/or one non –residential building, each chosen by him or her. (3) Where an owner recovers possession of a building under this Section, he or she shall not transfer it through sale or any other means or let out before the expiry of a period of five years from the date of taking possession of the said building, failing which, the evicted tenant may apply to the Controller for an order directing that he shall be restored the possession of the said building and the Controller shall make an order accordingly.” Insofar as the question of additional accommodation is concerned, the law relied upon by learned counsel for the petitioner in the case of Mrs. Kushal CR No.3577 of 2010 (O&M) - 6 – Takhar (Supra), deals with a petition under Section 13-A of the Act filed by the specified landlord to which the tenant filed an application for leave to defend. This Court had held that the object of enactment of Section 13-A of the Act is to provide immediate abode to the retiree employee. Vacation of Government accommodation should not make retiree landlord vagabond. But in case sufficient accommodation is available with the landlord then he cannot be provided with summary mechanism of eviction but insofar as Section 13-B of the Act is concerned, the Supreme Court in the case of “Baldev Singh Bajwa Vs. Monish Saini” JT 2005 (12) SC 442 has held that 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 namely, that he is a NRI; he has returned to India permanently or for the temporary period; requirement of the accommodation by him or his dependent is genuine and he is the owner of the property for the last five years before the institution of the proceedings. The question of additional accommodation cannot be raised in the case filed under Section 13-B of the Act as held by this Court in the case of Prem Kumar Patel (Supra) in which while dealing with the decision of the Supreme Court in the case of Inderjeet Kaur (Supra), it was held as under: “A plain reading of the aforesaid provision shows that the landlord has to prove his intention ‘to reside’ in the property in question. He also has to show that he does not “own and possess any other suitable accommodation” in that area where he intends to reside. This makes the suitability and sufficiency of the accommodation already in possession of the landlord a relevant consideration for recovering the possession of tenanted premises under Section 13-A of the Act. That being so, the points of suitability and sufficiency are justifiable and in case, a tenant raises them in an application for leave to defend, the leave has to be granted. Similar is the requirement of Section 14(1)(e) of the Delhi Rent Control Act, 1956 which was under consideration before the Supreme Court in Inderjeet Kaur’s CR No.3577 of 2010 (O&M) - 7 – case (Supra). As against this, Section 13-B merely requires a claim that the property is required by the landlord for his own use or for the use of his dependents. The requirement of building can be for any purpose and not necessarily for his permanent residence. Unlike Section 13-A, the ownership or possession of other suitable accommodation in the same area is no bar on a Non-resident Indian to get one building of his choice vacated under Section 13- B. It is also significant to note that Section 13-B provides for recovery of possession of one entire building. Once it is claimed by the Non-resident Indian that he requires it for his own use, the objection that a portion of the building is sufficient for his requirement is of no consequence. He would still be entitled to the possession of one whole building.” Thus, in my view, there is no substance in the argument of learned counsel for the tenant in this regard. The second submission of the permanent settlement has been answered by this Court in the case of Satnam Singh (Supra) in which the landlord had obtained permanent resident status and this Court had held that he had intention to live outside India and for that matter the length of stay is not the criteria. In the present case also the landlord had obtained permanent resident card of America as they had the intention to live with their daughter, who was unmarried but due to recession she had lost her job and now wanted to settle in India and for that reason the landlord requires the demised premises. Thus, in view of the above discussion, I do not find any merit in the present revision petition and hence, the same is hereby dismissed. No costs. (RAKESH KUMAR JAIN) JULY 04, 2011 JUDGE Vivek