CR No. 4415 of 2004 1 In the High Court of Punjab and Haryana, Chandigarh. CR No. 4415 of 2004 (O&M) Date of Decision: 07.09.2010 Dr. Ved Pal Kaushal ....Petitioner Versus Harcharan Singh and another ....Respondents. CR No.2540 of 2007 Janak Raj Pathak ....Petitioner Versus Harcharan Singh and another ....Respondents. Coram:- Hon'ble Mr. Justice Alok Singh 1.Whether reporters of local news papers may be allowed to see judgement ? 2. To be referred to reporters or not ? 3. Whether the judgement should be reported in the Digest ? Present: Mr. M.L. Sarin, Sr. Advocate with Ms. Himani Sarin, Advocate for the petitioner. Mr. Chetan Mittal, Sr. Advocate with Ms. Divya Sharma, Advocate for the respondents. ... Alok Singh, J. Present revision is filed under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act) challenging the order dated 3.9.2004 passed by the Rent Controller, Jalandhar, thereby allowing the eviction petition filed by the landlord under CR No. 4415 of 2004 2 Section 13-B of the Act, directing eviction of the respondent-tenant from the demise premises. Brief facts of the present case are that landlord filed eviction petition under Section 13-B of the Act for ejectment of the tenant -revisionist from the tenanted premises fully described in the heading of the petition, inter-alia, on the ground that the house in question was purchased by the landlord vide sale deed dated 19.6.1980. The tenant - revisionist was inducted at monthly rent of Rs.1500/- per month vide agreement dated 26.7.1982. The rent stood enhanced to Rs.1700/- with effect from 26.7.1986. The land lord was in service in Kuwait and stood retired from job on 30.6.1999 and after his retirement he decided to shift to India with bag and baggage and to live in his own country in his own ways. Earlier the landlord had filed petition under Section 13 of the Act for ejectment of the tenant on the ground of his bonafide personal necessity, however, during the pendency of the said petition, Section 13-B was introduced in the Act, hence, present petition is filed under Section 13-B of the Act. It is further alleged by the landlord that he has every intention to permanently settle in India, hence he requires the demise premises for his personal use and occupation. Tenant - revisionist herein moved an application seeking leave to contest the petition and permission was granted vide order dated 28.9.2001. Thereafter, tenant - revisionist filed a reply to the petition. The tenant has admitted the existence of relationship of landlord - tenant between the parties. The tenant further admitted that the landlord was in employment in Kuwait and has retired from service with effect from 30.6.1999. However, tenant has pleaded that the landlord has no intention to settle in India after retirement rather the landlord along with his family had CR No. 4415 of 2004 3 gone to Canada. It is further contended by the tenant that the land lord has visited India 2/3 times for a short period. It is further pleaded by the tenant that the landlord has got independent set consisting of two rooms, one kitchen and one bathroom, but he has not occupied the said premises, and hence, the landlord has no need of the demise premises. Moreover, the status of the landlord as an NRI is challenged. The Rent Controller allowed the eviction petition by the impugned judgement dated 3.9.2004. Mr. M.L. Sarin, Senior Advocate, assisted by Ms. Himani Sarin, advocate vehemently argued that the landlord in paragraphs 3 and 6 of the eviction petition has stated that he stood retired from service in Kuwait on 30.6.1999 and after his retirement he has come back to India with bag and baggage for taking up permanent residence in India. He further argued that since landlord has returned to India with bag and baggage in 1999 prior to enactment of Section 13-B in the year 2001, hence the landlord cannot be said to be an NRI as defined under Section 2(dd) of the Act. He further argued that to attract definition of NRI as defined under Section 2(dd) of the Act, a person should be either permanently or temporarily settled outside India on the date Section 13-B of the Act was enacted i.e. on 31.5.2001. It is further contended that landlord has earlier filed one petition under Section 13 of the Act and during the pendency of earlier eviction petition, landlord has filed present petition under Section 13-B of the Act with malafide intention. Mr. Sarin further argued that the landlord is absolutely in no need of the demise premises and he has no intention to reside in India and to occupy the demise premises and he has every intention to transfer the demise property. CR No. 4415 of 2004 4 Mr. Chetan Mittal, Senior Advocate assisted by Mr. Vishal Garg, Advocate argued that the tenant himself in paragraph 3 of the written statement,, filed to the eviction petition admitted that after retirement landlord along with his family went to Canada and hardly visited India once or twice and his visit was very brief. It was further contended by the tenant in paragraph 3 of the written statement that it is wrong that the landlord has shifted to India with bag and baggage. He further states that since revisionist himself admitted in paragraph 3 of the written statement that after retirement in the year 1999 landlord although, visited India but along with his family went to Canada and passport entries show that he kept on visiting India after the year 2001, hence, he is an NRI. He further argued that even if a petition is pending under Section 13 of the Act filed by the landlord, after the enactment of Section 13-B of the Act, landlord can file fresh petition under Section 13-B of the Act if he is an NRI, meaning thereby, it is not at all required that in 2001 landlord should be settled outside India. He further stated that even if landlord stood retired prior to 2001, however, he continued to stay with his daughter in Canada and hence, he is an NRI. Mr. Mittal states that every presumption is in favour of the land lord about the bonafide need and apprehension of Mr. Sarin is baseless in view of Section 13-B(3) read with Section 19(2-B) of the Act. The Apex Court in the matter of Baldev Singh Bajwa Vs. Monish Saini reported in 2005(12) SCC 778, in paragraphs 9 and 23 has held as under: - “9. East Punjab Urban Rent Restricting (Amendment) Ordinance 2000 (Ordinance No. 10 of 2000) was promulgated and published in the Punjab Government Gazette CR No. 4415 of 2004 5 (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 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 CR No. 4415 of 2004 6 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. xx xx xx xx Return to India could not be read as return to India permanently with an intention to settle in India permanently. If we read the phrase ``return to India'' along with the definition CR No. 4415 of 2004 7 of the ``NRI'' under Section 2(dd) of the Act, it is clear that the special category of landlords NRI could also be a person who has settled permanently outside India. Thus permanent resident outside India being NRI can claim ejectment.” Undisputedly, landlord was in service in Kuwait and he stood retired from service on 30.6.1999 and thereafter, he visited India 2/3 times and then again went to Canada and was staying there with his family as admitted by the tenant in the written statement, hence, in the opinion of this court, the landlord is an NRI. Not only this, from the dictum of the Apex Court in Baldev Singh Bajwa’s case (supra), it is clear that Section 13-B was enacted keeping in mind the plight of Indian residents intending to return to India after long years abroad did not find conditions congenial in their own country on their return either to settle down or to take up any business. If the object to enact Section 13-B is kept in mind while reading the definition of NRI under Section 2(dd) of the Act, the only interpretation possible is that if an NRI returns to India on or before the enactment of Section 13-B, he is entitled to seek eviction under Section 13-B of the Act. It is not at all necessity that an NRI should return to India only after the enactment of Section 13-B. In Baldev Singh Bajwa’s case (supra), the Apex Court in paragraph 19 has held as under: - “19. 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 CR No. 4415 of 2004 8 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. Sub-s. (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 CR No. 4415 of 2004 9 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 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. It is, of-course, subject to tenant's right to rebut it but with strong and cogent evidence. In our view, the proceeding taken up under Section 13-B by the NRI landlords for the ejectment of the tenant, the Court shall presume that landlord's need pleaded in the petition is genuine and bona fide. But this would not dis- entitle the tenant from proving that in fact and in law the requirement of the landlord is not genuine. A heavy burden would lie on the tenant to prove that the requirement of the landlord is not genuine. To prove this fact the tenant will be called upon to give all the necessary CR No. 4415 of 2004 10 facts and particulars supported by documentary evidence, if available, to support his plea in the affidavit itself so that the Controller will be in a position to adjudicate and decide the question of genuine or bona fide requirement of the landlord. A mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlords' favour that his requirement of occupation of the premises is real and genuine.” It is now well-settled that the Court shall presume that the landlord’s need as pleaded in the petition, is genuine and bona fide. However, the tenant would be entitled to prove that in fact, in law, the requirement of the landlord is not genuine. A heavy burden would lie on the tenant to prove that the requirement of the landlord is not genuine. In the present case, from the material available on the record, I find that the tenant could not prove that need of the landlord is not genuine. It is also now well- settled that no NRI in view of Sections 13-B(3) and 19(2-B) of the Act shall approach the Court for ejectment of the tenant considering the onerous conditions imposed on him by which he is practically deprived of his right of property not only as the lessor but also as the owner of the property. Court has to presume that whenever the NRI landlord would approach the Court, he would approach when his need is genuine and bonafide. Now, next question is as to whether landlord can file a petition under Section 13-B of the Act during the pendency of earlier petition under Section 13 of the Act ? Learned Single Judge in the case of Sat Pal Vs. Om Parkash, reported in 2007(1) RCR(Rent) page 278 in paragraph 17 has CR No. 4415 of 2004 11 held as under:- “The respondent cannot be stopped from availing the remedy made available by the newly added provision merely because of the decision of earlier ejectment petitions or because of the pendency of ejectment petitions filed earlier under the ordinary law of ejectment. The petitioner can defeat the respondent only by proving that the case does not fall within the parameters of Section 13-B of the Rent Act.” This Court is of the opinion that rights granted to the N.R.I. landlord under Section 13-B of the Act are special rights to get vacant possession at the earliest. These special rights are independent to any other right given under Section 13 of the Act. Hence, rights given under Section 13-B of the Act cannot be curtailed merely because, landlord has filed previous petition under Section 13 of the Act. N.R.I. landlord can exercise his right under Section 13-B of the Act even during the pendency of earlier petition under Section 13 of the Act. Petition is devoid of merit and hence is dismissed. A photocopy of the order be placed on the file of the connected case. ( Alok Singh ) Judge 07.09.2010 sk.