IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No.3805 of 2010 (O&M) Date of Decision: 15.7.2010 S.Suwinder Singh. ....... Petitioner through Shri B.S.Sra, Advocate. Versus Smt.Sarita Taneja and others. .......Respondents through Shri Sudeep Mahajan, Advocate. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 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. This revision petition has been filed under Section 15(5) of the East Punjab Urban Rent Restriction Act,1949 (for short, `the Act') for setting aside orders dated 5.4.2010 (Annexure P6) and (Annexure P7) passed by the Rent Controller, Amritsar whereby the application of the petitioner for grant of leave to defend has been declined and the eviction petition preferred by the respondents under Section 13-B of the Act has been accepted. On 1.1.1988, the petitioner took on rent the demised premises which belongs to a number of owners out of whom one, namely, Smt.Sarita Taneja, is Non-Resident Indian (`N.R.I.'). In the eviction petition, it was C.R.No.3805 of 2010 (O&M) -2- .... pleaded that Smt.Sarita Taneja wants to set up her own business in the demised premises as she and her husband have decided to return to India. The petitioner put in appearance before the Rent Controller and filed an application for leave to defend, but the same was declined and his eviction was ordered from the demised premises resulting in the filing of the instant petition. Learned counsel for the petitioner contended that the eviction petition was defective as the landlords could not have invoked the provisions of Section 13-B of the Act. He submitted that Smt. Sarita Taneja was merely a share-holder in the demised premises and the need expressed by her for running the business of selling Televisions manufactured under the name and style of Palvision Corporation Pvt. Ltd. could not have been construed to be the personal need of N.R.I. because it was a company for which the demised premises was allegedly required and that company was not a party to the eviction petition. He next submitted that the respondent nos. 1 to 3, who had filed the eviction petition, were not specified landlords as the demised premises were let out by respondent no.4-Smt.Sushma Taneja, their sister and, therefore, the proceedings were not maintainable. Learned counsel for the petitioner contended that the demised premises were a part of the building consisting of five shops in front, two shops on the ground floor and two shops on the first floor and, therefore, the need of the landlords was not genuine. He further contended that Smt.Sarita Taneja is permanently settled in Singapore and has no plans to return to India and, therefore, the eviction petition was not bona fide. He submitted that after the C.R.No.3805 of 2010 (O&M) -3- .... death of the original owner, i.e., Smt.Saraswati Taneja wife of Shri Jagan Nath Taneja, the ownership of respondent nos. 1 to 3 qua the demised premises was doubtful as they have propounded a Will by her in their favour which is not reflected in the municipal record and, therefore, the ingredients of Section 13-B of the Act did not stand satisfied and this itself was a triable issue. Lastly, it was contended that the demised premises was commercial in nature and was being used for the purpose and, therefore, the Rent Controller has committed grave illegality in declining permission to defend the eviction petition. To support his contentions/submissions, he placed reliance on Liaq Ahmed and others Versus Habeeb-Ur Rehman, 2000(1) R.C.R. (Rent) 484 (S.C.); Inderjeet Kaur Versus Nirpal Singh, 2001 (1) R.C.R. (Rent) 33 (S.C.); Gurdial Singh Mann & ors. Versus Kulwant Kaur and Ors., 1989(2) R.R.R. 142 (P&H); Balkishan Dass Khanna Versus Dr.Mrs.Adarsh Yakhmi, 1994(1) C.L.J (C. Cr. & Rev.) 790 (P&H); Gurbachan Singh Awle Versus Rajinder Singh, 2000(2) R.C.R. (Rent) 291 (Delhi); Lajpat Lok Seva Samti Hoshiarpur Versus Ms.Vijay Sood, 2002(2) R.C.R. 300 (P&H); Kundan Singh Versus Lal Singh, 2005(1) R.C.R. (Rent) 194 (P&H); M.R.F.Limited and another Versus S.Major Singh Purewal, 2009(1) R.C.R. (Rent) 624; S.Tarlochan Singh Versus Smt.Harbhajan Kaur, 2009(3) R.C.R. (Civil) 660 (P&H) and prayed that in the light of the law laid down therein, the impugned orders be set aside. To the contrary, learned counsel for the respondents contended that the Rent Controller has very judiciously appreciated the facts and has passed the impugned orders in a perfect and legal manner and they do not C.R.No.3805 of 2010 (O&M) -4- .... call for any interference. He made reference to the judgments reported as Baldev Singh Bajwa Versus Monish Saini, 2005(2) R.C.R. 470 (S.C.); Sohan Lal Versus Swaran Kaur, 2003(2) R.C.R. (Rent) 407 (P&H); Dharampal Sood Versus Sarwan Singh and others, 2006(1) R.C.R. (Rent) 515 (P&H); Karnail Singh Versus Surinder Singh @ Chhinda, 2006(2) Civil Court Cases 68 (P&H) and urged that the revision petition may be dismissed. I have considered the rival contentions and have gone through the impugned orders as well as the judgments relied upon by the learned counsel for the parties. To avail the benefit of Section 13-B of the Act which is a special right available to an N.R.I., he or she has to satisfy certain conditions which are apparent from the combined reading of the said section and Section 19(2-B) of the Act. These conditions are as follows:- “(1) NRI landlord 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) NRI landlord has choice to select one amongst several other residential buildings and/ or non-residential buildings. (5) If the NRI landlord of building gets possession under C.R.No.3805 of 2010 (O&M) -5- .... Section 13-B(2), he shall neither transfer if either by sale or by any other mode or he shall let it out for the period of five years – In case of breach, tenant is entitled to seek restoration of possession. (6)After getting possession NRI landlord should occupy the premises continuously for a period of 3 months. (7) NRI landlord 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. (8) In contravention of these restrictions, landlord is liable for a penal action and can be imposed punishment of imprisonment for a term which may extend to six months or with fine which may extend to rupees one thousand or with both.” The tenant, on the other hand, equally has some defences available to him in which he can lay a challenge to the petition while seeking leave to defend to the Court. They are apparent from the reading of Sections 13-B and 18A(4) of the Act and the same are as follows:- “(1) Landlord is not NRI landlord. (2)Landlord is not owner of premises. (3) Landlord is not owner for last 5 years before institution of the proceedings. (4) Landlord's requirement is not bona fide and is a pretext to get accommodation vacated.” C.R.No.3805 of 2010 (O&M) -6- .... For the reference purposes, Section 13-B of the Act is also reproduced below:- “13-B. Right to recover immediate possession of residential building or scheduled building and/ or residential building to accrue to 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 only 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 non-residential building, each chosen by him or her. (3) Where an owner recovers possession of a building under C.R.No.3805 of 2010 (O&M) -7- .... this section, he or she shall not transfer it through sale or any other means or let it 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.” In my opinion, the material on record which was sought to be relied upon by the petitioner in order to seek permission of the Rent Controller to defend the eviction petition was insufficient to off-set the requirements of the invocation of the proceedings under Section 13-B of the Act. The plea that only one of the co-owners was an N.R.I. is meaningless. As long as the property is not partitioned, each co-owner continues to hold the property and enjoy the same and it is also by now a settled proposition of law that one of the co-owners can invoke the proceedings for eviction of the tenant. For this view, I am fortified by the observations made by this Court in Dharampal Sood's case (supra) and Karnail Singh's case (supra). The contention of the learned counsel for the petitioner that the demised premises was not required for the personal need of an N.R.I. But for a company, if seen in right perspective, is not tenable. There is material on record to show that Smt.Savita Taneja is holder of substantial share in the company along with her husband and the memorandum of article of association reveals that it was essentially a company managed by the family C.R.No.3805 of 2010 (O&M) -8- .... members and, therefore, it can safely be said that the demised premises were sought to be used for the requirement of the family and essentially not for the company as an entity. The other ingredients have also been adequately satisfied that respondent no.1-Smt.Sarita Taneja is a N.R.I. when she placed on record copies of her identity card, driving licence and passport. It has also been shown that respondent no.1-Smt.Sarita Taneja was owner of the demised premises for the last five years. In so far as the fact that the Will of Smt. Sarswati Taneja has not been acted upon, is concerned, the same cannot be given importance as none of the successors of Smt.Sarswati Taneja, who had bequeathed the property to her children, had controverted the Will and merely because it has not been entered into municipal records could not have made any difference to the ownership rights of the respondents. In Baldev Singh Bajwa Versus Monish Saini, (supra) the Apex Court observed as follows:- “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 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 C.R.No.3805 of 2010 (O&M) -9- .... 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 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 C.R.No.3805 of 2010 (O&M) -10- .... 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. 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 C.R.No.3805 of 2010 (O&M) -11- .... 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 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. C.R.No.3805 of 2010 (O&M) -12- .... 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).” Having regard to the aforesaid and the observations of the Supreme Court extracted above, I am of the considered view that the instant revision petition has no merit and the same is, accordingly, dismissed. July 15,2010 ( Mahesh Grover ) “SCM” Judge