Civil Revision No. 6748 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 6748 of 2011(O&M) Date of Decision: 04.11.2011 *** Sanjay Kaushal .. Petitioner VS. Jagbir Singh Dhindsa. .. Respondent CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. Naveen Malik, Advocate for the petitioner. *** ARVIND KUMAR, J. The petitioner-tenant is aggrieved with order dated 15.9.2011 by virtue of which his application filed under Section 18-A of East Punjab Urban Rent Restriction Act, 1949(hereinafter referred to as Act of 1949), as extended to UT Chandigarh, for grant of leave to contest the eviction petition filed by the respondent, has been dismissed and he has been ordered to be evicted from the suit premises. The facts of the case, in brief, are that the respondent filed an ejectment petition, being non-resident Indian, seeking eviction of the petitioner-tenant from the first floor of House No.87, situated in Sector 27, Chandigarh on the ground of his personal necessity with the averments that he wants to return to India and settle over there after his retirement. Upon notice, the petitioner filed the impugned application with the contentions that the requirement of the respondent is not bonafide, but is smeared with element of greed to enhance the rent. As noticed above, the application was declined and the petitioner has been directed to handover the vacant possession of the premises to the respondent within two months. Dis-satisfied with the same, instant civil revision has been preferred. Civil Revision No. 6748 of 2011 2 I have heard learned counsel for the petitioner and have gone through the paper book carefully. It is apparent that the legislation in its wisdom has enacted Section 13-B in the Act of 1949 which provides for summary procedure for eviction of the tenant in case of non-resident Indian, however, the conditions prescribed therein are sine qua non, which read as under:- “(1) NRI landlord should be owner of building for 5 years before he applies 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 among several other residential buildings and or non- residential buildings. (5) If the NRI landlord of the building gets possession under section 13-B(3), he shall neither transfer it either by sale or by any other mode nor 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 three 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 Civil Revision No. 6748 of 2011 3 thousand or with both.” At the same time the tenant is also entitled for leave to contest if he satisfies the following conditions: (1) landlord is not NRI landlord; (2) landlord is not owner if premises; (3) landlord is not owner for last five years before institution of proceedings;and (4) landlord's requirement is not bonafide and is a pretext to get the accommodation vacated. In the present case, it emerges out from the perusal of application for leave to contest that the petitioner has not disputed the tenant-landlord relationship between the parties, however, he has pleaded that the alleged need of the respondent is not genuine and the landlord has not taken any steps to get the ground floor of the house in question, vacated first and straightway has preferred to get first floor of the house vacated. It is well settled that once the landlord is claiming premises for his personal use, it must be presumed that the requirement is genuine. In the instant case the petitioner has categorically averred that the landlord is residing at UK and he is having no intention to come back, while the landlord, by filing the eviction petition, has made his intention clear to return to India after getting the same renovated as per his status and taste. With regard to eviction of ground floor of the property is concerned, the landlord has specifically pleaded that the tenant on the ground floor has amicably decided to get the same vacated and hence, settlement in this regard is there. Thus, it does not lie in the mouth of the petitioner to say either that the requirement of the landlord is not genuine or there is any malafide on the part of the landlord in getting the first floor vacated first, without taking steps for the eviction of tenant from the ground floor. Much stress has been laid down by the learned counsel for the petitioner to contend that the respondent is not NRI. Section 2(dd) defines Non Resident Indians, according to which a person of Indian origin who is either permanently or temporarily settled outside India in either case (a) for Civil Revision No. 6748 of 2011 4 or on taking up employment outside India or for (b) carrying on a business or vocation outside India or for (c) any other purpose in such circumstances, so to indicate his intention to stay outside India for an uncertain period. However, it is apparent that no such objection was taken by the petitioner while filing the impugned application for leave to contest and hence, it cannot be permitted to raise at this stage. Not only this, the petitioner in his application has himself admitted that the respondent is residing at UK and he used to pay the rent as and when the respondent-landlord and his wife used to visit India. In this view of the matter, it cannot be said that the respondent does not fall within the definition of Non Resident Indian, as provided under the Act. Faced with the situation, an attempt has been made by learned counsel for the petitioner to contend that notification dated 9.10.2009 by virtue of which amendment was done in the Act of 1949 by incorporating the special provisions for NRI, is under challenge before the Apex Court in SLP No. 27346 of 2011, but he has failed to show that whether there is any stay of implementation of the aforesaid notification by the Hon'ble Supreme Court. There is no illegality or ambiguity in the impugned order. The instant petition, being without any merit, is accordingly dismissed in limine. (ARVIND KUMAR) November 04,2011 JUDGE Jiten