IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH [1] Civil Revision No.1385 of 2004 (O&M) Date of Decision : 07.09.2009 Lakhwinder Kumar .....Petitioner versus Pavitter Kaur (dead) through LRs .....Respondents Present: Mr.Ashwani Talwar, Advocate, for the petitioner. Mr.Arun Jain, Senior Advocate, with Mr.Amit Jain, Advocate, for the respondents. [2] Civil Revision No.3176 of 2006 (O&M) Rachhpal Singh .....Petitioner versus Hardish Singh Bhola .....Respondent Present: Mr.Sarju Puri, Advocate, for the petitioner. Mr.Sandeep Jain, Advocate, for the respondent. [3] Civil Revision No.3470 of 2006 O&M) Darshan Singh .....Petitioner versus Hardish Singh Bhola .....Respondent Present: Mr.Sarju Puri, Advocate, for the petitioner. Mr.Sandeep Jain, Advocate, for the respondent. [4] Civil Revision No.3180 of 2006 (O&M) Surjit Singh .....Petitioner versus Hardish Singh Bhola .....Respondent Present: Mr.Sarju Puri, Advocate, for the petitioner. Mr.Sandeep Jain, Advocate, for the respondent. C.R. No.1385 of 2004 (O&M) & connected CRs 2 [5] Civil Revision No.5929 of 2007 (O&M) Dr.Madan Mohan Moudgil .....Petitioner versus Jaswant Singh Lota and others .....Respondents Present: Mr.Ashok Singla, Advocate, for the petitioner. Mr.Amarjeet Markan, Advocate, for the respondent. [6] Civil Revision No.6115 of 2007 (O&M) Hari Singh .....Petitioner versus Jaswant Singh Lota .....Respondent Present: Mr.Ashok Singla, Advocate, for the petitioner. Mr.Amarjeet Markan, Advocate, for the respondent. [7] Civil Revision No.6625 of 2007 (O&M) Jagjit Singh Brar .....Petitioner versus Non-Resident Indian Mrs.Sanjeewan @ Mrs.Sanjeewan Chand .....Respondent Present: Mr.K.S.Rekhi, Advocate, for the petitioner. Mr.B.R.Mahajan, Advocate, for the respondent. [8] Civil Revision No.6477 of 2007 (O&M) Tirlochan Singh .....Petitioner versus Non-Resident Indian Mrs.Sanjeewan @ Mrs.Sanjeewan Chand .....Respondent Present: Mr.K.S.Rekhi, Advocate, for the petitioner. Mr.B.R.Mahajan, Advocate, for the respondent. C.R. No.1385 of 2004 (O&M) & connected CRs 3 [9] Civil Revision No.986 of 2008 (O&M) Mrs.Swaran Devi Beri & others .....Petitioners versus Mrs.Santosh Kumari and others .....Respondents Present: Mr.Gaurav Mohunta, Advocate, for the petitioner. [10] Civil Revision No.4503 of 2008 (O&M) D.S.Dhal .....Petitioner versus Ranbir Singh and another .....Respondents Present: Mr.Amit Dhawan, Advocate, for the petitioner. Mr.Salil Sagar, Avocate, for the respondent. [11] Civil Revision No.6624 of 2008 (O&M) Jugal Kishore .....Petitioner versus Avtar Singh Matharu .....Respondent Present: Mr.Sudhir Paruthi, Advocate, for the petitioner. - - - CORAM : HON'BLE MR.JUSTICE SURYA KANT. -.- 1. Whether Reporters of Local papers 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? --- ORDER Surya Kant, J. This common order shall dispose of Civil Revision Nos.1385 of 2004, 3176, 3470, 3180 of 2006, 5929, 6115, 6625, 6477 of 2007 and C.R. No.1385 of 2004 (O&M) & connected CRs 4 986, 4503 & 6624 of 2008. Though the facts and some of the issues involved in these revision petitions are dis-similar, yet the common issue, namely, the scope and import of Section 13-B of the East Punjab Urban Rent Restrict Act,1949 (hereinafter referred to as `the Act’), which enables a Non-Resident Indian-landlord to seek eviction of his tenant through summary procedure, is involved in all these cases. For clarity, the facts and issues involved, wherever necessary, have been taken up separately. [2] However, it may be noticed that these revision petitions have been preferred by the tenants against whom the eviction orders have been passed by the Rent Controllers under Section 13-B of the Act. LEGISLATIVE BACKGROUND: [3] Vide the East Punjab Urban Rent Restriction (Amendment) Act No.9 of 2001, the State of Punjab has amended the East Punjab Urban Rent Restriction Act, 1949. The statement of the `Objects and Reasons' of the Amendment Act No.9 of 2001 acknowledges the representations received by the State Government from various Non-Resident Indians highlighting their plight of return to India after their long stay abroad. It was noticed that the Non-Resident Indians having spent long years of their lives abroad, did not find the conditions congenial in their own country on their return, either to settle down or to take up any business due to rigid legal provisions of the existing Rent Act and they were unable to recover possession of their residential, scheduled or non-residential building for their own use and occupation. It was in order to mitigate the hardship faced by the NRI-landlords that the State Government brought out C.R. No.1385 of 2004 (O&M) & connected CRs 5 Ordinance No.10 of 2000, promulgated on 27.12.2000, followed by the Amendment Act No.9 of 2001, whereby the provisions like Sections 2 (dd), 13-B and some modifications in the existing Section 18-A of the Act, have been carried out. These provisions have been added/amended with a view to provide summary procedure for eviction of a tenant by his NRI- landlord subject to fulfillment of certain conditions. [4] Section 2 (dd) of the Act says that :- “2 (dd) “Non-resident Indian” means a person of Indian origin, who is either permanently or temporarily settled outside India in either case- (a) for or on taking up employment outside India; or (b) for carrying on a business or vocation outside India; or (c) for any other purpose, in such circumstances, as would indicate his intention to stay outside India for a uncertain period.” Similarly, Section 13-B of the Act provides as follows:- "13-B. Right to recover immediate possession of residential building or scheduled building and/or non- residential building to accrue to Non-resident Indian:-- (1) Where an owner is a Non-Resident Indian and returns to Indian and the residential building or scheduled building and/or non-residential buildlng, 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 an 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 to 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-resident building, it shall be open to C.R. No.1385 of 2004 (O&M) & connected CRs 6 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 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." [5] Section 18-A (2) of the Act provides that once an eviction application under Section 13-B of the Act is received, the Rent Controller shall issue summons for service on the tenants in the Form specified in Schedule-II, which in turn, requires the tenant to apply for leave to contest the eviction application within 15 days of the service. Sub-Section (3) (a) of Section 18-A of the Act prescribes more than one mode to effect service on the tenants simultaneously, whereas, sub-Section (4) explicitly provides that the tenant, on whom the service of summons has been effected, shall have no right to contest the prayer for eviction unless he seeks to contest the application for eviction alongwith an affidavit stating the grounds and obtains leave from the Rent Controller to contest the eviction application. Sub-Section (5) says that leave to contest can be granted to a tenant if the facts disclosed by the tenant in his affidavit “would disentitle the specified landlord …….. from obtaining an order for the recovery of possession of the residential building or scheduled building and/or non-residential building, as the case may be…………”. Sub-section (6) of Section 18-A of the Act further provides that where the leave is granted C.R. No.1385 of 2004 (O&M) & connected CRs 7 to the tenant to contest the eviction application, the Rent Controller shall hear the eviction application on day to day basis. [6] The above stated newly added provisions have been considered by the Hon’ble Supreme Court at threadbare in Baldev Singh Bajwa versus Monish Saini, (2005) 12 SCC 778, the conclusion whereby may be summarized as follows:- (i) Any person, who himself is of Indian Origin and/or whose parents/grand-parents are/were of Indian Origin and who is settled outside India either permanently or temporarily for taking up employment or for carrying on business/vocation would be a Non-Resident Indian; (ii) a Non-Resident Indian-landlord has a special right to seek immediate possession of the let-out premises if he is its owner for atleast a period of 5 years before his applying to the Rent Controller for possession and that he requires the premises for his own use and occupation and/or for anyone ordinarily living with him and is dependent on him; (iii) the right under Section 13-B of the Act for immediate possession can be availed of only once during the life-time of such an owner/NRI landlord; (iv) the NRI-landlord has the choice to select one amongst several other residential/non-residential buildings; (v) it is not necessary for a NRI-landlord to permanently return to India for seeking eviction of the tenant; C.R. No.1385 of 2004 (O&M) & connected CRs 8 (vi) the Courts shall presume that the need of the NRI- landlord is genuine and bonafide, though the tenant is entitled to prove that in fact and in law, the requirement of the NRI- landlord is not genuine; (vii) a heavy burden would lie on the tenant to prove that the requirement of the NRI-landlord is not genuine and mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord’s favour; (viii) if the NRI-landlord gets possession under Section 13-B of the Act, he can neither transfer it either by sale or by any other mode nor can he let it out for a period of 5 years and in case of any breach, the tenant is entitled to seek restoration of possession; (ix) after getting the possession, the NRI-landlord should occupy the premises continuously for a period of 3 months. [7] Keeping the plain and unambiguous language of the statute in view and following the interpretation given by the Apex Court in Baldev Singh Bajwa’s case (supra), to the provisions inserted vide Amendment Act No.9 of 2001, every Rent Controller, while deciding an eviction application under Section 13-B of the Act, is obviously required to ascertain that (i) the applicant is a Non-Resident Indian; (ii) he is owner of the subject premises; (iii) his ownership is more than 5 years old as on the date when he applies for eviction; (iv) the applicant-NRI-landlord has C.R. No.1385 of 2004 (O&M) & connected CRs 9 pleaded and explained that he needs the subject premises for his own and/or for the use and occupation of anyone ordinarily living with and dependent upon him; (v) such NRI-landlord has not earlier availed the benefit of Section 13-B of the Act in respect of any other premises. [8] Similarly, wherever a tenant seeks leave to contest, the Rent Controller would ascertain as to: (i) whether or not such an application accompanying by an affidavit has been moved within 15 days from the date of effecting service upon the tenant as per the Schedule-II; (ii) whether or not the tenant has raised a triable issue duly supported with some cogent material, which if proved, would disentitle the NRI-landlord to seek eviction of the tenant; (iii) the leave to contest cannot be granted on mere asking and the tenant would be under a heavy onus to establish that the landlord’s eviction application lacks in material particulars and does not fall within the four corners of Section 13-B of the Act. [9] With a view to ascertain that there is a triable issue raised by the tenant, the Rent Controller shall be obligated to consider such contention in the light of judicially settled main and ancillary issues, like: (i) a NRI-landlord even if only a co-owner/joint owner in the demises premises, can seek eviction of his tenant under Section 13-B of the Act; (ii) ordinarily, the fate of an eviction petition filed earlier under Section 13 of the Act, before Section 13-B came into existence, is no ground for not entertaining the eviction application under Section 13-B of the Act; (iii) nothing precludes the NRI-landlord to institute parallel proceedings for recovery of the arrears of rent, while also seeking eviction of the tenant C.R. No.1385 of 2004 (O&M) & connected CRs 10 under Section 13-B of the Act, for the reason that every landlord is entitled to be paid the rent till the premises is required by the tenant; (iv) the general principle that the landlord is the best judge of his own requirement and the tenant has no authority to dictate or advise his landlord as to how the later should adjust within the available accommodation or in a particular manner applies to an eviction application under Section 13-B of the Act also; (v) the ownership with possession of another accommodation is no bar against a NRI-landlord to invoke his once in a life time right and get one building of his choice vacated under Section 13-B of the Act; (vi) contrary to Section-13, the requirement of the NRI-landlord for the demised premises for his own use and occupation, shall be presumed to be genuine and bonafide unless rebutted by the tenant; (vii) even if there are more than one tenants in a single `building', the NRI-landlord is entitled them to evict; (viii) the tenant shall have to apply for leave to contest within 15 days of effecting service on him. No application shall thereafter be entertained and the Rent Controller has no power to condone the delay in filing such an application; (ix) even if the premises was let out by the `co-owner' or an authorized person by the NRI-landowner, it shall amount to `letting out of the premises' for and on behalf of such owner only. [10] Counsel for the parties have been heard separately and at some lengths; the records of the Rent Controllers have also been perused and each case is here-in-after dealt with as per its own facts, but by applying the above summarized general principles:- C.R. No.1385 of 2004 (O&M) & connected CRs 11 Civil Revision No.1385 of 2004 [11] The petitioner-tenant is aggrieved at the order dated 21.2.2004 passed by the Rent Controller, Ludhiana, whereby her application for leave to contest has been dismissed and consequential eviction order under Section 13-B of the Act has been passed. [12] Alongwith the eviction petition filed under Section 13-B of the Act, the respondent-landlady has placed on record her Passport as well as the Identity Card issued by the NRI Sabha, Punjab, in order to show that she is settled in California (U.S.A.). The demised premises which is a part of the residential house, stands transferred in her name from Ajit Singh (her deceased husband) vide an order dated 3.4.1998 passed by the Joint Commissioner. The sale deed by virtue of which the property was transferred in the name of late Ajit Singh has also been placed on record. The facts regarding the respondent being a NRI or an owner of the demised premises for more than 5 years have not been disputed. She has specifically averred that the demised premises is needed for her personal use and occupation as she wants to come back and settle in India and that her son, three daughters and her grand children, who are living in U.S.A., keep on visiting India frequently to meet their close relatives, perform their social obligations and stay in Ludhiana continuously for some months and that the accommodation in her possession is wholly insufficient for their use and occupation. [13] The petitioner-tenant was sought to be served for appearance on 29.5.2002 but as per the report of the Process Server, she refused to C.R. No.1385 of 2004 (O&M) & connected CRs 12 receive the summons on 4.5.2002 and again on 28.5.2002. The petitioner did not appear before the Rent Controller on 29.5.2002 nor applied for leave to defend within 15 days. In fact, she moved an application to that effect on 17.12.2002 only. Her application has been dismissed by the Rent Controller after holding that she failed to apply within 15 days, though on merits also, the Rent Controller has observed that the respondent-landlady has made out a clear case within the ambit of Section 13-B of the Act. [14] The only ground raised in this revision petition is that the respondent-landlady has meanwhile passed away and Surinder Singh Sidhu, through whom her legal representatives have applied for being brought on record, has no such locus-standi. It is claimed that the eviction petition itself was moved by Surinder Singh Sidhu as an Attorney of Pavittar Kaur-respondent (since deceased) but no such power of attorney executed by the respondent in his favour, has been placed on record. [15] Having heard learned counsel for the parties, I find that the objection raised on behalf of the petitioner-tenant has no factual basis and is unsustainable in law. The application for being impleaded as legal representatives has been moved by none-else then (i) Sukhdarshan Singh Ojha; (ii) Mrs.Baljinder Bandal; (iii) Mrs.Surinder Kaur Toor and (iv) Mrs. Mandhir Leev. All the four applicants are son and daughters of late S.Ajit Singh and the respondent (Pavittar Kaur) was their mother. All the natural legal heirs of the respondent have been brought on record. The petitioner’s objection that the eviction petition filed through Surinder Singh Sidhu has no power of attorney executed in his favour on record, is C.R. No.1385 of 2004 (O&M) & connected CRs 13 also baseless as the respondents have placed on record a typed copy of the said power of attorney dated 28.2.2002 (Annexure A-1), whereby the respondent Smt.Pavittar Kaur had appointed Col. Surinder Singh Sidhu (retired) as her attorney to pursue the eviction application. [16] In my considered view, the petitioner-tenant has no locus standi to question the authorization made by the deceased (Pavittar Kaur) in favour of Col. Surinder Singh Sidhu when she herself had verified the eviction application and supported the same with her own affidavit dated 6.3.2002 (Annexure P-3). Similarly, once the natural legal heirs of the deceased-respondent have come forward, the controversy sought to be created by the petitioner in respect of a non-issue, having no bearing on the merits of the case, is liable to be rejected. [17] As a result of the above discussion, I do not find any merit in this revision petition which is accordingly dismissed. C.R.Nos.3176, 3180 and 3470 of 2006 [18] These three revision petitions have been filed by three different tenants against the same NRI-landlord (Hardish Singh Bhola). The Rent Controller, Nawanshahr vide his impugned order dated 2.5.2006 dismissed the petitioners' applications for leave to defend and has passed consequential eviction orders against them. [19] The respondent-NRI-landlord filed three eviction applications under Section 13-B of the Act against the petitioners for their eviction from the adjoining shops which are part and parcel of one and the same C.R. No.1385 of 2004 (O&M) & connected CRs 14 building situated at Main Road, Banga, District Nawanshahr. [20] The respondent averred that he is a Non-Residential Indian who had migrated to England; he is owner of the demised premises in which three small sized shops were constructed and rented out to the petitioner-tenants; he has decided to settle down in India and start the business of running a Restaurant after demolishing the three shops and constructing a multi-storied new building and thus requires the demised premises for his own use and occupation. The respondent-landlord has attached a copy of his passport as well as copy of NRI Certificate issued by the NRI Sabha, Punjab, to establish that he is a N.R.I. Besides, satisfying other ingredients, the respondent-landlord also gave an undertaking that he will personally use and occupy the demised premises after reconstructing the same. [21] The petitioner-tenants, on receipt of summons, applied for leave to contest, inter-alia, on the grounds that: (i) the respondent is a permanent resident of United Kingdom and has no intention to settle down in India; (ii) the respondent can seek eviction of his tenant from `one premises' only on the ground of personal necessity, whereas, he has filed `three eviction petitions'; (iii) the respondent is not a ‘specified landlord’ within the meaning of Section 13-B of the Act; (iv) the respondent wants to get the property vacated to sell it at premium; (v) the eviction petition has been filed with malafide intention; (vi) the petitioner-tenant in Civil Revision No.3180 of 2006 took an additional plea that the demised premises was taken on rent from the father of the respondent in personal C.R. No.1385 of 2004 (O&M) & connected CRs 15 capacity, whereas the eviction petition has been filed against the firm namely “M/s Surjit Engineering Works”; (vii) the respondent is not the sole owner of the demised premises and is co-inherited by him alongwith Charan Kaur and Hardish Singh Bhola, therefore, he cannot avail the benefit of Section 13-B of the Act; (viii) the respondent-landlord has nowhere specifically pleaded that he is owner of the demised premises for more than five years before filing the eviction petition. [22] The Rent Controller did not find any substance in the above noted contentions and has refused to grant leave to defend vide the impugned order dated 2.5.2006, with the resultant eviction orders passed against the petitioners. [23] Learned counsel for the petitioner-tenants reiterated the contentions noticed above and argued that the respondent has not specifically pleaded his ownership qua the demised premises for a period of atleast 5 years before filing the eviction application, and that the bonafides of the need pleaded by the respondent-landlord is highly questionable. Learned counsel for the petitioner-tenants also argued that the benefit of Section 13-B of the Act can be taken by a NRI-landlord in respect of one rented premises only, whereas the respondent has filed three eviction applications against three tenants which are not maintainable. [24] Having heard counsel for the petitioners at some length and on perusal of the records, I do not find any merit in these revision petitions. [25] Adverting to the first contention, the respondent-landlord has C.R. No.1385 of 2004 (O&M) & connected CRs 16 specifically averred in the eviction petitions that he is a NRI and `specified landlord/owner' of the demised premises let out to the petitioner-tenants from the specified different dates. In order to prove his co-ownership, the respondent has placed on record copy of the jamabandi for the years 1997- 98 which clearly depicts him as the co-owner of the demised premises for more than 5 years before filing the eviction petition. His NRI status is also beyond doubt as he has not only placed on record the passport issued by the United Kingdom Government, but also the identity card/certificate issued by the NRI Sabha, Punjab to that effect. Nothing more is required to be pleaded or shown by the respondent to prove his status of a Non- Resident Indian as explained by the Hon’ble Supreme Court in Baldev Singh Bajwa’s case (supra). [26] The petitioners’ objections that the respondent is not the sole owner cannot sustain for the reason that a NRI co-owner/joint owner can also file eviction petition under Section 13-B of the Act. [27] Similarly, the plea that the respondent-landlord does not require the demised premises for his own use and occupation or that the eviction petition has been filed for malafide reasons, is totally baseless as the respondent in para No.3 (i) of the eviction application has specifically