CR No. 6775 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.6775 of 2008 Decided on : 08-12-2008 Vinay Kumar ....Petitioner VERSUS Banke Bihari ....Respondent CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr.Munish Bhardwaj, Advocate for the petitioner. MAHESH GROVER, J The petitioner was denied the leave to contest the proceedings initiated by the respondent pursuant to the provisions of Section 13 B of the Rent Act. Concededly, the respondent-landlord is a Non-REsident Indian and is owner of the property since 1992 which facts have not been denied by the petitioner. However, the bona fide need has been questioned to say that it is a small shop and it is not conceivable that a person who is Non Resident Indian would require premises for his own use and occupation. I am afraid that this contention of the learned counsel for the petitioner can only be repented. The tenant cannot assess the need of the landlord. The Apex Court in case titled as 'Sarla Ahuja versus United India Insurance Company Ltd.' 1998 (2) RCR 533 observed as follows:- “Para 14. The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona CR No. 6775 of 2008 2 fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by courts that it is not for the tenant to dictate terms of the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself.” and further in case titled as 'Baldev Singh Bajwa versus Monish Saini' 2005(4) RCR (civil ) 492 Hon'ble Supreme Court observed as under:- “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 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 CR No. 6775 of 2008 3 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 t he 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 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 CR No. 6775 of 2008 4 18-A of the Act of 1949 which require 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 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, CR No. 6775 of 2008 5 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. In our view, there ar 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)" In view of the above observations, no ground to interfere is made out. Dismissed. At this stage, learned counsel for the petitioner contends that some time may be granted to the petitioner to vacate the premises. After considering the prayer as made by the learned counsel for the petitioner, I am of the considered opinion that in case the petitioner furnishes an undertaking before the Rent Controller within a period of two weeks from today to the effect that he shall vacate the premises and hand over the vacant CR No. 6775 of 2008 6 physical possession to the respondent-landlord within a period of four months from today, the execution proceedings shall remain in abeyance till that period of time, subject to the condition that he shall deposit the arrears of rent, if any, alongwith undertaking and also that he shall continue to pay the rent to the landlord by the 7th of each month, failure to abide by any of the terms stated above, shall result in automatic denial of the benefit of the present order. December 8 , 2008 (Mahesh Grover) rekha Judge