CR No.1650 of 2011 (O&M) -1- ***** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.1650 of 2011 (O&M) Date of decision:09.05.2011. Mrs. Jatinder Kaur ...Petitioner Versus Sh. Rohit Chopra ...Respondent CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Sanjeev Walia, Advocate, for the petitioner. Mr. Raman K. Sharma, Advocate, for the respondent. ***** Rakesh Kumar Jain, J. The landlady is in revision against the order of the learned Rent Controller, Chandigarh dated 06.01.2011 by which tenant has been granted leave to defend the petition filed by the landlady under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 [for short “the Act”]. The case set up by the landlady is that she is a Non-Resident Indian and owner of the demised premises in which tenant occupies partly constructed portion of the ground floor at the monthly rent of `1,900/- excluding electricity and water charges. The landlady, who is residing at Canada for a long time, decided finally to settle in India and for that purposes she sought eviction of the tenant. After due notice, the tenant filed application under Section 18-A of the Act in order to seek leave to contest which has been granted by the learned Rent Controller on the following grounds: - i) That the landlady has not filed the eviction petition along with an affidavit which has been subsequently filed, CR No.1650 of 2011 (O&M) -2- ***** “whereas as per the provisions of law the petition is required to be accompanied with an affidavit of the petitioner which has not been done in the instant case”. ii) The eviction petition has been filed through a General Power of Attorney who has not been authorized to seek ejectment. “Perusal of the copy of the General Power of Attorney placed on record shows that the attorney holder i.e. Sh. Sanjeev Walia has not been authorized specifically to institute any case or rent petition in the court nor there is separate authorization to file the present petition”. iii) That the plea of personal necessity is vague as the petitioner has not given detail as to when and why she is returning to India and why she requires the premises. In order to assail the aforesaid findings of the learned Rent Controller on the basis of which the petition filed under Section 13-B of the Act has been found to be triable, the learned counsel for the petitioner has submitted that there is no provision under Section 13-B of the Act which requires filing of an affidavit along with the application for ejectment, the General Power of Attorney is specifically empowered to seek ejectment of the tenant and the personal requirement has been clearly mentioned by the landlady that she wanted to finally settle in India for which she requires her own house. In reply, learned counsel for the respondent has submitted that the impugned order does not suffer from any illegality because the petition filed under Section 13-B of the Act requires to be supported by an affidavit, the General Power of Attorney does not specifically provide for filing of the eviction petition and the details of personal requirement are not forthcoming in the eviction petition. The first question involved in this case assumes a great significance where the learned Rent Controller has held that “whereas as per the provisions of law the petition is required to be accompanied with an affidavit of the petitioner which has not been done in the instant case”. The learned Rent Controller, however, has not disclosed as to which provision of law provides CR No.1650 of 2011 (O&M) -3- ***** for filing of an affidavit in support of the application for eviction filed under Section 13-B of the Act. In this regard, the provisions of the Act have to be scanned in order to find out as to whether there is any requirement for filing of an affidavit along with a petition under Section 13-B of the Act or not? Three types of eviction petitions are filed under the Act: - a) Under Section 13 of the Act in which Section 13(2) lays down the grounds of eviction which can be availed of by the landlord by applying to the learned Rent Controller for a direction in that behalf. However, Section 13 does not talk of filing of an affidavit along with the application for ejectment; b) By virtue of Section 4 of the East Punjab Urban Rent Restriction (Amendment) Act, 1985 [for short “Act of 1985”], Section 13-A has been inserted in the Act w.e.f. 15.11.1985 enabling a specified landlord to file a petition for eviction of his tenant at any time, within one year prior to or within one year after the date of his retirement or after his retirement but within one year of the date of commencement of the Act of 1985, whichever is later, by moving an application to the Rent Controller along with a certification from the authority competent to remove him from service indicating the date of his retirement and his affidavit to the effect that he does not own and possess any other suitable accommodation in the local area in which he intends to reside to recover possession of his residential building or scheduled building, as the case may be, for his own occupation. This provision provides for an affidavit in support of an application wherein the specified landlord has to aver on oath that he does not own and possess any other suitable accommodation in the local area. c) By virtue of Section 3 of the East Punjab Urban Rest Restriction (Amendment) Act, 2001 [for short “Act of CR No.1650 of 2011 (O&M) -4- ***** 2001”], Section 13-B was inserted in the Act w.e.f. 31.05.2001 enabling a Non-Resident Indian to seek eviction of his tenant by proving that he is a Non-Resident Indian as defined under Section 2(dd) of the Act, owned the demised premises for more than 5 years prior to filing of the eviction petition and requires it for his own use and occupation or for the use of any one ordinarily living with and dependent on him and has not used this provision earlier. This provision is silent in respect of filing of an affidavit. Sections 13-A and 13-B of the Act are the special provisions which provide for a summary procedure for eviction of the tenants. The procedure is provided under Section 18-A of the Act which applies to both Sections 13-A and 13-B of the Act wherein lot of emphasis has been laid by the Legislature on due service upon the tenant who is required to move an application to the Rent Controller within 15 days of his service for seeking leave to defend on an affidavit in terms of Section 18-A(4) of the Act. From the resume of the aforesaid provisions of law under which the Rent Controller acts as a persona designata evolving its own procedure as provisions of the Code of Civil Procedure, 1908 [for short “CPC”] are not strictly applicable, the requirement of filing of an affidavit along with the eviction petition filed under Section 13-B of the Act is there or not, is to be decided. I have found that except for a petition filed under Section 13-A of the Act, the requirement of filing of an affidavit is conspicuous by its absence in Sections 13 and 13-B of the Act. In a petition to be filed under Section 13-A of the Act, the affidavit is only required to be filed to the effect that the specified landlord does not own and possess any other suitable accommodation in the local area in which he intends to reside by recovering possession of his residential building or scheduled building, as the case may be, for his own occupation. The underlying idea of the filing of this affidavit is that the specified landlord should candidly declare in his petition of not having any suitable accommodation one year prior or one year after the date of his retirement and may not exercise his special right under Section 13-A of the Act CR No.1650 of 2011 (O&M) -5- ***** as a ploy to seek eviction of a tenant under the summary procedure. Had there been the similar intention of the Legislature, the affidavit would have been provided in Section 13-B as well, but it was not provided because the Non- Resident Indian is already having a shelter for him unlike the specified landlord who occupies the government accommodation and is obliged to restore it to the department concerned after his retirement for the next incumbent to take over which could eventually make him a vagabond. Thus, it is held that for a petition to be filed under Section 13-B of the Act, an affidavit is not an essential requirement to support the application in the absence of which the Rent Controller can hold that it gives right to the tenant of a trial of the petition as if it is filed under Section 13 of the Act. It is also made clear that the provisions of Section 18-A(9) of the Act deals with the procedure for disposal of the application by the Rent Controller and has no connection with the procedure for the filing of application under Sections 13-A and 13-B of the Act. Insofar as the second issue with regard to the authorization of the General Power of Attorney to file the present eviction petition is concerned, it is specifically mentioned in Clause 6 of the General Power of Attorney that “to rent out/let out the said property to any tenant/tenants, to enter into such rent agreements/lease deeds, to receive and recover the rents, to issue receipts thereof, to eject the tenant/s personally or through court of law, to replace them/him with others, under his own signatures”. To my mind, the language used in this paragraph of the General Power of Attorney has empowered the General Power of Attorney to file eviction petition as it provides that he can seek ejectment of the tenant through Court. Thus, I do not find any triable issue in this regard for which the permission has been granted by the learned Rent Controller. In respect of the third issue, the learned Rent Controller has committed a patent error in observing that it would be a triable issue to find out as to when and why the landlady is returning to India and why she requires the demised premises. This is not the import of Section 13-B of the Act. The landlady has categorically alleged that she has been living in Canada for a long time and has now decided to come back to India to settle finally in her own CR No.1650 of 2011 (O&M) -6- ***** house which is required by her for her own use and occupation. This assertion is sufficient to prove her bona fide requirement and the tenant is nobody to put a question to the landlady as to when and why she wants to come back to India. In view of the above discussion, the present revision petition is allowed, the impugned order is hereby set aside and consequently the learned Rent Controller is directed to pass an order in accordance with law. May 09, 2011. (Rakesh Kumar Jain) vinod* Judge