CR No.5138 of 2009 - 1 - HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CR No.5138 of 2009 (O&M) DATE OF DECISION: 25.11.2009 **** Sarwan Jangra and another . . . . Petitioners VS. Sukhraj Singh . . . . Respondent **** CR No.5139 of 2009 (O&M) DATE OF DECISION: 25.11.2009 **** Sahib Singh . . . . Petitioner VS. Sukhraj Singh . . . . Respondent **** 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? **** Present: Mr. I.P.S. Kohli, Advocate for the petitioner **** SURYA KANT J.(ORAL) (1). This order shall dispose of Civil Revision Nos.5138 and 5139 of 2009 as common question of law and facts are involved in both the cases. For brevity, the facts are being extracted from Civil Revision No.5138 of 2009. CR No.5138 of 2009 - 2 - (2). The petitioners in both the revision petitions are the tenants under the same NRI landlord and have been ordered to be evicted by the Rent Controller, Jalandhar, vide the impugned eviction orders dated 30.07.2009 passed in the eviction petitions preferred by the respondent-NRI/landlord under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as ‘the Act’). (3). The NRI-landlord respondent filed an eviction petition under Section 13-B of the Act, inter alia, alleging that he is a Non-Resident Indian (NRI); he is permanently settled and resides in USA, though possess the passport issued by United Republic of Tanzania. He averred that the demised premises comprising a building situated in the area of Mohalla Kishanpura, District Jalandhar, was admittedly owned by his grandfather late Amar Singh who during his lifetime executed a registered Will dated 07.07.1972 in favour of the father and uncle of the respondent-landlord, namely, Surinder Singh and Sucha Singh, respectively. The father and the uncle of the respondent-landlord, thereafter, filed a suit for declaration on the basis of the registered Will dated 07.07.1972, which was decreed on 21.01.1977 and in terms thereof, the portion shown in red colour in the site plan fell to the share his father, namely, Surinder Singh. The respondent’s father Surinder Singh passed away on 26.06.1988, whereas, his mother Smt. Jasbir Kaur also died on 24.12.1998. The respondent having inherited the subject property became its owner after the death of his parents. CR No.5138 of 2009 - 3 - (4). The respondent further alleged that the petitioners were inducted as tenants in a part of the demised premises, comprising a shop, on a monthly rent of Rs.100/-, which his father had been receiving upto October, 1976. The respondent-landlord further averred that he requires the demised premises for his own bona fide personal necessity, for his own use and occupation as he wants to return to India and start business and that he has no other suitable accommodation available nor he has ever taken benefit of Section 13-B of the Act in respect of other premises. (5). Upon notice, the petitioner-tenants moved an application for leave to contest, inter alia, questioning the locus standi of the respondent-landlord to initiate the eviction proceedings; they denied his status as a Non-Resident Indian (NRI) as he was born in Dodoma, Tanzania and is a permanent resident of Tanzania; that there are several other properties owned by the respondent-landlord in Jalandhar and other places. Therefore, there is no personal need; execution of the Will dated 07.07.1972 by the grandfather of the respondent was also disputed. Similarly, the respondent’s ownership was also denied. (6). Leave to contest was granted and based upon their pleadings, the Rent Controller, Jalandhar framed the following issues:- 1. Whether the petitioner is Non-Resident Indian and is entitled to possession of property by way of ejectment?OPP CR No.5138 of 2009 - 4 - 2. Whether this petition is not maintainable? OPR 3. Relief. (7). Both the parties led their respective evidence and on appraisal thereof findings against all the issues have been returned by the Rent Controller, Jalandhar, in favour of the respondent-landlord culminating into the impugned eviction order. (8). The provisions like Section 2(dd), Section 13-B and the amended Section 18-A of the Act as incorporated vide the Amendment Act IX of 2001, whereby, the NRI-landlord has been held entitled to immediate possession of a residential or scheduled or non-residential building by seeking eviction of his tenant through summary procedure, came up for consideration before the Hon’ble Supreme Court in Baldev Singh Bajwa versus Monish Saini, (2005) 12 SCC 778 and the conclusions drawn by their Lordships 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 CR No.5138 of 2009 - 5 - 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; (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. (9). 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 CR No.5138 of 2009 - 6 - when he applies for eviction; (iv) the applicant-NRI- landlord has 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. (10). Similarly, 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 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, CR No.5138 of 2009 - 7 - 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. (11). Considering the petitioner’s contentions on the touchstone of the parameters extracted above, the first and foremost question that arises for consideration is as to whether or not the respondent is a Non-Resident Indian. In Baldev Singh Bajwa’s case (supra), it has been ruled that a person who himself or his father or grandfather were of Indian origin and settled abroad permanently or temporarily for the purpose of job/business/vocation, would fall within the ambit of ‘Non-Resident Indian’. True it is that as per the entry made in the Passport (Ex.P2), the respondent was born in Tanzania, however, he has led documentary evidence, especially, the revenue records (Ex.P10) to show that his father and grandfather were born and brought up and were the citizens of India. This fact is further strengthened by the Civil Court decree (Ex.P6). The respondent, thus, has fully satisfied the ingredients of expression ‘Non-Resident Indian’ as explained in Baldev Singh Bajwa’s case (supra). (12). The petitioner’s further contention that the respondent- landlord is entitled to take benefit of Section 13-B of the CR No.5138 of 2009 - 8 - Act against one tenant only which he has already availed by filing an eviction petition against another tenant in the same premises, is also legally misconceived. The legislation has consistently used the expression ‘building’ in Section 13-B and it is wholly immaterial whether such a ‘building’ is occupied by one tenant or more. So long as the benefit under Section 13-B of the Act is availed by a NRI-landlord qua one ‘building’ only, mere initiation of more than one eviction proceedings against the tenants occupying different portion of such building cannot defeat the legislative purpose of Section 13-B of the Act. (13). Learned counsel for the petitioner further contends that the eviction petition instituted by the respondent through his attorney being not maintainable, is also devoid of any merit in view of the reasons already assigned by this Court in Civil Revision No.6668 of 2007, Prem Lal vs. Narinder decided on 06.11.2009. (14). This takes us to the last contention raised on behalf of the petitioners that the demised premises was not ‘let out’ to them by the respondent, therefore, he can not seek the petitioner’s eviction under Section 13-B of the Act. It is urged that in fact the petitioners were not inducted as tenants even by his father/grandfather. In support of the plea and during the course of hearing, some Photostat copies of the receipts Ex.R1 to Ex.R55 have also been relied upon by the learned counsel for the petitioner. It is argued that the petitioners were inducted as tenants by CR No.5138 of 2009 - 9 - Avtar Singh who had been executing the rent receipts also (Ex.R1 to R55) in their favour. (15). Before adverting to the above-noticed contention, it would be apposite to reproduce the following observations made by the Rent Controller, Jalandhar in the impugned eviction order:- “………. The respondent alleged that he has taken the shop in dispute from Avtar Singh and placed on record various rent receipts Ex.R1 to Ex.R55. Ex.R1 to Ex.R55 have been issued from the same receipt book bearing no receipt number, no shop number, even issued by same pen, as perusal of the receipts from Ex.R1 to Ex.R16 are with one pen, Ex.R17 to Ex.R27, Ex.R28 to Ex.R29, Ex.R31 again with the same pen and similarly, other receipts with the second pen. Avtar Singh did not appear in the witness box to prove that he has issued the receipts nor any document has been placed on the record by the respondent or proved on record that Avtar Singh is owner of this property in dispute. Simply placing on record receipts issued by some one else, even authenticity of which has not been proved has no relevancy with the property in dispute and is not sufficient to discharge the onus shifted upon the respondent to prove the fact that the property is not owned by the petitioner, whereas sufficient evidence has been led by the petitioner to prove that he is owner of property in dispute which is part of his big chunk as per site plan Ex.P7 and he has also placed on record to show his ownership Jamabandi Ex.P10.” CR No.5138 of 2009 - 10 - (16). In my considered view, the above reproduced finding returned by the Rent Controller, Jalandhar is absolutely correct and warrants no interference by this Court. The receipts relied upon by the petitioners do not bear any description of the property. The fact of the matter is that the respondent has led overwhelming evidence to prove the ownership of his grandfather qua the subject property. He has also placed on record the death certificates Ex.P8 to P9 of his parents which clearly establishes that he has inherited the subject property by way of natural succession. The respondent’s mother died on 24.12.1998 and the eviction petition has been filed by him after a period of over 5 years. In this view of the matter all the ingredients of Section 13-B stand fully satisfied. (17). For the reasons afore-mentioned, I do not find any ground to interfere with the impugned order. Dismissed. (18). However, taking into consideration all the attending circumstances and the fact that the petitioners have to make alternative arrangements to shift from the demised premises, they are permitted to retain the demised premises upto 31st January, 2010 subject to their depositing entire arrears of rent, if any, on or before 15th December, 2009 and payment of the future rent before the 10th day of every calendar month. CR No.5138 of 2009 - 11 - (19). Dasti. (SURYA KANT) JUDGE 25.11.2009 vishal shonkar