Civil Revision No.1674 of 2007 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Civil Revision No.1674 of 2007
Date of Decision:05.11.2009
Renu Tiwari
.....Petitioner
versus
Balbir Dub
.....Respondent
CORAM: Hon'ble Mr.Justice Mehinder Singh Sullar.
Present: Mr.Harsh Aggarwal, Advocate,
for the petitioner.
Mr.K.S.Dadwal, Advocate,
for the respondent.
****
Mehinder Singh Sullar, J.
1. Having lost the legal battle, petitioner-tenant-Renu Tiwari wife
of Rakesh Tiwari (hereinafter to be referred as the tenant) has directed the
present revision petition against the impugned order dated 10.01.2007 vide
which the Rent Controller has accepted the ejectment petition under
Section 13-B of the East Punjab Rent Restriction Act, 1949 (hereinafter to
be referred as “the Act”) filed by Balbir Dub son of Sohan Lal Dub-
respondent-landlord (hereinafter to be referred as the landlord).
2. The matrix of the facts culminating in the commencement,
relevant for disposal, of the present revision petition and emanating from
the record is, that originally the landlord filed a petition for the ejectment of
the tenant from the demised premises invoking the special provisions of
Section 13-B of the Act, inter alia, pleading that he is its owner/landlord. It
was rented out to the tenant vide agreement dated 30.09.2005 for a period
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of 11 months which had also expired on 31.07.2006. As per agreement, he
sent a notice to the tenant.
3. The case set up by the landlord in brief insofar as relevant was
that he is a Non-Resident-Indian and had gone abroad for his settlement.
He is residing in Manila along with his wife and two children having foreign
passports. He also possesses immigration certificate duly issued by the
authorities of Republic of Philippines. Thus, he falls within the definition of
an NRI and also a member of NRI Sabha, Punjab. He requires the
demised property/shop for his own bona fide use as he wants to settle in
India and start his business of Readymade Garments.
4. Leveling a variety of allegations in all, according to the
landlord, he is an NRI and required the demised property for his own
personal requirement and is entitled to recover the possession under
Section 13-B of the Act. On the basis of aforesaid allegations, the landlord
filed the eviction petition against the tenant in the manner indicated
hereinabove.
5. Having completed all the codal formalities, the Rent Controller
summoned the tenant. As soon as the tenant appeared, in the meantime,
she filed an application for leave to contest the ejectment petition, inter alia,
pleading that the grounds for ejectment set-forth by the landlord are false
and he has not come to the Court with clean hands. According to the
tenant that the landlord is not a Non-Resident-Indian and is only a visitor to
Philippines, he owns other residential building and shop in the same area,
so much so, the tenant has denied the ownership of the landlord as the
demised premises is stated to be already sold by him. In all according to
the tenant, the landlord is neither a specified landlord (NRI) nor his
requirement/need is bona fide. That being so, the tenant prayed that she
be granted leave to contest the ejectment petition. She has also filed an
affidavit in support of the application.
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6. Controverting the allegations contained in the aforesaid
application of the tenant and reiterating the pleadings contained his original
ejectment petition, the landlord filed reply and prayed for dismissal of the
application for permission to leave to defend the ejectment petition.
However, the landlord clarified that the other shops are not suitable for his
business.
7. The Rent Controller dismissed the application for leave to
contest, filed by the tenant and accepted the ejectment petition of the
landlord under Section 13-B of the Act and directed the tenant to hand over
the vacant possession of the demised premises to him(landlord) within two
months vide impugned order dated 10.01.2007.
8. The tenant did not feel satisfied with the composite impugned
ejectment order and filed the present revision petition. That is how I am
seized of the matter.
9. Having heard the learned counsel for the parties, having gone
through the record of the case and after bestowal of thoughts over the
entire matter, to my mind, as there is no merit, therefore, the present
revision petition deserves to be dismissed for the reasons mentioned
herein below.
10. Admittedly, the landlord filed the ejectment petition against the
tenant invoking the special provisions under Section 13-B of the Act which
postulates that wherein an owner is a Non-Resident-Indian and returns to
India and the residential building or scheduled building and/or non-
residential building, 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 and
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 only after a period of five years from the date of
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becoming the owner of such a building and shall be available only once
during the life time of such an owner. Sub-clause 2 further posits that
where the owner has let out more than one residential building or
scheduled building and/or non-residential building, it shall be open to 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. Meaning thereby, the legislature has
conferred a statutory right on such NRIs to immediately recover the
possession from their tenants once in a life.
11. The main point urged by learned counsel for the tenant which
require adjudication is that whether the landlord is not proved to be an NRI
and the Rent Controller committed an illegality in applying Section 13-B of
the Act and ordering the ejectment of the tenant or not. To me, it would be
expedient to have the definition of NRI at this stage, to resolve this
controversy. Section 2(dd) of the Act defines “Non-Resident-Indian” means
a person of Indian origin, who is either permanently or temporarily settled
outside India in either case–for or on taking up employment outside India;
or for carrying on a business or vocation outside India; or for any other
purpose, in such circumstances, as would indicate his intention to stay
outside India for a uncertain period. It means a person will be deemed to
be a Non-Resident-Indian for the purpose of this Act who is either
permanently or temporarily settled outside India in either case, for or on
taking up employment outside India or for carrying on a business or
vocation outside India or for any other purpose, in such circumstances, as
is indicated his intention to stay outside India for uncertain period.
12. Such, thus being the legal position now the short and
significant question though important arises for determination in this case is
whether there is sufficient material to substantiate that the landlord was a
specified landlord (NRI) or not in this respect. A bare perusal of the record
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would go to show that the landlord in order to prove that he is an NRI, has
brought on record copy of his Alien Registration Certificate, Testimony
Residence Certificate, NRI Sabha Identity Card issued by the NRI Sabha,
Jalandhar, Republic of India passport issued by the Indian Embassy in
Manila, Philippines, copy of the passports of his son Julebar Dub and
daughter Baljit Kaur Dub.
13. However, learned counsel for the tenant has contended with
some amount of vehemence that no implicit reliance can be placed on
Alien Registration Certificate/Residence Certificate as his stay was for a
specific period and not for uncertain period and the Residence Certificate
which was issued to the landlord as visitors only and, thus, the landlord
cannot be termed as an NRI as such.
14. The argument at the first instance appeared very attractive but
when the same was scrutinized in relation to the evidence on record then I
cannot help observing that the same is not only devoid of merit but
misplaced as well because a bare perusal of Alien Certificate of
Registration issued by the Department of Justice Bureau of Immigration,
Manila would reveal that landlord-Balbir Dub, a citizen of India has been
registered pursuant to the provisions of Section 4 of the Alien Registration
Act, 1950 (RA 562) as amended. His date and place of birth was
described as 04.10.1969 at Jalandhar. His civil status was also depicted as
married and name of his spouse is Jelyn Burgos Dub. The occupation of
the landlord has also been depicted as business. Date and status of
admission is Adm. Mla 08.03.1994 as 9a. No doubt, as per note appended
thereto,(his Adm. status changed from 9a to Sec.13a approved by the BOC
dated 03.12.2001), his stay was upto 03.12.2002 and sequelly, it is
mentioned in the Residence Certificate that it was issued to the visitors on
03.12.2001. These notes incorporated in these certificates were
mentioned at that point of time but it stands proved on record that the
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landlord stayed and lived there with his family till he returned to settle in
India.
15. Thus, it is proved on record that the landlord was admitted on
08.03.1994 as a businessman in Alien Certificate of Registration and
Certificate of Residence was issued to him on 03.12.2001 coupled with his
affidavit wherein he has stated that he is an NRI and has gone abroad for
settlement and residing in Manila and two children were born and residing
there having foreign passports issued by the authorities of Philippines are
sufficient to prove his NRI status. Since it stands proved on record that the
aforementioned certificates were issued to the landlord at that point of time
and as he resided in Manila with his family, thereafter, till he returned to
settle in India so the alleged notes described in the certificates recorded at
the time of issuance would not come to the rescue of the tenant and
cannot, in any way, affect his status as NRI as urged on behalf of the
tenant.
16. The matter did not rest there. Not only that the landlord has
produced the Alien Certificate and Certificate of Residence issued by the
Philippines authorities, he has also produced on record NRI Sabha Identity
Card issued by the NRI Sabha, Jalandhar, his Republic of India passport
issued by the Indian Embassy in Manila, Philippines, copy of the passports
of his son Julebar Dub and daughter Baljit Kaur Dub issued by the
Republic of Philippines, where they were shown to be Filipino national.
Moreover, his wife is also residing in Philippines. Hence, if the entire
contents of the documents mentioned hereinabove are put together then
conclusion is inescapable that it stands proved on the record that the status
of the landlord squarely covered under the definition of Section 2(dd) of
the Act.
17. Thus, it would be seen that it stands proved on record that the
landlord is a person of Indian origin and settled outside India where he was
Civil Revision No.1674 of 2007 7
described as businessman and his family is residing there. Once that is so
proved on record, then it cannot possibly be saith that the landlord is not an
NRI as urged by the learned counsel for the tenant. Therefore, in my view,
the Rent Controller has rightly recorded a finding based on the cogent
material consistent with his statement contained in the application under
Section 13-B of the Act and affidavit that the landlord is an NRI as
contemplated under Section 2(dd) of the Act. Hence, the contrary
arguments of the learned counsel for the tenant ‘stricto-sensu’ deserve to
be and are hereby repelled in the obtaining circumstances of the case.
18. Faced with the situation, another feeble argument of the
learned counsel for the tenant that since the landlord has not produced any
material about the nature of work to be started by him in the shop in
dispute and that he owned other shops in Urban Estate, Jalandhar,
therefore, his requirement is not bona fide, again has no force. Because
the landlord has specifically pleaded that he is a Non-Resident-Indian,
required the demised property/shop for his own bona fide use as he wants
to settle in India to start his business of Readymade Garments. Moreover,
he has clarified in his reply to the application filed by the tenant for leave to
contest the petition that the remaining shops are far away from Kapurthala
road where the shop in question is located. The shop in question is ideally
suited for opening the business of Readymade Garments. Furthermore,
Section 13-B of the Act confer a special right on the landlord to get atleast
one building of his own choice vacated. Under these circumstances, it
cannot possibly be saith that the requirement of the landlord is not bona
fide. So, in this view of categoric stand of the landlord, non-mentioning of
other particulars pales into insignificance in this respect.
19. Moreover, to my mind, the landlord is not strictly required to
prove bona fide requirement as contained under Section 13 of the Act and
underlying legislative intent indicated in Section 13-B of the Act. The
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legislative intent for setting up of a special procedure for NRI-landlord is
obvious and distinct from general provision of bona fide requirement under
Section 13 of the Act.
20. According to Section 18-A of the Act, the Controller to take up
the matter on day-to-day basis till the conclusion of the hearing of the
ejectment petition. The decision of the Controller to be final and does not
provide any appeal or second appeal against the order of eviction. A
specified landlord (NRI) is permitted to file an application for ejectment only
once during his life time. Sub-section (3) of Section 13-B of the Act
imposes a restriction that he shall not transfer it through sale or any other
means or lease out the ejected premises before the expiry of a period of
five years from the date of taking possession of the said building.
21. Not only that if there is a breach of any of the condition, the
tenant is given right of restoration of possession of the said building and if
the landlord let out the building or any portion to any other person except
the evicted tenant and on any contravention thereof he shall be liable for
punishment of imprisonment for a term which can be extended upto six
months. These restrictions and conditions inculcate inbuilt strong
presumption that the need of the landlord is genuine. Moreover, such
statement made by the specified landlord shall be deemed to be admitted
by the tenant in view of legal provisions contained in Section (4) of Section
18-A of the Act.
22. An identical question arose for determination before Hon’ble
Apex Court in case titled as Baldev Singh Bajwa Versus Monish Saini,
2005(2) RCR 470. Having interpreted the definition of NRI contained under
Section 2(dd) of the Act, provisions of Sections 13-B, 19(2-B), 18-A and
other relevant provisions of the Act, it has authoritatively been held that
under such circumstances, the landlord would be NRI (specified landlord)
and his need cannot be termed as not bona fide unless a strong case is
Civil Revision No.1674 of 2007 9
made out in this respect. Learned counsel for the tenant miserably failed to
point out how and in what manner the need of the landlord is not genuine
as contemplated under Section 13-B of the Act. To me, the Rent Controller
has rightly negatives these contentions of the tenant vide the impugned
order. Therefore, no fault could be found with the impugned order which is
hereby affirmed particularly when it is now well-settled proposition of law
that it is not the province of this Court to dislodge the finding based on
material recorded by the Rent Controller unless the same is perverse,
arbitrary and without jurisdiction. No such irregularity or patent illegality
has been pointed out by the learned counsel for the tenant in the impugned
order.
23. No other point worth consideration has been urged or pressed
by the learned counsel for the parties.
24. In the light of the aforesaid reasons, as there is no merit,
therefore, the present petition is hereby dismissed with no order as to
costs.
November 05, 2009 ( Mehinder Singh Sullar)
seema Judge
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