2016 Supreme(P&H) 704

IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Ajay Tewari
CR-3509 of 2014 (O&M)
Krishan Kumar
v.
Kamla Devi
{Decided on 09/05/2016}

Headnote:Eviction--NRI Landlord--Act of 1949 and 1995; where applicable--Those cases which were filed prior to 30.11.2013 would be taken up under the Act of 1949 and those which were filed after that date would have to be filed and proceeded under the 1995 Act, notwithstanding the date of the tenancy.

       Eviction--NRI Landlord--Differences brought in 1995 Act from 1949 Act; enumerated.

       Eviction--NRI Landlord--Petition filed under 1949 after coming into force of 1995 Act--Petitions are to be amended where averment were covering requirements of 1995 Act, else fresh petition is to be filed.

       (A) East Punjab Urban Rent Restriction Act, 1949, S.13-B--Eviction--NRI Landlord--Act of 1949 and 1995; where applicable--Held; the only harmonious construction which would give effect to these disparate provisions would be to hold that as regards NRI-landlords, those cases which were filed prior to 30.11.2013 would be taken up under the Act of 1949 and those which were filed after that date would have to be filed and proceeded under the 1995 Act, notwithstanding the date of the tenancy--Punjab Rent Act, 1995, S.24(3) & S.75. (Para 82)

       (B) East Punjab Urban Rent Restriction Act, 1949, S.13-B--Eviction--NRI Landlord--Differences brought in 1995 Act from 1949 Act--Held;

       (i) Firstly, under the Act of 1949 the NRI need not return to India for permanent residence while under the 1995 Act he has to return to India permanently

       (ii) Secondly, under the Act of 1949 there was a stipulation that the NRI should have owned the building for five years while there was no such requirement under the 1995 Act.

       (iii) Thirdly, under the Act of 1949 a further condition was laid down to the effect that the right of summary eviction would be available only once in a life time and this limitation is not there in 1995 Act and ;

       (iv) Lastly, under the Act of 1949 the remedy of appeal was taken away and under Section 18(A) only a revision lay before this Court. Under the 1995 Act Section 38(7) (e) provides a remedy to a tenant to file an application for review against an order declining leave to defend and Section 50 permits an appeal against any final order--Punjab Rent Act, 1995, S.24(3) & S.75. (Para 83)

       (C) East Punjab Urban Rent Restriction Act, 1949, S.13-B--Eviction--NRI Landlord--Applicability of 1995 Act--Petition filed under 1949 Act after 30.11.2013 i.e coming into force of 1995 Act--Held;

       (i) Petition filed under 1949 Act yet substantive requirement of 1995 Act have been pleaded--Such NRI Landlords would be entitled to file formal applications for amendment of numbers of Section and the title of the act mentioned therein

       (ii) However, these tenants would be entitled to the statutory benefits conferred by the 1995 Act in so much as they would have the right to file an application for review against the order declining leave to defend as well as the right to file an appeal against an order of eviction.

       (iii) Landlords who have not made the necessary averments required by Section 24 of the 1995 Act would however have to be non-suited though they would have the right to file fresh petitions conforming to the requirements of the 1995 Act.

       (iv) Once it is held that the 1995 Act is applicable, it would be incumbent upon the Rent Controller to first pass an order on the application for leave to defend and after allowing the aggrieved party time to file a review application, then pass a separate final order--Punjab Rent Act, 1995, S.24(3) & S.75. (Para 85)

       (D) East Punjab Urban Rent Restriction Act, 1949, S.13-B--Eviction--NRI Landlord--Even if the definitions of Non-Resident Indian (NRI) under any Act of the Union Parliament have different shades and connotations it cannot be held that the definition of NRI under the Act of 1949 and the 1995 Act has to correspond to the same--Punjab Rent Act, 1995, S.5. (Para 6)

       (E) East Punjab Urban Rent Restriction Act, 1949, S.13-B--Eviction--NRI Landlord--Persons of Indian Origin (PIO) and Overseas Citizen of India (OCI)--Held; there is no material difference in the definition of the two categories and it is only that under the latter scheme some additional benefits have been granted to such persons--Punjab Rent Act, 1995, S.25. (Para 7)

       (F) East Punjab Urban Rent Restriction Act, 1949, S.13-B--Eviction--NRI Landlord--Term ‘settled’--Held; It is not necessary that to ‘settle’ one must arrive; a person who is born abroad can also be covered under the clause ‘permanently or temporarily settled’--Punjab Rent Act, 1995, S.25. (Para 8)

       Likewise a person who travels to his place of origin (albeit for the first time in his life) can always be said to ‘return’--In the circumstances, the argument that a foreign citizen or a person who was born outside India could not be covered under the definition of NRI has to be held to be invalid--Thus, both the arguments are rejected.

        (G) East Punjab Urban Rent Restriction Act, 1949, S.13-B--Eviction--NRI Landlord--Once the Rent Controller held that the landlady fulfilled all the conditions it has to be understood that the finding that she was an NRI is there. (Para 13)

       (H) East Punjab Urban Rent Restriction Act, 1949, S.13-Eviction--Impleadment of necessary party--As per rent note premises was taken on rent by two persons who are directors of company--Held; it is not a case where the tenant was a company through its Directors--Consequently the argument that the company being tenant has not been impleaded is misconceived--Civil Procedure Code, 1908, O.1 R.10. (Para 30)

       (I) East Punjab Urban Rent Restriction Act, 1949, S.13-B--Eviction--NRI Landlord--Personal Necessity--Tenant contented that cabins got vacated on other floors are lying locked and unutilized--Landlord contended that once the entire building is vacated he wants to utilize the entire SCO/Building--Contention of landlord accepted--Eviction upheld. (Para 33)

       (J) East Punjab Urban Rent Restriction Act, 1949, S.13-B--Eviction--NRI Landlord--Material concealment--The fact that an earlier petition was filed on a different ground and was dismissed would have no relevance to the present case and the omission to mention the same in the present petition would not amount to material concealment--Eviction Upheld. (Para 38)

       (K) East Punjab Urban Rent Restriction Act, 1949, S.13-B--Eviction--NRI Landlord--Dilapidated condition--Plea that building was in dilapidated condition therefore issue was triable--Held; such a plea in a petition u/s 13-B of the Act does not hold water--Eviction upheld. (Para 39)

       (L) East Punjab Urban Rent Restriction Act, 1949, S.13-B--Eviction--NRI Landlord--Co-owners--Held; that a co-owner NRI can seek eviction of the tenant in a building though the tenant was not inducted by such NRI and that it is not necessary that all other co-owners should be NRI. (Para 43)

       (M) East Punjab Urban Rent Restriction Act, 1949, S.13-B--Eviction--NRI Landlord--The fact that the petition was filed through power of attorney cannot be held against the landlord. (Para 61)

       (N) East Punjab Urban Rent Restriction Act, 1949, S.13-B--Eviction--NRI Landlord--Mere fact that the wife of the landlord had a share in her residential house the same can also not hold him dis-entitled to evict the tenant. (Para 62)

       (O) East Punjab Urban Rent Restriction Act, 1949, S.13-B--Eviction--NRI Landlord--Owner for 5 years--Once the transfer certificate issued by the Chandigarh Administration was placed on the record, it was not necessary for the landlord to have put into evidence the conveyance deed and the transfer certificate would be proof of the fact that the landlord was the owner from the date thereof. (Para 63)

       (P) East Punjab Urban Rent Restriction Act, 1949, S.13-B--Eviction--NRI Landlord--Period of lease--Once it is mentioned that the agreement ‘is further to the existing agreement’ it would obviously give rise to the inference that it would take effect from the date immediately after the date on which the previous agreement had come to an end notwithstanding the fact that the rent was increased from a subsequent date. (Para 75)

       (Q) Punjab Rent Act, 1995, S.25--Eviction--NRI Landlord--Property sold by landlord to his NRI Brother--Held; Rent Controller is not to decide complicated question of title or whether a sale deed is a sham transaction--In view of the sale deed the tenant cannot argue that the purchaser is not the landlord--Leave to defend rightly declined--East Punjab Urban Rent Restriction Act, 1949, S.13-B. (Para 115)

       (R) Punjab Rent Act, 1995, S.25--Eviction--NRI Landlord--Additional accommodation--The person who has actually one bedroom set can definitely have bona fide need and requirement for more accommodation--East Punjab Urban Rent Restriction Act, 1949, S.13-B. (Para 123)