Parminder Singh vs Mohan Singh

Surya Kant, J.—This Revision Petition is directed by the tenant whose application for leave to contest moved in an eviction petition filed u/s 13B of the East Punjab Urban Rent Restriction Act, 1949, has been dismissed by the Rent Controller, Kapurthala and consequential eviction order dated 02.04.2007 has been passed.

The respondent sought the petitioner''s eviction u/s 13B of the Act from the demised premises situated in Mohalla Sukhjit Nagar, Kapurthala. It was averred that the respondent is a Non-Resident-lndian who had shifted to England in 1996 for better job opportunity and being an Indian Citizen by birth, keeps on visiting India frequently. The respondent further averred that his children have grown up and he now intends to return to India to settle permanently in the evening of his life. For the said purpose, the respondent along with his son - Raj Dalbir Singh Thind have planned to set up a construction Company at Kapurthala as the respondent''s son has got expertise in that field. The respondent asserted that for the start of the new business and for running the affairs of the Company, he requires the demised premises as he wants to demolish it and construct a big office after including the adjoining property owned by him. The respondent also averred that there is no other premises in his possession within the "urban limits of Kapurthala suitable for the aforesaid purpose" nor he has vacated any such building".

In order to establish his ownership, the respondent attached a Photostat copy of the decree dated 18.11.1995 passed by the Sub Judge 1st Class, Kapurthala decreeing the respondent''s suit for partition and separate possession to the extent of 2/6th share in the demised premises. He also attached copy of the sale deed dated 20.12.2005 whereby remaining part of the demised premises was purchased by him. Site plan was also attached. A copy of the passport issued by the United Kingdom of Great Britain and Northern Island, has been appended to prove the NRI status.

On receipt of notice, the petitioner - tenant moved an application for leave to contest, inter-alia, questioning the respondent''s status as a NRI, alleging him a British citizen and that the respondent has not approached the Court with clean hands as he had recently purchased a huge property measuring 5 kanals 12 marlas adjoining the Bus Stand, Kapurthala vide registered sale deed dated 06.10.2005 and could start any type of business in that building. The petitioner further averred that soon after purchasing it, the respondent - landlord is trying to lease out the newly purchased property "under the banner of M.S.Properties''''. The petitioner also averred as follows:-

The petitioner has sold 11 marlas of land on Kanjli-Amritsar road, Kapurthala through his attorney Joginder Singh for Rs.7,60,000/- on 06.10.2004 to Maninderpal Singh, Rupinder Singh sons of Kashmir Singh. The properties purchased by the Petitioner vide sale deed dated 06.10.2005 and property sold by the petitioner vide sale deed dated 06.10.2004 are commercial properties situated in Commercial Area. If the petitioner really intended to come back and start business, he would have never sold the property. The property purchased by the Petitioner is more than sufficient for start of any business which the Petitioner or/and his son alleged to be required, otherwise. They are not going to start as the petitioner has not surrendered the British Citizenship and the citizenship of his son with whom he likely wants to start his business. The petitioner and his son are running a very good business of Real estate in U.K. under the name and style of M.S. Properties. The downloaded advertisement papers of the petitioner are attached herewith. The petitioner has filed the petitioner with malafide intention. (Emphasis applied)

As may be seen, the petitioner, appended the downloaded printed material from the website of the Company run by the respondent as also the photographs of the property purchased by him recently in Kapurthala in order to show that the respondent - landlord is in possession of various properties and he has flourishing business in U.K. and, thus, has no intention to return and settle down in India permanently.

The plea taken by the petitioner - tenant did not find favour with the Rent Controller, Kapurthala, who declined leave to contest after holding that no triable issue has been raised by the petitioner. Consequently, eviction order has also been passed, giving rise to this revision petition.

I have heard learned counsel for the parties at some length and perused the impugned order and the summoned records. Two fold contentions have been raised on behalf of the petitioner - tenant. Firstly, it is urged that the eviction petition lacks bona-fide and secondly, that the respondent - NRI landlord has already purchased on 06.10.2005 a huge commercial property, and the office of his Company, if any, can be opened in the said building. In other words, the need, if any, as now disappeared. Learned counsel for the petitioner, however, did not dispute the status of the respondent as a NRI, especially in the light of the Passport issued by the UK Government and the fact that the respondent''s specific plea that he was born in India, has gone uncontroverted.

Similarly, the respondent''s ownership for a period of more than five years before filing the eviction petition u/s 13B of the Act, also stands proved from the copy of the judgment and decree dated 18.11.1995 passed by the Civil Court at Kapurthala whereby his suit for partition and separate possession was decreed.

The respondent - landlord has, thus, successfully proved two out of the three ingredients of Section 13B of the Act, namely, that he is a NRI and owner of the demised premises for a period of more than five years before filing the eviction petition.

This takes us to the real contentious issue, namely, does the respondent require the demised premises for his own use and occupation? As noticed earlier, the contentions raised on behalf of the petitioner also revolve around the genuineness of the need for the demised premises as pleaded by the respondent - NRI landlord.

Section 13B of the Act confers a special right upon a NRI landlord to seek eviction of the tenant from his residential or scheduled or non-residential building through a summary procedure if the said premises is needed for his own use or for the use of a person dependent upon him.

In Baldev Singh Bajwa Vs. Monish Saini, it has been ruled that:-

.............there are in built 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. It is, of course, subject to tenants'' right to rebut it but with strong and cogent evidence. In our view, (in) the proceedings taken up u/s 13B by the NRI landlords for the ejectment of the tenant, the Court shall presume that landlord''s need pleaded in the petition is genuine and bona-fide. But this would not dis-entitle the tenant from proving that in fact that in law the requirement of the landlord is not genuine. A heavy burden would lie on the tenant to prove that the requirement of the landlord is not genuine. To prove this fact the tenant will be called upon to give all the necessary facts and particulars supported by documentary evidence, if available to support his plea in the affidavit itself so that the Controller will be in a position to adjudicate and decide the question of genuine or bona fide requirement of the landlord. A mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord''s favour that his requirement of occupation of the premises is real and genuine. (Emphasis applied)

The respondent - NRI landlord in para 3 of the eviction petition has averred as follows:-

That the petitioner is a NRI being Indian Citizen by birth and having shifted to England in 1996 for better job opportunity and since then he has been visiting India oftenly. Now the children of the petitioner have grown up and as such petitioner intends to return to India permanently and settle in his home country in the evening of his life with his family. For the said purpose along with his son Raj Dilbir Singh Thind are planning to set up a construction company at Kapurthala in which the son of the petitioner has expertized and for running the said business and the petitioner requires a big office for running affairs of the said company. For the said purpose the petitioner bonafidely requires the demised premises for his own use and occupation. The petitioner after vacation of the demised premises shall demolish the same and also include part of the remaining property to construct a bigger office for running office of the proposed construction company and as such the petitioner bonafidely requires the property in dispute.

The petitioner - tenant himself has admitted that the family of the respondent is running the business of real estate in providing "the office rental and residential lettings in various parts of UK since the year 1971 ". The material placed on record by the petitioner himself shows that "M.S.Properties also has premises available in Kapurthala, Punjab suitable for commercial use including office space". The petitioner - tenant''s own case is that the business of M.S.Properties in UK is quite flourishing and they deal with all kinds of properties like self-contained flats, houses, office dwellings and commercial sites.

The fact that the respondent - NRI landlord has started the business under the name and style of ''M.S.Properties'' in Kapurthala or the Company has purchased certain properties which are offered on lease-hold basis conclusively establishes the plea taken in para No.3 of the eviction petition that the NRI - landlord has decided to settle down in India and start the same business of real estate in which he or his son has vast experience.

The petitioner - tenant''s plea regarding purchase of another commercial property vide registered sale deed dated 06.10.2005 by the NRI - landlord has been dealt with and repelled by the Rent Controller with the following observations:-

The court can not ignore the fact that as per plea of petitioner, he also owns adjoining building and open space and after demolition of the demised premises, he intends to convert the same into large size office. However, Non-Resident Indian landlord has choice to select any of the residential building given on rent by him for residential purpose. In view of the special provision made by the legislature in Section 13B of the Act, tenant can not dictate the landlord as to how he shall adjust his need. The NRI landlord after eviction of the tenant is required to occupy demised premises for a continuous period of 3 months. He can neither sell nor sublet the premises got acted by him from a tenant for a period of five years. In case of breach of these provisions the petitioner may attract penal consequences.

In my considered view, the nature of business in which the respondent- NRI landlord or his family are involved, necessitates investments in immovable properties and to develop them for residential, commercial or business-offices and sell or lease out such properties for profiteering. Such like business related investments made by the respondent - NRI landlord or his company are meant to establish, develop and generate their business and not to occupy the same for their self-use at the cost of business prospects.

Should the respondent - landlord be compelled to invest his savings or of the Company''s funds for establishing the Corporate Office when his own property, which according to him, is the most suitable for the said object, is very much available? A tenant has no right to dictate his landlord as to how the latter should or must invest in another property and then utilize for the purpose for which such landlord wants his tenant to be evicted.

It is not in dispute that the adjoining property is also owned by the respondent - landlord. It is his specific case that he wants to demolish the demised premises and thereafter construct a big Corporate office for his Company by utilizing the adjoining property as well. In these circumstances, when the respondent - NRI landlord wants the demised premises to be utilized for the Corporate office and he himself being the best judge of his requirement, the Rent Controller has rightly held that the respondent can not be compelled to open his corporate office in a building purchased for the business activities of his Company.

No ground to interfere with the impugned order is made out. Dismissed.