IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1
Civil Revision No.4525 of 2013 (O&M) Bansal Trading and another Petitioners Versus Dr.
Viranmol Singh Toor and others Respondents 2.
Civil Revision No.4648 of 2013 (O&M) Bharat Gulati Petitioner Versus Dr.
Viranmol Singh Toor and others Respondents Date of decision:
3. d September, 2013 CORAM: HON’BLE Mr.JUSTICE RAKESH KUMAR GARG Present: Mr.Vikas Jain, Advocate for the petitioneRs.RAKESH KUMAR GARG, J.
This judgment shall dispose of two revision petitions viz.
CR No.4525 of 2013 titled as ‘Bansal Trading and another v.
Dr.Viranmal Singh Toor and others’ and CR No.4648 of 2013 titled as ‘Bharat Gulati v.
Dr.Viranmal Singh Toor and others’, as eviction of the petitioners in both the petitions has been ordered from the demised premises on an application filed by the respondent-landlords; the premises in dispute are part of one building; and the grounds raised in these revision petitions are common and are on similar facts.
However, the facts are taken from CR No.4525 of 2013 for convenience sake.
Singh Rattan Pal 2013.09.06 16:03 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revisions No.4525 and 4648 of 2013 (O&M) 2 The respondents-landlords filed a petition under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as, ‘the Act’) seeking ejectment of the petitioners from the demised premises (i.e.shop located on ground floor of SCO No.42-43- 44, Sector 17-A, Chandigarh) being not Resident Indians, who required the demised premises for their own personal use and occupation.
It has been specifically stated in the eviction petition that the respondents are Indians by birth and fall within the definition of ‘not Resident Indian’ as contained under Section 2(dd) of the Act and have decided to come back to India to reside and settle in Chandigarh and start a Joint Venture in the demised premises.
It has also been submitted by them specifically that they are the owners of the demised premises for more than five yeaRs.and neither they have occupied any other commercial premises in the urban area of Chandigarh, not they have got vacated any such premises after commencement of the Act.
Upon notice, the petitioners filed an application for leave to defend under Section 18-A(4) of the Act submitting that the eviction petition was not maintainable as the respondents are not the NRIs because they do not fulfill the mandatory requirements to claim themselves as NRIs as defined under Section 13-B of the Act.
They further submitted that the respondents have filed another petition of similar nature against other tenants under the same provisions of law and they cannot get vacated more than one unit as per law.
Moreover, Singh Rattan Pal 2013.09.06 16:03 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revisions No.4525 and 4648 of 2013 (O&M) 3 the hospital cannot be operated from the demised premises unless change of user is allowed by the Chandigarh Administration.
A further ground has been taken that the proper service was not effected upon the petitioners as per the statutory requirements.
The application was contested by the respondent-landlords submitting that they have filed the present petition as well as other petitions against other tenants for getting whole of the building vacated from all the tenants in order to start their hospital.
The petitioners are tenants only in a part of the entire building.
It has been submitted that the entire building is required by the respondents to set-up their business and they are NRIs.
Vide impugned order dated 16.05.2013, the Rent Controller, Chandigarh has rejected the prayer of the petitioners and in view of the Full Bench judgment of this Court in ‘Anwar Ali v.
Gian Kaur’ 2001(2) RCR (Rent) 604, has ordered eviction of the petitioners being consequential.
The relevant part of the impugned order be noticed, which reads thus: “6.
After hearing the rival contentions of both sides and after going through the case file properly, I have come to the considered conclusion that fiRs.of all respondent has failed to establish by any cogent prima facie evidence that he has not received copies of documents along with the summons.
Once detailed application seeking leave to defend was filed, it is presumed that service was valid one.
Therefore such contention raised is liable to be negated.
Singh Rattan Pal 2013.09.06 16:03 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revisions No.4525 and 4648 of 2013 (O&M”
7.
The petitioners have prima facie established that they are co-owners of the property in dispute for the last more than five years by virtue of copy of allotment letter placed on the file.
The contention of the respondent that petitioners do not fall under the definition of not Resident Indian is also not tenable because copy of passports of the petitioners reveal that petitioner No.1 & 2 are residents of Canada whereas petitioner No.3 is resident of United Kingdom and their place of birth is India.
Therefore they all fall within the definition of NRI under the East Punjab Urban Rent Restriction Act.
Moreover, not it is well settled law that to be NRI, it is sufficient that a person of Indian origin establishes that he has permanently or temporarily settled outside India.
He should be of Indian origin the person whose parents, grand parents or great parents were born in India and permanently residing in India would be an NRI for the purpose of Rent Act as held by Hon’ble Supreme Court in Baldev Singh Bajwa versus Monish Saini AIR 200.SC 59.
It is the case of the petitioners that they have returned back to India and they want to start the Multi Specialty Hospital in the building in question.
Therefore, if they have returned back to India, it is not fatal to their case if they have got their ration cards and voter cards in India.
Therefore, such contention raised by learned counsel for the respondent is also misconceived.”
8. The other contention of the respondent that petitioners have also filed similar ejectment applications against other tenants also and thus, the present petition is not maintainable is also misconceived in view of the law Singh Rattan Pal 2013.09.06 16:03 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revisions No.4525 and 4648 of 2013 (O&M) 5 laid down by Hon’ble Punjab and Haryana High Court.
In Mukesh Kumar (supra) case, Hon’ble Punjab and Haryana High Court has held that if different portions of one integrated building are let out to different tenants, NRI landlord is entitled to evict all tenants from the building on ground of bonafide requirement.
Similarly, in another judgment titled as Harbhajan Singh versus Gurdial Singh 2006(1) RCR (Rent) 436 Hon’ble Punjab and Haryana High Court ha also held that in a case of integrated large building portion of which were let out to different tenants, NRI Landlord is entitled to evict all the tenants under Section 13-B of the Act on the ground of bonafide requirement.
The right to seek eviction is related to building and not to tenants.
Therefore, in view of the law laid down by Hon’ble High Court in this regard as discussed above and in view of the facts and circumstances of the present case, the petitioners have satisfied this Court that Bay SCO Nos.42-43-44, Sector 17- A, Chandigarh forms one integrated building as apparent from the copy of allotment letter placed on the file.
Therefore, the petitioners are entitled to evict the respondent as well as other tenants in the different portions of the building in question on the ground of bonafide requirement.”
9. The petitioners have also satisfied this Court that they intend to settle back in India and want to run hospital in whole of the SCo.It is immaterial if they have not filed the project report, financial potential, site plan etc.for establishment of hospital in the building in question because as per law it is not required on the part of the Singh Rattan Pal 2013.09.06 16:03 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revisions No.4525 and 4648 of 2013 (O&M) 6 petitioner and it is not the headache of the tenant to see such a hospital cannot run from the demised premises or the petitioner has to seek permission for the change of user.
Therefore, if the petitioners who are NRIs and landlords of the demised premises want the demised premises vacated to run hospital from there, their bonafide cannot be doubted.
As such, all the contentions raised by respondent are misconceived and respondent has failed to show any triable issue to grant him leave to contest the petition.”
10. Resultantly, as in the cumulative effect of the discussion and findings given above, it is established that petitioners are not Resident Indian who intend to settle back in India and require the demised premises for their bonafide requirement to run and establish hospital in the entire building in question.
They are owners of the building in question for last more than five yeaRs.Therefore, once these things are established on the file, there is no scope for the tenant to contest the present application because he has failed to make out triable case and thus, application for leave to contest is hereby dismissed.”
11. Since, leave to defend has been declined, eviction of the tenant has to be ordered as an automatic consequence as per judgment of Full Bench of Hon’ble Punjab and Haryana High Court titled as Anwar Ali versus Gian Kaur 2001(2) RCR (Rent) 604 and thus as an automatic consequence, ejectment petition u/s 13-B is hereby allowed and respondent is directed to hand over vacant possession of premises in question fully detailed in the head note of the petition to petitioners within two Singh Rattan Pal 2013.09.06 16:03 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revisions No.4525 and 4648 of 2013 (O&M) 7 months from today.
Parties are left to bear their own costs.
Memo of costs be prepared accordingly.
File be consigned to records.”
At the outset, it may be noticed that similar eviction petition filed by the respondent-landlords against the other tenants, i.e.M/s Stic Travels and another (CR No.4135 of 2013).has already been dismissed by this Court vide judgment dated 12.07.2013 and in view of the aforesaid judgment, learned counsel for the petitioners has very fairly submitted that various arguments raised on behalf of the petitioners before the Rent Controller to contest the ejectment petition, are not being raised in the instant petition, except that the respondents are not NRIs and matter is still open and pending before the Hon’ble Apex Court in SLP No.189 of 2011.
Challenging the aforesaid order dated 16.05.2013 of the Rent Controller, learned counsel for the petitioners has vehemently argued that the respondent-landlords are not NRIs as they have failed to fulfill the ingredients of Section 13-B of the Act.
Learned counsel has further argued that the respondent-landlords are foreign citizens and are not the citizens of India, and thus, will not fall within the definition of ‘NRI’.
On the basis of the aforesaid arguments, learned counsel for the petitioners has vehemently argued that the impugned order is liable to be set aside as the petitioners had raised triable issues before the Rent Controller and in view of the aforesaid triable issues raised, the petitioners were entitled to grant of leave to defend and since the Singh Rattan Pal 2013.09.06 16:03 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revisions No.4525 and 4648 of 2013 (O&M) 8 petitioners have been denied their rights, the impugned order is liable to be set aside resulting into dismissal of the ejectment petition against them.
The argument, as raised, is misconceived.
It cannot be disputed that as per the interpretation of the Hon'ble Supreme Court in ‘Baldev Singh Bajwa v.
Monish Saini’ 2005(12) SCC 778.the respondent-landlords are NRIs and fulfill all the necessary ingredients for granting them the benefit under Section 13-B of the Act.
Counsel for the petitioners has vehemently argued that respondent-landlords are not NRIs as the question as to who is an NRI, is still open even after the interpretation of the same in Baldev Singh Bajwa’s case (surpa) and the matter is still pending in the Hon'ble Supreme Court.
At this stage, it may be noticed that the decision taken by Hon'ble the Supreme Court in Baldev Singh Bajwa’s case (supra) still holds the field and according to the said judgment, respondent- landlords are NRIs and fulfill all the conditions to evict the petitioner- tenants.
It may further be noticed that operation of the law cannot be put to stop in view of pendency of the matters before Hon'ble the Supreme Court or High Court in the absence of any interim order.
I find support from the judgments of this Court in ‘Ranjit Puri v.
Dr.Mohinder Paul Singh’ (2012-13) Vol.
CLXVII PLR 309.‘Harjinder Singh v.
Baljit Kaur’ 2012 (1) RCR (Civil) 184; and Civil Revision Singh Rattan Pal 2013.09.06 16:03 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revisions No.4525 and 4648 of 2013 (O&M) 9 No.1571 of 2010 titled as ‘Padam Nabh and sons v.
Yash Pal’ decided on 8.12.2011.
No other argument has been raised.
In view thereof, I find no merit in these revision petitions and thus, the same are dismissed.
(RAKESH KUMAR GARG) JUDGE September 3, 2013 rps Singh Rattan Pal 2013.09.06 16:03 I attest to the accuracy and integrity of this document High Court, Chandigarh