Dismissed

Tarlok Kumar v. Shakti Kumar Markan and Ors.

Punjab & Haryana HC5 Dec 2008CR/1337/2008

Case brief

AI extract

What is this about?

This revision petition challenged the Rent Controller's order dismissing a tenant's application for leave to defend an ejectment petition filed by an NRI landlord under Section 13-B of the East Punjab Urban Rent Restriction Act. The Court held that the land and shop formed a single tenancy, allowing the NRI to seek possession.

What did the court decide?

The revision petition was dismissed, affirming the Rent Controller's order that the NRI landlord could seek eviction under Section 13-B.

Tarlok Kumar Vs Shakti Kumar Markan and Ors. — Property and Title | Punjab & Haryana HC (2008)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Revision No. 1337 of 2008

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Date of decision: 5^th December, 2008

Tarlok Kumar

… Petitioner

Versus

Shakti Kumar Markan and others

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… Respondents

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CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA

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Present: Mr. Amit Rawal, Advocate for the petitioner. Mr. Vikas Bahl, Advocate for respondents.

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KANWALJIT SINGH AHLUWALIA, J. (ORAL)

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Tarlok Kumar, who is a tenant, has preferred present revision petition against the impugned order dated 22^nd January, 2008 passed by the Rent Controller, Khanna dismissing the application seeking leave to defend under Section 13-B of the East Punjab Urban Rent Restriction (Amendment) Act, 2001, (hereinafter referred to as, ‘the Act’).

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One Shakti Kumar Markan, who is residing at 101, Kenton Road, Gosforth, New Castle Upon Tyne, NE2-4NL (UK), preferred a petition under Section 13-B of the Act seeking ejectment of Tarlok Kumar son of late Des Raj and other legal representatives of Des Raj from the shop, details and description of which have been given in the head note of the ejectment petition. It was stated in the petition that Shakti Kumar was born at Sangrur on 5^th May, 1953 and thereafter he migrated to UK and has been carrying on his business at New Castle, UK. He became a British citizen and acquired British passport. It was further stated that Norati Devi widow of Jai Ram Dass was owner of the plot, who gifted the same vide

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registered gift deed dated 30^th March, 1960 in favour of Kamla Devi wife of Ram Sarup and to her three grandsons, Amarjit Kumar, Vinod Kumar and Shakti Kumar. It is further stated that the demised shop with a passage is in possession of petitioner Tarlok Kumar, while the adjoining shop is in possession of the heirs of Sudagar Singh and these shops are constructed at one time after the site plan was got sanctioned and proved from the Municipal Committee, Khanna. It was stated that both the shops are an integral part of one building. It is further stated that Tarlok Kumar was the tenant of the demised shop along with the land in the back portion with a small passage and the rent of land is Rs.28,000/- per year. It is further averred that after the death of Kamla Devi, the property was inherited by other family members and petitioner is one of the co-sharers and the other co-sharers have no objection in case the shop is got vacated by the petitioner. In para 5 of the petition, ground of personal necessity was pleaded and it was stated that petitioner is having experience of purchase and sale of readymade garments, business of which was being run by him at New Castle, UK and after the death of his mother, he wanted to run the business of cloth merchant by constructing a showroom after demolishing the shop in dispute as well as the adjoining shop, which is in possession of Sudagar Singh. Other necessary ingredients were also pleaded in the ejectment petition.

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Notice was issued. Tenant Tarlok Kumar appeared and filed an application for grant of leave to appeal. Application of leave to appeal has been annexed as Annexure P-1.

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During the course of arguments, a copy of the ejectment petition, with the consent of counsel for the respondent, has been provided to this Court. In the application of leave to defend, it was stated that the petitioner is not an NRI. He does not require the property in dispute for his business or for any other purpose. It has been further stated that ejectment

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petition regarding the property in dispute is not maintainable as the shop shown in red colour in the site plan was taken on rent by Des Raj, father of Tarlok Kumar from Kamla Devi, mother of Shakti Kumar in year 1965 at the rate of Rs.1500/- per year vide oral tenancy by actual possession. It was stated that at that time, open space shown in green colour in the site plan, attached with the petition, was not taken on rent by Des Raj. It was further stated that the tenancy of the shop was a single compact tenancy and never included the tenancy of the open space. Rented land is shown in green colour in the site plan. It was further stated that rent of Rs.1500/per year was enhanced to Rs.6000/- per year in the year 1999. It was further stated that vide separate tenancy, Kamla Devi rented out land, which was on the back of the shop, at the rate of Rs.22,000/- per year. Therefore, tenant petitioner could not be evicted from the land, the same being separate tenancy.

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Rent Controller, vide impugned order, declined the leave to appeal and after noticing the facts, held that there is no triable issue made out and in view of the fact that the landlord is an NRI, he requires the premises for his own use and occupation and he is owner since last five years and is entitled to get possession of the shop.

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Aggrieved against the same, present revision petition has been filed in this Court.

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Mr.Amit Rawal appearing for the petitioner has formulated following legal issues for consideration of this Court:

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(a) Relying upon the definition of ‘building’ given in Section 2(a)(f) and that of ‘rented land’, it has been stated that a plain reading of Section 13-B makes it crystal clear that landlord can only get residential building, commercial building and scheduled building vacated and Section 13-B cannot be

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invoked by a Non Resident Indian for eviction of a tenant from the rented land.

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(b) Mr.Amit Rawal relied upon site plan (Annexure P-2), receipts (Annexure P-3, P-4, P-5 and P-6 Colly), to state that a perusal of the receipts will show that when rent was received vide rent receipt (Annexure P-4) on 15^th March, 2003, it was specifically stated therein that open space behind the shop is not on rent with him. Therefore, when a subsequent receipt (Annexure P-5) was issued on 27^th December, 2004, it stated “Received Rs.28,000/- Twenty Eight Thousand rent of shop and hinder portion Rs.6000/- @ Rs.22,000/-, respectively from Tarlok Kumar”. Therefore, it has been contended that shop and land constitute two different tenancies.

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(c) It has been stated that petitioner had also filed an eviction petition against one Sudagar Singh, who was being represented by his legal representatives, Amarjit Singh and others. Therefore, filing of second petition for eviction against the petitioner tantamounts to seeking eviction against two tenants and the premises of each tenant shall constitute a separate building, which is not permissible under the provisions of the Act to an NRI.

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Before this Court gives due consideration to these submissions, Mr.Vikas Bahl appearing for the respondent landlord has stated that the facts, as projected by Mr.Amit Rawal, are not disputed, therefore, in the present case there is no requirement to adduce evidence, as on the facts projected by Mr.Amit Rawal, counsel for the petitioner tenant, legal submission can be considered and answered by this Court. To controvert the submissions made by Mr.Amit Rawal, he has following submissions to make:

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(i) That even though the land was rented later on 1^st April, 2003, same was not let out principally for a business, but as ancillary to the business carried on by the tenant from the shop, therefore, the same will amount to appurtenant to the shop and as it has come during the course of arguments advanced by Mr.Rawal that the tenant, who was dealing in oil business, used to store drums of oil in the backyard of the shop, therefore, the land was used for the better utility and enjoyment of the shop. Hence, it could not be said to be a separate tenancy but on 1^st April, 2003, a single tenancy was constituted qua the shop and the land even though receipts were issued separately.

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(ii) Mr. Vikas Bahl has stated that against Sudagar Singh, before institution of a petition under Section 13-B, Kamla Devi had filed an ejectment petition under Section 13, which is a regular mechanism available to the landlord for seeking eviction of the tenant and in that, ejectment was ordered by the Rent Controller and the same was affirmed by the appellate authority and in revision by this Court. Thereafter, tenant therein had preferred a Special Leave Petition, copy of which has been placed on record by the Attorney of the landlord to state that the Special Leave Petition was decided on 23^rd July, 2007 and in pursuance thereof, possession was given to the landlord under Section 13 of the Act and not under Section 13-B, a remedy available to Non Resident Indians. Therefore, as a family settlement, the shop has accrued to the landlord NRI and he is seeking eviction of only demised premises from tenant Tarlok Kumar by invoking provisions of Section 13-B of the Act.

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(iii) Mr. Vikas Bahl has further stated that rented land alone in no way is useful to the tenant as defined in Section 2(f). No

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business is being carried out on the land in contradistinction to the business of the shop or separately.

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Since the facts are admitted, legal questions raised before this Court are to be answered.

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After considering the rival submissions made by counsel for the parties, I am of the view that even though receipts (Annexure P-4 and P-5) reveal that the tenancy of the land was created later and a separate rate was determined for the land, but for all intent and purposes it constitute one tenancy, as the land is being utilized to facilitate and promote the business of the shop. Therefore, it cannot be said that tenancy of the land can be construed in isolation to the shop. Therefore, the argument that Section 13-B cannot be invoked qua the land, is not acceptable. Tarlok Kumar is a tenant over the shop and the land, which is just behind the shop and there is a passage to the land from shop also. Therefore, it will be too technical and will defeat the very purpose of Section 13-B, if two portions of the tenancy are to be taken into consideration separately.

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Since I have already held that tenancy of the land is not to be construed separately, as the same was for ancillary purpose to the shop and for promotion of the business being run from the shop, it will be necessary here to take into consideration the definition of “building” as given under Section 2(a) of the Act, which reads as under:

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“(a) ‘building’ means any building or part of a building let for any purpose whether being actually used for that purpose or not, including any land, godowns, out-houses, or furniture let therewith, but does not include a room in a hotel, hostel or boarding-house;”

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Section 2 (f) of the Act defines “rented land” as “ any land let separately for the purpose of being used principally for business or trade ”.

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Since in the present case, land has not been let out separately for the purpose of being used principally for business or trade, it will form part of the building as it has been stated during the course of arguments that from the shop, oil business is being run by the tenant and the drums are stored in the open vacant land on rent.

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As far as second submission is concerned, since the other legal representatives of Kamla Devi obtained a favourable order from the Hon'ble Apex Court and in pursuance of that, legal representatives of Sudagar Singh handed over the possession to the other co-owners, therefore, it could not be held that the landlord is precluded from seeking eviction of the petitioner by invoking Section 13-B of the Act. Hon'ble Apex Court, in ‘Baldev Singh Bajwa v. Monish Saini’ JT 2005 (12) SC 442, noticed the object of enactment of Section 13-B and held as under:

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“17. The legislative intent of expeditious disposal of the application for ejectment of the tenant filed by the NRI landlord is reflected from the summary procedure prescribed under Section 18-A of the Act of 1949 which requires the Controller to take up the matter on day-to-day basis till the conclusion of the hearing of an application. The Legislature wants the decision of the Controller to be final and does not provide any appeal or second appeal against the order of eviction, it is only the High Court which can exercise the power of consideration of the case, whether the decision of the Controller is in accordance with law. Section 13-B gives right of ejectment to special category of landlord who is NRI (Non-Resident Indian); and owner of the premises for five years before action is commenced. Such a landlord is permitted to file an application for ejectment only once during his life time. Sub-section (3) of Section 13-B imposes a restriction that he shall not transfer through sale or any other means or lease out the ejected premises before the expiry of the period of five years from the

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date of taking possession of the said building. Not only that, if there is a breach of any of the conditions of sub-section (3) of Section 13-B, the tenant is given a right of restoration of possession of the said building. Under sub-section (2-B) of Section 19 the landlord has to take possession and keep it for a continuous period of three months and he is prohibited from letting out the whole or any part of such building to any other person except the evicted tenant and any contravention thereof, he shall be liable for punishment of imprisonment to the term which can be extended upto six months. These restrictions and conditions inculcate inbuilt strong presumption that the need of the landlord is genuine. Landlord, after the decree for possession, is bound to possess the accommodation. Landlord is prohibited from transferring it or letting it out for a period of five years. Virtually conditions and restrictions imposed on the NRI landlord makes it improbable for any NRI landlord to approach the Court for ejectment of a tenant unless his need is bona fide. No unscrupulous landlord probably, under this section, would approach the Court for ejectment of the tenant considering the onerous conditions imposed on him by which practically he is deprived of his right in the property not only as a lessor but also as the owner of the property. There is a restriction imposed even on the transfer of the property by sale or any other manner. The restriction imposed on the landlord by all probability points to the genuine requirement of the landlord. In our view there are inbuilt 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 proceeding taken up under Section 13-B 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 and 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

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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.”

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The object to provide summary mechanism to the landlord to seek eviction of the tenant cannot be defeated on mere technicalities.

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Nowhere, it has been stated before me that premises are not required for the personal necessity of landlord or that plea of personal necessity raised is not true. In the present case, in case shop is got vacated as per observations of Hon'ble Apex Court in Baldev Singh Bajwa’s case (supra), landlord is to be governed by sub-Section (3) of Section 13(b) of the Act, which imposes a restriction that he shall not transfer the premises, through sale or any other means or let out the premises before the expiry of period of five years from the date of taking possession of the said building.

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Therefore, for the reasons stated in this order, there is no merit in the present revision petition and the same is dismissed.

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[KANWALJIT SINGH AHLUWALIA] JUDGE

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December 5, 2008 rps

Tarlok Kumar v. Shakti Kumar Markan and Ors.

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Tarlok Kumar v. Shakti Kumar Markan and Ors.

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