G.S. Sandhawalia, J.

Civil Misc. No. 6930-C-II of 2012

1. Prayer made in the application is for grant of exemption from filing the certified copies of Annexures P-1 to P-6. In view of the averments made in the application, which are supported by affidavit, the Civil Misc. Application is allowed.

Civil Misc. No. 6931-C-II of 2012

2. Prayer made in the application is for placing Annexures P-1 to P-6 on record.

3. In view of the averments made in the application, which are supported by affidavit, the Civil Misc. Application is allowed. CR No. 1654 of 2012

4. The present revision petition has been filed against order dated 22.12.2011 passed by the Rent Controller, Chandigarh whereby he has declined the application for leave to contest under Section 18-A and allowed the petition under Section 13-B of the East Punjab Urban Rent Restriction(Amendment) Act, 2001 (for brevity, "the Rent Act) of the NRI landlady.

5. The facts in brief are that the landlady filed a petition under Section 13-B of the Rent Act as extended to the Union Territory, Chandigarh vide notification dated 9.10.2009 for ejectment of the tenant from House No. 2198, Sector 15-C, Chandigarh comprising of ground floor, first floor and second floor. The petition was filed through Sukhwinder Singh son of Avtar Singh, General Power of Attorney and it was alleged in the petition under Section 13-B of the Rent Act that the ownership certificate was issued by the Estate Officer, U.T. Chandigarh dated 31.7.1981 and, therefore, the landlady was owner of the said house for a period of more than five yeaRs. The tenancy was created on 13.12.2002 at a monthly rent of Rs. 15,000/- and the landlady who is born in India on 12.11.1940 and has been residing in United States of America for the last 30 years and was NRI within the meaning of Section 2 (dd) of the Rent Act. Photocopy of the passport was appended and as per the petition, it was alleged that the landlady has been working as a Consultant to the Department of Mental Health Facilities and for a long time has been a Hearing Officer of people suffering from mental ailments/disorde Rs. The landlady had not married and remained a spinster and now was 70 years of age and is a senior citizen and being alone in America and to be with her near & dear ones, relatives and friends had finally decided to return to India to Chandigarh and was living in big house in United States of America and, therefore, she wanted to live in comfort in the house in question. The house was only a 10 marlas house and she wanted to live comfortably in the house and would keep servants, chauffeur etc. The need of the landlady was urgent and right had accrued for immediate possession of the tenanted premises. In such circumstances, the landlady was entitled for immediate eviction of the tenant. The landlady had never filed any petition under Section 13-B of the Rent Act earlier and this was the first petition regarding the house in question for her own use and the landlady did not occupy any other residential premises nor she had vacated any such building in the urban area of Chandigarh after commencement of the Rent Act.

6. The tenant filed an application dated 6.12.2010 for leave to contest and took following two grounds, which were supported by affidavit:-

1. That the respondent is living in the disputed house since 1993 but petitioner has concealed this fact from the Court and pleaded that house is given in 2002 and she is still not in India.

2. That she has also concealed lot of other material facts and respondent has sufficient evidence to prove that building is not required by the petitioner for her own use.

7. The said application was contested by filing a detailed reply which in substance rebutted the application by making same averments which have been made in the petition under Section 13-B of the Rent Act.

8. Keeping in view the said application and the reply, the impugned order has been passed by the Rent Controller. The Rent Controller came to the conclusion that whether the property was let out in 1993 or fresh rent deed was executed in 2002 would not make any difference and the application for appointment of local commissioner to find out whether there were some other tenants on the first floor and second floor had already been dismissed on 2.5.2011 and rent agreement dated 13.12.2002 showed that the entire premises had been rented out. Even otherwise, it was one complete unit and building and in case some other tenant was in occupation, the judgment and decree would not be executable against the said person at the risk of the landlady. Accordingly, the Rent Controller came to the conclusion that four conditions under Section 13-B of the Rent Act, namely, that the ownership of the N.R.I. was of five years, the building was required for own use, the right was being availed only once and the person wanted to return to India were fulfilled. Accordingly, the Rent Controller allowed the petition under Section 13-B of the Rent Act. Resultantly, the present revision petition has been filed.

9. Counsel for the tenant has raised a four pronged attack on the order of the Rent Controller, Chandigarh. The first submission made is that the petition has been filed though the power of attorney and the power of attorney had no personal knowledge of the need of the landlady and the petition was not maintainable through power of attorney and the landlady should have come and filed the petition in person. Reliance has been placed upon the judgment of this Court in Basant Kumar Vs. Romesh Kumar Deora 2008 (4) PLR 313 on the ground that an attorney could not give any such evidence and it was only in the personal knowledge of the NRI/owner. The said submission has been countered by the general power of attorney appearing in person who had pointed out that the landlady came to India and appointed him to do all acts and deeds with regard to residential house in question by executing a power of attorney on 6.7.2010 and the present petition was filed on 2.11.2010 in pursuance of the attorney given by her. Photocopy of the power of attorney duly notarised has been placed on record. Relevant contents of the said power of attorney read as under:-

Know all men by these presents that I, Ms. Amarjit Kaur Paur, (holding valid Passport No. 460932300) d/o Sardar Sadhu Singh r/o 1023, 3rd Avenue Los Angeles, California, presently at Block-H, No. 77, Shivalik Vihar, Naya Gaon, District Mohali, Punjab do hereby appoint, nominate and constitute Mr. Sukhwinder Singh s/o Sardar Avtar Singh, r/o Block-H, No. 77, Shivalik Vihar, Naya Gaon, Distt. Mohali, Punjab as my lawful attorney to do all or every acts, deeds and things which may be necessary for exercising the powers for and on behalf under his signature in respect of case/cases whether filed by me or to be filed on my behalf and against me in any Court in India with regard to my residential built up House No. 2198, Sector 15-C, Chandigarh i.e. to say:

1. To act and appear before any court/department/office/official concerned whether in Civil/Criminal/Revenue/Rent petitions or Miscellaneous cases whether by me or to be filed against me in any court of law in India, for that purposes to engage any lawyer/advocate for the conduct of cases whether filed by me or to be filed on my behalf and against me in any court, to execute, sign and verify all necessary documents/papers/suits/plaints/written statement/appeal/review/revision/writ petition etc., to submit the same in the competent Court, to attend the day to day proceedings to compromise, compound and withdraw the cases, to give any statement, to produce the evidence orally as well as documentary, to receive any notices/summons issued or to be issued by any court in may name, to give reply of the same, to apply for and obtain possession and regain possession of the property in question either personally or through court to receive the warrant of possession from the Court to get the decree executed from the Court and to deposit the necessary fees for the same, to receive and recover rents/arrears from the tenants, for that purpose to complete all formalities in connection with the conduct of litigations arising out of my said property upto to the highest Court of law in India under his own signature.

10. Keeping in view the contents of said power of attorney, it would be clear that attorney has been given authority to file the petition and take all steps and acts for exercising the powers on behalf of the landlady/owner of the property in dispute. this Court in Sita Ram Vs. Malwinder Kaur 2008 (4) PLR 793 by placing reliance upon Baldev Singh Bajwa Vs. Monish Saini : JT 2005 (12) SC 442 [LQ/SC/2005/1031 ;] ">JT 2005 (12) SC 442 [LQ/SC/2005/1031 ;] [LQ/SC/2005/1031 ;] ">JT 2005 (12) SC 442 [LQ/SC/2005/1031 ;] ">JT 2005 (12) SC 442 [LQ/SC/2005/1031 ;] [LQ/SC/2005/1031 ;] [LQ/SC/2005/1031 ;] has held that such petitions filed through power of attorney are maintainable. Para 11 of the judgment reads as under:-

The next contention raised by ld. Counsel for respondent is that petition is not filed through competent person and has been filed with mala fide intention. The present petition has been filed by Malwinder Kaur applicant through attorney Sarabjit Singh, Advocate. It is not mandatory that the petitioner should herself appear and personally file the petition under Section 13-B of the Act and same can be filed through Power of attorney holder. The fact that in the Power of attorney, it has not been mentioned regarding filing of ejectment petition against the respondent by name cannot make the power of attorney defective. Mere oral assertions of the respondent is not sufficient to rebut the presumption.

11. The Honble Supreme Court also while deciding Baldev Singh Bajwas case (supra) and going into the facts of one case (Gurbachan Singh Badhan Vs. Gurcharan Singh) held as under:-

The High Court has upheld the order passed by the controller and held that the landlord/respondent is the owner of the property for more than the five years and that it is not necessary for an NRI to personally come and file the petition; and that if the petition is filed through an attorney and the NRI comes later, requirement of Section 13-B is satisfied. There are no particulars given about the other properties held by the landlord and in the absence of cogent material placed before the Controller as to the other properties alleged to have been held by the landlord, the burden placed on the tenant to rebut the presumption that the need of the landlord is genuine and bonafide, would not stand discharged and thus there is no ground to interfere with the decision of the High Court.

12. Thus, keeping in view the binding precedent of the Honble Supreme Court, it cannot be said that the petition filed through power of attorney is not maintainable. The judgment referred by the counsel for the petitioner in Basant Kumars case (supra) has not taken into consideration the judgment of the Honble Supreme Court in Baldev Singh Bajwas case (supra), the relevant paragraph thereof has been reproduced above.

13. The second submission made is that the bonafides of the landlady/owner was missing in view of the fact that the landlady is staying abroad for the last 30 years and in her old age she was not likely to come back and had not come back till now and wanted to sell the property. The said submission is also not acceptable in view of the fact that it is the settled proposition that the allegations made by the NRI of his requirement are to be presumed to be genuine and bonafide and the same have to be rebutted by the tenant by placing cogent and material facts and evidence in support at the stage of leave to contest. The said material has not been brought on record by the tenant in the present case. The leave to contest application has been reproduced above in para no.3 of this judgment which is a very sketchy application and it is within these parameters the Rent Controller has to decide the application in view of the provisions of Section 18-A (4) & (5) of the Rent Act. and the Rent Controller has decided on the basis of the said application and no fault can be found with the reasoning given by the Rent Controller.

14. The question of bonafides had been considered by Honble Supreme Court in Baldev Singh Bajwas case (supra) and it has been held that if the landlord does not use the property for which it was being got vacated, he is liable to be proceeded against under Section 19(2-B) and also liable to be punished with imprisonment for a term which may extend to six months or a fine which may extent to Rs. 1000/- or both. Similarly a safeguard has also been provided in Section 13-B(3) which gives the tenant a right to file an application for restoration of possession if the owner transfers or lets out the property within five years from taking possession. Accordingly, it has been held that mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlords favour that the requirement of house for occupation is bonafide and genuine. The Honble Supreme Court in Baldev Singh Bajwas case (supra) keeping in view the objects and reasons of the Act, has held as under:-

On the interpretation given by us and on a plain reading of the provisions, once in a lifetime possession is given to a NRI to get one building vacated in a summary manner. A Non-resident Indian landlord is required to prove that:-(i) he is a NRI; (ii) that he has return to India permanently or for the temporary period; (iii) requirement of the accommodation by him or his dependent is genuine and; (iv) he is the owner of the property for the last five years before the institution of the proceedings for ejectment before the Controller. The tenants affidavit asking for leave to contest the NRI landlords application should confine to the grounds which NRI landlord is required to prove, to get ejectment under Section 13-B of the Act. The Controllers power to give leave to contest the application filed under Section 13-B circumscribe to the grounds and inquiry to the aspects specified in the Section 13-B. The tenant would be entitled for leave to contest only if he makes a strong case to challenge those grounds. Inquiry would be confined to Section 13-B and no other aspect shall be considered by the Controller.

15. The third submission made by the counsel for the tenant is that the issue of foreign passport is pending consideration before the Apex Court and in the present case, the landlady was having American passport and, therefore, whether she was NRI or not was open to the question. The said submission is also without any basis. The submission of the counsel that the matter is pending before Honble Supreme Court regarding status of person holding foreign passports is also without any basis since the Honble Supreme court in Baldev Singh Bajwas case (supra) while noticing the facts had also taken into consideration a case of a person holding Canadian passport and doing service in United Kingdom and having been born in Delhi and migrated to the United Kingdom and accordingly, held that it is not necessary that person should be a citizen of India and shifted to a foreign country or that because he held a foreign passport, he would not be an NRI and upheld the order of the High Court which had affirmed the order of the Rent Controller refusing to grant leave to contest. The relevant portion reads as under:

24. Definition of "Non-resident Indian" (NRI) under the Act contemplates that any person who is of an Indian origin, and who has settled either permanently or temporarily outside India for taking up employment; or for carrying on a business or vocation outside India; or for any other purpose in such circumstances as would indicate to stay outside India for an uncertain period, would be a Non-resident Indian. Thus to be a NRI, it is sufficient that a person of an Indian origin establishes that he has permanently or temporarily settled outside India for his business or on account of his employment, or for any other purpose which would indicate his intention to stay outside India for an uncertain period. Therefore, any person who has gone out of India and temporarily settled there for the purposes of undertaking certain course or degree of University would not be a NRI because his stay could not be said to be for an uncertain period. A person to be an NRI, first should be of an Indian origin. The phrase "Indian Origin has not been defined in the Act of 1949. The dictionary and in ordinary parlance phrase "origin refers to persons parentage or ancestry. The person whose parent, grand-parents, or great-grand parents were born in India and permanently resided in India would be an NRI for the purposes of the Act of 1949. It is not necessary that the person should be a citizen of India and shifted to the foreign country or that because he holds foreign passport he would not be NRI. In the appeals before us, there is no challenge that the landlords are not the NRIs within the meaning of the Act because they do not have the Indian origin. Submissions of the Learned Counsel for the appellants is to bring the case within the four corners of Section 2 (dd) and 13-B of the Act of 1949, it is necessary that NRI has to return to India permanently. We are unable to agree with the interpretation of Section 2 (dd) and 13-B sought to be placed by the Learned Counsel. Return to India could not be read as return to India permanently with an intention to settle in India permanently. If we read the phrase "return to India along with the definition of the "NRI under Section 2(dd) of the Act, it is clear that the special category of landlords NRI could also be a person who has settled permanently outside India. Thus permanent resident outside India being NRI can claim ejectment.

25. When we read Section 13-B along with the definition of the NRI it is apparent that the person who is a permanently residing outside India can also claim possession under Section 13-B of the Act. All that is required under Section 13-B is that a NRI should return to India and claim the premises for his/her use or for the use of any dependent ordinarily living with him. There is no requirement that he has permanently settled in India on his return or he has returned to Indian with an intention to permanently settle in India. A NRI may require the accommodation for expansion of his business which he is carrying on in other country or requires the accommodation for his temporary stay. Under Section 13-B, a NRI can also claim ejectment of the tenant from the premises for the purposes of any other person who is dependent on him and is ordinarily living with him, which makes it clear that although a NRI resides permanently in other country, he could get the accommodation vacated for the need of his dependent who ordinarily lives with him and he intends to come to India, choosing it to be his permanent abode. We do not find any substance in the submissions made by the Learned Counsel that the words "return to India under Section 13-B of the Act denotes return to India permanently.

16. The last submission of the counsel is that the matter is pending before the Honble Supreme Court regarding the applicability of the provisions of Section 13-B of the Act to Chandigarh. The said provisions of Section 13-B of the Act having been extended to Chandigarh legally was a subject matter of challenge before a Division Bench of this Court in Civil Writ Petition No. 15378 of 2011 Asha Chawla & others Vs. Union of India and others decided on 23.8.2011 The said petition has been dismissed and the operation of the aforesaid judgment has not been stayed by the Honble Supreme Court against which the SLP is pending. In view of the binding precedent of the Division Bench and the matter having been finally decided by this Court, the said issue cannot be reopened as it has become already final for this Court.

17. Keeping in view the above facts and circumstances, no fault can be found with the well reasoned order of the Rent Controller, Chandigarh which would warrant interference in the revisional jurisdiction of this Court.

18. The tenant is given three months time to vacate the premises in question and eviction order would not be executed before three months from today. Accordingly, the present petition is dismissed.