# BALDEV SINGH BAJWA v. MONISH SAINI

- **Citation:** [2005] Supp. 4 S.C.R. 26
- **Court:** Supreme Court of India
- **Decided:** 2005-10-05
- **Case number:** Civil Appeal No. 6131 of2005
- **Bench:** K.G. Balakrishnan, P.P. Naolekar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/baldev-singh-bajwa-v-monish-saini-20790
- **Pages:** 31

## Headnote

Rent Control and Eviction
East Punjab Urban Rent Restriction Act, 1949 (Act of 1949)-Section
C 2(dd)-NRI landlord-Return to India-Who is-Held, can be persons who
have permanently settled outside India need not return permanently to IndiaNot necessary to be citizen of lnaia-Further held, persons whose parent,
grand parents, or great grand parents were born permanently reside in India
would be an NRI for the purposes of the Act.
D
Section 13-B, 18A(5)-Eviction on the ground of requirement of NRI
landlord-presumption that landlord's need is genuine and bonafide--He/d,
would not disentile the tenant fi"om proving otherwise-Further held, burden
lies on tenant to prove all necessary facts on affidavit, mere assertion not
sufficient.
E
Interpretation of Statutes-sectipn 13-B-'Required'-Meaning of-Held,
would mean bonafide requirement-Legislative intent has to be ascertained
according to plain language.
Appellant was a tenant of the disputed shop which was leased out to
him by landlord with the consent of other landlords. The Respondent was
F born in Delhi and later migrated to United Kingdom for employment and
settled there. He filed an ejectment petition invoking Section 13-8 of the
Act of 1949 claiming that the tenant-appellant was bound to surrender
immediate possession of the disputed shop to him, that he is a Non-Resident
Indian as per definition under Section 2(dd) of the Act; that he wanted to
G start business of Transport Goods Carrier in which he had acquired
sufficient experience. Appellant filed an affidavit seeking leave to contest
under Section 18-A (5) of the Act of 1949. He contended that the landlord
holds a Canadian Passport and he was living in U.K. and came to India
on tourist Visa and, therefore, has not returned to India permanently; that
H
26
J
BAL DEV SINGH BAJWA v. MON I SH SAINI
27
~
he did not require the shop as he and his family own various shops around A
the shop in dispute and had been letting out the same from time to time;
that a very big shop of the respondent-landlord and his family remained
...
vacant and possessed by them; that the respondent could not be regarded
as an NRI as there is no likelihood of his return to India for the purpose
of doing business; and that the ejectment petition under Section 13-B of B
the Act of 1949 was merely to seek ejectment from the shop in dispute
without there being bona fide need. The Controller declined the prayer of
the tenant to contest and allowed the petition filed by the respondent under
••
Section 13-B of the Act of 1949 and directed tenant to handover possession
-
of the shop in dispute to the landlord. The Controller held the landlord
to be a special category of landlord, i.e. NRI. Controller held that there c
was no need to ascertain the intention of the landlord regarding the
settlement in India as specific penal provision has been incorporated in
.:
the Act to counter that. He further held that the availability of other
buildings or accommodation could not be a ground to deny an NRI the
possession of any building of his choice. The Controller further observed D
that the tenant in his affidavit had not cared to specify the properties by
giving number, location or area of the properties owned by the landlord
-~
in the same locality. The Controller also held that dismissal of the previous
J
proceedings for ejectment would not be sufficient to non-suit the landlord.
i
Appellant preferred revision petition to the High Court of Punjab
_,
E
and Haryana. Single Judge dismissed the revision petition. It was held that
the expression 'NRI' under Section 2(dd) of the Act of 1949 had to be given
its ordinary meaning and a person of Indian origin living abroad, whether
settled permanently or temporarily, would be an NRI within the meaning
of Section 2(dd) of the Act of 1949. He also pointed out that the expression
'returns to India' used in Section 13-B of the Act of 1949 would not F
necessarily mean that he must return permanently or he must file a
petition after

## Text

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A
BALDEV SINGH BAJWA
V.
MONISH SAINI
OCTOBER 5, 2005
B
[K.G. BALAKRISHNAN AND P.P. NAOLEKAR, JJ.]
Rent Control and Eviction
East Punjab Urban Rent Restriction Act, 1949 (Act of 1949)-Section
C 2(dd)-NRI landlord-Return to India-Who is-Held, can be persons who
have permanently settled outside India need not return permanently to IndiaNot necessary to be citizen of lnaia-Further held, persons whose parent,
grand parents, or great grand parents were born permanently reside in India
would be an NRI for the purposes of the Act.
D
Section 13-B, 18A(5)-Eviction on the ground of requirement of NRI
landlord-presumption that landlord's need is genuine and bonafide--He/d,
would not disentile the tenant fi"om proving otherwise-Further held, burden
lies on tenant to prove all necessary facts on affidavit, mere assertion not
sufficient.
E
Interpretation of Statutes-sectipn 13-B-'Required'-Meaning of-Held,
would mean bonafide requirement-Legislative intent has to be ascertained
according to plain language.
Appellant was a tenant of the disputed shop which was leased out to
him by landlord with the consent of other landlords. The Respondent was
F born in Delhi and later migrated to United Kingdom for employment and
settled there. He filed an ejectment petition invoking Section 13-8 of the
Act of 1949 claiming that the tenant-appellant was bound to surrender
immediate possession of the disputed shop to him, that he is a Non-Resident
Indian as per definition under Section 2(dd) of the Act; that he wanted to
G start business of Transport Goods Carrier in which he had acquired
sufficient experience. Appellant filed an affidavit seeking leave to contest
under Section 18-A (5) of the Act of 1949. He contended that the landlord
holds a Canadian Passport and he was living in U.K. and came to India
on tourist Visa and, therefore, has not returned to India permanently; that
H
26
J
BAL DEV SINGH BAJWA v. MON I SH SAINI
27
~
he did not require the shop as he and his family own various shops around A
the shop in dispute and had been letting out the same from time to time;
that a very big shop of the respondent-landlord and his family remained
...
vacant and possessed by them; that the respondent could not be regarded
as an NRI as there is no likelihood of his return to India for the purpose
of doing business; and that the ejectment petition under Section 13-B of B
the Act of 1949 was merely to seek ejectment from the shop in dispute
without there being bona fide need. The Controller declined the prayer of
the tenant to contest and allowed the petition filed by the respondent under
••
Section 13-B of the Act of 1949 and directed tenant to handover possession
-
of the shop in dispute to the landlord. The Controller held the landlord
to be a special category of landlord, i.e. NRI. Controller held that there c
was no need to ascertain the intention of the landlord regarding the
settlement in India as specific penal provision has been incorporated in
.:
the Act to counter that. He further held that the availability of other
buildings or accommodation could not be a ground to deny an NRI the
possession of any building of his choice. The Controller further observed D
that the tenant in his affidavit had not cared to specify the properties by
giving number, location or area of the properties owned by the landlord
-~
in the same locality. The Controller also held that dismissal of the previous
J
proceedings for ejectment would not be sufficient to non-suit the landlord.
i
Appellant preferred revision petition to the High Court of Punjab
_,
E
and Haryana. Single Judge dismissed the revision petition. It was held that
the expression 'NRI' under Section 2(dd) of the Act of 1949 had to be given
its ordinary meaning and a person of Indian origin living abroad, whether
settled permanently or temporarily, would be an NRI within the meaning
of Section 2(dd) of the Act of 1949. He also pointed out that the expression
'returns to India' used in Section 13-B of the Act of 1949 would not F
necessarily mean that he must return permanently or he must file a
petition after he had returned to India. It was held that in the context of
the provisions of the Act of 1949 applicable to NRI landlord, no leave to
contest can be grated on the ground that the landlord did not require the
suit accommodation. The question of bona fide need not be gone into in
G
these proceedings.
Before this Court appellant contended that the order for eviction of
the tenant cannot be passed by the Rent Controller under Section 13-B of
the Act of 1949 unless it is found, as a fact, that the landlord requires the
.)
suit accommodation for his or her use or for the use of any one ordinarily
!..
living and dependent on him or her; that the Rent Controlling Authority H
28
SUPREME COURT REPORTS (2005] SUPP. 4 S.C.R.
A could not have rejected the application for leave to contest the ejectment
proceedings without going into the merits of the case in regard to the
requirement of the landlord of the suit accommodation and considering
it on the touchstone of bona fide requirement or genuine requirement of
the landlord; that the law does not allow the Rent Controller or the High
B Court or act mechanically on the application being moved by the landlord
. and grant him relief merely because an averment is made in the petition
of his requirement of the suit accommodation; that for according relief
under Section 13-B of the Act of 1949, it must be proved by the NRI
landlord that he has permanently returned to India or that his intentions
are to permanently return to India; that the intention to permanently settle
C down in India should be read into words "return" used in Section 13-B;
and that the specific category of NRI landlord has been created by the
Legislature with the intention to provide relief to them who are intending
to settle down in India or take up business in India only.
Respondent contended that the very purpose of providing expeditious
D relief to the NRI landlord or ejectment of tenant from their suit
accommodation with the conditions imposed by the provisions of the Act
itself, would be defeated if the question of requirement of the landlord
would be called upon to be considered as bona fide requicement,
particularly so when the expression "bona fide requirement" do not occur
in Section 13-B of the Act, that the absence of these words in Section 13E B and the other restrictions imposed on the NRI landlord is obviously to
obviate the difficulty of the landlord by enabling him to get immediate
possession of his premises which is in occupation of the tenant; that from
the very definition of the NRI in Section 2( dd) of the Act, it is not necessary
for the NRI landlord to permanently return to India either for the purpose
p of his residence or for non-residential purpose.
Dismissing the appeals, the Court
HELD: 1. 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
G 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. There are inbuilt protections in the relevant provisions, for the
H tenants that whenever the landlord would approach the court he would
.I
(
BALDEV SINGH BAJWA v. MONISH SAINI
29
approach when his need is genuine and bona fide. It is, of course, subject A
to tenants' right to rebut it but with strong and cogent evidence. 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 disentitle the tenant from proving that in fact and in law the requirement of B
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 C
of the landlord. A mere assertion on the part of the tenant would not be
sufficient to rebut the strong presumption in landlord's favour that his
requirement of occupation of the premises is real and genuine.
(43-C, D, E, F, G)
2. It is incorrect to contend that if the inquiry into the allegation of D
landlord's need regarding the bona fide and genuiness is permitted, the
legislative intent of immediate delivery of possession of the accommodation
owned by them would be defeated. Time and again this Court has laid
down that legislative intent has to be ascertained according to plain
language used in the enactment and basic rule of statutory construction E
should be preferred which advances the purpose and object of a legislation
and not which leads to anomalies, injustice or absurdities.
(43-G, H; 44-A]
K.P. Verghese v. Income Tax Officer, Ernaku/am and Anr., (1981) 4 SCC
173; Babaji Kondaji Garadv. Nasik Merchants Co-operative Bank Ltd, Nasik p
and Ors., (1984) 2 SCC 50 and Ravulu Subba Rao and Ors. v. Commnr. of
Income-tax, Madras, AIR (1956) SC 604, referred to.
3. No doubt the legislative intent in enacting Section 13-B, is to
provide for immediate possession of the accommodation owned by the NRI
but it cannot be assumed that the legislature wants the NRI landlord/ G
owner, to get the possession of the accommodation from the tenant even
if he does not require it and the need pleaded is proved to be a mere pretext
to get the accommodation vacated. Had that not been the intention of the
legislature, the phrase 'required' by the NRI landlord would not have been
used in Section 13-B. (44-E, Fl
H
30
SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.
A
4. It is absolutely apparent that even when leave would be given to
the tenant to contest, legislatures have taken care of expeditious disposal
of the petition for ejectment filed by the NRI landlord. Trial of the issue
of bonafide requirement of the landlord in the procedure prescribed would
not take much time and thus it cannot be said that the argument that the
B phrase "required" used by the legislature in Section 13-B would not mean
bona fide or genuine requirement and the Section has to be construed as
and when the allegation is made by the landlord of his need, it is to be
taken as gospel truth and the tenant's right to defend on that count is
completely extinguished and given a go-by. [45-C, D]
C
5. The High Court is not right in holding that mere prayer of the
NRI landlord that tenanted premises is required by him or his dependent
living with him entails decree of eviction on the mere allegation of
requirement and no leave to contest can be given in respect of cases which
are covered by various provisions restricting the right of the landlord to
deal with the premises taken possession of by him in pursuance of the
D decree for eviction passed by the Controller under Section 13-B of the Act
of 1949. The allegations made by the NRI landlord of his requirement shall
be presumed to be genuine and bona fide unless rebutted by the tenant by
placement of cogent and material facts and evidence in support thereof
at the state of 'leave to contest' before the Controller. Any other
E interpretation would completely whittle down and deny the tenant's right
to show and prove that landlord does not in fact, or in law require suit
premises. [45-D, E, F]
6. To be an NRI, it is sufficient that a person of an Indian origin
establishes that he was permanently or temporarily settle outside India
F for his business or on account of his employment, or for any other purpose
which would indicate his inter.tion to stay outside India for an uncertain
period. Therefore, any perso11 who has gone out of India and temporarily
settled there for the purposes of undertaking certain course or degree of
university would not be an 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
G origin. The phrase "Indian Origin" has not been defined in the Act of
1949. The dictionary and in ordinary parlance phrase "origin" refers to
person.; parentage or ancestry. The person whose parent, grand-parents,
or great-grant parents were born in India and permanently reside in India
would be an NRI for the purposes of the Act of 1949. It is not necessary
H that the person should be a citizen of India and shifted to the foreign
'
BALDEV SINGH BAJWA'" MONISH SAINI
31
country or that because he holds foreign passport he would not be NRI. A
146-C, D, E]
7. Return to India could not be read as return to India permanently
with an intention to settle in India permanently. 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 B
person who has settled permanently outside India. Thus permanent
resident outside India being NRI can claim ejectment. 146-F, G]
8. 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 C
permanently settled in India on his return or he has returned to India with
an intention to permanently settle in India. An 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, an NRI can also claim ejectment of the tenant from D
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
an NRI resides permanently in other country, he could get the
accommodation vacated for the need of his dependant who ordinarily lives
with him and he intends to come to India, choosing it to be his permanent
abode. There is no substance in the submissions made by the appellant E
that the words "return to India" under Section 13-B of the Act denotes
return to India permanently. 146-H; 47-A, B, C]
9. A Non-resident Indian landlord is required to prove that:- (i) he
is an NRI; (ii) that he has return to India permanently or for the F
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 i>efore the institution of the proceedings for ejectment before
the Controller. The tenant's affidavit asking for leave to contest the NRI
landlord's application should confine to the grounds which NRI landlord
is required to prove, to get ejectment under Section 13-B of the Act. The G
Controller's power to give leave to contest the application filed under
Section 13-B circumscribe to the grounds and inquiry to the aspect
specified in 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 H
32
SUPREME COURT REPORTS [2-005] SUPP. 4 S.C.R.
A the Controller. (47-D, E, Fl
10. The High Court was right in holding that the landlord is not
required to prove that he would permanently rdurn to India. From the
available material on record it is apparent that the tenant had not placed
before the Controller cogent material in his affidavit or along with the
B affidavit to prove that the landlord is in possession of reasonable suitable
accommodation as owner, to indicate that landlord's need was not genuine
and bona fide. In this circumstance, there is no infirmity in the order passed
neither by the Controller refusing to grant leave to contest nor by the High
Court dismissing the revision petition of the appellant. (48-A, B]
c
D
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6131 of2005.
From the Judgment and Order dated 29.5.:!003 of the Punjab and
Haryana High Court in C.R. No. 5698 of 2002.
WITH
C.A. Nos. 6133, 6136, 6137, 6140, 6138, 6141, 6139, 6134-35 and
6142 of 2005.
Ashok K. Panda, Ms. Shikha Roy, Sanjeev K.Fabbi, for S.K. Sabharwal,
Anant Vijay Palli, Mrs. Rekha Palli, Mrs. Shubra Singh, Ms. Indu Malhotra,
E Ms. Kavita Wadia, Ms. Shirin Khajuria, Ms. Liz \1athew, Ejaz Maqbool,
Sumeet Mahajan, Abhimeet Sinha, Vikash Singh, Ms. Saloni Sinha, Ms.
Minakshi Nah, Vinod Shukla, Ms. S. Janani, Nid·!sh Gupta, Jagjit Singh
Chhabra, Rana S. Biswas, San jay Sen, Sitesh Mukhe1 jee, Mrs. Sarla Chandra,
Pardeep Gupta, Naresh Prabhakar, K.K. Mohan, H.K. Puri, R.K. Talwar,
Amit Talwar, for S.L. Aneja, Vineet Bhagat, for Debasis Misra, Amit Rawat,
F Rajesh Sharma and Ms. Shalu Shanna for the appe iring parties.
The Judgment of the Court was delivered by
P.P. NAOLEKAR. J. Leave granted in all the Special Leave Petitions.
In all the above appeals, a common question of law arises for
G detennination and therefore they are heard together and are decided by the
common judgment.
All these appeals have been preferred by the tenants against whom a .
decree for eviction from their te11anted premises were passed by the Controller
and confinned by the Punjab and Haryana High Court. In three appeals,
f
H namely, S.L.P. © No. 1762212003-Mohinder Sing11 v. Git Singh, SLP ©
J
I
' .
BALDEVSINGH BAJWA v. MONISH SAINI [P.P. NAOLEKAR, J.)
33
1954012003-Laxmi Kant v. Surjit Singh Channa and SLP © 4566/2004 A
Shangara Singh v. Malkiat Singh leave to contest were granted by the
Controllers and after trial, decrees for ejectment were passed against the
tenants. In other appeals, leave to contest the landlords' applications' for
ejectment were rejected at the initial stage by the Controllers.
Certain provisions of The East Punjab Urban Rent Restriction Act, B
1949 (hereinafter to be referred to as 'The Act of I 949') which have been
inserted by Punjab Act No.9 of 200 I dated 31.5.2001 have been elaborately
discussed by the High Court in the matter of Baldev Singh Bajwa v. Monish
Saini, and therefore we will refer to the facts of that case for consideration
and interpretation of the Sections inserted in the Act of 1949 by Act No. 9 C
of 200 I and shall elaborate and discuss and factual aspects necessary, in
regard to the other appeals in the latter part of the Judgment.
The facts, in brief, in the matter of SLP © 1786412003-Baldev Singh
Bajwa v. Monish Saini are:
Appellant in this case is a tenant of a disputed shop which was leased
out to him vide Rent Note dated 14.03.1985 by Monish Saini, landlord with
D
the consent of other landlords. The landlord was born in Delhi and later
migrated to United Kingdom for employment and settled there. He holds a
Canadian Passport and is doing service in U.K. The landlord filed an ejectment
petition invoking Section 13-B of the Act of 1949 by making averrnents that E
the tenant-appellant was bound to surrender immediate possession of the
disputed shop to him. He had claimed the status of Non Resident Indian
(hereinafter to be referred to as 'NRI') as per definition under Section 2 (dd)
of the Act. Ejectment was sought on the allegation that he wanted to start
business of Transport and Goods Carrier in which he had acquired sufficient F
experience. On notice of application for eviction, the appellant-tenant filed
an affidavit seeking leave to contest, as required under Section 18-A (5) of
the Act of 1949. The tenant pointed out that the landlord holds a Canadian
Passport and he was living in U.K. and came to India on Tourist Visa and,
therefore, has not returned to India permanently. It was also pleaded that
respondent did not require the shop as he and his family own various shops G
around the shop in dispute and had been letting out the same from time to
time. The affidavit also mentioned that one very big shop of the respondentlandlord and his family remained vacant and possessed by them. Previously
- also the ejectment of the premises on other grounds was dismissed. That the
respondent could not be regarded as a NRI as there is no likelihood of his H
34
SUPREME COURT REPC RTS [2005) SUPP. 4 S.C.R.
A return to India for the purpose of doing business. '.'hat the ejectment petition
by invoking Section 13-B of the Act of 1949 was merely to seek ejectment
from the shop in dispute without there being bona fide need. The Controller
declined the prayer of the tenant to contest and all,1wed the petition filed by
the respondent under Section 13-B of the Act of E'49 and directed tenant to
handover possession of the. shop in dispute to the landlord. The Controller
B held the landlord to be a special category of landl Drd, i.e., NRI. Controller
held that there was no need to ascertain the intention of the landlord regarding
his settlement in India as specific penal provision 'ias been incorporated in
the Act to counter that. He further held that the availability of other buildings
or accommodation could not be a ground to deny a NRI the possession of
C any building of his choice. The Controller further observed that the tenant in
his affidavit had not cared to specify the properties by giving number, location
or area of the properties owned by the landlord in the same locality. The
Controller also held that dismissal of the previous proceedings for ejectment
would not be sufficient to non-suit the landlord.
D
The tenant preferred revision petition to the High Court of Punjab and
Haryana. The learned Single Judge vide Judgment and Order dated 29.5.2003
dismissed the revision petition. It was held that the ~xpression 'NRI' under
Section 2( dd) of the Act of 1949 had to be given it~ ordinary meaning and
a person of Indian origin living abroad, whether ;ettled permanently or
E temporarily, would be a NRI within the meaning of Section 2(dd) of the Act
of 1949. The learned Single Judge also pointed out that the expression 'returns
to India' used in Section 13-B of the Act of 1949 wou.d not necessarily mean
that he must return permanently or he must file a petition after he had returned
to India. The learned Single Judge held that in the co atext of the provisions
of the Act of 1.949 applicable to NRI landlord, no leave to context can be
F granted on the ground that the landlord did not require the suit accommodation.
The question of bona fide need not be gone into in th( se proceedings. To be
in the words of the High Court: "Therefore, no le<.ve to contest can be
granted in respect of cases which are covered by var ous penal provisions.
Any other approach would render those provisions as a dead letter. For
G example, the question 'need' does not require to be gone into in view of
corresponding provisions to the effect that the NRI owner must occupy the
building after eviction for a continuous period of three months and must not
let out the whole or part of it (except to the evicted tenant) to any one for
a period of five years as provided by sub-section (3) o' Section 13-B of the
Act". The High Court confirmed the order passed by the Controller,
H
BALDEV SINGH BAJWA v. MONISH SAINI [P.P. NAOLEKAR, J.]
35
Hoshiarpur.
In S.L.P. (Civil) 17622 of 2003-Mohinder Singh v. Git Singh, the
High Court relied upon the decision of Punjab and Haryana High Court in
Civil Revision No. 5586 of2001-Prem Kumar Patel v. lnder Singh Grewal
and Ors. in which it was held that:
(i)
that the landlord is a Non-resident Indian;
(ii) that the landlord has returned to India; and
(iii) that the landlord should be the owner of the property for the last
five years.
Once these three ingredients are proved, a mere prayer of the landlord
that the tenanted premises is required for his or her own use, or for the use
of any one ordinarily living with the dependent on him or her, entitles him/
her to get the immediate possession of the property.
A
B
c
Learned senior counsel for the appellant have vehemently urged that D
the order for eviction of the tenant cannot be passed by the Rent Controller
under Section 13-B of the Act of 1949 unless it is found, as a fact, that the
landlord requires the suit accommodation for his or her use or for the use of
any one ordinarily living and dependent on him or her. The Rent Controlling
Authority could not have rejected the application for leave to contest the E
ejectment proceedings without going into the merits of the case in regard to.
the requirement of the landlord of the suit accommodation and considering
it on the touchstone of bona fide requirement or genuine requirement of the
landlord. It is urged that the law does not allow the Rent Controller or the
High Court to act mechanically on the application being moved by the landlord
and grant him relief merely because an averment is made in the petition of F
his requirement of the suit accommodation. On the other hand, it is urged by
the learned counsel for the respondent-landlord that the very purpose of
providing expeditious relief to the NRI landlord or ejectment of tenant from
their suit accommodation with the conditions imposed by the provisions of
the Act itself, would be defeated if the question of requirement of the landlord G
would be called upon to be considered as bona fide requirement, particularly
so when the expression "bona fide requirement" do not occur in Section 13B of the Act. It is contended that the absence of these words in Section 13B and the other restrictions imposed on the NRI landlord is obviously to
obviate the difficulty of the landlord by enabling him to get immediate
possession of his premises which is in occupation of the tenant.
H
36
SUPREME COURT REPORTS (2005] SUPP. 4 S.C.R.
A
East Punjab Urban Rent Restricting (Amendment) Ordinance 2000
(Ordinance No. I 0 of 2000) was promulgated and published in the Punjab
Government Gazette (Extraordinary), vide Notification No. 33/Leg/2000 dated
27th December 2000. Later on the Ordinance was made Act No. 9 of 2001.
The relevant provisions with which we are concerned .n the present appeals,
B on the submissions made by the learned counsel appearing for respective
parties are Section 13-B, and 19(2-B) which are re-produced below along
with the Statement of Object and Reasons of introducticns ofnew provisions:-
c
D
E
F
G
H
"The State Government had been receiving representations from
various N.R.l.s individuals and through their as;ociations highlighting
the plight of Indian residents returning to India i fter long years abroad.
It was represented that the NRis having spent ong years of their life
abroad did not find conditions congenial in their own country on
their return either to settle down or to take up any business. On
account of rigid legal provisions of existing Re 1t laws, the NR!s were
unable to recover possession of their own residential building from
the tenants. Government having considered thf situation had decided
that the existing Rent Legislation viz. Eas1 Punjab Urban Rent
Restriction Act 1949 should be amended to pr<ivide relief to NR!s to
enable them to recover possession of a residenti< I or scheduled building
and/or one non residential building for their own use."
Section 13-B: Right to recover immediate possession of residential
building or scheduled building and/or non-residential building to accrue
to non~resident Indian-(!) where an owner is a Non-Resident Indian
and returns to India and the residential buildin~. or scheduled building
and/or-non-residential building, as the case may be, let out by him or
her, is required for his or her use, or for the us<: of any one ordinarily
living with the dependent on him or her, he or she, may apply to the
Controller for immediate possession of such building or buildings, as
the case may be:
Provided that a right to apply in respect of such a building under
this Section, shall be available only after a period of five years from
the date of becoming the owner of such a building and shall be
available only once during the life time of st ch an owner.
(2) Where the owner referred to in sub-section (I) has let out more
than one residential building or scheduled building and/or nonresidential building, it shall be open to him or her to make an
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BALDEV SINGH BAJWA v. MONISH SAINI [P.P. NAOLEKAR.J.]
37
application under that sub-section in respect of only one residential A
building or one scheduled building and/or one non-residential building,
each chosen by him or her.
(3) Where an owner recovers possession of a building under this
section, he or she shall not transfer it through sale or any other means
or let it out before the expiry of a period of five years from the date B
of taking possession of the said building, failing which, the evicted
tenant may apply to the Controller for an order directing that he shall
be restored the possession of the said building and the Controller
shall make an order accordingly."
Section 19 (2-8) The owner, who is a Non-resident Indian and who C
having evicted a tenant from a residential building or a scheduled
building and/or non-residential building in pursuance of an order
made under Section 13-8, does not occupy it for a continuous period
of three months from the date of such eviction, or lets out the whole
or any part of such building from which the tenant was evicted to any D
person, other than the tenant in contravention of the provisions of
sub-section (3) of Section 13-8, shall be punishable with imprisonment
for a term, which may extend to six months or with fine which may
be extended to one thousand rupees or both.
The amendment introduced in the Act created a special class of NRl E
landlords and repose special right to them to recover immediate possession
from the tenants occupying their premises provided, such premises were
required by them. Section 13-8 intends to provide immediate possession of
the accommodation to the NRl landlord which is in possession of the tenant
if the landlord requires the same for his or her use or for the use of any one
ordinarily living with him/her and is dependent on him or her. Sub-section F
(1) of Section 13-B postulates that the NRI-landlord should be owner of the
building from which he has asked ejectment of the tenant. He should require
the same for his or her use or for the use of anyone ordinarily living with
him/her and is dependent on him or her. He should be the owner of that
building for five years before he applied to the Controller for possession of G
such building. The right under Section 13-8 of immediate possession could
be availed of only once during the life time of such an owner/NRI landlord.
Sub-section (2) of Section 13-B gives a choice to the NRI-landlord to select
one among several others residential building or schedule building and/or
non-residential building for the purpose of eviction of the tenant from that
H
38
SUPREME COURT REPORTS (2005] SUPP. 4 S.C.R.
A premises. Residential building is defined in Section 2(g) to mean a building
which is not a non-residenti.al building. Scheduled building is defined in
Section 2(h) of the Act which means a residential building being used by a
person engaged in one or more of the professions, namely, lawyers, architects,
dentists, engineers, veterinary surgeons, medical practitioners including
practitioners of indigenous systems of medicine and who occupies the same
B party for his business and partly for his residence. Sub-section (3) of Section
13-B puts a restriction on the landlord to deal with building of which he has
taken possession by virtue of the order passed under Section l 3-B of the Act
of 1949. Under this Section the owner who recovers the possession of the
building·by virtue of the order passed under Section 13-B shall neither transfer
C it either by sale or by any other mode nor he shall let it out for the period
of five years from the date he took possession of the building. In case there
is a breach on the part of the owner who took possession of the building, of
any of the conditions, the tenant who had been evicted would be entitled to
apply to the Controller for an order directing that the tenant be restored back
D
possession of that building and on such a petition being moved, the Controller
would pass an appropriate order. Apart from the restriction which is imposed
by sub-section (3) of Section 13-B on the landlord's right to deal with the
building of which he took possession under the provisions of Section 13-8,
a further restriction has been imposed on the landlord under Section 19 (28) of the Act of 1949. Section 19(2-8) contemplates that when the order for
E possession is being passed in favour of the owner-landlord under Section 13B, he is required to occupy the premises continuously for the period of three
months from the date of eviction of the tenant. He is prohibited from letting
out the whole or any part of that building from which the tenant was evicted
to any other person except the tenant who had been evicted by virtue of the
order passed under Section 13-B. In contravention of these restrictions, landlord
F is liable for a penal action and can be imposed punishment of imprisonment
for a term which may extend to six months or with fine which may extend
rto rupees one thousand or with both.
The application of the NRJ-landlord for eviction of a tenant on the
G ground of his requirement under Section 13-B is to be disposed of in the
manner indicated in Section 18-A of the Act. The procedure and provisions
show that when ar. application is made to the Rent Controller and the summons
issued on the tenant, the tenant cannot contest that application of the landlord
for his eviction unless he obtains leave to contest the application under subsection (5) of Section 18-A of the Act of 1949. Sub-s. (4), (5), (6) and (8)
H of Section 18-A are re-produced below:
..
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BALDEV SINGH BAJWA v. MONISH SAINI [P.P. NAOLEKAR, J.]
39
Sub-s(4): The tenant on whom the service of summons has been A
declared to have been validly made under sub-section (3), shall have
no right to contest the prayer for eviction from the residential building
or scheduled building and/or non-residential building, as the case
may be, unless he files an affidavit stating the grounds on which he
seeks to contest the application for eviction and obtains leave from B
the Controller as hereinafter provided, and in default of his appearance
in pursuance of the summons or his obtaining such leave;the statement
made by the specified landlord or, as the case may be, the widow,
widower, child, grand child or the widowed daughter-in-law of such
specified landlord or the owner who is a non-resident Indian, in the
application for eviction shall be deemed to be admitted by the tenant C
and the applicant shall be entitled to an order for eviction of the
tenant.
Sub-s(5): The Controller may give to the tenant leave to contest the
application if the affidavit filed by the tenant discloses such facts as
would disentitle the specified landlord or, as the case may be, the D
widow, widower, child, grand-child or widowed daughter-in-law of
such specified landlord or the owner, who is a non-resident Indian
from obtaining an order for the recovery of possession of the residential
building or scheduled building and/or non-residential building, as the
case may be, under (Section I3-A or Section 13-B).
E
Sub-s ( 6): Where leave is granted to the tenant to contest the
application, the Controller shall commence the hearing on a date not
later than one month from the date of which leave granted to the
tenant to contest and shall hear the application from day-to-day till
the hearing is concluded and application decided.
F
Sub-s (8): No appeal or second appeal shall lie against an order for
the recovery of possession of any residential building or scheduled
building and/or non-residential building as the case may be, made by
the Controller in accordance with the procedure specified in this
Section:
G
Provided that the High Court may, for the purpose of satisfying itself
that an order made by the Controller under this section is accordance
to law, call for the records of the case and pass such order in respect
thereto as it thinks fit
H
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SUPREME COURT REPORTS [2005) SUPP. 4 S.C.R.
A These provisions indicate that in order to obtain leave to contest the application
•
..
of the landlord, the tenant has to file an affidavit taking the grounds on which
he wants to contest that application. If the affidavit filed by the tenant discloses
such facts as would disentitle the NRI-landlord from obtaining an order for
the recovery of immediate possession, the Controller would grant leave to the
B
tenant to contest landlord's application for eviction. Once the leave is granted,
the application is required to be disposed of as per the procedure applicable
to the Court of Small Causes. The Controller is required to commence the
hearing within one month from the date on which the leave is granted to the
tenant to contest. The application shall be heard day-to-day till hearing is
concluded and application decided. The order to direct recovery of possession
c of the suit accommodation made by the Controller is not subject to appeal or
the second appeal. However, the High Court may call for the record of the
case to satisfy itself that the order passed by the Controller is in accordance
with law and may pass such order as it th inks fit.
The above provisions makes it explicitly clear that right to eject the
D tenant, under Section 13-B, is available to that landlord only who has a
particular legal status or character namely, that he is non-resident Indian
landlord, he is owner of the suit building for five years before he availed of
that right. The landlord has also to prove his requirement in respect of that
building.
E
We may now take up th1: contentious issue relating to the standard of
proof required by the NRI landlord to prove his requirement of the
accommodation from which the ejectment is asked for in the light of the
relevant provisions imposing conditions on his enjoyment of the premises,
possession of which, to be obtained under Section 13-B of the Act of 1949.
F
The phrase "bona fide requirement" or "bonafide need" or "required
reasonably in good faith" or "required", occur in almost all Rent Control
Acts with the underline legislative intent which has been considered and
demonstrated innumerable times by various High Courts as also by this Court,
some of which we would like to refer to. In Ram Dass v. lshwar Chander,
G [1988] 3 sec 131, it is said that the bonajide need should be genuine and
honest, conceived in good faith. It was also indicated that the landlord's
desire for possession, however honest it might otherwise be, has inevitably,
a subjective element in it, and that desire, to become a 'requirement' in law
must have the objective element of a 'need' which can be decided only by
H taking all the relevant circumstances into consideration so that the protection
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BALDEV SINGH BAJWA v. MONISH SAINI [P.P. NAOLEKAR. J.]
41
afforded to a tenant is not rendered illusory or whittled down.
A
In Bega Begum and Ors. v. Abdul Ahad Khan (dead) by LRs. And Ors.,
[1979] 1 SCC 273 it was held by this Court that the words "reasonable
requirement" undoubtedly postulate that there must be an element of need as
opposed to a mere desire or wish. The distinction between desire and need
should doubtless be kept in mind but not so to make even the genuine need B
as nothing but a desire.
In Surjit Singh Kalra v. Union of India and Anr., [1991] 2 SCC 87, a
Three Judge Bench of this Court has held as under:
"The tenant of course is entitled to raise all relevant contentions as c
against the claim of the classified landlords.