- (1.) This order shall dispose of the above said 42 cases. CR-3509-2014 This petition has been filed by the tenant against the order declining his request to grant leave to defend and allowing eviction passed in a petition filed on 11.04.2011.
(2.) The present case was listed with many other cases wherein different issues relating to the relationship of Non-Resident Indians (NRIs)- landlords and tenants under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 (for short 'the Act of 1949') and the Punjab Rent Act, 1995 (for short 'the 1995 Act') were raised. The petitions have been filed to challenge orders refusing leave to defend and also ordering eviction. One argument which is common to all the petitions and is infact the main argument is with regard to the very concept of 'Non-Resident Indians' (NRIs). All the cases were heard over the last about one month so that all the arguments on the main issue could be heard and a comprehensive order passed. For convenience of understanding reference has been made to the parties as tenants and landlords/landlady instead of petitioners and respondents. At the very outset, it would be appropriate to quote the relevant provisions. Sections 2 (dd) and 13-B of the Act of 1949 are as under:- Section 2 (dd) "Non-resident Indian" means a person of Indian origin, who is either permanently or temporarily settled outside India in either case - (a) for or on taking up employment outside India; or (b) for carrying on a business or vocation outside India; or (c) for any other purpose, in such circumstances, as would indicate his intention to stay outside India for a uncertain period; Section 13-B 13-B Right to recover immediate possession of residential building or scheduled building and/or nonresidential building to accrue to Non-resident Indian.-- (1) Where an owner is a Non-Resident Indian and returns to India and the residential building 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 use of any one ordinarily living with and 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 such an owner. (2) Where the owner referred to in sub-section (1), has let out more than one residential building or scheduled building and/or non-residential building, it shall be open to him or her to make an application under that sub-section in respect of only one residential 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 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." Likewise Section 24 (3) of the 1995 Act is as follows :- Section 24 (3) "24 (3). Where an owner is a non-resident Indian and returns to India for permanent residence, he or she may apply to the Rent Authority for recovery of immediate possession of residential or/and non-residential premises let out by him or her on or prior to the commencement of this Act, which are required for his or her use, or for the use of any one ordinarily living with and dependent on him or her."
(3.) The first authoritative pronouncement on this issue was Sohan Lal Vs. Swaran Kaur, 2003 2 RCR(Rent) 407 . In this case, M.M.Kumar. J, as his Lordship then was, held that the expression NonResident Indian used in Section 2(dd) of the Act of 1949 had been clearly defined and there was no ambiguity necessitating any external aid for interpreting the same and further held that therefore this expression could not be confined to only those who were holding Indian passports but would include foreign citizens and even those who were born abroad. The learned Judge further held that the expression 'returns to India' does not necessarily mean permanent return. This matter was challenged in the Hon'ble Supreme Court by the tenants and the Hon'ble Supreme Court in Baldev Singh Bajwa Vs. Monish Saini, 2005 2 RCR(Rent) 470 , held that the amendment introduced in the Act of 1949 created a special class of NRIlandlords and reposed special right to them to recover immediate possession from the tenants occupying their premises provided such premises were required by them. Their Lordships further held that the Rent Controller's power to decide the application for leave to defend would be restricted only to such facts as would disentitle the landlord from obtaining order of recovery of possession. It was further held that as regards the issue of bonafide requirement of the landlord, the restrictions and conditions in the Act of 1949 inculcate a strong presumption that the need of the landlord is genuine and the Court was bound to presume that the landlord's requirement is genuine and bonafide but this would not dis-entitle the tenant from proving that in fact under law the requirement is not genuine; however a heavy burden would lie on the tenant to prove this fact and a mere assertion on his part would not be sufficient to rebut the strong presumption in the landlord's favour. As regards the definition, the Hon'ble Supreme Court held that to be an NRI it would be sufficient that he was a person of Indian origin, permanently or temporarily staying outside India on account of his employment or for any other purpose which would indicate his intention to stay outside India for uncertain period. By way of illustration it was clarified that a person who had gone outside India for the purpose of undertaking any course could not be an NRI and that there is no requirement under the Act of 1949 that 'return to India' would mean a permanent return to India with an intention to settle in India permanently.;