Mohd. Asif Naseer v. West Watch Company Through Its Proprietor
VINEET SARAN, J.
1. Leave granted.
2. This is an appeal filed by the landlord challenging the Judgment
and Order of the High Court passed in Rent Control Wri t Petition
No.3457 of 2016,whereby the release application filed by the appellant
has been rejected, and the Orders passed by the Prescribed Authority
and the Appellate Authority, allowing the release applicat ion of the
appellant-landlord, have been set aside.
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3. Brief facts of this case, relevant for the purpose of the present
appeal, are that the appellant filed an application under Section 21(1)(a)
of the U.P. Urban Building (Regulation of Letting, Rent and Eviction)
Act, 1972 (hereinafter referred to as the ‘Rent Control Act’) for release
of Shop no.64 situated on the ground floor of the Building No.31/72,
Mahatma Gandhi Marg, Hazratganj, Lucknow, the size of which is given
as 42 square feet. The case of the appellant was that he had purchased
the shop in question for his personal use, vide registered Sal e Deed
dated 29.10.2004. The respondent was a tenant of the shop in question
on a monthly rent of Rs.15 and doing business of repair and sale of
watches.After purchase of the said shop, the appellant reque sted the
respondent to vacate the shop, to which the respondent initially agreed
but later refused to vacate. The appellant, thus, filed the release
application.
The case of the appellant was that the respondent (tena nt) is a
rich person who owns two buildings and the family of the resp ondent
has other commercial accommodations in their possession in the mai n
market of Hazratganj, Khurram Nagar and I.T. Crossing, Nirala Nagar
in the city of Lucknow. Another application of the appellant for release
of the adjoining Shop no.63 (having an area of 190 square feet) was
also pending. The case of the appellant further was that he was a
young man and wanted to start his own business of repair and sa le of
watches in the shop in question after its renovation, as at present he
was assisting his father in the business of sale and repair of watches,
and has vast experience of such business and that this shop in question
would be suitable for his business. His case further was that his family
consists of himself, his wife and one minor daughter and that he would
be ready to pay two years rent as compensation to the resp ondent for
vacating the said shop and that the need of the appellant was genuine,
bona fide , pressing and urgent. He had further undertaken not to let
out the shop in question in future and usethe same for his pers onal
business.
4. The respondent contested the release application and filed his
written statement in which he admitted that the appel lant was the
landlord of the shop in question. It was stated that the fathe r of the
respondent was tenant of the shop in question since 1951 and was
carrying on the business of repair and sale of watches and that the
respondent had been helping his father in business since 1960. It was
stated that the income from the said shop was his on ly source of
livelihood and that in spite of his best efforts, he could not get another
MOHD. ASIF NASEER v. WEST WATCH COMPANY
THROUGH ITS PROPRIETOR [VINEET SARAN, J.]
shop in the locality of Hazratganj, even though, he had appl ied for
allotment of another shop to Rent Control and Evict ion Officer,
Lucknow. The respondent also stated that if the appellant was in genuine
need, he would have purchased a vacant shop and not an old tenanted
shop. It was also stated that the appellant never asked th e respondent
to vacate the disputed shop and that no notice with regard to th e same
was ever given to the respondent. The case of the respondent was that
the appellant was in property business and his intention was to ge t the
shop vacated, and after demolishing the existing bu ilding, raise
multi-storey building. The respondent further stated that he was in need
of the shop in question and that his need was greater than that of the
appellant and that even though the son of the respondent may be having
another tenanted shop, but that would make no difference.
5. By its Order dated 04.10.2011, the Prescribed Au thority
allowed the release application, after holding that the appellant had given
six months prior notice to the respondent, as was required under t he
Proviso of Section 21(1)(a) of the Rent Control Act and the release
application was filed after the expiry of three year s of Sale Deed
obtained by the appellant. The Prescribed Authority also hel d that the
need of the appellant was bona fide and pressing and at present he
had no shop in Lucknow and that there was no evidence on record t o
show that the respondent (tenant) had made any effo rt to search
alternate accommodation. On the aforesaid grounds, and considering
the comparative hardship, the Prescribed Authority allowed the release
application.
6. The appeal filed by the respondent was dismissed by the
Additional District Judge (Appellate Authority) vid e Order dated
05.02.2016, whereby it was held that the relationship of landlord a nd
tenant between the appellant and respondent was proved and also that
the requisite notice of six months was given to the respondent. It further
re-affirmed the view of the Prescribed Authority that the ne ed of the
appellant was bona fide and pressing and, thus, dismissed the appeal.
7. Aggrieved by the aforesaid Orders, the respondent filed Rent
Control Writ Petition No.3457 of 2016, which has been allowed by the
High Court, primarily after holding that no notice for eviction was given
to the respondent, which was mandatory and there co uld be
nopresumption of service of notice sent “under certificate of postin g”.
The High Court also presumed that the intention of the appel lant was
to purchase an old shop and after renovation or raising mu lti-storey
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building, sell it for profit and not to use it for his own business. While
allowing the writ petition, the High Court held tha t “Release
application is dismissed as not maintainable, for want of six m onths
prior notice as required under Section (21)(1)(a) P roviso of the
Act” .
8. Aggrieved by the said judgment, this appeal has been filed by
way of thisSpecial Leave Petition.
9. We have heard the learned counsel for the parties at lengt h
and have perused the records.
10. From the perusal of the judgment of the High Court, it is clear
that the primary reason for allowing the Writ Petition was t hat there
could be no presumption of service of notice as required under the
Proviso to Section 21(1)(a) of the Rent Control Act. The find ing of
the fact with regard to comparative hardship of the landlord being higher
than that of the tenant, as recorded by the Prescribed Authorit y and
the Appellate Authority, has not been disturbed by the High Court, except
for a mere mention in passing in the later part of the j udgment, which
cannot be considered to have upset the finding of fact with re gard to
comparative hardship, as recorded by the Authorities.
11. The case of the respondent (tenant) is that there was no
notice issued by the appellant (landlord) to the respondent (tenant), which
was mandatorily required under the aforesaid Section 21(1)(a) of th e
Rent Control Act. The relevant Section 21(1)(a) of the Rent Cont rol
Act is extracted as under:
“Section 21. Proceedings for release of building un der
occupation of tenant. –(1) The prescribed authority may, on
an application of the landlord in that behalf, order the eviction of
a tenant from the building under tenancy or any specified par t
thereof if it is satisfied that any of the following grounds exi sts
namely—
(a) That the building is bona fide required either in it s
existing form or after demolition and new
construction by the landlord for occupation by
himself or any member of his family, or any person
for whose benefit it is held by him, either for
residential purposes or for purposes of any
profession, trade or calling, or where the landlord
is the trustee of a public charitable trust, for th e
objects of the trust;
MOHD. ASIF NASEER v. WEST WATCH COMPANY
THROUGH ITS PROPRIETOR [VINEET SARAN, J.]
(b) …………………….
Provided that where the building was in the
occupation of a tenant since before its purchase by
the landlord, such purchase being made after the
commencement of this Act, no application shall be
entertained on the grounds, mentioned in clause (a),
unless a period of three years has elapsed since the
date of such purchase and the landlord has given a
notice in that behalf to the tenant not less than six
months before such application, and such notice may
be given even before the expiration of the aforesaid
period of three years.
(emphasis supplied )
12. From the perusal of the aforesaid Proviso to the said Section,
it is clear that no particular mode of giving notice by the landlord to the
tenant has been provided for, meaning thereby that the same c ould be
given orally or in writing; and if in writing, it is not necess ary that it
should be sentonly by registered post. What is required is t hat “the
landlord has given a notice in that behalf to the te nant” .
13. The Prescribed Authority, while recording the finding that the
tenant was given notice for eviction,has considered the various facts
leading to the recording of such finding. It is not that the P rescribed
Authority has drawn a presumption of the notice having been served
merely because it was said to have been sent under certificate of
posting. The Prescribed Authority has held that the “respondent
(tenant) while admitting the applicant as landlord had filed the
application under Section 30(1) to deposit the rent in the Court”.
The Prescribed Authority recorded that it was after the notice had been
sent in the year 2006 (on 25.07.2006)that an application under Section
30(1) of the Rent Control Act was filed by the respondent (tenant ) in
the year 2007 for deposit of rent in Court, after which, the s uit was
filed by the appellant in the year 2008. The said suit was a dmittedly
after three years of the Sale Deed, which was executed on 29.10.2004.
It was in this factual background that the Prescribed Authority held that
the notice of six months required under Section 21 of the Rent Control
Act was duly given by the landlord to the tenant before fi ling of the
suit in the year 2008.The respondent-tenant had admitted the appellant
as his landlord and filed an application to deposit rent in C ourt in the
year 2007. It is not disputed that photocopy of the receipt dated
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25.07.2006 of having sent the notice under certificate of posting was
filed by the appellant (landlord) along with an affida vit before the
Prescribed Authority; and the application of the respondent (tenant) for
filing the carbon copy (instead of photocopy) of the recei pt of under
certificate of posting, was rejected by the Prescribed Authority on
21.04.2011, which Order had become final, as the same had not been
challenged by the tenant and, thus, there was no occ asion for the
appellant to file the carbon copy of the receipt of under c ertificate of
posting.
14. Section 34 of the Rent Control Act provides for the Prescribed
Authority to receive evidence on affidavit. The relevant sub-section (1)
of Section 34 of the Rent Control Act is extracted as under:
“Section 34. Powers of various authorities and proce dure
to be followed by them. – (1) The District Magistrate, the
prescribed authority or any appellate or revising a uthority
shall for the purposes of holding any inquiry or hearing a ny
appeal or revision under this Act have the same pow ers as
are vested in the Civil Court under the Code of Civ il
Procedure, 1908 (Act No. V of 1908), when trying a suit, in
respect of the following matters namely,—
(a) summoning and enforcing the attendance of any
person and examining him on oath;
(b) receiving evidence on affidavits;
(c) inspecting a building or its locality, or issuin g
commission for the examination of witnesses or
documents or local investigation;
(d) requiring the discovery and production of
documents;
(e) awarding, subject to any rules made in that behalf ,
costs or special costs to any parts or requiring
security for costs from any party;
(f) recording a lawful agreement, compromise or
satisfaction and making an order in accordance
therewith;
(g) any other matter which may be prescribed.
2 to 8 ………………………
(emphasis supplied )
MOHD. ASIF NASEER v. WEST WATCH COMPANY
THROUGH ITS PROPRIETOR [VINEET SARAN, J.]
15. In view of the aforesaid, it is clear that evidence a dduced
on affidavit was admissible before the Prescribed Authority.In the facts
of the present case, when the appellant (landlord) had filed the
photocopy of the receipt of having sent the notice under cert ificate of
posting, along with an affidavit, which was accepted by the Prescribed
Authority, and coupled with the attending circumstances as noticed by
the Prescribed Authority, a specific finding of fact was recorded that
due notice, as required under Section 21 of the Rent Control Act, had
been sent by the appellant (landlord) and received by the re spondent
(tenant), which is fully justified in law. Such finding o f fact was duly
affirmed by the Appellate Authority. In our view, such fi nding of fact
(which was not merely a presumption of service based solely on notice
having been sent under postal certificate), having been arri ved at on
the basis of valid reasons in the facts of the case, ought n ot to have
been upset by the Writ Court.
16. Learned Counsel for the respondent-tenant has, in support
of his submissions, relied on the decision of this Court inthe c ase of
Ram Suresh Singh vs. Prabhat Singh (2009) 6 SCC 681 , which
would not be of much relevance, as the same relates to a criminal tria l
where the issue of determining the age of juvenile was under
consideration. The same was under the provisions of Juvenil e Justice
Act,where the Evidence Act was clearly applicable, which is not so in
matters under the Rent Control Act, where evidence can als o be led
on affidavit.
The other case of U. Sree vs.U. Srinivas (2013) 2 SCC 114,
relates to Hindu Marriage Act, where also the Evide nce Act is
applicable.The question there was with regard to certain docum ent,
which had been filed and not proved. The same was filed without being
accompanied by an affidavit, whereas in the case at hand , the receipt
under certificate of posting was filed along with an affidavit, which is
permissible under Section 34 of the Rent Control Act.
The other case of Shiv Kumar vs. State of Haryana (1994) 4
SCC 445, relates to Industrial Disputes Act. In the said case, this Court
held that in the facts of that case, where reliance was plac ed only on
service under certificate of posting without any other circum stances
and proof, there could be no presumption of service of notice.Reliance
was placed on Rule 76 A(2) of the Industrial Rules which provided for
a specific manner of service. Such is not the position in the p resent
case, where the Act provides for notice to be given, without provi ding
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the manner in which it is to be given. As such, this case wil l also not
be of direct relevance to the case at hand.
17. On the contrary, in the case of Sumitra Devi vs. Sampuran
Singh (2011) 3 SCC 556 , which has been relied upon by learned Senior
Counsel for the Appellant, this Court has held that “it will all depend
on the facts of each case whether the presumption o f service of
notice sent under postal certificate should be drawn. It is true that
as observed by the Privy Council in its above refer red judgment,
the presumption would apply with greater force to letters which are
sent by registered post, yet, when facts so justify, such presumption
is expected to be drawn even in the case of a lette r sent under
postal certificate.” Considering the facts and circumstances of that
case, this Court held the notice sent under certificate of posting to be
sufficient service.
In the case of Ranju vs. Rekha Ghosh (2007) 14 SCC 81 ,
this court was considering a case where one month’s notice w as to be
given to the tenant for eviction. After considering the provisions of the
relevant Tenancy Act, Transfer of Property Act and the Bengal General
Clauses Act, it was held that “clause (6) provides mere “one month’s
notice”; in such event, the said notice can be served in any manner
and it cannot be claimed that the same should be ser ved only by
registered post with acknowledgement due.” In the facts of that case,
it was held that service of notice sent under certificate of posting was
sufficient. Similar is the case at hand, where the Act pr ovides for that
‘the landlord has given a notice…’, without specifying the mode of such
notice, and in the facts of the present case, notice sent under postal
certificate has rightly been held to be proper servic e.
While considering a case of service of notice under the
Companies Act, this Court, in the case of V.S. Krishnan vs. Westfort
Hi-Tech Hospitals (2008) 3 SCC 363 , has held that service of notice
sent under certificate of posting would be sufficient where “there are
materials to show that notices were sent, the burde n is on the
addressee to rebut the statutory presumption.”
18. It may be so that mere receipt of notice having been se nt
under certificate of posting, in itself,may not be suffic ient proof of
service, but if the same is coupled with other facts and ci rcumstances
which go to show that the party had notice,the same could be he ld to
be sufficient service on the party. In the present case, the law permits
filing of a document (receipt of under certificate of posting in this case)
MOHD. ASIF NASEER v. WEST WATCH COMPANY
THROUGH ITS PROPRIETOR [VINEET SARAN, J.]
to be filed along with an affidavit, which has been done so in this case.
Further, there was clear admission of the respondent (tenant) t hat the
appellant was his landlord (for which sale deed had been suppl ied to
the tenant) and subsequent act of the respondent (tenant) de positing
the rent under Section 30(1) of the Rent Control Act in the Cour t and
other attending circumstances, as have been conside red by the
Prescribed Authority, would all clearly go to show t hat there was
sufficient proof of service of notice, which finding of fact has been
affirmed by the Appellate Authority, and we see no reason for the Writ
Court to have unsettled such concurrent findings of fact.
19. Further, the Prescribed Authority as well as the Appella te
Authority have given clear finding of fact that the hardshi p of the
appellant (landlord) was greater than that of the respondent ( tenant)
and, thus, allowed the release application, which finding has not be en
specifically considered or categorically upset by the Wri t Court. Such
finding of fact also does not require any interference by th is Court.
20. In such view of the matter, we are of the considered opinion
that this appeal deserves to be allowed.
Accordingly, this appeal stands allowed. The judgment of the Writ
Court is set aside and the release application of the appellant (landlord),
which was allowed by the Prescribed Authority, and affirmed by the
Appellate Authority, stands affirmed. The respondent (tenant) is directed
to vacate the premises in question and hand over possession to the
appellant (landlord) within six months from today.
No order as to costs.
Kalpana K. Tripathy Appeal allowed.