MOHD. ASIF NASEER versus WEST WATCH COMPANY THROUGH ITS PROPRIETOR on 24 April 2020

MOHD. ASIF NASEER

v.

WEST WATCH COMPANY THROUGH ITS PROPRIETOR(Civil Appeal No. 2375 of 2020)

APRIL 24, 2020

[R. BANUMATHI AND VINEET SARAN, JJ.]

Uttar Pradesh Urban Building (Regulation of Letting, Rentand Eviction) Act, 1972:

s.21(1)(a) – Application under – For release of tenantedshop – Allowed by Prescribed Authority holding inter alia that thelandlord had given six months prior notice to the tenant as requiredunder Proviso to s. 21(1)(a) that the need of the landlord wasbonafide – Order affirmed by appellate authority – High Court inwrit petition dismissed the release application holding inter alia thatno notice of eviction was given to the tenant and that there couldbe no presumption of service of notice sent “under certificate ofposting” – Appeal to Supreme Court – Held: Mere receipt of noticehaving been sent “under certificate of posting”, in itself, may notbe sufficient proof of service – But, if the same is coupled withother facts and circumstances showing that the party had notice,it can be held to be sufficient service on the party – The facts andcircumstances of the present case as considered by PrescribedAuthority and affirmed by appellate authority show that there wassufficient proof of service of notice – There was no reason for thewrit court to unsettle such concurrent finding of fact – The findingas regards comparative hardship has not been categorically upsetby High Court.

Allowing the appeal, the Court

HELD: 1.1 The primary reason for allowing the WritPetition was that there could be no presumption of service ofnotice as required under the Proviso to Section 21(1)(a) of theRent Control Act. From the perusal of the aforesaid Proviso tothe said Section, it is clear that no particular mode of giving noticeby the landlord to the tenant has been provided for, meaningthereby that the same could be given orally or in writing; and if

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Ain writing, it is not necessary that it should be sent only byregistered post. What is required is that “the landlord has givena notice in that behalf to the tenant”. [Paras 10 and 12] [1179-C; 1180-D]

1.2 The Prescribed Authority, while recording the findingBthat the tenant was given notice for eviction, has considered thevarious facts leading to the recording of such finding. It is notthat the Prescribed Authority has drawn a presumption of thenotice having been served merely because it was said to havebeen sent under certificate of posting. The Prescribed Authorityhas held that the “respondent (tenant) while admitting theCapplicant as landlord had filed the application under Section 30(1)to deposit the rent in the Court”. The Prescribed Authorityrecorded that it was after the notice had been sent in the year2006 that an application under Section 30(1) of the Rent ControlAct was filed by the respondent (tenant) in the year 2007 for

Ddeposit of rent in Court, after which, the suit was filed by theappellant in the year 2008. The said suit was admittedly afterthree years of the Sale Deed, which was executed on 29.10.2004.It was in this factual background that the Prescribed Authorityheld that the notice of six months required under Section 21 ofthe Rent Control Act was duly given by the landlord to the tenantEbefore filing of the suit in the year 2008. The respondent-tenanthad admitted the appellant as his landlord and filed an applicationto deposit rent in Court in the year 2007. It is not disputed thatphotocopy of the receipt dated 25.07.2006 of having sent thenotice under certificate of posting was filed by the appellantF(landlord) along with an affidavit before the Prescribed Authority;and the application of the respondent (tenant) for filing thecarbon copy (instead of photocopy) of the receipt of undercertificate of posting, was rejected by the Prescribed Authorityon 21.04.2011, which Order had become final, as the same hadnot been challenged by the tenant and, thus, there was noGoccasion for the appellant to file the carbon copy of the receiptof under certificate of posting. [Para 13] [1180-E-H; 1181-A-B]

1.3 Section 34 of the Rent Control Act provides for thePrescribed Authority to receive evidence on affidavit. Therefore,the evidence adduced on affidavit was admissible before theHPrescribed Authority. In the facts of the present case, when the appellant (landlord) had filed the photocopy of the receipt ofhaving sent the notice under certificate of posting, along withan affidavit, which was accepted by the Prescribed Authority, andcoupled with the attending circumstances as noticed by thePrescribed Authority, a specific finding of fact was recorded thatdue notice, as required under Section 21 of the Rent ControlAct, had been sent by the appellant (landlord) and received bythe respondent (tenant), which is fully justified in law. Suchfinding of fact was duly affirmed by the Appellate Authority. Suchfinding of fact having been arrived at on the basis of validreasons in the facts of the case, ought not to have been upsetby the Writ Court.[Paras 14 and 15] [1181-C; 1182-A-C]

1.4 It may be so that mere receipt of notice having beensent under certificate of posting, in itself, may not be sufficientproof of service, but if the same is coupled with other facts andcircumstances which go to show that the party had notice, thesame could be held to be sufficient service on the party. In thepresent case, the law permits filing of a document (receipt ofunder certificate of posting in this case) to be filed along withan affidavit, which has been done so. Further, there was clearadmission of the respondent (tenant) that the appellant was hislandlord (for which sale deed had been supplied to the tenant)and subsequent act of the respondent (tenant) depositing the rentunder Section 30(1) of the Rent Control Act in the Court andother attending circumstances, as have been considered by thePrescribed Authority, would all clearly go to show that there wassufficient proof of service of notice, which finding of fact has beenaffirmed by the Appellate Authority, and there was no reason forthe Writ Court to have unsettled such concurrent findings offact. [Para 18] [1183-G-H; 1184-A-B]

Sumitra Devi v. Sampuran Singh (2011) 3 SCC 556 :[2011] 2 SCR 196 ; Ranju v. Rekha Ghosh (2007) 14SCC 81 : [2007] 13 SCR 763 ; V.S. Krishnanv. Westfort Hi-Tech Hospitals (2008) 3 SCC 363 :[2008] 3 SCR 184 – relied on.

Ram Suresh Singh vs. Prabhat Singh (2009) 6 SCC681 : [2009] 7 SCR 451 ; U. Sree v. U. Srinivas (2013)

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1176SUPREME COURT REPORTS

A2 SCC 114 : [2012] 11 SCR 256 ; Shiv Kumar v. Stateof Haryana (1994) 4 SCC 445 – distinguished.

2. Further, the Prescribed Authority as well as theAppellate Authority have given clear finding of fact that thehardship of the appellant (landlord) was greater than that of theBrespondent (tenant) and, thus, allowed the release application,which finding has not been specifically considered orcategorically upset by the Writ Court. Such finding of fact alsodoes not require any interference by this Court. [Para 19] [1184-C-D]

Case Law Reference

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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2375of 2020.

EFrom the Judgment and Order dated 04.03.2016 of the HighCourt of Judicature at Allahabad, Lucknow Bench in Rent Control No.3457 of 2016.

Pradeep Kant, Sr. Adv., Divyanshu Sahay, Rohit Kumar Singh,Raghvendra Pratap Singh, Sanjay Goel, Advs. for the Appellants.

FNiraj Gupta, Umair Ahmad Siddiqui, Mrs. Anshu Gupta, Advs.for the Respondents.

The Judgment of the Court was delivered by VINEET SARAN, J.

1. Leave granted.G

2. This is an appeal filed by the landlord challenging the Judgmentand Order of the High Court passed in Rent Control Writ PetitionNo.3457 of 2016,whereby the release application filed by the appellanthas been rejected, and the Orders passed by the Prescribed Authorityand the Appellate Authority, allowing the release application of theHappellant-landlord, have been set aside.

3. Brief facts of this case, relevant for the purpose of the presentappeal, 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 releaseof Shop no.64 situated on the ground floor of the Building No.31/72,Mahatma Gandhi Marg, Hazratganj, Lucknow, the size of which is givenas 42 square feet. The case of the appellant was that he had purchasedthe shop in question for his personal use, vide registered Sale Deeddated 29.10.2004. The respondent was a tenant of the shop in questionon a monthly rent of Rs.15 and doing business of repair and sale ofwatches.After purchase of the said shop, the appellant requested therespondent to vacate the shop, to which the respondent initially agreedbut later refused to vacate. The appellant, thus, filed the releaseapplication.

The case of the appellant was that the respondent (tenant) is arich person who owns two buildings and the family of the respondenthas other commercial accommodations in their possession in the mainmarket of Hazratganj, Khurram Nagar and I.T. Crossing, Nirala Nagarin the city of Lucknow. Another application of the appellant for releaseof the adjoining Shop no.63 (having an area of 190 square feet) wasalso pending. The case of the appellant further was that he was ayoung man and wanted to start his own business of repair and sale ofwatches in the shop in question after its renovation, as at present hewas assisting his father in the business of sale and repair of watches,and has vast experience of such business and that this shop in questionwould be suitable for his business. His case further was that his familyconsists of himself, his wife and one minor daughter and that he wouldbe ready to pay two years rent as compensation to the respondent forvacating the said shop and that the need of the appellant was genuine,bona fide, pressing and urgent. He had further undertaken not to letout the shop in question in future and usethe same for his personalbusiness.

4. The respondent contested the release application and filed hiswritten statement in which he admitted that the appellant was thelandlord of the shop in question. It was stated that the father of therespondent was tenant of the shop in question since 1951 and wascarrying on the business of repair and sale of watches and that therespondent had been helping his father in business since 1960. It wasstated that the income from the said shop was his only source oflivelihood and that in spite of his best efforts, he could not get another A

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Ashop in the locality of Hazratganj, even though, he had applied forallotment of another shop to Rent Control and Eviction Officer,Lucknow. The respondent also stated that if the appellant was in genuineneed, he would have purchased a vacant shop and not an old tenantedshop. It was also stated that the appellant never asked the respondentto vacate the disputed shop and that no notice with regard to the sameBwas ever given to the respondent. The case of the respondent was thatthe appellant was in property business and his intention was to get theshop vacated, and after demolishing the existing building, raisemulti-storey building. The respondent further stated that he was in needof the shop in question and that his need was greater than that of theCappellant and that even though the son of the respondent may be havinganother tenanted shop, but that would make no difference.

5. By its Order dated 04.10.2011, the Prescribed Authorityallowed the release application, after holding that the appellant had givensix months prior notice to the respondent, as was required under theProviso of Section 21(1)(a) of the Rent Control Act and the releaseDapplication was filed after the expiry of three years of Sale Deedobtained by the appellant. The Prescribed Authority also held that theneed of the appellant was bona fide and pressing and at present hehad no shop in Lucknow and that there was no evidence on record toshow that the respondent (tenant) had made any effort to searchEalternate accommodation. On the aforesaid grounds, and consideringthe comparative hardship, the Prescribed Authority allowed the releaseapplication.

6. The appeal filed by the respondent was dismissed by theAdditional District Judge (Appellate Authority) vide Order datedF05.02.2016, whereby it was held that the relationship of landlord andtenant between the appellant and respondent was proved and also thatthe requisite notice of six months was given to the respondent. It furtherre-affirmed the view of the Prescribed Authority that the need of theappellant was bona fide and pressing and, thus, dismissed the appeal.

7. Aggrieved by the aforesaid Orders, the respondent filed RentGControl Writ Petition No.3457 of 2016, which has been allowed by theHigh Court, primarily after holding that no notice for eviction was givento the respondent, which was mandatory and there could benopresumption of service of notice sent “under certificate of posting”.The High Court also presumed that the intention of the appellant wasHto purchase an old shop and after renovation or raising multi-storey building, sell it for profit and not to use it for his own business. Whileallowing the writ petition, the High Court held that “Releaseapplication is dismissed as not maintainable, for want of six monthsprior notice as required under Section (21)(1)(a) Proviso of theAct”.

8. Aggrieved by the said judgment, this appeal has been filed byway of thisSpecial Leave Petition.

9. We have heard the learned counsel for the parties at lengthand have perused the records.

10. From the perusal of the judgment of the High Court, it is clearthat the primary reason for allowing the Writ Petition was that therecould be no presumption of service of notice as required under theProviso to Section 21(1)(a) of the Rent Control Act. The finding ofthe fact with regard to comparative hardship of the landlord being higherthan that of the tenant, as recorded by the Prescribed Authority andthe Appellate Authority, has not been disturbed by the High Court, exceptfor a mere mention in passing in the later part of the judgment, whichcannot be considered to have upset the finding of fact with regard tocomparative hardship, as recorded by the Authorities.

11. The case of the respondent (tenant) is that there was nonotice issued by the appellant (landlord) to the respondent (tenant), whichwas mandatorily required under the aforesaid Section 21(1)(a) of theRent Control Act. The relevant Section 21(1)(a) of the Rent ControlAct is extracted as under:

“Section 21. Proceedings for release of building underoccupation of tenant. –(1) The prescribed authority may, onan application of the landlord in that behalf, order the eviction ofa tenant from the building under tenancy or any specified partthereof if it is satisfied that any of the following grounds existsnamely—

(a) That the building is bona fide required either in itsexisting form or after demolition and newconstruction by the landlord for occupation byhimself or any member of his family, or any personfor whose benefit it is held by him, either forresidential purposes or for purposes of anyprofession, trade or calling, or where the landlordis the trustee of a public charitable trust, for theobjects of the trust; A

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(b) …………………….

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Provided that where the building was in theoccupation of a tenant since before its purchase bythe landlord, such purchase being made after thecommencement of this Act, no application shall beBentertained on the grounds, mentioned in clause (a),unless a period of three years has elapsed since thedate of such purchase and the landlord has given anotice in that behalf to the tenantnot less than sixmonths before such application, and such notice maybe given even before the expiration of the aforesaidCperiod 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 thetenant has been provided for, meaning thereby that the same could beDgiven orally or in writing; and if in writing, it is not necessary that itshould be sentonly by registered post. What is required is that “thelandlord has given a notice in that behalf to the tenant”.

13. The Prescribed Authority, while recording the finding that thetenant was given notice for eviction,has considered the various factsEleading to the recording of such finding. It is not that the PrescribedAuthority has drawn a presumption of the notice having been servedmerely because it was said to have been sent under certificate ofposting. The Prescribed Authority has held that the “respondent(tenant) while admitting the applicant as landlord had filed theapplication under Section 30(1) to deposit the rent in the Court”.FThe Prescribed Authority recorded that it was after the notice had beensent in the year 2006 (on 25.07.2006)that an application under Section30(1) of the Rent Control Act was filed by the respondent (tenant) inthe year 2007 for deposit of rent in Court, after which, the suit wasfiled by the appellant in the year 2008. The said suit was admittedlyGafter three years of the Sale Deed, which was executed on 29.10.2004.It was in this factual background that the Prescribed Authority held thatthe notice of six months required under Section 21 of the Rent ControlAct was duly given by the landlord to the tenant before filing of thesuit in the year 2008.The respondent-tenant had admitted the appellantas his landlord and filed an application to deposit rent in Court in theHyear 2007. It is not disputed that photocopy of the receipt dated 25.07.2006 of having sent the notice under certificate of posting wasfiled by the appellant (landlord) along with an affidavit before thePrescribed Authority; and the application of the respondent (tenant) forfiling the carbon copy (instead of photocopy) of the receipt of undercertificate of posting, was rejected by the Prescribed Authority on21.04.2011, which Order had become final, as the same had not beenchallenged by the tenant and, thus, there was no occasion for theappellant to file the carbon copy of the receipt of under certificate ofposting.

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14. Section 34 of the Rent Control Act provides for the PrescribedAuthority to receive evidence on affidavit. The relevant sub-section (1)of Section 34 of the Rent Control Act is extracted as under:

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“Section 34. Powers of various authorities and procedureto be followed by them.– (1) The District Magistrate, theprescribed authority or any appellate or revising authorityshall for the purposes of holding any inquiry or hearing anyappeal or revision under this Act have the same powers asare vested in the Civil Court under the Code of CivilProcedure, 1908 (Act No. V of 1908), when trying a suit, inrespect of the following matters namely,—

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(a) summoning and enforcing the attendance of anyperson and examining him on oath; E

(b) receiving evidence on affidavits;

(c) inspecting a building or its locality, or issuingcommission for the examination of witnesses ordocuments or local investigation; (d) requiring the discovery and production ofFdocuments; (e) awarding, subject to any rules made in that behalf,costs or special costs to any parts or requiringsecurity for costs from any party; (f) recording a lawful agreement, compromise orGsatisfaction and making an order in accordancetherewith; (g) any other matter which may be prescribed.

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A15. In view of the aforesaid, it is clear that evidence adducedon affidavit was admissible before the Prescribed Authority.In the factsof the present case, when the appellant (landlord) had filed thephotocopy of the receipt of having sent the notice under certificate ofposting, along with an affidavit, which was accepted by the PrescribedAuthority, and coupled with the attending circumstances as noticed byBthe Prescribed Authority, a specific finding of fact was recorded thatdue notice, as required under Section 21 of the Rent Control Act, hadbeen sent by the appellant (landlord) and received by the respondent(tenant), which is fully justified in law. Such finding of fact was dulyaffirmed by the Appellate Authority. In our view, such finding of factC(which was not merely a presumption of service based solely on noticehaving been sent under postal certificate), having been arrived at onthe basis of valid reasons in the facts of the case, ought not to havebeen upset by the Writ Court.

16. Learned Counsel for the respondent-tenant has, in supportof his submissions, relied on the decision of this Court inthe case ofDRam Suresh Singh vs. Prabhat Singh (2009) 6 SCC 681, whichwould not be of much relevance, as the same relates to a criminal trialwhere the issue of determining the age of juvenile was underconsideration. The same was under the provisions of Juvenile JusticeAct,where the Evidence Act was clearly applicable, which is not so inEmatters under the Rent Control Act, where evidence can also be ledon affidavit.

The other case of U. Sree vs.U. Srinivas (2013) 2 SCC 114,relates to Hindu Marriage Act, where also the Evidence Act isapplicable.The question there was with regard to certain document,Fwhich had been filed and not proved. The same was filed without beingaccompanied by an affidavit, whereas in the case at hand, the receiptunder certificate of posting was filed along with an affidavit, which ispermissible under Section 34 of the Rent Control Act.

The other case of Shiv Kumar vs. State of Haryana (1994) 4GSCC 445, relates to Industrial Disputes Act. In the said case, this Courtheld that in the facts of that case, where reliance was placed only onservice under certificate of posting without any other circumstancesand proof, there could be no presumption of service of notice.Reliancewas placed on Rule 76 A(2) of the Industrial Rules which provided fora specific manner of service. Such is not the position in the presentHcase, where the Act provides for notice to be given, without providing the manner in which it is to be given. As such, this case will also notbe of direct relevance to the case at hand.

17. On the contrary, in the case of Sumitra Devi vs. SampuranSingh (2011) 3 SCC 556, which has been relied upon by learned SeniorCounsel for the Appellant, this Court has held that “it will all dependon the facts of each case whether the presumption of service ofnotice sent under postal certificate should be drawn. It is true thatas observed by the Privy Council in its above referred judgment,the presumption would apply with greater force to letters which aresent by registered post, yet, when facts so justify, such presumptionis expected to be drawn even in the case of a letter sent underpostal certificate.” Considering the facts and circumstances of thatcase, this Court held the notice sent under certificate of posting to besufficient service.

In the case of Ranju vs. Rekha Ghosh (2007) 14 SCC 81,this court was considering a case where one month’s notice was to begiven to the tenant for eviction. After considering the provisions of therelevant Tenancy Act, Transfer of Property Act and the Bengal GeneralClauses Act, it was held that “clause (6) provides mere “one month’snotice”; in such event, the said notice can be served in any mannerand it cannot be claimed that the same should be served only byregistered post with acknowledgement due.” In the facts of that case,it was held that service of notice sent under certificate of posting wassufficient. Similar is the case at hand, where the Act provides for that‘the landlord has given a notice…’, without specifying the mode of suchnotice, and in the facts of the present case, notice sent under postalcertificate has rightly been held to be proper service.

While considering a case of service of notice under theCompanies Act, this Court, in the case of V.S. Krishnan vs. WestfortHi-Tech Hospitals (2008) 3 SCC 363, has held that service of noticesent under certificate of posting would be sufficient where “there arematerials to show that notices were sent, the burden is on theaddressee to rebut the statutory presumption.”

18. It may be so that mere receipt of notice having been sentunder certificate of posting, in itself,may not be sufficient proof ofservice, but if the same is coupled with other facts and circumstanceswhich go to show that the party had notice,the same could be held tobe sufficient service on the party. In the present case, the law permitsfiling of a document (receipt of under certificate of posting in this case)

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Ato be filed along with an affidavit, which has been done so in this case.Further, there was clear admission of the respondent (tenant) that theappellant was his landlord (for which sale deed had been supplied tothe tenant) and subsequent act of the respondent (tenant) depositingthe rent under Section 30(1) of the Rent Control Act in the Court andother attending circumstances, as have been considered by theBPrescribed Authority, would all clearly go to show that there wassufficient proof of service of notice, which finding of fact has beenaffirmed by the Appellate Authority, and we see no reason for the WritCourt to have unsettled such concurrent findings of fact.

19. Further, the Prescribed Authority as well as the AppellateCAuthority have given clear finding of fact that the hardship of theappellant (landlord) was greater than that of the respondent (tenant)and, thus, allowed the release application, which finding has not beenspecifically considered or categorically upset by the Writ Court. Suchfinding of fact also does not require any interference by this Court.

D20. In such view of the matter, we are of the considered opinionthat this appeal deserves to be allowed.

Accordingly, this appeal stands allowed. The judgment of the WritCourt is set aside and the release application of the appellant (landlord),which was allowed by the Prescribed Authority, and affirmed by theEAppellate Authority, stands affirmed. The respondent (tenant) is directedto vacate the premises in question and hand over possession to theappellant (landlord) within six months from today.

No order as to costs.

FKalpana K. Tripathy

Appeal allowed.

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