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Supreme Court of India
Mohd. Asif Naseer vs West Watch Company Through Its … on 24 April, 2020Author: Vineet Saran
Bench: Vineet Saran, Hemant Gupta, M.R. Shah
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2375 OF 2020
1.
[ARISING OUT OF SPECIAL LEAVE PETITION [C] NO.29649 OF 2016]
MOHD. ASIF NASEER …..APPELLANT
VERSUS
WEST WATCH COMPANY THROUGH ITS PROPRIETOR
……. RESPONDENT
JUDGMENT
Vineet Saran, J.
Leave granted.
2. This is an appeal filed by the landlord challenging
the Judgment and Order of the High Court passed in Rent
Control Writ Petition No.3457 of 2016, whereby the release
application filed by the appellant has been rejected, and the
Signature Not Verified
Digitally signed by
DEEPAK SINGH
Date: 2020.04.24
Orders passed by the Prescribed Authority and the
16:59:01 IST
Reason:
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Appellate Authority, allowing the release application of the
appellantlandlord, have been set aside.
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 Sale 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 requested 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
(tenant) is a rich person who owns two buildings and the
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family of the respondent has other commercial
accommodations in their possession in the main 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 sale 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 respondent 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 use the same for his personal business.
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4. The respondent contested the release application and
filed his written statement in which he admitted that the
appellant was the landlord of the shop in question. It was
stated that the father 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 only source of livelihood and that in spite of his best
efforts, he could not get another shop in the locality of
Hazratganj, even though, he had applied for allotment of
another shop to Rent Control and Eviction 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 the respondent to vacate the
disputed shop and that no notice with regard to the 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 get the shop vacated, and after
demolishing the existing building, raise multistorey
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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
Authority allowed the release application, after holding that
the appellant had given six months prior notice to the
respondent, as was required under the Proviso of Section
21(1)(a) of the Rent Control Act and the release application
was filed after the expiry of three years of Sale Deed
obtained by the appellant. The Prescribed Authority also
held 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 to show that the
respondent (tenant) had made any effort to search alternate
accommodation. On the aforesaid grounds, and considering
the comparative hardship, the Prescribed Authority allowed
the release application.
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6. The appeal filed by the respondent was dismissed by
the Additional District Judge (Appellate Authority) vide
Order dated 05.02.2016, whereby it was held that the
relationship of landlord and tenant between the appellant
and respondent was proved and also that the requisite
notice of six months was given to the respondent. It further
reaffirmed the view of the Prescribed Authority that the need
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 could be no presumption of
service of notice sent “under certificate of posting”. The High
Court also presumed that the intention of the appellant was
to purchase an old shop and after renovation or raising
multistorey building, sell it for profit and not to use it for
his own business. While allowing the writ petition, the High
Court held that “Release application is dismissed as not
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maintainable, for want of six months prior notice as required
under Section (21)(1)(a) Proviso of the Act”.
8. Aggrieved by the said judgment, this appeal has been
filed by way of this Special Leave Petition.
9. We have heard the learned counsel for the parties at
length 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 that 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 finding of the fact with regard to
comparative hardship of the landlord being higher than that
of the tenant, as recorded by the Prescribed Authority 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 judgment, which cannot be considered to have upset
the finding of fact with regard 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
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respondent (tenant), which was mandatorily required under
the aforesaid Section 21(1)(a) of the Rent Control Act. The
relevant Section 21(1)(a) of the Rent Control Act is extracted
as under:
“Section 21. Proceedings for
release of building under
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 part thereof if it is
satisfied that any of the following
grounds exists namely—
(a) That the building is bona fide
required either in its 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 the objects of the trust;
(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,
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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 could be given orally or in writing;
and if in writing, it is not necessary that it should be sent
only by registered post. What is required is that “the
landlord has given a notice in that behalf to the tenant”.
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 Prescribed Authority has drawn a
presumption of the notice having been served merely
because it was said to have been sent under certificate of
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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 suit was filed by the appellant in the year 2008.
The said suit was admittedly 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 filing of the suit in the year 2008. The
respondenttenant had admitted the appellant as his
landlord and filed an application to deposit rent in Court in
the year 2007. It is not disputed that photocopy of the
receipt dated 25.07.2006 of having sent the notice under
certificate of posting was filed by the appellant (landlord)
along with an affidavit before the Prescribed Authority; and
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the application of the respondent (tenant) for filing the
carbon copy (instead of photocopy) of the receipt 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 occasion for the appellant to file the carbon
copy of the receipt of under certificate of posting.
14. Section 34 of the Rent Control Act provides for the
Prescribed Authority to receive evidence on affidavit. The
relevant subsection (1) of Section 34 of the Rent Control Act
is extracted as under:
“Section 34. Powers of various
authorities and procedure to be
followed by them. –(1) The District
Magistrate, the prescribed authority or
any appellate or revising authority shall
for the purposes of holding any inquiry
or hearing any appeal or revision under
this Act have the same powers as are
vested in the Civil Court under the Code
of Civil Procedure, 1908 (Act No. V of
1908), when trying a suit, in respect of
the following matters namely,
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(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 issuing 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)
15. In view of the aforesaid, it is clear that evidence
adduced 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 certificate of posting, along with
an affidavit, which was accepted by the Prescribed Authority,
and coupled with the attending circumstances as noticed by
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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 respondent (tenant), which is fully
justified in law. Such finding of fact was duly affirmed by the
Appellate Authority. In our view, such finding of fact (which
was not merely a presumption of service based solely on
notice having been sent under postal certificate), having been
arrived at on the basis of valid reasons in the facts of the
case, ought not to have been upset by the Writ Court.
16. Learned Counsel for the respondenttenant has, in
support of his submissions, relied on the decision of this
Court in the case 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 trial where the issue of
determining the age of juvenile was under consideration. The
same was under the provisions of Juvenile Justice Act, where
the Evidence Act was clearly applicable, which is not so in
matters under the Rent Control Act, where evidence can also
be led on affidavit.
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The other case of U.Sree vs. U.Srinivas (2013) 2 SCC
114, relates to Hindu Marriage Act, where also the Evidence
Act is applicable. The question there was with regard to
certain document, 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 placed only on service under certificate of
posting without any other circumstances 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 present case, 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 not be of direct relevance
to the case at hand.
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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 of service of notice sent under postal
certificate should be drawn. It is true that as observed by the
Privy Council in its above referred 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 letter 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 was 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
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manner and it cannot be claimed that the same should be
served 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 provides 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 service.
While considering a case of service of notice under the
Companies Act, this Court, in the case of V.S. Krishnan vs.
Westfort HiTech 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 burden is on the addressee to rebut the
statutory presumption.”
18. It may be so that mere receipt of notice having been
sent under certificate of posting, in itself, may not be
sufficient proof of service, but if the same is coupled with
other facts and circumstances which go to show that the
party had notice, the same could be held to be sufficient
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service on the party. In the present case, the law permits
filing of a document (receipt of under certificate of posting in
this case) to be filed along with an affidavit, which has been
done so in this case. Further, there was clear admission of
the respondent (tenant) that the appellant was his landlord
(for which sale deed had been supplied to the tenant) and
subsequent act of the respondent (tenant) depositing the rent
under Section 30(1) of the Rent Control Act in the Court and
other attending circumstances, as have been considered by
the Prescribed Authority, would all clearly go to show that
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
Appellate Authority have given clear finding of fact that the
hardship of the appellant (landlord) was greater than that of
the respondent (tenant) and, thus, allowed the release
application, which finding has not been specifically
considered or categorically upset by the Writ Court. Such
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finding of fact also does not require any interference by this
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.
………………………………..J.
[R. Banumathi]
………………………………..J.
[Vineet Saran]
New Delhi;
April 24, 2020.
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