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Mohd. Asif Naseer vs West Watch Company Through Its … on 24 April, 2020

1

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
3

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
10

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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