Law Web: Whether notice issued by landlord to tenant by certificate of posting is valid?

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

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.”

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2375 OF 2020

MOHD. ASIF NASEER Vs WEST WATCH COMPANY

Dated:April 24, 2020.

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

Orders passed by the Prescribed Authority and the

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

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.

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

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.

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

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

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,

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

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

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,

(a) summoning and enforcing the

attendance of any person and

examining him on oath;

(b) receiving evidence on affidavits;

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

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.

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.

17. On the contrary, in the case of Sumitra Devi vs.