MOHD. ASIF NASEER versus WEST WATCH COMPANY THROUGH ITS PROPRIETOR
[2020] 4 S.C.R. 1173, Supreme Court of India, 2020
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
A
B
C
D
E
F
G
H
1173
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, Rent
and Eviction) Act, 1972:
s.21(1)(a) – Application under – For release of tenanted
shop – Allowed by Prescribed Authority holding inter alia that the
landlord had given six months prior notice to the tenant as required
under Proviso to s. 21(1)(a) that the need of the landlord was
bonafide – Order affirmed by appellate authority – High Court in
writ petition dismissed the release application holding inter alia that
no notice of eviction was given to the tenant and that there could
be no presumption of service of notice sent “under certificate of
posting” – Appeal to Supreme Court – Held: 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 showing that the party had notice,
it can be held to be sufficient service on the party – The facts and
circumstances of the present case as considered by Prescribed
Authority and affirmed by appellate authority show that there was
sufficient proof of service of notice – There was no reason for the
writ court to unsettle such concurrent finding of fact – The finding
as regards comparative hardship has not been categorically upset
by High Court.
Allowing the appeal, the Court
HELD: 1.1
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. 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
   [2020] 4 S.C.R. 1173
1173
A
B
C
D
E
F
G
H
1174
SUPREME COURT REPORTS
[2020] 4 S.C.R.
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”. [Paras 10 and 12] [1179-
C; 1180-D]
1.2 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 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 respondent-tenant
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. [Para 13] [1180-E-H; 1181-A-B]
1.3 Section 34 of the Rent Control Act provides for the
Prescribed Authority to receive evidence on affidavit. Therefore,
the evidence adduced on affidavit was admissible before the
Prescribed Authority. In the facts of the present case, when the
A
B
C
D
E
F
G
H
1175
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. Such
finding of fact 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.[Paras 14 and 15] [1181-C; 1182-A-C]
1.4 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 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. 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 there was no reason for
the Writ Court to have unsettled such concurrent findings of
fact. [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) 14
SCC 81 : [2007] 13 SCR 763 ; V.S. Krishnan
v. Westfort Hi-Tech Hospitals (2008) 3 SCC 363 :
[2008] 3 SCR 184 – relied on.
Ram Suresh Singh vs. Prabhat Singh (2009) 6 SCC
681 : [2009] 7 SCR 451 ; U. Sree v. U. Srinivas (2013)
MOHD. ASIF NASEER v. WEST WATCH COMPANY
THROUGH ITS PROPRIETOR
A
B
C
D
E
F
G
H
1176
SUPREME COURT REPORTS
[2020] 4 S.C.R.
2 SCC 114 : [2012] 11 SCR 256 ; Shiv Kumar v. State
of Haryana (1994) 4 SCC 445 – distinguished.
2. 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 finding of fact also
does not require any interference by this Court. [Para 19] [1184-
C-D]
Case Law Reference
[2009] 7 SCR 451
distinguished
Para 16
[2012] 11 SCR 256
distinguished
Para 16
(1994) 4 SCC 445
distinguished
Para 16
[2011] 2 SCR 196
relied on
Para 17
[2007] 13 SCR 763
relied on
Para 17
[2008] 3 SCR 184
relied on
Para 17
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2375
of 2020.
From the Judgment and Order dated 04.03.2016 of the High
Court 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.
Niraj 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.
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
appellant-landlord, have been set aside.
A
B
C
D
E
F
G
H
1177
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 usethe 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
MOHD. ASIF NASEER v. WEST WATCH COMPANY
THROUGH ITS PROPRIETOR [VINEET SARAN, J.]
A
B
C
D
E
F
G
H
1178
SUPREME COURT REPORTS
[2020] 4 S.C.R.
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
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 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
re-affirmed 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
nopresumption 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 multi-storey
A
B
C
D
E
F
G
H
1179
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 thisSpecial 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;
MOHD. ASIF NASEER v. WEST WATCH COMPANY
THROUGH ITS PROPRIETOR [VINEET SARAN, J.]
A
B
C
D
E
F
G
H
1180
SUPREME COURT REPORTS
[2020] 4 S.C.R.
(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 sentonly 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 respondent-tenant 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
A
B
C
D
E
F
G
H
1181
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 sub-section (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;
(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)
MOHD. ASIF NASEER v. WEST WATCH COMPANY
THROUGH ITS PROPRIETOR [VINEET SARAN, J.]
A
B
C
D
E
F
G
H
1182
SUPREME COURT REPORTS
[2020] 4 S.C.R.
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 respondent-tenant has, in support
of his submissions, relied on the decision of this Court inthe 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
A
B
C
D
E
F
G
H
1183
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. 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
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 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 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.]
A
B
C
D
E
F
G
H
1184
SUPREME COURT REPORTS
[2020] 4 S.C.R.
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
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.
Kalpana K. Tripathy
Appeal allowed.