S.P.Srivastava - (1.) BEING aggrieved by the grant of release of the accommodation in dispute under the tenancy of the petitioner in the proceedings under section 21 (1) (a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction), Act, 1972, (U. P. Act No. 13 of 1972) hereinafter referred to as the Act) by the Prescribed Authority vide the order dated 19-1-91 which has been affirmed in appeal by the Appellate Authority vide its order dated 16-2-93 the petitioner-tenant has now approached this Court for redress seeking the reversal of the impugned orders,
(2.) THE facts of the case shorn of details and necessary for the disposal of this case lie in a narrow compass. THE landlord-respondent initiated proceedings for the release of the accommodation in dispute which was in the tenancy of Shyam Sunder, the predecessor-in-interest of the present petitioners by filing an application under section 21 (1) (a) of the U. P. Act No. 13 of 1972. In the aforesaid application which had been filed in the year 1,985, it was asserted that the accommodation in dispute which had been purchased on 16-11-81 was genuinely required for residential purpose by the landlady and her family. THE landlady asserted that the need for the accommodation in dispute was bonafide and pressing. It was also asserted that the requisite notice contemplated under the first proviso to section 21 (1) of the Act was sent to Shyam Sunder which had been served on him and inspite of the service of the notice he had failed to vacate the premised which necessitated the initiation of the proceedings under Section 21 (1) (a) of the Act for his eviction. It was also asserted that the landlord was likely to suffer greater hardship as compared to the tenant on the rejection of the application. It appears that although the release application had been filed in the year 1985 and notices thereof had been served on Shyam Sunder, he did not file any written statement or counter-affidavit. During the pendency of the proceedings Shyam Sunder died in the year 1986 and thereafter his successor-in-interest the present petitioners-filed a written statement on 30-9-88 wherein denying the allegations of the landlady, it was asserted that the notice sent by the landlady was neither received by Shyam Sunder deceased nor he had refused to accept the same. It was asserted that the release application could not proceed and was not maintainable in the absence of the service of the notice. The Prescribed Authority after carefully considering the evidence and the materials on the record came to the conclusion that the need of the landlady for the accommodation in dispute was bonafide and genuine. It was also found that apart from the accommodation in dispute the landlady had no other accommodation which could be utilised for the , purpose for which release was sought. It was also found that the landlady was residing in a rented accommodation paying Rs. 200/-per month as rent. According to the landlady, the petitioners were paying only Rs. 6/- per month as rent in respect of the accommodation in dispute. The Prescribed Authority also found that the landlady was likely to suffer greater hardship as compared to the tenant in the event of the rejection of the application for release. On the question of the service of the notice, the trial court recorded a clear cut finding that the notice in question had been sent by registered post, the postal receipt whereof had been filed and the assertion of the successors-in-interest of the deceased-tenant about the non-service of notice were not liable to be accepted. Consequently, the release of the accommodation in dispute as sought for was granted. Aggrieved by the aforesaid decision of the Prescribed Authority, the petitioners filed an appeal. The "appellate authority after carefully considering the evidence and materials on record came to the conclusion that the evidence given by the landlord in connection with the service of the notice sent through registered post was sufficient and the mere denial of service of notice by the scccesssors in interest of the deceased tenant who had been impleaded as a respondent in the release application was not sufficient to rebut the presumption about service of the notice on Shyam Sunder. The appellate Authority endorsed and affirmed all the findings of the Prescribed Authority upholding the claim of the landlady about the need for the accommodation, in, dispute being genuine, bonafide and pressing. The Appellate Authority also affirmed the finding recorded by the Prescribed Authority on the question of relative hardships. It also noticed that the tenants bad not made any effort whatsoever to get any other accommodation on rent which factor also tilted the balance of relative hardships in favour of the landlady. The appeal was accordingly dismissed.
(3.) THE learned counsel for the petitioner has strenuously challenged the concurrent finding on the question relating to the service of the notice asserting that the denial of service of the notice by the successors in interest of deceased tenant Shyam Sunder was more than enough to rebut the presumption relating to the service of notice and in the circumstances of the case in the absence of the examination of the postman concerned or other evidence having been led by the landlady to prove the actual service of the notice on Shyam Sunder, deceased, the Prescribed Authority as well as the Appellate Authority acted with manifest illegality in proceeding on the basis that the notice in question had been duly served on the basis of the presumption. This Court in its decision in the case of Ganga Ram v. Phulwati decided by a Full Bench and reported in 1970 ALJ 336 had clarified that it was not incumbent on the plaintiff to prove the endorsement of refusal on the notice sent by registered post by producing the postman or other evidence in case the defendant denies service on him and that a presumption regarding service of such notice can be made not only under section 114 of the Evidence Act in favour of the landlord but the presumption regarding service of such notice has also to be made under section 27 of the General Clauses Act. This would, however, be a rebuttable presumption.;