- (1.) J. C. Gupta, J. Since counter-af fidavit and rejoinder affidavit have been exchanged, in the circumstances of the case and with the consent of the parties' counsel, this writ petition is disposed of finally.
(2.) BY means of this writ petition, the petitioner has sought issuance of a writ of certiorari for quashing the order dated 13-1-1998 passed by Rent Control and Evic tion Officer/ 'city Magistrate, Kanpur Nagar- respondent No. 1 declaring vacancy in respect of shop No. 18/179, The Mall Road, Kanpur Nagar. According to the petitioner the said shop has been in its occupation since long and for running the said shop the petitioner company entered into an agreement dated 6-3-72 with M/s. Chunnilal Sohan Lal through its Karta Sri G. S. Agrawal. The petitioner has been regularly paying rent of the said shop and has paid the same upto March, 1998. It is further alleged that on 17-1-82 the petitioner company received a notice under Section 226 (3) of the Income Tax Act requiring it to make payment of rent directly to the Principal Officer, Assistant Commissioner of Income Tax department. On 11-10-75 the petitioner company entered into another agreement with Sri VK. Agrawal-respondent No. 3 whereby it was agreed by the later that he would act as agent of the company to sell its products from the shop in question on the terms and conditions laid down in the said agreement and the said respondent also gave security of Rs. 50,000/ -. According to the allegation made in the petition, the petitioner com pany had no information of the proceed ings held before the Rent Control and Eviction Officer and when the company received a Caveat application/notices through Sri Sandeep Saxena, Advocate High Court, Allahabad, the petitioner sent its representative to Kanpur who enquired and found that without issuing any notice to the petitioner company, the proceed ings were held before the respondent. No. 1, and respondent No. 3 in collusion with respondents No. 4 and 5 got declared the shop in question vacant. In short the petitioner s case is that respondent No. 3 was not its sub-tenant and was only acting as its agent and that the impugned order declaring vacancy has been passed without serving any notice on the petitioner com pany in collusion with respondents No. 3,4 and 5. It is also not disputed that by an order dated 27-1-98 the shop in question has been released in favour of respondents No. 4 and 5 who have purchased the property in question from the earst-while owner-landlord. In the counter-affidavit, respon dent No. 3 has denied the petitioner s al legations. It is stated therein that the proceedings before the Rent Control and Eviction Officer were initiated on an ap plication for allotment made by one Sri S. P. Shukla. Under the order of respondent No. 1, the Rent Control Inspector made an inspection of the shop in question and made enquiries. Statement of respondent No. 3 was also recorded wherein he stated that since about two years the petitioner company had closed its business and he himself was carrying on business independently in the name of M/s. VK. Agarwal as sole proprietor and profit and loss of this business were not shared by D. C. M. and the said business was being run by him with the consent of the petitioner. Accord ing to the case set up by this respondent the synthetic cloth business since very begin ning was being done by him alone and Rs. 2100/- per month was being paid to D. C. M. as service charge/rent. Alongwith the af fidavit copy of agreement dated 30- 4- 76 executed between the petitioner company and the said respondent has also been an nexed and it is stated that as per the terms stipulated in para 2 (a) of the said agree ment, the respondent was liable for pay ment of rent of the premises and payment of rent so stipulated was acknowledged in the form of service/maintenance charges for which the petitioner company was giving receipts to him. There were two Schedules m the agreement. Schedule I related to Towels and Control cloth while Schedule-II related to Synthetic Textiles and other varieties of cotton based goods not covered by Schedule-I and the agree ment specifically provided that Schedule-I items were to be sold by the said respon dent on commission basis whereas items mentioned in Schedule-II were to be sold on out-right basis and the petitioner com pany was not to have any share in the profit and loss on the sale of the items mentioned in the said Schedule. The respondent sold the items mentioned in Schedule-II in the name of the firm M/s. V. K. Agarwal for which a separate portion in the shop in question was specified and permission by the letter dated November 7, 1975 was also given by the petitioner company to him. In this letter the area shown in red colour in the attached sketch map was described as given to the said respondent, meaning thereby that this portion was in exclusive possession of the respondent. The electricity and telephone connections in the disputed shop were also in the name of the respondent. Before the R. C. and E. G. he was called upon to furnish the vouchers relating to purchase of cloths from January 1997 to June 1997 and in compliance of the said order he filed bills showing some of the purchases made by him to show that he has been purchasing cloth from other mills. In reply to the contents of paragraph 7 of the writ petition, it has specifically been stated by the respondent that initially the petitioner company was supplying its products to the said respondent on con signment basis but later on they started drawing bills in the name of respondent No. 3 directly. Simultaneously he was al lowed to use a portion of the said shop for the sale of Synthetic material in his own independent right and since then the petitioner company started charging Rs. 900/- per month and he was also permitted to sell other products by petitioner through their letter dated 7-11-1975. As regards the petitioner's allegation that he had no information of the proceedings held before the Rent Control and Eviction Officer, it has been stated by the respon dent that at every stage he informed and communicated to the petitioner about the allotment proceedings. As soon as he received notice from the Rent Control In spector, the same was sent to original to the petitioner company by registered post on 30-6-1997. Carbon copy of the letter alongwith the copy of original postal receipt and acknowledgment due which was received back after service on the petitioner were also annexed with the af fidavit. It is further stated that he again served a letter on the petitioner company by registered post and the allegation of fraud and collusion have been denied specifically. It has also been stated in para-graph-6 of the counter- affidavit that the petitioner company has assigned the tenancy rights and other rights of the retail out- lets of the company in favour of M/s. Phoenix Overseas Ltd. , a public limited company vide Memorandum of Under standing dated 14-1-1995, as such the petitioner company is not entitled to file the present writ petition. The copy of the Memorandum of Understanding has been annexed as Annexure-C. A,-10 by virtue of which the retail out- lets of the D. C. M. including the retail out-let in the shop in question have been assigned to M/s. Phoenix Overseas Limited, New Delhi. This Memorandum of Understanding was acted upon and thereafter M/s. Phoenix Overseas Limited issued various adver tisements in the News Papers stating that the said company has acquired rights of all D. C. M. shops. A truel photo copy of the advertisement dated 16-4-96 published in Hindustan Times, New Delhi Edition has been annexed as Annexure C. A. 11 and the one published in Economic Times dated 10th March, 1995 has been annexed as Annexurec. A-12. Respondent No. 5 one of the co-landlady and not related to No. 3 also filed counter-affidavit wherein also it has been claimed that the petitioner company has been left with no right whatsoever in the shop in question and writ petition at its instance is not maintainable, on account of the assignment of all rights of the company in favour of M/s. Phoenix Overseas Ltd. she denied that there was any collusion between her and respondent No. 3. The shop in question under law would be deemed to have been sub-let and accord ingly was vacant under the provisions of the Act.
(3.) IN the rejoinder affidavit filed on behalf of the petitioner- company it was reiterated that respondent No. 3 was mere ly, an agent of the company. The letter dated 7-11-75 gave only a right to respon dent No. 3 to sell the products of Synthetic material in the capacity of agent of the company under certain specified racks in the shop in question. IN reply to paragraph 6 of the counter-affidavit of respondent No. 3, the allegation of assignment of rights of the petitioner-company in favour of M/s. Phoenix Overseas Ltd. , has not been denied. However, it is asserted that the petitioner-company has not relin quished its tenancy rights. Sri Ranjit Saxena, learned Counsel for the petitioner firstly argued that the Rent Control Inspector had submitted a report with regard to vacancy of the shop in question without service of notice on the petitioner and the petitioner had not been served with any subsequent notice and the proceedings were held by the R. C. and E. C. behind the back of petitioner company and therefore, the impugned order declaring vacancy is liable ,to be quashed on this ground alone. On the other hand Sri Janardan Sahai and Sri Sandeep Saxena, learned Counsel for the respondents ar gued that the petitioner had full knowledge of the proceedings and since it had been left with no interest in the shop in question after the assignment of its rights in favour of M/s. Phoenix Overseas Limited, the company did not contest the proceedings before Rent Control and Eviction Officer. The burden to satisfy this Court that the petitioner had not been served with any notice of hearing or had no knowledge of the proceedings before the respondent No. 1 laid heavily upon the petitioner. Even as per the petitioner's own case, the respondent No. 3 was acting as its agent. It has been pointed out by the respondent-counsel that in the counter- affidavit, it has been specifically stated by the respondent No. 3 that the notice served upon him by the Rent Control Inspector was in turn sent by him in original to the petitioner-company by registered post at the address of the company and after its service acknowledgment due was received by him which bore the official seal of the petitioner-company. Copies of the notice, the postal receipt and acknowledgment due received after service have been an nexed with the counter- affidavit. But only a vague denial has been made in the rejoinder affidavit and it has not been ex plained as to how the seal of the petitioner-company could find affixed on the postal acknowledgment due. Under law there is a presumption of due service on the addres ses when a letter is sent by registered post and A. D. is received back after delivery of the letter. Another information was sent to the petitioner by respondent No. 3 by registered post and its reply given in the rejoinder affidavit is again vague. It can not, therefore, be said that the petitioner had no knowledge of the proceedings which were held before the Rent Control and Eviction Officer and there appears to be weight in the submission of the learned Counsel for the respondent that since the petitioner-company had been left with no interest in the shop in question on account of transfer of the rights in favour of M/s. Phoenix Overseas Limited, the petitioner did not think it necessary to contest the matter before the R. C. and E. O.;