JUDGMENT
Rajesh Tandon, J.
1. Heard Sri B.C. Pandey, Sr. Advocate assisted by Sri Naresh Pant, Counsel for the petitioner and Sri V.K. Bisht, Sr. Advocate assisted by Sri Amberish Chatterji, Counsel for the respondents.
2. By the present writ petition, the petitioner has prayed for a writ of certiorari quashing the order passed by the Courts below by which the decree for eviction has been granted. Both the Courts below have granted the decree for eviction and the petitioner has filed the present writ petition challenging both the orders.
FACTUAL MATRIX OF THE CASE:-
3. Briefly stated, the suit was filed by the plaintiff/respondent No. 1 praying for eviction of the petitioner from the premises in dispute on the ground of default in payment of arrears of rent. The plaint averments to that effect are quoted below:-
^^vr% izkFkZuk gS fd fMxzh cgd oknh f[kykQ
izfroknh ua 1 bl izdkj nh tk;%&
v fd izfroknh us oknh ua 1 oknh dks cdk;k
fdjk;k : 4]586@& e; C;kt vnk djs vkSj uksfVl ds ckn okn ds fnukad rd
gtkZuk 2]283-75 e; C;kt vnk djsaA
4. As will appear from the plaint, the plaintiff has sent the notice to the defendant under Section 106 of the Transfer of Property Act read with Section 20 of U.P. Act No. 13 of 1972 terminating the tenancy.
5. The defendant has filed a written statement denying the plaint averments. The defendant has contested the claim of the plaintiff by stating that the water tax was inclusive of the rent of Rs. 145/- per month. He has also denied the receipt of notice. Plaintiff was examined on oath, who has deposed that water tax was not a part of the rent.
Notice Under Section 106 of the Transfer of Property Act
6. Counsel for the petitioner Sri B.C. Pandey, Senior Advocate has submitted that since the notice under Section 106 of the Transfer of Property Act has not been served, the suit for eviction was not maintainable. On the other hand Counsel for the respondent has submitted that the notice was sent with the correct address and as such a presumption of service can be drawn with regard to service of notice.
7. The plaintiff/landlord was examined on oath, who has deposed with regard to the fact that the notice was sent on a correct address to the addressee, who has refused to accept the notice. Statement of PW1 to that effect is quoted below:-
^^eSusa izfroknh la 1 }kjk tek fdjk;k o mldh
vksj cdk;k /kujkf’k dk fooj.k okni{k esa fn;k gSA eSusa vius vf/koDrk izfroknh
dks iatr Mkd ls uksfVl fHktok;k rks mlus uksfVl dks ysus ls bUdkj dj fn;k vkSj
eq>s okil izkIr gqvk tks i=koyh ij ewy :i esa 8 x gSA uksfVl ij fy[kk gqvk
irk lgh irk gSA blls iwoZ Hkh eSus blh irs ij izfroknh dks fufVl Hkstk Fkk tks
izfroknh la 1 us izkIr fd;k Fkk bl uksfVl dh lgh dkcZu izfr 19 x i=koyh ij gS
ftl ij esjs vf/koDrk Jh vkjlh mik/;;k; ds gLrk{kj gS ftUgsa eSa f’kuk[r djrk
gwa bl uksfVl dk tokc tks ifroknh us fn;k Fkk ewy:i ls i=koyh esa is’k gS tks
dkxt la 20 x gSA dkyhjke fMQkYVj O;freh gSA vkSj izfroknh Rs.
68-70@& dk tuojh 2001 rd fdjk;k o tydj dk nsunkj gSA**
8. The revisional Court has referred the evidence of the petitioner and has recorded a finding that it was sent on the correct address. The said finding is quoted below:-
“12. The learned Counsel for the revisionist next submitted that the notice as was required by Section 3 of the Act as well as under Section 106 of the Transfer of Property Act was never served by the landlord upon the tenant. Consequently, the tenancy has not been terminated and thus, the suit was liable to be dismissed. On the other hand, learned Counsel for the landlord-O.P. No. 1 submitted that combined notice of demand of rent under Section 3 of the Act and Section 106 of the Transfer of Property Act was sent by the landlord to the tenant by a registered post on the correct address of the tenant, which was returned with the endorsement of postal authorities that in spite of repeated visits, the addressee was not available and, therefore, according to the learned Counsel for the O.P. landlord, the notice stands served. The returned notice is paper No. 8-C on the record, which bears the endorsement presumably made by the postman that in spite of several visits, the addressee was not available at his shop, therefore, returned. In evidence, the tenant has admitted that the address as given in this registered letter is correct. He gets registered post on this address. No where the tenant has proved on record that during this period (when postman might have visited his place, i.e. 4.11.1999, 12.11.1999 and 15.11.1999) his shop was closed or he was out of station, therefore, it is clear from the evidence of D.W. 1 itself that the address on which the notice was sent by the landlord to the tenant is his correct address.”
9. It is well settled law that if the notices have been sent on a correct address, the presumption lies with regard to the service of the notice on the defendant. The petitioner having failed to discharge the burden and has failed to prove that either the notice was not sent on correct address or the same has not been served upon him and therefore, the findings of fact recorded by the Courts below, therefore, cannot be interfered under Article 226/227 of the Constitution of India.
10. Presumption of notice has been interpreted by the Full Bench of Allahabad High Court in Ganga Ram v. Phulwati (FB) A.I.R. 1970 Allahabad 446, where following questions were referred:-
(1) Whether a notice under Section 3 of the UP. (Temporary) Control of Rent and Eviction Act, even if combined with a notice under Section 106 of the Transfer of Property Act, has to be served on the tenant personally?
(2) Whether it is 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?
(3) Whether in the circumstances of the present case, the Courts below were right in raising the presumption under Section 114 of the Evidence Act in favour of the landlord?
11. The findings of the Full Bench in Ganga Rant v, Phulwati (supra) are quoted below:-
“It is not the duty of the plaintiff to prove that the defendant, after having received notice, had actually read it and understood its contents. Similarly, where the registered envelope contains a correct address of the tenant and the addressee either cannot be met or refuses to take notice, there appears to be no reason why the notice should not be deemed to have been properly served on the addressees. In the case of Harihar Banerji v. Ramshashi Roy, AIR 1918 PC 102 it was held that if a letter properly directed containing notice to quit is proved to have been put into the post office, it is presumed that the letter reached its destination at the proper time according to the regular course of business of the post office and was received by the person to whom it was addressed. In the absence of proof to the contrary, it will be presumed that the refusal had been made by the tenant to whom the registered letter was correctly addressed at the time when the letter could be expected to reach him in the ordinary course. With great respect, and for the reasons given by us, we do not find it possible to agree with the views expressed in the abovementioned cases decided by the Bombay, Madhya Bharat and Nagpur High Courts.
It has been further contended by the learned Counsel for the appellant that although a presumption under Section 27, General Clauses Act, may be made in respect of a notice under Section 106 of the Transfer of Property Act, it cannot be made in-respect of a notice under Section 3 of the UP. (Temporary) Control of Rent and Eviction Act, and. Therefore, where a combined notice under Section 106 of the Transfer of Property Act, and Section 3 of the UP. (Temporary) Control of Rent and Eviction Act is sent, a presumption should be raised only under Section 114 of the Indian Evidence Act, and not under Section 27 of the General Clauses Act?”
12. Relying upon the provisions of Illustrations E and F of Section 114 of the Indian Evidence Act as well as Rule 62, 63 and 64 (1) of the Rules framed under the Indian Post Office Rules and Section 27 of the General Clauses Act, it has been held that when a registered article or a registered letter is handed over to an accepting or receiving post office, it is official duty of the post office to make its delivery to the addressee. The observations of the Full Bench are quoted below:-
“It is also necessary to consider the rules framed under the Act, Indian Post Office Rules, 62, 63, 64 (1) read as follows:-
“62. A receipt shall be given to the person who presents an article for registration at the post office window during the hours prescribed for posting registered articles.
63. No registered article shall be delivered to the addressee unless and until he or his agent has signed a receipt for it in such form as the Director-General shall prescribe.
64. (1). If the sender of a registered article pays at the time of posting the article a fee of one anna in addition to the postage and registration fee, there shall be sent him on the delivery of the article a form of acknowledgment which shall be signed by the addressee or if the addressee refuses to sign shall be accompanied by a statement to the effect that the addressee has refused to sign.”
A perusal of the relevant provision of the Posts and Telegraphs Manual, Vol I, would indicate the working in the post offices. Paragraphs 183, 191 of the Manual may be examined. Paragraph 183 deals with receipts, acknowledgments and undelivered articles taken from postman. The relevant portion of sub-para (1) of paragraph 183 reads as follows:-
“The receipts (Form R.P. 31) and acknowledgments (Form R.P. 54 or R.P. 54-a) for the registered articles delivered, the undelivered registered articles with their receipts and acknowledgment (if any)………..must be taken by the registration or parcel clerk, as the case may be, from the postman immediately on their return to the office………………..”.
………………………………
11 It is, therefore, evident that in the case of a notice under Section 106 of the Transfer of Property Act, after that notice has been duly dispatched through the post office by registered post to the correct address of the tenant, a presumption about due service of that notice can be made under illustration (e) and (f) of Section 114 of the Indian Evidence Act, which reads as follows:–
114. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particulars case.
Illustrations:-
The Court may presume–
…………
1970 All./29 VIII G-14
(e) that judicial and official acts have been regularly performed;
(f) that the common course of business has been followed in particular case…………….”
12. When a registered article or a registered letter is handed over to an accepting or receiving post office, it is the official duty of the postal authorities to make delivery of it to the addressee. Human experience shows that except in a few exceptional cases letters or articles received by the post office are duly, regularly and properly taken to the addressee. Consequently, as a proposition it cannot be disputed that when a letter is delivered to an accepting or receiving post office it is reasonably expected that in the normal course it would be delivered to the addressee. That is the official and the normal function of the post office.
14. Taking into consideration the manner in which the post office deals with registered letters, the endorsement on the notice “Refused” strengthens the presumption that an attempt was made to deliver the notice to the addressee.
16. In the case of a notice under Section 106 of the Transfer of Property Act a presumption can, therefore, be made also under Section 27 of the General Clauses Act, which reads as follows:-
“Where any Central Act or Regulation made after the commencement of this act authorities or requires any document to be served by post, whether the expression ‘serve’ or either of the expressions ‘give’ or ‘send’ or any other expression is used, then, unless a different intention appears the service shall be deemed to be affected by properly addressing, prepaying and posting by registered post, a letter containing the document, and unless the contrary is proved to have been affected at the time at which the letter would be delivered in the ordinary course of post.”
17. Section 106 of the Transfer of Property Act provides for a mode of service of the notice and, therefore, the provisions of Section 27 of the General Clauses Act, shall apply and once it is established that a registered notice was delivered at the receiving post office containing the correct address of the tenant, a presumption of law can be made that the notice has been served on the addressee.
18. Section 106 of the Transfer of Property Act was amended in the year, 1929 by Act XX of 1929. The view taken by our High Court in all the cases decided after the year, 1929 is consistently in favour of what we have said in the preceding paragraphs.
……………………………………………………………………….
28. It is not the duty of the plaintiff to prove that the defendant, after having received notice, had actually read it an understood its contents. Similarly, where the registered envelop contains a correct address of the tenant and the addressee either cannot be met or refuse to take notice, there appears to be no reason why the notice shall not be deemed to have been properly served on the addressees.
……………………….
32. Section 3 (1) (a) the UP. (Temporary) Control of Rent and Eviction Act, reads as follows:-
3(1). Subject to any order passed under Sub-section (3) no suit shall, without the permission of the District Magistrate, be filed in any civil Court against a tenant for his eviction from any accommodation, except on one or more of the following grounds:
(a) that the tenant is in arrears of rent for more than three months and has failed to pay the same to the landlord within one month of the service upon him of a notice of demand………………………….”.
Clause (a) of Sub-section (1) of the UP. Act II of 1947 does not specifically mention personal service. The tenant may be a minor of a person of unsound mind, or merely a justice person, not capable of being served personally. For fear of service of notice on him the tenant may also start refusing all the registered letters sent by the landlord by post. The intention of the (aw could never be that the tenant must personally accept a notice of demand before he can be ejected from his tenancy. The expression “service upon him of a notice of demand” used in Clause (a) of Sub-section (1) of Section 3 should include the service of notice deemed to have been made on a tenant under the provisions of Section 27 of the General Clauses Act, or presumed to have been made on him under Section 114 of the Indian Evidence Act.
33. The fact that the notice was returned back to the sender with an endorsement “Refused” does not, in our opinion, dislodge the presumption that the registered notice had reached the addressee. On the other hand, it strengthens the presumption that the notice had reached the addressee. It could not be delivered to him because he refused to accept it.
34. In view of what we have stated above, we proceed to answer as follows the three questions to the Full Bench:-
Question
Our Reply
1. Whether a notice under Section 3 of the U.P.
(Temporary) Control of Rent and Eviction Act, even if combined with a notice
under Section 106 of the Transfer of
Property Act, has to be served on the tenant personally?
1. The answer is in the negative.Even
a notice of demand deemed or presumed to have been served on a tenant will be
“service upon him of notice of demand”.
2. Whether it is incumbentton 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?
2. The answer is in the negative.
3. Whether in the circumstances of the present case the Courts below
were right in raising the presumption under Section 114 of the Evidence Act in favour of the landlord?
3. The answer is in the affirmative.The
presumption regarding service of such notice has also to be made under
Section 27, General Clauses Act,
13. In Anil Kumar v. Nand Kumar Verma, 1988 (2) ARC Page 216, it has been held that after several days, when the defendant did not meet at the shop the presumption was drawn that notice was sent by registered post was refused.
14. In the case of Anil Kumar (supra) reliance was also placed on the judgment of Ganga Ram v. Phulwati (supra) and it has been held as under:-
“The evidence led by the plaintiff that after several dates when he was not met at the shop. Anil Kumar refused to accept the notice sent to him by registered post has been delivered by the trial Judge. True it is that Anil Kumar stated on oath that he had not refused any notice nor was any notice tendered to him as alleged and thus, tried to rebut the presumption arising from the endorsement of refusal made by the postman, the fact remains that the trial Judge has, in effect, found on evaluation of the evidence on record, that it was not so rebutted. On this finding, the submission that no notice was served upon Anil Kumar is unworthy of acceptance.”
15. The aforesaid decision has been approved by the Apex Court in Anil Kumar v. Nanak Chandra Verma 1990 (2) ARC Page 542 and the Apex Court has observed that if the notice was not personally served and the plaintiff has, therefore, discharged the initial burden by examining himself presumption lies in favour of the plaintiff. The observations are quoted below:-
“The principal question that arises for consideration relates to the validity of the notice issued under Section 106 of the Transfer of Property Act. The notice was not personally served but there is an endorsement of the postman stating that it has been refused. The case of the tenant was that he was not at all present during the period when the postman visited the premises for service and the endorsement of the postman was, therefore, not correct. He has discharged the initial burden by examining himself and it would be for the other side to prove the valid service.”
“In the instant case, the trial Court has considered the evidence of the tenant and was not impressed with it. It is indeed impossible to believe that the tenant having the business premises at Ghaziabad would have left it in the hands of the servant and remained at Delhi for a long period from December 19, 1984 to January 1, 1985 where people shuttle between the two places quite often.”
16. The aforesaid decisions in the case of Anil Kumar has been relied upon in the case of Pramod Kumar v. IIIrd Additional District Judge, Meerut and Ors., 1996 (2) ARC Page 352, the relevant observations are quoted below:-
“The controversy was settled by the decision of Hon’ble Supreme Court in Anil Kumar v. Nanak Chandra Verma, AIR 1990 SC 1215 : 1990 (2) ARC 542 (SC), wherein the view taken in Shiva Dutt Singh v. Ram Das, AIR 1980 Alld. 280 and the decision of Delhi High Court in AIR 1976 Delhi 111, Jagat Ram Khullar v. Battu Mal, that the bare statement of the tenant was sufficient to rebut presumption was over-ruled. It was held that there could not be hard and fact rule on that aspect. The Court observed “in our opinion, there could not be hard and fast rule on that aspect. Unchallenged testimony of tenant in certain cases may be sufficient to rebut the presumption but if the testimony of the tenant itself is inherently unreliable, the position may be different. It is always a question of fact in each case, whether, there was sufficient evidence from the tenant to discharge initial burden.”
“In Radhy Shyam Patwa v. Xth ADJ Varanasi and Ors., 1993 (2) ARC 485, the Court after considering the various decisions held that mere fact that the tenant has denied that he ever refused to receive the notice is itself not sufficient to hold that the presumption stands rebutted. It depends upon the facts of each case. If the Courts below record the finding that notice was served by refusal it is question of fact, It was also not necessary to produce the postman for examination to establish that the tenant had refused to accept the notice.”
17. Relying upon the aforesaid full bench Ganga Ram v. Phulwati, AIR 1970 Allahabad 446 (FB), the Division Bench of Allahabad High Court reported in 1984 (2) ARC Page 290 (Ram Nath v. Angan) has held that where a registered envelop containing correct address of the tenant is posted to him and if the addressee tenant either refuses to lake notice or could not be met the notice shall be deemed to have been properly served on the addressee. The observations are quoted below:-
“This question was considered a length by a Full Bench of this Court in Ganga Ram v. Phulwati, AIR 1970 All 446. The Full Bench held that where a registered envelop containing the correct address of the tenant is posted to him and if the addressee tenant either refuses to take notice or could not be met, the notice shall be deemed to have been properly served on the addressee.”
18. Relying upon the judgment in the case of Ganga Ram v. Phulwati, AIR 1970 Allahabad 446 (FB), it has been held in the case of Mahabir Prasad Agarwal v. Brij Nath Gigras reported in 1989 (1) ARC Page 413 that when a registered article or registered letter is handed-over to an accepting or receiving post office, it is the duty of the postal authority to make a delivery of it to the addressee. The observations are quoted below:-
“Moreover, it is an admitted fact that the notice was sent at the correct address. When a registered article or registered letter is handed over to an accepting or receiving post office it is the duty of the postal authority to make delivery of it to the addressee. Human experience shows that except in a few exceptional cases letters are articles received by the post office are duly, regularly and properly taken to the addressee. Consequently, as a proportion it cannot be disputed that when a letter is delivered to the post office it is reasonably expected that in the normal course it would be delivered to the addressee. That is the official and the normal function of the post office. On the valid service of the notice on the defendant the learned Counsel for the respondent has relied upon a Full Bench decision of this Court reported in AIR 1970 Alld, 446, Ganga Ram v. Smt. Phulwati, in which the effect of Section 14 of the Post Office Act and Clauses Act have been considered. The proposition of law laid down in that case is not at all disputed by the learned Counsel for the appellant. His only contention is that once the presumption has been rebutted, then the burden shifted on the plaintiff to prove the service which he has failed to do. On this question I have already recorded my finding rejecting this plea. I held that the finding of service of notice also does not suffer from any error of law.”
19. Relying upon the judgments of the Division Bench as well as the Full Bench, it has been held in 1999 (2) ARC Page 651 (Barindra Kumar Baruha v. ADJ, Allahabad) as under:-
“Perusal of the said decision show that legal position is fully crystallized. No Postman is required to be produced and a presumption is raised, in law, in case a registered letter is received back with the endorsement of refusal provided it was sent on correct address and in the name of correct, person.”
20. Relying upon the judgment of Full Bench (supra) in Syed Ahmad Jawwad v. Smt. Qudesiya Saidullah reported in 2004 (2) ARC 674, it has been held as under:-
“The next question is whether the notice under Section 106 of the Transfer of Property Act was validly served on the tenant, defendant No. 1 or not.
21. It is fairly settled that there is presumption of due service when the registered letter which contains the correct address was returned by the postman with the report that the addressee has refused to accept it. The said presumption is available both under the Evidence Act as well as under the Post Office Act. A Full Bench Judgment of this Court in the case of Ganga Ram v. Smt. Phulwati, AIR 1970 Allahabad, 446, has held that it is not incumbent on the plaintiff to prove the endorsement of refusal on the notice sent by registered post by producing postman or other evidence in the case the defendant denies service on him. Therefore, the finding of the trial Court that there was no valid service on the defendant opposite party No. 1 cannot be sustained. The service of notice is held sufficient on the defendant opposite party No. 1.”
DEFAULT
22. Counsel for the petitioner Sri B.C. Pandey, Sr. Advocate, has then submitted that he was not a defaulter. Coming to the question of default, the defendant Kali Ram was examined as DW1. The trial Court has recorded a finding that the defendant is a defaulter to the extent of Rs. 6,870/-. Paragraphs No. 4 and 5 of the plaint are quoted below:-
^^4- fd izfroknh ua 1 ij fnukad 1-6-1992 ls
fnukad 31-1-2001 rd dsoy fdjk;k : 15080-00 rFkk l ij 12-5 izfr’kr dh nj ls
tydj : 1885-00 dqy : 16]965@& cdk;k curk gSA
5- fd izfroknh la 1 us vHkh rd U;k;ky; esa
dsoy : 10]095@& gh tek fd;k vkSj ml ij fnukad 31-01-2001 rd
16]965-00&10-095-00: 6]870-00 ckdh gS vkSj og fMQkYVj gSA**
23. So far as the arrears of rent are concerned, both the Courts below have recorded concurrent findings of fact that the petitioner was in arrears of rent. The finding of the Civil Judge (Sr. Div.) is quoted below:-
^^pwafd i=koyh ij miyC/k nLrkosth ,oa ekSf[kd
lk{; ls ;g Li”V gks pqdk gS fd izfroknh dks 145@- :i;s izfr ekg ij vkokl
fdjk;s ij fn;k x;k gS mlesa tydj dh /kujkf’k lfEefyr ugha gSA tydj tSlk fd
rr~dkyhu eqaflQ vYeksM+k ds vkns’k fnukad 3-8-1993 ls Li”V gS fd izfroknh
dks tydj /kujkf’k vyx ls vnk djuh FkhA okfn dh lk{; ls ;g Li”V gS fd
izfroknh }kjk fdjk;k ,oa tydj dh /kujkf’k tks dqy 6]870@- :i;s gS vnk dh x;h gSA
izfroknh us Lo;a gh vius tokcnkos ,oa lk{; esa Lohdkj fd;k gS fd tydj dh /kujkf’k
edku fdjk;s esa gh lfEefyr gS tcfd miyC/k lk{; ls Li”V gks pqdk gS fd
izfroknh dks 145@& :i;s ekfld fdjk;s ij fooknfr vkokl fn;k x;k Fkk ftlesa
tydj dh /kujkf’k vyx ls gSA bl izdkj izfroknh }kjk tydj dh /kujkf’k ,oa fdjk;s
dh /kujkf’k 6]870@& :i;s vnk u djus ds dkj.k izfroknh fMQkYVj gSA vr% ;g okn
fcUnq ,rn~}kjk fuLrkfjr fd;k tkrk gSA**
24. The petitioner was required to deposit the water tax separately in proceedings under Section 30 of the Act. It reads as under:-
^^blds izR;qRrj esa izkFkhZ ds fo}ku vf/koDrk
us 21-6-1991 ds uksfVl dks fn[kk;k tks foi{kh ds vf/koDrk Jh jes’k pUnz lkgw }kjk
izkFkhZ dks Hkstk x;k gS] ftlesa fdjk;s dh jkf’k dqy 100@& izfrekg fn[kk;k
x;k gSA blfy, izkFkhZ ds fo}ku vf/koDrk dk rdZ gS fd fdjk;s dh jkf’k dsoy :
100@& izfrekg gS] 45@& blesa tydj lfEefyr gS] blfy, izkFkhZ vyx ls tydj
nsus ds fy, mRrjnk;h ugha gSA blds izR;qRrj esa foi{kh ds fo}ku vf/koDrk dk rdZ
;g gS fd ;g uksfVl iwoZ esa Jh jes’k pUnz lkg }kjk Hkstk x;k] ftlesa Hkou fdjk;k
gSA tydj vyx ls tek djsxkA izkFkhZ vius mRrjnkf;Ro ij fdjk;k tek dj ldrk gSA
vkifRr rn~uqlkj fuLrkfjr dh tkrh gSA**
25. Counsel for the petitioner has disputed the liability of the water tax being part of the rent and therefore, according to him, he was not a defaulter within the meaning of Section 20 (a) of the Act,
26. It has been held in 1996 (2) ARC 44 Abdul Alim v. District Judge that Water tax is a part of rent. The observations are quoted below:-
“Under Section 7 of the UP. Act No. XIII of 1972 the liability to pay water tax is of the tenant subject to any contract in writing to the contrary. There is admittedly no contract in writing to the contrary and hence the liability of water tax was that of the tenant. Under Section 7 the Water Tax has to be paid by the tenant to the landlord in addition to and as part of the rent. Admittedly, the tenant has been praying or depositing rent at Rs. 90 per month, which did not include water tax. Hence, in my opinion, the tenant was liable to eviction since he has not paid water tax.
27. In the case of Rafi v. Ist Additional District Judge, Gorakhpur reported in 1997 (2) ARC 383, it has been held:-
“In 1995 (2) ARC 52, it was held that Sections 7 (a) and 20 (4) re read together, then it will be palpable that the water tax is part of rent and tenant is liable to pay it to landlord, unless there is a contract in writing to the contrary. He has referred another decision reported in 1988 (2) ARC 313, wherein it has been held that liability is on tenant to pay water tax also as rent unless there exists contract in writing to the contrary. Tenant taking plea that amount paid by him was inclusive of water tax also, he is to prove the same as burden lies on him to establish his plea in absence of any contract in writing to that effect.”
28. Both the Courts below have recorded a finding that the petitioner is a defaulter and has failed to pay the rent in spite of notice having been received by him. I find no infirmity so as to interfere under Article 226/227 of the Constitution of India.
FINDINGS OF FACT:-
29. Both the Courts below have recorded the concurrent findings of rent with regard to default on the part of the petitioner and the decree for eviction having been passed, I find no infirmity in the findings recorded by the Court below.
30. In Surya Dev Rai v. Ram Chander, SCC 2003 Vol-6, 675 : 2003 (2) ARC 385, the Apex Court has held as under:-
“In Surya Dev Rai v. Ram Chander Rai that the jurisdiction was not available to be exercised for indulging in reappreciation or evaluation of evidence of correcting the errors in drawing inferences like a Court of appeal. The High Court has itself recorded in its judgment that- “considering the evidence on the record carefully” it was inclined not to sustain the judgment of the appellate Court. On its own showing the High Court has acted like and appellate Court which was not permissible for it to do under Article 226 or Article 227 of the Constitution.”
“Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When a subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.”
“Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirement are satisfied: (i) The error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.”
“A patent error is an error which is self-evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate Courts has chosen to take one view, the error cannot be called gross or patent.”
“The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the above said two jurisdictions is sought to be invoked during the pendency of any suit or correction is yet capable of being corrected at the conclusion of the proceedings is an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and or early disposal of the suit of proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that every moment, may become incapable of correction at a letter stage and refused to intervene would result in stravesty of justice or where such refusal itself would result in prolonging of the lis.”
“The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a Court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.”
31. Relying upon the earlier judgment in the case of Surya Dev Rai v. Ram Chander, SCC 2003 Vol. 6 Page 675 : 2003 (2) ARC 385, the Apex Court has held in the case of Ranjit Singh v. Ravi Prakash (2004) 3 Supreme Court Cases 682 : 2004 (1) ARC 613, as below:
“In Surya Dev Rai v. Ram Chander Rai this Court has ruled that to be amenable to correction in certiorari jurisdiction, the error committed by the Court or authority on whose judgment the High Court was exercising jurisdiction, should be an error which is self-evident. An error, which needs to be established by lengthy and complicated arguments or by indulging in a long-drawn process of reasoning, cannot possibly be an error available for correction by writ of certiorari. If it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error. As to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution also, it has been held in Surya Devi Rai that the jurisdiction was not available to be exercised for indulging in re-appreciation or evaluation of evidence or correcting the errors in drawing inferences lies a Court of appeal. The High Court has itself recorded in its judgment that- “considering the evidence on the record carefully” it was inclined not to sustain the judgment of the appellate Court. On its own showing, the High Court has acted like an appeal Court which was not permissible for it to do under Article 226 or 227 of the Constitution.”
32. In view of the above, the findings with regard to the notice and default cannot be a matter of interference under Article 226/227 of the Constitution of India.
33. However, the petitioner is granted time by 31st March, 2005 to vacate the premises provided undertaking is given by the petitioner before the Court of J.S.C.C. by 31st December, 2004 and pays the entire dues by that date. In case of failure of giving the undertaking, liberty is given to the landlord to proceed for the execution of the order.
34. Consequently, Writ Petition is dismissed. No order as to costs.