# M/s Univeral Polyvinyl Chloride Gramodyog Sansthan v. State of U.P. & others

- **Citation:** (2000) 3 ILRA 59
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1997-02-27
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-univeral-polyvinyl-chloride-gramodyog-sansthan-v-state-of-u-p-others-39548
- **Pages:** 6

## Text

3All] M/s Univeral Polyvinyl Chloride Gramodyog Sansthan V. State of U.P. & others
59
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By the Court

1. Heard Sri Bharat Ji Agrawal
learned counsel for the petitioner and the
learned Standing Counsel appearing for
the respondents.

The petitioner is a registered society
manufacturing and selling latex solution.
In this connection the State Government
issued notification dated 1.10.1994 under
section 4(c) of the U.P. Trade Tax Act. A
copy of which is Annexure 2 to the writ
petition. By this notification sale of certain
products of village industries certified by
the All India Khadi and Village Industries
Commissions or U.P. Khadi and Village
Industries Board were exempted from
trade tax. The exemption granted by the
notification dated 1.10.1994 was further
amended by notification dated 27.2.1997
vide Annexure 6 to the writ petition by
which exemption was limited to the turn
over of rupees fifty lacs per year. In Item
No.3 (12) of the said notification dated
1.10.1994 an item which was exempted
from trade tax was dipped latex and rubber
products. Admittedly, the petitioner is
registered with Khadi Gramodyog Board
vide Annexure 1 to the writ petition. The
petitioner was also issued certificates by
the Uttar Pradesh Khadi and Village
Industries Board vide Annexures 3 and 4
to the writ petition, certifying that it was
exempted from trade tax.

2. It is alleged in para7 of the writ
petition that latex solution is a rubber
product manufactured from latex raw
rubber acquired by the petitioner on the
basis of licence granted by Rubber Board.
The manufacturing process for making
latex solution is mentioned in para 7 of the
writ petition.
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
60
3. The petitioner is aggrieved by the
circular dated 24.9.1993, Annexure 7 to
the writ petition, in which it has been
stated that latex solution cannot be treated
as 'rubber product' in view of the opinion
of the Law Department, vide Annexure 7.
The grievance of the petitioner is that this
circular letter interferes with the judicial
discretion of the Assessing Authority.

4.
The
learned counsel of the
petitioner has relied upon a decision of this
Court
rendered
in
M/S
Mercury
Laboratories Pvt. Vs. State of U.P. and
others' reported in 2000 U.P.T.C. page 82
in which it has been held that the
Commissioner cannot issue such guide line
or circular letter since they interfere with
the judicial discretion of the Assessing
Authority. We are in respectful agreement
with the aforesaid decision and hence, we
quash the circular letter dated 24.9.1993.
Annexure 7 to the writ petition and direct
that the appellate authority before whom
petitioner's appeal is pending shall now
decide the appeal in accordance with law
ignoring the aforesaid circular letter.

The writ petition is accordingly
allowed.
Petition Allowed.

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3All] Uttam Chand and another V. VI Additional District Judge, Jhansi. & others
61
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By the Court

1. By means of this petition filed
under Article 226 of the Constitution of
India, the petitioners who happen to be
tenants of house and shop, i.e., 29,
Mohalla Subhash Ganj, Jhansi, for short
'the building in question', pray for
issuance of a writ, order or direction in the
nature of certiorari quashing the judgment
and decree dated 11.03.1999 whereby the
suit filed by the respondent no.2, Judge
Small Causes Court, was decreed, the
judgment and order dated 10.02.2000
whereby
the
revision
filed
by
the
petitioners against the judgment and
decree passed by the trial Court was
dismissed
by
the
revisional
Court
(respondent no. 1) and the order dated
14.02.2000 whereby the review application
filed by the petitioners was dismissed by
the revisional Court.

2. The relevant facts of the case
giving rise to the present petition, as set
out in the pleadings of parties (writ
petition and counter affidavit) and other
material on the record, in brief, are that the
respondent no. 3 filed S.C.C. Suit No. 80
of 1997 for ejectment of the petitioners
from the building in dispute and for
recovery of arrears of rent and damages. It
was stated that the building in question
was originally owned by Shri Khushal Rai.
Plaintiff respondent no. 3, Shri Vinod
Kumar Jain, purchased the same from Shri
Khushal Rai through a registered sale deed
dated 23.02.1987. At the time of sale, the
building in question was in occupation of
the petitioners as a tenant at the rent of
Rs.40/-
per
month
which
was,
by
agreement of the parties, enhanced to
Rs.550/- per month. Thereafter, a notice
dated 26.03.1993 is alleged to have been
sent to the petitioners intimating him about
the aforesaid transaction of sale and asking
for payment of rent. Thereafter, two more
notices dated 28.09.1995 and 29.02.1996
were alleged to have been sent to the
petitioners by the respondent no. 3 of
which
no
reply
was
received.
Consequently, it was on 13.03.1997 that a
notice of demand and termination of
tenancy was sent to the petitioners by the
respondent no. 3 demanding arrears of rent
from 23.02.1987 to 01.04.1997 which was
not received by the defendant petitioners
and was returned to respondent no. 3 with
the endorsement that the postman went to
the house of the petitioners at the correct
address
on
14.03.1997,
15.03.1997,
17.03.1997,
19.03.1998,
20.03.1997,
21,03.1997 and on the last on 23.03.1997
to deliver the said notice to the petitioners
and on enquiry, he came to know that the
addressee was not met. It was on
14.03.1997 that a cheque of Rs.4,880/-
plus Rs.40/-, total Rs.4920/-, was given to
the respondent no. 3 which was presented
for encashment before the bank but the
same was dishonored on 17.06.1997.
Therefore, the respondent no. 3 filed a suit
for the above mentioned relief. On receipt
of the summons from the trial Court,
petitioners filed their written statement
pleading that they were in occupation of
the building in question as a tenant at the
rent of Rs.40/- per month, which they used
to pay to Shri Khushal Rai, the original
owner; that the rate of rent was never
revised or enhanced to Rs.550/-; that the
allegation made to the contrary was
incorrect; that the notice dated 26.03.1993
was replied through one Shri Brij Kishore,
Advocate. In reply of the notice, the
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
62
respondent no. 3 was also asked to supply
a copy of the sale deed alleged to have
been executed in his favour by Shri
Khushal Rai but which was never sent to
the petitioners by the said respondent. It
was on 14.03.1997 that a cheque of
Rs.488/- was given to the respondent no. 3,
which covered the amount of rent from
01.02.1987 to 31.03.1997. Thereafter,
money order for an amount of Rs. 40/- was
also sent in the month of May, 1997 as the
aforesaid money order was returned to the
petitioners and cheque was not honoured
by the bank and the amount of Rs.4,920/-
was deposited in the Court under Section
30
of
the
U.P.
Urban
Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972, for short, "the Act", in the name
of the respondent no.3, which was
permitted to be deposited by the Court
concerned at the risk of the petitioners;
that in view of the aforesaid facts and
circumstances, the petitioners committed
no default and the suit was liable to be
dismissed.

3. On the basis of the pleadings of
the parties, the trial Court framed three
issues which related to the sufficiency of
service of the notice of termination of
tenancy and demand, default in payment of
rent committed by the petitioners and the
relief. Parties, in support of their cases,
produced evidence, oral and documentary.
The trial Court, after hearing the parties
and perusing the entire evidence on record,
recorded clear and categorical findings on
all the three issues in favour of the plaintiff
respondent no.3. It was held that the notice
of demand and termination of tenancy was
duly served upon the petitioners through
the post office and by affixation on the
building in question, but inspite of service
of notice, the amount of rent was not paid
to him by the petitioners within the
statutory period. The petitioners, therefore,
was a defaulter within the meaning of the
term used under clause (a) of sub-section
(2) of Section 20 of the Act. Therefore, the
respondent no. 3 was entitled to the relief
claimed by him. Having recorded the said
findings, the suit for ejectment and
recovery of rent and damages was decreed
by the trial Court by its judgment and
decree dated 14.05.1999. Challenging the
validity of the judgment and decree passed
by the trial Court, petitioners filed a
revision before the Court below. The Court
below has also affirmed the findings
recorded by the trial Court and dismissed
the revision by its judgment and order
dated
10.02.2000.
The
petitioners
thereafter filed a review application before
the Court below, which was also dismissed
on 14.02.2000, hence the present petition.

4. Learned counsel for the petitioners
vehemently urged that the notice of
demand and termination of tenancy was
never served upon the petitioners and that
the petitioners never committed default in
payment of rent, therefore, the findings
recorded by the Courts below, to the
contrary, are perverse and the judgments
and decrees passed by the Courts below
were liable to be quashed.

5. On the other hand, learned counsel
appearing for the contesting respondent
no.3 submitted that the findings recorded
by the Courts below are concurrent
findings of fact which are based on
relevant evidence on the record and do not
suffer from any illegality or infirmity. The
present petition was, therefore, liable to be
dismissed with cost.

6. I have considered the submissions
made by learned counsel for the parties
3All] Uttam Chand and another V. VI Additional District Judge, Jhansi. & others
63
and also perused the material on the record
carefully.

7. Admittedly, the suit for ejectment
and recovery of rent/damages was filed by
the respondent no.3 on the ground of
default in payment of rent alleged to have
been committed by the petitioners. The
petitioners could not be held to be a
defaulter unless the notice of demand was
proved to have been served in accordance
with law. A notice issued under Section
106 of the Transfer of Property Act
terminating the tenancy and notice of
demand under Section 20 of the Act are
required to be served in accordance with
the provisions of Section 106 of the
Transfer of Property Act, 1882 which
reads as under:

"106. Duration of certain leases in
absence of written contract or local
usage-

Every notice under this section must
be in writing, signed by or on behalf of the
person giving it, and either be sent by post
to the party who is intended to be bound
by it or be tendered or delivered personally
to such party, or to one of his family or
servants at his residence, or if such tender
or delivery is not practicable, affixed to a
conspicuous part of the property."

8. In the present case, according to
the findings recorded by the courts below,
notice shall be deemed to have been served
personally and by affixation on the
conspicuous part of the building in
question. As stated above, the postman
attempted several timed to serve the notice
in question upon the petitioners personally
but the notice could not be delivered to the
petitioners as they had been avoiding to
receive the same, therefore, in view of the
decisions of the Apex Court and this Court
referred to and relied upon by the Courts
below, the notice was rightly held/deemed
to have been served. The said finding is a
concurrent finding of fact which is based
on relevant evidence on the record. The
Courts below also held that the notice in
question
was
also
affixed
on
the
conspicuous part of the building, the said
finding is also a finding of fact which is
also based on relevant evidence on the
record.

9. In M/s Madan and Company vs.
Jaiveer Chand, A.I.R.1989, S.C. 63, the
Supreme Court, while interpreting the
provisions of section 11 of the Jammu and
Kashmir House and Shops Rent Control
Act, which is analogous to provision of
Section 106 of the Transfer of Property
Act, ruled that the word 'served' is to be
read as sent by post correctly and properly
addressed to the tenant and the word
'receipt' as tender of the letter by the
postman at the address mentioned in the
letter. Relying upon the said decision, this
Court in V.K. Srivastava Vs. Avinash
Chandra and another, 1994, A.W.C. 1229,
while interpreting the provisions of section
21(1), first proviso, held that mere denial
of the receipt of a notice sent by registered
post at correct address is not enough for
rebuttal of presumption of service. Postal
endorsement of registered cover to the
effect that despite repeated information,
neither the addressees were met nor
anyone there disclosed where they could
be met, it appears that the addressees were
avoiding to receive the notice, therefore,
the Appellate Authority rightly held that
the notice was presumed to be served by
refusal. The findings recorded by the
Courts below regarding the service of
notice in any view of the matter, cannot be
said to be perverse or illegal. The notice
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
64
was not only served by registered post at
correct address but also by affixation of
the notice on the conspicuous part of the
house of the petitioners.

10. So far as the question of default
is concerned, clause (a) of sub-section (2)
of Section 20 of the Act reads as under:-

20. Bar of suit for eviction of tenant
except on specified grounds -(1)........
(2) A suit for the eviction of a tenant from
the building after the determination of his
tenancy may be instituted on one or more
of the following grounds, namely:
(a) that the tenant is in arrears of rent for
not less than four months, and has failed to
pay the same to the landlord within one
month from the date of service upon him
of a notice of demand."

11. The necessary conditions for
declaring a tenant as a defaulter within the
meaning of the term used under clause (a)
of sub-section (2) of Section 20 of the Act,
are that the tenant should be in arrears of
rent for not less than four months and from
the date of notice of demand is served
upon him the tenant should have failed to
pay the arrears of rent within one month.
In the present case, the notice of demand
was served on 14.03.1997, whereby rent
for the period 23.02.1987 to 01.04.1997.
The petitioners, even after receipt of the
said notice, did not pay the arrears of rent
within statutory period of 30 days. The
amount in question alleged to have been
tendered by means of a cheque, in law is
not a valid tender. Further, the cheque in
question was dishonoured by the bank for
shortage of money in the account of the
petitioners. Petitioners also cannot take
advantage of money deposited under
Section 30 of the Act as such deposit was
made on 13.06.1997, i.e., after 30 days of
the receipt of notice. Cheque was for an
amount of Rs.4,920/- while in the bank
account of the petitioners, there were a
balance of Rs.2511.87 only. Even the
money order which is alleged to have been
sent in the month of May,1997, by which
an amount of Rs.40/- only is alleged to
have been sent, was of no consequence.
The Courts below did not commit any
error of law in holding that the petitioners
were defaulters and on the said ground,
they were liable to be ejected from the
building in question. The petitioners
having committed default in payment of
rent were, therefore, legally liable to be
ejected from the building in question. The
trial Court rightly decreed the suit and the
revisional Court rightly dismissed the
revision and the review application filed
by the petitioners.

12. In view of the aforesaid
discussion, no case for interference under
Article 226 of the Constitution of India is
made out. The writ petition has got no
merits.

The
writ
petition
fails
and
is
dismissed with cost.
Petition dismissed.

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