2003 (2) TMI 552 - HC - Indian Laws

Summary

Issues Involved:
1. Validity of service of notice under Section 12(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.
2. Presumption of service of notice under Section 28 of the Bombay General Clauses Act, 1904.
3. Rebuttal of presumption of service by the tenant.
4. Compliance with Section 106 of the Transfer of Property Act, 1882.
5. Validity of service by affixation.

Detailed Analysis:

1. Validity of Service of Notice under Section 12(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947:
The petitioner challenged the eviction decree on the grounds that the notice of demand for arrears of rent was not properly served as required under Section 12(2) of the said Act. The petitioner argued that no notice was received, and thus the decree for eviction was invalid.

2. Presumption of Service of Notice under Section 28 of the Bombay General Clauses Act, 1904:
The court examined the presumption of service of notice when sent by registered post. It was noted that under Section 28 of the Bombay General Clauses Act, there is a presumption of service if the notice was sent to the correct address and returned with postal remarks such as "unclaimed." The court cited the Apex Court's ruling in M/s. Madan & Co. v. Wazir Javir Chand, which held that once a letter is posted correctly, the presumption of service arises, and it is attributed to the addressee's conduct if it is not received.

3. Rebuttal of Presumption of Service by the Tenant:
The petitioner argued that the presumption of service was rebutted as he was out of station from 1990 to 1992. The court, however, emphasized that mere absence from the premises does not rebut the presumption. The tenant must make arrangements to receive correspondence during their absence. The court referred to the Apex Court's ruling in Anil Kumar v. Nanak Chandra Verma, which stated that unchallenged testimony might rebut the presumption, but mere denial is insufficient.

4. Compliance with Section 106 of the Transfer of Property Act, 1882:
Section 106 of the Transfer of Property Act requires that notice must be sent by post or delivered personally, and if impracticable, affixed to a conspicuous part of the property. The court noted that service by affixation is permissible only when personal delivery or postal service is impracticable. The court held that the landlord's efforts to serve notice by affixation were valid, given the postal endorsement of "unclaimed."

5. Validity of Service by Affixation:
The court found that the landlord had complied with Section 106 by affixing the notice to the door of the premises when personal service was impracticable. The court held that the presumption of service was not rebutted by the petitioner, and the service by affixation was valid.

Conclusion:
The court dismissed the petition, upholding the concurrent findings of the lower courts that the notice was duly served. The presumption of service under Section 28 of the Bombay General Clauses Act was not rebutted by the petitioner. The service of notice by affixation was also found to be in compliance with Section 106 of the Transfer of Property Act. The petition was dismissed with no order as to costs.