1993 (9) TMI 336 - HC - Indian Laws

Writ petition dismissed for non-compliance with notice requirements and incomplete address. Restoration application withdrawn.

The court dismissed the writ petition due to non-compliance with statutory notice requirements, incomplete address in the postal receipt, and failure to ... Service of notice by affixation - service by registered post acknowledgment due - manner of service prescribed by Rule 4 - service evidenced by written acknowledgment - presumption of service under the General Clauses Act - non-joinder of necessary partiesService of notice by affixation - service evidenced by written acknowledgment - manner of service prescribed by Rule 4 - Whether sending a notice by registered post (other than registered post acknowledgment due) in addition to affixation on the outer door constitutes proper service under sub-section (3) of Section 4 of the Act read with Rule 4 of the Rules. - HELD THAT: - Rule 4 requires that, in addition to modes of service specified in the Act, a notice under Section 4 shall be served by delivering or tendering a copy to the person or by sending it by registered post acknowledgment due addressed to his usual or last-known place of residence or business. The Rule emphasises service evidenced by writing - either signature on delivery or the acknowledgment due when sent by registered post. Affixation alone was not intended to replace the additional protection afforded by Rule 4. Because the present service was not evidenced by any written acknowledgment of the occupant or an adult family member, the requirement of Section 4 read with Rule 4 was not complied with. The Court therefore rejected the contention that the combination of affixation plus sending by ordinary registered post (without acknowledgment due) satisfied the statutory mandate.Sending the notice merely by registered post (without acknowledgment due) together with affixation did not constitute proper service under Section 4(3) read with Rule 4; compliance requires service evidenced by written acknowledgment as prescribed.Presumption of service under the General Clauses Act - service by registered post acknowledgment due - Whether the High Court's reliance on a presumption of service (as under the General Clauses Act) can validate a registered post not sent as acknowledgment due, where the postal receipt lacks sufficient address details. - HELD THAT: - Even if cases permit a presumption of service in respect of registered post returned with endorsements, that line of authority does not address compliance where the statute and rule require dispatch by registered post acknowledgment due. Further, the postal receipt in this case did not contain a complete address - it showed only the tenant's name and an incomplete address entry - and therefore no presumption of service could properly be raised on that basis. For these reasons the Bank's reliance on any such presumption failed.No presumption of valid service could be drawn from the deficient postal receipt; incomplete address information precluded raising the presumption of service.Manner of service prescribed by Rule 4 - service by registered post acknowledgment due - Whether Rule 4 impermissibly traverses beyond Section 4 of the Act. - HELD THAT: - Section 4(3) contemplates service by affixation and also permits service in 'such other manner as may be prescribed.' Rule 4 prescribes additional modes to safeguard occupants by requiring service evidenced by written acknowledgment or by registered post acknowledgment due. The Court held that Rule 4 does not traverse beyond Section 4 but is an authorized prescription of an additional manner of service intended to protect the occupants' right to be informed and to defend themselves.Rule 4 is a valid prescription under Section 4(3) and does not impermissibly go beyond the parent provision; it supplements affixation with additional safeguards.Non-joinder of necessary parties - Whether the writ petition could proceed despite non-impleadment of the Estate Officer and the Additional District Judge whose order was sought to be quashed. - HELD THAT: - Precedent requires that in certiorari proceedings not only the parties in whose favour an order was made but also the authority whose order is sought to be quashed are necessary parties. In this case neither the Estate Officer nor the Additional District Judge were impleaded; the respondents had specifically raised this objection in 1982. Although the petitioner sought leave during argument to implead them, the Court declined to permit late impleadment. Given the prior objection and the stage of the proceedings, the writ could not be allowed to proceed further on that ground.The writ petition could not be permitted to proceed in the absence of impleading the Estate Officer and the Additional District Judge; the request for late impleadment was refused.Service evidenced by written acknowledgment - Disposition of the application for restoration of amenities. - HELD THAT: - The respondents' application for restoration of certain amenities was pressed as withdrawn by their counsel, who undertook that respondents would pursue appropriate proceedings if so advised. The Court accepted the withdrawal and dismissed the application accordingly.The application for restoration of amenities is dismissed as withdrawn.Final Conclusion: The writ petition challenging the eviction order is dismissed with no order as to costs: the statutory requirement of service under Section 4(3) read with Rule 4 was not complied with (service lacked the required written acknowledgment and the postal dispatch lacked adequate address particulars), Rule 4 validly prescribes additional safeguards, the petition could not proceed for non-joinder of necessary parties, and the ancillary application for restoration was dismissed as withdrawn. Issues Involved:1. Proper service of notice under Section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971.2. Compliance with Rule 4 of the Public Premises (Eviction of Unauthorised Occupants) Rules, 1971.3. Adequacy of notice sent by registered post without acknowledgment due.4. Completeness of the address in the postal receipt.5. Necessary parties in a writ of certiorari.Issue-wise Detailed Analysis:1. Proper Service of Notice:The primary issue was whether sending a notice by registered post, in addition to its affixation on the outer-door of the public premises, constitutes proper service under sub-section (3) of Section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The judgment clarified that the service of notice must comply with the statutory requirements, which include affixation and sending by registered post acknowledgment due.2. Compliance with Rule 4:Rule 4 of the Public Premises (Eviction of Unauthorised Occupants) Rules, 1971, specifies the manner of service of notices. The rule mandates that notices must be sent by registered post acknowledgment due to ensure that the recipient acknowledges receipt. The court emphasized that Rule 4 was introduced to protect occupants from being deprived of their right to defend themselves due to improper service of notice.3. Adequacy of Notice Sent by Registered Post:The petitioner argued that sending the notice by registered post, even without acknowledgment due, should suffice. However, the court held that the statutory requirement under Rule 4 is explicit and must be strictly followed. The absence of acknowledgment due means there is no written evidence of receipt by the occupant or an adult member of their family, failing to meet the statutory requirement.4. Completeness of the Address in the Postal Receipt:The court noted that the postal receipt for the notice did not contain the complete address of the occupant. The address only mentioned 'Prop. Prince Cafe' without specifying the location. This incomplete address meant that no presumption of service could be raised, further invalidating the service of notice.5. Necessary Parties in a Writ of Certiorari:The court referenced the Supreme Court's decision in Udit Narain Singh vs. Board of Revenue, which established that in a writ of certiorari, both the parties in whose favor the order is issued and the Tribunal or authorities whose order is sought to be quashed are necessary parties. In this case, neither the Estate Officer nor the Additional District Judge was made a party, leading to a procedural defect. Although the petitioner requested to implead them during arguments, the court declined due to the delay and the earlier objection raised by the respondents.Conclusion:The court dismissed the writ petition, stating that the service of notice was not in compliance with the statutory requirements, the address in the postal receipt was incomplete, and necessary parties were not impleaded in the writ petition. The application for restoration of certain amenities by the respondent was dismissed as withdrawn. The writ petition was dismissed with no order as to costs.