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High Court Of Delhi
RAMESHWAR DAYAL - Appellant
Versus
RAM AVTAR - Respondent
Civil Miscellaneous (Main) 112 of 1969
Decided On : 02/12/1970
SLUM AREAS (IMPROVEMENT AND CLEARANCE) ACT, 1956 - SECTION 19 - NOTICE - SERVICE - SUFFICIENCY - GENERAL PRINCIPLES OF JUSTICE, EQUITY AND GOOD CONSCIENCE - ORDER 5, CIVIL PROCEDURE CODE - APPLICATION TO.
Fact of the Case:
The tenant challenged the ex-parte order passed against him by the Competent Authority under the Slum Areas (Improvement and Clearance) Act, 1956, on the ground that he had not refused service of the notice and, therefore, the ex-parte proceedings against him were liable to be set aside.
Finding of the Court:
The court held that the Competent Authority was not justified in ordering substituted service on the tenant without first inquiring into the truth of the postman's report that the tenant had refused to accept the notice. The court also held that the tenant was entitled to show that he had not actually refused service of the notice, even though the endorsement of the refusal of the notice could be deemed to be prima facie proof of service.
Issues: 1. Whether the Competent Authority was justified in ordering substituted service on the tenant without first inquiring into the truth of the postman's report that the tenant had refused to accept the notice? 2. Whether the tenant was entitled to show that he had not actually refused service of the notice, even though the endorsement of the refusal of the notice could be deemed to be prima facie proof of service?
Ratio Decidendi: 1. The court held that the Competent Authority was not justified in ordering substituted service on the tenant without first inquiring into the truth of the postman's report that the tenant had refused to accept the notice, because the principle underlying Order 5, rule 17 of the Civil Procedure Code, which provides for service of notice by affixation and publication, requires that the serving officer use all due and reasonable diligence to find the person on whom the notice is to be served before ordering substituted service. 2. The court held that the tenant was entitled to show that he had not actually refused service of the notice, even though the endorsement of the refusal of the notice could be deemed to be prima facie proof of service, because the presumption of service created by the endorsement is not irrebuttable.
Final Decision: The court set aside the impugned orders dated 25-8-1969 and 27-9-1969 passed by the Competent Authority and the learned Judicial Secretary and directed the Competent Authority to entertain the tenant's application and inquire into whether the tenant had refused to accept the notice or whether the postman had used due and reasonable diligence to find the tenant to effect service on him.
( 1 ) THE respondents 1 and 2 are the landlords and the petitioner is a tenant of the premises-house No. 1232, Chowk Shah Mubarak, Delhi. The landlords applied to Respondent No. 3 Competent authority under section 19 of the Slum Areas (Improvement and Clearance) Act, 1956 as amended in 1964 for permission to evict the tenant from the premises, inter alia, on the ground that the tenant is not living in the premises for over six months prior to the filling of the application and that he has acquired vacant possession of another residence, house No. 2372, Gali Ghanta Kakwan, Farash Khana, Delhi. On 24-9-1968, the Competent authority directed notice of the application to be sent to the tenant by registered post. The registered envelop containing the notice was returned to the Competent authority by the post-office with the following remarks, namely:- (a) Not met 10-10-68, 11-10-68, 12-10-68, 14-10-68 and 15-10-1968; and (b) A. D. Refused 16-10-1968.
( 2 ) ON 22-11-1968, the Competent authority observed that the registered envelop had been returned with the remark that it was refused and, therefore, passed an order for publication as well as affixation of the notice on the spot. Accordingly, we find a copy of the notice on the record of the Competent authority containing report of service by affixation attested by two witnesses. We also find that a copy of the news-paper containing the publication of the notice was sent to the tenant under certificate of posting. The Certificate of posting is also on record. On 16-1-1969, the Competent authority held that the notice had been published and also had been affixed on the spot and, therefore, proceeded ex-parte against the tenant. The Competent authority granted permission to the landlord to evict the tenant by the order dated 25-3-1969, a certified copy of which is at Annexure F to the writ petition.
( 3 ) THE tenant subsequently made an application to the Competent authority, copy of which is at Annexure A to the writ petition, slating that the reports on the registered envelop were false and that he had never refused to accept service of the notice. He, therefore, prayed that the ex-parte order passed against him and also the permission granted to the landlords on 26th March 1969 be set aside and the tenant be given an opportunity to contest the petition. The Competent authority rejected this application for setting aside the ex-parte order on 25-8-1969 by an order, a copy of which is at Annexure C to the writ petition. The appeal of the tenant against this order was also dismissed by the Judicial Secretary, Delhi Administration, as per Annexure E to the writ petition.
( 4 ) IN this Civil Miscellaneous (Main) Petition filed under Article 227 of the Constitution by the tenant, it is contended that the order of the Competent authority dated 25-8-1969 and that of the Judicial Secretary dated 27-9-1969 affirming the order of the Competent authority are had inasmuch as the tenant was entitled to show that he had actually not refused the notice. The respondents landlords resist the petition under Article 227, on the ground that the Competent authority was justified in proceeding ex- parte against the tenant and the ex-parte order cannot, thereforebe said to have been without jurisdiction.
( 5 ) THE only question for decision, therefore, is whether the tenant was entitled to show to the Competent authority that he had not refused service of the notice and, therefore, the ex-parte proceedings against him were liable to be set aside.
( 6 ) UNDER section 19 (3) of the Slum Areas (Improvement and Clearance) Act, 1956 before as well as after the amendment of 1964, the Competent authority was bound to give an opportunity to the parties of being heard before it could grant the landlord the permission to evict the tenant. Therefore , under the Slum Areas (Improvement and Clearance) Rules, 1957, it is stated in rule 7 (4) that on receipt of an application under section 19, the Co
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