Back
2009 Supreme(Mad) 5777
High Court of Judicature at Madras
THE HONOURABLE MR.JUSTICE V. DHANAPALAN
Rukmani
Versus
Kandamangalam Panchayat Union Represented by its Commissioner
WRIT PETITION No.444 OF 2007 & M.P.No.1 of 2007
Decided on : 22-12-2009
For the Petitioner: Mrs.A.Shanmugapriya for Mr.V.Raghavachari.
For the Respondent:Mr.V.R.Thangavelu, Advocates.
Ratios:
a. When a local law or the Tamil Nadu General Clauses Act, 1891 is silent on any question, the provisions of General Clauses Act, 1897 would be applied for interpretation of any provision.
b. When a statute mandates the service of any document by post, whether the expression "serve" "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
Headnote:(A)Tamil Nadu Panchayats Act, 1994 (21 of 1994)- General Clauses Act, 1897 (10 of 1897)-Sec.27- Tamil Nadu General Clauses Act 1891 (1 of 1891)-Tender-Contractor-Delisting-Natural justice-Notice-Service-Registered post-Certificate of posting-Petitioner is an enlisted contractor and was awarded contract to build a building-He delayed in completing the construction and asked for enhancement of the cost-Respondent called upon the petitioner to complete the project and threatened to take action-Later, respondent delisted the petitioner from the list of approved contractors-Petitioner challenged it and alleged violation of principles of natural justice-Respondent stated that notice was sent to the petitioner by certificate of posting before delisting and it was denied by the petitioner-Held, in the absence of any provision in the rules or in the TN. Act, the provisions in General Clauses Act 1897 would apply for service of notice-Notice by registered post is the proper notice-When such a service was not made, delisting is not valid-Order of the respondent set aside and the respondent was given liberty to take steps after giving proper notice to the petitioner.
(B)General Clauses Act, 1897 (10 of 1897)-Sec.27- Tamil Nadu General Clauses Act 1891 (1 of 1891)-Notice-Service-Registered post-Certificate of posting-When a local law or the Tamil Nadu General Clauses Act, 1891 is silent on any question, the provisions of General Clauses Act, 1897 would be applied for interpretation of any provision.
18. Therefore, while giving consideration to the above provision of law and the above rule under the Tamil Nadu Panchayats Act, 1994, it has to be pointed out that the said rule contemplates only service of notice but there is no provision to the effect that what could be the mode of service.
19. So, in the absence of any provision to mean what is the mode of service, we have to see the applicability of the General Clauses Act,1897, and the Tamil Nadu General Clauses Act 1891. From a perusal of Section 27 of the General Clauses Act, it is apparent that in order to presume service having been effected the document or letter should be sent by registered post. Para 18, 19
(C)General Clauses Act, 1897 (10 of 1897)-Sec.27-Natural justice-Notice-Service-Registered post-When a statute mandates the service of any document by post, whether the expression "serve" "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
In the above circumstances, as the Central Act and the parallel enactments of the State are having a provision for proper mode of service by registered post, an inference can be drawn in this case also that Tamil Nadu General Clauses Act being the oldest one and the said Act is not having a similar provision, it could be construed that the intention of the Central enactment and the subsequent parallel enactments of other States would give a meaningful construction that 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 effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. Para 21
The proceedings of the respondent in Na.Ka.A3/4397/2006, dated 112. 2006 cancelling the work order as well as the registration are under challenge in this Writ Petition.
.2. The case of the petitioner is that she is a registered panchayat union contractor. She has done substantial work for the local body and semi government organisation. Under the Parliament member constituency development scheme, the petitioner was allotted the construction work of school building by the respondent. The estimate for the construction work is around Rs.3.75 lakhs. The respondent panchayat Union dragged the execution of the agreement as a result of which the petitioner was not able to carry on the work. In the meanwhile, the respondent panchayat on 12. 2006 issued a notice calling upon the petitioner to finish the project. The petitioner submitted her reply to the notice explaining the reasons for the delay in taking up the project. While so, the respondent straightaway passed the impugned order dated 112. 2006 cancelling the work allotted to the petitioner as well as removing the name of the petitioner from the Register of contractors. Aggrieved by such removal of her name from the Register of contractors, the petitioner has approached this court by filing the present writ petition.
.3. Counter affidavit had been filed on behalf of respondents wherein the following facts have been set out:-
.The petitioner was awarded a contract of construction of a school building at L.R.Palayam on 28. 2006 at an estimated cost of Rs.3.75 on the basis of the tender offered by her at 0.50% less estimate rate. The said work was to be completed within a period of 60 days from the date of entrustment. As the work was not completed till 12. 2006, a notice dated 12. 2006 was issued to the petitioner indicating that action would be taken against her for non-completion of the work. In the reply to the said notice, the petitioner besides alleging various factors which were totally irrelevant, had requested to revise the estimate cost on the ground that the price of the material had gone up. The escalation of cost was due to the petitioner failing to complete the building work within the stipulated time. The petitioner had not submitted her reply to the notice dated 12. 2006. Consequently, by proceedings dated 112. 2006 the petitioner was removed from the Register of Contractor of the Panchayat Union. Thus, the counter affidavit sought for the dismissal of the writ petition.
4. I have heard Mrs. A.Shanmugapriya learned counsel appearing for the petitioner and Mr.V.R.Thangaelu learned counsel appearing for the respondent.
5. The learned counsel appearing for the petitioner would submit that the impugned order has been passed without issuing any notice to the petitioner as per Rule 13 (7) of the Tamil Nadu Panchayats (Preparation of Plans and Estimates for Works and mode and Conditions of contractors) Rules 1988 (hereinafter called as the Rules). Even assuming that a notice has been issued to the petitioner, the same cannot stand to legal scrutiny as the notice was sent through certificate of posting. Hence, according to the learned counsel appearing for the petitioner, the impugned order is liable to be set aside. In support of his contention the learned counsel for the petitioner relied on the decision in R.L.NARANG VS. COMMISSIONER OF INCOME TAX (1982 (136) ITR 108 DELHI). Para Nos.10 and 11 of the said judgment are usefully extracted here under:-
10. Coming to the next question of service by post, the provisions of S.27 of the General Clauses Act, 1897 are relevant . Section 27 provides that where any Central Act or Regulation authorises or requires any document to be served by post, then, unless a different intention is drawn, the service shall be deemed to be effected properly if a correctly addressed and stamped letter containing the document is dispatched by registered post; and unless the contrary is proved, such a letter would be deemed to have be
