Order

21/09/2024

1. Matter has been heard on Miscellaneous Applications I.A.

No.2/2024, 3/2024, 4/2024, 7/2024, 8/2024 and 9/2024.

2. Petitioner has pointed out that respondent No.1, who is an elected Member of Legislative Assembly for Constituency Bayana, District Bharatpur, is evading service of notices issued by the High Court in the instant election petition. He submits that the address of respondent No.1, which is indicated in the election petition and on which notices were issued pursuant to order of this Court dated 22.12.2023 is correct, which is home and official address of respondent No.1, yet she knowingly did not receive the notices having connivance with the Process Server and the Postman.

3. Petitioner pointed out that this Court vide order dated 22.12.2023 issued notices to all respondents by both modes through Process Server and registered post and though, the notices of other respondents have been served but the notices of respondent No.1 have returned with a remark that she did not found or "door locked".

The attention of this Court has been drawn to the reports of Process Server made on the notices of respondent No.1 dated 12.01.2024, 17.01.2024 and 19.01.2024 wherein Process Server noted that respondent No.1 is not present at home at the relevant point of time and though he talked to her on telephone but she declined to receive notices due to being not present at home. It is also mentioned in the report that one of his office Assistant met on the spot, but he declined to disclose his identity as also to receive notices. Petitioner submits that the Process Server in such eventuality could have pasted the notice, following the provision of Order V Rule 17 CPC, but he returned the notices with report of unserved.

4. Petitioner submits that registered notices of respondent No.1 have also been returned with a remark “door locked” by the Postman, since as per report on the returned envelope, it is mentioned that Postman visited at her given address on 08.01.2024, 09.01.2024, 10.01.2024, 11.01.2024 and 12.01.2024, but the respondent No.1 was not found, hence, the registered notice was also returned.

3. In addition to above, petitioner has pointed out that the notices of this Election Petition were also sent to respondent No.1 on her WhatsApp No. 9414261862 as also on her official E-mail address i.e. ritubanawat@gmail.com, which have been delivered and the documentary proof to this effect have been placed on record. Petitioner has placed on record the letter-head of respondent No.1, on which, she wrote a letter dated 09.03.2024 to the Deputy Chief Minister. The address of respondent No.1, her WhatsApp number as also E-mail address find verification from her Letterhead, which are correct. He submits that respondent No.1 is deliberately keeping away and avoiding the service of notices though she has received information by various means about the instant Election Petition.

4. Petitioner has prayed to draw a presumption of service of notice on respondent No.1 in the aforesaid facts and situation and has also drawn attention of this Court to the judgment of Hon’ble Supreme Court delivered in case of C.C. Alavi Haji Vs. Palapetty Muhammed & Anr. [AIR 2007 SC (Supp) 1705], wherein in Para No.14, in respect of notices sent through registered post, a presumption of service was allowed to be drawn in view of Section 27 of the General Clauses Act, 1897. For ready reference, Para No.14 is being extracted as hereunder:

“Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, serv