VED PERKASH TULL v. P. R. VARSHNEYA — 1973 DIGILAW 280 (DEL)

JAGJIT SINGH, J. ( 1 ) THROUGH this petition, filed under article 227 of the Constitution of India, Shri Ved Perkash Tuli has requested that the orders of the competent authority made on August 19, 1971 and October 23, 1971 may be quashed and the competent authority be directed to dispose of afresh on merits the application of Shri Nand Kishore for permission to institute proceedings for his eviction from a shop situate in a slum area. ( 2 ) THE petition was first placed for hearing before Rangarajan, J. The learned Judge REFERRED TO the case to a larger Bench as in his opinion "a very important question of procedure on which there is a conflict of opinion" was involved. Accordingly the case was heard by us. Under the provisions of section 19 of the Slum Areas (Improvement and Clearance) Act, 1956 (hereinafter REFERRED TO to as "the Act") an application was submitted by Shri Nand Kishore, on March 31. 1971, for permission of the competent authority appointed under the Act to institute proceedings tor obtaining an order for eviction of his tenant, Shri Ved Perkash Tuli, from shop No. 1501, Farash Khana, Delhi. The competent authority fixed May 4, 1971 for hearing of the application and sent notices through the process serving agency and by registered post (acknowledgment due ). On April 27, 1971 a process-server made a report that Shri Ved Perkash had refused to accept the notice. That report was attested by one Ishwar Dass but was not supported by any affidavit of the process server concerned. The registered cover, which also contained the notice, was received back undelivered with a report dated April 29, 1971 regarding refusal of the addressee to take delivery. On the cover there was also a report dated April 26, 1971 that the addressee could not be found in spite of repeated attempt Further on a margin of the cover the 20th, the 21st, the 22nd, the 23rd and the 24th April were as well noted, obviously to indicate the other dates on which attempts had been made to deliver the registered letter containing the notice to the addressee. ( 3 ) THE competent authority directed on May 4, 1971 that service of fresh notice be affected on Shri Ved Perkash for May 22, 1971 "through affixation at site in presence of two witnesses". ( 3 ) THE competent authority directed on May 4, 1971 that service of fresh notice be affected on Shri Ved Perkash for May 22, 1971 "through affixation at site in presence of two witnesses". In compliance with that order the notice for May 22, 1971 was affixed on the shop in dispute on May 19, 1971 in the presence of two witnesses, Shri Jagdish Prasad and Sita Ram. ( 4 ) STILL another order was made by the competent authority on July 26, 1971 for service of notice on Shri Ved Perkash for the hearing fixed for August 12, 1971 by getting a proclamation published in a daily newspaper called Savera. The proclamation was duly published and a copy of the issue of the newspaper in which it was printed was sent on July 30, 1971 by the management of the newspaper to Shri Ved Perkash at the address of shop No. 1501, Farash Khana, Delhi, under certificate of posting. ( 5 ) IN spite of the various methods adopted by the competent authority for affecting service of notice on the tenant with a view to give him an opportunity of being heard and of making objections, if any, to the landlord s application, neither Shri Ved Perkash nor any one on his behalf appeared before the competent authority to oppose the application of Shri Nand Kishore. On August 12, 1971 the competent authority ordered ex-parte proceedings against Shri Ved Perkash and fixed the case for August 19, 1971 for evidence of the landlord. On the last mentioned date Shri Nand Kishore filed his affidavit in which, inter alia, it was affirmed that Shri. Ved Perkash was a tenant of shop No. 1501 at a monthly lent of Rs. 25 and had not only been in arrears of rent with effect from November 1, 1965 to the end of July 1971 but had also sublet the premises and had caused substantial damage thereto and was, therefore, liable to be evicted. It was further stated in the affidavit that Shri Ved Perkash had lucrative machinery business and his income was more than Rs. 1500 per month and if evicted from the premises he would not create further slum as he would be easily able to arrange alternative accommodation. It was further stated in the affidavit that Shri Ved Perkash had lucrative machinery business and his income was more than Rs. 1500 per month and if evicted from the premises he would not create further slum as he would be easily able to arrange alternative accommodation. On the same date the competent authority granted the permission sought for by the landlord for instituting proceedings against the tenant for eviction from shop No. 1501, Farash Khana, Delhi. In the order it was remarked that the tenant "had failed to attend despite sufficient service" and that the case had, therefore, been proceeded against him ex-parte. Relying upon the affidavit of the landlord it was further held that the tenant was a man. of means as he was earning more than Rs. 1500 per month and that he would not create any further slum if evicted from the shop and would be able to arrange alternative accommodation. On September 4. 1971 Shri Ved Perkash applied to the competent authority for setting aside the ex-parte order dated August 19, 1971 and for disposing of the landlord s application under section 19 of the Act on merits. The application of Shri Ved Perkash was, however, dismissed by the competent authority on October 23, 1971. The competent authority took the view that Shri Ved Perkash had miserably failed to substantiate that he had not been properly served. It was, therefore, held that the case was rightly proceeded against ex-parte. An observation was also made that as the eviction proceedings had already been instituted by the landlord and were pending so the competent authority had become functus officio and could not interfere with the order dated August 19, 1971. ( 6 ) NO appeal was filed by Shri Ved Perkash against the order dated October 23, 1971 by which his application for setting aside the order dated August 19, 1971 was dismissed. He only filed a petition in this Court, purporting to be under article 227 of the Constitution of India, for quashing the orders of the competent authority dated August 19, 1971, and October 23, 1971. He only filed a petition in this Court, purporting to be under article 227 of the Constitution of India, for quashing the orders of the competent authority dated August 19, 1971, and October 23, 1971. ( 7 ) IT was urged before us by the learned counsel for the petitioner that service of notice should have been affected on the present petitioner in accordance with the principles underlying the rules embodied in Order 5 of the Code of Civil Procedure and not by the modes specified in section 31 of the Act. It was further contended that the report of the process serving agency regarding the petitioner s refusal to accept the notice or the report on the registered cover were false and had been procured by the respondent-landlord. It was also stated that copy of the newspaper in which the proclamation for informing the petitioner about the date fixed for hearing of the landlord s application was printed was not received by the petitioner and that the petitioner only came to know for the first time about the ex-parte order against him when on September 1, 1971 he got the notice regarding the eviction proceedings and thereon asked his counsel to inspect the record. ( 8 ) IN Rameshwar Dayal v. Ram Avtar and others (C. M. (Main) No. 112 of 1969, on February 12, 1970) Deshpande, J. , took the view that because section 19 (3) of the Act is silent as to the procedure by which the hearing is to be granted to a tenant so the procedure for issuing notice had to be laid down by rule 7 (iv) of the Slum Areas (Improvement and Clearance) Rules, 1957 (REFERRED TO to hereinafter as "the Rules") and for serving a notice issued under rule 7 (4) of the Rules the provisions of section 31 of the Act did not apply. It was also remarked that for service of such a notice the principles underlying Order 5 of the Code of Civil Procedure were to be taken as a guide. It was also remarked that for service of such a notice the principles underlying Order 5 of the Code of Civil Procedure were to be taken as a guide. S. N. Shankar, J. , however, in Mohan Lal v. P. R. Varshenaya and another (C. M. (Main) No. 137 of 1970, decided on March 10, 1971) was of the opinion that service of notices regarding applications under section 19 of the Act had to be affected "in one of the modes prescribed by clauses (a) and (b) of section 31 (1) and in no other manner". Rangarajan, J. in the case of Messrs. Seth Bros. v. Seth Ram Dage and others (Civil Writ No. 81 of 1971, decided on August 30, 1971) was inclined to hold that the modes for service of notices prescribed by section 31 of the Act "would apply only to those proceedings which are taken under Chapter VII, namely, sections 22 onwards". ( 9 ) SECTION 19 appears in Chapter VI of the Act and reads as under :- "19. (1) Noth with standing anything contained in any other law for the time being in force, no person shall, except with the previous permission in writing of the Competent Authority- (a) institute, after the commencement of the Slum Areas (Improvement and Clearance) Amendment Act, 1964, any suit or proceeding for obtaining any decree or order for the eviction of a tenant from any building or land in a slum area; or (b) where any decree or order is obtained in any suit or proceeding instituted before such commencement for the eviction of a tenant from any building or land in such area, execute such decreeor order. (2) Every person desiring to obtain the permission REFERRED TO to in sub-section (1) shall make an application in writing to the Competent Authority in such form and containing such particulars as may be prescribed. (3) On receipt of such application, the Competent Authority, after giving an opportunity to the parties of being heard and after making such summary inquiry into the circumstances of the case as it thinks fit, shall by order in writing, either grant or refuse to grant such permission. (3) On receipt of such application, the Competent Authority, after giving an opportunity to the parties of being heard and after making such summary inquiry into the circumstances of the case as it thinks fit, shall by order in writing, either grant or refuse to grant such permission. (4) In granting or refusing to grant the permission under subsection (3), the Competent Authority shall take into account the following factors, namely :- (a) whether alternative accommodation within the means of the tenant would be available to him if he were evicted; (b) whether the eviction is in the interest of improvement and clearance of the slum areas ; (c) such other factors, if any, as may be prescribed. (5) Where the Competent Authority refuses to grant the permission, it shall record a brief statement of the reasons for such refusal and furnish a copy thereof to the applicant. " ( 10 ) IT will be seen that the order either granting or refusing to grant permission is to be made by the competent authority "after giving an opportunity to the parties of being heard and after making such summary inquiry into the circumstances of the case as it thinks fit". For giving an opportunity of being heard to the party other than the person applying for permission obviously such party has to be given notice regarding the application made and the date that may be fixed for hearing. Though section 19 (3) does not it terms require notice to be given regarding the application for permission for instituting proceedings for eviction of a tenant from any building or land in a slum area, yet ordinarily the only way in which opportunity for being heard can be given to such a tenant is to fix a date of hearing and to issue a notice to the tenant to enable him to make his objections, if any, to the landlord s application. ( 11 ) SECTION 40 of the Act gives power to the Central Government of making rules to carry out the purposes of the Act and in particular about the matters specified in sub-section (2) of that section. ( 11 ) SECTION 40 of the Act gives power to the Central Government of making rules to carry out the purposes of the Act and in particular about the matters specified in sub-section (2) of that section. Clauses (bbb), (c) and (d) of clause (2) of section 40 relate to the following matters:- " (BBB) the manner in which inquiries may be held under sections 15 and 19; (c) the form and manner in which applications for permission under sub-section (2) of section 19 shall be made and the fees to be levied in respect of such applications; (d) the procedure to be followed and the factors to be taken into consideration by the competent authority. before granting or refusing to grant permission under section 19; ( 12 ) IN the Rules made in exercise of powers conferred by section 40 of the Act rule 7 relating to applications under section 19 is in the following terms:- "7. The following procedure shall be adopted in dealing with applications made under section 19 (2) of the Act. (1) Every application for permission, under section 19 shall be made in Form G. (2) There shall be fee of Rs. 10 in respect of every application REFERRED TO to in sub-rule (1 ). (3) Every such application shall be accompanied by a copy of the order and judgment (if any ). (4) On receipt of such application the competent authority shall cause a notice fixing a date of hearing to be issued to the tenant giving him an opportunity of making his objections to such application. On such date, or such other date to which the hearing may be adjourned, the competent authority shall hear the parties and their witnesses (if any) and make such enquiry into the circumstances of the case as it thinks fit (section 31 of the Act ). (5) If either of the parties is absent on any date of hearing, the competent authority may proceed in his absence and after hearing the party present pass such order as it thinks fit. " ( 13 ) THE provisions of rule 7 (4) of the Rules regarding giving of notice are not independent of section 19 of the Act. Giving of notice is implicit in the provisions of section 19 for that is the only reasonable method of giving opportunity to the tenant of being heard. " ( 13 ) THE provisions of rule 7 (4) of the Rules regarding giving of notice are not independent of section 19 of the Act. Giving of notice is implicit in the provisions of section 19 for that is the only reasonable method of giving opportunity to the tenant of being heard. Any notice issued in respect of an application under section 19 has, therefore, to be regarded a notice under the Act and not as something which is alien to the Act or its purposes. ( 14 ) SECTION 31 of the Act appears in chapter VII, which has the heading "miscellaneous". That chapter comprises of section 22 to 40. Section 31 is as follows :- "31. (1) Every notice, order or direction issued under this Act, shall, save as otherwise expressly provided in this Act, be served- (a) by giving or tendering the notice, order or direction, or by sending it by post to the person for whom it is intended ; or (b) if such person cannot be found, by affixing the notice, order or direction on some conspicuous part of his last known place of abode or business, or by giving or tendering the notice, order or direction to some adult male member or servant of his family or by causing it to be affixed on some conspicuous part of the building or land, if any, to which it relates. (2) Where the person on whom a notice, order or direction is to be served is a minor, service upon his guardian or upon any adult male member or servant of his family shall be deemed to be the service upon the minor. (3) Every notice, order or direction which by or under this Act is to be served as a public notice, order or direction or as a notice, order or direction which is not required to be served to any individual there in specified shall, save as otherwise expressly provided, be deemed to be sufficiently served if a copy there of is affixed in such conspicuous part of the office of the competent authority or in such other public place during such period, or is published in such local newspaper or in such other manner, as the competent authority may direct. " ( 15 ) THE phraseology used in section 31 makes it clear that every notice, order or direction, issued under the Act, shall save as otherwise expressly provided in the Act, be served in the manner laid down therein. ( 16 ) WE are unable to accept the contention of the learned counsel for the petitioner that because section 31 appears in chapter VII so it relates to notices, orders, or directions which are required to be issued in connection with the provisions contained in that chapter only. Placing such an interpretation on the provision of the section would mean ignoring the opening words of the section which are : "every notice, order or direction issued under this Act". The words "under this Act" cannot be equated with the words "under this Chapter". ( 17 ) AS mentioned in section 31 every notice, order or direction issued under the Act, except where otherwise expressly provided in the Act. is required to be served in the manner detailed therein. There is no provision in the Act which may have expressly provided that notices issued relating to matters other than those REFERRED TO to in any of the sections comprised in chapter VII shall not be issued in the manner provided in section 31. Notices relating to applications under section 19 have, therefore, to be served as provided by section 31 of the Act. ( 18 ) IT was also urged that if section 31 applies to all notices under the Act then on the same analogy under section 30 any person aggrieved by an order of the competent authority granting permission REFERRED TO under sub-section (1) of section 19 should also have the right of appeal, but as was laid down in the case of Ajudhia Pershad, etc. v. Chief Commissioner, Delhi, etc. (1960 P. L. R. 172) (1) any person aggrieved by an order of the competent authority granting the permission REFERRED TO to in sub-section (1) of section 19 has no right of appeal. From this an inference was sought to be drawn that section 31 does not necessarily apply to notices issued regarding applications under section 19 of the Act. ( 19 ) SECTION 30 of the Act is as follows :- "30. From this an inference was sought to be drawn that section 31 does not necessarily apply to notices issued regarding applications under section 19 of the Act. ( 19 ) SECTION 30 of the Act is as follows :- "30. (1) Except as otherwise expressly provided in this Act, any person aggrieved by any notice, order or direction issued or given by the competent authority may appeal to the Administrator within a period of thirty days from the date of issue of such notice, order or direction. 2) Every appeal under this Act shall be made by petition in writing accompanied by a copy of the notice, order or direction appealed against. (3) On the admission of an appeal all proceedings to enforce the notice, order or direction and all prosecutions for any contravention thereof shall be held in abeyance pending the decision of the appeal, and if the notice, order or direction is set aside on appeal, disobedience thereto shall not be deemed to be an offence. (4) No appeal shall be decided under this section unless the appellant has been heard or has had a reasonable opportunity of being heard in person or through a legal practitioner. (5) The decision of the Administrator on appeal shall be final and shall not be questioned in any court. " ( 20 ) THE provisions of this section cannot be made use of for filing an appeal against an order granting permission REFERRED TO to in sub-section (1) of section 19 as section 20 can be considered to otherwise expressly provide by confining the right of appeal against orders of the competent authority refusing to grant the permission. For that reason in the case of Ajudhia Pershad (supra) it was held by Falshaw and Grover, J. J. that section 20 being a special provision it is not possible to envisage a right of appeal being conferred under section 30 against orders granting permission. ( 21 ) IN our opinion notices issued regarding applications under section 19 of the Act arc notices under the Act for purposes of section 31 and service is to be affected as provided by the said section. ( 21 ) IN our opinion notices issued regarding applications under section 19 of the Act arc notices under the Act for purposes of section 31 and service is to be affected as provided by the said section. When section 31 of the Act provides as to how service of notices, orders or directions issued under the Act is to be affected, and there is nothing in the Act by which it may have been otherwise expressly provided that service of notices relating to applications under section 19 of the Act is to be affected in some other manner, for service of such notices recourse cannot be had to the principles underlying order 5 of the Code of Civil Procedure. Service of these notices should be affected as provided by section 31 of the Act. With great respect, therefore, we are unable to agree with the view taken in the cases of Rameshwar Dayal and Messrs. Seth Bros. (supra ). ( 22 ) IT was next to be seen whether the service in the present case was affected in accordance with the provisions of section 31 of the Act. The notices issued to the petitioner for May 4, 1971 by registered post and through the process serving agency were returned with the reports that their acceptance had been refused. The petitioner had before the competent authority filed a bill of Hotel Seetharam at Coimbatore, dated April 24, 1971, to show that he had stayed in that hotel from the 20th April to the 24th April, 1971. In the bill the name of the person staying in the hotel was mentioned as Prakash and not Ved Prakash. Even if that bill had been issued to the petitioner, still it could be of no help in establishing that he was not at Delhi on April 27 and on April 29, 1971. By leaving Coimbatore on April 24, 1971 the petitioner could easily reach Delhi before the morning of April 27, 1971. Shri Ishwar Dass filed an affidavit ill which it was stated that the process server had tendered the notice to Shri Ved Prakash in his presence on April 27, 1971 and that Shri Ved Prakash after reading the notice refused to sign it. Shri Ishwar Dass filed an affidavit ill which it was stated that the process server had tendered the notice to Shri Ved Prakash in his presence on April 27, 1971 and that Shri Ved Prakash after reading the notice refused to sign it. ( 23 ) NO evidence could be produced by the petitioner to establish that the affidavit of Shri Ishwar Dass was false or that the postal report about his refusing to take delivery of the registered letter containing the notice was incorrect. Regarding affixation of notice there was not only the report of the process server attested by two witnesses but Shri Jagdish Prasad filed an affidavit affirming that the affixation had taken place in his presence. ( 24 ) THE competent authority took all possible precautions to affect service on the petitioner. Not only the notices were tendered to him but a notice was affixed on the shop to which the case related. The competent authority took the extra precaution of getting a proclamation published in a newspaper. The facts and circumstances of the present case thus clearly show that the petitioner was duly served but intentionally failed to appear before the competent authority for reasons best known to him. The service of notices on him more than complied with the requirements of section 31 of the Act. ( 25 ) THE ex-parte proceedings taken against the petitioner were in no way illegal. The competent authority was justified in not setting aside the order dated August 19, 1971 by which permission was granted to the respondent for instituting eviction proceedings against the petitioner. As no case was made out for setting aside the ex-parte order dated August 19, 1971 it is not necessary to consider in these proceedings whether the competent authority had inherent power to set aside his ex-parte order by which permission was granted for instituting proceedings for eviction of the petitioner. ( 26 ) THERE being no merit in the petition it is dismissed with costs. The counsel fee shall be assessed at Rs. 150. 00.