Girdhari Lal v. Prescribed Authority — 1990 DIGILAW 87 (ALL)

JUDGMENT M.P. Singh, J. - The petitioner and opposite parties Nos. 2 to 5 are the tenants of the shop in dispute situate at Bazari Road, Opposite party No. 2 is the landlady. The Short Facts : 2. The opposite party No. 2 filed application under Section 21(1)(a) of the U.P. Act No. 13 of 1972, hereinafter referred to as the Act, for release of the said shop. Notices were served on the petitioner and opposite party No. 5. Opposite parties Nos. 3 and 4 couldn't be served inspite of the fact that notices were sent to them under registered cover. The said letters were returned unserved. 3. The release application was filed by the opposite party No. 2 in January, 1985 (Case No. 15 of 1985). It appears that the opposite parties Nos. 3 and 4 could successfully evade service of notice for four years. Feeling helpless the opposite party No. 2 filed an application (31-C) praying that service on these opposite parties may be effected by publication. The petitioner filed an objection. The Prescribed Authority rejected the said objection and allowed the application of the opposite party No. 2 by means of the impugned order. 4. Heard counsel for the petitioner. The only question involved in this case is whether the Prescribed Authority had any power under the Act or the Rules to pass an order for service of notice by publication. 5. The contention raised by the Counsel for the petitioner was that there was no provision under the Act and the Rules for effecting service by publication. 6. In order to appreciate the submission the framework of U.P. Act No. 13 of 1972, with reference to the Civil Procedure Code, has to be examined. 7. No doubt Act No. 13 of 1972 is a self-contained one, but certain provisions of the Civil Procedure Code and the Limitation Act have been made applicable. Some of the provisions have been made application by incorporation and some by reference. The distinction between legislation by incorporation and by reference has been made clear by the Supreme Court, in the case reported in Mahindra and Mahindra Ltd. v. The Union of India and another, AIR 1979 Supreme Court 798, wherein it has been held that : "........ Some of the provisions have been made application by incorporation and some by reference. The distinction between legislation by incorporation and by reference has been made clear by the Supreme Court, in the case reported in Mahindra and Mahindra Ltd. v. The Union of India and another, AIR 1979 Supreme Court 798, wherein it has been held that : "........ Legislation by incorporation is a common legislative device employed by the legislature, where the legislature for convenience of drafting incorporates provisions from an existing statute by reference to that statute instead of seting out for itself at length the provisions which it desires to adopt. Once the incorporation is made, the provision incorporated becomes an integral part of the statute in which it is transposed and thereafter there is no need to refer to the statute from which the incorporation is made and any subsequent amendment made in it has no effect on incorporating statute." 8. But in the case of legislation by reference the amendment in the referring statute will have a bearing to the statute which has made a reference to that statute. 9. Since this point is of not much importance to the facts of the present case I do not want to elaborate this point in detail. "Section 34(1) of the Act reads as under : "34. Powers of various authorities and procedure to be followed by them - (1) The District Magistrate, the Prescribed Authority or any Appellate or Revising Authority shall for the purposes of holding any inquiry or hearing any appeal or revision under this Act have the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908) when trying a suit, in respect of the following matters, namely - (a) summoning and enforcing the attendance of any person and examining him on oath; (b) receiving evidence on affidavits; (c) inspecting a building or its locality, or issuing commission for the examination of witnesses or documents or local investigation; (d) requiring the discovery and production of documents; (e) awarding, subject to any rules made in that behalf, costs or special costs to any parts of requiring security for costs from any party; (f) recording a lawful agreement, compromise or satisfaction and making an order in accordance therewith; (g) any other matter which may be prescribed. 10. 10. Thus, according to this section the provisions of Civil Procedure Code for the above purposes have been made applicable by reference. The District Magistrate or the Appellate Authority or the Revising Authority are not 'Courts' but the proceeding before them are 'judicial proceedings'. These authorities have been empowered to act with reference to the above provision of the Civil Procedure Code. 11. Section 35 of the said Act provides that the provisions of Sections 4, 5 and 12 of Limitation Act, 1963 will be applicable to the proceedings under this Act. These provisions have been made applicable by incorporation. 12. Section 38 of the Act provides the Act to override Transfer of Property Act and Civil Procedure Code. The provisions of this Act shall have effected notwithstanding anything inconsistent therewith contained in Section 34 (Act No. IV of 1882) or in the Code of Civil Procedure, 1908 (Act No. V of 1908). 13. Under Section 34 of the Act certain Rules have been framed for regulating procedure before these authorities. The relevant rules are 22 and 28. So far as service of notice is concerned, the reference has to be made only to Rule 58, which has been framed under Section 34(8) of the Act which reads as under :- "28. Service of Notice [Section 34 (8)]. - (1) A notice issued by the District Magistrate, the Prescribed Authority or the Appellate or Revising Authority under the provisions of the Act shall be served on the person concerned - (a) by giving or tendering it to such person, or his Counsel; or (b) by giving or tendering it to any adult member of his family; or (c) if no such person is found, by leaving it at his last known place or abode or business or in the case of an appeal or revision at his address as given under Rule 6; or (d) If none of the means aforesaid is available, by affixing it on some conspicuous part of his last known place of abode or business or in the case of an appeal or revision at his address as given under Rule 6. (2) If party files a duly stamped and addressed envelope for service of any notice, then it shall be served by registered post. (2) If party files a duly stamped and addressed envelope for service of any notice, then it shall be served by registered post. (3) In the case of an appeal or revision unless the appellant has taken action under sub-rule (2), the Appellate or Revising Authority shall send the notices to the District Magistrate or the Prescribed Authority, as the case may be, for having the service effected. 14. This rule provides for service of notice on the opposite-parties. A perusal of the same makes it clear that it is only enumerative and not exhaustive. 15. It appears that the Legislature while enacting this Act could not contemplate the contingency, like the present one where service could not be effected on the opposite-parties for the last more than four years. The object of the Act was to expedite the disposal of the litigation between the landlord and tenant but unscrupulous tenants can defeat the purpose of the Act by evading service of the notice. On the facts of the present case, I am satisfied that in order to do complete justice between the parties the Prescribed Authority has rightly invoked its inherent power for service on the opposite parties by publication. 16. Now the question is whether the Act makes any prohibition for service by publication. Rule 22 does not make any such restriction. Sub-rule (f) of Rule 22 gives power to the Prescribed Authority to make any order for the ends of justice or to prevent the abuse of the process of the authority concerned, as contemplated under Section 151, Code of Civil Procedure. 17. The provisions of Order 5, Rule 20, Civil Procedure Code have neither been made applicable as such nor the application has been excluded specifically by the Act. 18. In order to make out the Act workable smoothly, the District Magistrate or the Appellate or Revising Authority have power under Section 151, Civil Procedure Code to apply the provisions of Order 5, Rule 20 of the Code. 19. This leads to the interpretation of the provisions of Rule 22(f) of the Rules framed under the Act. 20. The Supreme Court in the case reported in Satyanarayana v. The State of Karnataka and another, AIR 1986 Supreme Court 1162, held : "A statute cannot be constructed merely with reference to grammar. 19. This leads to the interpretation of the provisions of Rule 22(f) of the Rules framed under the Act. 20. The Supreme Court in the case reported in Satyanarayana v. The State of Karnataka and another, AIR 1986 Supreme Court 1162, held : "A statute cannot be constructed merely with reference to grammar. A Statute, whenever the language permits, must be construed reasonably and rationally to give effect to the intention and purpose of the legislature." In the case reported in M/s. Girdhari Lal and Sons v. Balbir Nath Mathur and others, AIR 1986 Supreme Court 1499, the Supreme Court while considering the question of interpretation took the view : "The primary and foremost task of a Court in interpreting the statute is to ascertain the intention of the legislature, actual or imputed. Having ascertained the intention; the Court must then strive to so interpret the statute as to promote and advance the object and purpose of the enactment. For this purpose where necessary the Court may even depart from the rule that plain words should be interpreted according to their plain meaning. There need be no meek and mute submission to the plainness of the language. To avoid patent injustice, anomaly or absurdity or to avoid invalidation of law, the Court would be well justified in departing from the so-called golden rule of construction so as to give effect to the object and purpose of the enactment by supplementing the written word if necessary." 21. Applying the principle enunciated by the Supreme Court in these two cases if we give a rigid interpretation to this sub-rule 22(f) then that will frustrate the purpose and defeat the object of the Act. It will lead to abuse of the process of the authority and prevent the authority from doing substantial justice between the parties. It will also encourage the unscrupulous litigants to play the hide and seek game in law Courts. The intention of the legislation always has been that opposite parties may be served as soon as possible in accordance with the law. If the notices could not be served in accordance with the provisions of Rule 28 then where is the bar in the way of the Prescribed Authority in passing the order for service of publication. The intention of the legislation always has been that opposite parties may be served as soon as possible in accordance with the law. If the notices could not be served in accordance with the provisions of Rule 28 then where is the bar in the way of the Prescribed Authority in passing the order for service of publication. What Section 38 of the Act provides is that the provisions of this Act will override the Transfer of Property Act and Civil Procedure Code in their application to the Act, so far as they are inconsistent with the specific provision of the Act. Since there is no inconsistent provision excluding service by publication, the Prescribed Authority was well within his jurisdiction to pass an order under its inherent power. 22. There is no dispute that in the instant case notices were sent under registered cover to the opposite parties No. 3 and 4 at their correct addresses but the said letters have returned unserved. 23. In a Full Bench decision of this Court reported in Ganga Ram v. Smt. Phulwati, AIR 1970 Allahabad 446, it has been held that :- "When a registered article or a registered letter is handed over to an accepting or receiving post office, it is the official duty of the postal authorities to make delivery of it to the addressee........ Consequently, as a proposition it cannot be disputed that when a letter is delivered to an accepting or receiving post office it is reasonably expected that in the normal course it would be delivered to the addressee. This is the official and normal function of the post office. It further held that if a letter has been dispatched by registered post to the correct address of the tenant, presumption of due service of notice can be made under illustrations (e) and (f) of Section 114 of the Indian Evidence Act." 24. In the instant case, even in the absence of any fresh order for service by publication the Prescribed Authority could have proceeded against these two opposite parties by holding service to be sufficient, as the notices were sent under registered post at the correct address. 25. We fail to understand what possible prejudice has been caused to the petitioner in case the Prescribed Authority passed an order of serving the opposite parties by publication. 25. We fail to understand what possible prejudice has been caused to the petitioner in case the Prescribed Authority passed an order of serving the opposite parties by publication. Though the provisions of Order 5, Rule 20, Civil Procedure Code are not applicable as such but in case if the Prescribed Authority is satisfied that there is reason to believe that the defendant was keeping out of way for the purpose of avoiding service or that for any other reason the summons could not be served in the ordinary way, he can pass order for service by publication in any newspaper which should be a daily newspaper having its circulation in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain. The Prescribed Authority before invoking this extraordinarily inherent jurisdiction has to record reasons in writing for passing the order for getting service effected by publication. 26. In the instant case, no such reasons have been given. The facts of the case are such which do not compel me to send the case back to the Prescribed Authority for re-writing the order. Each case has to be decided on the facts of its own case. In the case reported in Kodai Ram v. Ram Sunder Tewari, AIR 1973 Allahabad 58, it has been held that : "There is no requirement of law that an order under Order 5, Rule 20, Civil Procedure Code could be passed by a Court only after more than one unsuccessful attempt had been made to serve the summons personally on the defendant. All that this rule requires is that the Court may order substituted service when it is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service or that for any reason the summons cannot be served in the ordinary way." In a Full Bench decision, reported in G. Shanmukhi v. Utakur Venkatarami Reddi, AIR 1957 Andhra Pradesh 1, the Court held : "In the case of submitted service under Order 5, Rule 20 there are two conditions prescribed that can be resorted to viz, that the Court must be satisfied either : (1) that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or (2) that for any other reason the summons cannot be served in the ordinary way." In the case reported in S.V.P. Chockalingam Chettiar v. V.C. Rajarathnam and others, AIR 1984 Madras 415, it has been held that : "The object of substituted service of a notice under Order 5, Rule 20 is to bring it to the notice of the person for whom it is intended. Substituted service cannot be recorded as an idle formality to be gone through. The Code intends it as a substitute to actual personal service. A valid substituted service of a notice should conform to conditions prescribed in Order 5, Rule 20, Civil Procedure Code. 27. Thus, I hold that the Prescribed Authority has inherent power under Section 151, Code of Civil Procedure to pass an order or service of notice by publication. 28. The Counsel for the petitioner referred to a decision reported in Smt. Sweta Tewari v. II Addl. Civil Judge, Allahabad and another, 1989(2) ARC 128. In that case proceedings under Section 2-A of the Act were initiated by the landlord. The said application was allowed ex parte. The application to set aside the ex parte order was also rejected. Against that order the writ petition was filed. The writ petition was not filed against an interlocutory order but was filed against a final order. The facts of the present case are different. 29. Another case relied upon by the petitioner is reported in Heera Lal Sharma v. XV Addl. District Judge and others, 1989 AWC 731 . In that case also the writ petition was filed against a final order. 30. The facts of the present case are different. 29. Another case relied upon by the petitioner is reported in Heera Lal Sharma v. XV Addl. District Judge and others, 1989 AWC 731 . In that case also the writ petition was filed against a final order. 30. The additional point to be taken into consideration is whether the writ petition is maintainable against such an interlocutory order passed by the Prescribed Authority. It does not decide any controversy between the parties. It is only a step in progress of the case. On this ground also the writ petition is liable to be rejected as not maintainable. 31. In the result, I find no merit in this petition and it is accordingly dismissed in limine.