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2019 DIGILAW 2442 (RAJ)

Sohan Lal Paliwal v. Amba Lal

2019-09-12

DINESH MEHTA

body2019
JUDGMENT : Dinesh Mehta, J. 1. Feeling aggrieved of the order dated 25.04.2019, passed by the Appellate Rent Tribunal, rejecting petitioner's appeal against the judgment and certificate of recovery dated 26.09.2016, the petitioner has invoked supervisory jurisdiction of this Court, enshrined under Article 227 of the Constitution of India. 2. Before adverting to the questions raised by the petitioner, it would be appropriate to glance through factual canvas, which unfolds as under:- 2.1. The petitioner is a tenant of respondent-landlord, who filed an eviction petition under Section 9(a) of the Rajasthan Rent Control Act, 2001 (hereinafter referred to as 'the Act of 2001'), on the ground of default in payment of rent. 2.2. In the petition so filed by the respondent-landlord on 30.09.2010, it was asserted that the petitioner has defaulted in making payment of the rent from 16.07.2009 till 15.09.2010 and the total amount for the period of 14 months, turn out to be Rs. 4,550/-. It was averred that a notice dated 09.02.2010 contemplated under Section 9(a) of the Act of 2001 was given to the petitioner-tenant, requiring him to pay the arrears of rent within a period of 30 days. It was pleaded in the petition that despite receiving the notice on 10.02.2010, no payment was made by the tenant and thus, he had committed a default in payment of rent. With these averments, the respondent-landlord contended that he was entitled to a decree of eviction under the provisions of the Act of 2001. The respondent-landlord filed the petition under Section 9(a) of the Act of 2001, not only for getting the vacant possession, but also for recovery of arrears of rent. 2.3. The petitioner herein filed a reply to the eviction petition so filed by the respondent-landlord and took a plea that no rent was due; the landlord had never asked for the rent; he did not receive the notice dated 09.02.2010; and that the due amount had been sent to the landlord by way of money-order and upon its refusal, the rent was deposited in the bank account of the landlord in November, 2010. 2.4. 2.4. The Rent Tribunal, settled the following issues:- ^^1- vk;k foi{kh us fookfnr ifjlj dk fdjk;k fnukad 16-7-2009 ls fnukad 16-9-2010 rd dk vnk u dj fdjk;k vnk;xh esa 4 ekg ls Hkh vf/kd dh vof/k dk O;frØe dkfjr fd;k gS\ 2- vuqrks"k\ 3- vk;k vthZnkj oknh us /kkjk 9¼,½ jktLFkku fd;k fu;a=.k vf/kfu;e] 2009 ds vUrxZr fof/kd Áko/kkuksa ds vuqlkj ÁR;FkhZ dks uksfVl fn;k\** 3. The Tribunal, upon analysis of the ocular and oral evidence tendered by rival parties and after threadbare discussion of the questions involved, held issues Nos. 1 and 3 against the tenant (petitioner) and in favour of the landlord (respondent). Considering the evidence, the Tribunal reached to a categorical conclusion that the landlord had sent a notice dated 09.02.2010, vide speed post, which was received at the address of tenant. The Tribunal found it to be sufficient compliance of the provisions contained in Proviso to Section 9(a) of the Act of 2001. It was inter alia observed that though the provision speaks of "registered post acknowledgment due" and not "speed post", but the service by speed post cannot be treated to be a non-compliance. Since the factum of sending the notice-Ex. 1 was proved by the landlord, the Tribunal considered other evidence such as postal receipt, reply of the post office, proof of delivery, to reach to a conclusion that the notice was delivered on 10.02.2010, while drawing a presumption under Section 114 of the Evidence Act read with Section 27 of the General Clauses Act. A categorical finding came to be recorded by the Tribunal that the notice has reached its addressee, namely, Sohanlal S/o. Girdharilal - the tenant. 4. The petitioner contended that since the proviso to Section 9(a) of the Act of 2001 requires service of the notice through registered post acknowledgment due and not by speed post, it cannot be said that service of notice was just and proper. Petitioner's such contention was rejected by the learned Tribunal, relying upon judgments of Allahabad High Court and Orissa High Court, wherein it was held that speed post is also a kind of registered post. The Tribunal was of the view that merely because the notice had been sent through speed post, it cannot be said that due compliance of Proviso to Section 9(a) of the Act of 2001, has not been made. 5. The Tribunal was of the view that merely because the notice had been sent through speed post, it cannot be said that due compliance of Proviso to Section 9(a) of the Act of 2001, has not been made. 5. Petitioner's contention that since the due amount has been deposited in the bank account of respondent-landlord in parts: 27.10.2010 (Rs. 1300/-); 24.11.2010 (Rs. 4225/-); 14.03.2011 (Rs. 3575/-); and 02.11.2011 (Rs. 4,025), there was no default in payment of rent, was rejected by holding that the arrears of the rent were required to be cleared within 30 days of receipt of the notice (i.e. 10.02.2010) and, the amount deposited after expiry of notice period, cannot be considered to be a requisite compliance of the statutory provision. As issues Nos. 1 and 3 were decided in favour of respondent-landlord, the petition was allowed vide its judgment dated 26.09.2016 and a certificate of recovery of possession of even date came to be issued. 6. The petitioner preferred an appeal under Section 19 of the Act of 2001, before the Appellate Rent Tribunal and challenged the order of the Tribunal dated 26.09.2016 inter alia on the ground that neither the finding that the notice dated 09.02.2010 was received by him nor the presumption of service drawn by the Tribunal below was in conformity with law. Other submissions were also made: that the notice sent through speed post was not valid; the arrears of rent had been paid; Tribunal had erred in rejecting his application for summoning the postman, etc. None of the contentions raised by the petitioner found favour of the Appellate Rent Tribunal and the appeal filed by him came to be dismissed, vide judgment dated 25.04.2019. 7. Mr. Tribhuvan Gupta, learned counsel for the petitioner, calling in question, the orders passed by the Tribunals below, submitted that the Tribunals have committed apparent error of law in deciding issues Nos. 1 and 3 against the petitioner and issuing/affirming certificate of recovery of possession. Taking support of proviso to Section 9(a) of the Act of 2001, it was firstly argued that the Act of 2001 requires a notice to be sent through registered post acknowledgment due, whereas the notice in question was admittedly sent through speed post, which cannot be treated to be a due compliance of the statutory provision. Taking support of proviso to Section 9(a) of the Act of 2001, it was firstly argued that the Act of 2001 requires a notice to be sent through registered post acknowledgment due, whereas the notice in question was admittedly sent through speed post, which cannot be treated to be a due compliance of the statutory provision. Elaborating his argument, learned counsel contended that it is settled proposition of law that if a statute requires something to be done in a particular manner, it has to be done in the same manner and no deviation therefrom is permissible, while citing few judgments on this issue. 8. It was also argued by him that there was a difference in the pleadings and in the evidence led by the respondent-landlord, inasmuch as in the eviction petition it was stated that the notice dated 09.02.2010 was sent through registered post while giving receipt number, whereas in evidence such stand was changed. It was pointed out that the petitioner-tenant filed a written statement denying the averments of the petition and asserted that there is no record of sending any registered post on the receipt number mentioned by the landlord. It was only after such response of the petitioner, the respondent-landlord became wiser and changed his stand to say that the notice, as a matter of fact, was sent through speed post and not by registered post. Learned counsel vehemently argued that the evidence led by the landlord was not in conformity with the pleadings and thus liable to be discarded. 9. Learned counsel further submitted that there was no default in payment of rent and the petitioner had been asking the landlord to disclose his bank account details, so that the rent could be deposited and when the respondent did not pay any heed to petitioner's request of providing the details, advance rent was sent through money-order on 11.10.2010. Thereafter, on receipt of the summons from the Court, when petitioner came to know the bank details of respondent, the rent was immediately deposited in his bank account. 10. The sheet anchor of his submissions has been, that postal service through speed post and registered post are entirely different, and when the Act of 2001 requires the notice to be sent through registered post acknowledgment due, the notice sent through speed post cannot be accepted as requisite compliance. 11. 10. The sheet anchor of his submissions has been, that postal service through speed post and registered post are entirely different, and when the Act of 2001 requires the notice to be sent through registered post acknowledgment due, the notice sent through speed post cannot be accepted as requisite compliance. 11. In support of such contention, learned counsel invited Court's attention towards an office memorandum dated 01.06.2010, issued by the Ministry of Communications and IT, Department of Posts, New Delhi. Upon the concern being shown by the Court, learned counsel fairly admitted that this office memorandum was neither placed on record nor was any argument advanced on its basis. He nevertheless insisted that the same be considered as it has been issued by the Ministry. Inviting Court's attention towards the office memorandum, it was asserted that speed post can be delivered to any person available at the given address, whereas registered post can be delivered to the addressee only or his duly authorized agent. 12. Mr. Dileep Kawadia, appearing for the respondent-landlord, submitted that the Tribunals below have concurrently recorded a finding that there was a default in payment of rent and that the service of notice upon the petitioner-tenant has been duly effected. While maintaining that the findings of fact recorded by the Tribunals and the reasons for drawing such inference were infallible, he submitted that this Court should not interfere in the findings recorded by the Tribunals in exercise of its supervisory jurisdiction. He argued that neither any question of law is involved nor is there any infirmity or illegality in the orders passed by the Tribunals below, warranting interference of this Court. 13. Heard learned counsel for the parties and perused the record. 14. True it is, that the Tribunals below have concerted in holding that the notice dated 09.02.2010 has been duly served upon the petitioner-tenant and that there is a default in payment of rent. But, this Court feels that a question of law does arise for determination by this Court, particularly as to whether service of notice by speed post can be said to be a sufficient compliance. 15. Before proceeding to decide the above question, this Court deems it appropriate to record that as far as finding of service of notice dated 09.02.2010 on Heeralal and/or the presumption of service drawn by the Tribunals below is concerned, the same cannot be faulted with. 15. Before proceeding to decide the above question, this Court deems it appropriate to record that as far as finding of service of notice dated 09.02.2010 on Heeralal and/or the presumption of service drawn by the Tribunals below is concerned, the same cannot be faulted with. Both the Tribunals have rightly held that the landlord has aptly proved the issuance of notice, its remittance by post (speed post) and due receipt at the address given in the notice, which is admittedly the address of the petitioner. Hence, the service of notice upon Heeralal is a service upon the petitioner; is a correct conclusion, which has been drawn by the Tribunals. 16. Petitioner's argument that the burden lay upon the landlord to show that Heeralal was petitioner's recognized agent or relative is untenable. In the opinion of this Court, once the landlord has come with a specific case that the notice addressed to the tenant(which was the correct address of the tenant), was booked from the post office under a certificate, viz. "receipt" and same has been delivered at the given address, the initial burden of the person sending the notice stood discharged. If the recipient of the notice - petitioner asserted that the same was not received by him, the burden shifted upon the person denying the factum of receipt of the notice. In other words, the burden to prove that the notice said to have been served upon Heeralal was not served upon him or he was not authorized by the petitioner to accept/receive the post, was upon the petitioner; it was for the petitioner to show that there was no person named Heeralal on his shop or that the landlord has collusively created the document with the aid of Postal official. 17. That apart, the notice had been served upon Heeralal, unquestionably at petitioner's address - a small shop situated in a relatively small city. In normal circumstances, when a delivery official of the post office reaches to a shop, it cannot be believed that he would not know the persons working on the shop. More importantly, it is difficult to believe that the owner of the shop would not notice the delivery official handing over post or other article and obtaining signature on the receipt. The fact that the delivery of post is given during normal business hours does not need much deliberation. More importantly, it is difficult to believe that the owner of the shop would not notice the delivery official handing over post or other article and obtaining signature on the receipt. The fact that the delivery of post is given during normal business hours does not need much deliberation. On overall appreciation of material on record, this Court finds that the reasoning given and conclusion drawn about the service of notice upon petitioner-tenant does not suffer from any infirmity. 18. Hence, as far as conclusion regarding presumption of service of the notice in question is concerned, the same cannot be faulted with. The only difference is, the mode of service, which according to the petitioner, is not in conformity with law, having been sent through speed post. 19. Other submission of learned counsel for the petitioner that the petitioner had not defaulted in making payment, inasmuch as the amount has been firstly tendered through money-order and thereafter deposited in the account of landlord, has no substance. Both the Tribunals have held that due amount of the rent was not paid by the tenant. This Court does not find any perversity in such finding recorded by the Tribunals. That apart, it is a fact that the respondent-landlord has proved beyond any pale of doubt that after July, 2009, the petitioner-tenant had not paid the rent. More so, despite service of statutory notice on 10.02.2010, the petitioner did nothing for eight months and later sent the money-order on 11.10.2010. The appellate Tribunal has noticed that the landlord had filed the eviction petition on 30.09.2010 whereafter, petitioner's counsel filed his vakalatnama in the Tribunal on 11.10.2010; it was only on receipt of summons from the Court, he was advised to send two months' rent by money-order. 20. Be that as it may, there is no evidence or explanation on record as far as petitioner's failure/neglect to pay rent for the period between 15.07.2009 and 11.10.2010 is concerned. This being the position, the default in payment of rent is writ large. 21. Now, I move on to the moot question, as to whether service of notice through speed post is a proper and due compliance of the provisions contained in Section 9(a) of the Act of 2001. 22. There is a cleavage of the views on this issue, amongst different High Courts. 21. Now, I move on to the moot question, as to whether service of notice through speed post is a proper and due compliance of the provisions contained in Section 9(a) of the Act of 2001. 22. There is a cleavage of the views on this issue, amongst different High Courts. Division Bench of Allahabad High Court in the case of Mirzapur Electrical Industries Ltd. Vs. Commissioner of Central Excise, Allahabad, in D.B. Central Excise Appeal No. 50/2013, decided on 05.04.2013, has held as under:- "10. Section 37C of the Act provides for the method of service of the order. The registered post and speed post are the same; method of service, of which the record is kept by the Post Office. The object of sending the post by registered post is to keep a record, which is also served by sending an article by speed post through the same agency." Similar has been the view of Division Bench Orissa High Court, which in its judgment dated 24.10.2014 in the case of M/s. Jay Balaji Jyoti Steels Ltd. Vs. Customs, Excise & Service Tax, held as under:- "Learned Senior Counsel asserted that the statute has provided for service of orders by 'registered post' on the petitioner and sending the order by 'speed post' was not in strict compliance of the law and hence, such notice served was in a manner not prescribed by law. Therefore, the same has been held to be adequate service on the petitioner. XXX XXX XXX In view of Section 28 of the Indian Post Office Act, 1898 read with Rule 66-B of Indian Post Office Rules, 1933 (as inserted vide Gazette Notification dated 24th July, 1986), any postal article, i.e. registered at the post office from which it is posted, and a receipt issued in respect of such article is to be treated as 'registered post'. Both in the case of 'registered post' as well as 'speed post', the articles when delivered to the post offices, receipts thereof are required to be issued and consequently, both 'speed post' and registered post' satisfy the requirement of Section 28 of the Indian Post Office Act, 1898. The only difference between registered post and speed post if at all is the charges payable are normally higher for 'speed post' as the name suggests the delivery of such articles at an early date." 23. The only difference between registered post and speed post if at all is the charges payable are normally higher for 'speed post' as the name suggests the delivery of such articles at an early date." 23. Bombay High Court holds a different view. In the case of Amidev Agro Care Pvt. Ltd. Vs. Union of India, (2012) 279 ELT 353], it was held that service of notice by speed post cannot be said to be a compliance of requirement of law. It was held as under:- "As per Section 37C(1)(a), it was mandatory on the part of the Revenue to serve a copy of the order of Commissioner of Central Excise (Appeals) by registered post with acknowledgment due to the assessee. Admittedly in the present case, a copy of the order has not been sent by registered post. In these circumstances, it could not be said that the requirement of Section 37C has been complied with. The CESTAT was wrong in relying upon the judgment of the P&H High Court in the case of Mohan Bottling Company (P) Limited (supra), as in that case a copy of the order was sent by registered post, whereas in the present case, the order is said to have been sent by speed post and there is no evidence of tendering the decision to the assessee." 24. Before dilating on this issue, it would be appropriate to firstly refer to and reproduce the requirement of Section 9(a) of the Act of 2001, particularly the proviso appended thereto:- "9. Eviction of tenants.- xxxxxx (a) the tenant has neither paid nor tendered the amount of rent due from him for four months: Provided that the ground under this clause shall not be available to the landlord if he has not disclosed to the tenant his bank account number and name of the bank in the same municipal area, in the rent agreement or by a notice sent to him by registered post, acknowledgment due." 25. It is to be noticed that the expression "registered post" has its source in Section 28 of the Indian Post Office Act, 1898, which reads thus:- "28. It is to be noticed that the expression "registered post" has its source in Section 28 of the Indian Post Office Act, 1898, which reads thus:- "28. Registration of postal articles.- The sender of a postal article may, subject to the other provisions of this Act, have the article registered at the post office at which it is posted, and require a receipt therefor; and the [Central Government] may, by notification in the [Official Gazette], direct that, in addition to any postage chargeable under this Act, such further fee as may be fixed by the notification shall be paid on account of the registration of postal articles." 26. Rules governing registered post are contained in Part-III of Indian Post Office Rules, 1933 (hereinafter referred to as 'the Rules of 1933')- Rules 58 to 66 deal with registered post, whereas Rule 66B of the Rules of 1933 deals with speed post, for the sake of ready reference, all are being reproduced hereinbelow:- "PART III - REGISTRATION OF POSTAL ARTICLES I-INLAND POSTAL ARTICLES 58. Letters, letter cards, book and pattern packets, parcels and newspapers prepaid with postage at newspaper rates of postage may be registered at any post office for transmission by post to any other post office. 59. In addition to the postage, a fee of Seventeen rupees shall be charged for the registration of any postal article: Provided that no fee shall be charged for the registration of a "Blind Literature" packet. Provided further that a fee of Rs. 2.50/- only shall be charged for the registration of a value payable book packet containing printed books, the printed or stamped value whereof does not exceed Rs. 50/-. Provided further that the concession specified in the second proviso shall not be admissible unless the price is either printed or stamped on the printed book or books as the case may be. 60. The prepayment of the postage and registration fees is obligatory in the case of all registered articles. 61. (1) An article intended for registration shall be presented at the window of the post office. No such article shall be accepted for registration if it is so small or so covered with writing or sealing-wax on the address-side, or otherwise made up in such a manner, as to render it impracticable to affix to the article the official labels prescribed by the Director General. No such article shall be accepted for registration if it is so small or so covered with writing or sealing-wax on the address-side, or otherwise made up in such a manner, as to render it impracticable to affix to the article the official labels prescribed by the Director General. No such article shall also be accepted for registration- (a) Where it contains words to the effect that it has been or is intended to be insured for any specific sum or that it may contain valuable contents, unless it is also to be insured, or (b) Where such words are scored out. (c) Unless it bears the name and complete address of the sender on the outside along with the pin-code, provided that the registered article which does not bear a pin-code may be accepted if according to the judgment of the person accepting the article the name of the area of the delivery post office serving the sender's address is otherwise clearly mentioned. Explanation:- This sub-rule shall not apply to an article which has an address-label tied to it, provided that the label is not so small or so covered with writing on the address-side as to render it impracticable to affix to that side the official labels prescribed by the Director-General. (2) No parcel shall be accepted for registration unless it bears the name and address of the sender written on the cover. (3) If the Postmaster General is satisfied that it is necessary or expedient so to do to meet the rush of work in a Night Post Office or a Mobile Post Office and to ensure the equitable availability of facilities provided therein to all persons, he may, by notice displayed on the notice board of such Post Office, restrict the number of registered articles that may be tendered for booking by any person at one time at such post office during such hours as may be specified in the notice. 62. A receipt shall be given to the person who presents an article for registration at the post office window during the hours prescribed for posting registered articles. 63. No registered article shall be delivered to the addressee unless and until he or his agent has signed a receipt for it in such form as the Director General shall prescribe. 64. A receipt shall be given to the person who presents an article for registration at the post office window during the hours prescribed for posting registered articles. 63. No registered article shall be delivered to the addressee unless and until he or his agent has signed a receipt for it in such form as the Director General shall prescribe. 64. (1) If the sender of a registered article pays at the time of positing the article a fee of rupee three in addition to the postage and registration fee, there shall be sent to him on the delivery of the article a form of acknowledgment which shall be signed in ink by the addressee or his duly authorized agent or if the addressee refuses to so sign shall be accompanied by statement to the effect that the addressee or his duly authorized agent has refused to so sign: Provided that no fee shall be payable in respect of a registered "Blind Literature" packet for which an acknowledgment is required. (2) No article for which an acknowledgment is required under sub-rule (1) shall be accepted for registration unless it bears the name and address of the sender and is accompanied by a prescribed form of acknowledgment duly filled in and securely fastened to such article, and unless the article bears the superscription Acknowledgment Due on the address side. 65. The sender of a registered article may obtain an attested copy of the original receipt signed by the addressee to his duly authorized agent on payment of a special fee of rupee two provided that he makes his application for it within six months of the date on which the addressee or his duly authorized agent signed the original receipt. Vide GSR 23(E) dated 11th January 2002. Provided that no fee shall be payable in respect of a registered "Blind Literature" packet for issue of an attested copy of the original receipt signed by the addressee or his duly authorized agent. 66. (1) Registration shall be obligatory in the case of- (a) Any parcel exceeding 4 kilograms in weight or any parcel booked under Express Parcel Post. GSR 793(E) dated 7th November 1994. (b) Any insured article. (c) Any parcel addressed to a place for which a customs declaration is required. 66. (1) Registration shall be obligatory in the case of- (a) Any parcel exceeding 4 kilograms in weight or any parcel booked under Express Parcel Post. GSR 793(E) dated 7th November 1994. (b) Any insured article. (c) Any parcel addressed to a place for which a customs declaration is required. (d) Any article bearing the word "registered" or any word, phrase, or mark to the like effect written or impressed on the cover. (e) Any registered article which is re-posted after having been delivered. (f) Any value-payable article. (g) Any magazine or periodical printed or published abroad but posted in India and whose price per copy exceeds rupees 20/-. Exception 1 :- Nothing in this rule shall be held to render registration of a packet compulsory only by reason that it contains a stamped envelope, post card or wrapper as provided by rule 19(c). Exception 2:- Nothing in this rule shall be held to render compulsory registration of a Flat Rate Parcel only by reason that it exceeds 4 kilograms in weight" Vide GSR 63(E) February 2011 66-A. Omitted. 66-B(1) INLAND SPEED POST SERVICE: Inland Postal articles may be booked, after obtaining receipts therefor, at the places specified in column (1) of the Schedule below and at the post offices specified in the corresponding entries in column (2) of the said Schedule for delivery under the Inland Speed Post Service subject to the following conditions namely: (1) Inland Speed Post Service shall be available in respect of all classes of mails, which can be sent by the registered service." 27. It may be noted that speed post service was firstly introduced by the Central Government-Postal Department, w.e.f. 24.07.1986, by way of amendment in Rule 66B of the Indian Post Office Rules, 1933. While sending the article through speed-post, Postal Department issues a receipt and then, the article is sent to the addressee, at the address given on the envelope. 28. As per the provision contained in Section 27 of the General Clauses Act, if a document or article sent by registered post is not returned back, there shall be a presumption of the delivery of the document or article and it shall be deemed to have been received by addressee, unless the contrary is proved. 29. 28. As per the provision contained in Section 27 of the General Clauses Act, if a document or article sent by registered post is not returned back, there shall be a presumption of the delivery of the document or article and it shall be deemed to have been received by addressee, unless the contrary is proved. 29. A scanning of the provisions contained in Section 28 of the Indian Post Office Act, Rules 58 to 66 vis-a-vis Rule 66-B, reproduced hereinabove, clearly reveals that speed post is a mode of mail service, other than registered post. Section 28 of the Act of 1898 provides that a postal article may be sent under receipt in the manner as provided in Part-Ill of the Rules of 1933. Rules 58 to 66 of the Rules of 1933 extensively provide the manner and mode in which a registered post shall be accepted and delivered. 30. A careful reading of Rule 66-B reveals that in case of speed post service, receipt is of course issued, but, such service is available to selected places mentioned in the schedule and post offices specified in the corresponding cities. The speed post services have been made applicable in respect to all classes of mails, which can be sent by the registered service, as provided in Section 28 of the Act of 1898. 31. In the opinion of this Court, speed post has been introduced to ensure speedy delivery of an article upon payment of higher charges. A receipt is of course issued on booking of a post/article to be sent through speed post, but mere issuance of receipt by itself does not make the speed post equal to registered post. Neither any specific provision has been incorporated in the Rules regarding the manner of delivery and service, nor the provisions applicable for registered post (namely Rules 58 to 66) have been expressly or impliedly made applicable to the articles sent through speed post. As such, it cannot be said that the speed post is a type of registered post. 32. Expression used in sub-rule (1) of Rule 66B, which postulates that speed post service shall be available in respect of all classes of mails, which can be sent by registered service, cannot be interpreted to mean that speed post is nothing, but a registered post. 32. Expression used in sub-rule (1) of Rule 66B, which postulates that speed post service shall be available in respect of all classes of mails, which can be sent by registered service, cannot be interpreted to mean that speed post is nothing, but a registered post. Reference of 'registered service' in Clause (1) of Section 66B is only with a view to prescribe what type of posts or services can be sent through speed post. But, such reference, by no stretch of imagination, can be taken to mean that speed post is akin to registered post. 33. It is noteworthy that the speed post has been introduced in the Rules, w.e.f. 24.07.1986, yet the statutes providing registered post, have not incorporated corresponding amendment to include speed post, wherever the relevant statute requires the service by registered post. If the provisions under consideration, namely, Section 9(a) of the Act of 2001 are taken into consideration, needless to observe that though the Act has been enacted in 2001, yet Section 9(a) has been incorporated in such a way that service of notice has been desired by way of registered post acknowledgment due and not by 'speed post'. 34. True it is, that the above referred office memorandum dated 01.06.2010 was not placed before the Tribunals below nor any arguments were advanced based upon this memorandum. However, the same being an official publication issued by the Ministry of Communications and IT Department, Department of Posts, its cognizance can be safely taken at least with a view to ascertain as to whether a post sent through speed post has the same effect, when it is sent through registered post. A scanned copy of the same is pasted below:- No. 57.01/2010-RD&MD Ministry of Communications & IT Department of Posts Business Development & Marketing Directorate Dak Bhawan, New Delhi-110001 01st Junes 2010 Office Memorandum Subject : Procedure of delivery of Speed Post Articles. The issues related to procedure of delivery of Speed Post/EMS articles have been reviewed in Business Development & Marketing Directorate in order to streamline the delivery mechanism so as to ensure a uniform standard of service across the country. It has now been decided that the following procedure would henceforth be adopted in respect of delivery of Speed Post articles as well as EMS articles received from abroad for delivery. It has now been decided that the following procedure would henceforth be adopted in respect of delivery of Speed Post articles as well as EMS articles received from abroad for delivery. The instructions issued on the subject from time to time stand modified to the extent mentioned in this communication 2. DELIVERY (b) Signature and full name in block letters of the addressee or the person taking delivery of the Speed Post article is to be recorded in the Delivery Slip. (c) Time of the delivery shall be recorded on the delivery slip by the delivery official. (d) Multiple Speed Post articles for a single addressee can be delivered with a single signature of the addressee or the person taking delivery, provided the delivery slip lists the Speed Post number of each of those Speed Post articles. The receiving person shall write the total number of articles received over his signature. 3. ATTEMPTED DELIVERY (a). In case of the address/premises being locked, the delivery official shall leave an ‘Intimation’ during the first attempt of delivery itself. The purpose of serving the intimation is to make addressee aware that: (i). an attempt of delivery was made. (ii). when the next attempt would be made, and; (iii). how to obtain delivery of the article. (b) The intimation to be left at the address would therefore include the following information:- (i). Date and time of the delivery attempted. (ii). Date and time interval of the next scheduled attempt of delivery. (iii). Address, telephone no. and hours of business of the post office where the Speed Post article would be kept after the second delivery attempt. (iv). The date until when the Speed Post article will be retained at that post office for collection by the addressee or his/her representative. (v) Name and signature of the delivery official. (c) The delivery official, in such cases, will record the time of leaving the intimation at the address along with his signature in the delivery slip. (d) In respect of all such articles where the intimation is served during the first attempt of delivery, a second attempt of delivery of article shall be made, on the next working day. (c) The delivery official, in such cases, will record the time of leaving the intimation at the address along with his signature in the delivery slip. (d) In respect of all such articles where the intimation is served during the first attempt of delivery, a second attempt of delivery of article shall be made, on the next working day. (e) An intimation has according been designed and is enclosed for reference at Annex-A. The same shall be got printed in English or/and local language and be made available to all Speed Post delivery officials by the circles. (f) If the Speed Post article could not be delivered even on the second attempt, the article would be retained in the post office for a period of seven days following the date of first attempt of delivery. For example, if the first attempt of delivery was made on January 25, 2010, the second attempt of delivery would be made on the next working day i.e., January 27, 2010 (January 26, 2010 being National Holiday). If still undelivered, the article would be kept in deposit at the Post Office till February 1, 2010 and would be returned by the Post office on February 2, 2010 as unclaimed. (g) The undeliverable Speed Post article would be returned either to :- (i) the sender, or; (ii) to the “Return” address mentioned on the Speed Post article 4. UNDELIVERABLE ARTICLES (a) Following art the reasons due to which a speed Post article would not be delivered. Reasons Explanation Action Address not available at time of delivery Door Locked/addressee not available at the time of delivery for addressee specific articles Intimation served Damage- item not delivered Item was not delivered since it was in damaged condition Open Delivery of article from Post office as prescribed under the rules. Addressee moved Addressee has moved from the address and has left instruction as to the redirection of his communications. Article to be redirected to the new address on the same day Item refused by addressee Addressee refused to accept the article Return to the sender or to the “Return” address as mentioned on the Speed Post article on the same day. Article to be redirected to the new address on the same day Item refused by addressee Addressee refused to accept the article Return to the sender or to the “Return” address as mentioned on the Speed Post article on the same day. Deceased In case of addressee specific articles in the addressee has deceased Insufficient Address The address given on the article is incorrect However, the addressee can still be located and delivery can be made within the same office Article to be delivered after proper verification of the addressee Insufficient Address Address given on the article is not complete – like name of street, house number, locality, etc are not given Return to the sender or to the “Return” address as mentioned on the Speed Post article after the completion of period of retention (i.e. 7 days following the day of receipt) at the Post office after all enquiries to find the addressee have been proved unsuccessful. Address cannot be located There is no person of that name at the address or the addressee has gone away without leaving any instruction as to the disposal of correspondence and no reliable information is available about his/her new address Unclaimed Intimation was served but the article was not taken delivery of by the addressee or his/her representative till the date of retention of the article in the office. Return to the sender or to the “Return” address as mentioned on the Speed Post article after the completion of period of retention (i.e. 7 days following the day of receipt) at the Post office. Missent The address is correct but it falls in delivery areas of another office Article to be redirected to the new address on the same day. The address is correct except the pin-code which is incorrect (b) Whenever a Speed Post article is not delivered due to the reasons mentioned above, the delivery official shall record the reason (Refer Col. 1 of the above table) for non- delivery on the Speed Post article as well as on the delivery slip either in writing or by a stamped impression. (c) The reason recorded on the Speed Post articles for non-delivery must be one of the reasons mentioned in the Col. 1 of the above table. No. other remarks would be allowed. (d) International EMS articles which could not be delivered would be returned to the Office of Exchange concerned. (c) The reason recorded on the Speed Post articles for non-delivery must be one of the reasons mentioned in the Col. 1 of the above table. No. other remarks would be allowed. (d) International EMS articles which could not be delivered would be returned to the Office of Exchange concerned. The list of Office of Exchange for each Postal Circle is at Annex B. 5. ADDRESSEE SPECIFIC SPEED POST ARTICLES (a) In cases where a customer requires addressee specific delivery of Speed Post article (e.g. Speed Post articles containing Passport driving license etc.). BD&M Directorate or the concerned Head of Circle would be competent to allow addressee specific delivery of such Speed Post articles on receipt of such a request on a case to case basis. (b) In all such case, where the approval of competent authority is obtained, the legend “To be delivered to the addressee only” has to be printed on the Speed Post article cover by the customer. (c) In respect of all such Speed Post articles, that carry the legend “To be delivered to the addressee only”, the delivery would be made to the addressee or his/her authorized representative only. 6. RETURN/REDIRECTION (a) The Speed Post article would be returned or redirected through Speed Post service. 7. A Flow chart indicating the process of delivery is at Annex C. 8. This issues with the approval of competent authority. (Alok Sharma) General Manager To:- 1. All Heads of Circles/Additional DG, APS 2. CGM (BD & MD)/CGM (MBD)/CGM (Indepex)/CGM (PLI)/Director (Postal Staff College) 3. All Regional PMsG 4. All DDsG in Postal Directorate/JS&FA/GM (Indepex)/GM (Post Expo) 5. All Directors in Postal Directorate/Postal Training Centers/PLI Directorate/E.A. to Sec (P) 6. All Officers in Business Development & Marketing Directorate Copy to :- 1. Sr. PPS to Secretary (Posts) 2. PPS to Members of the Board 3. Guard File 35. The office memorandum dated 01.06.2010, which contains procedure for delivery of speed post articles, clearly shows that delivery of speed post article is address specific, i.e. a speed post article is to be delivered either to the addressee or any other person, who takes delivery of the article at the address. As against this, Rule 63 mandates that registered article shall be delivered to the addressee unless and until he or his agent signs the receipt. As against this, Rule 63 mandates that registered article shall be delivered to the addressee unless and until he or his agent signs the receipt. Hence, there is a clear distinction in the manner and certainty of delivery of an article, when it is sent through registered post than in a case where the article is sent through a speed post. Hence, this Court has unhesitently holds that 'registered post' is addressee specific, whereas 'speed post' is address specific. 36. The office memorandum has been issued on 01.06.2010, and the same not being a statute, cannot be treated to be an absolute law. Notwithstanding this, the distinction between speed post and registered post has been brought about and made known by way of the memorandum on 01.06.2010, whereas the contentious notice has been sent through speed post on 09.02.2010, i.e. prior to the issuance of the office memorandum. Hence, its application cannot be made to the case at hands. 37. In light of the above referred office memorandum and the Rules of 1933, if the proposition of law: "if a statute requires a thing to be done in a particular manner, it has to be done in the manner prescribed by the statute" is considered, it can safely be concluded that as Section 9(a) of the Act of 2001 provides for service of notice through registered post acknowledgment due, the service of notice, through any other mode, including speed post cannot be said to be due compliance of the statutory provisions. 38. Notwithstanding the enunciation made hereinabove with respect to speed post, while holding that service of notice by speed post cannot be treated to be sufficient compliance of provisions contained in Section 9(a) of the Act of 2001; the orders of the Tribunals below are confirmed, as the finding of service upon the petitioner has otherwise been affirmed. The grant of certificate of recovery of possession is upheld. 39. Though the writ petition is dismissed, petitioner is however allowed time up to 30.09.2019 to vacate the subject premises. In case of petitioner's failure to hand over vacant and peaceful possession by 30.09.2019, the respondent-landlord shall be free to proceed in accordance with law.