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Ram Chand Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCivil Writ No. 677 of 1968
Judge
Reported inAIR1976Delhi188
ActsLand Acquisition Act, 1894 - Sections 45 and 45(1); Evidence Act
AppellantRam Chand
RespondentUnion of India and ors.
Appellant Advocate S.N. Marwaha, Adv
Respondent Advocate V.P. Singh, Adv.
Excerpt:
.....to petitioner in compliance with section 12 (2) validly issued - evidence adduced that no valid notice served on petitioner so as to comply with section 12 (2) read with section 45 - application under section 12 (2) admitted as no question of limitation arise - orders of collector refusing to make reference under section 18 quashed. - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother cancelled her tickets and remained..........notice being issued under the signatures of the collector. it is admitted that the notice was not served personally on the petitioner but someone else had signed the acknowledgment due receipt on his behalf. the petitioner contends that he never received any such notice and got knowledge of the award having been made on november 10, 1967. he, thereforee, immediately proceeded to move the collector for making a reference under section 18 of the act and application in this behalf dated november 14, 19,67 was filed before the collector on november 15, 1967. the application was rejected by the collector, admittedly, without affording any hearing to the petitioner, by a cryptic order saying that the application was time-barred. another application moved later on by the petitioner for review.....
Judgment:
ORDER

1. Certain lands including the land, belonging to the petitioner in Mauza Tihar were acquired under the provisions of Land Acquisition Act, 1,894. Notification under Section 4 was issued on February 13, 1967. Notification under Section 6 was issued on December 17, 19,64. After the usual proceedings contemplated. by Section 9 of the Land Acquisition Act, the Land Acquisition Collector made Award No. 1916 dated August 10, 1966 and forwarded it to the Deputy Commissioner, i.e. the Collector of the District for information and filing of the award,. This was done on December 5, 1966. After the award had been filed, further action was to be taken on it.

2. It is not in dispute that the petitioner was not present at the time when the award was announced under Section 12(1). Accordingly, it became incumbent upon the Collector to give notice of the award to persons interested including the petitioner by virtue of the provisions of Section 12(2) of the Act. It is said on behalf of the respondents that this notice was sent to the petitioner's address by registered acknowledgment due post, the notice being issued under the signatures of the Collector. It is admitted that the notice was not served personally on the petitioner but someone else had signed the acknowledgment due receipt on his behalf. The petitioner contends that he never received any such notice and got knowledge of the award having been made on November 10, 1967. He, thereforee, immediately proceeded to move the Collector for making a reference under Section 18 of the Act and application in this behalf dated November 14, 19,67 was filed before the Collector on November 15, 1967. The application was rejected by the Collector, admittedly, without affording any hearing to the petitioner, by a cryptic order saying that the application was time-barred. Another application moved later on by the petitioner for review of this order was rejected by the Collector on the ground that the then incumbent of that post could not review his predecessor's order by which the application had been dismissed as being time barred.

3. The short question that first arises for decision on the facts as set out above is whether the notice sent by registered A. D. post to the petitioner in compliance with the provisions of Section 12(2) was validly issued. If it was validly issued, then a question may arise as to whether the service as effected was valid service.

4. It is not in dispute that a notice of the award was obligatory under Section 12(2) of the Act. The mode of service of notices is provided by Section 45 which reads as under:-

'45 (1) Service of any notice under this Act shall be made by delivering or tendering a copy thereof signed, in the case of a notice under Section 4, by the officer therein mentioned, and, in the case of any other notice, by or by order of the Collector or the Judge.

(2) Whenever it may be practicable, the service of the notice shall be made on the person therein named.

(3) When such person cannot be found, the service may be made on any adult male member of his family residing with him; and, if no such adult male member can be found, the notice may be served by fixing the copy on the outer door, of the house, in which the person therein named ordinarily, dwells or carries on business, or by fixing a copy thereof in some conspicuous place in the office of the officer aforesaid or of the Collector or in the court-house, and also in some conspicuous part of the land to be acquired;

Provided that, if the Collector or Judge shall so direct, a notice may be sent by post, in a letter addressed to the person named therein at his last known residence, address or place of business, and registered under Part Iii of the Indian Post Office Act, 1866, and service of it may be proved by the production of the addressee's receipt.'

5. On a reading of the above section it is clear that what is contemplated is service of notice through a process server, If the notice taken by the process server cannot for valid reason be served personally on the person concerned, it may be served on any adult male member of his family residing with him. If there is no adult male member or none can be found the notice may be served by fixing the copy on the outer door of the house in which the person therein named ordinarily dwells or carries on business or by fixing copy thereof in some conspicuous place in the office of the officer aforesaid or of the Collector or in the court house etc, thereforee, the ordinary mode of service contemplated is as provided by subsections (1), (2) and (3) of Section 45. A Collector or a Judge, however, is empowered, to direct that a notice may be sent by post in a letter addressed to the person named therein at his last known address etc. as mentioned in the proviso

to Section 45. The legislative intent is clear. Normally, notice should be served in the manner provided in sub-sections (1), (2) and, (3) of Section 45 but power is given to adopt an alternative method of service, i.e. by post. In order to adopt this alternative method a direction has to be given by the Collector or the Judge. Admittedly, in this case no notice was issued or served on the petitioner in the ordinary manner. The only manner in which the notice was issued was by post. There is, admittedly, no separate direction of the Collector as contemplated by the proviso to Section 45. Mr. V. P. Singh, learned counsel for the respondent submits that because the notice on its face shows that it will be issued by registered A, D. post and, is signed by the Collector, it amounts, to a direction by him that notice under Section 12(2) be issued in this manner and not in the ordinary manner. I am afraid I cannot agree with this contention. When the legislature speaks of a direction or order to substitute a normal contingency a separate order or direction has to be given and, perhaps, even reasons have to be stated as to why the normal mode is not being adopted.

6. Assuming that the notice issued to the petitioner in this case was validly issued a question arises as to whether the presumption contemplated under the Evidence Act of due service would be attracted. Mr. Singh submits that it would be attracted, particularly in view of the acknowledgment due card having been signed by someone on behalf of the petitioner. Normally, one may accept this contention but reading the proviso as I do not think that the presumption contemplated by the Evidence Act Can be attracted in this case. The legislature has made a specific departure in the phraseology of the proviso to Section 45 and has made its intent clear that service by post may be proved by production of the addressees receipt. The production of addressee's receipt cannot be construed to mean production of a receipt signed on behalf of the addressee. If that was the intention of the legislature then there was no need to enact that addressee's receipt be produced because posting of a notice under the proviso would have been presumed to have been served

under the provisions of the Evidence Act.

In view of my findings above, I come to the conclusion that no valid notice was issued to the petitioner nor was any valid notice served on the petitioner so as to comply with the provisions of Section 12(2) read with Section 45 of the Act.

7. It was urged by Mr. Singh that the case be remanded for an enquiry as to whether indeed Section 12(2) has been complied with in this case. I would have, perhaps, agreed to this procedure if the facts were not so clear.

8. In this view of the matter I quash the orders of the Collector refusing to make a reference under Section 18

of the Land Acquisition Act. Inasmuch as the application under Section 18(1) moved by the petitioner was admittedly with in time if no notice under Section 12(2) was served on him the question of limitation does not arise. I, thereforee, further issue a mandamus to the respondents to make a reference in respect of the petitioner's land in accordance with the provisions of Section 18 of the Land Acquisition Act. The petitioner will be entitled to his costs. Counsel's fee Rs. 350.

9. Order accordingly.


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