Chiranjit Lat vs Prescribed Authority/Munsif and Others

R.H. Zaidi, J.—Heard learned Counsel for the Petitioner and also Mr. Rakesh Bahadur, Advocate, who has filed caveat on behalf of Respondent No. 3.

Since the learned Counsel for the parties requested that the matter may be disposed of finally. I have heard them and the matter is being disposed of at this stage, finally.

It was on 22.5.1996 that the release application was filed u/s 21(1)(a) of the U.P. Act No. XIII of 1972 for short the Act''. On the same date an application was filed which was supported by an affidavit, for issuing a Commission to serve the notices upon the Petitioner, who was opposite party in the said proceedings. The application was allowed and thereafter the Advocate Commissioner submitted a report on 27.5.1995 to the effect that the Petitioner refused to receive the notices issued by the Prescribed Authority. The Prescribed Authority believing and relying upon the report of the Advocate Commissioner held that service was sufficient and directed the case to proceed ex parte. On 31.5.1995 the release application filed by the Respondent No. 3 was allowed ex parte.

The Petitioner as soon as came to know about the ex parte order, filed an application for setting aside the aforesaid ex parte order. The said application was opposed by Respondent No. 3. The Prescribed Authority after perusing the record, upheld the validity of the ex parte order and dismissed the application for setting aside the same. Petitioner, thereafter, filed the present petition challenging the validity of the order dated 31.5.1995 passed by Prescribed Authority.

Mr. R. P. Tiwari, Advocate learned Counsel for the Petitioner submitted that the order dated 31.5.1995 was passed by the Prescribed Authority behind his back and the notice was neither tendered to him nor he has ever refused to receive the same. He further submitted that the procedure prescribed under the rules framed under the Act for the service of notice was not followed; but a new procedure was adopted by the Prescribed Authority to serve the notices issued by it. He submitted that the Advocate Commissioner submitted an absolutely false report. The Prescribed Authority has acted illegally and arbitrarily in relying upon the same and in passing the ex parte order which was liable to be set aside.

On the other hand Mr. Rakesh Bahadur Advocate submitted that the Petitioner refused to receive notices issued by the Prescribed Authority and the report of the Advocate Commissioner was factually correct. The Prescribed Authority, therefore, committed no error of Jurisdiction in rejecting the application filed by the Petitioner for setting aside the ex parte order.

The manner and mode of service of notices issued by the authorities under the Act has been prescribed under Rule 28 of the Rules framed under the Act. The said Rule had been framed under Sub-section (8) of Section 34, which reads as under:

(8) For the purposes of any proceeding under this Act and for purposes connected therewith the said authorities shall have such other powers and shall follow such procedure, principles of proof, rules of limitation and guiding principles as may be prescribed.

Clause (d) of Section 3 defines the word ''prescribed'' as under:

(d) "prescribed" except in clause (e), means prescribed by rules made under this Act;

Rule 28 reads as under:

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 of 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 one 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.

(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 service effected.

In the said Rule it is nowhere provided that the notices may be served by a Commissioner appointed by the Prescribed Authority.

Rule 36 of the Rules provides as under:

Process fees - Section 41.--In respect of every application, appeal or revision filed before the District Magistrate, the Prescribed Authority under the Act, the applicants or, as the case may be, the Appellants shall pay for the service of all notices, summonses or orders whether issued in the first instance or subsequently, process fees at the rate of one rupee for every party on whom such notice summons or order is to be served and all such fees shall be payable in the form of court-fee stamps, and where any process is required to be served by registered post acknowledgement due, a duly addressed envelope, bearing proper postage and acknowledgement card shall also be filed.

It is apparent from the aforesaid rules that the notices issued by the authorities constituted under the Act may be served either by the process server or by means of the registered post.

The application for appointment of Commissioner for the said purpose was apparently purposive. The Commissioner appointed by the Prescribed Authority had, under the Rules, no right to serve the notices personally or otherwise, particularly when no case for substituted service was at all made out by Respondent No. 3 and substituted service is not permissible under the Act as held in 1983 ALJ 916 : 1980 (2) ARC 128. The authorities constituted under the Act may issue Commission for examination for witnesses or document or local investigation but not for effecting service of notices issued by the said authorities. A reference in this regard may be made to clause (c) to Sub-section (1) of Section 34 of the Act, which reads as under:

Powers of various authorities and procedure to be allowed 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 No. V of 1908), when trying a suit, in respect of the following matters namely,-

(a) ....

(b) ....

(c) Inspecting a building or its locality, or issuing Commission for the examination of witnesses or documents or local investigation.

The procedure adopted by the Prescribed Authority for service of notice was, thus, contrary to the provisions of the Act and the Rules framed thereunder. The Prescribed Authority had no right either to appoint the Commissioner for the said purpose or to rely upon the report submitted by him. The entire procedure adopted by him was wholly illegal and without Jurisdiction. Therefore, the order passed on the release application by the Prescribed Authority is null and void. The Prescribed Authority has exceeded its Jurisdiction in allowing the release application behind the back of Petitioner and rejecting the application filed by the Petitioner for setting aside the ex parte order.

In view of the aforesaid discussions, the orders passed by the Prescribed Authority dated 31.5.1995 and 27.8.1996 are liable to be quashed.

The writ petition succeeds and is allowed. The orders dated 31.5.1995 and 27.8.1996 are quashed. The case is remanded to the Prescribed Authority for decision afresh in accordance with law after affording an opportunity of being heard to the parties and by means of speaking order within 2 months from the date a certified copy of this order is produced before it.