State of U.P. vs Shri Nath and Another

J.C. Gupta, J.—Heard Petitioner''s counsel and perused the impugned order, dated 23.7.1996, whereby an appeal filed u/s 33 of the Urban Land (Ceiling and Regulation) Act, 1976, hereinafter referred to as the Act, has been allowed on the ground of non-compliance of Rule 5(2) of the Rules framed under the Act.

The only question involved in this writ petition is as to what is effect of non-compliance of the provisions contained in Rule 5 (2).

Section 8(3) of the Act provides that a draft statement prepared u/s 8(2) shall be served upon the person concerned in such manner as may be prescribed together with a notice stating that any objection to the draft statement shall be preferred within thirty days of the service thereof.

Sub-section (4) of Section 8 then lays down that the Competent Authority shall consider the objections received and after giving a reasonable opportunity of being heard pass such orders as it deems fit and then a final statement determining the vacant land held by the person concerned in excess of the ceiling limit, shall be prepared.

II is clear from the above provisions that a valuable right of hearing based on the principle of natural justice is embodied in the Statute itself and to ensure that the person concerned is not deprived of that right, a definite procedure for service of the draft statement and notice has been prescribed under Rule 5, which reads as under:

Particulars to he contained in draft statement as regards vacant lands and manner of service of the same.--(1) Every draft statement prepared under Sub-section (1) of Section 8 shall contain the particulars specified in Form III.

(2) (a) The draft statement shall be served, together with the notice referred to in Sub-section (3) of Section 3. on:

(i) the holder of the vacant lands, and

(ii) all other persons, so far as may be known, who have, or are likely to have., any claim to, or interest in, the ownership, or possession, or both, of the vacant lands, by sending the same by registered post addressed to the person concerned:

(i) in the case of the. holder of the vacant lands, to his address as given in the statement filed in pursuance of Sub-section (1) of Section 6, and

(ii) in the case of other persons at their last known addresses.

(b) Where the draft statement and the notice are returned as refused by the addressee, the same shall be deemed to have been duly served on such person,

(c) Where the efforts to serve the draft statement and the notice, on the holder of the vacant lands or, as the case may be, any other person referred to in Clause (a), in the manner specified in that clause is not successful for reasons other than the reason referred to in Clause (b), the draft statement and notice shall be served by affixing copies of the same in a conspicuous place in the office of the Competent Authority and also upon some conspicuous part of the house (if any) in which the holder of the vacant lands or as the case may be, the other person is known to have last resided or carried on business or personally worked for gain.

A bare perusal of the above rule leaves no room of doubt that the notice and draft of statement are to be served upon the person concerned by sending then by registered post. The other mode of substituted service as provided under Sub-rule (3) of Rule 5 can be resorted to only when efforts to serve the person concerned by registered post have failed and not otherwise meaning thereby that notice and draft statement cannot be served in law directly in the manner provided under Sub-rule (3) without making any effort to serve them by registered post.

It is well-established law that if the Statute requires that a particular act should be done in a particular manner, it should be performed with that mode and if there is non-compliance of the mandatory requirement of law, the act done would be invalid and ineffective. It is also well-settled that the provisions of the main Act and the Rules should be so harmoniously construed that the object of the enactment is achieved. In the case of Assistant Collector v. National Tobacco Company and Ors. AIR 1972 SC 2569, the Hon''ble Supreme Court held that the rule of construction that where a mode of performing an act is laid down by law, it must be performed with that mode or not at all. is subservient to the basic principle that Court must endeavour to ascertain the legislative intent and purpose, and then adopt a rule of construction which effectuates rather than one that may defeat these.

On a harmonious construction of the provisions of Sections 8 and 9 read with Rule 5, the only conclusion which may be arrived at is that the Legislature provided a specific mode of service of draft statement and notice by registered post at the first instance to ensure that the person concerned is not deprived of his valuable right of hearing provided u/s 8(4) of the Act because serious consequences follow affecting the rights of the person concerned to hold his immovable property. Therefore, the provisions of Section 8(3) read with Rule 5 must be held to be mandatory.

Undisputedly in the present case, no notice along with copy of the draft statement were sent by registered post to the Respondent No. 1 and the notice is said to have been served through process server. There is also no observation in the order of the Competent Authority that the notice was served by affixing the copy of the same in a conspicuous place in the office of the Competent Authority and also upon the some conspicuous part of the house, if any, in which the holder of the vacant lands last resided or carried on business or personally worked for gain.

Therefore, in the present case, there has been no service of notice and draft statement as per the mandatory requirement of law. In the absence of service, the land holder was deprived by his valuable right of hearing before the preparation of Final Statement. Unless notice and draft statement are served upon the person concerned, the Competent Authority gets no jurisdiction to proceed u/s 9 to prepare final statement. The lower appellate Court thus has rightly allowed the appeal and the view taken by it is in accordance with law. No interference is, therefore, called for.

The writ petition is dismissed.