Union of India (UOI) vs Mr. Ram Lal

Kailash Gambhir, J.—By this petition filed under Article 226 of the Constitution of India, the petitioner seeks to challenge the order of the learned Additional District Judge, New Delhi passed in PPA No. 26/2005, thereby setting aside the order passed by the Estate Officer.

Ms. Rajdipa Behura, counsel for the petitioner assailing the order passed by the learned Additional District Judge submits that the learned Appellate Court failed to appreciate that the show cause notice was duly served upon the respondent through affixation. Counsel further submits that the respondent had deliberately locked his house from 7.10.89 to 16.10.89 and because of such avoidance by the respondent show cause notice was pasted by the concerned officer of the petitioner on the main door of the railway quarter as was allotted to the respondent. Counsel further submits that the learned Appellate Court failed to appreciate the fact that allotment of the railway quarter was cancelled as the same was sublet by the respondent in favour of one Mr. Hyat Singh and his family. Counsel states that the Appellate Court also failed to appreciate that the respondent neither submitted any reply to the show cause notice nor to the cancellation order and therefore, in the absence of any reply filed by the respondent, no fault can be found with the findings of the Estate Officer, who based on the material on record, found the railway quarter sublet in favour of Hyat Singh. Counsel further submits that once the allotment of said railway quarter was cancelled by the Estate Officer vide notice dated 4.6.90 after being duly satisfied that the respondent has unauthorisedly sublet the quarter, therefore, after cancellation of his allotment, the respondent was liable to pay damages for the period of unauthorized occupation. Counsel thus submits that the order passed by the learned Appellate Court is ex-facie illegal as the learned Appellate Court failed to appreciate the valid and just reasons given by the Estate Officer.

Mr. Singh, counsel for the respondent, on the other hand supports the order passed by the learned Additional District Judge. Counsel for the respondent submits that the respondent had throughout denied any subletting of the said allotted government accommodation in favour of any person. Counsel further submits that the respondent clearly took a stand before the Estate Officer that he had never received any show cause notice or cancellation letter. Counsel also submits that the learned Additional District Judge after having examined the records of the Estate Officer came to the conclusion that there was no due service of either the show cause notice or the cancellation order. Counsel further submits that Mr. Avtar Singh, who is alleged to have carried out the inspection of the said premises, was not produced by the petitioner before the Estate Officer to prove the factum of subletting. Counsel thus urges that there is no illegality or infirmity in the order passed by the Appellate Court.

I have heard learned Counsel for the parties and gone through the records.

The case of the respondent before the Estate Officer as well as before the Appellate Court was that he had never received any show cause notice and therefore, he was not given any opportunity to explain the correct facts before the Estate Officer. Indisputably, it was proved on record that the respondent was never served with the show cause notice in person and in fact his premises were found locked when an attempt was made to serve show cause notice to him. After having found the premises locked, show cause notice was served by affixation. It is thus quite apparent that the petitioner did not take sufficient steps to effect personal service of show cause notice on the respondent.

Service of notice by affixation no doubt is a valid mode of service but in any case the same should not be resorted to at the very threshold. The affixation can only be resorted to in the circumstances where it is found that sufficient efforts have been made to effect service upon the addressee and there is willful avoidance on the part of the addressee to receive the notice. In the present case, the learned court clearly found that no such efforts were made by the petitioner to serve the said show cause notice upon the respondent and at the first go the same was served through pasting when the premises of the respondent were found locked. Another illegality committed by the petitioner is quite visible as the petitioner failed to produce its witness, Mr. Avtar Singh, who as per the petitioner, had inspected the premises and found the premises being sublet in favour of one Hyat Singh. Even the said witness Avtar Singh did not collect any documentary evidence to show that the said premises were sublet by the respondent in favour of Hyat Singh as neither any statement of neighbours was recorded by him nor any evidence was collected by him to show presence of Hyat Singh in the said premises.

It would be relevant to reproduce the following para from the impugned order as under:

I have perused the impugned order. It is seen that the Estate Officer without satisfying himself about the service of notice for cancellation, has concluded that the appellant failed to show cause as to why the allotment of the said premises be not cancelled from the date of subletting despite service of show cause notice. In view of the challenge to cancellation of allotment, it was incumbent upon the Estate Officer to satisfy himself about subletting and cancellation of allotment on that basis.

In view of the aforesaid reasons, I do not find any illegality or perversity in the impugned order.

There is no merit in the petition and the same is hereby dismissed.