Seth Brothers vs Ram Nath Daga And Ors.
1971 Latest Caselaw 238 Del

JUDGMENT

S. Rangarajan, J.

(1) The petitioner, who has moved this court under Articles 226/227 of the Constitution, is doing business as a partnership firm at 2735-36, Kashmir Gate, Delhi. The first respondent, who is the owner thereof, filed an application under section 19 of the Slum Areas (Improvement and Clearance) Act, 1956 for permission to evict the tenant alleging arrears of rent and subletting. Without personal service being effected on the petitioner permission was granted ex parte on 14th May 1970 by the Competent Authority to file an eviction petition. Both the grounds alleged for eviction, namely, arrears of rent and subletting, were denied by the petitioner.

(2) When the notice, of the application for eviction filed before the Additional Rent Controller was served on 24th September, 1970 he came to know of the ex-parte order passed by the Competent Authority on 14th May, 1970 and moved an application before it on 26th September 1970, to set aside the ex-parte order. On 4th January 1971 the competent authority dismissed the application of the petitioner to set aside the ex-parte order observing that it had become functus officio since an eviction petition had already been filed, in pursuance of the permission granted; reliance for this position, was placed on a decision of the Financial Commissioner, Delhi.

(3) In the present petition, which has been filed to quash the said order of the Competent Authority dated 4th January 1971 extensive and elaborate allegations have been made concerning the petitioner not having been served and questioning the correctness of the procedure adopted in the matter of the issue and service of notices to the petitioner and the manner in which the petitioner was set ex-parte. But the only prayer which was originally made was for setting aside the order of the competent authority dated 4th January 1971 but not the ex-parte order dated 14th May 1970. During the course of the hearing the petitioner filed C.M. 1513W of 1971 for amending the writ petition by including a prayer for quashing the order dated 14th May 1970 also. Though this petition was opposed I consider that since the petitioner may not be precluded from filing yet another writ petition for the same relief the ends of justice require that the amendment should be granted. The amendment-petition is accordingly allowed.

(4) In the reply to C.M. 1513W/71 the landlord has set out his opposition to the newly added prayer; Shri Jatindra Sharma, learned council for the landlord advanced arguments on the basis of those contentions with reference to the new prayer to quash the order dated 14th May, 1970 also. But in the view I take it would be needless to consider the prayer newly sought by way of amendment.

(5) The various steps that were taken by the Competent Authority on the application of the landlord filed on 21st February 1970 under section 19(4) of the Slum Areas (Improvement & Clearance) Act for permission to evict the petitioner by impleading therein not only the petitioner but another person, said to be the sub-tenant of the petitioner, may now be stated. Notice was ordered to both the respondents in the said petition for 31st March, 1970. The Bailiff reported on 30th March, 1970 that he went to the spot but could not know anything; this understandable statement was made by the Bailiff in respect of both the respondents. The notice taken through post for the hearing on 31st March, 1970 was merely returned with an endorsement about not being able to meet the petitioner; so far as the alleged sub-tenant was concerned it was returned on the ground "left". These notices were actually received by the Competent Authority on 2nd April 1970. but an order for service by affixation was passed on 31st March, 1970, for the hearing on 17th April, 1970. On 14th April 1970, the Bailiff was stated to have gone to the spot when the petitioner is alleged to have refused the notice and, therefore, the bailiff affixed the .copy of the notice and the same was attested by some one. On 17th April 1970 the Competent Authority ordered the publication to be made in one issue of a vernacular paper called "Sakshi". It is stated by Shri Jatindra Sharma that the office of the paper "Sakshi" had sent copies of the issue containing the notice, under certificate of posting, not only to the court but also to the petitioner. But in the absence of any reference to these matters by the Competent Authority it would not be proper, at this stage, to go into these aspects.

(6) On 1st May 1970 the Competent Authority noted that the landlord was present, that none appeared for the respondent before the Competent Authority, who was set ex-parte and adjourned the case to 14th May 1970. On that day the landlord filed his affidavit and adduced arguments; the Competent Authority passed an ex-parte order granting the required permission. Section 19 of the Slum Areas (Improvement and Clearance) Act, 1956 provides that no person shall except with the previous permission in writing of the Competent Authority institute after the commencement of the said Act, any suit or proceeding for obtaining any decree or order for the eviction of a tenant from any building or land in a slum area.

(7) Every person so desiring to obtain such permission shall make an application in writing to the Competent Authority in such form and containing such particulars as may be prescribed. On receipt of such application, the Competent Authority, after giving an opportunity to the parties of being heard and after making such summary inquiry into the circumstances of the case as it thinks fit shall by order in writing, either grant or refuse to grant such permission.

(8) Rules have been framed by the Central Government in exercise of the powers conferred by section 40 of the said Act, laying down the procedure which shall be adopted by the Competent Authority in dealing with such an application. Rule 7(1) provides that every application for permission under section 19 shall be made in Form G which incidentally, continues to be the same form laid down under the old Act, as unamended, of 1956. In other words, even after the amendment of section 19 by Act 43 of 1964, which provides for such permission being obtained before the institution of a suit or proceeding to evict, instead of after getting a decree for eviction as formerly, the norm still refers to an order of eviction passed already; the necessary corrections have not been made. According to Rule 7(4) the Competent Authority shall cause a notice fixing a date of hearing to be issued to the tenant giving him an opportunity of making his objections to such application. On such date, or such other date to which the hearing may be adjourned, the Competent Authority shall hear the parties and their witnesses (if any) and make such inquiry into the circumstances of the cases as it thinks fit. According to Rule 7(5) if either party is absent on any date of hearing, the Competent Authority may proceed in his absence and after hearing the party present pass such order as it thinks fit.

(9) Reading S. 19 as well as Rule 7 together the following seems to be the position.: while S. 19(3) gives the Competent Authority the discretion of making such summary inquiry as it thinks fit, no such discretion is given to it in the matter of the opportunity to be given to the parties of being heard. S. 19 does not contain any provision as to the mode of serving notice of the application under section 19 to the opposite party. It is only Rule 7(4) which states that the Competent Authority shall cause a notice fixing a date of hearing to be issued to the tenant. The manner in which the said tenant has to be served has thus not been specifically provided either by section 19 or by Rule 7(4). A continued of section 19 with Rule 4 makes it clear that the notice fixing the date of hearing is with a view to give the tenant an opportunity of preferring his objections to the application under section 19.

(10) Reference in this context may be made to section 31 of the Act which reads as follows :

"31.(1) Every notice, order or direction issued under this Act shall, save as otherwise expressly provided in this Act, be served - (a) by giving or tendering the notice, order or direction. or by sending it by post to the person for whom it is intended; or. If such person cannot be found, by affixing the notice order or direction on some conspicuous part of his last known place of abode or business, or by giving or tendering the notice, order or direction to some adult male member or servant of his family or by causing it to be affixed on some conspicuous part of the building or land, if any, to which it relates. (2) Where the person on whom notice, order or direction is to be served is a minor, service upon his guardian or upon any adult male member or servant of his family shall be deemed to be the service upon the minor. (3) Every notice, order or direction which by or under this Act is to be served as a public notice, order or direction or as a notice, order or direction which is not required to be served to any individual therein specified shall, save as otherwise expressly provided, be deemed to be sufficiently served if a copy thereof is affixed in such conspicuous part of the office of the competent authority or. in such other public place during such period, or is published in such local newspaper or in such other manner, as the competent authority may direct."

(11) It may be seen that section 31 occurs in Chapter Vii of the Act which is entitled "Miscellaneous" containing sections 22 to 40. Section 22 deals with the powers of entry by the Competent Authority or by a person authorised by him in this behalf into or upon any building or land in a slum area for making any enquiry, inspection, measurement, valuation or survey or to execute any work which is authorised by or under this Act or which it is necessary to execute for any of the purposes or in pursuance of any of the provisions of this Act or of any rule or order made there under. The power of inspection by such authority is dealt with by section 24, which gives it the power to enter the adjoining land where work is in progress. Section 25 enables it to make entry by breaking open any door, gate or any barrier if the same is necessary for the purpose of such entry which, according to section 26, has to be made only in the day time. Section 27 requires that the consent of the owner or in his absence the occupier should be obtained by giving him not less than 24 hours written notice of his intention to make such an entry. Section 28 gives it the power of directing eviction of the occupants from the buildings if they had not vacated it in pursuance of any order or direction issued or given by the authority. It can, under section 29, remove offensive or dangerous trade from slum areas. Sections 30 provides for appeals by any person aggrieved by any such notice, order or direction.

(12) It will thus be seen that the mode of service of notices prescribed by section 31 would apply only to those proceedings which are taken under Chapter Vii, namely, section 22 onwards. The appeal, provided for under section 30. is only in respect of orders passed or acts done under Chapter VII. Grover, J. (as his Lordship then was) in Ajudhia Parshad v. Chief Commissioner. Delhi (1960 Punjab Law Reporter 172) speaking for himself and on behalf of Falshaw, J. (as his Lordship then was) made the observations quoted below. The question in that case was whether a tenant who had been evicted under section 19 could file an appeal against that order since section 20 of the Act only provided for an appeal by the landlord against the refusal of permission to evict the tenant but not to a tenant whose eviction had been ordered. It was in this context that section 30 was relied upon as giving a right of appeal against any notice, order or direction issued by the Competent Authority, except as otherwise expressly provided in that Act. In addition to pointing out that section 20 by necessary implication excluded the right of a tenant to appeal against the order evicting him, the following observations were made by Grover J. making a distinction between section 20 being found in chapter Vi and section 30 being found in Chapter Vii :

It is not possible to envisage a right of appeal being conferred under section 30 against orders granting permission when no such right of appeal is clearly intended to be conferred under Chapter VI....Section 30 being a general provision appearing in the Miscellaneotts Chapter and Section 20 being a special provision giving a right of appeal to the decree holder only, the meaning sought to be placed on the opening part of section 30 cannot be accepted. These words appear to have reference to the provisions other than section 30 which specifically confer a right of appeal in certain eventualities against certain orders. In other words, if an appeal has been expressly provided for by other sections of the Act, section 30 would have no applicability."

(13) By the same parity of reasoning, it is contended for the petitioner, when a special mode of service has been specifically provided for by Rule 7(4) in respect of an application under section 19(2) it would not be possible to invoke the procedure which is laid down in Chapter Vii by section 31. It is obvious that there can be no appeal against a mere notice issued under Rule 7(4); nor could there be any penalty imposed on a person refusing to receive such anotice. From this circumstance alone the inference is permissible that section 30 of the Act, which provides for appeals from even notices issued would not apply to a notice issued under Rule 7(4) and that such a notice is not a notice contemplated by section 31. On the other hand the Forms A to F prescribed in Rule (3) indicate that the notices referred to in section 31(1) are those which are issued under sections 4, 7, 12, 27 and 33 of the Act. The possibility of the procedure laid down in section 31 for the service of notices issued under Rule (4) has to be completely ruled out.

(14) Analysing the scheme and arrangement of the Act, which does not appear by any means to be easy, it is seen that different procedures have been prescribed in respect of different Chapters. Apart from the procedural differences noticed already between Chapters Vi and Vii it is worth noticing that Chapter V, containing sections 12 to 18 deals with the acquisition of land to enable the authority to execute any work of improvement in relation to any building in a slum area or to develop any clearance area. He has, for this purpose, to issue notice to the owner of any property sought to be acquired to show cause against the proposed acquisition. No particular manner of service has been prescribed. He is also given the power to determine compensation due to the owners of the land acquired and for determining such compensation, he has to hold an inquiry in the prescribed manner. There is also an appeal provided to the Administrator against the determination of compensation. Under section 18(2) the Competent Authority is to have all the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908 in respect of the following matters :

"(A)summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of any document; (c) reception of evidence on affidavits; (d) requisitioning any public record from any court or office; (e) issuing commissions for examination of witnesses".

(15) While there is reference made in section 18 to his having all the powers of a civil court while making inquiry under section 15 in respect of the above matters there does not appear to be any specific provision in respect of the procedure relating to the mode of serving of notices etc. while deciding an application under section 19(2) of the Act. It is worth recalling that the kind of inquiry, which is to be summary, the Competent Authority shall make concerning the said application is one as he thinks fit to make. but there seems to be no such discretion in the matter of giving opportunity to the parties of being heard which necessarily implies that the parties must have actual or at least constructive notice of the time and place of the hearing of the application under section 19(2). Rule 7(5) only provides that the Competent Authority may proceed in the absence of either of the parties by hearing the party present. But this again carries with it the necessary implication that the person who is absent knew of the time and place of the hearing and still did not choose to be present.

(16) The actual evidence that was led, ex parte in this case, seems to have been by way of affidavit; the Competent Authority usually calls for evidence by way of affidavit. Order 19 of the Code of Civil Procedure provides specifically for affidavits being filed as directed by the court for providing facts alleged by either party. This itself may be some indication to show that the Competent Authority was having recourse to the Code of Civil Procedure for this purpose.

(17) If the Code of Civil Procedure is to apply the mode of service has to be as provided in Order 5. Order 5 Rule 15 provides that when the defendant in any suit cannot be found and he has no agent empowered to accept the summons on his behalf service may be made on any adult male member of the family of the defendant who is residing with him, a servant not being a member of the family within the meaning of that Rule. Rule 16 requires the serving officer to tender the summons to the person concerned and to take an acknowledgment of service indorsing it on the original summon. When the defendant refuses to accept service or he could not be found the serving officer shall affix a copy of it on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain and shall then return the original to the court with a report that such affixture had been affected at the house identified by a witness. Details of the person identifying the person served and witnessing the delivery of the tendered summons are essential: this fact must be stated in the return to the court by the serving officer. When the summons is stated to have been refused by the concerned person and affixture is made the serving officer has to be examined on oath or he has to be so examined by the same or another court. It is only after all these requirements are complied with that a court can order substituted service it is satisfied that the defendant is keeping out of the way for the purpose of avoiding service. Once substituted service is effected it shall be as effectual as if it had been made on the defendant personally. The newly added Rule 20-A also provides for the courts sending summons by registered post instead of by an officer of the court. If a person is stated by the postal employee to have refused the summons that could be taken as prima facie proof of service. This very expression, " prima fade proof of service". shows that it would be only a rebuttable presumption.

(18) Even if the above provisions of the Code of Civil Procedure do not apply in the matter of service of notice of an application under section 19(2) the sufficiency of the service of notice under Rule 7(4) has only to be judged in the context and circumstances of each case.

(19) My attention has been invited to the decision of V. S. Deshpande, J. in Rameshwar Dayalv. Ram Autar C. M. (Main) 1 12 of 1969 decided on 12th February, 1970).(2) where his Lordship has referred to the relevant provisions of the Code of Civil Procedure as well as of the Slum Areas (Improvement and Clearance) Act and the rules framed there under. Though the context in which the discussion took place in that case was somewhat different the substantial question before his Lordship was whether the tenant was entitled to show cause to the Competent Authority itself that he had not refused the notice and, therefore, the ex part proceedings against him were liable to be set aside. Answering the question in the affirmative his Lordship pointed out that even in the absence of any specific procedure the sufficiency of the service of notice issued under Rule 7(4) could be "judged on general principles of justice, equity and good conscience". His Lordship gave detailed directions about the kind of inquiry that the competent authority would have to make to satisfy itself concerning the sufficiency of service made under Rule 7(4).

(20) The competent authority has not discussed the merits of the question raised by the petitioner, namely, that he had no notice of the application under section 19(2) in the view that it had become functus officio by reason of an eviction petition having been already filed before the Additional Rent Controller in pursuance of the ex parte permission granted on 14-5-1970. It relied upon certain observations made by the Financial Commissioner in another case (appeal).

(21) Reliance was placed before me for the landlord on Bhagwan Das v. Paras Nath as a case arising under the U.P. (Temporary) Control of Rent and Eviction Act. It was held, after referring to several, unsatisfactory features of the said legislation and the conflict of judicial opinion in ..this regard, that the power of the State Government to revoke the permission to sue granted by the District Magistrate would be exhausted once a suit for eviction was instituted after getting permission from the District Magistrate. Hegde, J. who spoke for the Supreme Court observed that since neither Counsel could suggest an interpretation of the statute which could steer clear of the anomalies pointed out at the bar, recourse was had only to the grammatical construction of the concerned provision, leaving out of consideration all other rules of construction for finding out the intention of the legislature. Hegde, J. expressed the conclusion pertaining to the present aspect in the following terms :

"ON an examination of the relevant provisions of the Act our conclusion is that when the Commissioner sets aside the order passed by the District Magistrate granting permission to file a suit for ejecting a tenant, the order of the Commissioner prevails. If he cancels the permission granted by the District Magistrate there is no effective permission left and the suit instituted by the plaintiff 'without awaiting his decision must be treated as one filed without any valid permission by the District Magistrate. To this extent we are in agreement with the decision of Upadhya, J. in Munshi Lal v. Shambhu Nath Ram Kishan (1958 All. L. J. 584). But they also held that a suit validly instituted after obtaining a permission does not cease to be maintainable even if the State Government revokes after the institution of the suit, the permission granted. If the State Government revokes the permission granted before the institution of the suit then there would be no valid permission to sue. In other words the State Government's power to revoke the permission granted under section 3(1) gets exhausted once the suit is validly instituted."

(22) The observations of Hegde, J. in an earlier case, were extracted in PurshottamDass v.Smt.Raj Mani Devi . They were to the following effect :

"WHEN the Commissioner sets aside the order passed by the District Magistrate granting permission to file a suit for ejecting a tenant, the order of the Commissioner prevails, If he cancels the permission granted by the District Magistrate there is no effective permission left and the suit instituted by the plaintiff without awaiting his decision must be treated as one filed without any valid permission by the District Magistrate."

(23) The view of the Competent Authority, therefore, that once an application for eviction was filed by the landlord against the tenant in the court of the Rent Controller after getting permission from the Slum Authority, the Slum Authority became funclus officio to set aside its own previous order granting the permission is, therefore, not correct. If this were so it may even lead to the further contention, obviously extreme, that once a petition for eviction had been filed in pursuance of an order granting the permission a court exercising jurisdiction under Articles 226/227 of the Constitution would be powerless to set aside the said order granting the permission even if it is on the face of it illegal if, before the Writ Petition is decided, the landlord had filed an application for eviction before the Rent Controller in pursuance of the impugned order. I am unable to find any support for such a contention.

(24) As observed by V. S. Deshpande, J. in the above cited case the validity of the final order granting permission would depend on the proper compliance with the requirement concerning notice to the tenant. Service of notice on the tenant, or his refusal to receive the same is the very foundation for the exercise of jurisdiction under the Act. If the tenant avers that he had not been served, that he had not refused to accept notice and that he had no notice of the proceedings he could not be shut out from saying so or denied an opportunity of proving it. The interests of justice would plainly require that the Competent Authority hears the tenant who says he has not been served and did not know about the proceedings: it would be then for him to decide either the tenant had refused to accept the notice and was, therefore, served, or that he had not actually refused to accept notice and therefore the further order that he should be served through affixation and publication of notice was not justified and that he did not know about the proceedings. In the latter even a final order to evict the tenant will to be reviewed by it; if, however, the Competent Authority finds that by reason of the steps it had taken the tenant did have notice of the date and time fixed for hearing the petition than it will have no further compunction in denying the tenant any further relief. seems to me that this is a situation which could be easily resolved, even in the absence of the application of the relevant provisions of the Code of Civil Procedure strictly-sc-called, by an inquiry into the substantial question whether the tenant had either actual or constructive notice of the date. time and place of hearing. This does not appear to be the same thing as saying that the Competent Authority has no inherent power to set aside an order made by it.

(25) Shri Jitendra Sharma relied upon several decisions under the Industrial Disposes Act which held, in the absence of any specific statutory rule permitting the Industrial Tribunal or Court setting aside its own ex parle order, that there was no inherent power which could be exercised by a Tribunal, other than a court, because the Tribunal is only a creature of statute and has no more powers than expressly conferred.

(26) It would be sufficient to merely refer to decisions cited by him under the said Act. They are Ganga Ram Tea Co. Ltd. v. Second Labour Court (1967-11 L.L.J. 325)(s) Sushil Kumar Sen Gupta v. State Transport Authority (1970 Cal. Weekly Notes 341); (6) Sarojini v. LakshmiRao (1969 1. L.L.J. 9),(7) Andhra Handloom Weavers Cooperative Society v. State of Andhra Pradesh (1963 Ii L.L.J. 488) ;(8) Malik Dairy Farm v. its Workers Union (1968 Ii L.L.J. 523),(9) He also cited a decision arising under the Industrial Employment (Standing Orders) Act, 1946, namely, Palna Electric Supply Workers Union v. A. Hassan . I have discussed this question at length in C.W.50/71- Babu Ram and others v. The Lt. Governor, Delhi, and others,(11) decided on 18-8-71. In none of these cases did the question arise as to the sufficiency of service of notice issued by the Tribunal to the party who was set ex parte or even whether the affected party had notice, actual or even constructive, of the pending proceedings.

(27) Miss Kohli also invited my attention to the observations made by a Full Bench of Punjab High Court in Jagir Singh Shobha Singh v. Settlement Commissioner that a Tribunal had inherent power to correct its own error, if the circumstances are such that such a correction was necessary in the interest of justice. The Full Bench held, dealing with the provisions of the Pepsu Holdings Consolidation (Prevention of Fragmentation) Act that such an inherent power was necessarily implied in the setting up of any authority on whom the responsibility of deciding any matter rests and that to deny such power to a Tribunal would be to render the Tribunal incapable of properly deciding the matter entrusted to him.

(28) Deshpande, J. in the aforesaid case placed reliance on certain observations of the Supreme Court in Sheodev Singh v. State of Punjab (A.I.R. 1963 S.C. 1909),(13), but these observations are seen to have been made in the context of the power of the High Court to correct its own errors while exercising jurisdiction under Article 226 of the Constitution. These observations of the Supreme Court, therefore, may not be relevant in the context of a general discussion concerning what inherent powers are to be exercised by a tribunal other than courts, which are created by statute.

(29) It seems to me, however, that for the purpose of this case it is needless to enter into a discussion of this aspect having regard to the manner in which Rule 7(4) has been framed. It was the duty of the competent authority to give an effective opportunity to the tenant to make his objections which purpose would not. be served if the notice itself was not properly served on him and he had in fact, for any reason, no notice concerning the filing of the said application and much more, the time and place of the hearing of such application. In this limited view that I take of the said Rule and disagree, as I do, with the view that a Competent Authority became functus officio by reason of the filing of the said application for eviction on foot of the permission granted ex parte, I quash the order of the Competent Authority dated 4-1-1971 and direct that it will go into the question whether the tenant (petitioner in this court) had notice of the fact that an application under section 19(2) had been filed before a competent authority and that it had been posted for hearing on the relevant dates of hearing.

(30) I have to point out that if it is proved that the tenant had actually refused to receive any notice issued to him by the Competent Authority or that he had in any other manner actual notice of or could even be reasonably imputed with notice of the relevant dates of hearing his request for setting aside the ex parte order dated 14-5-1970 would not have to be considered by the Competent Authority. The Writ Petition is accordingly accepted and the order of the Competent Authority dated 4-1-1971 is quashed. The application by the tenant to the Competent Authority to set aside the ex parte order and the permission granted on 14-5-1970 is remitted to the Competent Authority for being disposed of according to law and in the light of the observations made in this judgment with liberty to both sides to adduce such evidence before the Competent Authority as they may wish on the question of the actual service of the notices issued by the Competent Authority to the tenant in pursuance of the application by the landlord under section 19(2) of the Act or his being imputed with knowledge of the issue of such notices. Parties will appear before the Competent Authority on 22-9-71.

(31) In the circumstances I leave both the parties to bear their own costs.