The United Commercial Bank vs Bhim Sain Makhija And Anr.
1993 Latest Caselaw 547 Del

JUDGMENT

Jaspal Singh, J.

(1) Is sending a notice by registered post in addition to its affixation on the outer-door of the public premises a proper service within the meaning of sub-section 3 of Section 4 of the Public Premises (Eviction of Unauthorised Occupants)Act, 1971 (hereinafter called the Act) and Rule 4 of the Public Premises (Eviction of Unauthorised Occupants) Rules, 1971 (hereinafter called the Rules)? I am called upon to answer this question. However, before I proceed to do so, a thumb-nail description of the background is called for.

(2) The respondents before me had taken on rent a part of the basement of the building commonly known as Uco Bank building at Parliament Street, New Delhi. The landlord was the United Commercial Bank. By a notice dated August 8, 1978 the Bank terminated the tenancy. Thereafter eviction proceedings under the Act were initiated before the Estate Officer Who issued a notice to the respondents under section 4 of the Act read with rule 4 of the Rules. Whereas a copy of the notice was affixed on the outer-door of the tenanted premises, yet another was sent by registered post. However, as none appeared on behalf of the tenant, the Estate Officer proceeded ex parte and thereupon passed an order of eviction. Aggrieved by that order the tenant preferred an appeal which was allowed by the learned Additional District Judge holding that the notice issued under sub section (1) of section 4 of the Act had not been served in accordance with sub-section (3) of section 4 of the Act read with Rule 4 of the Rules on the ground that the notice which was required to be sent by registered post acknowledgement due had actually been sent by registered post only. It was thereupon the turn of the Bank to feel aggrieved. Hence this writ petition.

(3) It was contended on behalf of the petitioner that since notice had been served by affixation in terms of sub-section (3) of section 4 of the Act ana as it had also been sent by registered post though not by registered post acknowledgment due, the s

(4) I think the stage has come for me to first peep into sub sections (1) and (3) of Section 4 of the Act and so also Rule 4 of the Rules framed under the Act. Here they are: "4.Issue of notice to show cause against order of eviction - (1) If the estate officer is of opinion that any persons are in unauthorised occupation of any public premises and that they should be evicted, the estate officer shall issue in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause why an order of eviction should not bemade. (2)......... (3) The estate officer shall cause the notice to be served by having it affixed on the outer door or some other conspicuous part of the public premises and in such other manner as may be prescribed, whereupon the notice shall be deemed to have been duly given to all persons concerned. Rule 4. Manner of service of notices and orders-(1) In addition to any mode of service specified in the Act a notice issued under sub section (1) of.Section 4 or sub-section (2) of Section 5A or sub-section ( 1 ) of Section 5B or sub-section (1) or sub-section (I-A) of Section 6 or an order issued under sub-section (1) of Section 5 or sub-section (1) or sub-section (2) or sub-section (5) of Section 5B or sub-section (1) or sub-section (2) of Section 5C or sub-section (1) or sub-section (2) of Section 7 of the said Act shall be served by delivering or tendering a copy of the notice or order, as the case may be, to the person for whom it is intended or to any adult member of his family, or by sending it by registered post acknowledgment due in a letter addressed to that person at his usual or last- known place of residence or business. (2) Where the copy of the notice or the order, as the case may be, under, sub-rule (1) is delivered or tendered, the signature of the person to whom the copy is so delivered or tendered should be obtained in token of acknowledgment of the service. (3) In respect of a notice issued under sub section (1)of Section 4 or sub- section (2) of Section 5A or sub-section (1) of Section 5B or sub-section (1) or sub-section (1-A) of Section 6 or an order issued under sub-section (1) of Section 5 or sub-section (1) or sub-section (2) or sub-section (5) of Section 5B or sub-section (1) or sub-section (2) of Section 5C or sub-section (1) or sub-section (2) of Section 7 of the said Act where the person or the adult member of the family of such person refuses to sign the acknowledgment, or where such person cannot be found after using all due and reasonable diligence and there is no adult member of the family of such person, a copy of the notice or the order as the case may be shall be affixed on the outer door or some other conspicuous part of the ordinary residence or usual place of business of such person and the original shall be returned to the estate officer who issued the notice or the order as the case may be, with a report endorsed thereon or annexed thereto staling that a copy has been so affixed, the circumstances under which it was done so and the name and address of the person, if any, by whom the ordinary residence or usual place of business was identified and in whose presence the copy was affixed. (4) If a notice under sub section (1) of Section 4 or sub-section (2) of Section 5A or sub-section (1) of Section 5B or sub-section (1) or sub-section (1-A) of Section 6 or an order issued under sub-section (1) of Section 5 or sub-section (1) or sub-section (2) or sub-section (5) of Section 5B or sub-section (1) or sub-section (2) of Section 5C or sub-section (1) or sub-section (2) of Section 7 of the said Act cannot be served in the manner provided in sub-rule (1), the estate officer may, if he thinks fit, direct that such notice or order, as the case may be, shall also be published in at least one newspaper having circulation in the locality and he may also proclaim the contents of any notice or order in the locality by beat of drum."

(5) A bare perusal of sub-rule (1) of Rule 4 would leave no manner of doubt about its requirement that notice "shall be served" by "sending it by registered post acknowledgment due in a letter addressed to that person at his usual or last-known place of residence or business."

(6) Of course, the judgment of the Supreme Court referred to above and relied upon by the learned counsel for the petitioner does hold that a notice sent under registered post shall be presumed under the General Clauses Act to have been served even when it is returned with the endorsement "Left without address, returned to sender". However, the said authority does not deal with the question as to whether a notice when required under the statutory rules to be sent by registered post acknowledgment due is sent only by registered post, would be sufficient compliance of the provisions. And, I must say that on this point there was hardly any assistance from the counsel arrayed against each other though happily they do otherwise excel in alacrity and sound exposition of law.

(7) What does the legislature mean by saying that the notice "shall be served ......by sending it by registered post acknowledgement due ....."? The task of answering it is allotted not to the legislature but to the courts and that is why the Montesquieu's approach that the judge is only the mouth that repeats the language of the law"* is no longer accepted. Montesquieu is probably also not wholly right when he sees a judge as a man skilled in finding his way in the hidden paths of the forest of legislature because sometimes there are hardly any paths to be uncovered leaving it to the judge himself to mark them. Even Professor Dworkin who advocates interpretive approach agrees, to be sure, that difficult texts do raise problems of interpretation and that on occasion the interpreter will have several possibilities. However, this should not and must not create an impression that easy cases do not require interpretation. Every legal norm carries within its womb a process of interpretation. As said by Professor Guido Tedeschi "IN claris non fit interpretatio": Although this phrase is not classical Roman, it is hallowed because of its long tradition, and it is known to all the lawyers of the world. However, scholars of recent generations increasingly recognize the fact that the view embedded within it, that the rule - if only the "clear" rule - may speak for itself, is too facile. Someone else's idea cannot work within us unless we absorb it,unlesswe give the cooperation that constitutes the interpretive process; whether the interpretation is difficult and exhausting, or mere child's play. And, even in the latter case. whatever the interpretation, it is precisely the ease and confidence with which it is made, that permit us to conclude that the text or the behavior at issue is clear. The holding of the Latin saying we quoted is no more correct - if such a comparison may be permitted us - than that which asserts that light foods do not require digestion. For even here, the ease and speed of the digestion are exactly what prove the lightness of the food. Otherwise, no meaning whatsoever should be ascribed to a holding such as this."

(8) While finding the way or making it himself the approach of the judge can neither be arbitrary nor mechanical. He is not entitled to flip a coin. Where the words are plain court must give effect to them and while doing the exercise it must be remembered that it is the intention of the legislature and not the words which is paramount. These are the well-defined admitted boundaries and they are essential too. But then it quite often happens that even plain words do not reflect or rather even defeat the intention of the legislature. It is then that the words become tyrannical necessitating the judge to walk, to borrow the words of Cardozo, "not into ambush, morass, and darkness, but into safety, the open spaces, and the light." That is why, to quote Professor Tedeschi again: "INTERPRETATION is not a mechanical nor even a psychological process. It is a reconstruction of another's thought- normative thought, if we are dealing with legal interpretation - and it cannot be compared at all to the emptying of a substance from one vessel to another, nor to the reflection of an image in a mirror or to a photograph. Interpretation is the copying of another's thought into the range of our spiritual life, and it can be done only by our thought process."

(9) The primary or rather the foremost task of a court in interpreting a statute is ascertainment of intention of the legislature. Having done so, the next step for the court is to so interpret the statute as to promote or advance the object and purpose of the enactment and to achieve this object the court will neither be subdued nor overawed by the plainness of the language employed by the legislature. Goulding, J. said in Comet Radio Vision Services vs. Farnell Trand Borg, 1971 (III) All Er 230: ".....The language of Parliament though not to be extended beyond its fair construction, is not to be interpreted in so slavishly literal a way as to stultify the manifest purpose of the legislature."

(10) To quote Lord Denning:    "A Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a construction of the social conditions which gave rise to it and of the mischief which it was passed to remedy and then he must supplement the written word so as to give force and life to the intention of the legislature."  

(Seaford Court Estates Ltd. v. Ashor, 1949 (2) All Er 155)   

(11) The same view we find reverberating in the judgments of our own Supreme Court and in this connection reference may be made only to few, namely, K.P. Verghese v. Ito ,SomPrakashRathi v.Unionoflndia ,andBabaji Kondaji v. Nasik Merchants Coop. Bank, .  

(12) Guided by the light of the principles noticed above I turn to Rule 4 of the Rules. Even a cursory look at the Rule would go to show that it has been introduced primarily to protect the occupants. The legislature was not satisfied with service of notice being affected by affixation only as it could be exploited or even abused to deprive the occupants from putting in appearance and setting up a defense. Additional protection was thus afforded by introducing Rule 4 which insists upon service through a letter sent by registered post acknowledgment due. Rule 4 in its entirety would go to show that the emphasis is on service of notice which is evidenced by writing. The writing evidencing receipt of notice may be on the acknowledgment due if the notice is sent by registered post or on the copy of the notice or any other document. This then is the essence of the requirement. As, in the present case, the service of notice is not evidenced by writing of the occupant or the adult member of his family, it cannot be said that the requirement of sub section (1) of Section 4 read with Rule 4 had been complied with. I feel that this answers the first limb of the question and so also the contention of the learned counsel for the petitioner that Rule 4 traverses beyond Section 4 of the Act. In any case it does not, for sub section (3) of section 4 itself carries within it the words "and in such other manner as may be prescribed" which leave the doors open for other manner to be prescribed in addition to the manner prescribed in sub-section (3) of section 4.

(13) Even if, for argument's sake, it is assumed that a notice sent simply by registered post and not by registered post acknowledgment due was sufficient compliance of sub-section (3) of section 4 read with Rule 4 of the Rules, the petitioner meets its Waterloo on yet another ground. Even a cursory look at the postal receipt by which the notice is purported to have been sent by registered cover would go to show that it does not contain complete address of the occupant. Though it does contain the name of the tenant but in the column of address what appears is as follows: "Prop. Prince Cafe". Pray, where is that Prince Cafe? It is nowhere mentioned. In fact, the postal address of the so-called Prince Cafe or of the tenant is conspicuous by its absence. This being the position no presumption of service can be raised. The entire edifice raised by the petitioner with regard to the service of notice thus falls to the ground.

(14) The writ petition must also be made to eat dust on yet another ground. As far back as in the year 1963 the Supreme Court had held in Udit Narain Singh vs. Board of Revenue, that in a writ of certiorari not only the parties in whose favor the order is issued but even the Tribunal or authorities whose order is sought to be quashed are necessary parties. In the present case neither the Estate Officer has been made a party nor the learned Additional District Judge whose order is under challenge in this writ petition. Of course, it is for the court to add or implead the proper parties for completely settling of the questions that may be involved in the controversy, either suo motu or on the application of the party to the writ or on application filed at the instance of such officer or proper party, and to be fair to the learned counsel for the petitioner he did make a request during arguments to implead them. However, I feel that since this objection was specifically taken by the respondents as far back as 1982 when the counter was filed and as the objection did not cause even a ripple as far as the petitioner is concerned, therefore, at this late stage there is no reason, more so, in view of what has been discussed by me above, to allow the request. The court will not, in such matters, be on the side of Rip Van Winkles.

(15) Before concluding I may mention that there is an application (C.M.5413/93) by the respondent for restoration of certain amenities. The learned counsel for the respondents submits that the application may be dismissed as withdrawn and that the respondents would take proper proceedings for their restoration, if so advised. Consequently that application is dismissed as withdrawn.

(16) In view of what has been discussed by me above the writ petition is dismissed but with no order as to costs.