Gauhati High Court
Jakir Hossain And 11 Ors vs The State Of Assam And 69 Ors on 12 May, 2021
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GAHC010014202015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3014/2015
JAKIR HOSSAIN and 11 ORS
S/O SAMSUL HOQUE, VILL. KISMATHA SDAHA PART-III, P.O.
KISMATHASDAHA, P.S. and DIST- DHUBRI, ASSAM, PIN-783334
VERSUS
THE STATE OF ASSAM AND 69 ORS
REP. BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM, DEPTT.
OF POWER ELECTRICITY, DISPUR, GHY-6
Advocate for the Petitioner : MR.M HOSSAIN
Advocate for the Respondent : MS.R NEWARR-9,10,23-25, 27-29,32,34,39,45,47,48,51,60, 63-
68,70
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 12.05.2021:
Heard Mr. M.A. Sheikh and Mr. M. Hossain, learned counsel for the petitioners. Also
heard Mr. N. Goswami, learned Government Advocate appearing for the State respondent
no.1 and Mr. B.D. Das, learned senior counsel assisted by Mrs. R. Deka, learned standing
counsel for respondent nos. 2 to 7.
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2. It is seen that the respondent nos. 9, 10, 23 to 25, 27 to 29, 32, 34, 39, 45,
47, 48, 51, 60, 63 to 68 and 70 had entered appearance through Mr. D. Sarma and Ms. R.
Newar, Advocates and their appearance is also reflected in the cause list. However, neither
any affidavit-in-opposition was filed on their behalf nor any learned counsel had appeared on
call for the said private respondents when the matter was heard on 15.03.2021.
3. While examining the records it has been noticed that as per office note
dated 21.06.2017, acknowledgement cards have been received back after service of notice on
respondent nos. 8, 9, 14 to 18, 20, 24, 26, 28, 30, 33, 35, 36, 39, 41, 42, 49, 55, 57, 58, 59
and 62. However, when the matter was next listed before the Court on 20.09.2017,
notwithstanding that acknowledgement card in respect of herein before referred private
respondents had been received, no order was passed accepting due service of notice on the
private respondent nos. 8, 11 to 22, 26, 30, 31, 33, 35 to 38, 40 to 44, 46, 49, 50, 52 to 59,
61, 62 and 69.
4. However, on prayer made by the learned counsel for the petitioners, the
Court had permitted the petitioners for substituted service of notice. In the order dated
20.09.2017, it was not indicated that steps for substituted service of notice through
publication in newspaper was required to be taken only on the private respondents who
remained unrepresented. Thus, the petitioners had taken steps in respect of some of the
private respondents, but not on strength of any order specifying that notice should be served
on those respondents through substituted service. Moreover, there is no order on record to
accept due service of notice in the substituted manner.
5. It is also seen that the aforesaid order dated 20.09.2017 envisaged that
notice would be served within one month's time from 20.09.2017. However, the notice was
published in "The Assam Tribune" in its edition dated 23.01.2018, way beyond the time
allowed. Moreover, it is seen that in the said notice no date of appearance was mentioned,
rather it had been stated that "... you are hereby informed to appear either personally or
through authorised pleader in this Court on the said date and to show cause if any ...". Thus,
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the steps taken was vague as regards date of appearance.
6. In this regard, it is well settled that if summons/ notices are served after
date fixed for appearance, it is obligatory on part of Court to fix another date for appearance
and to direct the plaintiff/ petitioner to take steps for service of fresh summons/ notices. If
one needs any authority on the point, the case of Nahar Enterprises Vs. Hyderabad Allwyn
Ltd., (2007) 9 SCC 466 , may be referred to. Accordingly, by order dated 18.03.2019, the
Court had directed the learned counsel to apprise the Court as regards the service of notice
as newspaper publication of notice was not done within the stipulated time. However, without
satisfying the Court on service of notice, the matter was allowed to be heard and the delivery
of judgment was kept reserved. The defect regarding non-service came to light only while
examining the records.
7. Therefore, in light of the discussions above, the Court has no option but to
release this matter without delivering judgment.
8. Under such factual matrix, the petitioners are directed to take fresh steps
within 11.06.2021 for service of notice on the respondent nos. 8, 11 to 22, 26, 30, 31, 33, 35
to 38, 40 to 44, 46, 49, 50, 52 to 59, 61, 62 and 69 by registered post with A/D. The notice is
made returnable on 16.07.2021.
9. List on 16.07.2021, if Covid-19 protocol in force permits so.
JUDGE
Comparing Assistant
