K.P.Singh - (1.) -By means of this writ petition the petitioner has challenged the order passed by competent authority and contained in Annexure I attached with the writ petition. Aggrieved by the order of the competent authority the petitioner had preferred an appeal which was dismissed by the appellate court through the order dated 23-8-1985 contained in Annexure II. Aggrieved by both the judgments the petitioner has approached this court under Article 226 of the Constitution.
(2.) THE main grievance of the petitioner before me is that the competent authority has passed the order contained in Annexure I attached with the writ petition against the petitioner without complying with the provisions of section 8 (3) of the Urban Land (Ceiling and Regulation) Act, 1976, (hereinafter referred to as the Act). THErefore, the order passed by the competent authority is bad in law and it has been wrongly confirmed by the appellate court. Relevant allegations have been made in paragraphs 8 and 10 of the writ petition. In counter affidavit vide paragraphs 7 and 8, the relevant allegations do not appear to have been controverted. Section 8 (3) of the Act reads as below : " (3) The draft statement shall be served in such manner as may be prescribed on the person concerned 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 the aforesaid section reads as below :- " (4) The competent authority shall duly consider any objection received, within the period specified in the notice referred to in sub-section (3) or with such further period as may be specified by the competent authority for any good and sufficient reason, from the person on whom a copy of the draft statement has been served under that sub-section and the competent authority shall, after giving the objector a reasonable opportunity of being heard, pass such orders as it deems fit. " The aforesaid sub-sections of section 8 require that draft statement should be served upon the person concerned. Rule 5 under the Act reads as below : " 5. Particulars to be 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 8, 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 notices 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. " In para 8 of the counter affidavit the contents of paragraph 10 of the writ petition have been denied and it has been asserted that the service was by affixation. There is no specific averment with regard to the contention of the petitioner that no notice was served through registered post. The bare reading of Rule 5 quoted above would indicate that the authorities should take recourse to service through registered post first and if that attempt fails, the service by affixation may be resorted to. Since the deponent of the counter affidavit has not categorically denied the allegations of the petitioner that no service was effected upon the petitioner through registered post, I think that the impugned order contained in Annexure I has been passed against the petitioner by the competent authority without affording reasonable opportunity to the petitioner. Therefore, the aforesaid order is in clear contravention of the principles of natural justice and deserves to be quashed.
(3.) THE appellate authority has also confirmed the judgment of the competent authority and on the question of service of the draft statement on the petitioner it has made the following observations :- " ...............THE provisions of Rule 5 are directory. In accordance with the requirements of the said Rule, the notice was sent to the appellant by registered post and it was only by abundant caution that the second notice was given to him. THE contention regarding the notice has lost all force and significance in view of the fact that the appellant filed an objection dated March 27, 1982 before the competent officer and challenged the notice under section 10 (5) and section 11 (8) of the Act................" To my mind, the appellate court has wrongly assumed that the notice was sent to the petitioner by registered post and it was only by abundant caution that the second notice was given to him. The averments in paragraph 8 of the counter affidavit indicate that no notice was sent by registered post. It appears that the assertion was made in the counter affidavit to that effect but it was scored out later on. Therefore, it is apparent that no notice was sent by registered post.;