Kerala High CourtNarayanan Nair vs State Of Kerala And Ors. on 12 December, 1979Equivalent citations: AIR1980KER153, AIR 1980 KERALA 153, (1980) KER LT 141Author:T. Kochu ThommenBench:T. Kochu ThommenORDER

 

T. Kochu Thommen, J.1. The only question which arises in this O. P. is whether the petitioner's application for reference underSection 20of the Kerala Land Acquisition Act, 1961 ('the Act') was made in time. The application was received on 15-2-1977. According to the petitioner no notice underSection 12 (2)had been served on him either personally or by affixture according to law. He had no knowledge of the award until he was told of it by the Revenue Inspector who visited his property on 8-2-1977. After receiving information from the Revenue Inspector he sent his application on 13-2-1977.2. It was stated in the counter-affidavit filed on behalf of respondents 1 to 3 that notice of the award underSection 12 (2)was issued on 7-10-1976. It was taken to the petitioner's house on 12-10-1976. The petitioner was not found. His wife Pan-kajakshi Amma was present. So was K. N. Narayanan Nair of Kondoor House. In the presence of these persons the notice was affixed on the outer door of the petitioner's house No. VPP 2-544. No reply-affidavit has been filed on behalf of the petitioner to controvert these statements.3. The Government Pleader has produced before me a copy of the notice which contains the signature of Pankaja-kshi Amma and K. N. Narayanan Nair who attested the original notice which was affixed.4. Petitioner's counsel says that in the counter-affidavit it was not stated that the

petitioner's wife and K. N. Narayanan Nair had put their signatures to the copy of the notice. Counsel says that if that fact had been mentioned it could have been specifically denied.5. The respondents having clearly stated in their counter-affidavit that the petitioner was not found when the officer went to the petitioner's house and notice was therefore fixed on the outer door of the house in the presence of his wife and K. N. Narayanan Nair, one would have expected the petitioner, if he had a different case, to deny this allegation by filing an affidavit to that effect. One would also have in that event expected the petitioner's wife to specifically deny that she was present at the time of the affixture.6. Petitioner's counsel says thatSection 20 (2) (b)is not satisfied by an affixture of the notice issued underSection 12 (2)His submission is of course supported by a decision of the Bombay High Court, to which I shall presently refer.7. Clause (b) of the proviso toSection 20 (2)reads:"(b) in other cases, within six weeks of the receipt of the notice from the Collector under Sub-section (2) ofSection 12or within six months from the date of the Collector's award, whichever period shall first expire."Counsel says that receipt must be a physical receipt and not a notional receipt. Substituted service is not a receipt in fact, but only in law and that it will not be sufficient receipt for the purpose ofSection 12 (2). Substituted service, counsel admits, is sufficient service because the law says so; but the law does not say that it is the receipt of notice.8.InJankibai Tukaram v. Nagpur Improvement Trust, Nagpur, (AIR 1960 Bom 499 at p. 501) the Bombay High Court says:"......The Actuses two different expressions, namely, 'receipt of the notice' and 'service of the notice and this distinction cannot be without significance and cannot be ignored. A service of the notice as contemplated in Section 45 would not therefore necessarily amount to a receipt of the notice. The Collector, in my opinion, was therefore wrong in holding that limitation started from the date of the service of the notice by affixture on the door of the house of the applicant." (Para. 9)9.Section  49of the Act provides for service of notice. It reads:"49. Service of notices -- (1) Service of any notice under this Act shall be made by delivering or tendering a copy thereof signed, in the case of a notice underSection 3, by the officer therein mentioned, and in the case of any other notice, by or by order of the Collector or the Judge.(2) Whenever it may be practicable, the service of the notice shall be made on the person therein named.(3) When such person cannot be found, the service may be made on any adult male member of his family residing with him, and if no such adult male member can be found, the notice may be served, by fixing the copy on the outer door of the house in which the person therein named ordinarily dwells or carries on business, or by fixing a copy thereof in some conspicuous place in the office of the officer aforesaid or of the Collector or in the court-house, and also in some conspicuous part of the land to be acquired:Provided that if the Collector or Judge shall so direct, a notice may be sent by registered post in a letter addressed to the person named therein at his last known residence, address or place of business, and service of it may be proved by the production of the addressees receipt".10. The object of service of notice is to communicate to the person concerned the news of the award and the contents thereof. If communication cannot be had by a physical service of notice, notice can be served by affixture which is in law as effective as personal service. The purpose of notice by affixture is therefore to communicate knowledge of the award to the person concerned.  The law imputes knowledge to the person to whom such communication has been made. If the person to whom notice is to be given cannot be found, the purpose of the law is satisfied by communicating the knowledge by means of affixture. With great respect I do not agree with the observation of the Bombay High Court to the contrary.11- Petitioner's counsel referred me to the following observations of the Allahabad High Court inFazal Rasul v. Collector of Agra(AIR 1919 All 307 (2)) 
   

 "A notice under Section 45 should, wherever practicable, be served on the person named in the notice by delivering or tendering: it is only when the person cannot be found that service may be made in another way.The mere temporary absence from his house of the person to be served would not fall within the expression 'cannot be found' used in Clause (3) of the section."(Head-notes) 
 

 Counsel further referred me to the decision of the Calcutta High Court in Gopi-ram Agarwalla v. First Addl. Income-tax Officer (AIR 1959 Gal 420) where the Court stated:"The mere fact that the serving officer does not find the defendant or the party to be served with the notice at the address is not tantamount to saying that the defendant cannot be found. Before it can be said that the defendant cannot be found, it must be shown not only that the serving officer went to the place at a reasonable time when he would be expected to be present but also that if he was not found, proper and reasonable attempts were made to find him either at that address or elsewhere. If after such reasonable attempts the position still is that the defendant is not found, then and then only it can be said that the defendant cannot be found.Where the requisite that the defendant cannot be found has not been established the service by affixation is not a good service."(Head-notes) 
 

 These decisions show that a person is not deemed to be not found by the mere fact that the serving officer visited the house at some odd hour and found him absent. A temporary absence does not mean that the person cannot be found. The serving officer has to show that he visited the house at a reasonable time when the person concerned was expected to be there. If he was absent the officer should have made enquiries about his whereabouts. It is only when the officer is reasonably satisfied that the person concerned cannot be found can it be said that the condition precedent to a substituted service has been satisfied.12. The facts of this case show that the officer was reasonably satisfied that the petitioner could not be found. It is not stated by the petitioner that the substituted service was effected at a time when he was temporarily absent. In fact the case of the petitioner is that no substituted service was effected. Notwithstanding the dear averment contained in the counter-affidavit to the effect that the petitioner's wife was present at the time of the substituted service, the petitioner contends that no substituted service was effected. In other words, according to the petitioner, the statement in the counter-affidavit is nothing but a lie. If that is so, the petitioner ought to have been bold

enough to swear to it by filing a counter-affidavit. The petitioners wife also could have, as I stated earlier, denied the state ment in the counter-affidavit. In the absence of such denial, there is no bona fides in the contention that the substituted service was not effected. If substituted service was effected and the petitioner's wife was aware of it, it is hard to believe that proper notice was not served upon the petitioner in the manner provided by law. I therefore hold that notice underSection 12 (2)was duly served by affixture on 12-10-1976. If that was the date of the service of the notice, the petitioner's application for reference underSection 20which was received by the Land Acquisition Officer on 15-2-1977 was clearly out of time.The O. P. is accordingly dismissed. No costs.