Rukmani v. Kandamangalam Panchayat Union

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :: 22-12-2009CORAMTHE HONOURABLE MR.JUSTICE V.DHANAPALANWRIT PETITION No.444 OF 2007M.P.No.1 OF 2007Rukmani...Petitioner-Vs-Kandamangalam Panchayat UnionRepresented by itsCommissionerKandamangalam and PostVillupuram District. ...RespondentPetition under Article 226 of the Constitution of India,praying for issuance of a writ of certiorari to call for therecords onthe file of the of the respondent in proceedingsNa.Ka.A3/4397/2006 dated 18.12.2006, quash the same as illegal,incompetent.For petitioner : Mrs.A.Shanmugapriya for Mr.V.RaghavachariFor respondent : Mr.V.R.ThangaveluO R D E RThe proceedings of the respondent in Na.Ka.A3/4397/2006,dated 18.12.2006 cancelling the work order as well as theregistration are under challenge in this Writ Petition.2. The case of the petitioner is that she is aregistered panchayat union contractor. She has done substantialwork for the local body and semi government organisation. Underthe Parliament member constituency development scheme, thepetitioner was allotted the construction work of school buildingby the respondent. The estimate for the construction work isaround Rs.3.75 lakhs. The respondent panchayat Union dragged theexecution of the agreement as a result of which the petitionerwas not able to carry on the work. In the meanwhile, therespondent panchayat on 1.12.2006 issued a notice calling uponthe petitioner to finish the project. The petitioner submitted https://hcservices.ecourts.gov.in/hcservices/ her reply to the notice explaining the reasons for the delay intaking up the project. While so, the respondent straightawaypassed the impugned order dated 18.12.2006 cancelling the workallotted to the petitioner as well as removing the name of thepetitioner from the Register of contractors. Aggrieved by suchremoval of her name from the Register of contractors, thepetitioner has approached this court by filing the present writpetition.3. Counter affidavit had been filed on behalf ofrespondents wherein the following facts have been set out:-The petitioner was awarded a contract of constructionof a school building at L.R.Palayam on 29.8.2006 at an estimatedcost of Rs.3.75 on the basis of the tender offered by her at0.50% less estimate rate. The said work was to be completedwithin a period of 60 days from the date of entrustment. As thework was not completed till 1.12.2006, a notice dated 1.12.2006was issued to the petitioner indicating that action would betaken against her for non-completion of the work. In the replyto the said notice, the petitioner besides alleging variousfactors which were totally irrelevant , had requested to revisethe estimate cost on the ground that the price of the materialhad gone up. The escalation of cost was due to the petitionerfailing to complete the building work within the stipulated time.The petitioner had not submitted her reply to the notice dated1.12.2006. Consequently, by proceedings dated 18.12.2006 thepetitioner was removed from the Register of Contractor of thePanchayat Union. Thus, the counter affidavit sought for thedismissal of the writ petition. 4. I have heard Mrs. A.Shanmugapriya learned counselappearing for the petitioner and Mr.V.R.Thangaelu learned counselappearing for the respondent.5. The learned counsel appearing for the petitionerwould submit that the impugned order has been passed withoutissuing any notice to the petitioner as per Rule 13 (7) of theTamil Nadu Panchayats (Preparation of Plans and Estimates forWorks and mode and Conditions of contractors) Rules 1988(hereinafter called as the Rules). Even assuming that a noticehas been issued to the petitioner, the same cannot stand to legalscrutiny as the notice was sent through certificate of posting.Hence, according to the learned counsel appearing for thepetitioner, the impugned order is liable to be set aside. Insupport of his contention the learned counsel for the petitionerrelied on the decision in R.L.NARANG VS. COMMISSIONER OF INCOMETAX (1982 (136) ITR 108 DELHI). Para Nos.10 and 11 of the saidjudgment are usefully extracted here under:- https://hcservices.ecourts.gov.in/hcservices/

10. Coming to the next question of serviceby post, the provisions of S.27 of the GeneralClauses Act, 1897 are relevant . Section 27provides that where any Central Act orRegulation authorises or requires any documentto be served by post, then, unless a differentintention is drawn, the service shall bedeemed to be effected properly if a correctlyaddressed and stamped letter containing thedocument is dispatched by registered post;and unless the contrary is proved, such aletter would be deemed to have been deliveredin the ordinary course of post. The I.T. Actis a Central Act and S.282 provides for serviceby post. As such the provisions of S.27 of theGeneral Clauses Act, 1897, are applicable. Fromperusing S.27 of the General clauses Act, it isapparent that in order to presume servicehaving been effected, the document or lettershould be sent by registered post.11. In the present cases, as noticedabove, the reminders were issued undercertificate of posting and not by registeredpost. It would, therefore, appear to us thatthere is nothing on the record to indicatethat proper and valid service was, in fact,effected nor can any presumption be drawn. Wealso feel that not much importance can beattached to the non-filing of an affidavit bythe assessees as the AAC accepted their versionwithout an affidavit. Once their statement withregard to non-service had been accepted by theAAC and no affidavit had been asked forthereafter at the stage of the Tribunal, wethink that the lack of an affidavit is notmaterial.6. Per contra, the learned counsel appearing for therespondent would submit that the petitioner has not completedthe work within the stipulated time and hence a notice was issuedon 1.11.2006 for cancelling the registration for which no replywas sent by the petitioner. Therefore, according to the learnedcounsel for the respondent, the work order was cancelled and thename of the petitioner was removed from the register. Learnedcounsel appearing for the respondent would further submit that thenotice was served on the petitioner through certificate ofposting which is a valid service. In support of his contention, https://hcservices.ecourts.gov.in/hcservices/ the learned counsel for the respondent relied on the decision inM.RAMESH VS. VANKADARA SUNIL KUMAR AND ANOTHER (DJ 2005 APHC981). Paragraph 6 of the said judgment is usefully extracted hereunder:- 6. The averments in the complaint show thaton the same day on which first respondentsent the statutory notice by registeredpost, he sent a notice under certificate ofposting also to the petitioner and producedthat certificate as document No. alongwith the complaint. Notice sent undercertificate of posting also would be validstatutory notice, since Section 138 of theAct does not mandate that the notice underthat section has to be sent only byregistered post. Therefore, in view of thepresumption that a letter addressed to thecorrect address of the addressee would bedeemed to have been received by theaddressee, the contention that there is novalid statutory notice, prima facie cannotbe accepted , since the question whether theaddress mentioned in the certificate ofposting is the correct address of thepetitioner or not can be decided only aftertrial. 7. On the basis of the above pleadings, I have heard thelearned counsel for the parties and also given my thoughtfulconsideration to the rival submissions and analysed the decisionsrelied on by the learned counsel.8. In this case. it is seen that the petitioner is aregistered contractor and she has been allotted theconstruction work of a school building by the respondent under theParliament Member Constituency Development Scheme.There wasexecution of an agreement between the petitioner and therespondent consequent to which the petitioner carried out thework. While so, there was a notice dated 1.12.2006 issued bythe respondent calling upon the petitioner to finish the projectfor which the petitioner has submitted her explanation statingthe reasons for the delay in taking up the project. However, therespondent has passed the impugned order removing the name ofthe petitioner from the Register of Contractors and aggrieved bythe same, the petitioner has approached this court. 9. This has been refuted by the respondent by statingthat the petitioner had requested to revise the estimate coston the ground that the price of the materials had gone up. The https://hcservices.ecourts.gov.in/hcservices/ escalation of the cost was due to the petitioner failing tocomplete the building work within the stipulated time andtherefore a notice was issued to her on 1.12.2006 to explain thesame. But the petitioner had not submitted her reply to the saidnotice. Consequently, the impugned proceeding has been passedon 18.12.2006 removing the petitioner from the Register ofContractors of the respondent Panchayat Union.10. On the scrutiny of the above, the question thatarises for consideration is, whether before passing the impugnedorder of removing the name of the petitioner from the Registerof contractors of a Panchayat Union, the respondent has followedthe procedure contemplated under the Rules ? 11. In this case, it would be relevant to analyse theprovision for the removal of a contractor from the Register. Theprocedure contemplated is provided under sub-clause (7) ofRule 13 of which reads as follows:-Rule 13(7): The names of theContractors may be removed from theRegister of Contractors by the ExecutiveAuthority or Commissioner or Secretary asthe case may be, for any proved misconductor for any financial incapacity or for anyother reasons:- Provided that before ordering theremoval of the name of any Contractor fromthe Register, a notice in writing shall begiven to him to show cause against suchremoval and his explanation be obtainedin writing for consideration and place thedetails for consideration of the VillagePanchayat or Panchayat Union Council orDistrict Panchayat as the case may be.12. A reading of the above provision would make itclear that a contractor who has registered his name with thePanchayat Union may be removed from the Register of Contractors,however, before doing so, a notice in writing shall be givento him to show cause against such removal and his explanation beobtained in writing for consideration and place the details forconsideration of the Panchayat Union.13. To examine whether the said provision has beencomplied with by the respondent or not; whether a notice wassent in writing to the petitioner to show cause or not, thiscourt directed the respondent to produce the records andaccordingly the records were produced before this Court.14. In this regard, the procedure to be followedin making an effective service and the rules contemplated https://hcservices.ecourts.gov.in/hcservices/ therein are silent in the relevant provisions of the Tamil NaduPanchayats Act, 1994 and the rules made thereunder. Therefore,it is necessary to analyse the legal position as to what could bethe effective service of notice in order to give an opportunityto the petitioner to show cause against the action that has beentaken to remove her name from the Register of Contractors and tomake her to explain the same in writing for consideration.15. A perusal of the said records would show that anotice by way of certificate of posting has been sent to thepetitioner on 1.11.2006. If so, then the next question thatarises for consideration is whether this could be a service ofnotice as contemplated under the said Rules.16. While that being the position, to achieve theobject of effective service of notice, it would be relevant torefer to what is the provision under the General Clauses Act 1897.The relevant provision viz., Section 27 reads as follows:-27. Meaning of service by post:- Where anyCentral Act or Regulation made after thecommencement of this Act authorizes or requiresany document to be served by post, whetherthe expression "serve" or either of theexpressions "give" or "send" or any otherexpression is used, then, unless a differentintention appears, the service shall be deemedto be effected by properly addressing, pre-paying and posting by registered post, a lettercontaining the document, and, unless thecontrary is proved, to have been effected atthe time at which the letter would be deliveredin the ordinary course of post. In the absence of any provision in the relevant Act or Rules,then General Clauses Act will apply. The relevant Act forconsideration is the Tamil Nadu Panchayats Act and the rulesframed thereunder. 17. According to the General Clauses Act, thedefinition of the Central Act is as follows:-(7) "Central Act" shall mean an Act ofParliament, and shall include(a) an Act of the Dominion Legislature orof the Indian Legislature passed before thecommencement of the Constitution, and(b) an Act made before such commencementby the Governor -General in Council or theGovernor-General acting in a legislativecapacity; https://hcservices.ecourts.gov.in/hcservices/ (8) (b) (i) in relation to functionsentrusted under clause (1) of Article 258 ofthe Constitution, to the Government of aState, the State Government acting within thescope of the authority given to it under thatclause;18. Therefore, while giving consideration to the aboveprovision of law and the above rule under the Tamil NaduPanchayats Act, 1994, it has to be pointed out that the said rulecontemplates only service of notice but there is no provision tothe effect that what could be the mode of service. 19. So, in the absence of any provision to mean what isthe mode of service, we have to see the applicability of theGeneral Clauses Act,1897, and the Tamil Nadu General Clauses Act1891. From a perusal of Section 27 of the General Clauses Act, itis apparent that in order to presume service having been effectedthe document or letter should be sent by registered post. 20. It is evident that the Tamil Nadu General ClausesAct is the ancient one in the series of General Clauses Act.Thereafter, the General Clauses Act,1897, Central Act, came intoeffect. Two of the State enactments viz., The Bengal GeneralClauses Act,1899 and The Bombay General Clauses Act, 1904, havebeen placed before this Court, wherein a similar provision underSection 28 as in the case of Central Act under Section 27 has beenprovided and, therefore, the said State Acts have applied theanalogy drawn in the application of General Clauses Act, in caseof proper service by post.21. In the above circumstances, as the Central Act andthe parallel enactments of the State are having a provision forproper mode of service by registered post, an inference can bedrawn in this case also that Tamil Nadu General Clauses Act beingthe oldest one and the said Act is not having a similar provision,it could be construed that the intention of the Central enactmentand the subsequent parallel enactments of other States would givea meaningful construction that any document to be served by post,whether the expression "serve" or either of the expressions "give"or "send" or any other expression is used, then, unless adifferent intention appears, the service shall be deemed to beeffected by properly addressing, pre-paying and posting byregistered post, a letter containing the document, and, unless thecontrary is proved, to have been effected at the time at which theletter would be delivered in the ordinary course of post. https://hcservices.ecourts.gov.in/hcservices/

22. Therefore, in the case on hand, the service ofnotice, before removing the name of the petitioner from theregister of contract, could be effected only by registered postand not by certificate of posting, as shown in the records of therespondent. 23. It is seen from the records that the notice hasbeen sent by certificate of posting and not by a registered post.It would, therefore, appear to this court that there is nothingon record to indicate that proper and valid service was in facteffected nor could any presumption be drawn.24. A vehement contention has been raised by thecounsel appearing for the respondent by citing the decision of theHigh Court of Andhra Pradesh as referred to above stating that anotice sent under certificate of posting also would be a validstatutory notice. However, while analysing the above decision,it could be seen that in addition to the registered post, anotice under certificate of posting was also sent to thepetitioner and hence the complainant produced that certificateas document along with the complaint filed under Section 138 ofthe Negotiable Instruments act. Thus, in the absence of anyregistered post, there cannot be any presumption that thenotice was served.25. A perusal of the records would reveal that there isno documentary evidence to show that the petitioner has receivedthe notice dated 1.12.2006 and therefore she would not have sentany reply to the notice. As there were conflicting materials andcontradictory versions that there was a notice dated 1.12.2006and a show cause notice dated 1.11.2006 which is prior to theissuance of notice of calling for explanation, it could not beconstrued that there was a valid notice sent in writing to thepetitioner before removing her name from the Register ofContractors. In the decision of the Delhi High Court inR.L.NARANG VS. COMMISSIONER OF INCOME TAX, NEW DELHI (136 ITR 108(Delhi) the ratio laid down in effect is the proposition to beapplicable to this case.26. The learned counsel for the respondent raised apoint that this Court may presume the existence of any fact whichit thinks likely to have happened regard being had to the commoncourse of natural events, human conduct and public and privatebusiness, in their relation to the facts of the particular case. 27. In the present case, in the absence of any specificprovision as to what would be the mode of service, before passingthe order impugned, a notice in writing as per Rule 13 (7) of theTamil Nadu Panchayats (Preparation of Plans and Estimates for https://hcservices.ecourts.gov.in/hcservices/ Works and Mode and Conditions of Contractors) Rules 1988, oughtto have been sent to the petitioner by registered post. Were it aregistered post, then, the presumption would be that the noticehad been sent to the petitioner and on receipt of theacknowledgement, there was likelihood of the happenings in thecommon course and the natural events. Since the notice, as statedabove, had not been served in proper mode, but the same was sentunder Certificate of Posting, it could not be presumed that thenotice was served on the person concerned viz., the petitioner.Therefore, the point raised by the learned counsel appearing forthe respondent, in this regard, cannot have legs to stand.28. Upon perusing the material records and analysing therelevant provisions of the General Clauses Act,1897, along withother State enactments, and after giving due consideration to thedecisions relied on by either side, I am of the consideredopinion that there was no notice in writing served to thepetitioner and thus the order of removal of the petitioner fromthe Register of Contractors suffered from legal infirmity andtherefore it cannot be sustained. Accordingly the impugnedorder of the respondent dated 18.12.2006 is liable to be set asideand the same is set aside. However, in the instant case, it isopen to the respondent to issue fresh notice in writing to showcause and proceed further and this order shall not prevent themfrom proceeding in accordance with the rules and the procedurecontemplated. The writ petition is allowed with the abovedirection. No costs. Consequently the connected M.P. is closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.Krr/dixitToThe CommissionerKandamangalam Panchayat UnionKandamangalam PostVillupuram District.1 cc to Mr.V.R. Thangavelu, Advocate, SR. 712241 cc to mr.V. Raghavachari, Advocate, Sr.70860 W.P.No.444 OF 2007TEJ (CO)kk 18/1