HARIKUMAR K.C v. THE SPECIAL TAHSILDAR

W.P.(C).No. 1379/066overleaf of the notice, it is not clear whether it waspracticable or not to serve the notice on the person namedin the notice. It is also not seen therein that the petitionercould not be found for effecting service of notice. It is alsonot evident from the materials placed before the courtthat the father of the petitioner on whom notice wasserved was residing with the petitioner at the relevanttime. The petitioner has pleaded in the petition that hewas residing away from the family house and the addresswhich is shown in the notice issued under Section 12(2) ofthe Act is the address of his family house where he wasnot residing, since he was working in Coimbatore at therelevant time.9. Learned counsel for the petitioner also cited adecision reported in Srimathi CheriathoppilakathKunhibi v. The Land Acquisition Officer, Kozhikode(AIR 1962 Ker. 266) to canvass the position that service ofnotice under Section 12(2) of the Act on the father is not a W.P.(C).No. 1379/067valid notice. The relevant portion from the said decisioncan be extracted as hereunder:“Service of notice under S.12(2) ofthe Land Acquisition Act, 1894, onthe husband of the petitioner, whenshe is present, is not warranted bysub-section (3) of section 45 of thatAct, unless it is found that it was notpracticable to serve the notice on thepetitioner. The husband of thepetitioner cannot be deemed to be anagent of the petitioner and hencethe provision that notice to the agentunder the definition in the Transfer ofProperty Act must be deemed to benotice to the principal, has nothingto do when the question for decisioninvolved the manner or the legality ofthe service of notice, either under theLand Acquisition Act or under theCivil Procedure Code. Under theprovisions of the latter, the husbandcannot be deemed to be a recognisedagent within the meaning of Order III,R.2, nor can he be regarded as anagent appointed to accept service ofnotice under Order III, R.6, sub-rule(1), because such appointment has tobe made by an instrument in writingsigned by the principal as providedby sub-rule (2) of the above rule. Theservice of notice under section 12(2)on the husband of the petitioner, W.P.(C).No. 1379/068when she is present cannot,therefore, be considered to be valid.”10. Any way, the burden to establish service of noticeon the petitioner under Section 12(2) of the Act is on therespondent. If there is no personal service on thepetitioner, the burden is heavier on the respondent toestablish that the conditions stated in Section 45 aresatisfied to effect service on adult member of the family.But the conditions are not satisfied in this case and henceit cannot be said that there was service of notice on thepetitioner under Section 12(2) of the Act. The rejection ofthe application on the ground that notice under Section12(2) of the Act notice was received by the petitioner isfactually incorrect. The notice cannot be even deemed tobe served on the petitioner as required under Section 45of the Act. Therefore, Exhibit P6 order cannot besustained. 11. As per the application, the petitioner has received W.P.(C).No. 1379/069award on 7.8.2005 and the application was filed on7.9.2005, which is within two weeks. The respondent hasno case that the application is time barred, with referenceto the date of receipt of award or notice of the award bythe petitioner. Therefore, the application ought not havebeen rejected, on the ground that it is time barred. Thepetition is to be entertained and disposed of in accordancewith law.12. The order under challenge is set aside and thematter is remanded to the respondent for freshconsideration and disposal in accordance with law. The Writ Petition is allowed. K.HEMA, JUDGE vgs.