Ran Vijai Singh, J.�Heard Sri Rajiv Joshi, learned Counsel for the petitioner.
By means of this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the order dated 22.11.2014 passed by the Civil Judge (Senior Division) Chandausi by which the petitioner''s recall application to the substituted service after publication of notice in Dainik Amar Ujala published from Jalandhar, which was treated to be sufficient, has been rejected.
The facts giving rise to this case are that the respondents No. 1, 2/1 to 2/4 and 3 have filed an application under section 21(1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as ''the Act'') seeking release of the shop in dispute. During the pendency of the application, one of the tenant namely Jahangir Singh Bedi alias Jageer Singh Bedi has died. For substituting his heirs, an application was filed by the respondents i.e., the respondents No. 4 to 8. The notices were issued and were served upon the respondents No. 4 to 7 but the same was not served upon the respondent No. 8. The learned prescribed authority has passed an order for affecting the service through publication in daily newspapers published at Amritsar. The notice was published in Dainik Amar Ujala published at Jalandhar not at Amritsar. The learned prescribed authority has treated the service upon the respondent No. 8 sufficient in view of Order V, Rule 20(1) A of Code of Civil Procedure. Seeking recall of this order, an application was filed by the petitioner stating therein that there is no provision under the Act to affect the service by way of publication, therefore such service could not be treated to be sufficient service upon the respondent No. 8. The application has been rejected taking note of the fact that the newspapers, which was published at Jalandhar, has wide circulation at Amritsar too and the same is distributed at the address of respondent No. 8.
2. Sri Joshi, who appears for the petitioner, has invited attention of the Court towards Rule 28 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972, which reads as under:
"28. Service of Notice.-[Section 34(8)].-(1) A notice issued by the District Magistrate, the prescribed authority or the appellate of revising authority under the provisions of the Act shall be served on the person concerned-
(a) by giving or tendering it to such person, or his Counsel; or
(b) by giving or tendering it to any adult member of his family; or
(c) If no such person is found, by leaving it at his last known place of abode or business or in the case of an appeal or revision at his address as given under Rule 6; or
(d) If none of the means aforesaid is available, by affixing it on some conspicuous part of his last known place of abode or business or in the case of an appeal or revision at his address as given under Rule 6.
(2) If a party files a duly stamped and addressed envelope for service of any notice, then it shall be served by registered post.
(3) In the case of a appeal or revision unless the appellant has taken action under sub-rule (2), the Appellate or Revising Authority shall send the notices to the District Magistrate or the Prescribed Authority, as the case may be, for having service effected."
3. According to the aforesaid rules and the submissions of learned Counsel for the petitioner too, there is no provision for affecting the service through publication. In support of his submissions, he has placed reliance upon title judgment of this Court in Laxmi Narain Tandon v. Additional District Judge, Kanpur City and others 1992 (2) ARC 563, wherein following observations have been made by this Court:
"4. The learned Counsel for the petitioner has, however, submitted that the rules framed under the Act has been made for the service of notice and Rule 28 does not contemplate the service of notice by publication. Learned Counsel has placed reliance in case of Sweta Tewari v. Second Additional Civil Judge and another 1989 (2) ARC 128. In this case it has been held that since under Rule 28 service of summons by publication is not prescribed, service deemed sufficient by Court was illegal and thus ex parte order cannot be sustained. In my opinion, this case is squarely applicable in the present case. As there was no legal service of notice. I need not enter into other questions involved in this writ petition."
4. Taking shelter of the aforesaid judgment, Sri Joshi vehemently contended that the learned prescribed authority has erred in treating the service sufficient upon respondent No. 8 contrary to the law laid down by this Court in the aforesaid case as well as in the case of Smt. Sweta Tewari v. Second Additional Civil Judge, Allahabad and another, (supra).
5. In the submissions of Sri Joshi, once the Act which covers the field provides the method of service of notice, the general principles for affecting the service of notice as given in Civil Procedure Code will not be applicable. In his submissions, the impugned order deserves to be quashed.
6. Sri Joshi may be right in his submissions that such service could not be treated to be sufficient service upon the respondent No. 8, therefore the learned Judge has erred in treating the service of notice sufficient upon the respondent No. 8 as it was contrary to Rule 28 of the Rules and law laid down in Smt. Sweta Tewari and Luxmi Narain Tandon (supra). But looking into the facts of this case and the status of respondent No. 8 upon whom the service was affected, who happens to be daughter of late Jahangir Singh Bedi, who was joint tenant with the petitioner and the service of notice upon the other heirs and legal representatives of late Jahangir Singh Bedi has already been affected, I do not find it to be a fit case to be interfered with under Article 226 of the Constitution of India as on merit, service or no service will make no difference as whatever defence can be taken by the respondent No. 8 has already been taken by late Jahangir Singh Bedi or his other surviving heirs and the petitioner as well. In view of foregoing discussions, the relief claimed for cannot be granted. The writ petition is dismissed.
