ORDER
1. By this petition, the petitioner has prayed for issuance of writ, order and direction in the nature of writ of certiorari quashing the impugned order dated 19-11-1991 passed by the respondent. That order has been annexed as Annexure ‘A’ to the writ petition and the petitioner has further claimed the writ in the nature of mandamus directing the respondent to collect the initial deposit of 25%) of the site value from the petitioner and to handover the possession of the site bearing No. 553 under Scheme No. 13 as well as to issue any other writ or order as this Court deems fit.
2. The facts of thecase in brief arc that the petitioner had applied for allotment of site measuring 60 x 40 ft. under Scheme No. 13 and paid registration fee of Rs. 500/- on 30-4-1988 vide receipt No. 16047, According to the petitioner’s case he had paid initial deposit of Rs. 6,250/- vide receipt No. 2690 on 8-8-1990 and subsequently petitioner again on 16-10-1992 registered with the respondent for allotment as per notification dated 16-10-1991 and vide receipt No. 10414, the difference of amount of Rs. 625/- was also paid. According to petitioner’s case when petitioner was out of station and was not in Belgaum (instead he was in connection with contract work at Hubli) the petitioner has come to know by the order Annexure ‘A’ that site bearing No. 553 under Scheme No. J3 was allotted to the petitioner on 10-11-1990. The petitioner’s case is that he had received an intimation and bill dated 19-11-1991 from respondent whereby petitioner was informed that petitioner having failed to make deposit of 25% of the site value i.e., an amount of Rs. 7,500/-within a period of 15 days from the date of receipt of intimation of allotment, the respondents had cancelled the allotment of site measuring 40 x 60 which had been made in favour of the petitioner. The petitioner had annexed a copy of the order as
Annexure ‘A’. The petitioner’s case is that in fact he had not received any intimation of allotment except the communication dated 19-11-1991, as he had been out of station at Hubli in connection with his contract work. The petitioner submitted that he made representation to the Commissioner on 6-12-1991 wherein it has been stated that the letter dated 19-11-1991 had been received by him on 17-11-1991 from the office of BUDA stating that allotment of site No. 553 under Seheme No. 13 had been cancelled vide resolution dated 28-12-1991 and he made the prayer that in the circumstances of the case, his case may be considered sympathetically and that the plot No. 553 under Scheme No. 13 be allotted to him. The petitioner’s case is that he made another representation to the Hon’ble Minister on 29-1-1992 to the same effect and lastly he made a fresh representation to the Commissioner on 12-8-1992. The petitioner’s case is that his grievances were not made and he did not receive any letter of allotment or communication in that regard from the opposite parties. The petitioner having found no other relief available to him, filed this petition under Articles 226 and 227 of the Constitution of India.
3. That on behalf of the opposite parties, appearance have been put up by Sri Basava Prabhu Patil, an Advocate of this Court. The learned counsel for the petitioner had submitted that the petitioner did not receive any intimation or information regarding allotment of the site No. 553 in his favour and as such he could not make the requisite deposit. The submission of the petitioner’s counsel is that he had been out of station and so he could not get any information or any notice and any intimation if sent was not served on him. The learned counsel for the petitioner submitted that in this view of the matter and in the circumstances mentioned above, the requisite amount of 25% could not be deposited within the time. Sri Patil, counsel for the respondents submitted and placed before me a photostat copy of the envelope in which notice was kept and sent to petitioner and later on returned to respondent as unserved or unclaimed in support of his contention to the effect that intimation was sent to the petitioner by registered post on the petitioner’s
address given by the petitioner i.e., which he had supplied to the office of the Commissioner and which is same as mentioned in the writ petition. Sri Patil submitted before me that as for 15 days from the date of giving of the intimation or notice of allotment to the petitioner, the petitioner did not make any deposit as required under Rule 22(1) of K.ar-nataka Improvement Board Rules, 1976, the opposite parties validly cancelled the allotment order. Sri Patil very strenuously urged that in view of Rule 22(1) of Karnataka Improvement Board Rules, 1976, once the notice had been addressed and posted after mentioning the correct address of the petitioner, the notice of allotment should be deemed to have been given to and served on the petitioner in view of provisions of Section 27 of the Karnataka General Clauses Act as well and it is an admitted fact that the 121/2% of the balance of 25% of the initial amount not having deposited within a period of 15 days the authorities rightly cancelled the allotment. The learned Counsel for the petitioner further urged that the order impugned i.e., the order of cancellation of the allotment, had not been passed after having served a prior notice to the petitioner to show cause and so cancellation order passed without giving a prior show cause notice was wrong bad in the eye of law as mentioned in para 12 of the writ petition. Sri Patil in reply to the above” contention of the petitioner submitted that there is no doubt that Annexure ‘A’ does not indicate that any prior show cause notice was addressed to the petitioner before cancellation of the allotment order but this fact has not been asserted by the petitioner specifically in the narration of facts except that in the grounds and therefore it involves the question of fact that it need not be considered. But he says that it is no doubt true that if an order which has got civil consequences has been passed in violation of the principles of natural justice without giving show cause notice to person concerned the said order can be said to be void and Sri Patil has been very fair I may mention in making submission in this regard as regards the proposition of law. Shri Patil submitted if it is thought necessary to decide the petition on this point, he may be allowed to ascertain if any show cause notice was
given to petitioner before the passing order of cancellation as allegations of para 12 of writ petition are vague not very specific.
4. I have given my consideration to the contentions of learned Counsel for the parties. That regards the matter of allotment and its cancellation it would be just and proper to refer to relevant provision of law. Section 37 of the Karnataka Improvement Boards Act empowers the Board to lease, sell or transfer property movable or immovable which belongs to it, Section 37 of the Karnataka Improvement Boards Act, 1976 hereinafter referred as ‘the Act’ reads as under:–
“S. 37. Power of Board to lease, sell or transfer property;
“Subject to such restrictions, conditions and limitations as may be prescribed, the Board shall have power to lease, sell or otherwise transfer any movable or immovable property which belongs to it and to appropriate or apply any land vested in or acquired by it for the formation of open spaces or for building purposes, or in any manner for the purpose of any development scheme.”
Section 69 of the Act confers rule making authority or power on the Government and vide sub-section (2) of Section 69 it is provided as per clause V that rules they provided–
“Procedure, conditions – and restrictions subject to which and the form in which the Board may let on hire, lease, sell or otherwise convey any movable or immovable property.”
Rule 22 of the Karnataka Improvement Boards Rules 1976 hereinafter referred as ‘Rules of 1976’ provides for the conditions of allotment and sale of site. Sub-rules (1) and (2) of Rule 22 of Rules of 1976 reads:
“22(1) The allottees shall within 15 days from the date of receipt of notice of allotment, pay to the Board 121/2% (Twelve and half per cent) of the price of site and if no such payment is made the allottee shall be deemed to have declined the allotment.
(2) The balance of the value of the site (less a sum of Rupees thirty where the site does not
exceed two hundred square metres, rupees sixty where the area of site exceeds two hundred square metres and does not exceed five hundred square metres) shall be paid within 90 days from the date of receipt of notice of allotment or such extended period not exceeding two years as the Chairman may specify. Interest at eighteen per cent shall be paid on the said amount for the extended period. If the said amount is not paid within the period of ninety days or the extended period the earnest money paid by the allottee shall be liable to forfeiture and allotment may be cancelled.”
The two provisos to sub-rule (2) of Rule 22 provide for payment of balance in specified case as provided therein in instalments subject to some interest or in case of SC/ ST/ BC class persons extended period for payment is provided free from interest.
5. That a bare reading of sub-rule (I) per se shows that it does not by itself provide for cancellation of allotment. It is provided thereunder that in case where a person has been allotted a piece of land he shall, within a period of 15 days from the date of receipt of notice, pay to the Board 121/2% of the price of the site. The first part of the sub-rule (I) imposes a liability on the allottee to make deposit of 121/2% of the sale price within a period of 15 days from the date of receipt of allotment. The latter part of the sub-rule (1) provides the consequences of failure to comply with the earlier part of the sub-rule (1) and therein, irrespective of the fact the allottee has not declined to accept the allotment made in his favour. The sub-rule (1) provides that in case of such a failure it will be deemed that the allottee has declined to accept the allotment of the plot or site made in his favour. That where there is actual denial to accept the offer of site in form of allotment or deemed denial to accept, the same consequences may be said to be that a contract of lease or sale did not come into existence. That by issuing the notice of allotment of site, Board offers the site in question to allottee and if accept the same then he is required to make the deposit of 121/2% within 15 days of receipt of notice of allotment. From the
failure of allottee to make deposit of 121/2% of the price of site within fifteen days of the date of receipt of notice of allotment, even if allottee does decline to accept allotment of site made in his favour he is deemed to have declined the offer i.e. allotment.
6. The question is that under the circumstances that presumption of denial or acceptance of allotment can be raised or say when deemed clause is applied. But before I go into this question I may mention it that power to cancel has been provided only in sub-rules (2), (4) and (6) of Rule 22 with power to forfeit the earnest money. Under sub-rule (2) it is provided that if the balance of the site value is not paid within 90 days or extended period, the earnest money paid by the allottee shall be liable to forfeiture and allotment may be cancelled. It means that cancellation of allotment is provided for in cases where allottee has accepted offer i.e. allotment and has deposited the earnest money but the balance of price has not been paid within a period of 90 days. That cases where the earnest money is not paid within the time prescribed under sub-rule (1) of Rule 22, subject to the conditions made therein, it may be deemed that offer by way of allotment of the plot has not been accepted, so clause 1 appears to deal with failure to pay or deposit earnest money paid within 15 days. The condition precedent is failure to deposit the money within 15 days and the period of 15 days is to be counted from the date of receipt of the notice as mentioned in the Section as;
“The allottee shall within a period of 15 days from the date of receipt of notice of allotment, pay to the Board 121/2% of the price of the site.”
It is well settled principle of Law of interpretation that if the language of a section or rule is clear, then it has got to be given its effect and it has got to be given its full play and operation. The period of 15 days is to be counted from the receipt of notice. Here the expression “date of receipt of notice of allotment” are material. “Receipt” is a word which may be used as a noun to indicate a document which is written in acknowledgment of act of receiving. As a verbal noun it
may be indicative of the “act of receiving something,” In the Black’s Law Dictionary, 5th Edition the expression ‘receipt’ has been defined as under:
“Receipt is a writing which acknowledges taking or receiving either money or goods which have been paid or have been delivered.”
It has further been given its meaning as:
“Act of receiving also the fact of receiving or having received that which is received.”
In New English Webster Dictionary the
meaning of expression ‘receipt’ is given as:
“The act of receiving.”
In a Standard Dictionary of English Language by Fung and Wagnel, International Edition, Volume 2, the meaning of expression ‘receipt’ has been given as the act or a set of receiving anything or to mean to be in receipt of good news.’ Meaning to expression ‘receipt’ has also been given as ‘to take into one’s hand or possession to acquir; or to accept.’ It also says to gain knowledge or information. The expression ‘date of receipt’ of notice of allotment as such in ordinary sense will mean the date on which the allottee has received the notice of allotment or to say he has got from, the Board information of the allotment made in his favour. The expression receipt is just opposite to sending or giving. Here when the provision of the rule or law requires a certain, thing to be done by allottee for applying the deeming clause that the person will be deemed to have declined or refused to accept the allotment it is necessary that there should actual or legally deemed or implied service of the allotment or notice of allotment. Unless the person or the allottee has received the notice and information of the allotment made in his favour, he cannot be deemed to have declined to accept the offer or the allotment simply on the ground that the requisite amount has not been paid within a period of 15 days from the date of allotment order or from the date of sending of allotment order. Sri Patil, learned counsel for the Board i.e. opposite party has, strenuously and to the best of his ability contended that in view of Section 27 of the Karnataka General Clauses Act the petitioner has well been served with
notice of allotment when the notice was sent to allottee on his address as furnished by the allottee himself. Shri Patil has also made reference to certain decisions which may be considered at proper place in this judgment. That Section 27 of the Karnataka General Clauses Act which reads as under:
“Meaning of Service by Post:– Where Karnataka Act made after the commencement of this Act authorises or requires 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 different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.”
A bare reading of Section 27 of the Karnataka General Clauses Act prima facie provides that unless contrary is proved, the notice or document sent to a person by post after properly addressing the same and prepaying the postal charges shall be deemed to have been delivered at the time at which it usually have been delivered. Section 27 referred to above, in my opinion, lays down the doctrine of rebuttable presumption that when service shall be deemed to have been effected if other conditions of section are shown to exist and then unless contrary is shown or proved, the presumption of deemed service shall be raised including the time of delivery. This is clear from the use of expression unless contrary is proved. Contrary to the presumption can be proved by producing the oral or documentary or circumstantial evidence. The law to the same effect appears to have been laid down by the Courts in India including the Supreme Court
I
as well as in the case of Kirloskar Bros. Ltd. v. Engineering Machinery Mart reported, in relied” on” by the learned counsel for the opposite party. Dealing with the question of Section 27 of the Karnataka General Clauses Act which relates to the meaning of service by post, their Lordships of the Supreme Court in the case of
Har_Charan_Singh v. Shiv Rani reported in AIR 1981 SC 1284 at page 1288 have been placed to lay down the law as under:
“Undoubtedly, the presumptions both under Section 27 of the General Clauses Act as well as under Section 114 of the Evidence ^ Act are rebuttable but in the absence of proof to the contrary the presumption of proper service or effective service on the addressee would arise.”
So in view that what has been laid down by their Lordships of the Supreme Court, the presumption under Section 27 is rebutlable.
7. As already mentioned above in the present case a photostat copy of the envelope show that the notices were returned back to the sender with the endorsement as unclaimed and returned to sender as unserved and returned. These documents clearly show that the documents was not served on the petitioner and that he did not receive the notices as he was out of station. If he was not served and the notice of allotment was not served on the petitioner as he claims that he had not received any notice of allotment, it can well be said that lime to make deposit did not start or commence and it can well be urged the deeming clause under Rule 22(1) did not come into play and further cancellation of the allotment was premature as well as petitioner’s application for allotment of site remained unfructified in a sense as effective allotment did come out and application for allotment remained alive for due allotment of site to petitioner.
8. That apart from the above if cancellation on the basis of deemed clause can be done it was necessary for opposite parties to have applied their mind to the question if notice of allotment was received by and served on the allottee and if yes on what date because that is certain and definite “the period of fifteen days” could not be calculated.
9. Further 1 am of the opinion that cancellation of allotment of site has no doubt civil consequences so before any order of cancellation of allotment is passed the allottee is entitled to Show Cause Notice and time to ‘
explain. It appears to me that before passing the order impugned the opposite party did not issue any notice to the petitioner to show cause while the allotment did not cancel complying the deeming clause as there is nothing on record denying the allegation of para 12 of the writ petition. Thus considered I am of the opinion that the order dated 19-11-91 be quashed and set aside and the matter be sent back to the Commissioner, Belgaum Development Authority to decide afresh the matter of allotment of site either 553 or any other in favour of the petitioner and for considering the petitioner’s representation afresh as well as in the light of the observations made by me above. Thus having considered, I allow the writ petition and do hereby quash the order in Annexure ‘A’ dt. 19-11-91. A further direction is issued to the opposite party to consider the petitioner’s case for the allotment of site No. 553 or any other for issuing the fresh allotment after considering petitioner’s representation as well as the question of deemed denial in the light of the principles of law as laid down above. The writ petition is allowed but the costs are to be borne by the parties. The opposite parties are directed to consider the matter by speaking order and dispose of the matter within a period of three months from the date of communication of this order by the petitioner to the authorities. It is further directed that opposite parties will allow the petitioner an opportunity of hearing either in person or through his counsel.
10. Petition allowed.