JUDGMENT
R.P. Sethi, C.J.
1. On his alleged failure to pay the balance amount in respect of auction Site No. 581 at BSK III Stage, layout, the appellant was served with the show-cause notice as to why the auction sale made in his favour should not be cancelled and action be taken as per Bangalore Development Authority (Disposal of Sites) Rules, 1984 (hereinafter called the ‘Rules’). After consideration of his reply the respondents declined to send a copy of the confirmation letter afresh and rejected his prayer for allotment of the site referred to herein above.
2. The writ petition filed by the appellant was dismissed on the ground that as the appellant had not deposited the balance of the bid amount within 45 days from the date of confirmation no relief could be granted to him in exercise of the writ jurisdiction of this Court.
3. It is conceded before us that after the allotment of the auctioned Site No. 581, BSK III Stage, layout, the appellant had deposited a sum of Rs. 1,05,000/- on 15-2-1991. Under sub-rule (3) of Rule 6 of the rules it was provided that the auction purchaser whose bid is accepted was to deposit 25% of the amount of his bid at once on the spot and pay the balance within 45 days from the date of intimation letter as in Form No. 1 communicating confirmation of sale. In default of payment of balance amount, 25% initially deposited was liable to be forfeited to the Authorities who were entitled to resell the site for which the defaulting auction purchaser was liable to make good any loss suffered by authorities on account of any such sale. The plea of the appellant is that the letter of confirmation was never received by him and that after the receipt of the show-cause notice, Annexure-C, he had intimated the respondent-Authorities that he was prepared to pay the balance amount within 45 days. The plea of the appellant was not accepted on the ground that the letter of confirmation stood served upon him and despite service he did not deposit the balance amount within the time specified. It is conceded
before us that the confirmation letter dated 21-3-1991 was not personally served upon the appellant. The said letter is reported to have been served upon the father of the appellant on the address allegedly furnished by the appellant. It is also conceded before us that neither under the Act nor under the rules any specific mode is prescribed for the service of the letter on the successful bidder. From Annexure-D it appears that the appellant had furnished two addresses, one being his permanent address and the other the temporary address for correspondence. Show-cause notice Annexure-C is admitted to have been served upon the appellant on his temporary address furnished for correspondence and the confirmation letter is alleged to have been served on his permanent address. The respondents have not assigned any valid reasons for service of two letters at two different places. From the objections filed by the respondents it transpires that the letters sent to the Appellant on 30-7-1991 asking him to produce remittance particulars to Bangalore Development Authority was returned undelivered by postal authorities with remarks ‘Not claimed’. Subsequently, the same endorsement was sent through Revenue Officer, Bangalore Development Authority, which were returned undelivered with remarks that the ‘addressee is not residing in the said address’. It was reported that addressee was said to be residing in Udayapura, Kasaba Hobli, Channarayapatna Taluk. Admittedly, the letter of confirmation was not served upon the appellant at Udayapura in Channarayapatna Taluk address.
4. Section 27 of the General Clauses Act provides for a presumption as to the factum of ‘service’ upon proof of the conditions spelt out therein. The presumption is admittedly rebuttable. The Courts are required to be guided in each case by its special circumstance as to how far effect can be given to the cover endorsed, refused or words to the like effect. Once the presumption under Section 27 is held to be rebuttable, it is obligatory on the part of respondents to have afforded an opportunity to appellant to show that letter of confirmation allegedly sent to him was in fact not served. No such opportunity appears to have been given to the appellant in the instant case. No presumption under Section 27 would arise where the notice was admittedly not served on the addressee but upon some other person. The learned Counsel for the respondent have not shown us any provision either under the Act or under the rules providing that service of notice upon the father of the appellant could be deemed to be a service upon him. There is nothing on the record to show that the father of the appellant was living with him or was appointed an agent for the purposes of receiving the notices.
5. The peculiar facts of this case indicate that the letter of confirmation was not served upon the appellant and the receipt of the aforesaid letter by his father cannot be held to be a service upon the appellant. The bona fides of the appellant to retain the auction site is evident from the fact that he had not demanded the refund of the amount of Rs. 1,05,000/- deposited by him on 15-2-1991. On the other hand he undertook to deposit the balance amount within 45 days time from 21-5-1992. It is also not disputed that the auction site has not so far been re-auc-
tioned or allotted to any other person. The appellant was admittedly not afforded any opportunity to rebut the presumption allegedly arising against him. It is also established that the appellant has not been vigilant with respect to his claim over the auction site. No useful purpose would be served by reminding the case back to the authorities and directing them to afford the appellant an opportunity to rebut the presumption of service of notice. Ends of justice would be met if appropriate directions are issued keeping in view the interests of both the parties.
6. The learned Single Judge appears to have not taken into consideration the facts noted herein above while passing the order impugned in this appeal. During the course of the arguments the learned Counsel appearing for the respondents submitted that during the pendency of the litigation the initial amount of Rs. 1,05,000/- deposited by the appellant has been forfeited. In view of the order we propose to pass it is held that order of forfeiture of the amount shall not be given effect to. The respondents were not justified to pass such an order during the pendency of the litigation in this Court.
7. The appeal is accordingly allowed by setting aside the order of the learned Single Judge. A direction is issued to the respondents to afford another opportunity to the appellant for payment of the balance amount with interest. It is directed that in case the appellant pays or deposits the balance of the auction amount along with interest at the rate of 18% p.a. within a period of one month from today, the possession of the auction site bearing No. 581 at BSK III Stage, layout, shall be delivered to him and in that event the impugned orders shall be deemed to have been quashed. In case the balance amount along with interest is not paid the writ petition filed by the appellant shall be deemed to have been dismissed.