JUDGMENT
G.K. Misra, C.J.
1. An ambassador car had been registered as WBJ 486 in the name of Sri S. Gupta, C/o Messrs. Pannalal Ramnarayan, 15 Noormal Lohia Lane, Calcutta. On 8-9-69, on an application made by the petitioner on behalf of Sri S. Gupta the registration number had been changed to ORR 1166. This vehicle was detected on 25-11-1969 as plying for hire and reward without a valid permit. On 6-12-60, the Regional Transport Officer, Bolangir (opposite party No. 2) issued a notice (Annexure A) to Sri S. Gupta at his Bolangir address which was given as his present address in the registration certificate, calling upon him to make a representation why the registration certificate of the vehicle should not he suspended. This notice was sent by registered post acknowledgement due, but it was returned back with an endorsement that the addressee was not known and that he was not traceable. On 6-1-70, on the joint application of both the petitioner and Sri Gupta the ownership of the car was changed in favour of the petitioner. As the notice had not been served on the petitioner an order was passed on 27-2-70 suspending the registration certificate and the order was communicated to the petitioner on 14-3-70. An appeal against the order was dismissed on 31-3-70. The writ application was filed on 13-4-70 challenging the validity of that order dated 27-2-70 suspending the registration without giving the petitioner a reasonable opportunity to make any representation by means of a notice.
2. In support of the order, Mr. Mohapatra, learned standing counsel, relies upon Section 33 (1) (b) of the Motor Vehicles Act, 1939 (Act IV of 1939) and Section 27 of the General Clauses Act, 1897 (Act 10 of 1897). The relevant Sections of the two acts may be extracted:
Motor Vehicles Act:–
Section 33. “Suspension of Registration:–
(1) If any registering authority or other prescribed authority has reason to believe that any motor vehicle within its jurisdiction–.
(b) has been or is being used for hire or reward without a valid permit for being used as such,
the authority may, after giving the owner an opportunity of making any representation he may wish to make (by sending to the owner a notice by registered post acknowledgment due at his address entered in the certificate of registration), for reasons to be recorded in writing suspend the certificate of registration of the vehicle–
(ii) in any case falling under Clause (b) for a period not exceeding four months.
General Clauses Act:–
Section 27. “Where any Central Act or Regulation 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 a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying 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.”
3. A bare perusal of Section 27 of the General Clauses Act would show that the expression “giving” or “sending” a letter or any other similar expressions, like “communicating” would indicate that the service shall be deemed to be effected at the proper address at the time required for the letter to reach the addressee. This is however subject to two exceptions; firstly, the section would not operate if in any particular statute or regulation a different intention appears; and addressee at the point of time normally required to reach him would not be available where the contrary is proved. Subject to these two exceptions, the sending of the letter would itself be presumptive of the fact that it reached the addressee provided the correct address had been given.
4. Applying the aforesaid test to Section 33 of the Motor Vehicles Act and the facts of this case, we shall have to critically examine if that section indicates a different intention and whether, on the facts of the case the contrary has been proved.
5. Factually the contrary has been proved by the endrosement of the postman on the registered letter that the addressee was not known and that he was not traceable. No effort has been made on the part of the department to prove that in fact the address was fictitious or false and the addressee never lived in such address. Cases are conceivable, where, to avoid responsibility or liability, the addressee might give a fictitious address with a view to evade service. In the absence of any affidavit or material facts to prove that the addressee did not live at that address and there was no such person actually available at Bolangir and a false address had been given in the registration certificate to avoid liability, the endorsement of the postman that the addressee was not known and he was not traceable, proves the contrary namely that the letter did not reach him. One of the exceptions is therefore satisfied in this case and accordingly we must hold that there was no service of the notice issued to the petitioner.
6. Even as a matter of legal construction, Section 33 of the Motor Vehicles Act also indicates a contrary intention. That section provides that the final order of suspension of registration would be passed only after giving the owner an opportunity of making any representation that he may wish to make. It is not a nebulous right, but a substantial one. Suspension of registration seriously affects the right of the petitioner to ply his vehicle. While Section 27 of the General Clauses Act does not speak of acknowledgement due, Section 33 of the Motor Vehicles Act specifically proscribes that the notice should be sent by registered post acknowledgement due. This shows that by a positive act the addressee has to acknowledge receipt of the notice and such acknowledgement has to be received back by the sender. The fact that a acknowledgement should accompany the registered letter is indicative of the clear intention of the statute that the notice must be served on the addressee. The provision is contrary to Section 27 of the General Clauses Act which would not operate proprio vigore.
7. We would clarify the position by saying that under Section 33 (1) (b) of the Motor Vehicles Act, notice must be served by registered acknowledgement due. Where the addressee claims not to have received the notice even though it was sent by registered post acknowledgement due, the Department must prove that there was refusal to receive the registered letter, or in the alternative, it must prove that the petitioner gave a false or fictitious address with a view to avoid service. If either of these facts is not established, there would be no service of notice, and in the absence of such notice the petitioner could not have had a reasonable opportunity of making any representation against the proposed suspension of the registration certificate.
8. On the aforesaid analysis, we must bold that the impugned order suspending the registration certificate of the petitioner is contrary to law and is liable to be quashed. 9. In the result, the writ application is allowed. A writ of certiorari be issued quashing the impugned order in the circumstances, there will be no order as to costs. B.N. Misra, J. 10. I agree.