Cannot Prejudice Sender For Addressee Failing To Update Address: Kerala HC Upholds Liability Of Addressee In Cases Where Notice Served Is Returned Unclaimed

Upholding the validity of the notice served, the Court observed that the failure to serve notice was attributable to the addressee and not the sender when it was sent to the correct address and was returned as unclaimed or the addressee left. It further held that it was the responsibility of the addressee to leave a new address with the postal authorities when there was a change in the address.

Justice Bechu Kurian Thomas relied upon the Apex Court decision in M/s Madan and Co. v. Wazir Jaivir Chand (1989) and held thus:

“Apart from the above, if the notice sent to the correct address is returned either as unclaimed or as addressee left, the failure to serve the notice can only be attributed to the addressee and not to the sender. In such circumstances, the addressee should leave necessary instructions with the postal authorities either to redirect the letter to his new address or authorize a person to receive such postal articles. Failure to provide the new address to the postal authorities cannot prejudice the sender in such circumstances.”

Background Facts

The petitioners and respondents were candidates of the Indian National Congress (INC) and were part of the coalition of the United Democratic Front (UDF). The allegation raised by the respondent was that they lost the election because the petitioners violated the written instructions served with the whip.

The State Election Commission found that the petitioners had defected and declared them disqualified from contesting elections as candidates for the local authority for six years. Aggrieved by the order of the State Election Commission, petitioners approached the High Court.

The Counsel for petitioners submitted that the whip was not issued in accordance with the procedure of law. It was contended that there was no proper and complete whip as the written directions were not attached with a Tamil translation since the petitioners did not understand Malayalam.

It was also argued that the whip was served to the old address of the petitioners, and cannot be considered sufficient service of notice.

The counsel for the respondent submitted that the party lost the election only because the petitioners defected without following the written directions served with the whip. It was contended that the copy of the whip contained a Tamil translation.

Observations Of Court

The Court found that the petitioners were the elected candidates of INC, which is a constituent of the UDF. It observed that the whip was posted to the addresses of the petitioners, which was given in the Panchayat and the address was not officially changed.

It noted that the postal articles were returned as 'unclaimed'. It also took note of the fact that the whip was served with directions in writing in both Malayalam and Tamil.

The High Court held that the endorsements on the postal cover would show that the petitioners were intimated regarding the postal articles. It noted that the petitioners did not claim the postal articles sent to them and hence it was returned to the sender.

Referring to Rule 4(2) of the Kerala Local Authorities (Disqualification of Defected Members) Rules 2000, the Court noted that the purpose of sending postal articles with acknowledgement due was to ensure that it was received by the addressee.

Referring to section 26 of the Kerala Interpretation and General Clauses Act 1125, the Court held that the expression 'send' would mean that the petitioners were served with the postal articles containing the whip as there was no change of address made officially.

Also, relying upon Rule 3(1) of the Kerala Panchayat Raj (Manner of Service of Notices) Rules 1996, the Court held that sending a registered letter to a person's last known address was sufficient for service of notice.

The Court thus observed that refusal of notice and unclaimed notice would be considered as a notice served if it was sent within time, otherwise, every recipient would make postal article to be returned as unclaimed.

Relying upon Apex Court decisions, the Court also stated that the obligation of the sender was complete when notice was served to the correct address. It held thus:

“In Harcharan Singh v. Smt.Shivrani and Others (1981) and in Jagdish Singh v. Natthu Singh (1992), the Supreme Court had observed that a notice refused to be accepted can be presumed to have been served on him. In the said decisions, the Supreme Court observed that when a notice is sent to the correct address, the obligation of the sender ends with that, and if he does not claim the notice, it shall be deemed that there was valid service of notice. Viewed in the above perspective, it is evident that the respondents were served with the whip.”

Accordingly, the Court held that the parties were sent written instructions with a valid and complete whip and upheld the order of the State Election Commission 

Counsel for the petitioners: Advocate Aswini Sankar R.S., P.Yadhu Kumar

Counsel for the respondents: Senior Advocate S.Sreekumar, Standing Counsel Deepu Lal Mohan, Advocates Martin Jose P, P.Prijith, Thomas P.Kuruvilla, R.Githesh, Ajay Ben Jose, Manjunath Menon, Sachin Jacob Ambat, Anna Linda Eden, Harikrishnan S.

Citation: 2023 LiveLaw (Ker) 724

Case title: Praveena Ravikumar v State Election Commission & Connected Case

Case number: WP(C) NO. 36155 OF 2023, WP(C) NO. 36144 OF 2023

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