CWP No. 17837 of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 17837 of 2004 Date of decision: 10.4.2008 Anoop Singh ...Petitioner Versus Joint Development Commissioner (IRD) and others ...Respondents. CORAM:- HON'BLE MR. JUSTICE K.S.GAREWAL HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr. Ashwani Kumar Chopra, Senior Advocate with Mr. Aashish Chopra, Advocate, for the petitioner. Mr. Vineet Soni, Advocate, for the respondent. K.S.GAREWAL, J. Anoop Singh of Sudhar Rajputtan, Block Rayya, Tehsil Baba Bakala, District Amritsar, has filed this petition to challenge the order of the Commissioner, exercising powers under the Punjab Pubic Premises and Land (Eviction and Rent Recovery) Act, 1973, passed on September 30, 2004 (Annexure P/7). According to the petitioner, 187 kanals 10 marlas of land in Sudhar Rajputtan had been recorded as jumla mustarqa malkan va digar haq daran arazi hasab rasad kasht raqba. The land was in possession of CWP No. 17837 of 2004 2 the petitioner and other right-holders of the village. The proprietors had filed an application under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 before the Director, Consolidation of Holding, which was allowed on January 17, 1997 and the case was remanded to the Consolidation Officer with a direction that bachat land belonging to jumlan mustarqa malkan should be distributed to those from whom pro-rata cut had been imposed during consolidation. This order was challenged by the Gram Panchayat through CWP 18760 of 1998. This Court had on December 10, 1998 issued notice of motion and directed stay of operation of the order of the Director Consolidation. However, subsequently, the Gram Panchayat filed CM 7946 of 2000 seeking withdrawal of the writ petition, the CM was allowed and the petition was dismissed as withdrawn on May 10, 2000. Therefore, on the basis of the remand order dated January 17, 1997, the Consolidation Officer re-distributed the land amongst the right-holders. Nevertheless, the Gram Panchayat filed a petition under Sections 4, 5 and 7 of the Punjab Pubic Premises and Land (Eviction and Rent Recovery) Act, 1973 read with the provisions of the Punjab Gram Panchayat (Common Purposes Lands) Act, 1976 for eviction of the petitioner on December 12, 2000. Notice of the petition was issued by the DDPO to the respondents mentioned in the petition. According to the petitioner, neither he nor the proforma respondents 4 and 5 were served notice of the said petition. However, on the basis of report dated September 25, 2000 made by one Baghel Singh, to the effect that respondents (petitioner, respondents 4 and 5 and one Joginder Singh) had refused to receive the notice, DDPO CWP No. 17837 of 2004 3 on March 2, 2001 proceeded to hear the case ex-parte and passed the order of eviction against the petitioner and the two proforma respondents as well as Joginder Singh. It was when the warrant of possession was issued and was sought to be executed at the spot that the petitioner came to know of the passing of the ex-parte order. The petitioner did not seek to get the ex-parte order set aside but filed an appeal on July 2, 2003. In the appeal before the Commissioner, delay in filing the appeal was condoned and the notice was issued to the respondents but the Panchayat challenged the order issuing notice before this Court through CWP 17954 of 2003 and on November 18, 2003, it was held by this Court that the delay in filing the appeal could not have been condoned ex-parte. Therefore, the parties were directed to appear before the Commissioner with a direction that the order on the application for condonation of delay be passed after hearing the parties. On December 30, 2004, the application for condonation of delay was dismissed and the appeal was also dismissed. It is this order which the petitioner has challenged. The sole question to be considered in this case is whether the petitioner had been validly proceeded ex-parte. To determine the above question, it would be necessary to revisit the proceedings taken against the petitioner by the DDPO which culminated in the impugned ex-parte order passed on March 2, 2001 (Annexure P/3). The application was filed on September 13, 2000, notice to respondents were issued for September 27, 2000. On that date the following order was passed :- “Registered covers were sent for notice to the respondents but after service neither the respondents have come present nor the CWP No. 17837 of 2004 4 registered covers have been received back. Dasti notices have also been got issued through Block Development and Panchayat Officer, Rayya and as per the report, respondent no.2 Joginder Singh resides at Jalandhar and the other respondents have refused to accept the summons. Therefore, they are proceeded against exparte.” A reading of the above order would show that notices were issued to the respondents under registered cover but these had not been received back. The notices had also been issued through BDPO who reported that respondents had refused to accepts the summons. The stand of the respondent was that “it is also pertinent to mention here that the notice in registered cover were also sent to the petitioner and was never received back by the District Development and Panchayat Officer. Under the law there is a presumption that in case the registered letters are not received back these are deemed to have been served on the respondents, but to be on the safer side the District Development and Panchayat Officer has further got effected a munadi in the village and notices were also affixed in the village on the conspicuous places and thereafter the petitioner was proceeded ex-parte”. It will be seen that service was sought to be effected on the respondents through two methods. Firstly, through registered cover and secondly through BDPO. The stand of the respondent herein is that there was a presumption that registered cover were deemed to have been served but what seems to have been overlooked is that this presumption only arises after thirty days from the date of issue of the summons. Order 5 Rule 19A CPC prior to its omission contained a proviso to Rule 19A (2) which read as CWP No. 17837 of 2004 5 under:- “Provided that where the summons was properly addressed, prepaid and duly sent by registered post, acknowledgment due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that the acknowledgment having been lost or mislaid, or for any other reason, has not been received by the Court within thirty days from the date of the issue of the summons” Therefore, under no circumstances, declaration of service could have been made on September 27, 2000 when notices were issued on September 13, 2000, because thirty days had not passed. Therefore, the stand of the respondent that there was a presumption that in case registered letters are not received back, these were deemed to have been served, was not available and against the provision of law. The second mode of service adopted by DDPO was sending notices through BDPO, who reported that one respondent had shifted to Jalandhar while other respondents had refused to accept the summons. The respondents have not placed on record the report of refusal but have pleaded that DDPO got a proclamation made in the village and notices were also affixed at conspicuous places. There was no order of affixing the summons at conspicuous places. Indeed DDPO had not relied on this mode of service in his above-quoted order dated September 30, 2000. We feel that the petition deserves to succeed on a technical ground although we are not happy with the manner in which the proceeding were conducted by DDPO, who seems to have been in a tearing hurry to decide the case without following the proper procedure for service of CWP No. 17837 of 2004 6 notices. We have no choice but to set aside the ex-parte order dated March 2, 2001 (Annexure P/3) and the appellate order dated September 30, 2004 (Annexure P/7) since both were based on wrong procedure adopted by the authorities. Ordered accordingly. The case is remanded back to DDPO for a fresh decision in accordance with law. The matter shall be fast-tracked and disposed of as early as possible. The parties to appear before DDPO on May 5, 2008. (K.S. GAREWAL) JUDGE 10.4.2008 (DAYA CHAUDHARY) prem JUDGE