R.S.A. No. 658 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 658 of 1985 Date of decision: 29-6-2010 State of Haryana ......... Appellant Vs Tek Ram and another .........Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present: Mr. K.C.Bhatia, Additional Advocate General, Haryana for the appellant Mr. S.K.Chauhan, Advocate for Raj Mohan Singh, Advocate for the respondents. HARBANS LAL, J. This appeal is directed against the judgment/decree dated 7.9.1984 passed by the court of learned Additional District Judge (II), Jind whereby he dismissed the appeal filed by State of Haryana against the judgment/decree dated 25.8.1982 rendered by the court of learned Sub Judge Ist Class, Jind vide which he decreed the suit of the plaintiff Tek Ram for declaration to the effect that the impugned order of the prescribed authority thereby declaring suit land of the plaintiff as surplus and then taking the same in surplus pool, out of his total land holding, is illegal, without jurisdiction, void ab initio, nonest and for the same, the said order is not binding on the plaintiff with a consequential relief of permanent injunction restraining the defendant State from the suit land in pursuance of the same with a further observation that the said prescribed authority shall not be debarred from declaring the suit land or the other land of the plaintiff as surplus after giving fresh notice in accordance with the aforesaid R.S.A. No. 658 of 1985 2 provisions of the Act and the rules framed thereunder. The facts which led to the filing of the suit are that the plaitiff is the owner in possession of half share of the land measuring 346 Kanals 8 Marlas comprised in Khasra No. 1/16, 17, 21 to 25, 2/19 to 22, 23/1, 6/1,2, 3/1, 9 min, 7/1 to 15, 20, 21, 8/5 to 7, 13 to 16, 16/16 to 25, 29/5, 6,15, 16 situated in village Kucharana Khurd. The Collector Agrarian, Reforms Kaithal vide order dated 12.12.1968 declared the land in dispute excluding killa Nos. 2/19, 22, 23/1, 6/1, 3/1 min and 9 min as surplus with the plaintiff under the Punjab Security of Land Tenures Act 1953, (for short the Act). These killa numbers were never declared as surplus in the hands of the plaintiff by any authority, nor any notice was ever given to him in this behalf. The disputed land is joint with Lakshmi. The aforesaid Collector has passed the above mentioned order without adhering to the provisions of Section 90 of the Punjab Tenancy Act and Rule 6(7) of the Punjab Security of Land Rules, 1956. Besides this, the provisions of Section 24-A of the Act has also not been complied with. On the basis of the void order, the defendant State is threatening to utilize the disputed land. The aforesaid order being illegal, void and without jurisdiction is not binding upon the rights of the plaintiff. The defendant may be restrained from utilizing the said land on the basis of the said void order. In answer to this claim, the defendant State has filed written statement inter-alia pleading that the Civil Court has no jurisdiction to try this suit under 25 of the Act; that the plaintiff was a co-sharer in equal shares with Lakshmi and accordingly, the agricultural land measuring 180 Kanals 1 Marla belonging to the plaintiff and Lakshmi has been declared as surplus vide orders dated 24.7.1960 and 15.11.1960 respectively. Since the R.S.A. No. 658 of 1985 3 killa Nos. of the surplus area underwent change during consolidation, so the land of the plaintiff was never declared surplus vide impugned order dated 12.12.1968. The impugned order was passed because during the consolidation, some more land was allotted to the plaintiff. The following issues were framed by the learned trial Court:- 1. Whether the impugned orders dated 12.12.1968 and 30.12.1977 are illegal, null and void and are liable to be set aside?OPP 2. Whether this Court has no jurisdiction to try this suit?OPD 3. Whether the plaintiff is the owner in possession of the land in dispute?OPP 4. Whether the suit is bad for want of notice under section 80 of C.P.C.? OPD 5. Whether the suit is collusive between the plaintiff and proforma defendant No.2? if so, its effect?OPD 6. Relief After recording and examining the evidence, the learned trial Court decreed the suit as noticed at the outset. Feeling aggrieved therewith, the State of Haryana went up in appeal, which was also dismissed by the court of learned Additional District Judge (II), Jind. Being undaunted and dissatisfied with the judgments recorded by both the Courts below, the State of Haryana has preferred this appeal. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. The substantial question of law which arises for determination by this Court is “As to whether the notice was duly served upon the respondent before the impugned order was passed?” R.S.A. No. 658 of 1985 4 On behalf of the State, it has been argued by Mr. K.C.Bhatia, Additional Advocate General Haryana that a meticulous perusal of Ex.DW- 1/B would reveal that Mangu chowkidar had informed Tek Ram respondent to appear before the Agrarian authorities, but the former had replied that he would be reaching the appointed place very shortly. It leaves no room for doubt that he was served in a desired manner, but none-the-less he deliberately did not appear before the authorities. He further puts that the respondent did not cause his appearance before the Prescribed Authority, despite the fact that the pendency of these proceedings was well within his knowledge. To controvert these submissions Mr. S.K.Chauhan, Advocate on behalf of the respondent agitated at the bar that a careful delving into Ex.DW-1/A would reveal that it does not bear the signatures or thumb impression of the plaintiff-respondent in token of his having received copy of it and that being so, by no stretch of speculation, it can be said that he was served in a manner as provided by law. He has sought to place abundant reliance upon State of Haryana and Others Vs. Vinod Kumar and Others 1986 (1) Punjab Law Reporter 222(F.B.). After giving a deep and thoughtful consideration to the rival contentions, the view I am disposed to take is that the notice Ex.DW-1/A has not been executed upon plaintiff-respondent and sequelly, the doctrine of 'audi alterm palterm' has been violated, which contemplates that no one should be condemned unheard. Section 90 of the Punjab Tenancy Act, 1887 reads as under:- “90 Mode of service of summons:-(1) A summons issued by a Revenue Officer or Revenue Court, if practicable, be served (a) personally on the person to whom it is addressed, or failing him R.S.A. No. 658 of 1985 5 on (b) his recognized agent on (c) an adult male member of his family who is residing with him. (2)If service cannot be so made, or if acceptance of service so made is refused, the summons may be served by pasting a copy thereof at usual or last known place of residence of the person to whom it is addressed, or if that person does not reside in the district in which the Revenue Officer is employed or the Revenue Court is held and the case to which the summons relates has reference to land in that district then by pasting a copy of the summons on some conspicuous place in or near the as late wherein the land is situate. (3)If the summons relates to a case in which persons having the same interest are so numerous that personal service on all of them is not reasonably practicable, it may, if the Revenue Officer or Revenue Court, so directs, be served by delivery of a copy thereof to such of those persons as the Officer or Court nominates in this behalf and by proclamation of the contents thereof for the information of the other persons interested. (4)A summons may if the Revenue Officer or Revenue Court so directs be served on the persons named therein, either in addition to, or in substitution for, any other made of service, by forwarding the summons by post in a letter addressed to the person and registered under Part III of the Indian Post Office Act, 1886 (See now the Indian Post Office Act, 1896 (6 of 1898) (XIV of 1866) R.S.A. No. 658 of 1985 6 (5)When a summons is so forwarded in a letter and it is proved that the letter was properly addressed and duly posted and registered, the Officer or Court may presume that the summons was served at the time when the letter would be delivered in the ordinary course of posts.” In Ex.DW-1/B it has been simply mentioned that Tek Ram owner has been informed and in turn he has replied that he will come within a short time, but now it has been learnt that by making a lame excuse he has left and that he is not coming deliberately. It is inferable from this report that in fact Tek Ram plaintiff was not got served personally or through his recognized agent or an adult member of his family residing with him. If he had put off Mangu Ram chowkidar who has made the report Ex.DW-1/B by uttering the aforementioned words, then in view of the afore quoted provisions of Section 90 ibid, this chowkidar was obligated to have affixed a copy of the notice/summons at usual or last known place of his residence. Ex.DW-1/B is absolutely silent on this aspect. Section 24-A of the Punjab Security of Land Tenures Act, 1953 runs as under:- “24-A. Power to separate share of landowners in joint lands:-(1) Where a landowner owns land jointly with other landowners and his share of such land or part thereof, as ascertained from the record of rights, has been or is to be declared as surplus area, the officer competent to declare such area, or where such area has been declared, the officer competent to utilize it, may on his own motion, after summary inquiry and affording to the persons interested in such land an R.S.A. No. 658 of 1985 7 opportunity of being heard, separate his share of such land or part thereof in the land owned by him jointly with other landowners. (2)Where after the declaration of the surplus area of any person and before the utilization thereof, his land has been subjected to the process of consolidation, the officers referred to in sub-section (1) shall be competent to separate the surplus area of such person and out of the area of land obtained by him after consolidation.” In the present one, it is admitted case of the parties that Tek Ram plaitiff-respondent owned land jointly with Lakshmi. It has been manifested in plain words in the language of Section 24-A ibid that an opportunity of being heard has to be afforded to the persons interested in the joint land. Thus, in view of this provision of law, it was obligatory upon the concerned authority to have given such an opportunity to the plaintiff- respondent. In Vinod Kumar and Others (supra), the Full Bench of this Court has held as under:- “If an order is passed by a tribunal of limited jurisdiction without issuing a notice to the concerned party, the order would be a nullity and open to challenge in the civil court even if the statute expressly bars the jurisdiction of the civil court to entertain a suit to challenge the validity or legality of the order passed by such a tribunal. Held, also that the jurisdiction of the civil court to try the suits against the orders passed by the Tribunal of Special Jurisdiction in violation of the provisions of the statue or principles of R.S.A. No. 658 of 1985 8 natural justice was thus upheld even though the jurisdiction of civil court to question the legality or validity of the orders of the Tribunal was expressly barred by the statute.” The afore extracted observations too crystalize that an order passed without issuing a notice to the concerned party amounts to a nullity. The relevant provisions of law requires that prior to the passing of the order, notice to the interested parties has to be issued and an opportunity to be heard has to be granted to them and if it is found that the concerned authorities did not afford any such opportunity, the order cannot be said to have been passed thereunder and it could be said to be nonest in the eyes of law. Thus, to conclude finally the impugned order tantamounts to a nullity for its having been passed at the back of the plaintiff-respondent. The principle of natural justice too requires that no one should be condemned without being heard. Accordingly, the substantial question of law stands answered. Mr. Bhatia had been emphatic in the course of arguments that if the plaintiff-respondent was aggrieved with the impugned order, he should have recourse to appellate authority provided under the Act instead of knocking at the door of the Civil Court. In Vinod Kumar and another's case (supra), it has been held as under:- “That even if it may be accepted for the sake of argument that they could file an appeal with the permission of the Appellate Authority or move for review even then it cannot be said that the concurrent or alternate remedy of filing a suit for getting the declaration that the impugned order was non est so far as they were concerned would be barred by the provision of the said R.S.A. No. 658 of 1985 9 section 25 of the Punjab Act. It is well established that in the case of alternate or concurrent remedies, it is open to the party to choose anyone of them. The existence of the remedy under the act if any, therefore, would not bar the remedy of the suit if it otherwise was available to the respondents.” In view of the afore-extracted observations, the contention raised by Mr. Bhatia pales into insignificance. No other material point has been urged or agitated by either counsel. In the result, this appeal fails and is dismissed with no order as to costs. However, before parting with this judgment, it deserves to be pointed out here that as observed by the learned trial Court, the Prescribed Authority shall be at liberty to decide the matter afresh by serving notice upon the plaintiff-respondent in accordance with the relevant provisions of law. (HARBANS LAL) JUDGE June 29, 2010 RSK NOTE: Whether to be referred to the Reporter or not? Yes