Piara Singh vs Sub Divisional Magistrate-cum-Collector and Others

Rakesh Kumar Jain, J.—The petitioner has challenged order of respondent No. 2 dated 8.9.2010 and order of respondent No. 1 dated

18.7.2011, in this writ petition. The brief facts are that respondent Nos. 3 and 4 filed an application u/s III of the Punjab Land Revenue Act, 1887

[for short the Act''] before the Assistant Collector 1st Grade, Nakodar for partitioning of their land measuring 71 kanals 13 marlas situated at

Village Kangna, Tehsil Nakodar, District Jalandhar. It is alleged that Assistant Collector 1st Grade-cum-Tehsildar Nakodar without effecting the

service upon the petitioner accepted the mode of partition on 19.8.2010 and passed the final order of partition on 8.9.2010 which came to his

knowledge on 18.3.2011 when the respondents tried to interfere in his possession which led to the filing of the appeal at the instance of the

petitioner before the Sub Divisional Magistrate-cum-Collector, Nakodar on 22.3.2011.

Learned counsel for the petitioner has submitted that it is very much recorded in the order dated 8.9.2010 that the petitioner could not be

summoned and for summoning the petitioner, registered notice and Mustri Munadi was done. However, there is no report of service having been

effected. It is further submitted that in the order dated 18.7.2011, it has been recorded by the Appellate Court that zimini orders of the lower

Court were not completed because those were not signed by the Presiding Officer and it was also correct that the petitioner was not summoned in

the lower Court. It is further observed that from the perusal of the order, it cannot be said that the petitioner was present in the lower Court or ex

parte proceedings were initiated against him. But still the appeal Hied by the petitioner was dismissed on the ground that after the issuance of

Sanad Takseem, the Collector had no jurisdiction to hear the appeal and the same was dismissed as not maintainable with an advice to pursue his

case in higher Court. Hence, the writ petition has been filed.

Learned counsel for the petitioner has submitted that writ petition after the order of preparation of Sanad Takseem is maintainable and has

referred to a judgment of this Court in the case of Ajmer Singh Vs. Dharam Singh, .

Learned counsel for the petitioner has further submitted that since no service was effected upon the petitioner and the appearance of his two

brothers namely, Sohan Singh and Jit Singh is not the service upon him because in the case of partition, the petitioner is individually affected and is

required to be served personally. It is further submitted that though it has been recorded by the Collector that there was no due service and there is

no order that the petitioner has been served or proceeded ex parte despite service on record and also various orders passed by the trial Court

much less Tehsildar were not even signed by him, the impugned orders should have been set aside and the matter should have been remanded

back to Assistant Collector, 1st Grade, Nakodar for fresh decision associating the petitioner.

On the other hand, learned counsel for the State/respondents No. 1 and 2 have filed their replies and have tried to justify that when the notice

was issued, the petitioner was not met in the Village and Sohan Singh who is brother of the petitioner assured the process server that he will tell the

petitioner and the petitioner will definitely appear in the Court and therefore, he was duly served. It is also averred that substitute service as per

Section 20 of the Act was conducted by way of Munadi but still the petitioner did not appear for the reasons best known to him and cannot now

raise the plea that he has been condemned unheard in the petition proceedings.

I have heard learned counsel for the parties and after perusal of the record, I am of the considered opinion that both the orders passed by the

Revenue Courts are liable to be set aside because the findings have been recorded by the Collector that the AC 1st Grade-cum-Tehsildar,

Nakodar has not signed various zimini orders and the petitioner was not correctly summoned because service through his brother on his alleged

assurance is no service in the eyes of law and there is no order on record to indicate that the petitioner was present and thereafter ex parte

proceedings were carried out against him. It is needless to mention that salutary principle of natural justice of the opportunity of hearing which can

be granted only by way of effecting service of the proceedings which are to be carried out effecting the civil rights of the persons concerned. The

AC 1st Grade was naturally obliged to 1st effect personal service upon the petitioner and in case of his refusal, could have resorted to substitute

service but in this case no personal service has been effected and straightway substituted service is alleged to have been carried out to the

detriment of the petitioner who is aggrieved of the partition proceedings which are prejudicial in nature. In view thereof, the present writ petition is

hereby allowed and the impugned orders are set aside. The case is remanded back to the AC 1st Grade, Nakodar to decide the partition

proceedings fresh. Parties are directed to appear before the AC 1st Grade, Nakodar on 7.10.2013.