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2011 DIGILAW 1565 (HP)

Indiri Devi v. Parkash Singh

2011-03-21

DEEPAK GUPTA

body2011
JUDGMENT Deepak Gupta, J. 1. Briefly stated the facts of the case are that respondent No.1 Parkash Singh filed an application before the Land Reforms Officer, Barsar on 29.3.1986 for resumption of land situate in Tikka Awah Uprla, Tappa Pahloo, Tehsil Barsar, District Hamirpur after his retirement from the army. The said authority vide its order dated 24.7.1989 allowed resumption of land in favour of the applicant to the extent of 32 Kanals 17 Marlas from different tenants and the proprietary rights for remaining land were conferred upon the tenants as per law. Later it was found that this order was not proper since the Land Reforms Officer had ordered resumption of land from the tenants in shares which is against the Act and the Rules, which provide that resumption has to be made on the basis of Tatima and specifying the land and the Khasra Numbers. Accordingly, after obtaining permission of the Collector the order was reviewed. 2. Thereafter, the Land Reforms Officer, Barsar again ordered resumption of land measuring 32 Kanals 17 Marlas. An appeal was filed against the said order by Prem Singh, Basant Ram and Hari Ram, which was dismissed on 25.8.1993. Thereafter second appeal was filed by these three persons and two others including the present petitioners before the Divisional Commissioner. The Divisional Commissioner found that proper notice had not been given to the affected parties and service upon the affected parties had been effected by publication in the Gazette and he held that this was not proper service in the eyes of law. It was also found that the landlord had made a statement before the Land Reforms Officer on 4.12.1990 in which he had stated that he did not want to pursue the resumption application relating to some other Mohal since he was already in possession of more than five acres of land. The Divisional Commissioner allowed the appeal on these two grounds. 3. The landlord thereafter filed the Revision before the Financial Commissioner, which was allowed. Hence the present petition. 4. I am not going into the second issue but as far as the first issue is concerned there is no manner of doubt that service effected on the tenants by publication in the Gazette is no service in the eyes of law. The landlord thereafter filed the Revision before the Financial Commissioner, which was allowed. Hence the present petition. 4. I am not going into the second issue but as far as the first issue is concerned there is no manner of doubt that service effected on the tenants by publication in the Gazette is no service in the eyes of law. The law is well settled that even where service has to be made by publication, before such service is ordered, it must be shown that the respondents are evading service. Service by publication cannot be ordered as a matter of course. Before ordering service by publication the Land Reforms Officer should have ensured that service is made by affixation, beat of drum, etc. in the area in question. Even if service had to be affected by means of publication then the notice should have been published in a daily newspaper having wide circulation in the area. The Gazette does not fulfill any of the conditions since it is not published daily and does not have wide circulation. 5. Shri K.S.Banyal, learned counsel for respondent No.1 urges that present petitioners had not filed the first appeal and cannot therefore be heard in the present proceedings. In my view this argument is an argument of desperation. When a landlord wants to resume land, which is under the tenancy of a large number of tenants, the tenants are jointly affected and an appeal by any one of them would enure for the benefit of all the landlords. Even otherwise, where the rules of natural justice are totally violated such technicalities should not come in the way of justice. It is made clear that this Court has not expressed any opinion on the merits of the case and has just upheld the order of the Commissioner, Mandi Division whereby he remanded the case to the Land Reforms Officer for decision afresh after giving proper hearing to the parties. 6. The petition is allowed, the impugned order of the Financial Commissioner is set-aside and the order of the Divisional Commissioner is restored. No costs.