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2017 DIGILAW 608 (HP)

Kuldip Singh v. State of Himachal Pradesh

2017-05-29

AJAY MOHAN GOEL

body2017
JUDGMENT : Ajay Mohan Goel, J. CMP No. 2206 of 2017 By way of this application, the petitioner/applicant has prayed that the documents appended with this application may be taken on record. Learned Deputy Advocate General has no objection in case the same is allowed. Accordingly, the application is allowed and the documents appended therewith are ordered to be taken on record. Application stands disposed of. CMP No. 7056 of 2011 2. Mr. R.P. Singh submits that he shall not press this application which has been filed for amendment of the writ petition. He further submits that his limited prayer is that alongwith the said application, he has placed on record a copy of the discharge slip issued in favour of the petitioner by Medical Officer, CHC Barsar, District Hamirpur Annexure P-1/L, which may be taken into consideration while hearing the main writ petition. To this limited prayer of the learned counsel for the petitioner, the State has no objection. 3. Accordingly, this application is dismissed as not pressed and learned counsel for the petitioner is permitted to refer to Annexure P-1/L appended with this application during the course of hearing of the case. CWP No. 722 of 2011 4. By way of this writ petition, the petitioner has assailed the order passed by the Court of learned Divisional Commissioner, Mandi Division, exercising powers under Section 54 of the Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 in Case No. 86/2003 (Old) 544/2009 (New), decided on 08.12.2010 inter alia on the ground that said order has been passed by the authority concerned against the present petitioner at his back. As per the petitioner, he was never served in the said revision petition, which was filed before the Divisional Commissioner, Mandi Division under Section 54 of the Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 and therefore, as the order impugned, which has been passed against the petitioner, has been passed without hearing him, the same was liable to be quashed and set aside on this count only as the petitioner had been condemned under heard. 5. Respondents No. 3 to 6 were proceeded against ex parte on 05.05.2017. 6. In order to substantiate his contention that the impugned order was passed at the back of the petitioner, Mr. 5. Respondents No. 3 to 6 were proceeded against ex parte on 05.05.2017. 6. In order to substantiate his contention that the impugned order was passed at the back of the petitioner, Mr. R.P. Singh, learned counsel for the petitioner has drawn the attention of this Court to Annexure P-1/L, which was appended alongwith an application filed under Order VI Rule 17 of the Code of Civil Procedure praying for amendment of the petition, which is a copy of Discharge Slip signed by Medical Officer, CHC, Barsar, District Hamirpur. Perusal of same demonstrates that the petitioner stood admitted in the said CHC from 16.11.2010 to 20.11.2010. 7. Mr. Singh has referred to Annexure P-3 and Annexure P-4, which have been placed on record vide CMP No. 2206 of 2017. Annexure P-3 is copy of summons, which purportedly were served upon the petitioner by the Process Server and Annexure P-4 is report of the Process Server, which according to Mr. Singh does not even bears the signatures of the Process Server. As per the report of the Process Server, the summons were served upon the petitioner on 18.11.2010, however, he refused to receive the same. 8. In my considered view, if the present petitioner was admitted in CHC, Barsar from 16.11.2010 up to 20.11.2010, as is evident from the discharge slip, which is duly signed by Medical Officer, CHC Barsar, District Hamirpur, then it is not understood as to who was served by the Process Server on 18.11.2010, who refused to accept the summons, as has been reported by the Process Server. It has not been mentioned in this report that service of the summons was effected upon the present petitioner at CHC, Barsar. Therefore, the only conclusion which can be drawn is that the alleged refusal to receive the summons by the present petitioner was at his address which was mentioned in memo of parties of Revision Petition so filed under Section 54 of the Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 and impugned order demonstrates that the address of the present petitioner mentioned therein was ‘Village Harsour, Tehsil Barsar, District Hamirpur, H.P.’ 9. The contention of the learned Deputy Advocate General that presumption of truth is attached with the report of the Process Server, in my considered view, cannot be accepted on its face value, because to counter the same, there is a Discharge Slip which has been duly issued by the Medical Officer of Community Health Centre, Barsar and there is no reason for this Court to disbelieve the said Discharge Slip, which has been so issued by a responsible Medical Officer. Not only this, a perusal of the Discharge Slip also demonstrates that besides serial number, even OPD number of the present petitioner is mentioned therein. Thus, the only inference and conclusion which can be drawn is that the present petitioner was never served in the revision proceedings and the report submitted by the Process Server about summons having been served upon the petitioner and his having refused to accept the same was incorrect. 10. Therefore, in view of the above discussion, in my considered view, the contention of the petitioner that the impugned order was passed by the Divisional Commissioner, Mandi Division in revision at his back has been duly demonstrated by the petitioner. 11. Accordingly, in view of my findings returned above, this writ petition is allowed. Impugned order dated 08.12.2010 (Annexure P-2), passed by the Court of Divisional Commissioner, Mandi Division in Case No. 86/2003 (Old) 544/2009 (New), is quashed and set aside. The matter is remanded back to the Divisional Commissioner, Mandi Division with a direction that the said authority shall issue fresh notices to the parties and thereafter adjudicate upon the Revision Petition on merit after giving an opportunity of being heard to all the concerned parties. Divisional Commissioner, Mandi Division is also directed to hold an inquiry with regard to the report submitted by the Process Server qua alleged service of the present petitioner. Said inquiry shall positively be completed within a period of three months from today and a copy of the report shall be made available to this Court. Learned Deputy Advocate General undertakes to inform Divisional Commissioner, Mandi Division of the order passed by this Court. Petition is disposed of in above terms. Miscellaneous applications, if any, also stand disposed of. No order as to costs.