V.K. Jhanji, J.@mdashIn this petition, prayer made by the petitioner is for quashing of order/proceedings dated 6.1.1986, 7.4.1986, 29.4.1986, 30.5.1986 of Assistant Collector Ist Grade, Bathinda and orders dated 4.10.1995 and 9.1.1996 of the Commissioner, Ferozepur Division, Ferozepur and the Financial Commissioner, Revenue respectively.
2. In brief, the facts are that on 13.12.1995, Narotam Singh and Bhan singh alias Bhag Singh, respondents No. 5 and 6 filed an application under the Punjab Land Revenue Act, 1887 for the partition of join agricultural land measuring 69 Bighas 11 Biswas situated in village Bathinda, Tehsil and District Bathinda before the Assistant Collector Ist Grade (DRO), Bathinda, Vide order dated 23.12.1985, the Assistant Collector Ist Grade issued summons for appearance of petitioner, namely, Sher Singh in the application for partition at 10.00 A.M. on 6.1.1986. The allegation of the petitioner is that the process server on the same date i.e. 6.1.1986 made a report that the petitioner has refused to accept the summons and the service has been effected on the petitioner by affixation. According to the petitioner, report of the process server was not witnessed by any person nor supported by an affidavit of the process server. The Assistant Collector Ist Grade vide order dated 6.1.1986 merely on the basis of the report of the process server, ordered ex parte proceedings against the petitioner. Vide order dated 7.4.1986, the Assistant Collector approved the mode of partition and vide order dated 29.4.1986, ex parte order of partition was passed. On 30.5.1986, the Assistant Collector issued Sanad Taqseem. Petitioner has alleged that on 6.6.1989, he came to know of the ex parte proceedings/orders of the Assistant Collector Ist Grade, when respondents No. 4 and 5 tried to take forcible possession of the land in his possession of the basis of ex parte order of partition. Petitioner has averred that on 9.6.1989, he filed appeal against the ex parte order of Assistant Collector Ist Grade before the Collector, SubDivision, Bathinda. Appeal filed by the petitioner was accepted by the Collector as he found that the petitioner had been wrongly proceeded against ex parte. He thus remanded the case to the Assistant Collector Ist Grade, Bathinda for fresh decision. Petitioner has alleged that after the remand order, none of the parties except the petitioner, put in appearance before the Assistant Collector Ist Grade, Bathinda who dismissed the application for partition on 14.6.1990 and consigned it to the record room. According to the petitioner, possession of land in question which respondents No. 4 and 5 had forcibly taken, was returned to the petitioner vide Rapat Roznamcha Waquiati No. 399 dated 2.5.1991. It is averred that against order dated 9.11.1989 passed by the Collector, respondents No. 4 and 5 filed an appeal before the Commissioner, Ferozepur Division, Ferozepur. Vide order dated 4.10.1995, the Commissioner accepted appeal of respondents No. 4 and 5. Petitioner being aggrieved of order dated 4.10.1995 preferred an appeal before the Financial Commissioner who dismissed the same on 9.1.1996. Order dated 4.10.1995 of Commissioner and 9.1.1996 of the Financial Commissioner are being challenged in the present writ petition on the ground that there had been no service of summons upon the petitioner who was the only person adversely affected by the order of partition of land which had taken place in his absence. According to him, valuable land abutting the BathindaDabwali road has been allotted to the said respondents out of his established possession and without affording an opportunity of hearing to him. He has contended that the land of any other cosharer has not been touched and it is only his land which has been partitioned and given to respondents No. 4 and 5.
3. Upon notice of the writ petition, respondents No. 4 and 5 filed written statement controverting the allegations made in the writ petition. They contended that the ex parte proceedings/orders were rightly passed against the petitioner as he had the knowledge of the proceedings but intentionally did not appear in the partition proceedings. They have further submitted that the Commissioner as well as the Financial Commissioner have rightly held that the petitioner having refused to accept service of the summons, the Assistant Collector rightly passed ex parte order against the petitioner which was upheld by the Commissioner as well as the Financial Commissioner.
4. I have heard the learned counsel for the parties at length.
5. On going through the record, I find that the report of refusal is dated 6.1.1986 i.e. of the same day when the case was fixed for the service of respondents before the Assistant Collector. The alleged report is neither witnessed by any person nor supported by an affidavit of the process server. The alleged affixation of notice by process server was at his own instance and without there being any order of the Assistant Collector Ist Grade. I further find that apart from the petitioner, there were many other cosharers but none had put in appearance. On 7.4.1986 when the mode of partition was determined by the Assistant Collector Ist Grade, Bathinda, only Advocate of respondents No. 4 and 5 was present. On 29.4.1986 also when order was passed by the Assistant Collector for Sanad Taqseem, none else but Advocate of respondents No. 4 and 5 was present. Again on 30.5.1986 when Naqsha Bay was finalised, no cosharer was present and it has been so recorded by the Assistant Collector Ist Grade. This order further shows that only the land of the petitioner has been touched though there were as many as 18 cosharers but their land was not touched. It is, thus, apparent that only person affected by the above referred to order is the petitioner. The allegation of the petitioner is that the report of the process server is false and was manipulated in connivance with respondents No. 4 and 5. Petitioner has further alleged that respondents No. 4 and 5 have also sold their share to Jaspal Singh son of Shamsher Singh, Jagjit Singh, son of Jalaur Singh and Sukhwinder Singh son of Jalaur Singh vide registered sale deeds dated 7.8.1985 and 13.7.1987. According to the petitioner he is an old man of 85 years of age and the above vendees from respondents No. 4 and 5 are harassing him.
6. The only question to be determined in this case is whether the petitioner has been properly served. As noticed earlier, report of process server is dated 6.1.1986 and summons were also for the case which was fixed for 6.1.1986. The alleged refusal on the part of the petitioner to receive summons has not been witnessed by any person nor the report is supported by an affidavit of the process server. In the report of the process server, it is stated that on refusal to accept the service by the petitioner, summon was affixed at the house of the petitioner. Order dated 23.12.1985 passed by the Assistant Collector Ist Grade for issuing notice to appear on 6.1.1986 does not show that the petitioner was also ordered to be served by affixation meaning thereby that the alleged affixation of notice by the process server was at his own instance and not pursuant to any order passed by the Assistant Collector. The process server, on his own, was not competent to decide as to what mode of substituted service should be adopted to secure presence of the petitioner. This court in Harnam Singh v. The Financial Commissioner, Punjab and others, 1980 PLJ 215 in this context has held that "the ex parte proceedings launched on such a report culminating in final order can play havoc with the rights of the litigants. This power of taking recourse to substituted service should in the very nature of things (well?) remain with the Court or with the Officer. It should not be delegated to a minor functionary like the processserver."
7. Reference may also be made to the case of Naranjan Singh v. The State of Punjab and others, 1980 PLJ 649 wherein it has been held that the process server has no authority on his own to take recourse to this manner of service by affixation.
8. In Smt. Rattan Kumari v. The State of Haryana and others, 1992 PLJ 101 : 1992(1) RRR 450 (P&H), Single Bench of this Court held that service by affixation can be resorted to only when it is clear that the person concerned is evading service.
9. In the present case, no material worth the name has been brought on record nor there in any mention of such a material in the orders of the Commissioner and the Financial Commissioner that the petitioner was evading service. In fact, from the material on record, I find that the Assistant Collector Ist Grade had not applied his mind while proceeding ex parte against the petitioner. Likewise, the Commissioner as also the Financial Commissioner did not take into consideration that there was no material on record to come to the conclusion that the petitioner was evading service.
10. Consequently, I allow this writ petition and set aside orders dated 4.10.1995 and 9.1.1996 passed by the Commissioner, Ferozepur Division, Ferozepur and the Financial Commissioner, respectively and restore order dated 9.11.1989 passed by the Collector. The Assistant Collector Ist Grade is directed to decide the application of respondents No. 4 and 5 for partition of land in accordance with law. He is further directed to make an (sic).
