Dismissed

Saardi Devi and Others v. State of Punjab and Others

Punjab & Haryana HC16 May 2024CWP/13510/1998

Case brief

AI extract

What is this about?

Legal heirs challenged a consolidation order under Section 42 of the East Punjab Holdings Consolidation Act, contending no valid service on their predecessor. The High Court held refusal to accept summons plus affixation per Order V Rule 17 CPC amounted to valid service, sustaining the order and dismissing the writ petition.

What the court decided

AI extract

Saardi Devi and Others Vs State of Punjab and Others — Land Acquisition | Punjab & Haryana HC (2024)

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CWP No.13510 of 1998(O&M)

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In the High Court of Punjab and Haryana at Chandigarh

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(104) CWP No.13510 of 1998(O&M)

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Date of Decision: 16.05.2024

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Saardi Devi and others .....Petitioners

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Versus

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State of Punjab and others

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....Respondents

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CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR HON'BLE MR. JUSTICE LALIT BATRA

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Present: Mr. A.S. Gill, Advocate for the petitioners.

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Mr. Maninder Singh, Sr. Deputy Advocate General, Punjab.

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Mr. Arvind Mittal, Advocate for respondents No.3 to 5.

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SURESHWAR THAKUR, J. (ORAL)

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Mr. Arvind Mittal, Advocate has filed Power of Attorney on behalf of respondents No.3 to 5, which is taken on the record.

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The instant writ petition has been filed before this Court by one Saardi Devi and others who are the legal heirs of one Mansa Ram, who was impleaded as a respondent in file No.4 of 1996. The said file encapsulated a motion cast under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter in short to be referred as ‘the Act of 1948’), and, was directed against the proceedings drawn under Section 21 (1) of the Act of 1948.

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CWP No.13510 of 1998(O&M) -2-

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In the said misal, Jagat Ram claimed that on verification of his boundaries, he detected that said boundaries were not correctly shown in the record of rights that became prepared by the Consolidation Officer. He supported the said fact by placing on record a field book, musavi and aks shajra . He also contended that on account of the inaccurate reflection of his boundaries in the record of rights and which were in dis-concurrence with the field book, musavi and aks shajra, as became prepared by the Consolidation Officer concerned, thereby emerging a likelihood of some obstructions or interferences over the disputed lands being made at the instance of the respondent in the said misal i.e. one Mansha Ram. On the said motion, the Upper Director, Consolidation, Punjab, Mohali, passed an order whereby he accepted the said petition. Though there is a reference in the opening of the impugned order Annexure P-6, that it had arisen on account of some proceedings becoming launched under Section 21 (1) of the Act of 1948. Nonetheless it appears that since, prima facie, the dispute which arose amongst one Jagat ram and one Mansha Ram only related to some boundary dispute emerging amongst the above, besides related to also there being dis-concurrence inter se the field book, musavi and aks shajra, vis-a-vis the record of rights, which became updated by the Consolidation Officer concerned. Resultantly, the said purported mistake was naturally an arithmetical or a clerical mistake and may have been undone through the exercising of jurisdiction by the Upper Director, Consolidation, Punjab, Mohali, as, thereby no determination would become made, upon, any disputed question of title, nor the said disputed question of title appeared to

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CWP No.13510 of 1998(O&M) -3-

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become generated inter se Jagat Ram and Mansha Ram.

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Be that as it may, the Upper Director, Consolidation, Punjab, Mohali, after making a study of the aks shajra, musavi and field book, as became attached with the petition, proceeded to conclude that there was lack of inter se synchrony inter se the said documents, thus with the measurements, in respect of the disputed passing of lands, as became reflected in the record of rights. In consequence, there was, as revealed by a perusal of the impugned order, an apparent ex facie, lack of compatibility inter se the record of rights with the aks shajra, musavi and field book, thus in respect of there being inter se distinctivity in respect of the measurements of the disputed lands. Therebys, the exercising of jurisdiction by the Upper Director, Consolidation, Punjab, Mohali, on the petition cast before him under Section 42 of the Act of 1948 was a well-exercised jurisdiction and therebys the impugned order is required to be sustained.

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However, in the end, the learned counsel for the petitioners argues that no personal notice of the said petition was delivered to the predecessor-in-interest of the present petitioner, namely one Mansha Ram, who was impleaded as a respondent in the said misal. Consequently, it is argued that the order challenged before this Court is liable to be quashed and set aside, as the same has been passed rather without the predecessor-ininterest of the present petitioners becoming validly served, wherebys a visible breach is caused to the principles of natural justice.

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However, the above made argument before this Court, is not liable to be accepted, as there is not only a reference in the impugned order

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CWP No.13510 of 1998(O&M) -4-

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that despite the serving agent proceeding to make attempts to personal service, upon, the predecessor-in-interest of the present petitioners, but yet rather, the predecessor-in-interest of the present petitioners refusing to accept service. Resultantly, it is mentioned in the impugned order that thereby, the serving agent had affixed the summons on the residential house of the predecessor-in-interest of the present petitioners, whereins, an intimation was made to him about the date as became assigned for hearing becoming made in the petition, thus being 14.12.1996. The effect of the above mentionings in the impugned order, is that, in the predecessor-ininterest of the present petitioners, thus refusing to accept the personal delivery of summons to him, therebys his said refusal did tantamount to his becoming validly served. Moreover, since on account of the predecessor-ininterest of the present petitioners refusing to accept the delivery of personal service to him by the serving agent, which otherwise tantamounted to his becoming validly served, yet as a measure of abundant caution, as becomes spoken in the impugned order, the serving agent resultantly proceeded to affix the summons, on the outer premises of the residential house of the predecessor-in-interest of the present petitioners, whereins, the date of hearing being made on the relevant lis was mentioned as 14.12.1996.

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In consequence, the learned counsel for the petitioners, cannot submit, that there was no delivery of personal service upon the predecessorin-interest of the present petitioners nor can he submit that the predecessorin-interest of the present petitioners was condemned unheard, thus through the making of the impugned Annexure. Though, the learned counsel for the

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CWP No.13510 of 1998(O&M) -5-

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petitioners submits that the said speakings, which occur in Annexure P-6 are not supported by any report of the serving agent. However, the said submission is also liable to be rejected, as there exists on record, the apposite report as made by the serving agent. The relevant portion of the said report becomes extracted hereinafter:-

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“It is respectfully submitted that Mansa Ram was found present in the house but refused to accept service of summons. A copy of the summons has been affixed on the residential house.”

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Lastly, the learned counsel appearing for the petitioners, who are the successors-in-interest of the respondent in the said petition i.e. one Mansha Ram, submits that the procedure adopted by the serving agent, after the predecessor-in-interest of the present petitioners, refusing to accept service, inasmuch as, taking to affix summons in the outer door of the premises of the respondent, is unknown to law. However, even the said submission is not acceptable by this Court, as a reading of the provisions carried in Order V Rule 17 CPC, reveal that upon, the defendant or his agent or such other person refusing to sign the acknowledgment in respect of the serving agent, attempting to cause valid personal service upon each of them, and/or in the event of the serving officer after using all due and reasonable diligence is unable to locate the defendant, and there being no agent empowered to accept the personal service of the summons on his behalf nor any other personal service can be made, thereupon, a discretion becoming vested in the serving officer concerned to fix a copy of the summons on the

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CWP No.13510 of 1998(O&M)

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outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain. Conspicuously since thereby, the serving agent became ordained to subsequently return the original of the summons to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy of the summons. The provisions contained in Order V Rule 17 CPC becomes extracted hereinafter:-

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“17. Procedure when defendant refuses to accept service, or

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cannot be found .—Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address

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CWP No.13510 of 1998(O&M) -7-

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of the person (if any) by whom the house was identified and in whose presence the copy was affixed.”

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Therefore, the effect of the above provision(s) when read in conjunction with speakings supra made in the impugned order, besides when read in conjunction with the report of the serving agent, which becomes extracted supra, is that, the serving agent after attempting to personally deliver the summons to the respondent in the said misal, yet the respondent refusing to accept the summons. Though, the apposite refusal to accept summons tantamounted to the respondent, in the said misal, becoming personally served, but yet as a matter of abundant caution, the serving agent while making adherence to the provisions carried in Order V Rule 17 CPC, wherebys he became vested with the discretion, to paste a copy of the summons on the outer door of the premises of the respondent in the said misal, when did do so, especially in the presence then of the respondent concerned, and with an intimation therein about the next date of hearing to be undertaken in the said lis. Therefore, but naturally the serving agent completely adhered to the provisions relating to the service of summons becoming caused upon the respondent in the said misal.

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The relevant amendments to the said provision(s) carried in Order 5 Rule 17 CPC were made in the year 1977, and, thus were in vogue, when the lis commenced, and that too also much subsequently therefrom. In sequel, since the provisions supra become completely adhered to by the serving agent concerned, thereby thus adherences theretos by the serving agent, rather is valid. Resultantly, given the omission of the respondent

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CWP No.13510 of 1998(O&M) -8-

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concerned to cause his personal appearance on the relevant day, therefore he cannot contend through the present petitioners that he became condemned unheard.

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For all the reasons supra, this Court finds no merit in the writ petition. The instant writ petition is dismissed. Pending applications, if any, also stand disposed of.

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(SURESHWAR THAKUR) JUDGE

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	(LALIT BATRA) JUDGE
MAY 16, 2024
d.gulati
Whether speaking/reasoned	: Yes/No
Whether reportable	: Yes/No

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Saardi Devi and Others v. State of Punjab and Others

Case brief

What is this about?

What the court decided

Saardi Devi and Others v. State of Punjab and Others

Case brief

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