Rajive Bhalla, J.
1. Prayer in this writ petition filed under Articles 226/227 of the Constitution of India by the petitioner is for the issuance of a writ in the nature of Certiorari for quashing the orders dated 6.7.1984 (Annexure P-1), 22.8.1986 (Annexure P-3) and 23.6.1987 (Annexure P-4) passed by the Collector Surplus Area, Sirsa, the Commissioner, Hisar Division, Hisar and the Financial Commissioner, Haryana respectively.
2. The petitioner claims the status of a tenant over land measuring 10 Kanals 13 Marias comprised in Rect. No. 113, Killa No. 18/2 (2-13) and 23(8-00) situated in Village Nanuana, Tehsil and District, Sirsa, under the big land owner respondent No. 5. Prior to 1947 and upto Rabi 1967, the afore mentioned land was in the possession of one Bhanwar Singh as a tenant. From Kharif 1967, the petitioner claims to have been inducted as a tenant by the big land owner and claims to be in possession, as such till date.
3. Pursuant to proceedings, initiated under the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as 'the 1953 Act'), the Collector vide order dated 22.1.1962 determined the permissible/surplus area belonging to the big land owner-respondent No. 5.
4. An appeal filed against this order, before the Commissioner, Hisar Division, Hisar was successful and the case was remanded to the Collector, Surplus Area vide order dated 29.8.1963. The Collector determined the surplus area afresh vide order dated 30.6.1983 once again remanded the matter to the Collector, Surplus Area, with a specific direction to decide the case afresh, after granting full opportunity of hearing to the landowner, as also to all tenants and vendees.
5. After remand, the surplus area case of respondent No. 5 was decided vide order dated 6.7.1984 (Annexure P-1). The land, compromising the alleged tenancy of the petitioner was declared surplus.
6. Aggrieved by the order Annexure P-1, vide which land comprised in the petitioner's tenancy was declared surplus, the petitioner preferred an appeal, before the Commissioner, Hisar Division, Hisar, claiming therein that the order Annexure P-1 was void, qua his rights as a tenant, as no notice had been issued or served upon him during the course of proceedings which culminated in the order Annexure P-1. The petitioner also asserted his right to have the land comprised in his tenancy, reserved as tenants permissible area in accordance with the right conferred upon a tenant under the provisions of the 1953 Act. Vide order dated 22.8.1986, the Commissioner dismissed the appeal, holding that as land belonging to the land owner was situated in several villages with numerous vendees and tenants, service was effected by proclamation. Therefore, the petitioner would be deemed to have been served. On merits, the petitioner's claim for declaration of the land, comprised in his tenancy as tenants permissible area was rejected on the ground that the petitioner was not a tenant on 15.4.1953 having been induced as a tenant with effect from Kharif 1967.
7. Dis-satisfied with the afore mentioned order, the petitioner preferred a revision before the Financial Commissioner, Haryana. The said revision was dismissed.
8. Before proceeding to notice the respective contentions of the parties, it would be appropriate to mention here that despite the pendency of this 'writ petition since 1987, the official respondents, have failed to file a response to a writ petition whether by way of a reply or by way of an affidavit. During the course of arguments, the official respondents also failed to produce any record, despite being conscious of the fact that in proceedings for the issuance of a writ of Certiorari, the respondents are obliged to make available to the Court, as and when required all the relevant record.
9. Counsel for the petitioner, assails the impugned orders dated 6.7.1984 (Annexure P-1), 22.8.1986 (Annexure P-3) and 23.6.1987 (Annexure P-4) primarily on three grounds :-
a) The petitioner, admittedly being a tenant was required to be served with a notice of the pendency of the proceedings for declaring surplus, land owned by his landlord (the big land owner);
b) As no notice was ever served upon the petitioner, the proceedings vis-a-vis the land comprised in the petitioner's tenancy were null and void being violative of the principles of natural justice as also the provisions of the Act & Rules;
c) The petitioner's claim for declaring the land, comprised in his tenancy as tenants permissible area could not have been declined on the plea that he was not a tenant on the appointed day namely 15.4.1953.
10. In order to substantiate the first point, counsel for the petitioner contends that under the 1953 Act, a tenant is entitled to reserve land comprised in his tenancy as his permissible area, subject to the limit prescribed under the Act. Before proceeding to finally adjudicate the permissible/surplus area, the Collector is required to serve a notice upon every person described as a tenant in the revenue record, as required under Rule 6 of the Punjab Security of Land Tenures Rules, 1956 (hereinafter referred to as 'the 1956 Rules'). The petitioner was recorded in the revenue records as a tenant, with effect from Kharif 1967 and, therefore, failure of the Collector to serve a notice upon the petitioner, informing him of the pendency of the proceedings to declare surplus, land belonging to the land owner, renders the impugned order void.
11. In so far as the second point is concerned, counsel for the petitioner contends that no notice whatsoever of the pendency of the surplus area proceedings was ever issued to or served upon the petitioner. This fact is sought to be fortified by the interim orders passed by the Collector during the pendency of the surplus area case, which orders are reproduced in para 10 (vii) of the writ petition. These orders do not specify the mode and manner of issuance of summons or the fate thereof.
12. Learned counsel for the petitioner further, argues that the findings recorded by the learned Commissioner and the Financial Commissioner regarding service by proclamation, are belied by the interim orders passed by the Collector.
13. In support of the third point, counsel for the petitioner contends that the learned Commissioner and the Financial Commissioner erred in holding that the petitioner was not entitled to tenants permissible area, as he was not in possession as a tenant from 15.4.1953. In Nanak Chand v. The Financial Commissioner, Haryana and Ors., 1981 P.L.J. 99, State of Punjab (now Haryana) and Ors. v. Amar Singh and Anr., 1974 P.L.J. 74, Bahadur Ram v. State of Punjab and Anr., 1967 P.L.J. 38, while dealing with this controversy, it has been held that the only condition required, of a tenant to successfully maintain a claim for tenants permissible area is that land which comprises his tenancy must have remained under the occupation of 'a tenant' continuously from 15.4.1953. The change of tenants would be irrelevant for the purpose of declaration of tenants permissible area. The last of the tenants, namely the tenant in possession when the surplus area case is under consideration, would be entitled to stake a claim for tenants permissible area. Such a tenant is not required to establish his individual tenancy on the appointed day i.e. 15.4.1953. As the petitioner was a tenant and the land had been in the continuous occupation of 'a tenant' since 15.4.1953, the petitioner's claim could not have been rejected.
14. Counsel for the official respondents on the other hand contends that the petitioner has not placed any material on record to substantiate his plea that he was not served personally or by proclamation. As recorded in the orders of the learned Commissioner/Collector, the petitioner was duly served. There is no reason to doubt the correctness of the findings recorded by the revenue officers. It is further contended that the grant of hearing to the petitioner would be an exercise in futility as the petitioner has no right to claim tenants permissible area. The petitioner was not a tenant on the appointed day namely 15.4.1953. The revenue authorities, thus, rightly dismissed his appeal and revision.
15. I have heard Seamed counsel for the parties, perused the pleadings as also the impugned orders.
16. The Act, prescribes two permissible area, one reserved by the landlord called the landlords permissible area and the other reserved by a tenant called the tenants permissible area. These permissible areas are distinct and separate from surplus area. The Act, confers a valuable right upon a tenant to stake a claim that the land comprised in his tenancy be declared as his permissible area. To enable a tenant to effectively put forth such a right, the Collector, seized of the surplus area proceedings, is statutorily required to serve a notice, upon a tenant, as required in Rule 6 of the 1956 Rules. Upon receipt of such a notice, the tenant is entitled to put forth his claim/objections. A tenancy by its very nature vests civil rights in a tenant, which rights are integrally linked to the land and entitle a tenant to enjoy its usufruct. These rights cannot be abridged or violated save and in accordance with the procedure prescribed by law. Statutory enactments providing for agrarian reforms, which by their very nature tend to divest title, are no exception to the principle of audi alteram partem, A combined reading of the provisions of the Act and Rule 6 of the Rules, makes it abundantly clear that surplus area proceedings, finalised without issuance of a notice to a tenant would be void vis-a-vis the rights of a tenant being violative of the provisions of the Act and the principles of natural justice.
17. The petitioner was inducted as a tenant from the harvest of Kharif 1967 and continues to occupy the land as such. While proceedings to declare surplus area, the. Collector was statutorily/mandatorily required to issue a notice to the petitioner, informing him of the pendency of the surplus area proceedings. As noticed in the narration of facts, the Commissioner, Hissar Division, Hisar vide his order dated 9.5.1983, remanded the case to the Collector, with a specific direction that while deciding the case afresh, full opportunity of hearing be granted to the owner as also to all the tenants and vendees. Consequently before proceeding to adjudicate the matter the Collector was mandatorily/statutorily required to serve a notice, upon the petitioner.
18. Once it has been held that the petitioner was required to be served with a notice, the next point that merits consideration is whether the petitioner, as has been held by the Commissioner and the Financial Commissioner was actually served in the impugned proceedings. The Collector, passed the following interim orders on 9.6.1983 and 16.1.1984:-
State v. Seth Nand Lal
'Today the case has come up before me on remand from the Deputy Commissioner. Now the case be put up after summoning the parties concerned for 27.6.1983.
Sd/- Collector S.A.
9.6.1983
Present: Counsel for the parties as before. Chhant from the record has been produced. File be put up after summoning all the concerned persons on 14.2.1984.
Sd/- Collector S.A.
16.1.1984'
19. A perusal thereof reveals that the Collector vide order dated 9.6.1983 directed the concerned parties to be summoned for 27.6.1983. The said order does not specify the mode of manner, in which the parties concerned were to be summoned whether by personal notices or by proclamation. The orders that follow, which are reproduced in the writ petition, make no reference to the fate of the service i.e. whether the summons were received, refused or served. There is no order directing service by proclamation or reference to any report evidencing service by proclamation upon any one, much less the petitioner.
20. The second order, which summons 'all the concerned persons' also suffers from the same infirmity.
21. Rule 6(7) of the Punjab Security of Land Tenures Rules, 1956 (hereinafter referred to as 'the '1956 Rules) prescribes the procedure for service of notice in Form F. The said Rule further postulates that the notice shall be served as if it were a summon Under Section 90 of the Punjab Tenancy Act, 1887. Section 90 Sub-section (1) requires that summons issued by a Revenue Officer shall, if practicable, be served (a) personally on the person to whom it is addressed; (b) his recognised agent (c) an adult male member of the family who is residing with him. Section 90(2) provides that if service cannot be made, or if acceptance of service so made is refused, the summons may be served by pasting a copy thereof at the usual or last known place of the residence. Sub-section (3) empowers a Revenue Officer to serve by proclamation in case the persons interested are so numerous that personal service on all of them is not reasonably practicable.
22. A perusal of the interim orders, the correctness whereof has not been denied by the respondents, leaves no manner of doubt that no summon/notice was ever issued or served upon the petitioner in accordance with the procedure detailed above.
23. The learned Commissioner and the Financial Commissioner have, however, held that the petitioner was served by proclamation. These findings have not been substantiated or supported by reference to any order directing service by proclamation or any report submitted by the process serving agency of the Collector, evidencing service by proclamation upon the petitioner. As noticed in the earlier part of the judgment, the respondents have failed to produce any record in support of these findings. Consequently, I have no option but to hold that service was never effected upon the petitioner whether personally or by proclamation and consequently, the Commissioner and the Financial Commissioner have incorrectly held that the petitioner was served by proclamation.
24. The last point urged by counsel for the petitioner, namely, that the petitioner was entitled to a tenants permissible area also merits acceptance. There is no warrant for the proposition, as held by the learned Commissioner and the Financial Commissioner that only such a tenant is entitled to a tenants permissible area as was a sitting tenant on 15.4.1953. This controversy is squarely covered by judgments of this Court reported as Nanak Chand v. The Financial Commissioner, Haryana and Ors., 1981 P.L.J. 99, State of Punjab (now Haryana) and Ors. v. Amar Singh and Anr., 1974 P.L.J. 74, Bahadur Ram v. State of Punjab and Ors., 1969 P.L.J. 372 and Amar Singh v. State of Punjab and Anr., 1967 P.L.J. 38.
25. A perusal of the statutory provisions as also the aforementioned judicial pronouncements leave no manner of doubt that for a tenant to successfully put forth a claim for reservation of a tenants permissible area, he is required to establish (a) that from 15.4.1953 upto the consideration of the surplus area case, the land which he seeks to reserve as his permissible area, remained in the continuous occupation of 'a tenant' (b) he was a tenant on the land, at the time the land was sought to be declared surplus. The tenant is, thus, not required to establish that he was in possession, on 15.4.1953. The change of tenants during the interregnum would be immaterial. Neither the statute not the judicial pronouncements referred to above support the contention of the counsel for the respondents that only such a tenant as was in possession on 15.4.1953 would be entitled to reserve tenants permissible area. If that were true, a tenant, inducted after 15.4.1953 would be deprived of his tenancy by the landlord by seeking ejectment upon declaration of surplus area. This could and is obviously not the object of an Act, enacted as a measure of agrarian reform.
26. Thus the Commissioner and the Financial Commissioner arrived at an erroneous conclusion of law contrary to the law as enunciated by judicial precedent.
27. In view of what has been held herein before, the petitioner was a tenant, on the land, which has been declared surplus and was, therefore, statutorily and mandatory required to be served with a notice, of the pendency of the proceedings to declare surplus land belonging to his landlord, which included the land comprised in his tenancy. As no notice was ever served upon the petitioner, the order Annexure P-1 dated 6.7.1984 is set aside in so far as and to the extent it effects the rights of the petitioner. The matter stands remanded to the Collector, to adjudicate the petitioner's claim in accordance with law. The present order shall not be construed to set aside the order Annexure P-1 in so far as the declaration of the permissible/surplus area of the big land owner-respondent No. 5, except and only in so far as is indicated above.
28. In view of what has been stated above, the Orders Annexures P-3 and P-4 are also set aside. The present writ petition is allowed in the afore mentioned terms with no order as to costs.
29. The parties are directed to appear before the Collector on 11.7.2005 who shall adjudicate their claims afresh and in accordance with law, preferably within a period of six months.