1985 PLP 559 (MLD)

This civil revision under section 115, C.P.C. arises out of a suit filed by the petitioners for a declaration that the order dated 11-5-1972 passed by the Divisional Canal Officer, Distribution Division West Lyallpur, under sections 17 and 28 of the Soil Reclamation Act of 1952 was illegal and ineffective against the rights of the plaintiffs. The suit was decreed by the trial Court vide judgment and decree dated 2-10-1978. On appeal of the respondents the judgment was reversed and the suit of the plaintiffs/ petitioners was dismissed vide judgment and decree dated, 2nd February, 1980.

2. In this revision petition setting aside of the decree of the appellate Court and restoration of the decree passed by the trial Court is sought on the ground that the impugned order of the Divisional Canal Officer was illegal and without jurisdiction as the same was passed without properly serving the notice of the said proceedings. It was argued that after the report of the Patwari D.W.1 (the process server) that the petitioners have refused to accept notice, the petitioners should have been served through registered post. Learned counsel for the petitioners further argued that there is a lacuna in section 54 of the Punjab Soil Reclamation Act, 1952, as it does not provide for the Situation where a party refuses to receive notice personally or sent through registered post. According to him in case of refusal the service is to be repeated in one of the manners provided by section 54 as the process has to be served either personally or by sending it through registered post. On the above premises it was argued that the impugned order as was passed without serving the notice in accordance with the provisions of section 54 of the Act was nothing but a nullity in law. it was added that the impugned order was also violative of the principle of natural justice as no one can be condemned unheard. There is not merit in these submissions. It is apparent from the impugned judgment of the learned District Judge that the notice Exh.P.l was served on 17 out of the 27 share-holders listed therein. It was reported by the process server, Patwari D.W.1, that the remaining 10 share-holders have refused to receive the notices. The petitioners are the ones who had refused the service. Besides serving the notice of the application in the aforesaid manner, notice was affixed on a conspicuous place in the village and proclamation by beat of drum was also made. The refusal of service as reported by the process server is not being disputed. The plea taken in fact is that despite the reported refusal the notice should have been ordered to be served by one of the modes given in section 54 of the Punjab Soil Reclamation Act, 1952. Firstly the service is complete when the notice is refused by the person to A whom it is addressed. Secondly the proclamation made by beat of drum and affixation of notice on the conspicuous place in the village would in the circumstances be sufficient service of the notice as these modes have also been provided in section 54 of the said Act. It will, therefore, be seen that there was no violation either of section 54 of the Act or of the principle of natural justice. Admittedly 17 share-holders accepted notice and the share-holders who choose to appear and join the proceedings were also heard by the Divisional Canal Officer. Moreover, there is no lacuna in section 54 as where the process issued is refused the service of the notice and knowledge of the proceedings, is presumed. No justifiable exception can be taken to the finding of the learned District Judge that the service effected was valid and proper. No other point was argued.

3. The result of the above discussion is that the revision petition is without merit and the same is, therefore, dismissed. The parties are left to bear their own costs. A . A . Revision dismissed.