P L D 1960 (W (PLP)

This notice was admittedly not served on the petitioner himself. The report of the process‑server stated that the notice was served upon one Muhammad, son of Allah Dad, an alleged tenant of the petitioner. On the 21st of February 1955, which was the date fixed for the appearance of the petitioner, the Colonization Officer passed the following order :‑ "Nobody is present. Notice under section 24 of the Colonization Act has been received after service which has been served on Muhammad, son of Allah Dad, tenant of the grantee which shows that the grantee is not living in the Chak. Consequently the grant is resumed."

6. As already stated, an appeal against the order of resump tion was dismissed in limine as time‑barred. In the revision presented to the Member, Board of Revenue, it was urged that notice had not been served on the petitioner but on an alleged tenant, and that such service was not valid in law, keeping in view the provisions of section 20 of the Land Revenue Act which prescribes the method of service of summons. The learned Member, Board of Revenue, was of the opinion that the `summons' mentioned in section 20 of the Punjab Land Revenue Act was something different from the notice which is required by section 24 of the Colonization of Government Lands Act and, therefore, service of a notice need not be in accordance with section 20: He said, "The word `summons' used in section 20 of the Punjab Land Revenue Act is different from the word `notice used in section 24 of the Colonization of Government Lands (Punjab) Act, 1912. A summons essentially requires‑the presence of a person in a Court. A notice, on the other hand, does not essentially require the presence of the person to whom it is issued. It gives an option of appearing or not appearing. In any case, a notice relating to a colony grant is better served by handing over to the tenant of the grantee than being posted on a tree standing on the grant."

7. The first point to consider in this petition is whether there has been proper notice as required by section 24 of the Colonization of Lands Act. Before proceeding further it will be convenient to reproduce section 24 :‑

"Power of imposing penalties for breaches of conditions.‑‑When the Collector is satisfied that a tenant in possession of land has committed a breach of the conditions of his tenancy, he may, after giving the tenant an opportunity to appear and state his objections‑ (a) impose on the tenant a penalty not exceeding one hundred rupees, or (b) order the resumption of the tenancy Provided that if the breach is capable of rectification, the Collector shall not impose any penalty or order the resumption of the tenancy unless be has issued a written notice requiring the tenant to rectify the breach within a reasonable time, not being less than one month, to be stated in the notice and the tenant has failed to comply with such notice." This makes the service of notice on the person proceeded against a condition precedent for passing an order of resumption. According to section 7 of the Punjab Colonization of Government Lands Act, the Punjab Land Revenue Act, and Chapter VII of the Punjab Tenancy Act and rules made thereunder, apply to all proceedings under the Punjab Colonization of Government Lands Act. Section 20 of the Land Revenue Act prescribes the method by which a summons is to be served. It runs :‑

"Mode of service of summons.‑(1) A summons issued by a Revenue Officer shall, if practicable, be served (a) personally on the person to whom it is addressed, or, failing him on (b) his recognized agent, or (c) an adult male member of his family usually residing with him. "(2) If service cannot be so made, or if acceptance of service so made is refused, the summons may be served by posting a copy thereof at the usual or last known place of residence of the person to whom it is addressed, or, if that person does not reside in the district in which the Revenue Officer is employed and the case to which the summons relates has reference to land in that district then by posting a copy of the summons on some conspicuous place in or near the estate wherein the land is situate. "(3) If the summons relates to a case in which persons having the same interest are so numerous that personal service on all of them is not reasonably practicable it may, if the Revenue Officer so directs, be served by delivery of a copy thereof to such of those persons as the Revenue Officer nominates in this behalf and by proclamation of the contents thereof for the information of the other persons interested. "(4) A summons may, if the Revenue Officer so directs, be served on the person named therein, either in addition to, or in substitution for, any other mode of . service, forwarding the summons by post in a letter addressed to the person and registered under Part III of the Indian Post Office Act, 1866. "(5) When a summons is so forwarded in a letter and it is proved that the letter was properly addressed and duly posted and registered, the Revenue Officer may presume that the summons was served at the time when the letter would be delivered in the ordinary course of post." This section does not provide for service of notice on a tenant. The learned Member of the Board of Revenue made a distinction between a summons and a notice. It is not necessary to discuss, whether really a distinction exists, because section 21 of the Land Revenue Act provides that notices are to be served in the same manner as summons. It runs:‑

"Mode of service of notice, order or proclamation or copy thereof.‑A notice, order or proclamation, or copy of any such document, issued by a Revenue Officer for service on any person shall be served in the manner provided in the last , foregoing section for the service of a summons." This section appears not to have been brought td the notice of the learned Member, Board of Revenue. It is abundantly clear that there was no service of notice in the present case in accordance with law. We should state here, though it is not necessary to do so for pronouncing service' to be invalid, that according to the statement of the petitioner, Muhammad, son of Allah Dad, was not his tenant at all and this statement, which is supported by production of the khasra girdawari, was not controverted by learned counsel who appeared for the State. We may also point out that even on general principles it would not be correct to accept the service of a notice on a tenant as valid service upon a party. The tenant may very well have an interest adverse to the party in respect of the resumption of the grant. He may stand to gain by the resumption of the grant of the party.

8. There is one more reason why on account of absence the grant should not have been resumed in the present case. Section 12 of the Colonization of Lands Act provides that any condition included in any statement of conditions which imposes an obligation of residence should not be deemed to have been infringed by reason only of the temporary absence of a tenant who has established a permanent residence in the estate in which his holding is situated. Here the petitioner had admittedly built a residential house and had been living in the village for about fifteen years. The report of the Patwari only stated that he had gone to his previous residence seven or eight days before. This report had been made on the 3rd of January 1955 and on the 21st of February 1‑955 even the order of resumption had been passed. There was no material before the Colonization Officer for coming to a conclusion that the petitioner's absence was not of a temporary character. Section 12 of the Colonization of Lands Act also appears not to have been brought to the notice of the Colonization Officer or the Member, Board of Revenue.

9. The second of the main two contentions of the petitioner also has force. By the proviso to section 24, an opportunity has to be given to the tenant to rectify the breach of condition. A question may arise as to whether the absence of the tenant is a violation which is capable of rectification. The answer to this question, particularly when we consider the attitude of the Colonization authority, should be in the affirmative. If a person be absent, he can rectify the breach by taking up permanent residence in the village. The notice which was sent by the Colonization Officer in the present case recognized the fact that this was a violation of which a rectification was possible, and in fact the notice had called upon the petitioner to complete the condition.

10. This writ petition is accepted, the orders of the Member, Board of Revenue, and of the Colonization Officer are quashed and a mandamus is issued to the respondent with a direction that the petitioner be treated as a tenant whose grant has not been resumed. There is no order as to costs. K. B. A. Petition accepted.