1986 PLP 1026 (CLC)

‑‑‑Art. 199‑‑Constitutional jurisdiction, exercise of‑‑Mode of service being not in consonance with requirements of law and person proceeded against having been condemned unheard, High Court in exercise of constitutional jurisdiction remanded case to Authority with direction that same may be disposed of afresh in accordance with law. Munir Ahmad for Petitioner. Sh. Abdul Aziz for Respondents Nos. 2 to

6. Date of hearing: 13th January, 1986. By an ex parte order, dated 26‑6‑1985, a revision petition filed by the respondents against Karim Nawaz petitioner, from the order, dated 10‑5‑1983 passed by the Additional Commissioner, Gujranwala, was accepted by the learned Member, Board of Revenue and the case sent back to the Assistant Collector Grade‑I, for fresh decision in accordance with law. The petitioner preferred a review petition on the ground that he, was, neither served nor heard, but it was dismissed on 13‑8‑1985. These orders have been assailed in this writ petition.

2. The sole point urged on behalf of the petitioner, is, that no notice, in accordance with law, was issued to him; he was never served and thus, under the ex parte order, he was condemned unheard. It is farther contended that the order passed in the revision petition being wholly illegal, the learned Member, Board of Revenue failed to exercise the jurisdiction lawfully vested in him, in declining to set aside the ex parte order aforesaid.

3. To evaluate these submissions, I have examined the record of the revision. From its perusal it transpires that on 14‑12‑1983, when the case came up for hearing before the learned Member, Board of Revenue, he ordered that notices be issued for 10‑4‑1984. Though, in the proceedings recorded on 10‑4‑1984, it is mentioned that the petitioner could not be served and that a notice by registered post A.D. be issued to him, but there is nothing on the file to show that the order, dated 10‑4‑1984 was complied with and a notice through the process serving agency or otherwise sent to the petitioner. However, there is a postal envelope on the record, which bears the postman's endorsement to the effect [Ghar chor kar chalay ghay hain.]. On 29‑1‑1985, the learned Member passed an order requiring the respondents to file an affidavit that the petitioner's address was correct. They were further directed to deposit the necessary expenses for the petitioner's service through publication in some newspaper. It was in pursuance of this order that publication in daily "Nawa‑i‑Waqt" was made for 29‑5‑1985 and as the petitioner did not enter appearance on that date, he was proceeded against parte.

4. The mode of service is provided in section 24 of the Land Revenue Act, which ordains that if practicable, summons should be served personally on the person to whom it is addressed. Thus, before resorting to service by post an effort should have been made to serve the petitioner personally through the process‑serving agency. But, as already observed, the file does not indicate that such an effort was made. Accordingly, I am of the view, that issue of notice by post and the subsequent service by proclamation do not satisfy the requirement of law. The petitioner's learned counsel is thus, justified in contending that he was condemned unheard.

5. On behalf of the respondents, a vain endeavour has beer made for sustenance of the impugned order and to support service through publication. In this respect, in the first instance, their learned counsel submitted that service of notice through the process serving agency was not necessary. But, in the alternate he came forth with the argument that in view of the report of the postman, that the petitioner had left his house, sending of notice through process serving agency would have been an exercise in futility.

6. I am unable to agree with this argument. The line of reasoning adopted by the learned counsel for the respondents is entirely suggestive of the inference that notice through process serving agency was not issued to the petitioner. Upon the attending circumstances of the case after perusal of section 24, I feel that it was obligatory for the Revisional authority to have in the first instance made an effort to serve the petitioner personally through the process serving agency. As a matter of fact, to the same effect, is the learned Member's order, dated 4‑7‑1983 followed by order, dated 10‑4‑1984. But, as already observed no attempt in this behalf was made. Substituted service is called for only when after due diligence by the process serving official, the person, to whom the notice is addressed; cannot be found, and there is no agent or adult member of his family, to accept notice, or, he refuses service; but such a situation does not obtain in this case. I am, therefore, constrained to hold that the petitioner was not served, as required by law and thus, the ex parte order cannot be maintained.

7. For the foregoing reasons, this writ petition is accepted with costs, the impugned orders are set aside and the case remanded back to the learned Member, Board of Revenue with the direction that the respondents' revision petition shall be treated as pending and disposed of afresh in accordance with law, after hearing the petitioner. The parties shall appear before him on 12‑2‑1986. A . A . Petition accepted.