- (1.) By an order dated 18th of July, 1960, of the Collector (Surplus Area), Bhiwani, an area of 60 standard acres and 2 units of the land out of the holding of the appellants' father Sheo Chand was declared surplus under the Punjab Security of Land Tenures Act 1956. The appellants Hira Nand, Ram Dhan and Ram Karan, claiming to be in cultivating possession of the land applied for review of this order, complaining that the order had been passed without hearing them. This application was, however, rejected on the 11th of June, 1963, because of the delay in making it and the failure of the appellants' father to disclose in his statement that they were cultivating the land as his tenants. In revision against this order dated the 11th of June, 1963, the Commissioner, Ambala Division, Ambala, finding that the petitioners' claim was supported by the Khasra Girdawaris, made a recommendation to the Financial Commissioner that the case be reopened and the appellants be heard. The learned Financial Commissioner while recognising that the appellants had a legitimate grievance, however, refused to interfere observing as follows :- "A revision petition in such circumstances, would as a rule deserve to be accepted but it appears that in the present case such a course of action would not be warranted. The reason is that the claim of the petitioners, to have held the land as tenants since April, 1953, is clearly untenable as it is contradicted by the statement of their father, the landowner. He stated before the Circle Revenue Officer on the 26th April, 1960, that only one of the sons (Ram Dhan) was a tenant (alongwith one Lachmi Narain) and furthermore that he had been on the land for 6 years, that is from April, 1954, onwards".
(2.) Attacking the legality of this order the appellants approached this Court under Articles 226 and 227 of the Constitution. A learned Single Judge of this Court has, however, refused to interfere, observing that in view of the statement that the appellants' own father Sheo Chand had made in the course of the proceedings the Financial Commissioner had not found any merit in the appellants' plea and it was not a fit case for exercise of the extraordinary jurisdiction vested in this Court under Articles 226 and 227 of the Constitution. It is against this order that Hira Nand and his brothers have preferred this appeal under clause 10 of the Letters Patent.
(3.) After hearing the parties' counsel, we find that the appeal must succeed. The appellants claimed to be in cultivating possession of the land as tenants and even according to the finding of the Revenue Authorities themselves they are recorded as such in the various Khasra Girdawaries. A Division Bench of this Court has ruled in Hardev Singh and others v. The State of Punjab and others, 1970 1 ILR(P&H) 411, that a notice under Rule 6(3) of the Punjab Security of Land Tenures Rules, 1956, to persons likely to be prejudicially affected is mandatory and if no such notice is issued, the entire proceedings for determining surplus area of the original landowner are vitiated. Admittedly, in the case before us the appellants were never served with any notice and they had no opportunity to place their case before the authorities concerned. The observation of the learned Financial Commissioner that the statement made by the father in the course of proceedings did not advance the appellants' case does not alter the position or disentitle them to notice in view of the following observations made in Hardev Singh's case : "The want of such a notice cannot be dispensed with or ignored on the mere ground that particular transferees or tenants who may otherwise be deemed to be the persons interested in the proceedings have really no good defence to the proposed order." In fact, quite recently a Full Bench of this Court in Harnek Singh and others v. State of Punjab and others, L.P.A. 124 of 1967, decided on 25th of August, 1971, even while dealing with a case under the Pepsu Tenancy and Agricultural Lands Act, 1955, wherein there is no provision similar to Rule 6 of the Punjab Security of Land Tenures Rules, 1956, has ruled that notice to tenants, transferees and other persons interested is necessary before land is declared surplus in proceedings relating to determination of surplus area.;