Ajit Singh Bains, J. - (1.) IN Civil Writ Petitions Nos. 1455 and 1455 of 1967, petitioners are the same but the landlords are different. Similar question of law is involved in both these petitions. Hence, these will be disposed of by this order.
(2.) IT is alleged in the petition that the petitioners were old tenants of the land in dispute since the year 1935 and, that the land in dispute is less than their permissible area. It is further alleged that the proceedings were initiated against the landowners for declaration of their surplus area. The petitioners were not given any notice and the land which included the permissible area of the petitioners was declared as surplus. The petitioners unsuccessfully filled an appeal before the Commissioner and a further revision before the Financial Commissioner. Hence this petition. Return has been filed on behalf of the respondents. No, notice of the surplus are a proceedings was ever issued to the petitioners' father who was then alive or to the petitioners later on as enjoined by rule 6 (3) of the Punjab Security of Land Tenures Rules, 1956, Proceedings continued at the back of the petitioners' father and without his knowledge. It is settled by this Court in Ghamandi Ram v. Financial Commissioner, Planning Punjab, 1965 L.L.T. 31 Shrimati Pari and another v. State of Punjab, (1966) 68 P.L.R. 844 and Khushinder Singh and another v. Goodyear India Ltd., : A.I.R. 1971 P&H. 38 that notice relating to proceedings for assessment of surplus area must be served on all the persons concerned and in the absence of such a notice, the proceedings suffer from infirmity. Such a defect cannot be deemed have been cured even if the affected party is heard in appeal. The petitioners were the interested parties as they have alleged to be the tenants on the land in dispute, and the notice as required by rule 6 of the Punjab Security of Land Tenures Rules in such cases was indispensable.
(3.) MR . Wasu the learned counsel for the landowner -respondent raised a preliminary objection that the petitions are not competent as the Commissioner who was a necessary Party is not made a party in the present proceedings no doubt the commissioner is not made a party in the present case, but the Financial Commissioner and the State through the Collector are made a party. Mr. Wasu placed reliance on Naziruddin Sirajuddin v. P.S. Lawale, A.I.R. 1556 Nag. 65, and Laxmi Kumari Devi v. Radhakisan Mataram Marwadi and others, 1961 M.P.L.J. 1403. These authorities, no doubt, support the contention of Mr. Wasu, but a contrary view had been taken in Hafiz Mohammad yusuf v. The Custodian General, Evancuce Properties, New Delhi : A.I.R. 1954 All 433, where it has been held that the order of the Assistant Custodian merges in the order passed by the Custodian General. Since the petitioners have impleaded the Financial Commissioner, and the State through Collector, I am not inclined to agree with the preliminary objection raised by the learned counsel for the land owner -respondent. Reliance was also placed by Mr. Wasu on Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar : A.I.R. 1963 S.C. 786 but thy point involved herein was not directly involved in the aforementioned authority of the Supreme Court where private party was not made a party and in that situation it was held by the Supreme Court that since the private party in whose favour the order of the tribunal was passed was a necessary party in writ was not competent.;