Mohd. Hayat khan (Minor) v. State of U. P. — 1989 DIGILAW 761 (ALL)

JUDGMENT R. A. Sharma, J. 1. Respondents Nos. 2 and 3 Obes Khan and Islam Hamid Khan were the Bhumidhats of plot No. 315 in Mauza Hasanpur, Pargana Gangiri, Tahsil Atrauli, District Aligarh. These two respondents, by registered deed dated 441972, made a gift of about 10 bighas portion of plot No. 315 in favour of mother of the petitioner. Petitioner claims that his mother and after her death the petitioner have been in possession of the northern portion of plot No. 315 from area in pursuance of the giftdeed. 2. In the proceedings initiated under U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the Act), Prescribed Authority determined certain land of respondent No. 2 as surplus. 3. In pursuance of such determination, the Prescribed Authority vide Its order dated 2181979 declared that portion of plot No. 315 which was gifted to the petitioner's mother, as surplus. This order was made on the basis of the consent of respondent No. 2. It appears that in pursuance of order dated 2181979 the area of Declared surplus was allotted to respondents Nos. 3 to 11 4. Petitioner moved an application dated 1931981 before the Prescribed Anthority under Section 13.A of the Act for cancelling/recalling the order declaring the land of the petitioner as surplus and in lieu thereof, declaration of some other land of respondent No. 2 as surplus. This application was rejected by the Prescribed Authority vide its order dated 1521982 on the ground that this application is not maintainable under section 13A of the Act inasmuch as there is no error apparent on the face of the record. Petitioner thereafter filed an appeal before the learned District Judge, Aligarh which has been4ismissed vide order dated 2581982. Learned District Judge has dismissed the appeal on the ground that application of the petitioner is barred by time. Against the aforesaid two orders of the Prescribed Authority and the Appellate Authority the Petitioner has filed this writ petition before this Court. 5. Under Section 5(6) of the Act while determining the ceiling area applicable to a tenureholder, any transfer of land made after 2411971 is to be ignored and is not to be taken into account. Against the aforesaid two orders of the Prescribed Authority and the Appellate Authority the Petitioner has filed this writ petition before this Court. 5. Under Section 5(6) of the Act while determining the ceiling area applicable to a tenureholder, any transfer of land made after 2411971 is to be ignored and is not to be taken into account. As the giftdeed was executed in 1972, therefore, this giftdeed was not liable to be taken into account while determining the ceiling area of respondent No. 2 but by this provision the transfers have not been declared void and only effect of subsection (6) of Section 5 is that these transfers, including the giftdeeds are to be ignored and the surplus area has to be determined without taking into account such transfers but the transfers remain valid and operative between the transferer and the transferee. 6. Section 12A of the Act lays down guidelines for declaring the surplus land for the purpose of taking possession by the State Clause (d) of the proviso of this section provides that where any person holds land in excess of ceiling area including the land which is the subject of any transfer, the surplus land determined shall, as far as possible be land other than the land which is subject of such transfer. In Jogendra Singh v. State, 1983 ALJ 1297 this court had laid down that transfer deed executed after 2411971 cannot be treated as void even if they are ignored under Section 5(6) of the Act. They are ignored for the purposes of calculating the total area of the tenureholder and his surplus land But in view of clause (d) of the proviso to Section 12A, as far as possible land other than the transferred land should be declared as surplus land. This Court Hukum Singh v State of U.P. 1979 ALJ 646 while interPreting Section 12A has laid down that the provisions of Section 12A which conferred the right of making a choice only upon a tenureholder n lust receive a construction which permits a transferee to seek the exclusion of the plots transferred to him from the surplus land of the tenureholder by Pointing out to the authorities under the Act that plots other than those purchased by him are available for inclusion in the surplus area of the tenureholder. It was further laid down by this Court that transferee has a right to be heard by Prescribed Authority before declaring the plots transfer to him as surplus area of the tenureholder. Supreme Court in Kamlesh Kumar v. State of U.P. 1981ALJ 1139 has also laid down that the Prescribed Authority to decide the Surplus land in accordance with Section 12A(d) of the Act. Judgment of the Supreme Court is quoted below: The short point taken by Mr. Ashok Sen in support of the petition is that even assuming that the finding of the Prescribed. Authority that the transfer was not bonafide is correct, the Prescribed Authority was in error in not excluding the land said to have been transferred from the surplus area. The land which was the subject matter of transfer was covered by plot No. 460. The contention is well founded and must prevail. In these circumstances, we set aside the judgment of the High Court and that of the Prescribed Authority and remit the case to the Prescribed Authority to decide the surplus land in accordance with Section 12A(d) of the Act by excluding the area which was the subject of transfer as far as possible. 7. The transferee as such is entitled to an opportunity of being heard before declaring the land transferred to him as surplus and further by virtue of clause (d) of the proviso to Section 12A of the Act as far as possible the land transferred to him is liable to be excluded while declaring the surplus land of the tenureholder. 8. When the order of any court or authority is to affect adversely any person, that person is entitled to a notice or opportunity of being heard. If a decision is taken by an authority in violation of the principle of natural justice the person who has been adversely affected is entitled to make an application before the Authority concerned for recalling that order and passing the order afresh after giving him an opportunity of being heard. Every Court and authority is endowed with ancillary and incidental power to recall its order if passed in violation of the principle of natural justice. Because an order without notice to the parties is a nullity and the authority has not only the power but also the duty to set aside the exparte Order and direct the matter to be heard afresh. Because an order without notice to the parties is a nullity and the authority has not only the power but also the duty to set aside the exparte Order and direct the matter to be heard afresh. The Supreme Court in Grindlays Bank Ltd. v. Central Government Industrial Tribunal and others AIR 1981 SC 606 has again affirmed this proposition. 9. The case set out by the petitioner before the court below was that neither any notice was issued to the petitioner or his Mother nor were they given any opportunity of being heard before declaring their land as surplus. The further case is that they have been in possession in pursuance of the giftdeed and when the possession was sought to be disturbed by the allottee in 1981 they made an application for exclusion of the land transferred to them by gift from the surplus land of respondent No. 2 and for declaration of some other land of respondent No. 2 as surplus which is available for inclusion in the surplus area of respondent No. 2. This plea was rejected by the Prescribed Authority and Appellate Court not on merit but on the ground that application under Section 13A was not maintainable as there is no manifest error apparent on the face of the record and further the application is barred by time. 10. Apart from the fact that the petitioner was not given an opportunity of being heard before declaring his land as surplus, the order of the Prescribed Authority was in violation of clause (d) of proviso to Section 12A. The order of the Prescribed Authority as such suffers from error apparent on the face of the record on account of the fact that order was passed in violation of principle of natural justice and further the order was in violation of clause (d) of proviso to Section 12A of the Act. 11. That apart, even if the application under Section 13A of the Act is not maintainable, the authorities under the Act are entitled to recall the order if passed in violation of principles of natural justice. The view of the Prescribed Authority and the Appellate Court to the effect that the application of the petitioner was not maintainable as such is erroneous and liable to be set aside. 12. The view of the Prescribed Authority and the Appellate Court to the effect that the application of the petitioner was not maintainable as such is erroneous and liable to be set aside. 12. Appellate Authority has rejected the appeal of the petitioner on the ground that application of the petitioner was barred by time. The finding of the appellate Court on the question of limitation are quoted below: Thus, objections were also preferred after the expiry of two years period from the date of notification under Section 14(1), which was inserted in this Act by U.P. Imposition of Ceiling on Land Holdings (II Amendment) Act of 1976 and the amendment was effected in Section 13A by means of U.P. Act No. 18 of 1973. Thus in my opinion, the learned Prescribed Authority had rightly rejected this application under Section 13A of U. P. Act No. 1 of 1961 and the application was not legally maintainable accordingly. 13. Subsection (1) of Section 13A lays down two years' period from the date of notification under subsection (4) of Section 14 rectify any mistake apparent on the face of the record. 14. Subsection (1) of Section 13A of the Act is quoted below1: The Prescribed Authority may at any time, within a period of two years from the date of the notification under subsection (4) of Section 14, rectify any mistake apparent on the face of the record: Provided that no such rectification which has the effect of increasing the surplus land shall be made, unless the Prescribed Authority has given notice to the tenureholder of its intention to do so and has given him a reasonable opportunity of being heard. 15. Two years' period prescribed by subsection (1) of Section 13A is to be counted from the date of notification published in Gazette under subsection (4) of Section 14. Appellate court has erroneously assumed that two years' period is to be counted from the date of notification under subsection (1) of Section 14. The Prescribed Authority passed the order on 2191979, whereby the petitioner's land were declared surplus. Application under Section 13A was made by the petitioner on 1931981. This application was within two years from the date of order. The Prescribed Authority passed the order on 2191979, whereby the petitioner's land were declared surplus. Application under Section 13A was made by the petitioner on 1931981. This application was within two years from the date of order. Publication of the notification under subsection (4) of Section 14 takes years and there is nothing on the record to show as to when the said notification under subsection (4) of Section 14 was published. The application of the petitioner, as such, could not have been dismissed on the ground of limitation. 16. The orders dated 1521982 and 2581982 passed by the Prescribed Authority and appellate court respectively are, as such, set aside. The case is remanded to the Prescribed Authority for deciding petitioner's application afresh in accordance with the principles laid down by clause (d) of the proviso of Section 12A of the Act, after giving opportunity of being heard to the petitioner and respondents including the allottees of the land. Respondent No. 2 has died during the pendency of the writ petition and in his place his heirs have been brought on the record. Notices will be given by the Prescribed Authority to the heirs of respondent No. 2. 17. It appears that respondents who have been allotted the land of the petitioner are in possession of the said land. These allottees shall continue to remain in possession over the land in dispute and their possession shall not be disturbed. In case Prescribed Authority declares some other land of the respondent No. 2 as surplus and thereby excludes the petitioner's land from the area of the surplus land of respondent No. 2, the allottee respondents shall be allotted the land so declared surplus and till the land is allotted to them and they are put in possession, their possession over the land of the petitioner shall not be disturbed. 18. For the reasons given above, the writ petition is allowed. In view of the facts and circumstances of the case there will be no order as to costs.