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2015 DIGILAW 430 (UTT)

PADMA KUMAR DEVI v. STATE OF UTTARAKHAND

2015-09-08

U.C.DHYANI

body2015
JUDGMENT : U.C. Dhyani, J. (Oral) 1. By means of present writ petition, the petitioner has prayed for issuance of a writ, order or direction in the nature of certiorari for quashing the order dated 11.06.2015 passed by learned Prescribed Authority (Village Ceiling) Mauza Raipur, Dehradun in Case No. 5/2005-06 State vs. Padma Kumari, whereby the learned Prescribed Authority has allowed the injunction application ex parte, filed on behalf of the respondent State on the same day without granting any opportunity of hearing to the petitioner. 2. The genesis of present writ petition, according to the petitioner, is traceable from the fact that a land ceiling case bearing no. 5/2005-06 was instituted against the petitioner on the reference of Naib Tehsildar, Village Ceiling, Dehradun under the provision of U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the Act of 1960). Notices were issued to the petitioner, petitioner filed her objections. The case is pending adjudication before learned Prescribed Authority, Dehradun. The petitioner is diligently contesting the matter. However the matter was being continuously adjourned because of the prescribed authority being busy in administrative work. However, suddenly, on 11.06.2015 the learned ADGC filed a vague application that the petitioner be restrained from selling and changing the nature of the property during pendency of the proceedings. The learned Prescribed Authority, on the same day, made an endorsement on the application as “allowed / KOF”. Further, in the order-sheet, a separate order was passed holding therein that the petitioner is not appearing in the case for many dates, learned ADGC has filed an application for grant of injunction which is allowed in the interest of justice and the order was endorsed in the khatauni. The application, on which the order passed, was never served upon the petitioner. The order was passed on the same day without granting any opportunity of hearing to the petitioner. No reasons for grant of injunction have been assigned in the order. The Act of 1960 does not clothe the Prescribed Authority with the power/jurisdiction to pass such an order. Hence the present writ petition. 3. The main grounds taken in the writ petition are as follows: (i) The order dated 11.06.2015 has been passed without granting any opportunity of hearing to the petitioner and the same is against the principal of natural justice. Hence the present writ petition. 3. The main grounds taken in the writ petition are as follows: (i) The order dated 11.06.2015 has been passed without granting any opportunity of hearing to the petitioner and the same is against the principal of natural justice. (ii) The learned prescribed authority has not recorded any reason for grant of injunction. Injunction cannot be granted by a non speaking order as has been done by the prescribed authority. (iii) The learned prescribed authority while passing the order dated 11.06.2015 held that the petitioner/opposite party is not appearing for last many dates and thereafter passed the impugned order. The said finding is firstly against the record as for past many dates the prescribed authority itself was not available and secondly for such alleged past absence, no order on a fresh application without grant of opportunity of hearing could have been passed by the learned prescribed authority and alleged previous conduct is immaterial for deciding a fresh application. 4. After hearing learned counsel for the parties and having gone through the impugned order, this Court is of the view that since the order under challenge was passed without affording any opportunity of hearing to the petitioner, therefore the same cannot sustain. 5. Sub-Section (6) of Section 5 of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 provides as under: “In determining the ceiling area applicable to a tenure-holder, any transfer of land made after the twenty-fourth day of January, 1971, which but for the transfer would have been declared surplus land under this Act, shall be ignored and not taken into account; Provided that nothing in this sub-section shall apply to— (a) a transfer in favour of any person (including Government)referred to in sub-section (2); (b) a transfer proved to the satisfaction of the prescribed authority to be in good faith and for adequate considering and under an irrevocable instrument not being a benami transaction or for immediate or deferred benefit of the tenure-holder or other members of his family.” 6. Further, sub-section (8) of Section 5 of the aforesaid Act provides as under: “Notwithstanding anything contained in sub-sections (6) and (7), no tenure-holder shall transfer any land held by him during the continuance of proceedings for determination of surplus land in relation to such tenure-holder and every transfer made in contravention of this sub-section shall be void.” 7. Further, sub-section (8) of Section 5 of the aforesaid Act provides as under: “Notwithstanding anything contained in sub-sections (6) and (7), no tenure-holder shall transfer any land held by him during the continuance of proceedings for determination of surplus land in relation to such tenure-holder and every transfer made in contravention of this sub-section shall be void.” 7. That being legal possession, it would have been proper on the part of the Additional District Magistrate to have passed an appropriate order, according to law, only after hearing the petitioner as well. If the Additional District Magistrate was inclined to pass such an order, he/she should have passed any order only after issuing notice to the petitioner and only after affording due opportunity of hearing. 8. Since the order impugned has been passed in violation of the principle of natural justice, the same is set aside. 9. Writ petition thus stands disposed of at the admission stage itself. 10. Liberty is, however, granted to learned Additional District Magistrate to pass a reasoned and speaking order on the application of learned ADGC (Revenue) only after affording due opportunity of hearing to the petitioner, in accordance with law.