Uttarakhand High Court
WPMS/3099/2024 on 26 November, 2024
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
2024:UHC:8779
Office Notes,
reports, orders
SL. or proceedings
No Date or directions COURT'S OR JUDGE'S ORDERS
. and Registrar's
order with
Signatures
WPMS No. 3099 of 2024
Hon'ble Manoj Kumar Tiwari, A.C.J.
Mr. Rajat Mittal, Advocate for the
petitioners.
2. Mr. Yogesh Chandra Tiwari, Standing
Counsel for the State of Uttarakhand/respondent
no. 1.
3. Ms. Anjali Bhargava, Advocate for respondent no. 3.
4. Petitioners are defendants in a Declaratory Suit registered as Case No. 97 of 2023-24, filed by respondent no. 2 under Section 229B of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred as 'UPZA&LR Act'), before Assistant Collector, First Class, Vikasnagar, District Dehradun.
5. On 04.10.2024, plaintiff in the said suit moved an application before the Collector, Dehradun for transfer of the case from the Court of Assistant Collector, First Class, Vikasnagar to a Court of competent jurisdiction at Dehradun. Collector, Dehradun transferred the case to the Court of Assistant Collector, First Class, Dehradun, vide order dated 21.10.2024, which is under challenge in this writ petition.
6. It is contended by learned counsel for petitioners that petitioners were not heard before transferring the case from Vikasnagar to Dehradun. It is contended that provisions of Civil Procedure Code, 1908 (for short 'CPC') are made applicable to proceedings under UPZA&LR Act, by Section 340 thereof. Thus, it is contended that while transferring the case from one Court to another, Collector, Dehradun has to comply with the mandate of giving notice to the parties contained in Section 24 CPC. Section 24 CPC is extracted below:-
2024:UHC:8779 "24. General Power of transfer and withdrawal.-(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage-
(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or
(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and-
(i) try or dispose of the same; or
(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or
(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.
(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which is thereafter to try or dispose of such suit or proceeding may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.
(3) For the purposes of this section,-
(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court;
(b) "proceeding" includes a proceeding for the execution of a decree or order.
(4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.
(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it."
7. Learned State Counsel, per contra, submits that Section 191 of Uttar Pradesh Land Revenue Act, 1901 enables the Board of Revenue or Commissioner to transfer a case from one Court to another; while, Section 192 of the said Act enables the Collector, Assistant Collector, Tehsildar, Record Officer or a Settlement Officer to transfer a case from one Court to another. He further submits that Sections 191 & 192 of Land Revenue Act are absolutely silent regarding notice or hearing to be given to the other side, therefore, he submits that the submission made on behalf of the petitioners is without substance.
8. Perusal of impugned order reveals that petitioners were not heard while passing the 2024:UHC:8779 transfer order.
9. Learned State Counsel fairly concedes that opportunity of hearing was not given to petitioners.
10. Since, petitioners are defendants in the suit, therefore, while transferring the proceedings from Vikasnagar to Dehradun, on an application by the other party, it was incumbent upon Collector to give notice to petitioners, so that they may have say in the matter.
11. Principles of natural justice have been engrafted in Section 24 CPC. In the absence of any provision in U.P. Land Revenue Act, which rules out applicability of Principles of Natural Justice, these principles have to be read into Sections 191 & 192 of the said Act.
12. It is settled position in law that Principles of Natural Justice do not supplant the law, but, they certainly supplement the law and when the statute is silent regarding requirement of hearing, then it has to be read into the statute, and whenever an order is passed, prejudicial to the interest of a party, than he is entitled to a reasonable opportunity of hearing. In other words, when the authorities specified in Sections 191 & 192 of U.P. Land Revenue Act exercise power of transfer, on an application made by one of the parties, then notice should be issued to other party and opportunity of hearing may also be given to him.
13. Since petitioner was not heard in the matter, while passing the impugned order, therefore, the impugned order dated 21.10.2024 is liable to be quashed and is hereby quashed.
14. The writ petition is allowed. It shall be open to Collector, Dehradun to pass order on transfer application filed by respondent no. 2 afresh, but, only after giving minimum ten days notice to the petitioners.
(Manoj Kumar Tiwari, A.C.J.) 26.11.2024 Navin