ORDER R.R.K. Trivedi and M. Katju, JJ.
1. Heard counsel for the petitioner and learned standing counsel. Both the learned counsel agree that this petition may he decided finally at this stage.
2. The facts giving rise to this petition are that proceeding under Section 13 (2) of the U. P. Roadside Land Control Act, 1945 were initiated against the petitioner with the allegation that he has encroached upon the road to the extent of an area 5.19 x 19.50 meter and has raised unauthorised construction. In response to the notice, the petitioner appeared. However, on 25.2.1997 he could not appear before the competent authority and the order was passed against the petitioner on the same day for demolishing the construction and removing the encroachment. Against this order the petitioner filed an application on 15.3.1997 for setting aside the ex parte order. The reason stated in the application was that on 25.2.1997 in the morning the nephew of the petitioner Maharaj Singh had died and for this reason, he could not appear before the competent authority to defend himself. This application of the petitioner has been rejected by the competent authority by order dated 12.8.1997 on the ground that the restoration application does not He under the provisions of the Act. Aggrieved by the aforesaid orders the petitioner has approached this Court under Article 226 of the Constitution.
3. We have heard learned counsel for the parties. There is no dispute about the legal position that if any order is passed without hearing the person affected, such order is termed as an ex parte order. Under the provisions of the Act, opportunity of hearing is required to be given before passing the order under Section 13 (2) imposing penalty or directing removal of the encroachment. It is not disputed that notice was given. However, the petitioner defaulted for the reason stated by him in the affidavit. The competent authority has rejected the application as not maintainable without entering into the merits of the contention raised by the petitioner and without recording any finding as to whether the petitioner has established sufficient cause for recall of the order. The intention of the Legislature is very clear that the order of punishment and penalty could be passed only after affording opportunity of hearing. If for unavoidable reason, the petitioner could not appear before the authority and the order has been passed without hearing him, such authority will have jurisdiction to recall its order if the person concerned satisfies the authority that there was sufficient cause for him to be absent on the date of hearing. This basic principle has not been kept in mind by the respondent No. 1 and thus he has committed an error of law in rejecting the application of the petitioner. In our opinion, the order cannot be sustained in law.
4. For the reason stated above this petition is allowed. The order dated 12.8.1997 Annexure 12 to the writ petition is quashed. The application of the petitioner for recall of the order dated 25.2.1997 shall stand restored to its original number and shall be considered and decided by the respondent No. 1 within a period of two months from the date a copy of this order is filed before him. For a period of three months from today the demolition of the disputed construction shall not be carried out.
5. A copy of this order shall be supplied to the learned counsel for the parties on payment of requisite charges within three days.