Kodai vs Addl. Commissioner ...
2021 Latest Caselaw 9841 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 20
 

 
Case :- CONSOLIDATION No. - 11980 of 2020
 

 
Petitioner :- Kodai
 
Respondent :- Addl. Commissioner (Consolidation) Lko. & Ors.
 
Counsel for Petitioner :- Santosh Kumar Mehrotra,Ishwar Dutt Shukla,Priyam Mehrotra
 
Counsel for Respondent :- Tej Singh,Hari Prakash Yadav,Mohan Singh,Uma Kant
 

 
Hon'ble Manish Mathur,J.

1. Heard learned counsel for petitioner, learned State Counsel for opposite party No.1 and learned counsel for opposite parties 3 and 4. Mr. Mohan Singh learned counsel has put in appearance on behalf of opposite party No. 9. Notices to opposite party No. 2 stand dispensed with. It is admitted between the parties that the property in question has been subsequently purchased by the opposite party no.4 from the opposite parties 5 to 8 and as such the said opposite parties 5 to 8 are merely proforma opposite parties with regard to present petition. The opposite parties 3 and 4 being the primary litigating opposite parties, as such notices although issued earlier to opposite parties 5 to 8 though not served are not being taken into cognizance and the matter is being finally decided with the consent of learned counsel for parties.

2. Petition has been filed against order dated 18th February, 2020 passed by Additional Commissioner, Consolidation, Lucknow whereby the appeal No.21 of 2019 (Kodai versus Shyam Charan and others) under Section 11(1) of the U.P. Consolidation of Holdings Act has been transferred from the court of Settlement Officer, Consolidation, Ambedkar Nagar to the court of Settlement Officer, Consolidation, Ayodhya.

3. Learned counsel for petitioner submits that the father of petitioner was recorded over the suit premises but during consolidation proceedings, his right and title over the suit premises ended on the basis of a fraudulent compromise without any notice or information to the father of petitioner. The aforesaid case under section 9-A of the Act of 1953 was decided in terms of the said fraudulent compromise by means of the order dated 25th July, 1991. It is submitted that when the father of petitioner came to know about the aforesaid fraudulent compromise, he filed a delayed appeal on 25th October, 2007. It is submitted that during pendency of the aforesaid proceedings, it was revealed that the suit premises had been purchased by the opposite party No.4 by means of a registered sale deed. It is submitted that during pendency of the aforesaid proceedings, the opposite party No.3 who was the manager of the institution (arrayed as opposite party No.4 in the present writ petition) filed an application for transfer of the appeal under Rule 65 of the U.P. Consolation of Holdings Rules, which has been allowed by means of the impugned order.

4. Learned counsel for petitioner has assailed the impugned order on the basis that the Consolidation Commissioner, Lucknow did not have any jurisdiction to transfer the case in terms of Rule 65 (1-A) of the aforesaid Rules. It is submitted that during objections filed by the petitioner to the transfer application, a preliminary objection regarding maintainability of the transfer application before the Consolidation Commissioner had been taken. It is submitted that further objection had been taken that false averments had been made in the transfer application merely to get the matter transferred from the court of the Settlement Officer, Consolidation Ambedkar Nagar since it was an old matter and was not being adjourned. Learned counsel for petitioner submits that the impugned order has not dealt with the objections taken by the petitioner to the transfer application although the submissions against the transfer application have been indicated in the impugned order itself. As such it is submitted that the order impugned has been passed without any application of mind and without adverting to the preliminary objection raised by the petitioner. It has also been submitted that transfer of a case has serious bearing not only to the litigation but also to the reputation of the presiding officer and therefore should not have been passed in such a casual manner.

5. Learned counsel appearing on behalf of the opposite parties 3 and 4 has refuted the submissions advanced by learned counsel for petitioner with the submission that the Consolidation Commissioner has full power and jurisdiction under Rule 65 of the aforesaid Rules to direct transfer of the pending appeal. It is also submitted that a perusal of the impugned order will make it apparent that the submissions advanced by petitioner regarding maintainability of the transfer application and the averments made therein have been dealt with by the concerned authority. It is also submitted that the impugned order has been passed in order to maintain the purity of the proceedings and in order to accord fairness in action with regard to final decision in the appeal. Learned counsel has submitted that the impugned order records the fact that the transfer applicant has serious apprehension with regard to imparting of a fair order in the appeal.

6. Having considered the material on record and submissions advanced by learned counsel for parties, it is apparent that the transfer application has been filed before the Consolidation Commissioner by the opposite party No.3 although the transfer application does not indicate that it has been filed in the capacity of the manager of the institution i.e. opposite party No.4. The petitioner has thereafter filed a short counter affidavit indicating preliminary objection regarding maintainability of the transfer application and had subsequently filed his objections to the transfer application itself in which a plea has been taken that the allegations made against the presiding officer are completely false and uncalled for. A perusal of the impugned order makes it evident that although a preliminary objection and the objection on facts of the transfer application have been noticed by the Consolidation Commissioner but without adverting to the same, the impugned order has been passed transferring the appeal only on the ground of apprehension on the part of the transfer applicant/opposite party No.3.

7. Since the Consolidation Commissioner has not recorded any finding with regard to the preliminary objection about maintainability of the transfer application in terms of the Rule 65 of the Rules, it would not be appropriate for this Court to deal with the said issue and the aforesaid question is therefore left open.

8. The matter pertaining to transfer of case from one court to another merely on the basis of allegations made in the transfer application without verifying the allegations made against the presiding officer can not be permitted in such a casual manner. In case transfer of cases is allowed in such a manner, there can never be any finality attached to any litigation since upon any inconvenient question being asked by the court regarding the litigation, any party to dispute would seek transfer of the case and for not having to answer such inconvenient questions. It is quite correct that seeking transfer of any case from one court to another while casting aspersion on the integrity and character of the presiding officer can not be taken lightly and has to be considered in a serious manner. As such any such aspersion on the integrity and character of the presiding officer while seeking transfer from his court has to be treated with utmost seriousness and concern by the authority hearing the transfer application. The transfer application at the behest of any of the parties to the lis can be done only after the apprehensions and allegations indicated in the transfer application are verified by the authority or the court hearing the transfer application. It is not to be allowed in a routine manner.

9. So far as the transfer of the case in terms of the averments made in the transfer application is concerned, this Court in the case of Kedar versus Additional Commissioner, U.P., Lucknow and others reported in 2003 (94) Revenue Decision 430 has clearly stipulated that transfer of a case from one court to another is a very serious matter as it casts a doubt on the integrity of a presiding officer. It has been held that the court must be very conscious in dealing with these matters and unless there are various attending circumstances even if there is no direct proof with regard to allegations, no transfer should be allowed.

10. This court in the case of Ram Prakash versus District Judge Balli and 16 others reported in 2015 (1) ARC 103 has also held in the following manner:-

" 7. Mere suspicion by the party that he will not get justice would not justify transfer. There must be a reasonable apprehension to that effect. A judicial order made by a Judge legitimately cannot be made foundation for a transfer of case. Mere presumption of possible apprehension should not and ought not be the basis of transfer of any case from one case to another. It is only in very special circumstances, when such grounds are taken, the Court must find reasons exist to transfer a case, not otherwise. (Rajkot Cancer Society vs. Municipal Corporation, Rajkot, AIR 1988 Gujarat 63; Pasupala Fakruddin and Anr. vs. Jamia Masque and Anr., AIR 2003 AP 448; and, Nandini Chatterjee vs. Arup Hari Chatterjee, AIR 2001 Culcutta 26)

8. Where a transfer is sought making allegations regarding integrity or influence etc. in respect of the Presiding Officer of the Court, this Court has to be very careful before passing any order of transfer.

9. In the matters where reckless false allegations are attempted to be made to seek some favourable order, either in a transfer application, or otherwise, the approach of Court must be strict and cautious to find out whether the allegations are bona fide, and, if treated to be true on their face, in the entirety of circumstances, can be believed to be correct, by any person of ordinary prudence in those circumstances. If the allegations are apparently false, strict approach is the call of the day so as to maintain not only discipline in the courts of law but also to protect judicial officers and maintain their self esteem, confidence and above all the majesty of institution of justice.

xxxxx xxxxxxx xxxxxxx

13. If there is a deliberate attempt to scandalize a judicial Officer of subordinate Court, it is bound to shake confidence of the litigating public in the system and has to be tackled strictly. The damage is caused not only to the reputation of the concerned Judge, but, also to the fair name of judiciary. Veiled threats, abrasive behaviour, use of disrespectful language, and, at times, blatant condemnatory attacks, like the present one, are often designedly employed with a view to tame a Judge into submission to secure a desired order. The foundation of our system is based on the independence and impartiality of the men having responsibility to impart justice i.e. Judicial Officers. If their confidence, impartiality and reputation is shaken, it is bound to affect the very independence of judiciary. Any person, if allowed to make disparaging and derogatory remarks against a Judicial Officer, with impunity, is bound to result in breaking down the majesty of justice."

11. Although the aforesaid judgment was in terms of Section 24 of the Code of Civil Procedure 1908 but the principles pertaining to transfer of case would be squarely applicable to the present case as well.

12. Upon applicability of the aforesaid judgments, it is evident from the perusal of the impugned order that the transfer of appeal has been allowed by means of the impugned order in completely casual and routine manner without any application of mind to the objections raised by the petitioner. As has been dealt herein above, such an order allowing the transfer application in a routine manner can not be condoned. It is also seen from the record that aspersions have been cast against the integrity and character of the presiding officer hearing the appeal. However the same has not been substantiated by the transfer applicant/opposite party No.4 in any manner. Allowing the transfer application merely on such a averments is being frowned upon. The impugned order does not even indicate that the averments made in the transfer application have been prima facie proved by the transfer application.

13. In view of aforesaid judgments, it is quite clear that the impugned order is clearly unsustainable and therefore a writ in the nature of Certiorari is issued quashing the impugned order dated 18th February, 2020 passed in transfer application No. 725 of 2019 under Section 65(2) of the Consolidation of Holdings Act passed by the Consolidation Commissioner, U.P., Lucknow.

14. In view of aforesaid, the writ succeeds and is allowed. Parties shall bear their own cost.

Order Date :- 9.8.2021

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