Chiraguddin and Others vs State of U.P. and Others

Amreshwar Pratap Sahi, J.—The relief sought in this petition is for transfer of a suit u/s 229B of the U.P.Z.A.&L.R. Act, 1950 on allegations against the Sub-Divisional Officer Sri Kehari Singh, to some other Court. A supplementary-affidavit has been filed today bringing on record a copy of the transfer application that had been filed before the Board of Revenue u/s 273 of the U.P. Tenancy Act, 1939. The learned Counsel Sri Anupam Kulshreshtha for the respondent No. 3 had also put in appearance and filed a supplementary-affidavit bringing on record the transfer application as also the copy of the plaint and other documents relating to the proceedings in order to assist the Court as per the query raised on the previous occasion.

Learned Counsel for the petitioners has urged that the opposite party No. 3 being an influential local Minister of the district of Agra has persuaded the S.D.M., Shri Kehari Singh to proceed in the matter and has also obtained an interim order in his favour. The proceedings are of a suit u/s 229B of U.P.Z.A. & L.R. Act, 1950 being contested by the petitioners as defendant alleging that the suit itself was not maintainable.

Shri Anupam Kulshreshtha and the learned Standing Counsel do not propose to file any counter-affidavit at this stage and they pray that the matter be disposed of finally.

I have perused the transfer application in detail and it appears that para 10 of the transfer application does not reflect the correct facts with regard to the date of the filing of the suit and its presentation. From the supplementary-affidavit filed by the petitioners, it appears that the suit was presented on 28.6.2013 and the interim order was also passed on the same day.

However, paragraphs 11 and 12 of the transfer application clearly recite that Mr. Kehari Singh is the Sub-Divisional Officer of Tehsil Baah, district Agra and in addition thereto he was also given charge as Executive Officer of Nagar Palika Parishad, Baah. This fact remains undisputed. A copy of the plaint of the suit has been brought on record and the same demonstrates that Nagar Palika Parishad, Baah is the defendant No. 7 therein. Sri Kehari Singh who is the Sub-Divisional Officer is also holding charge as Executive Officer of the defendant No. 7 in the suit. The transfer application therefore, also states a case for consideration on this issue which does not appear to have been noticed by the Board of Revenue.

The Board of Revenue simply proceeded on the presumption that the allegation of mala fides against opposite party No. 3 have not been made out or substantiated, therefore, the transfer application does not deserve to be entertained.

Having heard the learned Counsel for the petitioners and the contesting respondents, it is evident that the Board of Revenue did not adhere to this aspect of the matter which remained undisputed even before this Court. It is settled principle of law that no one should be a Judge in his own case. The Sub-Divisional Officer is also holding charge of Executive Officer of the Nagar Palika Parishad, arrayed as defendant No. 7. In the circumstances the suit cannot be tried by the same officer and in such circumstances the principles of Nemo debet esse judex in propria causa is attracted. It is also settled that justice should not only be done, but should also seem to have been done.

The reasonable apprehension expressed by the petitioner in paras 11 and 12 of the transfer application therefore, was neither addressed to nor answered by the Board of Revenue.

In view of the said position that emerges in my opinion it would be proper that the suit is transferred to some other Sub-Divisional Officer of the district, if possible, to Fatehabad or any other Sub-Divisional Officer as directed by the Collector, Agra. The suit shall not be tried by the present Sub-Divisional Officer, Baah. The matter shall be transferred forthwith and the same shall be decided in accordance with law by the concerned Sub-Divisional Officer. The writ petition stands disposed of as no other issue deserves to be gone into in the present writ petition.