Inder Narayan vs Kishori Saran Gupta and Anr.

S.P. Mehrotra, J.—This writ petition has been filed by the petitioner, inter alia, praying for transferring P.A. Case No. 92 of 2000 (Kishori Saran Gupta v. Inder Narayan,) pending in the Court of the Prescribed Authority/Civil Judge, (Junior Division), Jhansi to some other competent Court.

From the allegations made in the writ petition, it appears that the Respondent No. 1 filed a release application under Section 21 (1)(a) of the U.P. Act No. 13 of 1972 (hereinafter referred to as �the Act�) in respect of a shop bearing No. 68, Jawahar Chowk, Jhansi against the petitioner. The said shop has, hereinafter, been referred to as �the disputed shop�. The said release application was registered as P.A. Case No. 92 of 2000.

It further appears from the allegations made in the writ petition that during the pendency of the said release case an application dated 1102002 was filed on behalf of the petitioner, inter alia, praying for inspection of the multistoreyed shopping complex known as �Janki Complex� situated at Civil Lines, Jhansi. Objections were filed on behalf of the respondent No. 1 against the said application for inspection.

Learned Civil Judge (Junior Division), Jhansi/Prescribed Authority, by an order dated 8102002, rejected the said application for inspection filed by the petitioner.

Thereafter, the petitioner filed a writ petition before this Court being Civil Misc. Writ Petition No. 45452 of 2002. The said writ petition was disposed of by this Court by an order dated 1 112002. The relevant portion of the said order is quoted below:

�Considering the facts and circumstances of the case and the submissions statements made by the learned Counsel for the parties, it is directed that the inspection of the said multi storyed shopping complex will be made by the Prescribed Authority on 17112002 i.e. Sunday subject to the condition that the said application filed by the petitioner before the Prescribed Authority after the filing of the present writ petition are got dismissed as not pressed by the petitioner prior to 17112002. Thereafter, the learned Prescribed Authority will proceed to decide the said release case expeditiously, preferably within two months from the date of the said inspection on 1711 2002.

It is made clear that I have not adjudicated on the merits of the case of either of the two parties. It is further made clear that the inspection is being directed to be made without prejudice to the aforementioned contention of the respondent that the existence of the said multistoryed shopping complex was not relevant in deciding the said release application filed by the petitioner under Section 21 (1)(a) of the Act. It is agreed between the learned counsel for the parties that the parties shall not take any unnecessary adjournment in the said release case.

With the aforesaid observations/directions, the writ petition is disposed of�.

It further appears from the allegations made in the writ petition that the petitioner, thereafter, moved an application dated 15112002 in the said P.A. Case No. 92 of 2000, inter alia, stating that as a copy of the assessment in respect of the said multistoryed shopping complex had been obtained by the petitioner and filed in the said P.A. Case No. 92 of 2000, the inspection of the said multistoryed shopping complex was no longer necessary. A copy of the said application dated 15112002 has been filed as Annexure2 to the writ petition.

Thereafter, it appears, the petitioner filed a transfer application dated 21112002 before the learned District Judge, Jhansi, inter alia, praying for transfer of the said P.A. Case No. 92 of 2000 from the Court of the Prescribed Authority / Civil Judge (Junior Division), Jhansi to some other competent Court. A copy of the said transfer application dated 21112002 has been filed as Annexure3 to the writ petition.

It further appears that the objections dated 25112002 were filed on behalf of the Respondent No. 1 against the said transfer application filed by the petitioner. A copy of the said objections dated 25112002 has been filed as Annexure4 to the writ petition.

If further appears that the learned District Judge, Jhansi invited comments from the concerned Presiding Officer.

Thereafter, the learned District Judge, Jhansi, by the order dated 27112002 (Annexure5 to the writ petition), rejected the transfer application filed by the petitioner.

It further appears that the petitioner thereafter filed a review application dated 30112002 before the learned District Judge, Jhansi. By the order dated 13122002, the learned District Judge, Jhansi rejected the said review application. A copy of the said order dated 13122002 has been filed as Annexure6 tot he writ petition.

From a perusal of the writ petition, it appears that even thought the petitioner has taken grounds challenging the correctness of the said order dated 27112002 but no relief has been sought in respect of the said order.

I have heard Sri B.N. Agarwal, learned Counsel for the petitioner and Sri K.K. Dubey, learned Counsel for the caveator Respondent No. 1.

Sri B.N. Agarwal, learned Counsel for the petitioner submits that from the allegations made in the transfer application, it is evident that the petitioner has reasonable apprehension that he would not get justice before the Prescribed Authority/Civil Judge (Junior Division), Jhansi who has been impleaded as Respondent No. 2 in the present writ petition. Sri Agarwal relies on a decision of this Court in Dr. Ved Bhushan v. Dr. Jinendra Kumar Jain and others, reported in 1996 ARC 370.

In reply, Sri K.K. Dubey, learned Counsel for the caveator Respondent No. 1 submits that cogent and valid reasons have been given by the learned District Judge, Jhansi in passing the order dated 27112002 rejecting the transfer application filed by the petitioner.

Sri Dubey further submits that the transfer application has been filed merely to linger on the proceeding in the said release case.

Having considered the facts and circumstances of the case and the submissions made by the learned Counsel for the parties, I am of the opinion that the present writ petition filed by the petitioner lacks merit, and the same is liable to be dismissed. The learned District Judge, Jhansi considered the entire material on record including the comments of the Presiding Officer, and found that the allegations made by the petitioner in the transfer application could not be accepted. The learned District Judge, Jhansi gave valid and detailed reasons, in passing the said order dated 27112002. In my opinion, no interference is called for with the said order dated 27112002.

As the learned Counsel for the petitioner has again pressed before this Court for transfer of P.A. Case No. 92 of 2000, I have considered the allegations made in the transfer application dated 21112002. A perusal of the said allegations shows that the petitioner has made only general and vague allegations against the Respondent No. 2. Such allegations have rightly not been believed by the learned District Judge, Jhansi in passing the said order dated 27112202. Such allegations, in my opinion, cannot sustain the plea for transfer of the said P.A. Case No. 92 of 2000 from the Court of the Respondent No. 2.

Coming to the decision in Dr. Ved Bhushan v. Dr. Jinendra Kumar Jain and others, relied upon by Sri Agarwal, learned Counsel for the petitioner, I am of the opinion that the said decision is not applicable to the facts and circumstances of the present case. Learned Counsel for the petitioner has referred to paragraph 10 of the said decision which is quoted below:

�(10) Coming to the grounds of transfer, it is not a case where merely allegations have been controverted through a counteraffidavit. Rejoinder affidavit has also been filed and as such it hardly appeals to reason that the apprehension exhibited by the applicant is ill founded or imaginary. After considering the entire material on record, I find no ground why there should have been insistence that the appeal should be decided by Sri Ram Surat alone and why the District Judge rejected the transfer application of the applicant. In any view, in view of what has been deposed in the rejoinder affidavit it makes out a clear and cogent ground for apprehension in the mind of the applicant what in view of utterances made by the opposite Party No. 1 in social gathering in the district he may not get fair justice from the Additional District Judges and the District Judge at Muzaffarnager. Justice should not only be done but should not only be done but should mean to have been down. Since the apprehension is not ill founded; rather it is well founded the interest of justice requires that the appeal in question should be transferred from District Muzaffarnager to some adjoining District.�

A perusal of the aforesaid paragraph 10 of the said decision shows that the said decision is based on the peculiar facts and circumstances of the case. It is true that justice should not only be done, but it should also seem to have been done. It is equally true that if a party is able to establish reasonable apprehension that he would not get justice before a particular Presiding Officer, the case may be transferred from the Court of such Presiding Officer. However, in the present case, the allegations made by the petitioner in the transfer application have not been believed. Therefore, there was no question of any apprehension, much less reasonable apprehension on the part of the petitioner that he would not get justice before the Respondent No. 2.

In view of the aforesaid discussion, this writ petition is liable to be dismissed, and the same is accordingly dismissed.