Shiva Kant and Others vs State of Uttar Pradesh and Others

Anil Kumar, J—Heard Sri Badrish Tripathi, learned counsel for petitioners, learned State counsel as well as Sri Durga Prasad Verma, learned counsel appearing on behalf of contesting respondents and perused the record. Facts in brief of the present case are that an appeal No. 564 is pending before the Settlement Officer Consolidation, Ambedkar Nagar. During the pendency of the appeal, an application under Rule 65(2) of the U.P. Consolidation of Holdings Rules has been moved for transfer of the matter from the Court of Settlement Officer, Ambedkar Nagar registered as Transfer Application No. 560/2012 (Tulsi Ram and others v. Yashoda Devi), rejected by order dated 4.4.2013 passed by O.P. No. 2/Joint Director of Consolidation, U.P., Lucknow.

Learned counsel for petitioners while challenging the impugned order has raised the argument that as the husband of O.P. No. 4/Smt. Yashoda Devi is a practicing lawyer in District Ambedkar Nagar, so he is in a position to exercise pressure and influence him/O.P. No. 3, hence the petitioners have no hope to get justice in the matter, thus, the impugned order is wholly illegal and arbitrary in nature, liable to set aside.

Sri Durga Prasad Verma, learned counsel appearing on behalf of contesting respondents submits that it is totally in-correct on the part of the petitioners to state that husband of O.P. No. 4 is practicing lawyer in District Ambedkar Nagar but he is practicing in Jalapur Tehsil, thus, no manner he can influence the O.P. No. 3 where the appeal is pending for consideration, accordingly, the submission made by learned counsel for petitioners in support of transfer of the case has got no force and no illegality has been done by the O.P. No. 2 while passing the impugned order, so the writ petition is liable to be dismissed.

I have heard learned counsel for parties and gone through the record.

So far as the matter relates to transfer from the Court of Settlement Officer Consolidation to another Court is concerned, in this regard the provisions is provided under Rule 65(2) of the U.P. Consolidation of Holdings Rules, 1954, relevant portion quoted as under:

"The Director of Consolidation may withdraw any case from the file of any settlement Officer, Consolidation, and refer the same to any other Settlement Officer, Consolidation for disposal."

Further, while exercising power of transfer under Rule 65(2) of the Rules, the authority concerned may keep in mind the same principle for transfer as provided under Section 24 C.P.C., the same in brief can be summarized as under:

(i) convenience of parties and situation of property,

(ii) bias of judge hearing the case,

(iii) two suits involving common question,

(iv) avoidance of delay and unnecessary expenses and

(v) preventing abuse of process of the Court.

The transfer provision are such that they are intended to facilitate a party seeking transfer only when it satisfies the Courts that if the case is allowed to be adjudicated in the same Court, the party would invariably suffer irreparable injury and the transfer of a case from one Court to another indirectly casts doubt on the competence and integrity of the Judge from whom the case is sought to be transferred. Mere presumptions or possible apprehensions are not sufficient therefor; only good and sufficient grounds, clearly set out in the order, may justify the transfer and a transfer should not readily be granted for any fancied notion of a litigant. It should be granted to ensure that the applicant gets fair and impartial justice.

In the case of Mahabir Prasad Singh Vs. M/s. Jacks Aviation Private Ltd., (1998) 8 AD 297 : AIR 1999 SC 287 : (1998) 7 JT 579 : (1999) 121 PLR 680 : (1998) 6 SCALE 127 : (1999) 1 SCC 37 : (1998) 2 SCR 675 Supp : (1999) 1 UJ 257 : (1998) AIRSCW 3806 : (1998) 8 Supreme 378 , the controversy involved is that Bar Association had passed Resolution and boycotted member to appear before Court of Additional District Judge in which civil suit for recovery of possession was filed by appellant. Counsel for respondent being member of Bar Association filed transfer petition in view of boycott call given by Bar Association. The Counsel for the respondent who filed the said petition himself appear in the Court for addressing arguments nor did he depute any other advocate on his behalf, Additional District Judge dismissed transfer petition on the ground that there was no provision under Section 151, C.P. Code for transfer of case. Accordingly, the Apex Court held that the order passed by the Additional District Judge had no legal infirmity, much less any scope for occasioning failure of justice.

Thus, The power vested in the Court for transfer of matter is comprehensive and discretionary. The discretion to be exercised, as we all know, is a judicial discretion based on sound reasonings. While considering the question of transfer, the very bias which has to be law laid down for transfer of the same is to be considered.

Accordingly, in the present case, the reason that husband of opposite party No. 4 is a practicing lawyer cannot be a ground for transfer of the case from the Court of Settlement Officer Consolidation to another Court because transfer should not readily be granted for any fancied notion of a litigant. It should be granted to ensure that the applicant gets fair and impartial justice, so I do not find any illegality or infirmity in the impugned order passed by O.P. No. 2/Joint Director of Consolidation, U.P., Lucknow thereby rejecting the petitioners'' application for transfer. For the foregoing reasons, writ petition lacks merit and is dismissed.