Susheel Kumar Gupta vs State of U.P.

Ram Surat Ram (Maurya), J.—Heard Sri Susheel Gupta, Advocate, in person.

This writ petition has been filed for quashing the order dated 27.03.2014 passed by Collector, rejecting the application of the petitioner u/s 192 U.P. Land Revenue Act, 1901 (hereinafter referred to as the Act) for transferring Mutation Case No. 311 of 2013 from the Court of Tahsildar, Bhognipur, Kanpur Dehat to some other Court of competent jurisdiction.

Ajay Kumar Gupta (respondent-5) filed an application (registered as Mutation Case No. 311 of 2013) u/s 34 of the Act for mutating his name as an heir of Smt. Sushila Devi on the basis of registered will dated 30.11.2011 allegedly executed by Smt. Sushila Devi in his favour. Certified copy of the order sheet (filed on pages 38-39 of the writ petition) shows that the case was filed on 02.05.2013 and it was adjourned one or other ground on 18.05.2013, 03.06.2013, 12.06.2013, 15.07.2013, 03.08.2013, 17.08.2013, 04.09.2013, 12.09.2013 and 25.09.2013. Sushil Kumar Gupta (the applicant) was appearing on all the dates. On 14.10.2013, Tahsildar directed for issue of notice and fixed 29.10.2013. Again the case was adjourned on 29.10.2013, 12.11.2013. On 26.11.2013, Tahsildar directed for issue of notice to Rajeev Gupta, on his correct address. The case was again adjourned on 16.12.2013 and 23.12.2013. On 06.01.2014, respondent-5 filed an application for publication of the notice. The case was then fixed for 18.01.2014 for publication of notice.

In the order sheet dated 01.02.2014, it has been mentioned that notice was published. Time was granted for filing objection in the case and 17.02.2014 was fixed. On 17.02.2014, the petitioner filed an application for adjournment of the case on the ground that he had to file an application before the Collector for transfer of the case from the Court of Tahsildar. Tahsildar rejected the application and closed the opportunity of objection and fixed 19.02.2014 for evidence of respondent-5. On 19.02.2014, the petitioner filed an application for grant of time for filing objection, which was allowed and 25.02.2014 was fixed for objection of the petitioner.

The petitioner filed an application (registered as Case No. D 201403400074) u/s 192 of the Act, on 21.02.2014 before the Collector, Kanpur Dehat, for transferring Mutation Case No. 311 of 2013 from the Court of Tahsildar, Bhognipur, Kanpur Dehat to some other Court of competent jurisdiction. In the application, it has been stated that on 17.02.2014, the petitioner filed an application for adjournment of the case on the ground that he had to file an application before the Collector for transfer of the case from the Court of Tahsildar. Tahsildar rejected the application and closed the opportunity of objection and fixed 19.02.2014 for evidence of respondent-5. On 19.02.2014, the petitioner filed an application for grant of time for filing objection, which was allowed and 25.02.2014 was fixed for objection. The proceeding before Tahsildar is being conducted in violation of Article 14 and 21 of the Constitution and principle of natural justice. In the affidavit filed in support of transfer application, it has been stated that notice was published on 12.02.2014 in the news paper, in which it has been mentioned that in case, the parties would not come, then matter would be proceeded ex parte. Correct address of Rajeev Kumar, one of the son of Smt. Sushila Devi was supplied even then in stead of sending the notice through the prescribed modes, the notices were published. Copy of publication was not filed in the Court on 12.02.2014 but Presiding Officer has illegally noted that copy of the paper was filed at 11.00 A.M. and instead of granting reasonable time for objection, 17.02.2014 was fixed for objection. In the order sheet, Presiding Officer by fabrication, inserted an order dated 14.10.2013.

The transfer application was heard by the Collector, who called for a comments of Presiding Officer, who submitted his comments dated 11.03.2014, mentioning therein that he had no objection in transferring the case from his Court and denied the allegations made by the applicant. The Collector by the impugned order dated 27.03.2014 held that the baseless allegations have been made against the Presiding Officer and there is no ground to transfer the Case. On these findings transfer application was rejected. Hence this writ petition has been filed.

The counsel for the petitioners submitted that Section 195 and 196 of the Act provide the procedure of issue of notice. Tahsildar, in stead of following the procedure given under the law, directed for publication of the notices in the news paper. Notices were send for publication on 12.02.2014 and published on 12.02.2014, fixing 12.02.2014 for objection, although under Order 16 Rule 9 C.P.C. sufficient time is required to be given for objection. When the petitioner filed an application for adjournment of the case on 17.02.2014 on the ground that he had to file an application before the Collector for transfer of the case from the Court of Tahsildar, Tahsildar rejected the application and closed the opportunity of objection and fixed 19.02.2014 for evidence of respondent-5. On 19.02.2014, the petitioner filed an application for grant of time for filing objection, which was allowed and 25.02.2014 was fixed for objection. Thus again very short opportunity for objection was given, which is violative of Article 14 and 21 of the Constitution. In spite of direction of the Collector for paragraph wise comments, Tahsildar did not submit the paragraph wise reply. Tahsildar was acting in a biased manner, as such, the petitioner has no hope of justice from him but the transfer application has been illegally rejected by the Collector.

I have considered the arguments of the petitioner and examined the record. Various arguments raised before this Court and grounds taken in the transfer application before the Collector do not tally from the certified copy of the order sheet (filed on pages 39-40 of the writ petition). A perusal of the certified copy of the order sheet shows that the petitioner was attending almost all the dates before the Tahsildar since 18.05.2013 and even then, he could not file any objection till today in the case. Notices were directed to be issued by order dated 14.10.2013. Thereafter, respondent-5 moved an application on 06.01.2014 for publication of the notices, on which, Tahsildar, by order dated 18.01.2014, fixed 01.02.2014. A perusal of the notice as sent for publication (filed as annexure 4 on page 56) shows that the office has prepared notice on 31.01.2014 and it was issued under the signature of the Presiding Officer on 02.02.2014, although by inserting letter ''1'' before letter ''2'', the date of issuance has been made as ''12'', which appears to be apparent forgery, as admittedly, the notice was published on 12.02.2014 in the newspaper. In case the office had issued the notice on 12.2.2014, then it was not possible to publish the notice in the newspaper on the same day.

The notice as published in the newspaper shows that the defendants were directed to appear before the Tahsildar on or before 12.02.2014 and file their objections. Although, in the notice, 12.02.2014 was mentioned as the date fixed but in the case, 17.02.2014 was fixed. In the order sheet, dated 01.02.2014 (filed on page 40 of the writ petition), further a forgery has been made showing that order sheet dated 12.02.2014, although in the case, earlier date was fixed on 18.1.2014 and on that day, 01.02.2014 was fixed and on 01.02.2014, 17.02.2014 was fixed. Thus, a perusal of the order sheet clearly shows that 12.02.2014 was not the date fixed in the case, rather in the notice as published, time was granted for appearance and file objection to the parties upto 12.2.2014.

On 17.02.2014, the petitioner filed an application for adjourning the case on the ground that he had to move a transfer application in the matter before the Collector. Thus, on 17.02.2014, the petitioner neither filed his objection, nor filed any application for grant of time for filing the objection. In such circumstances, the Tahsildar had no option but to close the opportunity of the defendants to file the objection and he has not committed any illegality in closing the opportunity of objection. However, as on the next date, i.e. 19.02.2014 fixed in the case, the petitioner filed an application for grant of time for filing the objection, which was allowed and the petitioner was granted time for filing the objection upto 25.02.2014. Thus, there is nothing on record to show that the Tahsildar was acting in an arbitrary manner. On the other hand, the conduct of the petitioner shows that he himself was adopting various dilatory tactics before the Tahsildar.

The argument of the petitioner that under Order XVI Rule 9 C.P.C. reasonable time was required to be granted, is misconceived as Order XVI Rule 9 C.P.C. provides the provisions for summoning the witnesses. The submission that the Tahsildar was biased against the petitioner and he had no hope of justice from his Court is not established. No material particulars in this respect has been stated, nor any evidence has been filed to show that the Tahsildar had any personal interest in the matter. On the other hand, the order sheet shows that the Tahsildar was conducting the proceeding in a judicial manner and there is nothing to suggest that he has made any discrimination or adopted any mode which creates any reasonable doubt in the mind of the petitioner that he would not get justice.

A case cannot be transferred from the Court of competent jurisdiction on the mere allegation of bias. In case the transfer application is entertained so lightly, then it will be impossible for any Court to conduct the proceeding and to decide it finally. In the transfer application filed by the petitioner as well as in the affidavit filed in support of it, nothing has been mentioned to prove that there was any ground to transfer the case. Supreme Court in Mahabir Prasad Singh Vs. M/s. Jacks Aviation Private Ltd., held that a party cannot be allowed to change the Court of his choice. The Collector has not committed any illegality in dismissing the transfer application.

The writ petition has no merit and is dismissed.