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2015 DIGILAW 3567 (ALL)

Abhinav Nayak v. Board of Revenue Lko.

2015-11-17

ANJANI KUMAR MISHRA

body2015
JUDGMENT Anjani Kumar Mishra, J. – Heard Sri S.K. Chaturvedi, learned counsel for the petitioner and Sri H.N. Singh, learned Senior Advocate on behalf of contesting respondent no. 4. 2. By means of this petition, the petitioner has sought a writ of certiorari for quashing the order dated 28.01.2015 passed by the Board of Revenue, whereby a transfer application filed by the petitioner has been rejected. The petitioner has also sought a writ of mandamus fortransferring case no. 369 of 2013-14, Hemant Seth v. Shiv Narayan pending in the court of Nayab Tehsildar, Mauranipur, Jhansi to any other district. 3. It appears that a mutation case was filed by the contesting respondents claiming on the basis of a registered sale deed dated 08.06.2014. The case of the petitioner is that he and his brother had already purchased this land through a prior registered sale deed dated 11.05.2014. 4. Sri S.K. Chaturvedi, on behalf of the petitioner, has submitted that he does not expect any justice from the court of the Nayab Tehsildar where the mutation case is pending. 5. On his filing the transfer application before the Board of Revenue, the comments of the Presiding Officer were called for. The copy of the comments has been filed on record and have been heavily relied upon by the petitioner. It is contended that the Presiding Officer has furnished wrong comments which clearly shows that his conduct is not fair and this reinforces the apprehension of the petitioner that he would not get justice from the court where the case is pending. He submits that in the mutation case the petitioner filed his objection on 15.09.2014. This fact is established by the order sheet of the proceedings. However, in his comments, the Presiding Officer has stated that the petitioner is trying to delay the disposal of the mutation case and has not filed any objection therein. It is therefore, contended that a patently false comment, contrary to the record of the proceedings, has been furnished by the Presiding Officer, which puts his conduct under a cloud. 6. However, in his comments, the Presiding Officer has stated that the petitioner is trying to delay the disposal of the mutation case and has not filed any objection therein. It is therefore, contended that a patently false comment, contrary to the record of the proceedings, has been furnished by the Presiding Officer, which puts his conduct under a cloud. 6. Sri S.K. Chaturvedi has also placed reliance upon the averments contained in paragraph 19 of the writ petition wherein it is stated despite a prayer for adjournment having been made in the mutation case on the ground that the petitioner wanted to approach the High Court for relief, the request has not been noted in the order. On the contrary, it has been noted that the petitioner was not present. This again reinforces the petitioner's apprehension. He further submits that the averments contained in paragraph 19 of the writ petition have not been specifically controverted in the counter affidavit which contains only a general denial. 7. The next contention of learned counsel for the petitioner is that the real sister-in-law (Bhabhi of the opposite party no. 3) is a sitting MLA of the Rulling Party and another sister-in-law, the opposite party no. 3 is at present the Chairperson of the Nagar Palika Parishad Mauranipur. The brother of the opposite party no. 3 is a notorious criminal and more than 25 cases are pending against him. Even the opposite party no. 3 is alleged to be a criminal and an anti social element. 8. The contention therefore, is that the opposite party on account of his political connections is likely to prevail upon the Presiding Officer and, therefore, the petitioner does not have any hope of justice from him. 9. In rebuttal, Sri H.N. Singh, has referred to Annexure 6 of the writ petition which is the complete order sheet of the proceedings mutation case no. 369 of 2013-14, which is sought to be transferred by means of this writ petition. He has submitted that the mutation case, filed by the respondent, was instituted on 18.06.2014, on which date a proclamation was directed to be issued fixing 19.07.2014. 10. On 19.07.2014, the order sheet indicates that the proclamation was kept on the record further and an application was filed by the petitioner seeking time to file his objection. This time was granted and the matter was adjourned for 21.07.2014. 11. 10. On 19.07.2014, the order sheet indicates that the proclamation was kept on the record further and an application was filed by the petitioner seeking time to file his objection. This time was granted and the matter was adjourned for 21.07.2014. 11. On 21.07.2014, the matter was adjourned for 04.08.2014 as the lawyers were on strike. 12. The transfer application has been filed on 28.07.2014. He therefore, submits that nothing had transpired in the case that would even remotely lead to any apprehension that the petitioner would not get justice in the case. 13. His next submission is that even the transfer application that was filed before the Board of Revenue, did not contain any allegation against the Presiding Officer and all the allegations were only against the relatives of the answering respondent. He therefore, submits that there was absolutely no material for seeking a transfer of the mutation case. He has however admitted that the comments sent by the Presiding Officer consequent to the filing of the transfer application was factually incorrect. His explanation is that the comments were probably without perusing the record and, therefore, the discrepancies, as has been pointed out by the petitioner, have crept in. 14. I have considered the submissions made by learned counsel for the parties and have perused the record. 15. It is clear from the record that in the transfer application, no allegation, at all whatsoever, has been made against the Presiding Officer. The only apprehension that has been expressed is that due to the strong political connections of the respondents, there is a possibility that the judgment in the mutation case may be influenced thereby. 16. I find merit in the submission made that the transfer application prima facie was filed only to linger the proceedings as only three dates have been fixed in the matter prior to the filing of the transfer application itself. On the second date, the petitioner had been granted time for filing his objection and on the next date, the matter was adjourned on account of a lawyers strike. It, therefore, stands established that nothing of consequence could have transpired in the case till the filing of the transfer application which would even remotely lead to some apprehension that the Presiding Officer was not fair or was under pressure as has been alleged by the petitioner. It, therefore, stands established that nothing of consequence could have transpired in the case till the filing of the transfer application which would even remotely lead to some apprehension that the Presiding Officer was not fair or was under pressure as has been alleged by the petitioner. The grounds that have been argued are grounds which have arisen on account of the comments that have been furnished by the Presiding Officer and the entire writ petition has been filed and has been pressed on such subsequent facts. 17. In my considered opinion, there was no material available on record at the time of filing of the transfer application itself, which could remotely be construed as a ground for transfer of the mutation case. 18. The Presiding Officer has furnished his comments without examining the record which has given ammunition to the petitioner to be used against him. 19. However, I do not consider it appropriate to interfere with the order impugned or to grant the mandamus on account of the comments in the transfer application, which is the basis of his writ petition. No allegations had been made against the Presiding Officer, in the transfer application itself. 20. In view of the above discussion, I find that the petitioner has not been able to make out a case in his favour. 21. The writ petition is therefore dismissed. Petition dismissed.