Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 2756 (HP)

Onkar Chand v. State of H. P.

2016-12-29

TARLOK SINGH CHAUHAN

body2016
JUDGMENT : Tarlok Singh Chauhan, J. By medium of this petition filed under Article 227 of Constitution of India, the petitioner has sought transfer of election petition pending before the Authorized Officer-cum-SDO (C), Sujanpur, District Hamirpur on the ground that the said Officer is biased. 2. The brief facts as are necessary for the adjudication of this petition are that an election petition came to be filed by respondent No.3 against the petitioner, which is pending before respondent No.2. It is averred that respondent No.2, has time and again, during the course of trial, made uncalled for remarks and, therefore, the petitioner apprehends that he would not get justice. It is further averred that respondent No.2 has openly disclosed that he is going to set aside the election of the petitioner. It is also averred that ever since the date of filing of the election petition on 23.2.2016, about 16 dates of hearing stand fixed by respondent No.2 and on each and every date of hearing, respondent No.2 has openly stated that he would decide the election petition within 2-3 months and he is going to set aside the election of the petitioner. 3. Apart from this, the behaviour of respondent No.2 is rude to the extent that the petitioner has been driven to the wall and it is on account of political pressure being exercised upon him that he has time and again disclosed that he intends to make an adverse decision against the petitioner. 4. I have heard the learned counsel for the petitioner and have gone through the material placed on records of the case. 5. The basic principle governing transfer of petition is that such petition is not to be dealt with in a light-hearted manner and transfer of a case from one authority to another should not be granted readily for any fancied notion of the petitioning litigant because of the reason that such transfer of a case from one authority to another in effect casts doubt on the integrity competence and reputation of the concerned authority. Unless and until a sufficiently cogent ground is disclosed, transfer should not be allowed as a matter of course. The authority from which the case is sought to be transferred must be shown to have disclosed a definitely unfair attitude or biased frame of mind against the petitioner. Unless and until a sufficiently cogent ground is disclosed, transfer should not be allowed as a matter of course. The authority from which the case is sought to be transferred must be shown to have disclosed a definitely unfair attitude or biased frame of mind against the petitioner. Transfer can only be ordered when the party has reasonable apprehension that the justice would be denied to him. The mere fact that the party has suspicion in this regard cannot constitute a valid ground. Likewise, mere presumption or possible apprehension cannot and should not be made the basis of transferring a case from one authority to another. 6. In Usmangani Adambhai Vahora versus State of Gujarat and another (2016) 3 SCC 370 , the Hon’ble Supreme Court has held that seeking transfer at the drop of a hat is unconceivable. It was further held that order of transfer is not to be passed as a matter or routine or merely because the interested party has expressed some apprehension about proper conduct of trial. The power of transfer has to be exercise cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to trial. There has to be a real apprehension that there would be miscarriage of justice. 7. On a careful scrutiny of the material placed on record, it cannot be gathered or held that there was a real apprehension or bias against the authority. 8. Evidently, as per the showing of the petitioner himself, the election petition is pending for the last more than ten months and has not been decided against the petitioner and in fact as many as 16 proceedings have been held in the case, which only prove that respondent No.2 is not biased against the petitioner or else by now, the proceedings would have culminated into an adverse order against the petitioner. It cannot be said that there is reasonable apprehension on the part of the petitioner that justice would not be done. The petitioner has failed to point out circumstance from which it can be inferred that he entertains apprehension and that is reasonable in the circumstances as alleged. 9. It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done. The petitioner has failed to point out circumstance from which it can be inferred that he entertains apprehension and that is reasonable in the circumstances as alleged. 9. It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice would not be done in a given case does not suffice. The Court has further to see whether the apprehension is reasonable or not. To judge of the reasonableness of the apprehension, the state of the mind of the person who entertains the apprehension is no doubt relevant but that is not all. The apprehension must not only be entertained but must appear to the Court to be a reasonable apprehension. This apprehension must be reasonable and not imaginary, based upon conjecture and surmises. However, no universal or hard and fast rule can be prescribed for deciding a transfer petition, which has always to be decided on the basis of each case. 10. Having said so, I find no merit in the petition and the same is dismissed in limine, so also the pending applications.