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2018 DIGILAW 806 (CAL)

Kunti Devi Barbara v. State of West Bengal

2018-11-19

SAHIDULLAH MUNSHI

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JUDGMENT : 1. This is an application under Section 24 of the Code of Civil Procedure seeking transfer of Misc. Case (L.A.) No. 166 of 2996 currently pending before the learned Additional District Judge, 1st Court at Darjeeling. 2. From the cause title it appears that the petitioner is a resident within the jurisdiction of Beniapukur Police Station, Kolkata 700 014. In the application the petitioner has made out a case that she is the owner of a building known as ‘Bindu Kothi’ together with vacant land adjoining the building situated at Kalimpong Town, District – Darjeeling. The said building together with vacant land has been acquired by the Government for the purpose of official residence. In pursuance of L.A. Case No. 7/40 of 75-76, the petitioner got a notice of an award under Section 11 of the Act-I for a sum of Rs. 2,65,591.00. 3. Being aggrieved by the said award the petitioner has filed a reference under Section 18 of 1894, which is currently pending before the learned Additional District Judge, 1st Court at Darjeeling. As a ground for transfer under Section 24 of the Code of Civil Procedure, the petitioner says that the said case has not proceeded with since the date of its filing. Petitioner has got an apprehension that the same may not proceed at an early date. She, however, submits that she is the sole lady without anybody to accompany her, the land acquisition case should be transferred to a place nearer to her residence at Kolkata. 4. In support of the prayer for transfer of the Misc. case, the petitioner has cited a decision of the Hon’ble Apex Court in the case of Kulwinder Kaur Vs. Kandi Friends Education Trust and Ors., reported in AIR 2008 SC 1333 . Placing reliance on the said decision of the Apex Court, learned Advocate appearing for the petitioner submits that there is no straightjacket formula for refusing the prayer made in the application under Section 24 of the Code but the Court should pass a reasoned order if refuses to pass such order under Section 24 of the Code. He submits that the ratio of the said decision favours his case for transfer of the Misc. Case (L.A.) No. 166 of 2996 from the Court of learned Additional District Judge at Darjeeling to any other Court at Kolkata. He submits that the ratio of the said decision favours his case for transfer of the Misc. Case (L.A.) No. 166 of 2996 from the Court of learned Additional District Judge at Darjeeling to any other Court at Kolkata. The background on which the said decision is based requires to be narrated. From paragraph 8 of the said decision it appears that by the order impugned before the Hon’ble Apex Court, the suit was transferred and a direction was issued to decide the matter expeditiously by giving two opportunities to each of the parties spread over a period of six months. 5. Therefore there is no doubt that the Hon’ble High Court against whose order granting transfer a Special Leave Petition was preferred was allowed by the Hon’ble Apex Court under Section 24 has been held to be wrong. The Apex Court in Special Leave Petition held :- “Having considered rival contentions of the parties and having gone through the proceedings of the case, we are of the view that the impugned order deserves to be set aside. So far as the power of transfer is concerned, Section 24 of the Code empowers a High Court or a District Court to transfer inter alia any suit, appeal or other proceeding pending before it or in any Court subordinate to it to any other Court for trial and disposal. The said provision confers comprehensive power on the Court to transfer suits, appeals or other proceedings ‘at any stage’ either on an application by any party or suo motu. The Hon’ble Apex Court has further observed :- “Although the discretionary power of transfer of cases cannot be imprisoned within a strait-jacket of any cast-iron formula unanimously applicable to all situations, it cannot be gainsaid that the power to transfer a case must be exercised with due care, caution and circumspection. Reading Section 24 and 25 of the Code together and keeping in view various judicial pronouncements, certain broad propositions as to what may constitute a ground for transfer have been laid down by Courts. They are balance of convenience or inconvenience to plaintiff or defendant or witnesses;.” The Hon’ble Apex Court has also held :- “They are, however, illustrative in nature and by no means be treated as exhaustive. They are balance of convenience or inconvenience to plaintiff or defendant or witnesses;.” The Hon’ble Apex Court has also held :- “They are, however, illustrative in nature and by no means be treated as exhaustive. If on the above or other relevant considerations, the Court feels that the plaintiff or the defendant is not likely to have a ‘fair trial’ in the Court from which he seeks to transfer a case, it is not only the power, but the duty of the Court to make such order.” 6. Ultimately, considering the fact situation of the case from which a Special Leave Petition was preferred before the Hon’ble Apex Court, the Apex Court observed :- “In our opinion, powers under Section 24 of the Code cannot be exercised ipse dixit in the manner in which it has been done. Only on that ground and without entering into larger issue, the appeal deserves to be allowed and is accordingly, allowed.” 7. Therefore, the decision which has been referred to by the learned Advocate, in support of transfer to the proceeding under Section 24 goes against him. The order of transfer made by the High Court has been set aside by the Apex Court. 8. In the fact situation of the present case it is the only submission of the petitioner that since she is the sole person residing in Kolkata she will not be able to attend the Court at the time of evidence. It is not known that after amendment of the Code of Civil Procedure, the scope under Order 26 has been enlarged and evidence even can be taken under a Commission duly appointed by the Court, if such prayer is made before the Court on the ground of inability of the petitioner to attend the Court for the purpose of recording evidence. 9. One more difficulty is also seen allowing the prayer for transfer. All officials pertaining to Land Acquisition case are lying at Darjeeling. Records are also lying in the district of Darjeeling. If the matter is to be transferred this will cause great inconvenience to the State Authorities. 10. In such a situation, I am of the clear view that there is no applicability of Section 24 of the Code in the present case and the application under Section 24 of the Code of Civil Procedure is hereby rejected. 11. If the matter is to be transferred this will cause great inconvenience to the State Authorities. 10. In such a situation, I am of the clear view that there is no applicability of Section 24 of the Code in the present case and the application under Section 24 of the Code of Civil Procedure is hereby rejected. 11. There will, however, be no order as to costs. 12. Urgent photostat certified copy of this order, if applied for, be given to the parties, on priority basis.