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2021 DIGILAW 1076 (ALL)

Ramesh Chandra v. Board of Revenue, Lucknow

2021-09-17

JASPREET SINGH

body2021
ORDER : 1. Heard learned counsel for the petitioner, the learned Additional Chief Standing Counsel for the State-respondents as well as Ms. Manjusha Kapil, learned counsel for the respondent No. 2. 2. With the consent of the parties, this matter has been heard finally. 3. Under challenge is the order passed by the Board of Revenue on a transfer application moved by the private respondent No. 2 which has been allowed by means of order dated 07.09.2020. 4. The submission of learned counsel for the petitioner is that the application for transfer which was moved by the private respondent No. 2 primarily raised the deficiencies in the order which was under review before the Presiding Officer. The merit of the order whether right or wrong and once a remedy of review has been adopted then on that ground an application for transfer seeking the matter to be placed before some other court is not desirable. Moreover, the respondent No. 1 while passing the impugned order dated 07.09.2001 without considering or application of mind has allowed the transfer application. 5. The learned counsel for the respondents while defending the said order has submitted that a revision was preferred before the said Presiding Officer which was decided by means of order dated 16.12.2020. Thereafter application for review was preferred. Since Presiding Officer was proceeding in a hurry, hence, an application for transfer was moved in terms of Section 212 of the U.P. Revenue Code, 2006. It is submitted that the Board of Revenue while considering the transfer application has noticed that since an allegation/apprehension has been expressed by the private respondent No. 2 that he may not be able to get justice from the Court concerned, the transfer application has been allowed and in this view of the matter, the petitioner cannot be aggrieved and the petition deserves to be dismissed. 6. Having considered the rival submissions and also from the perusal of the record, the fact which requires consideration is that once an order has been passed on 16.12.2020 against which the private respondents had consciously availed a remedy of filing a review. In such circumstances, it cannot be said that by making a bald allegation that they do not have the faith or that there is an apprehension that they may not get justice from the Court concerned a transfer application be entertained and allowed 7. In such circumstances, it cannot be said that by making a bald allegation that they do not have the faith or that there is an apprehension that they may not get justice from the Court concerned a transfer application be entertained and allowed 7. The matter of transfer on the allegation that a person may not get complete justice from the Court is a serious issue. This aspect of the matter has been considered by this Court in the case of Ram Prakash Vs. District Judge, Balli and Others, 2015 (1) ARC 103 and has held as under: “Law is well settled on the point that for transferring a case unless the Court feels the allegations, as levelled are bona fide and there is a reasonable apprehension in the mind of the litigant, the allegations may be of any serious nature, no transfer can be allowed. Transfer of a case from one Court to another is a very serious thing and that casts a doubt on the integrity of a Presiding Officer and thus the Court may be very cautious in dealing with these matters and unless there are various attending circumstances even if there is no direct proof in respect to the allegations, no transfer is to be allowed. In the event, the submission of the learned counsel for the petitioner is accepted that as a transfer application is moved, the faith of the litigant is shaken, then it is to be allowed/accepted, then it will lead to very unhealthy results as it will be a tool for the litigant to choose a Court according to the nature of the Presiding Officer, according to his views which may be widely known.” 8. Similarly in the case of Kedar Vs. Additional Commissioner, U.P. Government and Others, 2003 (94) RD 430 wherein the Court has held as under: “....6. The allegations of bias of Presiding Officer, if made the basis for transfer of case, before exercising power under section 24 C.P.C., the Court must be satisfied that the apprehension of bias or prejudice is bona fide and reasonable. The expression of apprehension, must be proved proved/substantiated by circumstances and material placed by such applicant before the Court. It cannot be taken as granted that mere allegation would be sufficient to justify transfer. The expression of apprehension, must be proved proved/substantiated by circumstances and material placed by such applicant before the Court. It cannot be taken as granted that mere allegation would be sufficient to justify transfer. In Smt. Sudha Sharma (supra) the Court observed that it is the duty of learned Counsel to draft the application and made allegations with utmost care and caution. Hon'ble B.M. Lal, J. (as His Lordship then was), said: “9.......a foremost duty casts upon the Counsel concerned while drafting and making allegations in the transfer petition against the Judge concerned with utmost care and caution, particularly in making wild allegations against the Presiding Judge. But, it appears that now-a-days it has become common feature to make allegations against the Court Presiding Judge. The Counsel should realise that they are also officers of the Court. Introducing fanciful and imaginary allegations as grounds for transfer and harbouring apprehension such grounds that fair and impartial justice would not be done should always be deprecated. 10. Nonetheless, it is also important for all those who are engaged in the task of administering justice to remember that it is incumbent on them to create and maintain such confidence and atmosphere by giving every litigant an assurance by their judicial conduct that fair and impartial justice will be imparted. It is necessary to create such a confidence in the mind of the litigants so that their faith may not be shaken in Courts of law.” 7. Mere suspicion by the party that he will not get justice would not justify transfer. There must be a reasonable apprehension to that effect. A judicial order made by a Judge legitimately cannot be made foundation for a transfer of case. Mere presumption of possible apprehension should not and ought not be the basis of transfer of any case from one case to another. It is only in very special circumstances, when such grounds are taken, the Court must find reasons exist to transfer a case, not otherwise. [Rajkot Cancer Society v. Municipal Corporation, Rajkot, AIR 1988 Guj. 63 ; Pasupala Fakruddin and another v. Jamia Masque and another, AIR 2003 A.P. 448 and Nandini Chatterjee v. Arup Hari Chatterjee, AIR 2001 Cal 26 ] 8. Where a transfer is sought making allegations regarding integrity or influence etc. [Rajkot Cancer Society v. Municipal Corporation, Rajkot, AIR 1988 Guj. 63 ; Pasupala Fakruddin and another v. Jamia Masque and another, AIR 2003 A.P. 448 and Nandini Chatterjee v. Arup Hari Chatterjee, AIR 2001 Cal 26 ] 8. Where a transfer is sought making allegations regarding integrity or influence etc. in respect of the Presiding Officer of the Court, this Court has to be very careful before passing any order of transfer. 9. In the matters where reckless false allegations are attempted to be made to seek some favourable order, either in a transfer application, or otherwise, the approach of Court must be strict and cautious to find out whether the allegations are bona fide, and, if treated to be true on their face, in the entirety of circumstances, can be believed to be correct, by any person of ordinary prudence in those circumstances. If the allegations are apparently false, strict approach is the call of the day so as to maintain not only discipline in the Courts of law but also to protect judicial officers and maintain their self esteem, confidence and above all the majesty of institution of justice.” 9. In this view of the matter, unless and until there are cogent and compelling reasons for transfer, such petitions of transfer cannot be entertained casually. 10. From the perusal of the impugned order dated 07.09.2021, this Court finds that in a complete casual manner without even adverting to the circumstance as to what has given rise to the said apprehension in the mind of the private respondents No. 2 regarding not getting justice from the Court concerned, nor any reason for allowing transfer has been given. The order is completely bereft of reasons and has been passed without considering the material available on record which could substantiate the allegations made in the transfer application. 11. In this view of the matter, the Court is of the view that the order dated 07.09.2021 cannot withstand judicial scrutiny and accordingly the same is quashed and set aside. Accordingly, the writ petition is allowed. In the facts and circumstances, there shall be no order as to costs.