Tabassum Fatima And Others vs Consolidation Commissioner, U.P. Lko. … on 16 July, 2025

Allahabad High Court

Tabassum Fatima And Others vs Consolidation Commissioner, U.P. Lko. … on 16 July, 2025

Author: Alok Mathur

Bench: Alok Mathur

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2025:AHC-LKO:40663
 
Court No. - 6
 

 
Case :- WRIT - B No. - 322 of 2025
 

 
Petitioner :- Tabassum Fatima And Others
 
Respondent :- Consolidation Commissioner, U.P. Lko. And 3 Others
 
Counsel for Petitioner :- Mohammad Ehtesham Khan
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Alok Mathur,J.
 

1. Heard Shri Mohammad Ehtesham Khan, learned counsel for the petitioners, learned Standing Counsel on behalf of respondents no.1 to 3 and Shri Ansuman Pandey, who has filed his Vakalatnama on behalf of respondent no.4, which is taken on record.

2. By means of the present writ petition, the petitioner has challenged the order dated 04.03.2025 passed by Consolidation Commissioner, Uttar Pradesh thereby allowing the application of the respondent no.4 under Section 65(2) of the Consolidation of the Holdings Rules thereby transferring the appeal preferred by the petitioner from the court of Settlement Officer Consolidation (Administration), Sultanpur.

3. It has been submitted by counsel for the petitioner that the present dispute pertains to the proceeding under Section 98(2) of the U.P. Consolidation of Holdings Act, 1953 whereby objections filed by one Asharfi Lal, father of the respondent no.4, were allowed by means of order dated 24.12.2010. The aforesaid order was challenged before the Settlement Officer Consolidation, Ayodhya by filing an appeal under Section 11(1) of the Act, 1953. During the proceedings, Asharfi Lal died and his legal heirs were substituted by the appellant. It has further been submitted that the writ petition was filed before this Court under Article 227 of the Constitution of India being Writ Petition No.1098 of 2023, Chaudhary Naved Raza (died) versus Settlement Officer Consolidation, Faizabad, where by means of order dated 03.03.2023, this Court had directed the Settlement Officer Consolidation, Ayodhya to decide the said appeal within period of six months from the date of production of certified copies of the orders. It has been submitted by the counsel for the petitioners that despite order passed by this Court, appeal remained pending and was fixed on 10.02.2025 giving liberty to the opposite party no.4 to argue the appeal. Instead of arguing the matter finally, the opposite party no.4 moved an application for transfer before the Consolidation Commissioner, which has been allowed by means of the impugned order dated 04.03.2025.

4. In paragraph no.2 of the application preferred by the petitioners, it has been alleged that the case was listed on 07.01.2025 where the Settlement Officer Consolidation had heard the matter ex parte and posted the matter on 18.01.2025. It has further been alleged that after the death of Asharfi Lal both his sons ought to have substituted while only Ram Bhawan has been substituted and the other person being Ramakant was not made a party. On 18.01.2025 when the case was listed, the matter was further adjourned to enable the opposite party therein to argue the matter and further a date was fixed on 21.01.2025. It is on the aforesaid circumstances that application for transfer was made.

5. A perusal of the application further reveals that certain comments of the clerk of the Settlement Officer Consolidation has been reproduced and on the basis of aforesaid averments, the application for transfer was made.

6. Considering the aforesaid application for transfer, the Consolidation Officer has only considered the fact that in case any party questions the impartiality of the Presiding Officer or shows any concern with regard to the independence of the Presiding Officer, then the proceeding should be transferred to another Presiding Officer in the interest of justice and merely recording the said fact has allowed the application preferred by respondent no.4.

7. Learned counsel for the petitioner has submitted that the law with regard to transfer of proceedings for judicial authority to another court should be made in case there is any reasonable apprehension questioning the judicial independence of the Presiding Officer. He submits that apart from making bold allegations, questioning the independence of the Presiding Officer, the appellant should adduce sufficient materials to indicate the matter requires to be transferred to another Presiding Officer and merely because any Presiding Officer, who may ask certain inconvenient questions to the party, will not be sufficient to exercise the power under Rule 65(2) of the Consolidation of Holdings Act. He submits that a perusal of the impugned order indicates that not even a solitary fact has been considered by the Consolidation Commissioner which may indicate independence of the Presiding Officer was compromised in any manner whatsoever and merely because the application for transfer has been made, the same has been allowed without any application of mind and accordingly, prayed for setting aside of the order dated 04.03.2025.

8. I have heard learned counsel for the parties and perused the record.

9. The facts of the case are not disputed inasmuch as the proceedings pending in an appeal before the Settlement Officer Consolidation under Section 11(1) of the Act, 1953, an application for transfer was moved by the respondent no.4.

10. I have perused the application and a perusal of the same indicates that certain proceedings before the appellate authority have been narrated and only grievance of the petitioner is with regard to the fact that the appellant has not made the brother of the respondent no.4, a party to the said proceedings, which according to respondent no.4 is a necessary party. Accordingly, grievance of the petitioner does not lie in the application for transfer but certainly some appropriate application could have been preferred by him for dismissal of the appeal for non-joinder of party.

11. Apart from the above, I find that the law with regard to transfer of judicial proceeding has been settled in a number of cases, viz-

12. Mere suspicion by the party that he will not get justice would not justify transfer. There must be a reasonable apprehension to that effect. 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. Reference can be made to the judgment(s) passed in the case of Rajkot Cancer Society vs. Municipal Corporation, Rajkot, AIR 1988 Guj 63; Pasupala Fakruddin and Anr. vs. Jamia Masque and Anr., AIR 2003 AP 448; and Nandini Chatterjee vs. Arup Hari Chatterjee, AIR 2001 Cul 26; as also the judgment dated 12.11.2014 passed in Transfer Application (Civil) No. 519 of 2014 (Amit Agarwal vs. Atul Gupta), 2014 SCC OnLine (All) 16200.

13. Reference can also be made on the judgments of this Court passed in the case of Salamat Ullah and Another vs. Ram Autar Khandelwal and Others reported in 2011 (10) ADJ 294 (LB) and judgment dated 10.09.2012 passed in Transfer Application (Civil) No.290 of 2012 (Shakeela vs. Mehboob Ali Siddiqui) and judgment dated 12.11.2014 passed in Transfer Application (Civil) No.524 of 2014 (Kaneej Fatma vs. Mohd. Tayyab), according to which the power of transfer must be practiced/ exercised with great caution and attentiveness and on the basis of vague/bald allegations made in the application seeking transfer against the Presiding Officer, the case should not be transferred.

14. Further, as per observations made in the judgment passed in the case of Madanlal Versus Babulal reported in AIR 1962 Mani 42 mere fact that an erroneous order has been passed is not in itself is a ground for transfer as it does not necessarily lead to inference of bias.

15. A Judge is not expected to remain silent during course of hearing and not to express any opinion. A sphinx like attitude is not expected from a Presiding Officer. There has to be an effective discussion and effective attempt to conciliate or to clarify the misunderstanding or to get the issues clear, so that the issues can be settled or a just and proper decision can be arrived at. If in that process the Presiding Officer would make a statement it should not be misunderstood as an expression of decision. Judges’ opinions during hearing of case do not automatically justify transfer. [Smt. Sangeetha S. Chugh vs. Ram Narayan V. and others, AIR 1995 Kar 112 and Official Assignee, Madras vs. Inspector-General of Registration, Bangalore and Anr., AIR 1981 Mad 54; Gujarat Electricity Board & Anr. vs. Atmaram Sungomal Poshani; AIR 1989 SC 1433 (1436).]

16. Certain observations made by a Judge in an earlier case can never be made a ground for transfer of the case as held in G. Lakshmi Ammal vs. Elumalai Chettiar and Ors, AIR 1981 Mad 24. The allegations of bias of Presiding Officer, if made the basis for transfer of case, before exercising power under Section 408 Cr.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 /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.

17. In Ajay Kumar Pandey, Advocate, (1998) 7 SCC 248, the Hon’ble Apex Court said that superior Courts are bound to protect the Judges of subordinate Courts from being subjected to scurrilous and indecent attacks, which scandalise or have the tendency to scandalise, or lower or have the tendency to lower the authority of any court as also all such actions which interfere or tend to interfere with the due course of any judicial proceedings or obstruct or tend to obstruct the administration of justice in any other manner. No affront to the majesty of law can be permitted. The fountain of justice cannot be allowed to be polluted by disgruntled litigants. The protection is necessary for the courts to enable them to discharge their judicial functions without fear.

18. The Hon’ble Apex Court in the case of Kulwinder Kaur v. Kandi Friends Education Trust reported in (2008) 3 SCC 659, observed as under:-

“23. Reading Sections 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 the plaintiff or the defendant or witnesses; convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit; issues raised by the parties; reasonable apprehension in the mind of the litigant that he might not get justice in the court in which the suit is pending; important questions of law involved or a considerable section of public interested in the litigation; “interest of justice” demanding for transfer of suit, appeal or other proceeding, etc. Above are some of the instances which are germane in considering the question of transfer of a suit, appeal or other proceeding. 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 dutyof the court to make such order.”

19. The aforesaid laws would clearly emphasize on sustenance of majesty of law by all concerned. Seeking of the transfer of criminal trial at the drop of a hat is not recognized by the courts or by any tenent of law. An order of transfer is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about the conduct of the trial by a Presiding Officer. This power would have to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide complete justice and credibility to the trial as held in Nahar Singh Yadav and Anr. v. Union of India and Ors. MANU/SC/0964/2010 : (2011) 1 SCC 307], the apprehension with regard to the miscarriage of justice should be real and substantial.

20. It is also worthwhile to extract the view of the Hon’ble Supreme Court in Usmangani Adambhai Vahora Vs. State of Gujarat and Ors, reported in MANU/SC/0014/2016 (AIR 2016 SC 336), wherein it is emphasized that simply because an accused or a party has filed an application for transfer, a Judge is not required to express his disinclination. He is required under law to do his duty and not to succumb to the pressure put by a party by making callous allegations and he is not expected to show unnecessary sensitivity to such allegations.

21. The Hon’ble Apex Court in the case of Afjal Ali Sha @ Abjal Shaukat Sha vs. State of West Bengal & Ors. 2023 SCC OnLine SC 282 observed as under:-

“C.2. GROUNDS FOR TRANSFER

26. Coming to the second limb of the contentions raised on behalf of the parties, we may firstly notice some of the well-defined contours in relation thereto. It has by now been well established that a well-founded apprehension that justice will not be done is a prerequisite for transfer of the case. Tracing the power of transfer of a case, we are reminded of Lord Hewart’s dictum in Rex v. Sussex Justices stating that “It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”.

27. The right to a fair trial is a fundamental right under Article 21 of the Constitution of India and its importance cannot be emphasised enough. However, to obtain the transfer of a case, the Petitioner is required to show circumstances from which it can be inferred that he entertains a reasonable apprehension. This apprehension cannot be imaginary and cannot be a mere allegation.

28. The power of transfer under Section 406, CrPC is to be exercised sparingly and only when justice is apparently in grave peril. This Court has allowed transfers only in exceptional cases considering the fact that transfers may cast unnecessary aspersions on the State Judiciary and the prosecution agency. Thus, over the years, this Court has laid down certain guidelines and situations wherein such power can be justiciably invoked.

29. In Amarinder Singh v. Parkash Singh Badal, this Court observed as follows:

“19. Assurance of a fair trial is the first imperative of the dispensation of justice. The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that the public confidence in the fairness of a trial would be seriously undermined, the aggrieved party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 CrPC.”

30. In Nahar Singh Yadav v. Union of India after analysing the case-law, this Court enumerated the basic principles of the power of transfer under Section 406, CrPC as follows:

“29. Thus, although no rigid and inflexible rule or test could be laid down to decide whether or not power under Section 406 CrPC should be exercised, it is manifest from a bare reading of sub-sections (2) and (3) of the said section and on an analysis of the decisions of this Court that an order of transfer of trial is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about the proper conduct of a trial. This power has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial. Some of the broad factors which could be kept in mind while considering an application for transfer of the trial are:

(i) when it appears that the State machinery or prosecution is acting hand in glove with the accused, and there is likelihood of miscarriage of justice due to the lackadaisical attitude of the prosecution;

(ii) when there is material to show that the accused may influence the prosecution witnesses or cause physical harm to the complainant;

(iii) comparative inconvenience and hardships likely to be caused to the accused, the complainant/the prosecution and the witnesses, besides the burden to be borne by the State exchequer in making payment of travelling and other expenses of the official and non-official witnesses;

(iv) a communally surcharged atmosphere, indicating some proof of inability of holding fair and impartial trial because of the accusations made and the nature of the crime committed by the accused; and

(v) existence of some material from which it can be inferred that some persons are so hostile that they are interfering or are likely to interfere either directly or indirectly with the course of justice.”

31. In R. Balakrishna Pillai v. State of Kerala, this Court noted the crucial separation of powers between the judiciary and the executive and held that “Judges are not influenced in any manner either by the propaganda or adverse publicity. Cases are decided on the basis of the evidence available on record and the law applicable.”

32. The convenience of parties and witnesses as well as the language spoken by them are also relevant factors when deciding a transfer petition, as has been noted by this Court in a catena of judgments.

33. In some of the recent decisions including in Neelam Pandey v. Rahul Shukla, this Court has viewed that transfer of a criminal case from one state to another implicitly reflects upon credibility of not only the State Judiciary but also of the prosecution agency.”

22. No specific allegations have been levelled questioning the independence of the Presiding Officer and therefore, considering the facts of the present case, I find that none of the grounds exists for transfer of the proceeding before the appellate authority nor I find any reason which can be elicited from the application for transfer necessitating exercise of power under Rule 65(2) of the Consolidation of Holdings Rules, 1954. Accordingly, the exercise of power is clearly without jurisdiction and contrary to the said provisions of law.

23. Accordingly, the writ petition is allowed. The impugned order 04.03.2025 is set aside. The proceedings are restored before the Settlement Officer Consolidation, Faizabad.

[Alok Mathur,J.]

Order Date :- 16.7.2025

KR