Heard Dr. V.K.Rai, along with Sri Ashok Kumar Singh, learned counsel for the petitioner and the learned standing counsel for the respondents.
Considering the facts of the case the writ petition is taken up for final disposal without issuing notice to the private respondent with liberty to him to file an application seeking variation/ recall /modification of the order which is going to be passed.
This writ petition has been filed with the following prayer:
I)Issue a writ of certiorari to quash the order dated 21.2.2014 passed by respondent no.1 in transfer application no. 597 (LR2001-14 (Kailash Nath Singh vs. Suresh);
II)issue a writ of mandamus directing to the respondent no.2 to decide the appeal no.2 of 2009 Suresh Singh versus Uday Chand Singh and others, expeditiously.
III)Any other relief order and direction, which this Hon'ble Court may deem fit and proper in the interest of justice..
IV)Costs of the petition be awarded to the petitioners.
On 24.10.2014 this Court has passed the following order:
"Heard Dr. Vinod Kumar Rai along with Sri Ashok Kumar Singh, learned counsel for the petitioner.
While assailing the impugned transfer order 21.1.2014 passed by the learned Member Board of Revenue in Transfer Application No. 597/LR/2013-14, learned counsel for the petitioner contends that the transfer was sought by the otherside on the basis of malafide against the learned Additional Commissioner. The learned Member Board of Revenue without having comment of the learned Additional Commissioner and without there being any notice to the petitioner has passed the impugned order. In his submissions, earlier on 7.5.2013, a direction was issued by this Court in Writ-C No. 16790 of 2013 (Kailash Nath and another Vs. State of U.P. and others) to decide the appeal expeditiously. The other side, after this order was passed, has filed transfer application for transferring the case from the court of Additional Commissioner. On that, comment was sought for by the Commissioner from the Additional Commissioner. Pending that, he has filed another transfer application before the Board of Revenue, on which impugned order has been passed.
Learned Standing Counsel is directed to get the entire records of Transfer Application No.597/LR/2013-14 and Transfer Application No. 65.
Put up on 4th March, 2014 as fresh as first case."
On 11.3.2014 learned standing counsel has produced the record.
The facts giving rise to this case are that vide order dated 21.1.2014 passed on transfer application 597/LR/2013-14 (Kailash Nath Singh vs. Suresh Singh), learned Member Board of Revenue has allowed the transfer application and transferred Appeal No. 2 of 2009 (Suresh Singh vs. Kailash Singh and others) from the court of Additional Commissioner, Varanasi Division Varanasi, (the respondentno.2) to the Court of Commissioner, Varanasi Division, Varanasi, respondent no.3. The transfer was sought on the allegation that the behaviour of the learned Additional Commissioner was such as if he was siding with the other side with the further allegation that the respondent no.2 has got interpolated the record by calling the appellant, Suresh Singh (the petitioner) in his chamber and in this way the respondent applicant became confident that in case the matter is heard by the respondent no.2 injustice may be done to the contesting respondent no.4, namely, Kailash Singh.
Learned Member Board of Revenue by the impugned order believing the allegation made in the transfer application true, has allowed the transfer application without there being any notice or opportunity of hearing to the petitioner as well as the respondent no.2.
It is stated that with respect to the aforesaid pending case before the court below this Court was earlier approached through Writ-C No. 16790 of 2013 (Kailash Singh and others vs. State of U.P. And others) and this Court Court has disposed of the writ petition vide order dated 7.5.2013 with the direction to the respondent no.2 to decide the appeal expeditiously without granting unnecessary adjournment to the learned counsel for the parties.
It appears after the aforesaid order was produced before the respondent no.2, he has proceeded to decide the appeal. The respondent with a view to delay the proceeding has filed Transfer Application No. 65 before the respondent no. 3. On this transfer application the respondent no.3 has sought comments of the respondent no.2 fixing 10.12.2014. It is stated in paragraph 7 of the writ petition that respondent no.2 has sent his comment to the respondent no.3. A copy of the transfer application and the comment of the respondent no.2 has been brought on record as Annexure 4 to the writ petition. It is stated in paragraph no. 8 of the writ petition that concealing the material facts respondent no.4 has filed another transfer application No. 59 /2013-14 before the learned Member Board of Revenue which has been allowed by the impugned order.
Submission of the learned counsel for the petitioner is that the impugned order is unsustainable in the eye of law as the same has been passed without affording an opportunity of hearing to the petitioner. In his submission the transfer application ought ought to have been rejected for the reason that the respondent no.4 has filed transfer application No. 65 before the respondent no.3 which is still pending and concealing this fact second transfer application was filed.
On this fact normally this Court would have issued notice to the contesting respondent but considering the nature of the order which has been passed in a summary proceeding inviting of the counter affidavit will unnecessarily delay the disposal of the appeal on merit either by respondent no.2 or by respondent no.3, therefore the case is taken up for final disposal with the consent of the learned counsel representing the parties.
The basic question which requires address of this Court is as to weather this kind of order can be sustained in the eye of law in which allegation has been made against the court by the party seeking transfer of case and the learned Member Board of Revenue without inviting comment of the court concerned and without affording an opportunity of hearing to the other side can pass such type of order.
Learned standing counsel appearing for the State submitted that from the perusal of the impugned order and the record available with him perhaps he cannot defend the order to the extent to which the same has been passed without affording opportunity of hearing but simultaneously he has also submitted that while allowing the transfer application since no comment has been made either against the respondent no.2 against whom allegation has been made or against the petitioner, therefore, considering the nature of the proceeding which is summary in nature as no prejudice has been caused to the parties as substantial justice has been done to them, therefore, this Court should not interfere with the impugned order.
Section 191 and 192 of the U.P. Land Revenue Act, 1901 (hereinafter referred to as the Act) empowers the Collector/Commissioner/Board of Revenue to transfer the case from one revenue court to another revenue court.
"191. Power of Board or Commissioner to transfer cases. - The Board or a Commissioner may transfer any case or proceeding arising under the provisions of this Act, including a partition case, from any subordinate Revenue Court or Revenue Officer to any other Court or officer competent to deal therewith.
192. Power to transfer cases to and from subordinates.- The Collector, an Assistant Collector in charge of a sub-division of district, a Tahsildar, a Record Officer, or a Settlement Officer may make over any case or class of cases arising under the provisions of this Act or otherwise, for inquiry or decision, from his own file to any of his subordinates competent to deal with such case or class of cases; or may withdraw any case or class of cases form any Revenue Officer subordinate to him and may deal with such case or class of cases himself or refer the same for disposal to any other such Revenue Officer competent to deal therewith."
On being confronted as to weather there is any rule or any provision in the Revenue Court Manual how to decide the transfer application filed either before the Board of Revenue or Collector/ Assistant Collector/ Incharge of Division, learned standing counsel states that neither there are any rule nor any provision under the Revenue Court Manual which prescribe method to decide the transfer application. Learned counsel for the petitioner also joins hand with the learned standing counsel in this regard.
The question would be in absence of any procedure prescribed under the rules what procedure should have been adopted by the Court while dealing with the transfer application where transfer has been sought on the ground of mala fide against the court concerned.
It is well settled principles of interpretation of the statutes that for achieving the aim and objects of the statute if there are other pari materia statutes then with a view to make the statute workable, help of other statutes may be taken. Such type of extension of the rule is always permissible, as stated by Lord Mansfield "where there are different statutes in pari materia though made at different times, or even expired, and not referring to each other, they shall be taken and construed together as one system and as explanatory of each other." A.G. v. HRH Prince Ernest Augustus of Hanover, (1957) 1 All ER 49, p. 53 : 1957 AC 436 (HL). This view has been followed by the Apex Court in the case of Shah & Co. Bombay Vs. State of Maharashtra, AIR 1967 SC 1877, Sirsilk Ltd. Vs. Textiles Committee A.I.R. 1989 SC 317, Jugul Kishore Vs. State of Maharashtra, AIR 1989 SC 159 Page 162 and Kusum Ingots and Alloys Ltd. vs. Union of India, (2004) 6 SCC 254 Page 259 and in many other cases. In these judgments the Apex Court has taken the view that statute on the same point, pari materia have to be read in a complementary manner so that they do not create contradictions while operating in the same field.
As has been noticed since there is no provision how to deal with transfer application filed either under section 191 or 192 of the Act therefore provisions contained in Section 24 of the Civil Procedure Code, which is meant for transferring the cases from one court to another court on principle can be made applicable, which reads as under:
"24. General power of transfer and withdrawal.-(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage.
(a) Transfer any suit,, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or
(b) Withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and
(i) Try or dispose of the same, or
(ii) Transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or
(iii) Retransfer the same for trial or disposal to the Court from which it was withdrawn.
(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which is thereafter to try or dispose of such suit or proceeding may, subject to any special directions in the case of an order of transfer, either re-try it or proceed from the point at which it was transferred or withdrawn.
(3) For the purpose of this section--(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court; (b) "proceeding" includes a proceeding for the execution of a decree or order.
(4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.
(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.
It would transpire from the bare reading of sub-section (1) of Section 24 of the Civil Procedure Code that after receipt of transfer application the court has to issue notice to the parties only after hearing them order has to be passed. However, in some cases the court on its own wish can transfer a case without notice but when order is to be passed after notice or without notice this has not been elaborated. I am of the opinion that in a situation where the court is passing an order transferring the case on his own motion in that eventuality notice is not required but when the transfer is sought on the ground of malafide certainly without having comment of the court concerned against whome malafide was made and hearing the affected parties transfer application cannot be allowed.
Here in this case since the transfer has neither been sought on the administrative ground nor personal inconvenience of the person concerned but on the basis of the allegations made against the presiding officer, therefore, the learned Member, Board of Revenue, in my view, has erred in allowing the application without having comment of the respondent no.2 against whom allegation was made without verifying the genuineness of the grounds taken in the transfer application and also without there being any notice to the other side.
The matter may be examined from another angle also. The Apex Court in the case of D.K.Yadav Vs. J.M.A. Industries Ltd. ( 1993,SCC 259 ) has made the following observations:
"The cardinal point that has to be borne in mind, in every case, is whether the person concerned should have a reasonable opportunity of presenting his case and the authority should act fairly, justly, reasonably and impartially. It is not so much to act judicially but is to act fairly, namely, the procedure adopted must be just, fair and reasonable in the particular circumstances of the case. In other words application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority from acting arbitrarily effecting the rights of the concerned person."
In State of Orissa Vs. (Misss) Birapani Dei (1967 AIR S.C. 1269) Hon'ble Apex Court has held that even an administrative order which involves civil consequences must be made consistently with the rules of natural justice. The person concerned must be informed of the case, the evidence in support thereof supplied and must be given a fair opportunity to meet the case before an adverse decision is taken. Since no such opportunity was given it was held that superannuation was in violation of principles of natural justice.
In Maneka Gandhi Vs. Union of India (1978) 1 SCC 248: (1978) 2 SCR 621 a Bench of seven judges of the Apex Court has held that the substantive and procedural laws and action taken under them will have to pass the test under article 14. The test of reasons and justice cannot be abstract. They cannot be divorced from the needs of the nation. The tests have to be pragmatic otherwise they would cease to be reasonable. The procedure prescribed must be just, fair and reasonable even though there is no specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the right of that individual. The duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action. Even executive authorities which take administrative action involving any deprivation of or restriction on inherent fundamental rights of citizens, must take care to see that justice is not only done but manifestly appears to be done. They have a duty to proceed in a way which is free from even the appearance of arbitrariness, unreasonableness or unfairness. They have to act in a manner which is patently impartial and meets the requirement of natural justice.
This view has been consistently followed by the Hon'ble Apex Court in number of cases namely, Whirlpool Corporation vs. Registrar of Trade Marks (1998 (8) SCC 1, Canara Bank vs. V.K.Awasthy (2005 (6) SCC 321), Bidhannagar (Salt Lake) Welfare Ass. vs. Central Valuation Broad and Others ((2007) 6 SCC 668) and Devdutt vs. Union of India and others (2008(3) ESC 433(SC).
It is settled principle of law that justice should not only be done, but it appears to have been done. The manner in which the learned Member Board of Revenue proceeded to decide the transfer application cannot be said to be a fair and transparent particularly in the circumstances when the transfer application has been allowed on the allegation of the malafide.
Learned Member, Board of Revenue was exercising power of the court and in court proceeding this kind of order can never be passed particularly in the circumstances when relief has been sought on the ground of malafide against the court.
In view of the foregoing discussions I am of the considered opinion that the impugned order dated 21.1.2014 passed by respondent no. 1 on the Transfer Application No. 597 (LR-2001-14) Kailash Nath Singh vs. Suresh) is an illegal, arbitrary order, not inspiring faith in judicial system having colour of insolency, therefore, it is hereby quashed. The writ petition succeeds and is allowed.
Learned Member, Board of Revenue is directed to pass a fresh order in accordance with law only after having comment of respondent no.2 and hearing the petitioner, if possible within a period of three months from the date of production of a certified copy of the order of this Court without granting any unnecessary adjournment of learned counsel appearing for the parties. In case any adjournment is sought that may be granted only after imposing cost with the direction to deposit the same by the next date fixed.
Order Date :- 2.4.2014 samz