By means of present writ petition, petitioners have challenged the impugned order dated 20.7.2012(Annexure no.1) passed by opposite party no.1/ Collector/ District Deputy Director of Consolidation, Lucknow .
Sri M.A. Siddiqui, learned counsel for the petitioners while challenging the impugned order submits that aggrieved by the order passed by the Consolidation Officer , Mohanlalganj, Lucknow, petitioners filed a revision under Section 48 of the Consolation of Holdings Act before the Deputy Director of Consolidation, Lucknow for redressal of their grievances.
He further submits that during the pendency of present writ petition, contesting respondents moved an application for transfer of the matter from the Court of Deputy Director of Consolidation, Lucknow on 20.7.2012 as per the provisions as provided under Rule 65(1-A) of the U.P. Consolidation and Holding Rules, 1954 ( hereinafter referred to as 'Rules) and on the same day without issuing any notice to the revisionists/petitioners the revision pending before Deputy Director of Consolidation, Lucknow has been transferred by means of impugned order passed by District Deputy Director Consolidation, District Lucknow/opposite party no.1 to the Court of Additional District Magistrate ( Finance & revenue), Lucknow/ opposite party no.2.
In view of the above said facts, learned counsel for the petitioners submits that impugned order in question is in contravention to principles of natural justice as no opportunity whatsoever has been given to the petitioners, as well as in contravention to the law as laid down by this Court in the case of Smt. Vandana Sinha Vs. Yogendra Sinha, 1982 A.L.J. 253 and Hon'ble the Supreme Court in the case of Vivekananda Nidhi and others Vs. Asheema Goswami (Smt),(2000) 10 Supreme Court Cases, 23. Accordingly, he prays that the impugned order in question may be set aside and the matter may be transferred to the Court of Deputy Director of Consolidation/ opposite party no.3 to decide the same within the time frame as fixed by this Court and till then parties may be directed to maintain status quo as exits today.
Sri Rajendra Kumar Yadav, learned State Counsel has no objection to the above said prayer.
I have heard learned counsel for the parties present today.
On1.8.2012, this Court has passed the following orders :-
"Issue notice to opposite parties no. 4 to 12 returnable at an early date.
Learned�� State Counsel� prays for and is granted two weeks' time to file� counter affidavit, rejoinder affidavit, if any, be filed within� a week thereafter.
List thereafter .
Learned counsel for the petitioners for the purpose of interim relief submits that� an application� for transfer of the matter� from the Court of� Deputy Director of Consolidation, Lucknow has been made by the contesting respondents invoking the provisions as provided under Rule 65(A-1) of the U.P. Consolidation and holding Rules 1954 on 20.7.2012.� On the said date , without issuing any notice� and without providing any� opportunity of hearing� to the� petitioners ,� opposite party no.1/ District Deputy Director of Consolidation, Lucknow passed the� impugned order� thereby transferring the matter� to the Court of� Additional District Magistrate (Finance and Revenue) Lucknow. Accordingly , it is submitted by learned counsel for the petitioner that the impugned order passed by opposite party no.1 is contrary ito law and violative of principles of natural justice� as well as the law as laid down by this Court in the case of Umesh� Chandra Bharadwaj, Kanpur Vs. Mahesh Chandra Sharma Biswan� and others , AIR 1983 Allahabad 290.
It is further submitted on behalf of the petitioners that while considering the matter for transfer, it is mandatory� on the part of respondent no.1 to call� for a report from opposite party no.3 where the matter in question is pending for consideration� so the same� cannot be allowed and the same is liable to be stayed.
Prima facie, the submission made by learned counsel for the petitioners appears to be correct as such until further orders of this Court the� operation and implementation of the order order dated 20.7.2012 ( Annexure no.1) passed by opposite party no.1/ District Deputy Director of Consolidation, Lucknow� as well as the proceedings� in pursuance of the same� before opposite party no.2/ Additional District Magistrate ( Finance and Revenue) Lucknow are stayed. Further, the contesting respondents are directed not to interfere in peaceful possession of the petitioners� on the land in question."
In pursuance of above said facts and from the perusal of record it transpires that the petitioners have taken steps for service on respondents no. 4 to 11. Thereafter, office has submitted a report dated 17.9.2012 inter alia stating therein that service on contesting respondents except opposite party no.12 is sufficient. Subsequently, office has also submitted a report dated 19.9.2012 regarding service on respondent no.12( Sri Ram Kishore Gupta, Consolidation Officer).
In view of the above factual background with the consent of learned counsel for the parties present today as the point involved in the present case is trivial in nature , the present writ petition is being heard finally.
From the perusal of impugned order dated 20.7.2012 passed by opposite party no.1, it transpires that the contesting respondents no.3 to 11 moved an application for transfer of revision pending before opposite party no.3/ Deputy Director of Consolidation, Lucknow under Rule 65(1-A) of the Rules before opposite party no.1, who on the same day without issuing any notice to the petitioners, who are revisionist in the revision which they filed against the order dated 26.7.2012 passed by the Consolidation Officer, Mohanlalganj, Lucknow, allowed the said application thereby transferring the case/revision from opposite party no.3 to opposite party no.2.
Thus as the opposite party no.1 has passed the impugned order without providing any opportunity to the petitioners thereby transferring the matter from opposite party no.3 to opposite party no.2 is in contravention of principles of natural justice , as it is a settled law if any order has a civil consequence the same shall be passed after providing adequate opportunity of hearing to the parties concerned . However, if the same is passed ex parte behind the back of person who is aggrieved then the same will be arbitrary as well as in contravention to the principles of natural justice, cannot be sustained under law.
Needless to mention herein that the power as provided under Rule 65 (1-A) of the Rule for transferring the matter from one court to another court by the competent authority in the consolidation proceedings is to be decided and adjudicated on the same principles and guidelines as provided under Section 24 CPC.
Thus the competent authority while exercising the said power under Rule 65(1-A) of the Rules shall act and pass orders on the same parameters as provided for transferring the matter under Section 24 C.P.C. In the case of Yogendra Sinha ( Supra) this Court while interpreting Section 24 CPC has held as under:-
" Section 24 C.P.C. does not prescribe any grounds for ordering the transfer of a case. It may be ordered suo motu. That may be done for administrative reasons. But when an application for transfer is made by a party, the Court must issue notice to the other party and hear the parties before ordering a transfer. That implies that the Court must act judicially in ordering a transfer on the application of a party, or in refusing an application for transfer of a case from one Court to another. The discretion is of the Court, and of a superior Court at that. The discretion must be exercised judicially. That means that in ordering or refusing to order a transfer, the Court must be guided by its sense of justice, but on objective considerations and not subjectively. A transfer may be ordered if the Court finds it just and proper. What is just and proper depends, of course, on the facts and circumstances of each case, and, if I may add, the good sense of the Judge. There cannot be any hard and fast rules, and that explains the conflict of authorities, if one were to read them, for determining whether a particular case was a fit one or not for ordering a transfer. The AIR Commentaries on the Code of Civil Procedure, IX Edn. Vol. I. Pages 567 to 570, Note 13, under Section 24, are full of them. I do not propose to read them in this case, for one cannot be too hidebound by authorities in a matter like this. The simple rule, which I think is the true rule, and must be followed by a Judge before ordering a transfer is to ask himself the question, of course, after settling the facts, whether on the facts and in the circumstances of the case a transfer of the case from one Court to another would advance justice, by making it more conveniently and easily available to the parties, or by giving the parties a greater confidence and sense of satisfaction in its impartial administration. The rule is like all such rules, neither exhaustive nor hard and fast. It is flexible."
Hon'ble the Supreme Court in the case Vivekananda Nidhi and others( Supra) while interpreting the provisions as provided under Section 24 CPC. held that before deciding the application under said section it is mandatory to issue a notice to the parties and after hearing the parties appropriate order shall be passed with regard to transfer.
Further , the ground which has been taken by opposite party no.1 for transferring the matter in question is contrary to the law as laid down by this Court in the Case of Masroor Vs. District Judge, Shahjahanpur and others, 2002 (93) RD 563, Zohra Begum ( Smt.) and others Vs. VIIth ADJ Bareilly and another decided on 20 April, 2000 and M/s Moder hardwares and others Vs. prescribed Authority, Dehradun and others decided on July,26,1990. Hence the impugned order is unsustainable , liable to be set aside.
For the foregoing reasons, the writ petition is allowed. The impugned order dated 20.7.2012 ( Annexue no.1) passed by opposite party no.1/District Deputy Director of Consolidation/ Collector , Lucknow is set aside and the Deputy Director of Consolidation, Lucknow/opposite party no.3 is directed to decide the matter in question in accordance with law expeditiously, preferably within a period of three months from the date a certified copy of this order is produced before him after hearing the learned counsel for the parties. Further, the parties are directed to maintain status quo as exists on 1.8.2012 and also restrained from transferring or alienating the property in dispute for the aforesaid period of three months or till the decision is taken by opposite party no.3 whichever is earlier.
Order Date :- 29.10.2012 dk/