# Kodai v. Addl. Commissioner (Consolidation) Lko. & Ors

- **Citation:** (2021) 8 ILRA 207
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-09
- **Case number:** Consolidation No. 11980 of 2020
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kodai-v-addl-commissioner-consolidation-lko-ors-47184
- **Pages:** 5

## Headnote

A. UP Consolidation of Holdings Act, 1953
- Sections 9-A & 11(1) - UP CH Rules,
1954 - Rule 65(1-A) - Transfer of the
appeal - Allegation made against the
presiding
officer
-
Objection
to
its
maintainability - Transfer application was
allowed in a completely casual and routine
manner - No application of mind to the
objections raised by the petitioner -
Validity - Held, transfer of a case from one
court to another is a very serious matter
as it casts a doubt on the integrity of a
presiding officer - An order allowing the
transfer application in a routine manner
cannot be condoned. (Para 7, 9 and 12)
Writ Petition allowed. (E-1)
Cases relied on :-

## Text

8 All. Kodai Vs. Addl. Commissioner (Consolidation) Lko. & Ors.
207
by
DDC,
Faizabad
in
Revision
No.2599/1118/449/574 is quashed and the
order dated 20.08.1982 passed by the
Consolidation
Officer
is
maintained.
However, in the facts and circumstances,
there shall be no order as to costs.
----------
(2021)08ILR A207
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.08.2021

BEFORE

THE HON'BLE MANISH MATHUR, J.

Consolidation No. 11980 of 2020

Kodai ...Petitioner
Versus
Addl. Commissioner (Consolidation) Lko. &
Ors. ...Respondents

Counsel for the Petitioner:
Santosh Kumar Mehrotra, Ishwar Dutt
Shukla, Priyam Mehrotra

Counsel for the Respondent:
Tej Singh, Hari Prakash Yadav, Mohan
Singh, Uma Kant

A. UP Consolidation of Holdings Act, 1953
- Sections 9-A & 11(1) - UP CH Rules,
1954 - Rule 65(1-A) - Transfer of the
appeal - Allegation made against the
presiding
officer
-
Objection
to
its
maintainability - Transfer application was
allowed in a completely casual and routine
manner - No application of mind to the
objections raised by the petitioner -
Validity - Held, transfer of a case from one
court to another is a very serious matter
as it casts a doubt on the integrity of a
presiding officer - An order allowing the
transfer application in a routine manner
cannot be condoned. (Para 7, 9 and 12)
Writ Petition allowed. (E-1)
Cases relied on :-
1. Kedar Vs Additional Commissioner, U.P.,
Lucknow & ors., 2003 (94) Revenue Decision
430
2. Ram Prakash Vs D.J., Balli & 16 ors., 2015
(1) ARC 103
(Delivered by Hon'ble Manish Mathur, J.)

1.

Heard
learned
counsel
for
petitioner, learned State Counsel for
opposite party No.1 and learned counsel for
opposite parties 3 and 4. Mr. Mohan Singh
learned counsel has put in appearance on
behalf of opposite party No. 9. Notices to
opposite party No. 2 stand dispensed with.
It is admitted between the parties that the
property in question has been subsequently
purchased by the opposite party no.4 from
the opposite parties 5 to 8 and as such the
said opposite parties 5 to 8 are merely
proforma opposite parties with regard to
present petition. The opposite parties 3 and
4 being the primary litigating opposite
parties, as such notices although issued
earlier to opposite parties 5 to 8 though not
served are not being taken into cognizance
and the matter is being finally decided with
the consent of learned counsel for parties.

2. Petition has been filed against order
dated 18th February, 2020 passed by
Additional Commissioner, Consolidation,
Lucknow whereby the appeal No.21 of
2019 (Kodai versus Shyam Charan and
others) under Section 11(1) of the U.P.
Consolidation of Holdings Act has been
transferred from the court of Settlement
Officer, Consolidation, Ambedkar Nagar to
the
court
of
Settlement
Officer,
Consolidation, Ayodhya.

3. Learned counsel for petitioner
submits that the father of petitioner was
recorded over the suit premises but during
consolidation proceedings, his right and
title over the suit premises ended on the
208 INDIAN LAW REPORTS ALLAHABAD SERIES
basis of a fraudulent compromise without
any notice or information to the father of
petitioner. The aforesaid case under section
9-A of the Act of 1953 was decided in
terms of the said fraudulent compromise by
means of the order dated 25th July, 1991. It
is submitted that when the father of
petitioner came to know about the aforesaid
fraudulent compromise, he filed a delayed
appeal on 25th October, 2007. It is
submitted that during pendency of the
aforesaid proceedings, it was revealed that
the suit premises had been purchased by the
opposite party No.4 by means of a
registered sale deed. It is submitted that
during
pendency
of
the
aforesaid
proceedings, the opposite party No.3 who
was the manager of the institution (arrayed
as opposite party No.4 in the present writ
petition) filed an application for transfer of
the appeal under Rule 65 of the U.P.
Consolation of Holdings Rules, which has
been allowed by means of the impugned
order.

4. Learned counsel for petitioner has
assailed the impugned order on the basis
that
the
Consolidation
Commissioner,
Lucknow did not have any jurisdiction to
transfer the case in terms of Rule 65 (1-A)
of the aforesaid Rules. It is submitted that
during objections filed by the petitioner to
the transfer application, a preliminary
objection regarding maintainability of the
transfer
application
before
the
Consolidation Commissioner had been
taken. It is submitted that further objection
had been taken that false averments had
been made in the transfer application
merely to get the matter transferred from
the court of the Settlement Officer,
Consolidation Ambedkar Nagar since it
was an old matter and was not being
adjourned. Learned counsel for petitioner
submits that the impugned order has not
dealt with the objections taken by the
petitioner
to
the
transfer
application
although the submissions against the
transfer application have been indicated in
the impugned order itself. As such it is
submitted that the order impugned has been
passed without any application of mind and
without adverting to the preliminary
objection raised by the petitioner. It has
also been submitted that transfer of a case
has serious bearing not only to the litigation
but also to the reputation of the presiding
officer and therefore should not have been
passed in such a casual manner.

5. Learned counsel appearing on
behalf of the opposite parties 3 and 4 has
refuted the submissions advanced by
learned counsel for petitioner with the
submission
that
the
Consolidation
Commissioner
has
full
power
and
jurisdiction under Rule 65 of the aforesaid
Rules to direct transfer of the pending
appeal. It is also submitted that a perusal of
the impugned order will make it apparent
that the submissions advanced by petitioner
regarding maintainability of the transfer
application and the averments made therein
have been dealt with by the concerned
authority. It is also submitted that the
impugned order has been passed in order to
maintain the purity of the proceedings and
in order to accord fairness in action with
regard to final decision in the appeal.
Learned counsel has submitted that the
impugned order records the fact that the
transfer applicant has serious apprehension
with regard to imparting of a fair order in
the appeal.

6. Having considered the material on
record and submissions advanced by
learned counsel for parties, it is apparent
that the transfer application has been filed
before the Consolidation Commissioner by
8 All. Kodai Vs. Addl. Commissioner (Consolidation) Lko. & Ors.
209
the opposite party No.3 although the
transfer application does not indicate that it
has been filed in the capacity of the
manager of the institution i.e. opposite
party No.4. The petitioner has thereafter
filed a short counter affidavit indicating
preliminary
objection
regarding
maintainability of the transfer application
and had subsequently filed his objections to
the transfer application itself in which a
plea has been taken that the allegations
made against the presiding officer are
completely false and uncalled for. A
perusal of the impugned order makes it
evident
that
although
a
preliminary
objection and the objection on facts of the
transfer application have been noticed by
the
Consolidation
Commissioner
but
without
adverting
to
the
same,
the
impugned
order
has
been
passed
transferring the appeal only on the ground
of apprehension on the part of the transfer
applicant/opposite party No.3.

7.

Since
the
Consolidation
Commissioner has not recorded any finding
with regard to the preliminary objection
about
maintainability
of
the
transfer
application in terms of the Rule 65 of the
Rules, it would not be appropriate for this
Court to deal with the said issue and the
aforesaid question is therefore left open.

8. The matter pertaining to transfer of
case from one court to another merely on
the basis of allegations made in the transfer
application
without
verifying
the
allegations made against the presiding
officer can not be permitted in such a
casual manner. In case transfer of cases is
allowed in such a manner, there can never
be any finality attached to any litigation
since upon any inconvenient question being
asked by the court regarding the litigation,
any party to dispute would seek transfer of
the case and for not having to answer such
inconvenient questions. It is quite correct
that seeking transfer of any case from one
court to another while casting aspersion on
the integrity and character of the presiding
officer can not be taken lightly and has to
be considered in a serious manner. As such
any such aspersion on the integrity and
character of the presiding officer while
seeking transfer from his court has to be
treated
with
utmost
seriousness
and
concern by the authority hearing the
transfer
application.
The
transfer
application at the behest of any of the
parties to the lis can be done only after the
apprehensions and allegations indicated in
the transfer application are verified by the
authority or the court hearing the transfer
application. It is not to be allowed in a
routine manner.

9. So far as the transfer of the case in
terms of the averments made in the transfer
application is concerned, this Court in the
case
of
Kedar
versus
Additional
Commissioner,
U.P.,
Lucknow
and
others reported in 2003 (94) Revenue
Decision 430 has clearly stipulated that
transfer of a case from one court to another
is a very serious matter as it casts a doubt
on the integrity of a presiding officer. It has
been held that the court must be very
conscious in dealing with these matters and
unless
there
are
various
attending
circumstances even if there is no direct
proof with regard to allegations, no transfer
should be allowed.

10. This court in the case of Ram
Prakash versus District Judge Balli and
16 others reported in 2015 (1) ARC 103
has also held in the following manner:-

" 7. Mere suspicion by the party
that he will not get justice would not justify
210 INDIAN LAW REPORTS ALLAHABAD SERIES
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
vs.
Municipal
Corporation, Rajkot, AIR 1988 Gujarat
63; Pasupala Fakruddin and Anr. vs.
Jamia Masque and Anr., AIR 2003 AP
448; and, Nandini Chatterjee vs. Arup
Hari Chatterjee, AIR 2001 Culcutta 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.
xxxxx
xxxxxxx
xxxxxxx

13. If there is a deliberate attempt
to
scandalize
a
judicial
Officer
of
subordinate Court, it is bound to shake
confidence of the litigating public in the
system and has to be tackled strictly. The
damage is caused not only to the reputation
of the concerned Judge, but, also to the fair
name of judiciary. Veiled threats, abrasive
behaviour, use of disrespectful language,
and, at times, blatant condemnatory
attacks, like the present one, are often
designedly employed with a view to tame a
Judge into submission to secure a desired
order. The foundation of our system is
based on the independence and impartiality
of the men having responsibility to impart
justice i.e. Judicial Officers. If their
confidence, impartiality and reputation is
shaken, it is bound to affect the very
independence of judiciary. Any person, if
allowed
to
make
disparaging
and
derogatory remarks against a Judicial
Officer, with impunity, is bound to result in
breaking down the majesty of justice."

11. Although the aforesaid judgment
was in terms of Section 24 of the Code of
Civil Procedure 1908 but the principles
pertaining to transfer of case would be
squarely applicable to the present case as
well.

12. Upon applicability of the
aforesaid judgments, it is evident from the
perusal of the impugned order that the
transfer of appeal has been allowed by
means of the impugned order in completely
casual and routine manner without any
application of mind to the objections raised
by the petitioner. As has been dealt herein
above, such an order allowing the transfer
application in a routine manner can not be
condoned. It is also seen from the record
that aspersions have been cast against the
integrity and character of the presiding
officer hearing the appeal. However the
same has not been substantiated by the
8 All. Subhas Singh & Ors. Vs. D.D.C., Ambedkarnagar & Ors.
211
transfer applicant/opposite party No.4 in any
manner. Allowing the transfer application
merely on such a averments is being frowned
upon. The impugned order does not even
indicate that the averments made in the
transfer application have been prima facie
proved by the transfer application.

13. In view of aforesaid judgments, it is
quite clear that the impugned order is clearly
unsustainable and therefore a writ in the
nature of Certiorari is issued quashing the
impugned order dated 18th February, 2020
passed in transfer application No. 725 of
2019
under
Section
65(2)
of
the
Consolidation of Holdings Act passed by the
Consolidation
Commissioner,
U.P.,
Lucknow.

14. In view of aforesaid, the writ
succeeds and is allowed. Parties shall bear
their own cost.
----------
(2021)08ILR A211
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.08.2021

BEFORE

THE HON'BLE MANISH MATHUR, J.

Consolidation No. 17525 of 2021

Subhas Singh & Ors. ...Petitioners
Versus
D.D.C., Ambedkarnagar & Ors.
 ...Respondents

Counsel for the Petitioners:
Yogesh Singh

Counsel for the Respondents:
C.S.C., Mohan Singh

A. UP Consolidation of Holdings Act, 1953
- Section 9-A - UP CH Rules, 1954 - Rule
109 - Execution of the order of Settlement
Officer of Consolidation proceeded
-
Interim order against this proceeding
granted, but subsequently it was not
extended on the ground that the matter is
ripe for final hearing - No cogent reason -
Validity - Held, discontinuing an interim
order granted earlier cannot be done
merely because it was exparte or that the
case is ripe for final hearing - Obviously
interim order must have been granted
earlier to preserve the nature of disputed
property, therefore there should be some
cogent reason recorded for vacation or
non extension of same - Impugned Order
not extending the interim order quashed.
(Para 6, 7 and 10)
Writ Petition allowed. (E-1)

(Delivered by Hon'ble Manish Mathur, J.)

1.

Heard
learned
counsel
for
petitioners, learned State Counsel for
opposite party No.1 and Mr. Mohan Singh
learned counsel for opposite party No.16.
In view of order being passed, notices to
opposite parties 2 to 15 stand dispensed
with.

2. Petitioners have challenged the
order dated 9th March, 2021 passed in
revision No. 629/1027 whereby the interim
order granted earlier has not been extended.
It is submitted that private opposite parties
had filed petition under section 9(A) of the
Consolidation of Holdings Act which was
allowed and against which the petitioners
had filed an appeal before the Settlement
Officer, Consolidation which was also
dismissed vide order dated 11th February,
2021 which was challenged by the
petitioners in revision before the Deputy
Director of Consolidation. It is submitted
that initially vide order dated 2nd March,
2021, interim orders were passed in
revision staying proceedings pending in