# Waliullah Beg & Anr v. District Deputy Director of Consolidation Lucknow & Ors

- **Citation:** (2012) 3 ILRA 1235
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-10-29
- **Bench:** Anil Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/waliullah-beg-anr-v-district-deputy-director-of-consolidation-lucknow-ors-42384
- **Pages:** 5

## Headnote

U.P. Consolidation of Holding Rules
1954-Rule 65 (1-A)-Transfer of pending
revision from one D.D.C. to anotherwithout Notice to other party-without
following
the
procedure
prescribed
under Section 24 C.P.C.-transfer order
held-unsustainable-quashed.

Held: Para-11

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.
Case Law discussed:
(2000) 10 Supreme Court Cases 23; 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

## Text

3 All] Waliullah Beg & Anr. V. District Deputy Director of Consolidation Lucknow & Ors 1235
of the Government employee. In the instant
case, the application was filed after six years
from the date of death of the father and
consequently the delay, if any, is of one year
only. In the opinion of the Court, the delay
was not such which could be said to be
belated and, such delay can be condoned in
the circumstances of the given case.

6. In the light of the aforesaid, the
District Magistrate committed a manifest
error in rejecting the petitioner's application
on the ground of delay which can not be
sustained and is quashed. The writ petition is
allowed with cost, which the Court imposes
at Rs. 20,000/-, which shall be paid by the
respondent to the petitioner within six weeks
from today. The matter is again remitted to
the Authority concerned to decide the matter
on merits within six weeks from the date of
production of a certified copy of the order.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.10.2012

BEFORE
THE HON'BLE ANIL KUMAR, J.

CONSOLIDATION No. - 430 of 2012

Waliullah Beg & Anr.

 ...Applicant
Versus
District Deputy Director Of Consolidation
Lucknow & Ors.

 ...Respondents

Counsel for the Petitioner:
Sri M.A. Siddiqui

Counsel for the Respondents:
C.S.C

U.P. Consolidation of Holding Rules
1954-Rule 65 (1-A)-Transfer of pending
revision from one D.D.C. to anotherwithout Notice to other party-without
following
the
procedure
prescribed
under Section 24 C.P.C.-transfer order
held-unsustainable-quashed.

Held: Para-11

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.
Case Law discussed:
(2000) 10 Supreme Court Cases 23; 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

(Delivered by Hon'ble Anil Kumar, J.)

1. 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 .

2. 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.
1236 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

3. 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.

4. 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.

5. Sri Rajendra Kumar Yadav, learned
State Counsel has no objection to the above
said prayer.

6. I have heard learned counsel for the
parties present today.

7. On 1.8.2012, 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
3 All] Waliullah Beg & Anr. V. District Deputy Director of Consolidation Lucknow & Ors 1237
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."

8. 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).

9. 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.

10. 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.

11. 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.

12. 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.

13. 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
1238 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
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."

14. 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.

15. 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.

16. 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
3 All] Suleman V. State of U.P
1239
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.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABD 08.10.2012

BEFORE
THE HON'BLE ARUN TANDON, J.
THE HON'BLE VIJAY PRAKASH PATHAK, J.

Criminal Appeal No. - 1780 Of 2003

Suleman

 ...Petitioner
Versus
State Of U.P.

 ...Respondent

Counsel for the Petitioner:
Sri Raj Kumar Khanna
Sri A.K.Pandey
Sri Braham Singh
Sri P.K. Pandey
Sri R.K.Pandey

Counsel for the Respondent:
A.G.A.

Criminal Appeal-offence under section
302/504
I.P.C.-conviction
of
life
imprisonment with fine of Rs. 5000/-
challenged on ground of reaction of eye
witness-as "unusual" manner-held-could
not affect the prosecution story-nor the
conclusion drawn by Trail Court can be
questioned

Held: Para 25

We are also unable to accept the
contention of learned counsel for the
appellant that since Siyaram did not
make any attempt to save his cousin
brother
Balkishan;
Such
conduct
is
unnatural and therefore presence of
Siyaram at the time of incident becomes
doubtful.

Case Law Discussed:
2012 (5) SCC 738; 2012 (IV) SCC 124; 2012
(5) SCC 724

(Delivered by Hon'ble Arun Tandon, J.)

1. This criminal appeal filed by the
appellant Suleman is directed against the
judgment and order of the Additional
Sessions Judge (Fast Track Court No.4),
District Moradabad dated 5.4.2003 passed
in S.T. No.745 of 2002 (State vs. Suleman)
arising out of Case Crime No.114 of 2001,
under sections 302/504 I.P.C. The appellant
Suleman has been convicted for an offence
punishable under section 302 I.P.C. and has
been sentenced to life imprisonment with
fine of Rs.5000/-, in case of default, the
appellant
is
to
undergo
additional
imprisonment of one year.

2. The prosecution story as disclosed
from the records is as follows:

On 29.8.2001 at 7.00 P.M. a first
information report was lodged by Chhote
elder brother of one Balkishan. In the first
information report it was stated that Siya
Ram P.W.2 cousin brother of the deceased
has informed that Balkishan has been done
to death by the appellant Suleman by
inflicting 5 to 6 wounds by hasiya at around
5 P.M. on the same day. The first
information report was registered as case
crime no.114 of 2001 under sections
302/504 I.P.C. at P.S. Bhojpur, district
Moradabad. The first information report
further disclosed that in the morning on the
same day Balkishan younger brother of
Chhote took his animals for grazing near the
bank of Dhela Nadi. By mistake the animals
entered the agricultural filed of Suleman,
causing annoyance to Suleman. Suleman
tried to get hold of Balkishan but could not
succeed. At around 5.00 P.M. Suleman