Abdul Qyyum v. State of U.P. and 3 Others

Court No. - 48 Case :- WRIT - B No. - 3789 of 2023 Petitioner :- Abdul Qyyum Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Alauddin,Fakhruddin Counsel for Respondent :- C.S.C. Hon'ble Saurabh Shyam Shamshery,J.

¶1Heard Sri Alauddin, learned counsel for the petitioner.

¶2Petitioner has challenged the impugned order dated 13.10.2023 whereby the transfer petition filed by petitioner was rejected on following grounds: " उभयप्ቌ कके तकरससंगत बहस कको ससुननके एवसं पतቔኋवलली कके अवलकोकन सके स्प्ቖ हह कक यह स्थቔኋनቔኋन्तरण पቔኋथरनቔኋ पत उप ससंचቔኋलक चकबन्दली ससदቔኋथर नगर कके कवरूद पस्तसुत ककयቔኋ गयቔኋ हह, सजिसमम वቔኋदलीगण दቔኋरቔኋ अवर न्यቔኋयቔኋलय कके पलीठቔኋसलीन असधिकቔኋरली कके ऊपर ककोई ऐसቔኋ आरकोप नहली लगቔኋयቔኋ गयቔኋ हह, सजिससके यह ससद हको कक अवर न्यቔኋयቔኋलय मम वቔኋदलीगण कको न्यቔኋय नहली कमल सकतቔኋ, बललक मसुख्य कቔኋरण कनगरቔኋनलीकतቔኋर सन्तरቔኋम ककी बहह रकेशमቔኋ दቔኋरቔኋ अवर न्यቔኋयቔኋलय कके पकेशकቔኋर व कቔኋननूनगको कके कवरूद ककयके गयके कशकቔኋयत कके आधिቔኋर पर अवर न्यቔኋयቔኋलय ककी पतቔኋवलली अन्तररत ककयके जिቔኋनके हकेतसु अनसुरकोधि ककयቔኋ गयቔኋ हह, जिबकक न्यቔኋयቔኋलय मम वቔኋद कቔኋ गसुणदकोष कके आधिቔኋर पर कनणरय लकेनके कቔኋ असधिकቔኋर पलीठቔኋसलीन असधिकቔኋरली कको हह। ऐसली दशቔኋ मम पस्तसुत वቔኋद आधिቔኋरहलीन व बलहलीन हकोनके कके कቔኋरण कनरस्त ककयቔኋ जिቔኋनቔኋ उकचत पतलीत हकोतቔኋ हह।"

¶3Learned counsel for the petitioner submits that since the petitioner has an apprehension that he will not get fair order from the concerned authority, therefore, matter ought to have been transferred.

¶4Learned counsel for the petitioner submits that since substantial ground exists to transfer the case, therefore, this Court may interfere with the impugned order.

¶5It would be apposite to refer a co-ordinate Bench judgment of this Court in Transfer Application (Civil) No.524 of 2014, Kaneej Fatma Vs. Mohd. Tayyab decided on 12.11.2014. Relevant paragraphs of said judgment are reproduced hereinafter: "21. The mere observations of Presiding Officer of the Court while hearing a case does not mean that he has made up his mind in a particular manner so as to justify an allegation of bias against such Presiding Officer and this would not justify transfer of case from one Court to another. 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. (Smt. Sangeetha S. Chugh vs. Ram Narayan V. and others, AIR 1995 Karnataka 112 and Official Assignee, Madras vs. Inspector-General of Registration, Bangalore and Anr., AIR 1981 Madras 54 or 24). xxx

¶23The allegations of bias of Presiding Officer, if made the basis for transfer of case, before exercising power under Section 24 C.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 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. In Smt. Sudha Sharma (supra) the Court observed that it is the duty of learned counsel to draft the application and made allegations with utmost care and caution. Hon'ble B.M. Lal, J. (as His Lordship then was), said: "9. ......a foremost duty casts upon the counsel concerned while drafting and making allegations in the transfer petition against the Judge concerned with utmost care and caution, particularly in making wild allegations against the Presiding Judge. But, it appears that now-a-days it has become common feature to make allegations against the Court Presiding Judge. The counsel should realise that they are also officers of the Court. Introducing fanciful and imaginary allegations as grounds for transfer and harbouring apprehension such grounds that fair and impartial justice would not be done should always be deprecated.

¶10Nonetheless, it is also important for all those who are engaged in the task of administering justice to remember that it is incumbent on them to create and maintain such confidence and atmosphere by giving every litigant an assurance by their judicial conduct that fair and impartial justice will be imparted. It is necessary to create such a confidence in the mind of the litigants so that their faith may not be shaken in Courts of law."

¶24Mere suspicion by the party that he will not get justice would not justify 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).

¶25Where 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.

¶26In 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." (Emphasis Supplied)

¶6I have carefully perused the transfer petition and it is evident that it was mainly filed on an alleged allegation that the opposite party has filed a complaint against Peshkar, Kanungo as well as that erroneous orders were passed by the Authority.

¶7Aforesaid grounds were considered in the impugned order and as held in Kaneej Fatma (supra) such ground cannot be sufficient to transfer the case and in case the petitioner is aggrieved by any order passed in a legal proceedings, he always has a remedy to challenge it in accordance with law.

¶8In the aforesaid circumstances, I do not find any ground to interfere with the impugned order.

¶9Writ petition is accordingly dismissed. Order Date :- 9.11.2023 SB High Court of Judicature at Allahabad