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Dharam Pal Singh v. State Of U.P. And Others - WRIT - A No. 45401 of 2006  RD-AH 14283 (24 August 2006)
Court No. 52
Civil Misc. Writ Petition No 45401 of 2006
Dharam Pal Singh
State of U.P. and others.
Hon'ble V.K. Shukla,J
Dharam Pal Singh Lekhpal has been transferred on administrative ground by order dated 19.7.2006 of the Additional District Magistrate, Badaun from Tehsil Dataganj to Tehsil Sahaswan. Petitioner was transferred from Tehsil Gunnaur to Tehsil Dataganj in the year 2002 and since then petitioner has been staying at the aforementioned Tehsil. Contention of petitioner is that he had made complaint against various persons whose name have been wrongly and illegally entered in the revenue record. It has also been sought to be contended that these people against whom complaint has been made have close intimacy and proximity with the concerned Minister and as such all these people got exerted pressure for transferring petitioner; consequently, petitioner has been transferred. At this juncture present writ petition has been filed.
Sri A.K. Srivastava, Advocate, learned counsel for the petitioner contended with vehemence that power of transfer in the present case, has not all been bona fidely exercised and further Additional District Magistrate, Badaun has no authority or jurisdiction to pass order of transfer and as such order of transfer is without jurisdiction.
Learned Standing Counsel on the other hand contended that petitioner has been transferred on account of administrative exigency and further order of transfer has been issued from the office of District Magistrate and Additional District Magistrate has full authority to exercise power or transfer and as such there is no short coming in the same.
After respective arguments have been advanced, undisputed factual position which is emerging is that since year 2002 petitioner has been placed at Tehsil Dataganj and he had been performing and discharging his duty. Order of transfer reflects that transfer order has been passed on administrative ground. Hon'ble Apex Court in the case of Union of India Vs. Janardan Debanath 2004 (4) S.C.C. 2 has taken the view, that as to whether transfer is based on administrative grounds/public interest requires factual adjudication, and examination of such question under Article 226 has not been approved. Petitioner holds transferable post and transfer order is based on administrative ground, as such no factual enquiry is being made on this front.
Much emphasis has been made, that entire action of transfer is motivated with malafides. On this front it has been sought to be contended that various persons whose name has been referred to in paragraph 8 of writ petition, qua them petitioner has initiated action, these people have got close proximity with the Minister. Transfer order is based on administrative ground. Hon'ble Apex Court in the case of State of U.P. Vs. Govardhan Lal 2004 (101) F.L.R. 586 (S.C.) has cautioned the Courts, while examining the plea of malafide "even allegation of malafide when made such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures and surmises". Here except for bald statement of fact that Minister had exerted pressure for transfer on account of action taken against incumbents mentioned in paragraph 8, there is no concrete or cogent material to even remotely suggest that Respondent no.3 exercised authority of transfer on account of malafide. Consequently plea of malafide is unsustainable. This court refuses to interfere with the impugned order or transfer, inasmuch as in day to day transfer order, scope of interference is very very limited and plea of malafide as discussed has been mentioned only for the purposes of the case.
Now coming the next question, which has been raised is that Additional District Magistrate has no authority to direct and pass orders of transfer and only Collector is entitled to pass order of transfer. In this respect Rule 21 of Lekhpals Service Rules, 1958 which read as follows is being looked into:-
21. Transfers-(a) The Collector may at his discretion transfer a Lekhpal from one Halqa to another within the district and the Assistant Collector may similarly transfer a Lekhpal within the subdivision.
Perusal of Clause-(a) of the Rule 21 would go to show that Collector is empowered to transfer Lekhpal from one Halqa to another within the District and Assistant Collector is similarly empowered to transfer a Lekhpal within the sub division.
Collector and Additional Collector has been dealt with in Section 14 and Section 14-A of U.P. Land Revenue Act, 1901, which is being quoted below:-
14. The State Government shall appoint in each district the officer who shall be the Collector of the district and who shall through out his district, exercise all the powers and discharge all the duty conferred and imposed on a Collector by this act or any other law for the time being in force.
14-A Appointment, powers and duties of Additional Collectors(1) The State Government may appoint an Additional Collector in a district or in two or more districts combined.
(2) An Additional Collector shall hold his office during the pleasure of the State Government.
(3) An Additional Collector shall exercise such powers and discharge such duties of a Collector in such cases or classes of cases as the Collector concerned may direct.
(4) This Act and every other law for the time being applicable to a Collector shall apply to every Additional Collector, when exercising any powers or discharging any duties under sub section (3) as if he were the Collector of the district"
Perusal of the provision as contained under Section 14 of the Land Revenue Act,1901, would go to show that State Government is to appoint in each district an officer, who is to be Collector of the district and who shall through out his district exercise all the power and duty conferred and imposed to Collector under U.P. Land Revenue Act, 1901 or any other law for the time being enforce. Section 14-A provides that State Government is empowered to appoint Additional Collector in a district or in two or more districts combined. Further Additional Collector is entitled to exercise such powers and discharge such duties of a Collector in such cases or classes of cases as the Collector concerned may direct. Sub- section 4 of Section14-A provides that this Act and every other law for the time being applicable to a Collector shall apply to every Additional Collector, when exercising any powers or discharging any duties under sub-section (3) as if he were the Collector of the District.
As if he were Collector of the District enact a legal fiction that the Additional Collector should be deemed to be Collector of the district.
Now on the touchstone of provisions quoted above, facts of present case is being adverted to. Here Additional District Magistrate has exercised power of transfer and letter in question indicates that from the office of the District Magistrate, Additional District Magistrate has passed order of transfer. Additional District Magistrate has exercised the authority of Collector. Collector apart from discharging various functions under Land Revenue Act, 1901, has to perform various other functions under different Act and in this background there is distribution of work, and various functions are assigned to Assistant Collectors and this act of Assistant Collector, on the strength of legal fiction as contained under sub-section (4) of Section 14-A is to be deemed to be act performed, as if he were the Collector of District. Consequently Rule 21 of Lekhpal Service Rules, 1958 is to be read and understood alongwith the provisions as contained under Section 14 and 14-A of Land Revenue Act, 1901, and in terms of the same Additional District Magistrate at the behest of Collector, has passed order of transfer. Consequently, this is no lack of jurisdiction.
Consequently, writ petition is dismissed.
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