Nand Kishore and Another vs State of U.P. and Others

M. Katju, J.—Heard learned counsel for the parties.

This special appeal has been filed against the impugned Judgment of the learned single Judge dated 29.8.2003.

The petitioners challenged a transfer order before the learned single Judge but their petition was dismissed, hence this appeal.

We have carefully perused the judgment of the learned single Judge.

We fully agree with the view he has taken. We are of the opinion that the Chief Engineer has jurisdiction to make transfer within his own area of authority. Moreover, transfer is an exigency of service. Writ jurisdiction is discretionary jurisdiction and even if there is a technical error of law, this Court is not bound to interfere. There are allegations that the petitioners are involved with ''Mafia'' in doing land grabbing. This was a sufficient ground for transfer. In Ramniklal N. Bhutta and another Vs. State of Maharashtra and others, (vide para 11), the Supreme Court observed :

"The power under Article 226 is discretionary. It will be exercised only in furtherance of justice and not merely on the making out of a legal point...... .The Courts have to weigh the public interest vis-a-vis the private interest while exercising the power under Article 226."

In State of Himachal Pradesh Vs. Raja Mahendra Pal and Others, and Director of Settlements, Andhra Pradesh and Others Vs. M.R. Apparao and Another, (vide para 17), the Supreme Court observed that the "power vested in the High Court under Article 226 is discretionary".

Thus, the High Court is not bound to issue a writ even if there is violation of law because the power under Article 226 is discretionary. On the facts of the present case, we are not inclined to exercise our discretion in favour of the appellants. We fully agree with the learned single Judge. Appeal is dismissed.