Daya Shankar vs State Of U.P. And 4 Others
2023 Latest Caselaw 15751 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Neutral Citation No. - 2023:AHC:110442
 
A.F.R.
 
Court No. - 28
 

 
Case :- WRIT - C No. - 17072 of 2023
 

 
Petitioner :- Daya Shankar
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Kirt Raj Yadav
 
Counsel for Respondent :- C.S.C.,Rameshwar Prasad Shukla
 

 
Hon'ble Arun Kumar Singh Deshwal,J.

1. Heard learned counsel for the petitioner, Sri Abhinav Jaiswal, learned counsel holding brief of Sri Rameshwar Prasad Shukla, learned counsel for the respondent No.3 and learned Standing Counsel appearing for the State respondents.

2. By means of present petition, the petitioner is seeking direction to decide the proceeding of Case No.03108 of 2020 (Daya Shankar Vs. Tilakdhari and Others), Computerized Case No.T-202015060303108 filed under Section-116 of UP Revenue Code, 2006 (hereinafter referred to as the 'Code, 2006'), pending before respondent no.2.

3. This Court found that number of petitions are being filed in this Court simply for seeking direction to expedite the proceedings pending before the revenue court/Authority.

4. Division Bench of this Court in the case of Ayodhya Sahai vs. District Judge, Jaunpur and others, (1997) 3 UPLBEC 1677 after considering a similar issue and after taking into account the provision of C.P.C. as well as Cr.P.C. has observed that all suits, criminal trials and other kind of cases must be decided on the basis of a time bound programme and also issued a general mandamus in Paragraph-12 to all the Sub-ordinate Courts and Tribunals in State to decide suits, criminal trials, labour disputes, rent control cases and other cases on the basis of time bound programme fixed by the Court for each case. Paragraph-12 is being quoted as below:-

"12. We also issue a general mandamus to all subordinate Courts and Tribunals in this State to decide suits, criminal trials labour disputes rent control cases and other cases, on basis of a time bound programme fixed by the Court for each case and usually by day-to-day hearing. Parties should not be allowed to deviate from the time schedule and the Court must refuse adjournment sought by counsels of the parties except on rare and exceptional grounds mentioned in Order XVII Rule 1(2) C.P.C On receipt of a copy of this judgment every Court or Tribunal shall fix a time schedule for final disposal of each case in presence of parties, and learned counsel shall be informed that they shall not be allowed to deviate from the time schedule fixed. The exercise must start from the next date after receipt of this judgment. The learned District Judges and other Presiding Officers shall be personally responsible for strict compliance of the directions contained in this order."

5. Similarly, Single Bench of this Court in Matters under Article 227 No. 2616 of 2012 (Raj Kumar Devi and another vs. Civil Judge (J.D.) and others) after taking into account the aforesaid judgement of Ayodhya Sahai (supra) again issued direction on 10.12.2022 permitting the petitioner to make an application for expeditious disposal to the court concerned and the court was directed to look into the matter in the light of general mandamus of Ayodhya Sahai (supra) case and to dispose of the same.

6. Section 214 of the Code, 2006 existing at present came into effect on 11.02.2016, provides that unless otherwise expressly provided under the Code, 2006, the provision of C.P.C. shall apply to every suit, application or proceeding under this Code, and thereafter, Rule 186 of U.P. Revenue Code Rules, 2016 (hereinafter referred to as the 'Rules, 2016') clarifies, the Section 214 of the Code and mandates that provision of the Code of Civil Procedure, 1908 shall not be applicable to the summary proceeding under the Code or these Rules but the principle enshrined in the Code of Civil Procedure and principles of natural justice shall be observed in the disposal of such proceedings. Therefore, from Section 214 of the Code, 2006 as well as from Rule 186 of the Rules, 2016 it is clear that even in summary proceeding, the principle of Code of Civil Procedure will be applicable.

7. Proviso of Order XVII Rule 1(2) of Code of Civil Procedure also provides expeditious disposal of cases and same is quoted as under:-

"Costs of adjournment.?In every such case the Court shall fix a day for the further hearing of the suit, and [shall make such orders as to costs occasioned by the adjournment or such higher costs as the court deems fit]:

[Provided that,-

(a) when the hearing of the suit has commenced, it shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds that for the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary.

(b) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party,

c) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment,

d) where the illness of a pleader or his inability to conduct the case for any reason, other than his being engaged in another Court, is put forward as a ground for adjournment, the Court shall not grant the adjournment unless it is satisfied that the party applying for adjournment could not have engaged another pleader in time,

e) where a witness is present in Court but a party or his pleader is not present or the party or his pleader, though present in Court, is not ready to examine or cross-examine the witness, the Court may, if it thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be, by the party or his pleader not present or not ready as aforesaid.]"

8. From the above quoted provision, it is also clear that there is a specific mandate of Code of Civil Procedure to decide the suit or other proceedings under the Code, 2006 expeditiously.

9. From the perusal of the entire Code, 2006 as well as Rules, 2016 framed therein, it is clear that the legislation itself provides time bound disposal for most of the proceedings, even then, proceedings under the Code, 2006 are not being decided in a time bound manner as directed by the legislature itself and this is causing frustration among the litigants, most of them are poor farmers, who have to waste their time to attend the proceedings in Tehsil, Collectorate and Commissionerate at the cost of leaving their farming for particular days.

10. For delay in disposal of proceedings under the Code, not only the Presiding Officers but also the local Bar which remains on strike on petty issues are also responsible, though the same is neither in the interest of Members of Bar nor in the interest of litigants (farmers), and this pendency also results the creation of room for corruption at the lower level. Therefore, it would be appropriate to frame timelines and direct the authorities concerned to dispose of the pending suits, applications and revisions in a time bound manner.

11. Most of the writ petitions are being filed in the High Court for expeditious disposal of the proceedings which arise out of dispute regarding boundaries (Section 24), rights of way and other easements (Section 25), removal of the obstacle from public road, path, land (Section 26), mutation proceedings (Section 35), correction of record (Section 38), the dispute regarding property like public roads, lanes, trees (Section 58), the application for delivery of possession of allotted land from an unauthorized person (Section 65), application for cancelling illegal allotment of abadi sites (Section 66), proceeding to prevent damage, misappropriation and wrongful occupation of property of Gram Panchayat (Section 67), application under Section 98 for permission to transfer land belonging to scheduled caste, suit for division of holding (Section 116), application for execution of the final decree passed under Section-116 (by demarcation of kurra on spot), proceeding for cancellation of irregular allotment of agricultural land (Section 128), suit of declaration as bhumidhar/asami (Section 144).

12. For the proceeding mentioned above, the legislature has provided time bound disposal for some of the proceedings but despite specific time fixed by the Code, 2006 proceeding could not be decided for a number of reasons and in most of the cases due to negligence on the part of presiding officers or due to the absence of sufficient number of presiding officers as well as the continuous strike of bar in Tehsil or Collectorate. The following provisions of Code, 2006 provide a specific time for deciding the proceedings as follows:-

(i) Dispute regarding boundaries by Sub-Divisional Officer is to be decided within three months from the date of the application as per Section 24(3) of Code, 2006 which is quoted as below:-

"24(3). Every proceeding under this section shall, as far as possible, be concluded by the Sub-Divisional Officer within three months from the date of the application."

(ii) Mutation proceedings u/s 35 of Code, 2006 is to be decided within 45 days if mutation is undisputed and within 90 days if mutation is disputed as per Rule 34(7) of Rules, 2016 which is quoted as below:-

"34(7). The Tahsildar shall make an endeavour to decide the undisputed case of mutation within the period of 45 days from the date of the registration of the case and the disputed case of mutation within the period of 90 days and if the proceeding is not concluded within such period the reason for the same shall be recorded"

(iii) Proceeding for correction of record as per Section 38 of Code, 2006 is to be decided within 45 days from the date of receiving application with the report as per Rule 36(6) of Rules, 2016 which is quoted as below:-

"36(6). An endeavour shall be made to conclude the proceeding for correction under section 38 within the period of 45 days from the date of receiving the application with the report and if the proceeding is not concluded within such period the reasons for the same shall be recorded."

(iv) Application for cancellation of irregular allotment of abadi side u/s 66 should be decided within six months as per Rule 65(10) of Rules, 2016 which is quoted as below:-

"65(10). The Collector shall make an endeavour to conclude the inquiry within the period not exceeding six months from the date of registration of the case and if the inquiry is not concluded within the period aforesaid the reason for the same shall be recorded."

(v) Proceeding to prevent wrongful occupation and damage of Gram Sabha property u/s 67 is to be decided within the period of 90 days as required by Rule 67(6) of Rule, 2016 which is quoted as under:-

"67(6). The Assistant Collector shall make an endeavour to conclude the proceeding under section 67 of the Code within the period of ninety days from the date of issuance of the show cause notice and if the proceeding is not concluded within such period the reasons for the same shall be recorded."

(vi) Proceeding for granting permission to transfer the land of schedule caste under Section-98 should be completed within period of 15 days as per Rule 99(11) and which is quoted as under:

"99(11). The Collector shall make an endeavour to dispose of the application under section 98(1) within the period of fifteen days from the date of receiving the report submitted by the inquiry officer and if the application is not disposed of within such period the reason for the same shall be recorded."

(vii) For division of holding under Section 116 of the Code, 2006 is to be decided within a period of six months as provided by Rule 109(10) of Rules, 2016 which is quoted as under:-

"109(10). The Sub-Divisional Officer shall make an endeavour to decide the suit within the period of six months and if the suit is not decided within such period, the reason shall be recorded."

(viii) Proceeding for cancellation of irregular allotment of agricultural land u/s 128 should be completed within a period of three months as per Rules 126(6) of Rules, 2016 which is quoted as under:-

"126(6). The Collector shall endeavour to conclude the enquiry within the period of three months from the date of issuance of notice and if the enquiry is not concluded within the period of three months, the reasons for the delay shall be recorded."

13. Apart from the above proceeding for which specific time frame was fixed by the legislature in the Code, 2006 or in the Rules, 2016 there are other proceedings for which no time frame has been fixed either in Code, 2006 or in Rules, 2016 therefore, the concerned presiding officer or the revenue officer should make endeavour to decide these proceedings in following manner :-

(i) Application for right of way and other easement u/s 25 should be decided within a period of one month and if the same could not be concluded then reason for the same should be recorded.

(ii) Application for removal of obstacle from public road, path or common land of village u/s 26 should endeavour to be decided within a period of one month and if the same could not be concluded then reason for the same should be recorded;

(iii) Application u/s 58 to decide the dispute regarding property mentioned in Sections 54, 56 and 57 should be decided preferably within a period of three months from the date of application and if the same could not be decided then reason for the same should be recorded;

(iv) Application u/s 65 for delivery of possession of allotted land from unauthorized person should be decided preferably within a period of three months and if the same could not be concluded then reason for the same should be recorded;

(v) Application for the execution of the final decree passed u/s 116 of Code, 2006 by demarcation of Kurra on site should be decided within a period of one month and if the same could not be concluded then reason for the same should be recorded;

(vi) A suit for declaration as bhumidhar/asami under Section-144 of the Code, 2006 should be decided within a period of the six months and if the same could not be concluded then the reason for the same should be recorded;

(vii) Any other application referable to any provision of Code, 2006 should also be decided within the period prescribed by Code, 2006 or Rules, 2016, if no time is prescribed by Code, 2006 or by Rules, 2016 then same should be decided within a period of one month and if same is not decided within aforesaid period then reason should be recorded.

14. If the proceedings mentioned above are appealable or revisable or subject to second appeal as per the provision of Code, 2006 and if no time is prescribed by the Code, 2006 then these proceedings should also be decided within a period of six months up to the level of Commissioner and within a period of one year by the Board of Revenue, and if not decided within the said period then the reason for the same should be recorded.

15. While calculating the period mentioned above as directed by this Court for deciding different proceedings under Code, 2006, the date on which there was a strike of Bar as well as the dates on which the person seeking benefit of this order take adjournment should be excluded.

16. If any stay application, recall application or any other miscellaneous application is filed during above mentioned proceedings, then same should be decided within a period of one month and if same is not decided within aforesaid time, then reason should be recorded. It is made clear that during the pendency of recall application or stay application, no coercive action be taken against the applicant.

17. For the violation of direction mentioned above by any revenue officer including the Collector and Commissioner and as well as Board of Revenue, they would be liable for contempt of this Court for not following the direction in deciding the proceedings as mentioned above (including pending proceeding in corresponding provision of Uttar Pradesh Zamindari Abolition And Land Reforms Act, 1950 and as Uttar Pradesh Land Revenue Act, 1901).

18. The litigant, whose proceeding are mentioned above was not decided despite his application relying upon this judgement within the time fixed by this court, then litigant instead of filing writ petition for expeditious disposal may directly approach this Court by filing contempt proceedings against the concerned officer.

19. It is made clear that if the State Government by issuing notification or by making amendments prescribes time for deciding the proceedings for which this Court has a fixed period for deciding the proceedings, then that period will be substituted in place of the period specified by this Court.

20. The State is further directed to fill up the posts of Sub Divisional Magistrate (Judicial) as required by Section 13(6) of Code, 2006 as well as posts of Tehsildar (Judicial) as required by Section 14(1) of Code, 2006 so as to address the problem of pendency of proceedings under Code, 2006 as early as possible preferably within a period of one year from today.

21. This Court also found that despite repeal of Uttar Pradesh Zamindari Abolition And Land Reforms Act, 1950 as well as Uttar Pradesh Land Revenue Act, 1901 on 11.02.2016, Revenue Authority/Court still mentioning provision of above repealed Act in new proceeding initiated after the repeal, therefore, all revenue authority are directed to mention provisions of Code, 2006 in the aforesaid proceedings.

22. With the aforesaid direction the petition is disposed of.

23. Let a copy of this order be sent to Chief Secretary, U.P. who will further circulate the same to Divisional Commissioner as well as District Collector with the direction that District Collector will further inform to all his subordinate officers including the concerned bar association.

24. Registrar (Compliance) is directed to send a copy of this order to the Chief Secretary, U.P. for necessary compliance.

Order Date :- 19.5.2023

S.Chaurasia/Vandana