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2005 DIGILAW 1491 (ALL)

UMESH CHAND v. SUB-DIVISIONAL OFFICER MAHARAJGANJ

2005-08-11

S.N.SRIVASTAVA

body2005
S. N. SRIVASTAVA, J. Learned Counsel for the petitioners prays for impleadment of State of U. P. thorough Secretary, Revenue Department U. P. Lucknow as Opp. Party No. 4. The prayer made by the learned Counsel does commend to me for acceptance and the learned Counsel is permitted to implead the party accordingly. 2. I have heard learned Counsel for the petitioners and also the Standing Counsel. I have also been taken through the materials on record. 3. Procrastination of Restoration application for inordinately long time has been the causative factor for instruction of this writ petition in this Court. 4. The facts in the background are that initially, a suit was instituted by the Forest Department under Section 229-B of the UPZA & LR Act. The journey of the suit came to an abrupt end with an ex-parte decree passed against the petitioners by means of judgment/order dated 29th August, 2001. a restoration application came to be preferred by the petitioners on 20th October, 2001 and it is this application that has been suffering protraction ever-since then in the Court of Sub-Divisional Officer Nichlaul District Maharajganj. 5. The learned Counsel for the petitioner bemoaned the delay stating that the Restoration Application has been suffering protraction for the last four years and despite strenuous efforts made by the petitioner for its expeditious disposal, the restoration application lingered and could not be decided by the Sub-Divisional Officer. Lastly, the learned Counsel urged that the delay in disposal is fraught with consequences detrimental to the interest of the petitioner as the Forest Department equipped with ex- parte decree may endeavour dispossession of the petitioners from the land in question. 6. The time hallowed maxim "justice delayed is justice denied" may appropriately be invoked in the present case in view of the unconscionable delay in the disposal of restoration application. This Court sitting in the jurisdiction has been noticing with certain that the executive authorities clothed with judicial powers to adjudicate upon the matters, have often been seen to be unmindful of the consequences resulting from delayed disposal of proceedings arising out of UPZA & LR Act and the resultant delay can be ascribed to their in different approach to the quick disposal of such proceedings. It has quite often been noticed that such executive authorities equipped with judicial powers often wink at delay and insensate to the gravity of the dispute and resultant consequences, fail to strike balance between judicial works and the executive functions and instead, they give precedence to duties extracted from their executive functions. This lackadaisical approach towards judicial proceedings cannot be appreciated and there is felt need of ear-making some days on which these executive authorities may be enjoined to devote their time exclusively to judicial functions. 7. Before scripting directions in this regard, I would first notice the duties assigned to these executive authorities and in this connection Revenue Court Manual may be referred to Rules 15 of the Revenue Court Manual deals with written statements and it envisages that written statements should be as brief as the nature of the case admits and it should be argumentative but should be confined as much as possible to single narrative of the facts which the party presenting the written statements believes to be material to the case and which he believes he will be able to prove. This rule further provides that every written statement must, where necessary be divided into paragraphs numbered consecutively and each paragraph must contain as may be a separate allegation. And no written statement which does not fulfill these conditions should be accepted but the Court should in accordance with Rule 16 of the Order VI of the Code of Civil Procedure, 1908. Rule 16 of the Manual postulates that the Court after carefully examining the plaint ex-parte and if necessary after amending it and accepting it as complete and satisfactory, shall at the first hearing of the suit, ascertain from each party or his pleader whether he admits or denies such allegations of fact as are made in the plaint or written statement of the Opp. Party and as are not expressly or by necessary implication admitted or denied by the party against whom they are made and further that the Court shall record such admissions and denials. Rule 17 of the Manual prescribes procedure for examination of parties. Party and as are not expressly or by necessary implication admitted or denied by the party against whom they are made and further that the Court shall record such admissions and denials. Rule 17 of the Manual prescribes procedure for examination of parties. It is provided that at the first hearing of the suit, or at any subsequent hearing, any party appearing in or present in Court, or the pleader of any party who appears by a pleader or any person to answer any material questions relating to the suit by whom such party or his pleader is accompanied may be examined, orally by the Court and the Court may if it thinks fit, put in the course of such lamination questions suggested by either party. Rule 18 of the Manual provides for recording of substance of examination by the Presiding Officer, which according to the rule shall form part of the record. Rule 19 envisages consequence of refusal or inability of the parties to answer and provides that (1) where the pleader of any party who appears by a pleader or any such person accompanying a pleader as is referred to in Rule 17 refuses or is unable to answer any material question relating to the suit which the Court is of opinion that the party whom he represents ought to answer, and is likely to be able to answer if interrogated in person, the Court may postpone the hearing of the suit to future day and direct that such party shall appear in person on such day. It further postulates that if such party fails without lawful excuse to appear in person on the day so appointed, the Court may pronounce judgment against him or make such order in relation to the suit as it thinks fit. It further postulates that if such party fails without lawful excuse to appear in person on the day so appointed, the Court may pronounce judgment against him or make such order in relation to the suit as it thinks fit. Rule 20 provides for framing of issues which are to the effect (1) issues arise when a material proposition of factor law is affirmed by one party and denied by the order (2) material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence, (d) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue; (4) issues are of two kinds (a) issues of fact and (b) issues of law; (5) At the first hearing of suit the Court shall after reading the plaint and the written statements, if any after such examination of the parties as may appear necessary, ascertain upon what material propositions of fact or of law the parties at variance and shall thereupon proceed to frame and record the issues on which the right decision of the case appear or depend and (6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence. Rule 22 elucidate on materials from which issues may be framed and it has been provided that the Court may frame the issues from all or any of the following materials: (a) allegations made on oath or otherwise by the parties or by any person present on their behalf, or made by the pleaders of such parties (b) allegations made in the pleadings or in answers to interrogatories delivered in the suit and (c) the contents of documents produced by either party. Likewise Rule 22 deals with how the Court may exmine witnesses or documents before framing issues. Rule 23 mandates that issues shall be framed as far as possible the same day the written statements are filed. Likewise Rule 22 deals with how the Court may exmine witnesses or documents before framing issues. Rule 23 mandates that issues shall be framed as far as possible the same day the written statements are filed. Rule 25 deals with issues of fact and law, Rule 26 with language to be used in framing issues, Rule 27 with adjournment, Rule 28 with instructions to be followed in dealing with adjournments, Rule 29 with the particulars to be written on order-sheet, Rule 30 contains mandate that order-sheet be written by the Presiding Officer or by an officer of the Court to be signed by Presiding Officer, Rule 31 requires the Presiding Officer not to write orders on order-sheet with require reasons, Order XXXII direct that order affixing dates or directing anything to be done by parties should be signed by the parties or their pleaders and Rule 33 invites attention to Rules 1-5 Order XX Rule 3 and Order XII of the CPC dealing with judgments of original and appellate Court. Rule 47 postulates that the list of holidays be hung in Court houses. 8. Rule 54 of the Manual is quite significant and may be excerpted below: "notes - Touring Offices.- (a) In General District Officers should relieve touring Officer of as much case work as possible without their authority as sub divisional magistrates being impaired (b) of the case work of which touring Officer are not relieved they should do so as much as possible at headquarters or at centres convenient of access to litigants and the bar more speciality cases of importance. (c) Every officer before proceedings on tour should draw up a programme of his movements, copies of which should be posted at the headquarters Kutchery the Tahsil and the Thana as concerned, copies should also be sent to the vakils and mukhtars libraries and associations. Officers should adhere to the programme as possible and when dates of places are changed intimation of such changes should be sent to all places where copies of the list are exhibited or have been sent and as long as possible of notices such changes should be given to the Counsel. Officers should adhere to the programme as possible and when dates of places are changed intimation of such changes should be sent to all places where copies of the list are exhibited or have been sent and as long as possible of notices such changes should be given to the Counsel. (d) When the stock of tents in a District allows an extra tent for the use of litigants and lawyers it should be taken out at Government expense by officers when they are going to out-out of the way places where suitable shelter accommodation are not available. Now the question remains as to what are the timing and days assigned to these authorities for performing judicial work. I have searched the entire U. P. Revenue Court Manual to ascertain the timing and days assigned to these authorities for performing judicial work. No such rule has been brought to my notice by the learned Standing Counsel. Instead, the learned standing Counsel has drawn my attention to forms of notices to be issued under Rules 221 (1), 228 (1), Rule 271, Rule 27 and Rule 275 of the Manual which according to the learned Counsel are issued directing the parties to appear before the Asstt. Collector at 10 a. m. and by this reckoning, it is argued that the Court hours for these authorities too are from 10 a. m. to 5 p. m. at par with the Court hours prescribed for Civil Courts. The learned Counsel also argued that the dates indicated in the notices for the parties to appear are eloquent of the fact that the Presiding Officers must sit on these dates and perform judicial functions and in the circumstances, the judicial functions assigned to these authorities under the statute cannot be subordinated to administrative functions. 9. Reverting to the fact-situation of the present case, the suit having been decreed ex-parte against the petitioners on 29th August, 2001, restoration application was preferred on 20th October, 2001 and ever since then, the matter is lingering with the revenue Court and has been suffering protraction on one pretext or the other. 9. Reverting to the fact-situation of the present case, the suit having been decreed ex-parte against the petitioners on 29th August, 2001, restoration application was preferred on 20th October, 2001 and ever since then, the matter is lingering with the revenue Court and has been suffering protraction on one pretext or the other. I have also traversed upon the materials on record and it is obtrusively noticeable that the revenue Courts at District level have tended to neglect judicial functions qua the administrative duties inasmuch as the restoration application has suffered repeated procrastination on account of Presiding Officer being busy in administration duties. It has been pointed out by the learned Counsel for the petitioner that no date has been fixed in the matter of Restoration Application after the year 2002. The urgency of expeditious disposal of matter as pointed out by the learned Counsel is that the respondents taking advantage of fluid situation on account of indifference and apathy of the revenue Courts at District level, are all set to take forcible possession over the land in dispute. 10. It may also be noticed that by different amendments enacted by the Legislature, the power of Civil Courts was delegated to these executive authorities and these executive authorities are exercising judicial/quasi judicial powers which are sovereign powers of the State in deciding suits and proceedings for declaration of titled or adjudication of rights under the various provisions of the UPZA & LR Act and the U. P. Land Revenue Act. It may also be noticed here that in the course of hearing of this petition, learned Standing Counsel was asked to consult and enlighten this Court about Court hours and fixed days in a week if any, for performance of judicial functions by the Revenue Courts at District level. The learned Standing Counsel excepting pointing to certain provisions of the Revenue Court Manual and by gleaning substance from the provisions, did not furnish any better details and instead argued that the time and days of the revenue Courts should be at par as applicable to civil Courts and that it brooks no dispute that the officers manning the revenue Courts cannot neglect judicial works assigned to them under the statute vis-a-vis their administrative duties and fervently suggested that it is high time, the Court fixed days and hours for these revenue Courts at District level. As stated supra, the learned Standing Counsel has not been able to advert attention of the Court to any circular issued by the Board of Revenue or anything else which may be eloquent of the fact that the Revenue Courts have been enjoined to decide the cases, within a fixed time-lag. I would not for bear from expressing concern of the Court that the matters keep lingering for unconscionable long time and there is hardly any flickering of concern. 11. Speedy disposal is a facet enshrined in Constitution. In my considered view, Land Revenue Act, UPZA & LR Act and U. P. Consolidation of Holding Act have been enacted to provide a speedier procedure qua the ordinarily law, which on account of its entangled procedure may entail delay. Hence the object of legislation was to serve as a boon to the litigant public under the Act and it was put through to provide more expeditious procedure than under the ordinary law. In this perspective also, the object underlying constitution of revenue Courts was to provide speedier justice vis-a-vis the ordinary law and hence, it has to be reasonably construed that the Legislature has intended fixed Court hours and fixed Court days. 12. In the above conspectus, I am of the view that there is felt need to tone up and regulate the working of revenue Courts. In consequence, it would be appropriate in the interest of judicial work being performed by revenue Courts at District level to direct that the revenue Courts at District level may perform judicial functions between 10 a. m. to 5 p. m. for not less than four days during a week to be fixed by the Board of Revenue attended with further direction that they may decide the cases within a time-lag to be fixed by the Board of Revenue in view of speedier and simple procedure provided for disposal of the cases for revenue Courts. The Board of Revenue may issue appropriate instructions by way of circular that during the days which may be ear-marked for performance of judicial functions, the authorities may not be deputed to perform administrative functions except an unforeseen emergency coming into existence. 13. In view of the above, a writ of mandamus is issued accordingly. 14. The Board of Revenue may issue appropriate instructions by way of circular that during the days which may be ear-marked for performance of judicial functions, the authorities may not be deputed to perform administrative functions except an unforeseen emergency coming into existence. 13. In view of the above, a writ of mandamus is issued accordingly. 14. Coming to the Restoration Application which has been lingering since the year 2001, it may be quipped here that restoration has the complexion of a proceeding under Section 141 CPC and procedure prescribed for the trial of a suit, it is settled, are applicable to the proceeding before the Revenue Courts. It is directed that Opp. Party No. 1 i. e. Sub-Divisional Officer Nichlaul District Maharajganj shall decide the Restoration application of the petitioners in accordance with law after affording opportunity of hearing to the parties expeditiously preferably within a period not exceeding three months from the date of production of a certified copy of this order. 15. Let a certified copy of this order be supplied to all the concerned including Registrar of this Court, the learned Chief Standing Counsel as also the State of U. P. through Secretary Revenue Department U. P. at Lucknow and any other authority charged with the duties to effect compliance of the orders of the Court within one month attended with further direction to communicate compliance to this Court. The certified copies shall be issued within three days from the date of receipt of file in the office of the Court. 16. List this matter after one month i. e. 26-9-2005 before this Court for further orders in the matter. Petition allowed. .