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HANUMAN PRASAD versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Hanuman Prasad v. State Of U.P. & Others - WRIT - C No. 10140 of 2006 [2006] RD-AH 6846 (29 March 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court no. 40

Civil Misc. Writ Petition No. 10140 of 2006

Hanuman Prasad..........................................................Petitioner

Versus

State of U.P. and others..............................................Respondents.

Hon. S.N.Srivastava, J.

Order impugned and assailed in this writ petition is dated 29.10.2005 passed by Tahsildar Hathras District Judge Hathras in case no. 1162 of 2005 instituted under section 34/35 of the Land Revenue Act.

The starting point of the case was the application filed on 13.9.2005 before the Tahsildar by Opposite party no.2 for mutation of her name in place of Ghanshyam Das Poddar in the revenue record qua the property known as Jamuna Bagh situated in village Garhi Tamna District Hathras- founding her claim on the basis of an unregistered Will dated 7.2.99 allegedly executed by Ghan Shyam Potdar. It would further appear that pursuant to the application for mutation, notices were issued fixing 17.10.2005. Thereafter the case suffered adjournments on 18.11.2005, 28.11.2005, 8.12.2005, 11.12.2005, 28.12.2005, 6.1.2006, 16.1.2006, 21.1.2006, 2.2.2006, and 7.2.2006 and lastly the date fixed in the case is indicated to be 18.2.2006. As stated supra, since challenge in this petition is to the order dated 29.10.2005 which according to the petitioner has been filed behind his back without affording opportunity of hearing and against the norms and ethics of judicial discipline, I feel inclined to look into the justness and propriety of the impugned order passed by the Tahsildar.

From a close scrutiny of the order-sheet of the case, it would appear that the case after being instituted on 7.10.2005 has suffered adjournments from 17.10.2005 to 7.2.2006 on grounds enumerated in the orders i.e. due to strike of lawyers/condolence/absence of the Presiding officers. It is evident from the order sheet that a stereotyped order has come to be scribed on each dates by using a rubber stamp mentioning all the three grounds in tandem and further, none of the orders bear signature of the Presiding officer.  It would further appear that the impugned order dated 29.10.2005 has been scribed by the Tahsildar on the application made by opposite party no.4 while to the contrary, in the order sheet, the case has been stated to have been adjourned to 18.11.2005. The record further reveals that on 7.10.2005, which was the date fixed in mutation proceeding before the Tahsildar, the petitioner was present and had filed application attended with the prayer that Opposite party no. 2 be directed to produce original Will as photo copy has been filed alongwith the case. It would also appear from the record that after gaining knowledge of the impugned order dated 29.10.2005, the petitioner filed application on 19.11.2005 for recall of the order passed ex-parte but no orders having been passed thereon, the petitioner has invoked the jurisdiction of this Court by filing the present petition.

Upon institution of the writ petition in this Court, notices were issued to Opposite parties 4 and 5 by means of order dated 20/2/2006. After the notices issued to Opposite parties 4 and 5 who are the Tahsildar and the Reader of the Court respectively, they, it would appear, appeared in person before the court on 21.3.2006 and 22.3.2006 and also filed their respective counter affidavits.

I have heard learned counsel for the petitioner as also learned standing counsel representing the Opposite parties 4 and 5.

Learned counsel for the petitioner, as stated supra, has assailed the impugned order on the ground that on 29.10.2005, the petitioner was present and he was given a general date and thereafter in the course of the day, an application was made stealthily behind the back of the petitioner which Tahsildar connived to entertain and passed the impugned order against all judicial ethics and norms. Per contra, learned Standing counsel on the basis of averments made in the counter affidavit, canvassed that the Presiding officer was very much present and he was holding Lok Adalat within the Tahsil compound and he decided as many as 17 cases and by this reckoning, the learned Standing counsel, to all appearances, called in question the grounds enumerated in the order-sheet for absence of Tahsildar on the date. He further canvassed on the basis of averments in the counter affidavit that Tahsildar was thereafter deployed for V.I.P. duties on account of tour programme of Hon. Minister for Basic Shiksha U.P. who happened to be at Hathras on the said date as would be borne out from copy of the Tour programme. Elucidating his stand on the impugned order, he canvassed that a senior counsel had moved the said application on 29.10.2005 and thereupon he passed the order in the interest of justice which according to the learned standing counsel does not impinge upon the right and title of any of the parties. On the basis of averments made in paragraph 8 of the counter affidavit, the learned Standing counsel argued that a general date is assigned on any non-working day for either of causes of strike by lawyers or condolence or absence of Presiding officer of the Court. The learned counsel however, conceded on the basis of Annexure 10 to the writ petition which is copy of the order-sheet that in a contingency like this, the reader of the court, makes use of a rubber stamp and instead of scribing the order in his hand writing and a blank space is left for filling up the next date. On the basis of averments made in para 11 of the counter affidavit, the learned Standing counsel tried to justify the procedure adopted by Tahsildar stating that besides the judicial work, he as Tahsildar, has to perform various functions including discharge of administrative functions, maintenance of law and order besides being deployed to deal with natural calamities and in view of the above functions of emergent nature, his absence from judicial work becomes imperative.

The Tahsildar, who was present in the Court on 22.3.2006, also produced original record of case no. 1162 arising out of proceeding under section 34 of the U.P. Land Revenue Act. From a perusal of the original record, it clearly transpires that none of the orders passed between 17.10.2005 and 7.2.2005, adjourning the case from date to date bears the signatures of either of the Presiding officer of the court or any of the Link Officers. It would further transpire that a rubber stamp has been used by which stereotyped order has been affixed enumerating all the three causes in tandem without specifying any particular cause for giving a general date on a particular date.

Before proceeding further, provisions of the U.P. Revenue Courts Manual may be usefully be scanned. Rule 30 of the manual clearly prescribes that order-sheet has to be written by the Presiding officer or by an officer of the Court and further it has to be signed by Presiding officer. The Note to the aforesaid Rule envisages that an officer should be appointed in respect of each Court to sign the order fixing the adjourned date under Rule 32, in the absence of the Presiding officer due to sudden illness or some other such cause. Again, Rule 32 of the Manual envisages that order affixing dates or directing anything to be done by parties should be signed by parties or their pleaders. The next rule relevant for the purposes of the present case is rule 49 of the Manual which is abstracted below.

"A cause list (B.R. Form No. 253/369 (Hindustani) shall be prepared in every Court either by the Presiding officer personally or under his direct personal supervision, every fortnight, or at such shorter intervals as may be convenient, showing (a) the date fixed for the hearing of each case, (b) the number and description of the case, (c) the names of the parties, (d) the purpose for which the date has been fixed and (e) the place at which the case will be heard or if the case will be heard in camp, the place at which it will probably be heard."

Note (1).- A course which has much to commend it is setting apart of certain days in the week exclusively for judicial work. Officers must decide themselves whether to adopt this arrangement or not but they will do well to remember that there are obvious advantages in fixing and notifying certain days on which the public will have a reasonable certainty of finding them in a position to take up cases at regular hours.

Note (2).- The requirements of the note below Rule 27 should be kept in view while drawing up the cause list."

In this connection Rule 27 of the Manual may also be noticed. It deals with adjournments and postulates that when the hearing of evidence has once begun the hearing of the suit or application should be continued from day to day until all the witnesses in attendance have been examined unless the court finds the adjournment of the hearing beyond the following day to be necessary for reasons to be recorded. Note to Rule 27 stipulates that in drawing up the cause list under Rule 49, cases should be placed with due regard to their complexity to avoid break in the continuity of hearing and adjournments, once a case is started. Rule 28 of the Manual provides instructions to be followed in dealing with adjournments and therefore, it would be apt to quote the same below.

"28. Instructions to be followed in dealing with adjournments.- In dealing with applications for adjournments the courts shall be guided by the following instructions;

(1) A date for hearing once fixed shall, so far as practicable be strictly adhered to and no adjournment granted except for good cause. In no case when one of the parties is ready to proceed should an adjournment be granted at the request of the opposite party; except on condition that a sum commensurate with the costs which, in the opinion of the Court, the party ready to proceed will have to incur owing to the adjournment, be paid as and when directed by the Court to the party ready to proceed, and bear his cost in any event. In all cases when an adjournment is granted the Court shall record a proceeding stating his reasons for granting that adjournment and such proceeding shall be filed with the record.

(2) The mere fact that a party is through carelessness or negligence, not ready to go on with a suit, is not itself a good cause for adjournment.

(3) The rules regarding the filing of documents and exhibits should be strictly observed and parties have no right to ask for adjournment in order to obtain copies of documents is by the exercise diligence they could have procured them in time.

(4) A hearing should not be adjourned to call for a written report from officer of the court unless such report is absolutely necessary.

Rule 29 of the Manual deals with particulars to be written on order-sheet and therefore it may usefully be quoted below.

"29. Particulars to be written on order-sheet.- The order-sheet (paragraph 1202, Revenue Manual) shall contain a note of every order made in the suit or case, and shall show, the date of and the proceedings at every hearing. It shall show, amongst other matters the names of the parties present or of their counsel, if they are represented by counsel, or of their duly authorized agents and the dates on which the plaint and written statement were filed, issues were recorded, or amended, witnesses examined, and the names of such witnesses, of the delivery of judgments, of the signing of the decree, and of any application for review of judgment or amendment of the decree. It shall also contain a note of every proceeding such as the reading of the deposition of a witness examined by commission; the reading of a commission's report, and of the fact of any objection being made thereto and if witnesses are in attendance when a case is adjourned, the fact shall be noted."

In the light of the above provisions contained in the U.P. Revenue Court Manual, it leaves no manner of doubt that the revenue courts have to perform the quasi judicial function not in a wanton and arbitrary manner but on the nail-studded path of the procedure prescribed in the U.P. Revenue Court Manual bearing in mind the judicial norms and discipline and observing fully in observance the principles of natural justice. Here in the instant case, it is more than clear that relevant proceedings on 7.10.2005 on which date application by moved by Hanuman Prasad Poddar with the prayer to file original Will deed orders and on 29.10.2005 on which date original will deed was filed and impugned order was passed have not been noted on the order-sheet. Besides, all that are found on the order-sheet are the stereotyped orders adjourning the case affixed using rubber stamp seal, and that none of them bear the signatures either of the presiding officer or of the Link officer nor signatures of either the party or the pleader of the party has been obtained on the margin of the order-sheet in outrageous non-compliance with the mandate of Rule 27, 28, 29, 30 and 49 of the U.P. Revenue Court Manual. To be precise, from a perusal of the record, it is obvious that application was moved by the petitioner on 17.10.2005 seeking the Opposite party no. 2 to file original Will deed and thereafter on 29.10.2005, Opposite party no.2 moved an application on which the impugned order was passed, and some of the documents were filed on that very date but from a perusal of the order-sheet it is conspicuous that there is no reference either of application moved on 17.10.2005 by the petitioner or of application moved on 29.10.2005 by the Opposite party no. 2. It would further transpire that the case was adjourned without assigning any reason and also in utter disregard of the fact that parties were present. The orders on the order-sheet being unsigned, the use of rubber stamp, non-specification of a specific reason for adjournment of the case all go to show that all is not well with the health of revenue courts which have been assigned the judicial work coupled with administrative duties under the statute.

Coming to the impugned order, it is clearly established from the record that despite the fact that presiding officer was busy elsewhere as borne out from the order-sheet and averments of the counter affidavit on 29.10.2005, and also from the record, the Tahsildar concerned entertained the application of the Opp. Party no.2 and passed the impugned order thereon behind the back of the petitioner without there being any mention of the order or filing of the original will deed on the order sheet.

In the above conspectus, I am of the view that the conduct of Tahsildar concerned who appears to be sufficiently senior officer being one militating against the norms and ethics of judicial conduct expected of such a senior person and in outrageous violation of the statutory provisions, calls for appropriate disciplinary action more appropriately by instituting an enquiry to prevent an encore of such misfeasance and in the instant case, the appropriate authority being Board of Revenue, it is directed that enquiry shall be held attended with further direction that it be taken to some finality within a period not exceeding three months for acting contrary to the established procedure as envisaged in Revenue Court Manual particularly in Rules 27, 30, 32 and 49 of the U.P. Revenue Court Manual and for acting contrary to the provision of Rule 32 of the Manual and also for affixing stereotyped orders on the order-sheet by using rubber stamp seal.      

As stated supra, the Opposite party no. 2 is not represented in the case. By all reckoning, in the facts and circumstances, the Opposite party no. 2 appears to be necessary party whose presence is imperative for effective adjudication of the dispute. In the circumstances, notice be issued to Opposite party no.2 returnable at an early date fixing 10.5.2006.

The original record, which was directed to be placed on record, be returned to the Standing counsel for onward transmission to the court concerned. However, photo copies of the file be retained on the record for further perusal of the court on the date fixed.

In the interim, it is directed that the case may be disposed of expeditiously within a period not exceeding three months in accordance with law after affording opportunities of hearing to the parties. In case, the Tahsildar concerned finds it difficult on account of pressure of ancillary duties, the Collector Hathras will be at liberty to pass appropriate orders transferring the case elsewhere to a Presiding officer of competent jurisdiction with a view to doing justice between the parties expeditiously.

List this matter on 10.7.2006 for final disposal.

M.H.

March 28,2006  


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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