# Daya Shankar v. State of U.P. & Ors

- **Citation:** (2023) 6 ILRA 685
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-19
- **Case number:** Writ-C No. 17072 of 2023
- **Bench:** Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/daya-shankar-v-state-of-u-p-ors-50344
- **Pages:** 7

## Headnote

Civil Law - U.P. Revenue Code, 2006 - U.P.
Revenue
Code,
2016-Petitioner
seeks
direction to expedite the proceedings of case
u/s 116 of revenue code, 2006-for certain
proceedings-legislature has provided time bound
686 INDIAN LAW REPORTS ALLAHABAD SERIES
disposal under Code, 2006 or in Rules, 2016-for
proceedings having no time frame fixed by
the legislature-directions imposed to the
Revenue officer to decide them in certain
manners-St. further directed to fill up the
posts of Sub Divisional Magistrate( Judicial) as
required u/s 13 (6) and of Tahsildar (judicial)
u/s 14 (1) of Code, 2006 to address the
problem of pendency.

W.P. disposed. (E-9)

List of Cases cited:

## Text

6 All. Daya Shankar Vs. State of U.P. & Ors.
685

71. Tribunal, under Act 2007, can
grant such remedies of maintenance as
envisaged under Section 2(b), but that
would not result in obviating competing
remedies under other statues.

72. In the facts of the present writ
petition, petitioner claims to be the owner
of the property inherited from her husband.
It is alleged that the house was owned and
constructed by her deceased husband. The
fourth respondent in a suit being Suit No.
181 of 2021, has claimed one-fourth part of
the property being co-owner. It is alleged
that the petitioner wants to sell the entire
property to a third party. A contrary claim
has been set up by the petitioner in the suit
instituted by her.

73. In the circumstances, the second
respondent-District Magistrate, District
Etah,
committed
an
error
directing
eviction of the petitioner from the entire
property. Accordingly, petitioner could
not have been evicted from three-fourth
portion of the property, which as per the
case of the fourth respondent, before the
civil court, is that petitioner is co-owner
of the property.

74. Proceedings by a senior citizen
before the Tribunal under Act 2007, cannot
be made basis for evicting the daughter-inlaw or the occupant who has right and title
in the property which is subject matter of
maintenance.

75. The writ petition is, accordingly,
allowed.

76. The impugned order dated 06
April
2023,
passed
by
the
District
Magistrate, District Etah, is set aside and
quashed.

77. It is provided that petitioner along
with her two daughters shall continue to
reside in the property in dispute on threefourth portion and the fourth respondent
would have right and access to one-fourth
part of the property.

78. The contesting parties are restraint
from creating third party right and interest
in the property in dispute during pendency
of the civil suit.

79. After decision in the civil suit or
any order passed therein, reflecting upon
the title and ownership of the suit property,
in that event, the fourth respondent can
approach the Tribunal for obtaining a fresh
order towards provision for residence.

80. No cost.
----------
(2023) 6 ILRA 685
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.05.2023

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Writ-C No. 17072 of 2023

Daya Shankar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Kirt Raj Yadav, Sri Abhinav Jaiswal

Counsel for the Respondents:
C.S.C., Sri Rameshwar Prasad Shukla

Civil Law - U.P. Revenue Code, 2006 - U.P.
Revenue
Code,
2016-Petitioner
seeks
direction to expedite the proceedings of case
u/s 116 of revenue code, 2006-for certain
proceedings-legislature has provided time bound
686 INDIAN LAW REPORTS ALLAHABAD SERIES
disposal under Code, 2006 or in Rules, 2016-for
proceedings having no time frame fixed by
the legislature-directions imposed to the
Revenue officer to decide them in certain
manners-St. further directed to fill up the
posts of Sub Divisional Magistrate( Judicial) as
required u/s 13 (6) and of Tahsildar (judicial)
u/s 14 (1) of Code, 2006 to address the
problem of pendency.

W.P. disposed. (E-9)

List of Cases cited:

1. Ayodhya Sahai Vs District Judge, Jaunpur &
ors., (1997) 3 UPLBEC 1677

2. Matters under Article 227 No. 2616 of 2012
(Raj Kumar Devi & anr. Vs Civil Judge (J.D.) &
ors.)

(Delivered by 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
6 All. Daya Shankar Vs. State of U.P. & Ors.
687
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 dayto-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 crossexamine 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
688 INDIAN LAW REPORTS ALLAHABAD SERIES
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
6 All. Daya Shankar Vs. State of U.P. & Ors.
689
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 :- .
690 INDIAN LAW REPORTS ALLAHABAD SERIES

(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
6 All. Indian Overseas Bank & Anr. Vs. Union of India & Ors.
691
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.
----------
(2023) 6 ILRA 691
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.05.2023

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Writ-C No. 21933 of 2017

Indian Overseas Bank & Anr. ...Petitioners
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ved Prakash Singh, Sri Akhillesh Kalra (Sr.
Adv.), Sri Avinash Chandra

Counsel for the Respondents:
A.S.G.I., Sri Anil Kumar, Sri Gaurav Srivastava,
Sri P.S. Chauhan, S.C., Sri Sudarshan Singh

Civil Law - Payment of Gratuity Act, 1972Respondent employee retired but termination
order passed after his retirement-Respondent
sought release of terminal benefits u/s 4 of
Payment of gratuity Act-objected by the
Petitioner Bank-granted maximum gratuityimpugned-Appeal
dismissed-impugnedforfeiture of gratuity is permissible only if
termination
is
for
misconduct
which
constitutes
an
offence
involving
moral
turpitude and convicted by competent courtnot proof of misconduct will do-no error in the
impugned orders-Bank directed to release the
gratuity.