Ram Dhani And Another vs State Of U.P. And 15 Others on 18 December, 2020

[Cites 17, Cited by 1]

Allahabad High Court

Ram Dhani And Another vs State Of U.P. And 15 Others on 18 December, 2020

Equivalent citations: AIRONLINE 2020 ALL 2573

Bench: Ajay Bhanot





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 80
 

 
Case :- WRIT - C No. - 12016 of 2020
 

 
Petitioner :- Ram Dhani And Another
 
Respondent :- State Of U.P. And 15 Others
 
Counsel for Petitioner :- Santosh Kumar Singh
 
Counsel for Respondent :- C.S.C.,Sunil Kumar Singh
 
Hon'ble Ajay Bhanot,J.

1. Heard Sri Santosh Kumar Singh, learned counsel for the petitioners, learned Standing counsel for the respondents No.1 and 2 and Sri Sunil Kumar Singh, learned counsel for the respondent No.3.

2. The petitioners have prayed for the following prayer in the instant writ petition:

"To issue a writ, order or direction in the nature of mandamus directing the respondent no.2 to decide the suit no. RST/00213/2018, computer Suit No. T-201814700200213 (Ram Sanehy Vs. Lalman) under Section 116 of U.P. Revenue Code, 2006, within stipulated period which may be fixed by this Hon'ble Court."

3. The petitioners instituted proceeding under Section 116 of the Uttar Pradesh Revenue Code, 2006 before the learned Sub-Divisional Magistrate, Pindara, District-Varanasi, which was registered as Suit No.429/1125 of 2017 (Ram Sanehi and others Vs. Lalman and others). The suit was instituted for division of holdings of which the petitioners claim to be co-sharers.

4. The order-sheet is appended to the writ petition as Annexure-4. The order-sheet records the following dates in the proceedings, namely, 16.04.2018, 10.05.2018, 21.06.2018, 23.07.2018, 24.08.2018, 14.09.2018, 15.10.2018, 14.11.2018, 05.12.2018, 27.12.2018, 29.01.2019, 01.05.2019, 06.06.2019, 01.07.2019, 18.07.2019, 04.09.2019, 17.10.2019, 18.11.2019, 27.11.2019, 13.12.2019, 03.01.2020, 20.06.2020 and 04.07.2020. However, a perusal of the order-sheet shows that the dates were granted mechanically. No effective hearing whatsoever took place for almost two years since the institution of the proceedings. The first effective hearing happened when the order dated 08.06.2020 was passed by the respondent No.2-learned Sub-Divisional Magistrate (Judicial), Tehsil Pindra, District-Varanasi. The matter thus remains pending before the respondent No.2-learned Sub-Divisional Magistrate (Judicial), Tehsil Pindra, District-Varanasi. The proceedings have not moved forward thereafter. Hence, the writ petition.

5. The proceedings in a suit for division of holdings is controlled and guided by the provisions of the Uttar Pradesh Revenue Code, 2006 read with Rules framed thereunder.

6. Sections 116 and 117 provide the statutory backdrop for a suit for division of holdings. The provisions of Sections 116 and 117 are reproduced hereunder:

"116. Suit for division of holding. - (1) A bhumidhar may sue for the division of the holding of which he is a co-sharer.

[(2) In every such suit, the Court may also divide the trees, wells and other improvements existing on such holding but where such division is not possible, the trees, wells and other improvements aforesaid and valuation thereof shall be divided and adjusted in the manner prescribed.] (3) One suit may be instituted for the division of more holdings than one where all the parties to the suit other than the [Gram Panchayat] are jointly interested in each of the holdings.

(4) To every suit under this section, the [Gram Panchayat] concerned shall be made a party.

117. Duty of Court in suits for division of holding. - (1) In every suit for division of holding under Section 116 the Court of Assistant Collector shall -

(a) follow such procedure as may be prescribed;

(b) apportion the land revenue payable in respect of each such division.

(2) A division of holding referred to in Section 116 shall not affect the joint liability of the tenure-holders there of in respect of the land revenue payable before the date of the final decree."

7. The relevant Rules material to the controversy provide for the procedure and the time-line for conclusion of the proceedings are Rules 108 and 109 of the Uttar Pradesh Revenue Code Rules, 2016. The said Rules are extracted hereunder:

"108. Suit for division for several holdings (Section 116).-Where the suit relates to the division of more than one holding, the particulars specified in rule 107 shall be mentioned in the plaint in respect of all such holdings. "

109. Preliminary and Final decrees (Section 117).-(1) If the plaint referred to in rule 107 or rule 108 is in order, it shall be registered as a suit and the defendants shall be called upon to file their written statements. The suit shall then be decided according to the provisions of the Code of Civil Procedure, 1908.

(2) Before making a division the court shall-

(a) determine separately the share of the plaintiff and each of the other co-tenure holders ;

(b) record which, if any, of the co-tenure holders wish to remain joint ; and

(c) make valuation of the holding (or holdings) in accordance with the circle rate fixed by the Collector applicable to each plot in the holding.

(3) If the suit is decreed, the Court shall pass a preliminary decree declaring the share of the plaintiff.

(4) After the preparation of preliminary decree the Sub Divisional Officer shall get the Kurra prepared through the Lekhpal.

(5) The Lekhpal shall submit the Kurra report within a period of one month from the date of receiving the order in this regard and at the time of preparation of Kurra he shall observe the following principles-

(a) the plot or plots shall be allotted to each party in proportionate to his share in the holding;

(b) the portion allotted to each party shall be as compact as possible;

(d) as far as possible existing fields shall not be split up;

(e) Plots which are in the separate possession of a tenure holder shall, as far as possible, be allotted to such tenure holder if they are not in access of his share;

(f) If the plot or any part thereof is of commercial value or is adjacent to road, abadi or any other land of commercial value, the same shall be allotted to each tenure holder proportionately and in the case of second condition the same shall be allotted proportionately adjacent to road, abadi or other land of commercial value; and

(g) If the co-tenure holders are in separate possession on the basis of mutual consent or family settlement, the Kurra shall, as far as possible, be fixed accordingly.

(6) When the report regarding Kurra is submitted by the Lekhpal, the objection shall be invited thereon and thereafter the appropriate order shall be passed by the Sub Divisional Officer after affording opportunity of hearing to the parties and considering the objection, if any, filed against the report submitted by the Lekhpal.

(7) If the report and Kurra is confirmed by the Sub Divisional Officer, the final decree shall follow it.

(8) At the stage of the final decree, the Court shall-

(a) Separate the share of the plaintiff from that of the defendant by metes and bounds.

(b) Place on record a map showing in different colours the properties given to plaintiff as distinct from those given to the defendant.

(d) Direct the record of rights and map to be corrected accordingly.

(9) If, for adjusting the equities between the parties, payment of compensation regarding trees, wells or other improvements becomes necessary, the revenue Court concerned may also pass necessary orders at the stage of final decree.

(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."

8. The constitutional courts are cognizant of the problem of delays in our judicial system. They have consistently attempted to purge the legal system of this menace. Various judgments have identified some of the causes of delays and appropriate judicial directions have been issued to address the problem.

9. Dispensing justice is the fundamental raison d'etre of the judicial system. Timely delivery of justice is indispensable to retaining the faith of the common man in the justice dispensation system.

10. The foremost goal set out in the Preamble of the Constitution, is to secure to all citizens: Justice, social, economic and political.

10.1 Justice to be meaningful has to be delivered in a relevant time frame. Delay invariably defeats justice. Indefinite delays are the bane of our judicial system. Interminable legal proceedings reflect the apathy of an impersonal system to the plight of helpless litigants. So long as timely justice is denied, so long the constitutional promise of justice will not be redeemed, and the constitutional mandate of the judicial system will not be implemented.

11. The constitutional courts are seized with, and the legislatures have taken cognizance of the malaise of delays in the judicial process. Delays in the judicial process have earned the displeasure of constitutional courts, and have evoked the concern of the legislatures. Law will not countenance delays in the judicial process. This is evident from the imperative directions issued by the constitutional courts to purge the judicial system of delays. This will also be apparent from the timelines set by the legislature to cure the mischief of delays in the judicial process. The judicial system will have to evolve an ethos to be alert to, and endeavour to respect timelines created by the legislature.

12. The failure to implement the statutory mandate can be determined once the nature of the statutory mandate is understood. Understanding the nature of the statutory mandate is essentially an exercise in interpretation of the statute.

13. The words of a statute are the best guide to legislative intent. The settled canons of interpretation of statutes are the best tools to ascertain the scope of the statutory duties.

14. The intent of the legislature is clearly to ensure an expeditious disposal of the appeal by the appellate authority. The legislature was clearly aware of the realities of governance and the limitations of quasi judicial authorities. In such circumstances, the legislature was conscious that it may not be possible to adhere to the letter of a strict time frame. But it was within the reach of the appellate authority to comply with the spirit of deciding the appeal with dispatch and expedition. The intendment of the legislature is revealed by the words employed in the provisions.

15. The legislature has taken a practical view. The legislature has set pragmatic standards which are achievable and not created idealistic goals which are beyond reach. The realities of administration have been balanced with the ideals of justice.

16. The legislative mandate to the appellate authority under Rule 109 (10) of the Uttar Pradesh Revenue Code Rules, 2016 is 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."

17. The word "shall" is indicative of the mandatory nature of the provision, but it is not conclusive. The Hon'ble Supreme Court considered the import and consequences of the word "shall" used by the legislature in different statutes. The import of the aforesaid provision and the nature of the statutory duty can be understood in the legal setting of authorities in point, and settled canons of interpretation of statutes.

18. The Hon'ble Supreme Court in the case of State of Haryana Vs. Raghubir Dayal, reported at (1995) 1 SCC 133, undertook this exercise and held thus:

"5. The use of the word 'shall' is ordinarily mandatory but it is sometimes not so interpreted if the scope of the enactment, on consequences to flow from such construction would not so demand. Normally, the word 'shall' prima facie ought to be considered mandatory but it is the function of the Court to ascertain the real intention of the legislature by a careful examination of the whole scope of the statute, the purpose it seeks to serve and the consequences that would flow from the construction to be placed thereon. The word 'shall', therefore, ought to be construed not according to the language with which it is clothed but in the context in which it is used and the purpose it seeks to serve. The meaning has to be ascribed to the word 'shall' as mandatory or as directory, accordingly/Equally, it is settled law that when a statute is passed for the purpose of enabling the doing of something and prescribes the formalities which are to be attended for the purpose, those prescribed formalities which are formalities which are essential to the validity of such thing, would be mandatory. However, if by holding them to be mandatory, serious general inconvenience is caused to innocent persons or general public, without very much furthering the object of the Act, the same would be construed as directory."

15. Clearly the consequences of using the word "shall" can vary and are not uniform. The mandatory effect of the word "shall" can be diluted depending upon the context in which the word "shall" is employed and the statutory scheme in which it is placed. In the context of the Rule 109(10) of the Uttar Pradesh Revenue Code Rules, 2016, the word "shall" is also qualified by the words "as far as practicable". The latter words limit the mandatory effect of the word "shall".

19. The phrase "as far as practicable" was interpreted by the Hon'ble Supreme Court in the case of N.K. Chauhan Vs. State of Gujarat and others, reported at (1977) 1 SCC 308, the Hon'ble Supreme Court held thus:

"26. What does 'as far as practicable' or like expression mean, in simple anglo-saxon ? Practicable, feasible, possi- ble, performable, are more or less interchangeable. A skiagraph of the 1959 Resolution reveals that the revival of the direct recruitment, method was motivated by 'the inter- est of administration'--an overriding object which must cast the benefit of doubt if two meanings with equal persuasive- ness contend. Secondly, going by the text, 50% of the substantive vacancies occurring in the cadre should be filled in by selection in accordance With appended Rules. 'As far as practicable' finds a place in the Resolution and the Rule. In the context what does it qualify ? As far as possible 50% ? That is to say, if 50% is not readily forth- coming, then less ? Within what period should be imprac- ticabilitv to felt ? What is the content of impracticabi- litv' in the given administrative 'setting ? Contrariwise, can you not contend that impracticability is not a license to deviate, a discretion to disobey or a liberty with the ratio ? Administrative tone is too impor- tant to be neglected but if sufficient numbers to fill the direct recruits' quota are not readily available, substan- tive vacancies may be left intact to be filled up when direct recruits are available. Since the exigencies of administration cannot wait, expediency has a limited role through the use of the words 'as far as practicable'. Thereby Government is authorised to make ad hoc appointments by promotion or by creation of ex cadre posts to be filled up by promotees, to be absorbed in the 50% portion falling to the promotional category in later years. In short 'as far as practicable means, not interfering with the ratio which fulfils the interest of administration, but flexible provision clothing government with powers to meet special situations where the normal process of the government Reso- lution cannot flow smooth. It is a matter of accent and import which affords the final test in the choice between the two parallel interpretations.

27. We have given close thought to the competing contentions and are inclined to the view that the former is the better. Certainly, Shri Garg is right that the primary purpose of the quota system is to improve administrative efficiency. After all, the Indian administration is run for the service of the people and not for opportunities for promotion to a few persons. But theories of public administration and experiments in achieving efficiency are matters of governmental policy and business management. Apparently, the State, having given due consideration to these factors, thought that a blended brew would serve best. Even so, it could not have been the intention of government to create artificial situations, import legal fictions and complicate the composition of the cadre by deviating from the natural course. The State probably intended to bring in fresh talent to the extent reasonably available but not at the sacrifice of sufficiency of hands at a given time nor at the cost of creating a vacuum by keeping substantive vacancies unfilled for long. The straightforward answer seems to us to be that the State, in tune with the mandate of the rule, must make serious effort to secure hands to fill half the number of vacancies from the open market. If it does not succeed, despite honest and serious effort, it qualifies for departure from the rule. If it has become non-feasible impracticable and procrastinatory to get the requisite quota of direct recruits, having done all that it could, it was free to fill the posts by promotion of suitable hands if the filling up of the vacancies was administratively necessary and could not wait. 'Impracticable' cannot be equated with 'impossible'--nor with 'unpalatable'--and we cannot agree with the learned judges of the High Court in construing it as colossally incapable of compliance. The short test, therefore, is to find out whether the government, in the present case, has made effective efforts, doing all that it reasonably can, to recruit from the open market necessary numbers of qualified hands. We do not agree that the compulsion of the rule goes to the extreme extent of making government keep the vacancies in the quota of the direct recruits open and to meet the urgent needs of administration by creating ex cadre posts or making ad hoc appointments or resorting to other out-of-the-way expedients. The sense of the rule is that as far as possible the quota system must be kept up and if not 'practicable', promotees in the place of direct recruits or direct recruits in the place of promotees may be inducted applying the regular procedures, without suffering the seats to lie indefinitely vacant."

20. In the case of P.T. Rajan Vs. T.P.M. Sahir and others, reported at (2003) 8 SCC 498 while considering the same issue and similar provision, the Hon'ble Supreme Court held thus:

"48. Furthermore even if the statute specifies a time for publication of the electoral roll, the same by itself could not have been held to be mandatory. Such a provision would be directory in nature. It is well-settled pinciple of law that where a statutory functionary is asked to perform a statutory duty within the time prescribed therefor, the same would be directory and not mandatory."

21. A mandatory provision is required to be complied with strictly on pain of invalidation of the action. But merely because a provision is held to be directory, it does not provide an option of non-compliance to the authorities. The law has to be complied with in all circumstances. This is the essence of the rule of law. However, the rigors of compliance may vary depending upon the statutory provision. In case of a directory provision, a substantial compliance of the same would suffice to meet the ends of law. The Hon'ble Supreme Court has often dealt with the distinction between a mandatory provision and a directory provision, and the issue of compliance of directory provisions. The Hon'ble Supreme Court in the case of Sharif-Ud-Din Vs. Abdul Gani Lone, reported (1980) 1 SCC 403 held thus:

"9. The difference between a mandatory rule and a directory rule is that while the former must be strictly observed, in the case of the latter, substantial compliance may be sufficient to achieve the object regarding which the rule is enacted (emphasize added). Certain broad propositions which can be deduced from several decisions of courts regarding the rules of construction that should be followed in determining whether a provision of law is directory or mandatory may be summarized thus: The fact that the statute uses the word 'shall' while laying down a duty is not conclusive on the question whether it is a mandatory or directory provision. In order to find out the true character of the legislation, the Court has to ascertain the object which the provision of law in question is to sub-serve and its design and the context in which it is enacted. If the object of a law is to be defeated by non-compliance with it, it has to be regarded as mandatory. But when a provision of law relates to the performance of any public duty and the invalidation of any act done in disregard of that provision causes serious prejudice to those for whose benefit it is enacted and at the same time who have no control over the performance of the duty, such provision should be treated as a directory one. Where however, a provision of law prescribes that a certain act has to be done in a particular manner by a person in order to acquire a right and it is coupled with another provision which confers an immunity on another when such act is not done in that manner, the former has to be regarded as a mandatory one. A procedural rule ordinarily should not be construed as mandatory if the defect in the act done in pursuance of it can be cured by permitting appropriate rectification to be carried out at a subsequent stage unless by according such permission to rectify the error later on, another rule would be contravened. Whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow."

22. A Full Bench of this Court in the case of Vikas Trivedi Vs. State of U.P. and others, reported at (2013) 2 UPLBEC 1193 held as under:

"15. Maxwell On the Interpretation of Statutes (Twelfth Edition) in Chapter 13,while discussing "Imperative And Directory Enactments" said following:

'The first such question is: when a statute requires that something shall be done, or done in a particular manner or form, without expressly declaring what shall be the consequence of non-compliance, is the requirement to be regarded as imperative (or mandatory) or merely as directory (or permissive)? In some cases the conditions or forms prescribed by the Statute have been regarded as essential to the act or thing regulated by it, and their omission has been held fatal to its validity. In others, such prescriptions have been considered as merely directory, the neglect of them involving nothing more than liability to a penalty, if any were imposed, for breach of the enactment. An absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially.' It is impossible to lay down any general rule for determining whether a provision is imperative or directory. 'No universal rule', said Lord Campbell, L.C., 'can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed.' And Lord Penzance said: 'I believe as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject matter; consider the importance of the provisions that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory."

"76. At this juncture a note of caution is required to be given. All provisions of the statute are required to be complied with. It is useful to quote paragraph 5-052 of De-Smith Judicial Review 6th Edition in which while dealing with mandatory and directory statutes, following was observed:-

"5-052. A second reason for the tangle in this area is the use of the terms "mandatory" and "directory"; the latter term is especially misleading. All statutory requirements are prima facie mandatory. However, in some situations the violation of a provision will, in the context of the statute as a whole and the circumstances of the particular decision, not violate the objects and purpose of the statute. Condoning such a breach does not, however, render the statutory provision directory or discretionary. The breach of the particular provision is treated in the circumstances as not involving a breach of the statute taken as a whole. Furthermore, logically, a provision cannot be mandatory if a court has discretion not to enforce it."

23. In the case of Karnal Improvement Trust, Karnal Vs. Smt. Parkash Wanti (Dead) and another, reported at (1995) 5 SCC 159, the Hon'ble Apex Court laid down the law in the following terms:

"11. There is distinction between ministerial acts and statutory or quasi-judicial functions under the statute. When the statute requires that something should be done or done in a particular manner or form, without expressly declaring what shall be the consequence of non-compliance, the question often arise: What intention is to be attributed by inference to the legislature? It has been repeatedly said that no particular rule can be laid down in determining whether the command is to be considered as a mere direction or mandatory involving invalidating consequences in its disregard. It is fundamental that it depends on the scope and object of the enactment. Nullification is the natural and usual consequence of disobedience, if the intention is of an imperative character. The question in the main is governed by considerations of the object and purpose of the Act; convenience and justice and the result that would ensure. General inconvenience or injustice to innocent persons or advantage to those guilty of the neglect, without promoting the real aim and object of the enactment would be kept at the back of the mind. The scope and purpose of the statute under consideration must be regarded as an integral scheme. The general rule is that an absolute enactment must be obeyed or fulfilled exactly but it is sufficient if a directory enactment be obeyed or fulfilled substantially. When a public duty, as held before, is imposed and statute requires that is shall be performed in a certain manner or within a certain time or under other specified conditions, such prescriptions may well be regarded as intended to be directory only in cases when injustice or inconvenience to others who have no control over those exercising the duty would result if such requirements are not essential and imperative."

24. Rule 109 (10) as extracted above determines the time frame of the aforesaid proceedings. The statutory mandate of Rule 109 (10) can be distilled by consideration of the phraseology employed by the legislature while enacting the rule, the settled canons of interpretation of statutes. Benefit shall also be derived from authorities in point discussed in the preceding paras.

The word "shall" in Rule 109(10) is qualified by the word "endeavour". The mandatory nature of the word "shall" is also diluted by the phrase "if the suit is not decided within such period". The time period provided for deciding the suit for partition of holdings under Section 116 of the Uttar Pradesh Revenue Code, 2006 read with rules, as provided in Rule 109 (10) of the Uttar Pradesh Revenue Code Rules, 2016 is directory in nature. However, the requirement to record reasons for exceeding the time-line of six months is mandatory.

25. I had the occasion to consider the nature of the legislative mandate to the courts, where directory provisions in a statute require the courts to render a final decision in a specified time frame in Tribhuwan Prasad Vs. Uttar Pradesh Sarkar and others, reported at 2018 (9) ADJ 466. In Tribhuwan Prasad (supra) the time frame provided in the statute for deciding the appeal was two months.

26. In Tribhuwan Prasad (supra) it was found that the provision containing a time frame to decide the appeal was directory, and then the consequences of the said holding were construed on the foot of good authority. The directory nature of the provision may not require strict adherence but insists on substantial compliance. Most pertinently it does not permit indefinite enlargement of the time fixed by the statute:

"21. Statutes fixing time-lines to accomplish an action, as discussed above, were held to be directory in nature. The legislative intent was sought to be defeated by a highly delayed compliance on the pretext of the provision being directory in nature. The action of the authorities was invalidated and such interpretation was negatived by the Hon'ble Supreme Court. Inordinate delay does not satisfy the requirement of substantial compliance of a directory provision. The Hon'ble Supreme Court in the case of State of Haryana Vs. P.C. Wadhwa, IPS, Inspector General of Police and another, reported at (1987) 2 SCC 602, while laying down the law, dispelled all such doubts. The relevant parts of the judgement are being extracted for ease of reference:

"14. The whole object of the making and communication of adverse remarks is to give to the officer concerned an opportunity to improve his performance, conduct or character, as the case may. The adverse remarks should not be understood in terms of punishment, but really it should be taken as an advice to the officer concerned, so that he can act in accordance with the advice and improve his service career. The whole object of the making of adverse remarks would be lost if they are communicated to the officer concerned after an inordinate delay. In the instant case, it was communicated to the respondent after twenty seven months. It is true that the provisions of Rules 6, 6A and 7 are directory and not mandatory, but that does not mean that the directory provisions need not be complied with even substantially. Such provisions may not be complied with strictly, and substantial compliance will be sufficient. But, where compliance after an inordinate delay would be against the spirit and object of the directory provision, such compliance would not be substantial compliance. In the instant case, while the provisions of Rules 6, 6A and 7 require that everything including the communication of the adverse remarks should be completed within a period of seven months, this period cannot be stretched to twenty seven months, simply because these Rules are directory, without serving any purpose consistent with the spirit and objectives of these Rules. We need not, however, dilate upon the question any more and consider whether on the ground of inordinate and unreasonable delay, the adverse remarks against the respondent should be struck down or not, and suffice it to say that we do not approve of the inordinate delay made in communicating the adverse remarks to the respondent."

27. Thereafter, the duties of the court and the manner of implementation of a directory provision of law were laid down :

"23. In case the appeal is decided within two months, the letter and spirit of the statute is implemented. However, mere failure to decide the appeal within two months does not violate the statutory mandate. In the latter case, the statutory obligation will be defined by the quality of the efforts made to decide the appeal with promptitude and dispatch. The obligation will be met if the appeal is decided within a reasonable time, after the expiry of two months from its institution.

24. Statutes of limitation are statutes of repose. Statutes with time lines for decision making are statutes of endeavour. Statutory duty is discharged not only when the act is done but also when effort is made. However, the leeway to the authority is not unlimited and the time to accomplish the act is not indefinite. The statutory duty of the appellate authority, in the event the appeal is not decided within two months is to be seen.

25. The appellate authority shall have discharged its statutory duties initially, if it makes efforts commensurate to decide the appeal expeditiously, and finally when it enters a judgement, in a reasonable time after the expiry of two months. In such circumstances, the appellate authority can implement the law, by making honest endeavours and serious efforts to decide the appeal with dispatch and expedition. This is the statutory duty of the appellate authority. While the statutory duty of the appellate authority is to make earnest efforts to decide expeditiously, the proof of its performance is in the order-sheet of the court. The order-sheet of the appellate court is the most reliable evidence of the sincerity or earnestness of the efforts made by the appellate authority. The order-sheet of the appellate court is true testimony to the accomplishment of the statutory duty or the failure of the authority to perform its statutory duty. In the latter case the authority is liable to be mandamused."

28. Similar directory provisions providing for a time period to conclude legal proceedings also exist in the Arbitration Act. The mandate of Section 34(5)(6) of the Arbitration and Conciliation Act, 1996 came up for consideration before this Court in Matters Under Article 227 No.237 of 2020 (Mrs. Madhuri Saxena (since deceased) through L.R. Vs. Sahkari Awas Evam Vitt Nigam Ltd. Sarojni Marg Lucknow U.P.) rendered on 14.08.2020. The duty of the Court to implement a statutory mandate of Sections 34 and 35 of the Arbitration and Conciliation Act, 1996 were cast in the following paragraphs:

"40. A composite reading of Section 34 (5) and (6) of the Arbitration and Conciliation Act, 1996, the law laid by the Hon'ble Supreme Court in State of Bihar and others (supra) and this Court in Tribhuwan Prasad (supra) yields these results. Section 34(5) and (6) of the Arbitration and Conciliation Act, 1996 being directory in nature, prevent the courts from being rushed into decisions by breaching fundamental norms of fairness and justice. The timeline set by the statute, cannot stampede the courts into passing orders which cause miscarriage of justice. However, the courts cannot extend the statutory time frame indefinitely or unreasonably. Neither can the courts be purblind to the timeframe provided in the statute on the pretext that provision is directory. Substantial compliance of the said provisions is sufficient to satisfy the legislative mandate. What substantial compliance entails in regard to these provisions needs to be understood clearly to enable the courts to implement the law faithfully. The duties of the court while deciding an application under Section 34 of the Arbitration and Conciliation Act, 1996 are distilled hereinunder.

41. The courts always have to be alert to the statutory time period of one year to decide the application, and make sincere efforts to adhere to the stipulated time line. In case the application is not decided within the statutory time limit of one year, the court should make all out endeavours to decide it within a reasonable time frame thereafter. At all times, the mandate of law requires the court to proceed with full diligence, and make earnest endeavours to decide the application under Section 34 of the Arbitration and Conciliation Act, 1996, within the time prescribed by the statute or in proximity to it. An unreasonable delay in deciding the matter represents a failure to implement the law. If serious efforts to decide matter within the statutory time frame is the requirement of the law, the order-sheet of the court is the most reliable evidence of the implementation of the law."

29. From the facts of the case prised out at the very inception, and the law discussed in the preceding paragraphs these facts are established. The proceedings under Section 116 of the Uttar Pradesh Revenue Code Rules, 2016 could not be concluded within the prescribed statutory time limit, or in a time frame proximate to it. No end to the proceedings is in sight. And if the order-sheet of the court below is a guide, the proceedings could well linger indefinitely. The delay in deciding the case is unreasonable and unacceptable. Further the reasons for failure to decide the suit within the aforesaid period have not been recorded in violation of the mandate of Rule 116 of the Uttar Pradesh Revenue Code Rules, 2016.

30. The adherence to the law laid down by this Court in various authorities discussed earlier is not in evidence. The legislative mandate of Section 116 of the Uttar Pradesh Revenue Code Rules, 2016 has not been implemented. The stakeholders have shown apathy towards the litigant, and indifference to the noble charter of the legal profession. Honest endeavours and earnest efforts to conclude the proceedings with diligence and dispatch are not disclosed from the order-sheet. No reasons for failing to decide as required under Rule 110(10) are in the order-sheet. The order-sheet of the case is equally a reflection and an indictment of the judicial process. The court has ample powers to ensure that the process of law is not stalled by the dilatory tactics of any party. The courts are not helpless and cannot be seen to be helpless.

31. The rule of law cannot be flouted or permitted to fail. It is the obligation of this Court to ensure that the rule of law is upheld under all circumstances.

32. In light of these facts and the authorities at hand, I am of the opinion that this is a fit case to exercise the jurisdiction under Article 226 of the Constitution of India by issuing strict directions to decide the matter finally within a stipulated period of time.

33. The authority /learned court below has failed to perform its statutory duty. In view of the aforesaid facts, this Court has to issue a mandamus commanding the authority /learned court below to discharge its statutory duty.

34. A writ of mandamus is issued directing the respondent No.2/learned Sub-Divisional Magistrate, Tehsil Pindra, District-Varanasi/learned court below or any other authority, before whom the aforesaid Suit No.RST/00213/2018, Computerized Suit No.T-201814700200213 (Ram Sanehy and another Vs. Lalman and others) under Section 116 of U.P. Revenue Code, 2006 is pending, to execute the following directions:

I. The suit shall be decided by the respondent No.2/learned Sub-Divisional Magistrate, Tehsil Pindra, District-Varanasi/learned court below within a period of four months from the date of production of a computer generated copy of this order, downloaded from the official website of the High Court Allahabad.

The computer generated copy of such order shall be self attested by the applicant (party concerned) along with a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked. The Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

II. The respondent No.2/learned Sub-Divisional Magistrate, Tehsil Pindra, District-Varanasi/learned court below shall give shorter dates and not grant any adjournment to the parties.

III. In case any adjournment is granted for preventing any miscarriage of justice, the respondent No.2/learned Sub-Divisional Magistrate, Tehsil Pindra, District-Varanasi/learned court below shall record reasons for the same.

IV. Further, the party seeking an adjournment shall be liable to pay costs to the extent of at least Rs.5,000/- per adjournment.

V. The respondent No.2/learned Sub-Divisional Magistrate, Tehsil Pindra, District-Varanasi/learned court below, if necessary, shall proceed on a day to day basis to ensure that the above stipulated time-line of four months is strictly adhered to.

33. With the aforesaid directions, the writ petition is disposed of.

Order Date :- 18.12.2020 Ashish Tripathi

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Allahabad High Court