1. Heard Mr. Ajay Kumar Pandey learned counsel for petitioner and Mr. Pradeep Kumar Singh learned Additional Chief Standing Counsel appearing on behalf of opposite party No.1. In view of order being passed, notices to opposite party No.2 stand dispensed with.
2. Petition has been filed seeking following reliefs:-
" a. Direct the opposite party no.1 to decide the appeal under section 35(2) of U.P. Revenue Code, 2006 bearing Appeal No.0824/2020, Computerized case No. T-202004230400824, Ram Chandar versus Rakesh Kumar and others, expeditiously, within a period, as fixed by this Hon'ble court, in the interest of justice. ...."
3. Learned State Counsel appearing on behalf of opposite party No.1 has raised a preliminary objection regarding maintainability of the petition under Article 227 of the Constitution of India in view of Chapter L, paragraph 494(1) of the U.P. Revenue Court Manual. It is submitted that the aforesaid chapter is comprised in part V of the U.P. Revenue Court Manual (Amendment) Regulations 2016 and specifically provides that the Board of Revenue may suo moto or on the application of a party to the suit, appeal, revision or other proceeding pass general or specific order directing the court below to decide the suit, appeal, revision or other proceeding within the period enumerated in the order. It has thus been submitted that in view of availability of alternative remedy as indicated herein above, it would not be appropriate for the petitioner to directly approach this court in petition under Article 227 of the Constitution of India. It has also been submitted that alternative remedy has been incorporated by means of U.P. Revenue Court Manual (Amendment) Regulations 2016 and now provides an effective and efficacious alternative remedy to the petitioner.
4. Learned State Counsel has also relied upon the order dated 17th February, 2021 passed in writ petition No. 4064 (M/S) of 2021 (Vinod Kumar Shukla versus Up Ziladhikari Mankapur Gonda and others) and order dated 6.9.2021 passed in writ petition No. 19692 (M/S) of 2021 (Moni Singh versus Nayab Tehsildar, Barausa, Tehsil Jaisinghpur, Sultanpur) to substantiate that in such matters this Court has relegated petitioner to the alternative remedy of approaching the Board of Revenue.
5. Learned counsel appearing on behalf of the petitioner has refuted the submissions advanced by learned State Counsel pertaining to the preliminary objection with the submission that the provision of supervisory control of this Court under Article 227 of the Constitution of India is a constitutional provision which can not be fettered by any statutory provision. It is submitted that provision under Article 227 of the Constitution of India is in the nature of an extraordinary power and would not be subject to any direction or provision of statute. It is submitted that it is settled law that availability of alternative and equally efficacious remedy would not bar a petition either under Article 226 or 227 of the Constitution of India. Learned counsel for petitioner has relied upon certain judgments to substantiate his submissions.
6. Considering the submissions advanced by learned counsel for parties, it is apparent that part V has been incorporated in the U.P. Revenue Court Manual with effect from 2016 with Chapter L containing paragraph 494(1) giving jurisdiction to Board of Revenue to issue directions for expediting suits, appeals, revisions and other proceedings pending before revenue authorities. It is on the basis of Chapter 494(1) of the aforesaid manual that the order has been passed in the case of Vinod Kumar Shukla (supra).
7. With regard to entertainability of a petition under Article 227 of the Constitution of India particularly in view of availability of an alternative and equally efficacious remedy, Hon'ble the Supreme Court in the case of Shalini Shyam Shetty and another versus Rajendra Shankar Patil reported in A.I.R. 2010 SCW 6387 has enunciated the extent and scope of this Court while exercising powers under Article 226 and 227 of the Constitution of India. Hon'ble the Supreme Court has in the said judgment clearly indicated the demarcation between exercise of power under Article 226 and 227 of the Constitution of India. It has been held that exercise of power under Article 227 of the Constitution of India is a discretionary power to be exercised by court which can not be claimed as a matter of right by party. At the same time Hon'ble the Supreme Court has indicated the principles for exercise of High Court's jurisdiction under Article 227 of the Constitution of India which is as follows:-
" 62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated:
(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, `within the bounds of their authority'.
(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chndra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment Act), 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.
(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court.
(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality."
8. A perusal of the aforesaid principles clearly indicates the dichotomy between Articles 226 and 227 of the Constitution of India and while it has been held that the High Courts can not, on the drop of a hat, exercise its power of superintendence under Article 227 of the Constitution but at the same time has indicated the scope of interference particularly in such cases where directions are required to ensure that law is followed by tribunals and courts and other authorities to ensure exercise of jurisdiction which is vested in them and by not declining to exercise the jurisdiction. It has been further held that High Court's power of superintendence under Article 227 can not be curtailed by any statute as it has been declared a part of the basic structure of Constitution in the constitutional bench judgment of L. Chandra Kumar versus Union of India reported in (1997) 3 SCC 261.
9. Hon'ble the Supreme Court has also held that powers exercisable by the High Court under Article 227 of the Constitution are wide and unfettered and require issuance of necessary directions in order to keep a strict administrative and judicial control on the administration of justice within its territory since the very object of superintendence both administrative and judicial is to maintain efficiency and smooth and orderly functioning of the entire machinery of justice in such a way that it does not bring any disrepute. However a note of caution has also been added that this reserved and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but is to be directed for promotion of public confidence in the administration of justice in larger public interest.
10. Upon applicability of the aforesaid judgment, it is clear that Rule 34(7) of the U.P. Revenue Court Rules 2016 specifically provides that the Tehsildar shall make an endeavour to decide the undisputed cases of mutation within a period of 45 days from the date of registration of the case while disputed cases of mutation are to be decided within a period of 90 days. A further stipulation has been made that in case the proceedings are not concluded within the said time period, reasons for the same are required to be recorded.
11. Similar provisions have been indicated in Rule 183 of the aforesaid Rules of 2016 with regard to appellate and revisional court. Rule 183 (4) of the aforesaid Rules of 2016 specifically provides that the appellate or revisional court shall endeavour to finally decide the appeal or revision within a period of six months from the date of filing the appeal or revision and in case they are not being decided within the said time period, reasons for same are required to be recorded.
12. The U.P. Revenue Court Rules have been framed in exercise of powers under Section 233 of U.P. Revenue Court 2006 read with Section 21 of General Clauses Act 1904 and as such have statutory force. A reading of Sections 34(7) and 183(4) of the Rules of 2016 make it apparent that the limitation period prescribed for deciding revenue matters are not to be treated lightly and are not at the discretion of the authorities concerned. There is in fact a mandate of the statute to decide the applications, suits, revisions, apeals within the time frame provided or to record reasons in case the said time period is not adhered to. As such it can not be said that the time frame as required to be followed by the authorities in terms of the aforesaid provisions are merely directory.
13. Upon applicability of the judgment rendered in the case of Shalini Shyam Shetty and another (supra) and the principles enunciated therein, it is apparent that power under Article 227 of the Constitution of India is required to be exercised by this Court in case the authorities are not adhering to the statutory stipulations. In the present case, it is apparent that there is statutory mandate that the authorities are required to decide suit, appeal, revision etc. within the statutory period provided. Non adherence to the aforesaid principles are clearly violative of the Statute which would require this Court to step in and ensure that statutory provisions are adhered to and followed by the State authorities. This Court can not abdicate its duties and powers in such circumstances merely on account of availability of alternative and equally efficacious remedy as provided in paragraph 494(1) of the U.P. Revenue Court Manual.
14. So far as the judgment cited by learned State Counsel in the case of Vinod Kumar Shukla versus Up Ziladhikari Mankapur Gonda and others and Moni Singh versus Nayab Tehsildar, Barausa, Tehsil Jaisinghpur, Sultanpur (supra) are concerned, it can be seen that the petitioner therein has been relegated to the alternative remedy merely on the basis of submission advanced by learned State Counsel and the aspect of maintainability of petition under Article 227 of the Constitution of India viz-a-viz paragraph 494(1) of the Manual has not been adverted to. As such the said order would clearly not operate as a precedent.
15. The doctrine of precedent or Stare Decisis is a settled principle of law that a judgment, which has held the field for a long time, should not be unsettled. The doctrine of ' Stare Decisis et non quieta movere' means stand by decisions and not to disturb what is settled. The aforesaid English principle has been followed by Hon'ble the Supreme Court in the case of Waman Rao versus Union of India reported in (1981) 2 SCC 362 and subsequently in the case of Krishena Kumar versus Union of India (1990) 4 SCC 207 in the following manner:-
" 33.Stare decisis et non quieta movere. To adhere to precedent and not to unsettle things which are settled. But it applies to litigated facts and necessarily decided questions. Apart from Article 14 of the Constitution of India, the policy of courts is to stand by precedent and not to disturb settled point. When court has once laid down a principle of law as applicable to certain state of facts, it will adhere to that principle, and apply it to all future cases where facts are substantially the same. A deliberate and solemn decision of court made after argument on question of law fairly arising in the case, and necessary to its determination, is an authority, or binding precedent in the same court, or in other courts of equal or lower rank in subsequent cases where the very point is again in controversy unless there are occasions when departure is rendered necessary to vindicate plain, obvious principles of law and remedy continued injustice. It should be invariably applied and should not ordinarily be departed from where decision is of long standing and rights have been acquired under it, unless considerations of public policy demand it. But in Nakara [(1983) 1 SCC 305 : 1983 SCC (L&S) 145 : (1983) 2 SCR 165] it was never required to be decided that all the retirees formed a class and no further classification was permissible."
16. Considering the aforesaid facts, it is apparent that for a decision to operate as Stare Decisis, a deliberate and Solemn decision determining a question of law is an authority or a binding precedent in the same court or in other courts of equal or lower rank in subsequent cases where the very point is again in controversy. Since in the orders cited by learned State Counsel, the matters have been relegated to the alternative remedy only on the basis of statement made by the State Counsel without adjudicating the question of maintainability of petition under Article 227 of the Constitution of India, the same would in the considered opinion of this Court not operate as a binding precedent in the present matter.
17. In such circumstances, it is held that this Court would be well within its rights and limitations to exercise power under Article 227 of the Constitution of India to issue directions to the authorities concerned to adhere to the time limitation provided under Rule 34 and 183 as indicated herein above. As such the petition under Article 227 of the Constitution of India for the purposes of issuance of directions to the authorities as made in the prayer is held to be maintainable.
18. Considering the facts and circumstances of the case, particularly the fact that Appeal No.0824/2020 is pending consideration before the authority concerned since 2020, a direction is issued to the opposite party no.1 i.e. Sub-Divisional Officer, Tehsil-Milkipur, District Ayodhya to decide the appeal under section 35(2) of U.P. Revenue Code, 2006 bearing Appeal No.0824/2020, Computerized case No. T-202004230400824, Ram Chandar versus Rakesh Kumar and others expeditiously keeping adherence to the time limit indicated in Rule 183 of the Rules of 2016 or to indicate reason for not adhering to the same.
19. In view of aforesaid, the writ petition stands disposed of.
Order Date :- 21.10.2021 prabhat