HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?A.F.R. Court No. - 5 Case :- CONSOLIDATION No. - 571 of 2015 Petitioner :- Pateshwari Dutt Pandey Respondent :- Deputy Director Of Consolidation District Faizabad And Ors. Counsel for Petitioner :- Aditya Tiwari Counsel for Respondent :- C.S.C.,Vijay Krishna Hon'ble Ritu Raj Awasthi,J.
(Oral Order) Notice on behalf of respondents no. 1 and 2 has been accepted by the learned Chief Standing Counsel. Mr. N.K. Seth, learned senior advocate assisted by Mr. Vijay Krishna has put in appearance on behalf of respondent no. 3.
For the order proposed to be passed, there is no need to issue notices to respondents no. 4 and 4, hence notices to them are hereby dispensed with.
Heard learned counsel for the parties.
The writ petition has been filed challenging the order dated 03.07.2015 passed by the Deputy Director of Consolidation, Faizabad in Reference No. 213 as contained in Annexure-1 to writ petition.
As per given facts of the case, Village Janaura, Pargana - Haveli Awadh was notified for consolidation operation under Section 41 U.P. Consolidation of Holdings Act (for short 'the Act') sometime in the year 1968. The Assistant Consolidation Officer during preparation of Khasra Chak bandi of each plot as well as revision of the map, found that there is a tube-well and temporary construction on one biswa land of old plot no. 639. He vide order dated 24.11.1971 declared the said one biswa land of plot no. 639 as chak out. After completion of the consolidation proceedings, notification under Section 52 of the Act was issued sometime in the year 1975. The petitioner on 11.2.2013 had moved an application under Section 42-A of the Act before the Consolidation Officer for correction in the map. The Consolidation Officer vide order dated 17.02.2014 had made reference under Section 48 (3) of the Act before the Deputy Director of Consolidation as he was of the opinion that since notification under Section 52 of the Act has already been issued and a considerable long time has passed, as such, he has no jurisdiction to pass any order under Section 42-A of the Act.
Learned counsel for petitioner submits that in this regard the Assistant Consolidation Officer had submitted his report dated 24.1.2015 before the Consolidation Officer in which it was specifically mentioned that incorporation of one biswa land that was declared as abadi land by order dated 24.11.1971 shall be incorporated in Gata No. 195/1337, it was not correctly mentioned in the map. The reference was ultimately decided by the Deputy Director of Consolidation by the impugned order wherein he has rejected the same on the ground that after issuance of notification under Section 52 of the Act, 39-40 years have passed when the application was preferred which is highly time barred. The petitioner could get the necessary correction made by availing the remedy under Section 28 U.P. Land Revenue Act.
Submission is that there is no bar that application under Section 42-A of the Act cannot be entertained after issuance of notification under Section 52 of the Act. It is also submitted that there is no limitation prescribed to move the application under Section 42-A of the Act, as such, it cannot be termed as time barred.
In support of his submissions, learned counsel for petitioner relies on the judgment of this Court in the case of Pooran Singh Vs. Deputy Director of Consolidation, Meerut and others; [2008 (105) RD 469], particularly paragraph 8. He also relies on the judgment of this Court in the case of Dr. Sukhbeer Singh Vs. Commissioner, Meerut and Others; [2014 (32) LCD 1912] wherein it has been held that if the map is not according to the final order then it can be corrected either under Section 42-A read with Section 52 (2) and Rule 109-A of the Act or under Section 28 U.P. Land Revenue Act. The mistake cannot be permitted to continue in the revenue records.
Mr. N.K. Seth, learned senior advocate appearing for respondent no. 3 submits that the application preferred under Section 42-A of the Act for correction in the map by the petitioner was not maintainable, once the notification under Section 52 of the Act for denotifying the consolidation operation was issued. It is submitted that the law is well settled in this regard. The Division Bench of this Court in the case of Gafoor Vs. Addl. Commissioner, Lucknow and others; 1979 RD 76 (DB) has held that if a map is subsequently found incorrect and it is not in conformity with the document prepared by the consolidation authorities, the same can, in suitable cases, be corrected subsequent to the publication of the notification under Section 52 of the Act by the Collector in exercise of power under Section 28 of the Land Revenue Act. The same view has been taken in the case of Hari Ram Vs. D.D.C. Azamgarh; 1989 RD 281. He also relies on the judgment of this Court in the case of Ghamari Vs. Deputy Director of Consolidation, Ballia and others; [2003 (94) RD 90] wherein the Court has laid down the criteria under which in exceptional circumstances no application under Section 42-A of the Act can be entertained after closing of consolidation operations and issuance of notification under Section 52 of the Act. He also relies on the judgment in the case of Sant Lal & Ors. Vs. Deputy Director of Consolidation, Allahabad & Ors.; [2015 (1) JCLR 310 (All)], wherein it has been held that the application under Section 42-A, filed almost two years after the consolidation operations closed was clearly not maintainable.
I have considered the submissions made by the parties' counsel and gone through the records.
After considering the submissions made by the parties' counsel, only a short legal question which evolves for consideration before this Court is whether the application preferred under Section 42-A of the Act by the petitioner in the given facts and circumstances, after issuance of notification under Section 52 of the Act was maintainable and in case such application was not maintainable whether the petitioner has any remedy of getting the alleged correction in the map under any other law.
The respondent no. 1 by the impugned order dated 03.07.2015 has recorded in its finding that after closing of consolidation operations and issuance of notification under Section 52 of the Act in the village Janaura which was near to the city a lot of development has taken place on and around the land in question. The application for correction was made after approximately 39-40 years of issuance of notification under Section 52 of the Act. In case there is any error in the map, the said error can be corrected under Section 28 U.P. Land Revenue Act, as such, there is no reason to entertain the application for correction moved by the petitioner. The petitioner can get the correction made in the map by moving application under Section 28 U.P. Land Revenue Act.
The legal position as come out on consideration of the above facts is as under: -
The Division Bench of this Court in the case of Gafoor (supra) has categorically held that if a map is subsequently found incorrect and it is not in conformity with the document prepared by the consolidation authorities, the same can in suitable cases be corrected subsequent to the publication of the notification under Section 52 of the Act by the Collector in exercise of power under Section 28 of the Land Revenue Act. Relevant paragraph 4 of the judgment on reproduction reads as under:
"4. Looking to the provision of the U.P. Consolidation of Holdings Act and the Land Revenue Act, we are in agreement with the view expressed in Mohammad Raza v. Board of Revenue (supra) and we hold that if a map is subsequently found incorrect and it is not in conformity with the document prepared by the consolidation authorities, the same can in suitable cases be corrected subsequent to the publication of the notification under Section 52 of the Act by the Collector in exercise of power under Section 28 of the Land Revenue Act. Thus we are of the view that the law laid down in Ganga Glass Work (Private) Ltd., Balavali v. State of U.P. (supra) is not good law."
The same view has been taken by another Division Bench of this Court in the case of Hari Ram (supra).
In the case of Ghamari (supra) this Court has carved out exceptions to apply the maintainability of application under Section 42-A of the Act after issuance of notification under Section 52 of the Act. The Court has held that firstly the cases which were pending under Article 226 of the Constitution of India before the High Court at the time of notification and were decided after de-notification and secondly, the cases which were pending before the consolidation authorities at the time of the de-notification and judgment were rendered thereafter, only in such cases application under Section 42-A of the Act after issuance of notification under Section 52 of the Act is maintainable and in no other circumstance, the application under Section 42-A of the Act after closing of consolidation operations and issuance of Notification under Section 52 of the Act is maintainable. Relevant paragraph 5 of the judgment on reproduction reads as under:
"5. A reading of the abovenoted statutory provisions clearly reveals that only two types of cases are covered by the said sub-section (2) of Section 52 and by the Rule 109-A. Firstly, the cases which were pending under Article 226 of the Constitution of India before the High Court at the time of notification and were decided after de-notification and secondly, the cases which were pending before the consolidation authorities at the time of the de-notification and judgment were rendered thereafter. Sub-section (2) of Section 52 begins with a non-obstante clause meaning thereby whatever has been provided by sub-section (1) is irrelevant and is not to be looked into while dealing with the case under sub-section (2). In the instant case admittedly on the date of the de-notification neither the case was pending before the High Court nor before any authority under the Act. The decision was rendered on 16.1.1969 much before the de-notification on the basis of which the application under Section 42-A of the Act was filed. By means of the said application the contesting respondent wanted to give effect to the order passed on 16.1.1999 when it was legally not permissible as Rule 109-A had not application in the present case. The authorities below had no jurisdiction to entertain the application filed by the contesting respondent. They have acted illegally in entertaining the said application and deciding the same in his favour."
In the case of Sant Lal & Ors. (supra), the Court has held that once the notification under Section 52 of the Act has been issued and consolidation operations have come to a close, maintenance and correction of final consolidation map prepared by the Consolidation authorities shall be carried out by the Collector in accordance with the provisions as contained in U.P. Land Revenue Act. Relevant paragraphs of the judgment on reproduction read as under:
"11. It is clear from a bare reading of the provision itself that it specifically provides that once notification under section 52 of the Act has been issued and consolidation operations have come to a close, maintenance and correction of final consolidation map prepared by the Consolidation authorities during consolidation shall be carried out by the Collector in accordance with the provisions as contained in the UP Land Revenue Act.
12. Since there is a specific provision in the Act itself providing for correction of map after de-notification of the village and after close of consolidation operations, the observations is the judgements relied upon by the contesting respondents, which state that section 42-A has overriding effect and there is nothing contrary in the Act which debars orders being passed under this section even after notification under section 52 has been issued, appears to be unjustified. It is evident that the provision contained in section 27(3) of the Act which provides specially that correction of map is to be made in accordance with the provisions of the UP Land Revenue Act, 1901, once consolidation operations has been closed, was not brought to the notice of the court while it was deciding the aforesaid cases.
13. The counsel for the respondents, therefore, is not entitled to any benefit under the judgements cited by him and I am constrained to hold to the judgements relied upon do not lay down the correct law having failed to notice the effect and import of section 27(3) of the Act.
14. It is, therefore, held that an application under section 42-A for correction of the final consolidation map will not lie before the Consolidation Courts under section 42-A after the close of consolidation operation in the unit by issuance of notification under section 52(1) of the Act and such an application will lie only before the authority as provided under the UP Land Revenue Act. Section 42-A of the UP Consolidation of Holdings Act can be invoked for correction of the map only till such time the consolidation operations have not been closed by issuance of a notification under section 52 of the Act. However the courts have jurisdiction to decide an application and order correction in the map under section 42-A even after a notification under section 52(1) has been issued only if such application for correction was filed before the notification was issued and was pending on that date."
So far as the judgment of this Court in the case of Pooran Singh (supra) reliance on which has been placed by the petitioner's counsel is concerned, in the said case the application preferred under Section 42-A of the Act for correction was allowed by the Consolidation Officer. The Court held that there is no absolute prohibition that such power cannot be exercised under Section 42-A of the Act after publication of Notification under Section 52 of the Act. In the case of Dr. Sukhbeer Singh (supra), the Court has observed that in case map is not according to the final order then it can be corrected either under Section 42-A read with Section 52 (2) Rule 109-A of the Act or under Section 28 U.P. Land Revenue Act. The mistake cannot be permitted to continue in the revenue records. Relevant paragraph 9 of the judgment on reproduction reads as under:
"9. In this case, the petitioner took the case that by the order dated 9.9.1980, passed in reference proceeding, the location of the chak road was shifted. Although, the order of Deputy Director of Consolidation was duly incorporated in other consolidation record, but the map has not been corrected according to it. Thus, the map which was prepared during consolidation operation, was not according to the final order of Deputy Director of Consolidation and final consolidation records In case the map is not according to the final order, then it could be corrected, either under Section 42-A read with Section 52(2) and Rule 109-A of U.P. Consolidation of Holdings Act, or under Section 28 of the Act. The mistake cannot be permitted to continue in the revenue record. "
Both these judgments in the given facts and circumstances of this case do not help the petitioner as they are not applicable.
In view of above, it is, therefore, held that the application under Section 42-A of the Act for correction of final consolidation map will not lie before the Consolidation Courts after the close of consolidation operation in the unit after issuance of notification under Section 52 (1) of the Act except in exceptional circumstances as observed in the case of Ghamari Vs. Deputy Director of Consolidation, Ballia and others; [2003 (94) RD 90]. Such application will lie only before the authority under the U.P. Land Revenue Act under Section 28.
As such, I am of the considered view that in the given facts and circumstances, as mentioned above, the application preferred by the petitioner under Section 42-A of the Act after issuance of notification under Section 52 of the Act was not maintainable. The view taken by the respondent no. 1, Deputy Director of Consolidation while deciding the reference is just and proper. The petitioner has a remedy of getting the correction made in the map by moving application under Section 28 U.P. Land Revenue Act before the concerning Collector.
The writ petition being devoid of merit is dismissed.
Order Date :- 7.8.2015 Santosh/-
(Ritu Raj Awasthi, J.)