Ram Murat And Another vs District Dy. Director Of ...
2011 Latest Caselaw 956 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. 05
 

 
CIVIL MISC. WRIT PETITION NO. 21541 OF 2010
 
Ram Murat and another.
 
Vs.
 
District Deputy Director of Consolidation/Collector, Gorakhpur and others.
 

 
Hon'ble A.P. Sahi, J.

Heard Sri P.K. Mishra, learned counsel for the petitioners and Sri A.P. Tiwari, learned counsel for the contesting respondents 4 to 11.

This is a dispute relating to an alleged wrong description and projection of plots no. 204/1, 204/2, 209, 207 & 206 of village Ranipur, Tehsil Sahjanwa, District Gorakhpur.

The petitioners claim themselves to be the recorded tenure holders of plots no. 250, 251 & 252. These plots were alloted to the petitioners during consolidation operations and the village was denotified on completion of such proceedings under Section 52 (1) of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as 'the UPCH Act') on 31st January, 2008.

The petitioners allege that the respondents with an evil eye over the said plots of the petitioners lodged a frivolous complaint before the Sub-Divisional Magistrate on the administrative side that the petitioners are obstructing the passage (Rasta) situate over the said plots and are illegally constructing a toilet over the same. Their contention was that the disputed area was left out as a village road (Rasta) in the Statement of Principles, which was prepared at the time of the consolidation proceedings and the same has become final. The said statement of principles also came to be implemented and recorded in C.H. From 23. The petitioners contend that during consolidation operations, the said plots have been carved out which fact has not been disputed by the contesting respondents.

On the strength of the aforesaid undisputed contentions, the respondents allege that if the plots were carved out of consolidation proceedings then no proceedings relating to the same could have been conducted except through the procedure prescribed under the UPCH Act. There were no orders passed for either correcting the map or carrying out any modifications or amendments. The respondents allege that at the time of the preparation of the consolidation maps, the location of the plots that were carved out during consolidation operations was rearranged illegally by the Lekhpal and other consolidation officials of the village without there being any lawful authority for the same.

In essence, the objection of the respondents is that the location of the plots have been altered and the demarcating lines in the maps were incorrectly shown in the consolidation maps which has altered the position that was existing in the original map. The respondents, therefore, filed the complaint alleging that this alteration unilaterally made by the Lekhpal in connivance with the other officials was unauthorised and the error deserved to be corrected. They urged that the original map that was existing in the basic year should be restored as no alteration could have been made in respect of the said plots. Their shapes could not have been changed without any appropriate orders in accordance with law as the said plots were carved out during consolidation operations.

This complaint of the respondents was taken up on the administrative side and the Sub-Divisional Magistrate, Sahjanwa, District Gorakhpur held that in case the respondents are aggrieved, they should approach for correction of the map in terms of Section 28 of the U.P. Land Revenue Act, 1901. He, however, directed the parties not to make any new constructions on the spot and the status quo should be maintained. The said order dated 29.08.2009 has been filed as annexure 1 to the writ petition.

The respondents thereafter approached the Deputy Director of Consolidation, Gorakhpur along with an application describing it to be under Section 48(3) of the UPCH Act read with section 42-A thereof. This application was entertained by the Collector/District Deputy Director of Consolidation, who directed the Deputy Director of Consolidation to take action in accordance with law. The Deputy Director of Consolidation in turn directed the Consolidation Officer to take action in accordance with law on which a report was called for by the Consolidation Officer.

The petitioners on coming to know of the said proceedings objected to the same urging that since the notification under Section 52 of the UPCH Act has been made on 31st January, 2008 no proceedings under the U.P. Consolidation of Land Holdings Act can be undertaken and even otherwise the Sub-Divisional Magistrate has already passed an order on 29.08.2009 informing the respondents that it is open to them to approach the appropriate authority under Section 28 of the U.P. Land Revenue Act, 1901. This objection having not been contested, the petitioners have approached this Court for quashing of the orders passed by the Deputy Director of Consolidation and the Consolidation Officer to proceed in the matter.

Sri P.K. Mishra submits that the respondent-consolidation authorities have no jurisdiction to proceed in the matter after the village has been denotified under Section 52 of the UPCH Act. Sri Mishra for the said proposition has relied on the following decisions:

1. Ghafoor Vs. Additional Commissioner, 1979 RD 76 (DB).

2. Ali Khan Vs. Ram Prasad and another, 1981 RD 77 (DB).

3. Ram Niwas and others Vs. Consolidation Officer and others, 1989 RD 201.

4. Hari Ram Vs. D.D.C., Azamgarh and others, 1989 RD 281 (DB).

5. Nanhki Vs. Deputy Director of Consolidation, Pratapgarh and others, 1995 RD 264.

6. Ghamari Vs. Deputy Director of Consolidation, Ballia and others, 2003 (94) RD 901.

7. Kedar Vs. Brij Kishore and others, 1980 RD (Suppl.) 80.

He has further relied on the decision in the case of Ram Harakh Vs. Dy. Director of Consolidation and others reported in 1981 RD 302 to explain the manner in which a map can be corrected.

Sri A.P. Tiwari with the help of the counter affidavit contends that such an action is permissible in view of the mistake apparent in the preparation of the village map and, therefore, the mistake having been committed by the consolidation authorities, the same can be corrected by them under the provisions of Section 42-A of the UPCH Act even after the village has been denotified under Section 52 of the U.P.C.H. Act. He relies on the decisions in the cases of Brij Bir Singh Vs. D.D.C., Muzaffarnagar and others reported in 1987 RD 66, Mukhtar Vs. Dy. Director of Consolidation, Azamgarh and others reported in 1993 RD 457 and Ram Pyarey and others Vs. Deputy Director of Consolidation, Basti and others reported in 2007 (102) RD 72. He further relies on two other decisions in the case of Pooran Singh Vs. Deputy Director of Consolidation, Meerut and others reported in 2008 (10) ADJ 497 and in the case of Sheesh Ram Vs. Deputy Director of Consolidation, Ghaziabad and others reported in 2009 (5) ADJ 498. He, therefore, submits that in view of the aforesaid position of law as explained in the aforesaid decisions, such an application was very much maintainable before the consolidation authorities and this petition is absolutely premature and deserves to be dismissed. He contends that the claim of the respondents that such proceedings should be forestalled would amount to allowing an incorrect map to be perpetuated at the instance of the petitioners.

Learned Standing Counsel for the respondent nos. 1, 2 and 3 has also adopted the same arguments as raised by Sri A.P. Tiwari. The respondent nos. 12 to 23 are proforma respondents, who had been issued notice on 21st April, 2010 and they have not contested the matter. Hence, service is deemed to be sufficient on them and the matter is being disposed of finally with the consent of the petitioners and the contesting respondents.

Having heard learned counsel for the petitioners and the contesting respondents, the issue which primarily has been raised to be answered in this petition is as to whether the proceedings for correcting discrepancies in a village map after the close of consolidation operations is permissible to be undertaken under the provisions of Section 42-A of the U.P.C.H. Act or not. It is undisputed that the proceedings had commenced on an application moved by the contesting respondents 4 to 11 before the Deputy Director of Consolidation on 22.09.2009. This application was moved after more than 1 ½ years of the close of the consolidation operations when the village came to be denotified under Section 52 of the UPCH Act on 31st January, 2008. The allegations contained in the application are that the location of the plots in dispute have been varied by incorrectly drawing the lines of demarcation of the said plots resulting in a complete disarray of the location of the plots. The said application has been moved under the provisions of Section 48 (3) read with Section 42-A of the UPCH Act. In order to appreciate the controversy the provisions of Section 48(3) and Section 42-A are extracted below respectively:

"48(3). Any authority subordinate to the Director of Consolidation may, after allowing the parties concerned an opportunity of being heard, refer the record of any case or proceedings to the Director of Consolidation for action under sub-section (1).

42-A. Correction of clerical or arithmetical errors.-Notwithstanding anything contained in any law for the time being in force, if the Consolidation Officer or the Settlement Officer, Consolidation, is satisfied that a clerical or arithmetical error apparent on the face of the record exists in any document prepared under any provision of this Act, he shall, either on his own motion, or on the application of any person interest, correct the same."

The provisions of Section 42-A of the UPCH Act is for correcting clerical and arithmetical errors apparent on the face of the record. This obviously entails the correction of such errors which fall either in the category of intentional errors or unintentional errors. An unintentional error can be described as a mistake but where the error is intentional then it is likely to be based on deceit or fraud.

The present case indicates the submission of a report where it has been pointed out that the said error in the maps is apparent but the issue is whether the said error is intentional or unintentional. The judgments, which have been relied upon by the learned counsel for the parties, indicate that once a village has been denotified then the authorities can proceed to make corrections, but the distinction in the two sets of judgments is that one where the proceedings were either pending or continuing and the other where the proceedings had come to a close. The judgments relied upon by the contesting respondents, which are by the learned single Judges, demonstrate that if the error is apparent on the face of the record then the provisions of Section 42-A of the UPCH Act can be invoked even after the village has been denotified under Section 52 of the UPCH Act. However, the decisions which have been relied upon by the learned counsel for the petitioner including the two Division Bench judgments in the case of Ghafoor Vs. Additional Commissioner and Ali Khan Vs. Ram Prasad (supra) spell out that if the consolidation operations have come to a close and the village has been denotified under Section 52 of the UPCH Act then in that event the provisions of Section 48 read with Section 42-A are not attracted and the Collector becomes incharge of every such proceedings that may ensue thereafter. The aforesaid two Division Bench judgments, therefore, hold that the Revenue Authorities on the regular side cannot refuse to correct a map if an application has been moved keeping in view the provisions of Section 28 of the Land Revenue Act, 1901 read with section 27(3) of the UPCH Act. Section 27(3) of the UPCH Act is quoted hereinunder:

"(3) After the issue of notification under Section 52, the Collector shall, instead of the map, field-book and record-of-rights previously maintained by him, maintain the map, field-book and record of rights prepared in accordance with the provisions of sub-section (1) [and the provisions of the U.P. Land Revenue Act, 1901, relating to the maintenance and correction of such map, field-book and record-of-rights shall mutatis mutandis apply]."

In this case, the facts are peculiar in the sense that the report of the Consolidation Authorities and the Magistrate indicate a difference in the demarcating lines of the plots in dispute. They are not supported by any judicial orders. The question therefore is, that in the absence of any judicial order by a competent authority, could such an alteration in the map have been made, and if there was a judicial order, then the remedy of the person seeking correction was to seek recall of such an order before the same authority.

In the instant case total absence of a judicial order for correcting the map and the subsequent alleged tampering of the map, therefore, do not allow this case to fall within the said category. It is an administrative enquiry where it has been found that the demarcating lines of the plots in dispute have been altered. If, the said alteration has been made deliberately by any employee of the consolidation department including the Lekhpal then proceedings on the administrative side are to be undertaken if it is established that the alteration has been carried out fraudulently to the detriment of the tenure holders.

However the question relating to correction of the said map can be gone into and the only issue that remains to be answered is as to which is the forum where such correction can be carried out as noted above. There is no judicial order or any order under the provisions of UPCH Act directing alteration of the map. Accordingly this will have to be first deciphered as to how the alteration was made, and for that in view of the provisions of sub-section (3) of Section 27 of the UPCH Act, the Collector would be the competent authority, inasmuch as, the application bringing the aforesaid discrepancies to the notice of the authorities have been moved much after the denotification under Section 52 of the UPCH Act. The District Magistrate/Collector also happens to be the District Deputy Director of Consolidation under the UPCH Act. If during the course of the proceedings before him, he comes across any order being passed for alteration, then the same authority is also enjoined with the powers under Section 48 of the UPCH Act, and the Collector therefore himself can proceed to exercise such powers, inasmuch as, the application has been moved under the aforesaid provisions.

In view of the conclusions drawn hereinabove, this Court is of the opinion that the said administrative enqiry which has been conducted and the orders which have been issued by the Deputy Director of Consolidation for proceeding in the matter should be placed before the Collector/District Deputy Director of Consolidation, who shall proceed to summon the entire records and thereafter in case he finds that there is no legal impediment or any judicial order in relation thereto, proceed to treat the same to be a proceeding under Section 28 of the U.P. Land Revenue Act read with the provisions of sub-section (3) of Section 27 of the UPCH Act, as also the provisions of Section 48 of the UPCH Act and pass appropriate orders in accordance with law.

The Deputy Director of Consolidation shall transmit the entire records to the Collector and the Collector is directed to proceed to decide the matter in accordance with law as per the observations made hereinabove within a period of three months from the date of presentation of a certified copy of this order before him.

Dt. 08.04.2011

Akv