Sant Lal And 3 Ors. vs D.D.C. And 4 Ors.
2014 Latest Caselaw 4178 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 18
 

 
Case :- WRIT - B No. - 37381 of 2014
 
                                                                                                                                               AFR
 
Petitioner :- Sant Lal And 3 Ors.
 
Respondent :- D.D.C. And 4 Ors.
 
Counsel for Petitioner :- S.P. Singh,B.B. Singh
 
Counsel for Respondent :- C.S.C.,Haridwar Singh
 

 
Hon'ble Anjani Kumar Mishra,J.

1. Sri Dan Bahadur Yadav, has filed his appearance on behalf of respondent nos. 3 and 4 in court today. The same is taken on record.

2. Heard Sri SP Singh, learned counsel for the petitioner and Sri Dan Bahadur Yadav for the contesting respondents.

3. This writ petition arises out of proceedings under section 42-A of the UP Consolidation of Holdings Act, 1953 (the Act) and has been filed challenging the orders dated 27.6.2014 and 14.5.2008 passed by the Deputy Director of Consolidation, Allahabad (Respondent no. 1) and the Consolidation Officer, Allahabad (Respondent no. 2) respectively. 

4. It has been submitted by the counsel for the petitioner that an application for correction of map was filed sometime in the month of May, 2007 by the respondent. This application was allowed by respondent no. 1 by the order dated 14.5.2008, which order has been affirmed by the revisional court. Hence the present writ petition.

5. The primary contention of the counsel for the petitioner is that the application under section 42-A of the Act was filed after issuance of notification under section 52(1) of the Act on 16.7.2005 i.e. almost two years after the close of consolidation operations. Therefore, he submits that application itself is not maintainable and the corrections, if any, in the map, once the village has been de notified, could only have been made in accordance with the provisions of the UP Land Revenue Act.

6. The counsel for the contesting respondent, on the other hand, relying upon several decisions of this Court contended that an application under section 42-A of the Act for correction of map would lie even after the consolidation operations had been closed by issuance of notification under section 52(1) of the Act. The authorities relied upon are:

(i) Sheesh Ram Vs. DDC; reported in 2009(3) AWC 2459,

(ii) Pooran Singh Vs. DDC and others; reported in 2008(4) AWC 3726 and

(iii) Wajid Ali and others Vs. DDC and others; reported in 2009(4) AWC 3809.

7. In the case of Sheesh Ram (Supra), the court has as held as follows:

" Section 42-A of the Act has an overriding effect. The power to correct the apparent mistake in the map can be exercised even after the notification under Section 52 of the Act. By means of the application dated 3.7.1998, the petitioners have only sought a direction from the Deputy Director of Consolidation, Ghaziabad to the Settlement Officer Consolidation to pass the order in pursuance of the order passed in Reference No. 11 under Section 48(3) of the Act. Chandra Kiran Vs Khacheroo and others dated 23.12.1986. In my opinion, the Deputy Director of Consolidation, Ghaziabad has rightly rejected the application as no matter was pending before him. In case, if in pursuance of the order in reference no. 11 no order has been passed by the Settlement Officer Consolidation, the petitioners should have approached the Settlement Officer Consolidation for disposal of the matter instead of approaching the Deputy Director of Consolidation and seeking the direction for the disposal of the matter. Therefore, I do not see any reason for interference with the impugned order dated 17.3.1999".

8. Again, in the case of Pooran Singh (Supra), it has been held:

"Perusal of the aforesaid Section reveals that if there is mistake, such mistake can be rectified, even if there is publication under Section 52 of the Act. There is no prohibition that such power cannot be exercised under section 42-A of the Act after publication under section 52 of the Act. It is true that if by making rectification, if any ones right is affected, he should also be heard. It appears that before passing order dated 17.10.2006, Consolidation Officer has not given opportunity of hearing to respondent nos. 4 and 5."

9. Yet again in the case of Wajid Ali (Supra) it was held:

"All the authorities have recorded categorical findings that the respondent had an original holding of plot Nos. 420 and 421 of Chak No. 12 which was on a road side. This Court in the case of Ram Prasad Vs. Deputy Director of Consolidation, Allahabad and others has held that the land of the road side should be excluded from the consolidation operation being valuable land. By the order dated 17.7.2003 the Consolidation Officer has only corrected the map which was well within his jurisdiction. Section 42 of the Act has an overriding effect and the order can be passed under section 42 of the Act even after the Notification under section 52 of the Act. This view is supported by the decision in the case of Sheesh Ram (Supra) in Civil WP No. 26883 of 1999, decided on 4.5.2009".

10. Perusal of the aforementioned judgements, relied upon by the contesting respondents, reveals that these have failed to take into consideration the import and effect of the provision of law as contained in section 27(3) of the UP Consolidation of Holdings Act. The said provision is quoted below:

"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 UP Land Revenue Act, 1901, relating to the maintenance and correction of such map, field-book and record-of-rights shall mutatis mutandis apply."

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.

15. For the reasons give above, the application under section 42-A filed by the contesting respondent in 2007, almost two years after the consolidation operations had been closed was clearly not maintainable and therefore the orders passed thereon by the Consolidation Officer and the Deputy Director of Consolidation are without jurisdiction and are liable to be set aside.

16. Accordingly, I allow the writ petition and set aside the impugned orders dated 14.5.2008 and 27.6.2014. It will, however, be open for the respondents to approach the competent forum for redressal of their grievances, if any, for correction of the final consolidation map.

Order Date :- 8.8.2014

SKS