Gaya Prasad & Others vs Yadunath & Others
2017 Latest Caselaw 1258 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                                    AFR
 
RESERVED ON 27.03.2017
 
DELIVERED ON 26.05.2017
 

 

 
Case :- WRIT - C No. - 15757 of 2003
 

 
Petitioner :- Gaya Prasad & Others
 
Respondent :- Yadunath & Others
 
Counsel for Petitioner :- Shesh Kumar,P.K. Bisaria
 
Counsel for Respondent :- Anuj Kumar,Ajay Singh Sengar, Chowdhry Subhash Kumar,Dr.V.K.Rai,S.C.,Sankatha Rai,V.K.Rai
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

1. This writ petition has been filed by the petitioners challenging the order dated 19.04.2002 passed by the Additional Collector, Jalaun allowing the application filed under Section 28 of the U.P. Land Revenue Act by the Respondent Nos. 1 and 2 and the order dated 28th of February, 2003 passed in Revision No. 71/29 of 2001-2002 affirming the order dated 19.04.2002.

2.  The case set up by the petitioners is that  they are Chak-holders of Chak No. 317 of village Padari, Pergana-  Kaunch, District Jalaun;  and the Respondent No. 1 is holder of Chak No. 319; Respondent No. 2 is holder of Chak No. 320 of the same village;  and Respondent No. 3 is holder of Chak No. 291.  Chak Nos. 291, 319 and 320 all form one line and are adjacent to each other and during the consolidation operations Chak No. 291 had some excess area and Chak No. 320 had an excess area.  Whereas the area of Chak No. 319 was less by 0.40 acre.  By way of adjustment of these three Chaks, the aforesaid Chak-holders were compensated and they did not require any excess area from any other plot of the vicinity.  It has been further alleged that on the southern side of these Chaks, Orai-Kaunch main road exists and from this main road upto Chak No. 318 there was a connecting Chakroad on plot No. 331 measuring 0.34 acre and this Chakroad was also mentioned in Form  CH-41. The petitioners used this Chakroad to reach their Chak No. 317.

3. One Narain Das, father of Respondent Nos. 1 and 2 initiated proceedings under Section 28 of the Land Revenue Act which was registered as Case No. 9 of 1995-1996 and it was alleged therein that he was Bhumidhar of Plot No. 319 having an area of 13.07 acres and because of Chakroad shown in between Gata Nos. 319 and 320 his Chak area had been lessened and this Chakroad was never in existence either in the verified map or on any other document of Consolidation Authorities, but was illegally drawn on the map to benefit the petitioners' predecessor in interest one Parmanand. When the said application under Section 28 was filed a report was called for from Tehsildar, Kaunch as well as Assistant Consolidation Officer and the Additional Collector, Jalaun thereafter cancelled this Chakroad in between plot Nos. 319 and 320 by order dated 09.09.1997.

4. Against this order dated 09.09.1997 a revision was filed by Parmanand, father of petitioners, which was allowed by the Additional Collector on 23.02.1999 on the ground that the Assistant Consolidation Officer had not proved his report. The matter was remanded for submission of a fresh report and evidence by the Assistant Consolidation Officer.

5. After remand, the Assistant Consolidation Officer submitted a fresh report on 30th of November, 1999 in favour of the Respondent Nos. 1 and 2 and the Additional Collector, Jalaun had again cancelled the Chakroad existing between plot Nos. 319 and 320 by his order dated 19th of April, 2002. Against this order the petitioners filed a revision which was also dismissed by the Additional Commissioner (Judicial), Jhansi Division, Jhansi vide his order dated 28th of February, 2003.

6. It is the case of the petitioners that the learned Courts below have failed to consider that the Chakroad was shown to be in existence in CH Forms 41 and 45 and therefore, could not have been directed to be removed after the consolidation proceedings were over by the Collector/Revenue Authorities as the scope of Section 28 of the U.P. Land Revenue Act was very limited.

7. A counter affidavit has been filed on behalf of the Respondent Nos. 1 and 2 by Yadunath son of Narain Das saying that the father of Respondent No. 2 Shri Narain Das was the Bhumidhar of new plot No. 319 area 13.07 acres. The adjoining plot No. 320 situated towards the East of plot No. 319 belonged to Shyam Pratap and Ram Pratap (wrongly mentioned as Shyam Narain and Ram Prasad in the writ petition). Plot No. 291 situated towards the West of plot No. 319 belonged to Chandra Shekhar, Chandra Bhan and Pratap Narain sons of Indrajeet. Plot No. 317 belonged to the petitioners and towards the South of their plot there was a Chakroad No. 318. During the consolidation operation area of Plot No. 319 i.e. 13.07 acres was maintained and there was no Chakroad between Plot Nos. 319 and 320. The Chakroad was situated towards the South of Plot Nos. 319 and 320 i.e. on Plot No. 331 and also towards the North of the aforesaid plots i.e. Chakroad No. 318. There was no Chakroad in between Plot Nos. 319 and 320 connecting the Chakroad No. 318 with Plot No. 331. However, in the consolidation map a non-existing Chakroad was shown and therefore, the father of Respondents No. 1 and 2 filed an application before the Collector, Jalaun for correction of consolidation map under Section 28 of the U.P. Land Revenue Act and to expunge the entry of non-existing and fictitious Chakroad shown in between Plot Nos. 319 and 320.

8. The Additional Collector after making an inquiry and obtaining a report of Assistant Consolidation Officer and after affording full opportunity of hearing to all concerned, came to the conclusion that there was no Chakroad at all in between Plot Nos. 319 and 320. It was also found that area of Plot No. 319 was shown less by 40 decimals on the map and hence, Narain Das was compensated by taking 20 decimals of area by removing the fictitious Chakroad marked on the map and 20 decimals area was taken out from Plot No. 291 belonging to Chandra Shekhar, Chandra Bhan and Pratap Singh i.e. Respondent Nos. 5, 6 and 7 in the writ petition. Amaldaramad of the order passed by the Additional Collector dated 19.04.2002 was made and the map was corrected accordingly. This fact was not brought to the notice of the Hon'ble Court at the time of filing of the writ petition.

9. It has also been alleged in the counter affidavit that only Respondent Nos. 5, 6 and 7 (Bhumidhars of Plot No. 291) and Respondent Nos. 3 and 4 (Bhumidhars of Plot No. 320) could be said actually affected persons by the order passed by the Additional Collector on 19.04.2002 or at the most Gaon Sabha could be said to be affected but none of them filed any revision. The petitioners who were not affected at all as they had a Chakroad towards the East and South of their plot No. 317 had challenged the order passed by the Additional Collector before the Additional Commissioner who had rightly dismissed the revision on 28.02.2003 (wrongly mentioned as 20th of February, 2003 in the writ petition).

10. It has further been stated in the counter affidavit that Chakroad No. 331 which was situated towards the South of Plot Nos. 319 and 320 had an area of 0.34 acre and had it been extended towards the North up to the Chakroad No. 318, then, its area would have been much more than 0.34 acre. It has been stated that the procedure adopted by the Additional Collector in calling for the record from the Assistant Consolidation Officer was the correct procedure as the Assistant Consolidation Officer alone could have reported on the basis of map maintained during the consolidation operations that the Chakroad was not shown either in the verified map or in CH Form - 41 or CH Form - 45, and that it had wrongly been marked in the map prepared during the consolidation operations, without there being any basis or any order from any Competent Court. The application filed by Narain Das, the father of Respondent Nos. 1 and 2 under Section 28 of the U.P. Land Revenue Act on 14.11.1995 was maintainable as the area of his plot No. 319 shown in the Khatauni as 13.07 acres, was shown less on the spot in the map prepared after consolidation operations.

11. The respondents have also filed along with their counter affidavit copies of fresh reports called by the Additional Collector after order passed by the Additional Commissioner dated 23.02.1999 remanding the matter to him. The fresh report submitted by Assistant Consolidation Officer on 30.11.1999 was proved by him during the cross-examination and oral evidence taken on 01.08.2001. The Assistant Consolidation Officer had found on the spot and had rightly reported that there was no extension of Chakroad No. 331 towards the North connecting it with Chakroad No. 318.

12. I have gone through the order impugned in this writ petition, issue involved relates mainly to the scope of Section 28 of the U.P. Land Revenue Act and whether the order passed by the Collector for correction of map and the order passed by the Commissioner in revision affirming the same could have been passed under Section 28 of the U.P. Land Revenue Act.

13. The counsel for petitioners has stated that since the map had been prepared after the consolidation proceedings, it could not be corrected at all by exercising the powers under Section 28 of the U.P. Land Revenue Act. In the case of Mohd. Raza and others Vs. Board of Revenue, U.P. at Allahabad and others, 1973 (8) AWR 621 it has been observed that it is wrong to assume that the map prepared under Section 27 of the U.P. Consolidation of Holdings Act must necessarily be treated as final and conclusive. Later on, relying upon the same judgment in Nanbudda Vs. Latif Ahmad, 1982 RD 170 it has been further observed in paragraph - 6 thus :-

"It my further be added that even Section 27(2) of the U.P. C.H. Act states about the presumption of correctness subject to contrary being proved. The right of rebuttal must be admissible. Secondly, this presumption applied to 'all entries in the record of rights' only and not for the Shajra. Admittedly, the Shajra is not a record of rights. Section 27(3) of the U.P. C.H. Act itself provides that the provisions of Sections 28 and 33 of the U.P. Land Revenue Act shall apply to the maintenance of such map, field-book etc. Under these provisions, any errors which are shown to have been made in such map or field-book, shall be corrected. Thus there is no scope left for the application of bar under Section 49 of U.P. C.H. Act."

14. This view expressed by the Board of Revenue is in line with the judgment rendered by this Court by a Division Bench in the case of Ali Khan Vs. Ram Prasad and another, 1981(1) Alld. Law Journal 271 wherein this Court has considered a similar question raised as to whether after denotification of the village under Section 52 of the U.P. Consolidation of Holdings Act, correction of errors can be made by moving an application under Section 28 of the U.P. Land Revenue Act. This Court has observed that the Revenue Court was competent to entertain the application under Section 28 and it had erroneously held that it had no jurisdiction to entertain the same. It further observed that if error in the map prepared by the Consolidation Authorities is obvious and the area of the plot in question shown in the map is not in conformity with the area shown in the Record of Rights prepared by the Consolidation Authorities, "Such an obvious error has got to be rectified" and it will be a sad commentary in judicial proceeding that despite the fact that the obvious mistake is there in the map but the Court is helpless to rectify the same......."

15. A similar view has been taken by another Division Bench of this Court in Ghafoor Vs. Additional Commissioner, Lucknow, 1978 AWC, 836 (by Hon'ble U.C. Srivastava and Hon'ble K.N. Goyal, JJ.) wherein the Hon'ble Division Bench has observed in paragraphs - 3, 4, 5 and 6 as thus:-

"3. Our attention has been drawn to another case Mohammad Raza v. Board of Revenue, 1973 AWR 621 in which it was held that a map prepared by the consolidation authorities is not necessarily final and conclusive and a map incorrectly drawn up cannot be treated as final and conclusive and can be corrected under Section 28 of the Land Revenue Act.

4. Looking to the provisions 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 Sec. 52 of the U.P. Consolidation of Holdings 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 Works (Private) Ltd., Balawali v. State of U.P. (supra) is not a good law.

5. Thus the powers of the Collector under Section 28 of the U.P. Land Revenue Act for correcting the map in suitable cases are intact notwithstanding the map has been prepared by the consolidation authorities who have adjudicated the rights and title of the parties. In case there is any discrepancy in the map and final document has been prepared by the consolidation authorities, the same can be corrected in proceedings under Section 28 of the Land Revenue Act provided the right, interest and title of the party which have been final are not involved.

6. In the present case after notification under Section 52 of the U.P. Consolidation of Holdings Act was published, an application was moved by the petitioner for correction of the map and the petitioner tendered evidence that the map was not in conformity with the entries which were made in C.H. Form 45. It was obligatory on the authorities to correct the map in case they were satisfied that there was some discrepancy between the map and the entries in C.H. Form 45 and it is on a mistaken view of law that they have refused to grant this relief to the petitioner."

16. A Full Bench of Board of Revenue (Five Members) has also held in Suraj Narain and others Vs. Bhawani Prasad and others, 1977 RD 234 after noticing the amendments made in the U.P. Consolidation of Holdings Act by U.P. Act No. 24 of 1956 and U.P. Act No. 38 of 1958 and the amendment made by the U.P. Act No. 12 of 1965 that in the case of Ganga Glass Works Pvt. Limited Baliwali Vs. State of U.P. 1972 (Alld.) AIR 158 the impact of Section 27(3) of the U.P. Consolidation of Holdings Act was not considered and hence, this judgment cannot help in arriving at a correct conclusion in respect to the questions referred to it. The questions referred to the Full Bench aforesaid were as follows :

Whether the provisions of Sub-section (3) of Section 27 of the U.P. Consolidation of Holdings Act empower the Collector to rectify such mistakes occurring during the consolidation operation and noticed after the denotification under Section 52 of the Act?,

Whether the word 'Collector' mentioned in Section 27(3) of the U.P. Consolidation of Holdings Act read with Section 28 of the U.P. Land Revenue Act includes 'Assistant Collector First Class' also?, and

Whether the proceedings in such cases are barred by the provisions of Section 49 of the U.P. Consolidation of Holdings Act?

17. The Board of Revenue held that after the amendments made in the U.P. Consolidation of Holdings Act, Section 27 of itself now empowers the Collector to correct under Section 28 of the U.P. Land Revenue Act any errors found subsequently in the map and Field Book preferred during the consolidation operation. The proceedings for correction of map under Section 27 (3) of the U.P. Consolidation of Holdings Act read with Section 28 of the U.P. Land Revenue Act are not barred by the provisions of Section 49 of the U.P. Consolidation of Holdings Act.

18. It is, thus, clear from the law as settled by a Full Bench of the Board of Revenue and by Division Benches of this Court, correction of mistakes apparent in the village map can be made under Section 28 of the U.P. Land Revenue Act even after the consolidation operations are over and final notification has been issued under Section 52 of the U.P. Consolidation of Holdings Act.

19. From a perusal of the orders impugned it is evident that the amendment proposed in the map by the Assistant Consolidation Officer by adjustment of lands of three plots in question to bring them in consonance with the verified map and the orders passed by the Collector and the Additional Commissioner cannot be said to be erroneous either on facts or on law.

20. Thus, there being no error of law in the orders impugned in this petition, I am of the opinion that there is no miscarriage of justice to warrant interference in the matter in exercise of writ jurisdiction. Even otherwise the proceedings under Section 28 being summary in nature if any one is aggrieved by an order passed thereon, then, he has a remedy for filing a suit before the competent Court.

21. The writ petition is, therefore, dismissed as devoid of merits.

22. No order as to costs.

Order Date :- 26.05.2017

LBY