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Allahabad High Court · body

1977 DIGILAW 153 (ALL)

Suraj Narain v. Bhawani Prasad

1977-03-09

ASHWINI KUMAR, J.S.GUPTA, M.C.SHARMA, MUBARAK HASAN, PRAKASH KRISHEN

body1977
JUDGMENT 1. In the above mentioned case the following points have been referred to this Bench for decision:- (1) Whether the provisions of sub-section (3) of Section 27 of U.P. Consolidation of Holdings Act empower the Collector to rectify such mistakes occurring during consolidation operations and noticed after the notification under Section 52 of the Act. (2) 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. (3) Whether the proceedings in such cases are barred by the provisions of Section 49 of the U.P. Consolidation of Holdings Act. 2. Sri B.K. Gupta, Advocate, argued that prior to the amendment of Section 27 by the U.P. Land Laws Amendment Act XII of 1965, all the entries in the record of rights and in the map, prepared under sub-section (1) of Section 27, were final and conclusive, but after the amendment of Section 27 by the U.P. Act XII of 1965, the entries in the record of rights and in the map ceased to be final and conclusive. He contended that the provisions of Section 27(3) of the U.P. Consolidation of Holdings Act, read with Section 28 of the U.P. Land Revenue Act empower the Collector to rectify mistakes in the map after the issue of Notification under Section 52 of the U.P. Consolidation of Holdings Act, and that there was no question of the proceedings under Section 28 of the U.P. Land Revenue Act being barred under Section 49 of the U.P. Consolidation of Holdings Act. In support of his arguments, he placed reliance on Mohd. Raza v. Board of Revenue at Allahabad, AWR 1973 (H.C.) 621 and others which lays:- "It is wrong to assume that a map prepared under Section 27 of the Consolidation of Holdings Act must necessarily be treated as final and conclusive. Only a correct map properly prepared in accordance with law would be entitled to claim that finality; and if by reason of any mistake on the part of the authorities concerned an incorrect map was drawn up, showing wrong numbers for certain plots, such a map could not be treated as final and conclusive. Only a correct map properly prepared in accordance with law would be entitled to claim that finality; and if by reason of any mistake on the part of the authorities concerned an incorrect map was drawn up, showing wrong numbers for certain plots, such a map could not be treated as final and conclusive. The view that the map had been prepared during consolidation proceedings and was final and conclusive in view of the provisions of Section 27 of the U.P. Consolidation of Holdings Act is incorrect." He further argued that in the ruling Ganga Glass Works Private Ltd. Balwali v. State of U.P., AIR 1972 Alld. 158, the impact of Section 27(3) of the U.P. Consolidation of Holdings Act was not considered, and hence the same does not help in arriving at a correct decision on the points referred to this Bench. His contention was that this particular case relates to the period when the U.P. Act XII of 1965 was not in force, and, for this reason also, the ruling referred to above is of no help in the present case. As for the rulings in Mst. Rekha Singh v. State of U.P., 1974 R.D. (H.C.) 405 and Ram Chandra v. Bhagwan Sahai, 1976 R.D. (H.C.) 172, he argued that the same are not relevant to the present case because while the former ruling relates to a case in which the map was prepared during Record Operations, and not during Consolidation Operations, the latter ruling relates to a case of the period prior to the amendment of Section 27 of the U.P. Consolidation of Holdings Act by the Act XII of 1965. His next contention was that in Section 227 of the U.P. Land Revenue Act, which enumerates the powers of an Assistant Collector in charge of a Sub-division there is no mention of Section 28 of the U.P. Land Revenue Act, whereas in Section 27 of the U.P. Consolidation of Holdings Act and in Section 28 of the U.P. Land Revenue Act the word 'Collector' has been used. From this he argued that an Assistant Collector in charge of a Sub-division has not been empowered to correct the mistakes in a map under Section 28 of the U.P. Land Revenue Act since the word 'Collector' cannot be deemed to include an Assistant Collector First Class also. From this he argued that an Assistant Collector in charge of a Sub-division has not been empowered to correct the mistakes in a map under Section 28 of the U.P. Land Revenue Act since the word 'Collector' cannot be deemed to include an Assistant Collector First Class also. His last contention was that since the proceedings under Section 28 of the U.P. Land Revenue act are now admittedly judicial proceedings, the ruling in Brij Mohan v. Ram Dularey, 1972 R.D. 176 would not hold good because it is based o the assumption that the proceedings under Section 28 are of a Judicial nature. 3. Sri R.A. Upadhaya, Advocate, did not dispute that the map prepared during consolidation operations could be corrected by the Collector under Section 28 of the U.P. Consolidation of Holdings Act. However, he contended that the map could be corrected under Section 28 by an Assistant Collector 1st Class also if the Collector delegated that power to him. 4. Sri R.N. Misra, Advocate, supported the contention of Sri Upadhaya, Advocate. 5. We have considered the arguments of the learned counsels of the parties and have perused the record. The original Section 27 as contained in the U.P. Act V of 1954 ran as under:- "(1) As soon as may be after the consolidation has come into force the State Government shall issue a notification under Section 48 of the U.P. Land Revenue Act, 1901, in the Official Gazette for preparation of a new village map. Khasra and the record of rights in respect of each village included in the consolidation operations and thereupon fresh records shall be prepared in accordance with the provisions of the U.P. Land Revenue Act, 1901. (2) All entries in the record of rights prepared under sub-section (1) shall be final and conclusive." Section 27, as substituted by the U.P. (Amendment) Act No. XX of 1955, and modified by the U.P. Act 24 of 1956, ran as under:- "(1) As soon as may be, after the consolidation scheme has come into force, the Director of Consolidation shall cause to be prepared a new village map, Khasra and record of rights in respect of each village included in the consolidation operations and the provisions of U.P. Land Revenue act, 1901 shall subject to such modification and alterations as may be prescribed, be followed in the preparation of the said map and records. (2) All entries in the record of rights and in the map prepared under sub-section (1) shall be final and conclusive. (3) The record prepared under sub-section (1) shall be maintained by the Collector instead of the records maintained previously under Section 33 of the Land Revenue Act, 1901." After the U.P. (Amendment) Act XXXVIII of 1958, the Section ran as under:- "(1) As soon s may be, after the consolidation scheme has come into force the District Deputy Director of Consolidation shall cause to be prepared for each village, a new map, field book and record of rights in respect of consolidation area on the basis of the entries in the map, field book and the annual register, published under Section 11-B, and the allotment orders as finally made and issued in accordance with the provisions of this Act. The provisions of the U.P. Land Revenue Act, 1901, shall subject to such modifications and alterations as may be prescribed, be followed in the preparation of the said map and records. (2) The entries in the map, the field-book and the record of rights prepared under sub-section (1) shall be final and conclusive. (3) The records prepared under sub-section (2) shall be maintained by the Collector in place of the records maintained previously under Section 33 of the U.P. Land Revenue Act, 1901." After further amendment by the U.P. Act XII of 1965 Section 27 read as under:- "(1) As soon as may be after the final consolidation scheme has come into force, the District Deputy Director of Consolidation shall cause to be prepared for each village a new map, field-book and record of rights in respect of the consolidation area, on the basis of the entries in the map, as corrected under Section 7, the 'Khasra-Chakbandi, the annual register prepared under Section 10 and the allotment orders as finally made and issued in accordance with the provisions of this Act. The provisions of the Uttar Pradesh Land Revenue Act, 1901, shall, subject to such modifications and alterations as may be prepared be followed in the preparation of the said map and records. (2) All entries in the record of rights prepared in accordance with the provisions of sub-section (1) shall be presumed to be true until the contrary is proved. The provisions of the Uttar Pradesh Land Revenue Act, 1901, shall, subject to such modifications and alterations as may be prepared be followed in the preparation of the said map and records. (2) All entries in the record of rights prepared in accordance with the provisions of sub-section (1) shall be presumed to be true until the contrary is proved. (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 Sections 28 and 33 of the U.P. Land Revenue Act, 1901. shall apply to the maintenance of such map, field-book and record of rights, as the case may be." The U.P. Land Laws (Amendment) Act, 1974 (U.P. Act No. XXXIV of 1974) amended sub-section (3) of Section 27 so as to substitute the words and figures 'and the provisions of Section 28 and 33 of the U.P. Land Revenue Act, 1901' shall apply to the maintenance of such map, field book and record of rights, as the case may be, by the words and figures '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. 6. A perusal of Section 27, before and after its amendment by the U.P. Act XII of 1965, shows that while prior to the amendment all the entries made in the record of rights and the map prepared under sub-section (1) were final and conclusive, they ceased to be final and conclusive, they ceased to be final and conclusive after the amendment and could be rebutted and challenged in subsequent proceedings. Thus, the proceedings under Section 28 of the U.P. Land Revenue Act were no longer barred by Section 49 of the U.P. Consolidation of Holdings Act. The case, Mohd. Raza v. Board of Revenue, U.P., 1973 A.W.R. (H.C.) 621, supports this fully. 7. Sub-section (3) of the present Section 27 of the U.P. Consolidation of Holdings Act provides that, after issue of a notification under Section 52, the Collector shall maintain the map, field book and record of rights, prepared in accordance with the provisions of sub-section (1). Raza v. Board of Revenue, U.P., 1973 A.W.R. (H.C.) 621, supports this fully. 7. Sub-section (3) of the present Section 27 of the U.P. Consolidation of Holdings Act provides that, after issue of a notification under Section 52, the Collector shall maintain the map, field book and record of rights, prepared in accordance with the provisions of sub-section (1). It also provides that 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. Section 28 of the Land Revenue Act provides that:- "The Collector shall, in accordance with rules made under Section 234, maintain a map and field book of each village in his district and shall cause annually, or at such longer intervals as the State Government may prescribe, to be recorded therein all changes in the boundaries of each village or field and shall correct any errors which are shown to have made in such map or field-book." Thus, Section 27 of the U.P. Consolidation of Holdings Act itself empowers the Collector to correct under Section 28 of U.P. Land Revenue Act any errors found subsequently in the map and the field book prepared during consolidation operations. 8. In the case Ganga Glass Works Private Ltd., Balwali v. State of U.P., AIR 1972 Alld. 158, it was held that:- "A map prepared by the Consolidation Authorities can be corrected by those authorities alone and the revenue authorities cannot resort to Section 28, U.P. Land Revenue Act to make corrections in that map." In this case, the impact of Section 27(3) of U.P. Consolidation of Holdings Act was not considered and hence it does not help in arriving at a correct conclusion in respect of the questions referred to us. Besides, the case relates to Section 27 of the U.P. Consolidation of Holdings Act as it stood prior to its amendment by the U.P. Land Revenue Amendment Act XII of 1965, and, therefore, also, the ruling does not apply tot he present case. 9. Besides, the case relates to Section 27 of the U.P. Consolidation of Holdings Act as it stood prior to its amendment by the U.P. Land Revenue Amendment Act XII of 1965, and, therefore, also, the ruling does not apply tot he present case. 9. In the case Ram Chandra v. Bhagwan Sahai, 1976 R.D. (H.C.) 172, it was held that:- "The perusal of Section 27 of the Act as it stood prior to its amendment by U.P. Land Laws Amendment Act XII of 1965 shows that the entries in the map, the field book and the records of rights prepared under sub-section (1) shall be final and conclusive. The accuracy and the correctness of the map prepared during the consolidation proceedings cannot be challenged." This case relates to Section 27 of the U.P. Consolidation of Holdings Act as it stood prior to its amendment by the U.P. Land Laws Amendment Act XII of 1965, and, therefore, it does not apply to the present case. 10. In the case Smt. Rekha Singh v. State of U.P., 1974 R.D (H.C.) 405, it was held that:- "It is clear from Section 57 of the U.P. Land Revenue Act that in the case of a disputed error in the field book and the map or the record of rights prepared in accordance with Chapter IV of the Act the Collector has no power to decide whether there is an error or there is no error and it is the Civil Court alone which can adjudicate upon a disputed error." This ruling also does not apply to the present case because in the case governed by the ruling the map was prepared during Record Operations where as in the present case the map in question was prepared during Consolidation operations. 11. The proceedings for the correction of map are admittedly judicial proceedings. The Full Bench case Brij Mohan v. Ram Dularey, 1972 R.D. 176 was decided on the assumption that the proceedings under Section 28 were non-judicial in nature, and therefore, it does not apply to the question referred to this Bench. 12. The next question for consideration is 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 1st class' also. 12. The next question for consideration is 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 1st class' also. From a perusal of Section 27(3) of the U.P. Consolidation of Holdings Act and of Section 28 of the U.P. Land Revenue Act, it is clear that the only person competent to order correction of map is the 'Collector'. Indeed, under Section 223 of the U.P. Land Revenue Act the State Government may confer on any Assistant Collector of the 1st Class any of the powers of the Collector. There is no paper before us to show that such conferment of powers has actually been made by the State Government. It follows that an Assistant Collector of the 1st Class cannot order correction of mans under Section 27(3) of the U.P. Consolidation of Holdings act. In other words, the word 'Collector' mentioned in Section 27(3) of the U.P. Consolidation of Holdings Act and Section 28 of the Land Revenue Act cannot be interpreted to include an 'Assistant Collector' of the 1st Class also. The same conclusion follows if the matter is looked at from another angle also. Section 228 of the U.P. Land Revenue Act provides that the Collector may follows the powers of an Assistant Collector of the 1st Class in-charge of a Sub-division to be exercised by an Assistant Collector of the 1st Class not in charge of a sub-division. Powers of an Assistant Collector in-charge of a subdivision are are mentioned in Section 227 of the U.P. Land Revenue Act. Consequently, the Collector of the 1st Class only those powers of an Assistant Collector of the 1st Class in-charge of a sub-division which are provided in section 227 of the U.P. Land Revenue Act. But Section 227 of the U.P. Land Revenue Act does not empower an Assistant Collector of the 1st Class in charge of a sub-division to correct mistakes in maps under Section 28 of the U.P. Land Revenue Act. It follows, therefore, that the Collector cannot delegate to an Assistant Collector of the 1st Class the power to correct map under Section 28 of the U.P. Land Revenue Act. 13. It follows, therefore, that the Collector cannot delegate to an Assistant Collector of the 1st Class the power to correct map under Section 28 of the U.P. Land Revenue Act. 13. The above discussion shows that there is no provision of the Act whereby either an Assistant Collector of the 1st Class in charge of a sub-division or an Assistant Collector of the 1st class not in charge of a sub-division can exercise the powers to correct a map under Section 28 of the U.P. Land Revenue Act. Yet, certain rules framed by the State Government under Section 234 of the U.P. Land Revenue Act would appear to confer such powers. Important among with such rules are para 575 of the Land Records Manual, and 580(2) and A-81 of the revised Land Revenue Manual. While it is correct that the State Government is competent under Section 234 of the U.P. Land Revenue Act to frame Rules, yet, the Rules so framed have to be consistent with the various provisions of the parent Act. As discussed above, there is no provision in the parent Act whereby the Assistant Collector of the 1st Class, whether in-charge or not incharge of a sub-division has been invested with the powers under Section 28 of the U.P. Land Revenue Act. For these reasons, action in accordance with the above Rules would be inconsistent with the provisions of the parent Act. 14. The cumulative effect of the above discussion is that of the point referred to us, point No. 1 is decided in the affirmative while points Nos. 2 and 3 are decided in the negative.