Bhullan Singh v. Deputy Director of Consolidation, Meerut
1987-12-08
A.P.MISHRA
body1987
DigiLaw.ai
JUDGMENT A.P. Mishra, J. - This Petition has been preferred against orders dated 14th November, 1980, and 17th July, 1980 passed by the Deputy Director of Consolidation and the Settlement Officer (Consolidation) respectively. 2. The Petitioner is a chak-holder No. 152 situate in village Mardahi, hamlet of village Jankheri, Pargana Gangoh, tehsil Nakur, district Saharanpur. During the preparation of the provisional consolidation scheme as per Petitioner's case no chak road was proposed under Section 19-A of the U.P. Consolidation of Holdings Act (hereinafter referred to as the Act) on Plots Nos. 264 and 237-M lying adjacent to the chak No. 148. Chaks Nos. 148 and 147 are adjacent to the Petitioner's aforesaid chak. Subsequently, after the carvation of the allotment of chaks the chak road running by the southern end of chak No. 147 was proposed to be extended further over plots Nos. 264 and 237-M. Against this, the petitioner tiled an objection. He contended that on this chak be has already got installed a tube-well on the said plots and thus no chak road should be carved out through or on the said land. 3. The Consolidation Officer on 12th July, 1972, allowed the objection of the Petitioner. Then on 7th September, 1979, respondents Nos. 4 to 8 filed an objection before the Consolidation Officer for quashing of the aforesaid order dated 12th July, 1972. The Petitioner's contention was that this objection should not have been entertained as the village itself is denotified under Section 52 (2) of the Act on the 25th December, 1976. The Consolidation Officer rejected the objection of the respondents by means of an order dated 9th April, 1980, on the ground that this is not maintainable on account of the aforesaid de-notification. Aggrieved as against that the contesting respondents filed an appeal to the Settlement Officer (Consolidation). This objection was dismissed but while dismissing the appeal he made a reference to the Deputy Director of Consolidation under Section 48 (3) with a recommendation to set aside the order of the Consolidation Officer. Apart from the said reference the contesting respondents also flied a revision under Section 48 of the Act. This revision and the aforesaid reference were connected by the revising authority. Finally, on the 14th November, 1980, the revising authority allowed the revision and set aside the order dated 12th July, 1972, passed by the Consolidation Officer.
Apart from the said reference the contesting respondents also flied a revision under Section 48 of the Act. This revision and the aforesaid reference were connected by the revising authority. Finally, on the 14th November, 1980, the revising authority allowed the revision and set aside the order dated 12th July, 1972, passed by the Consolidation Officer. Aggrieved as against the aforesaid two orders the Petitioner has tiled the Present Petition challenging the same to be illegal. 4. According to the Petitioner, the consolidation authorities had no jurisdiction to reopen the matter, which finally concluded, on two grounds, firstly, after issuance of notification under Section 52 (2) of the Act, and, secondly, the application filed by the contesting respondents before the consolidation authorities was without an application under Section 5 of the Limitation Act. Thus, the authorities had no jurisdiction to decide the same. The Petitioner's contention, on merit, has been that the Consolidation Officer rightly passed the order dated 12th July, 1972, as it was brought to his notice that over the chak which has been allotted to the Petitioner, the Petitioner after having got possession had invested a huge money including the construction of a tube-well, and thus carving of chak road on the said plot would adversely affect the Petitioner. 5. The contesting respondents denied the aforesaid submission both on law and on facts. According to them, even prior to the start of consolidation proceedings during 1965 in the said village there was a permanent Rasta shown by letters AVCDEFG in the attached consolidation map which was used by the villagers for reaching to their respective cultivatory plots. This Rasta was marked as chak road of the said village during Consolidation proceedings in 1968 also and was shown as such in the consolidation map prepared in respect of that village during 1379-F. It was further stated in the counter affidavit that this is the only Rasta for the villagers to reach to their respective fields. From the said Rasta both the Petitioner and the contesting respondents reached their chak plots from the village. Even factually, it was denied, on account of the said chak road an irreparable injury was being caused to the Petitioner on account of tube-well being constructed.
From the said Rasta both the Petitioner and the contesting respondents reached their chak plots from the village. Even factually, it was denied, on account of the said chak road an irreparable injury was being caused to the Petitioner on account of tube-well being constructed. It was stated that the Petitioner's chak land and the tube-well have nothing to do with the said disputed chak road and there is no question of removal of construction and the alleged loss arises to the Petitioner. 6. No rejoinder affidavit has been filed to controvert the allegations made by the contesting respondents in the counter affidavit. Therefore, the averments made by the contesting respondents in the counter affidavit have to be believed on the facts and circumstances of this case. Apart from this, in respect of the second ground raised by the Petitioner it has been stated in the counter affidavit that an application under Section 5, Limitation Act, was made and the averments to the contrary by the Petitioner were denied. 7. I have also perused the impugned order. It has been found by the revising authority that the order dated 12th July, 1972 passed by the Consolidation Officer was beyond his jurisdiction. He passed that order on an application of the Petitioner under Section 42-A of the Act by virtue of which he allowed the objection of the Petitioner against the chak road intervening between plots Nos. 264 and 237-M. It was further found that Section 42-A is only for correcting clerical error, but not for entertaining the objection of the Petitioner by virtue of which he allowed the claim of the Petitioner and the powers exercisable under Section 42-A of the Act are limited to correcting the clerical errors. The objection of the Petitioner was not for the correction of clerical error but claiming the right and denying the passage of the chak road, which at best could have been raised by the Petitioner by filing an appeal or revision. The revising authority very rightly came to the conclusion that the order dated 12th July, 1972, passed by the Consolidation Officer under Section 42-A of Act was beyond his jurisdiction and, therefore, he rightly quashed the said order in revision. The revising authority has not committed any illegality in the exercise of its power.
The revising authority very rightly came to the conclusion that the order dated 12th July, 1972, passed by the Consolidation Officer under Section 42-A of Act was beyond his jurisdiction and, therefore, he rightly quashed the said order in revision. The revising authority has not committed any illegality in the exercise of its power. It is well settled principle of law that an order which is without jurisdiction could be challenged in any proceeding even in collateral proceeding as the said order is non est. 8. Apart from the aforesaid averments made in the counter affidavit having not been denied I do not find it a fit case which calls for any interference by this Court in its writ jurisdiction. 9. Accordingly, the present Writ Petition being devoid of any merit is dismissed with costs.