Radhey Shyam Late Ram Gulam Sharma v. Deputy Director of Consolidation and The Consolidation Officer
2006-03-30
S.N.SRIVASTAVA
body2006
DigiLaw.ai
S. N. SRIVASTAVA, J. ( 1 ) ALTHOUGH writ petition in hand appears to have been filed with usual relief of quashing the impugned order dated 6. 1. 2005, passed by Consolidation Officer Bareilly, a deeper delving into the grievance unfolds a pathetic picture of avoidable harassment of the petitioner since the year 2004 in which year correction application was made by him seeking correction in the order dated 25. 1. 1989 passed by the Consolidation Officer in case No. 390 wherein it would appear a mistake had crept in i. e. in describing Khata No. 74 as Khata No. 174. ( 2 ) IT would appear from the record that the petitioner made an application for correction in the revenue record pertaining to Khata No. 74, which was mistakenly described as Khata No. 174 in the order of Consolidation officer dated 25. 1. 1989 to which a report was called for from consolidation Lekhpal who submitted his first report on 6. 12. 2004 and thereafter, again on 2. 1. 2006 stating that there was no Khata by the number 174 in the village and it would further appear that still the Consolidation officer concerned stayed his hands of correcting the mistake. ( 3 ) IT would further appear that after the order dated 25. 1. 1989, the matter travelled to Settlement officer Consolidation in appeal, then to Deputy Director Consolidation in revision and lastly to this Court in writ petition and at all stages, the mistake remained unnoticed and consequently the order of the Consolidation was throughout maintained. From a perusal of the impugned order, it would transpire that the Consolidation officer himself recorded a finding that an order was passed on 25. 1. 1989 as regards Khata Nos. 95, 174 and 139 but by inadvertence, Khata No. 74 was described as Khata No. 174. From the judgment passed in writ petition aforesaid also, it would transpire that the mistake went unnoticed in the judgment of this Court. The grounds for rejection of the application of the petitioner seeking correction ostensibly was that since impugned order dated 25. 1. 1989 had received reinforcement upto the stage of the High Court, it was only this Court which could rectify the mistake by way of modification. ( 4 ) IN the petition in hand, this Court by means of order dated 10. 1.
1. 1989 had received reinforcement upto the stage of the High Court, it was only this Court which could rectify the mistake by way of modification. ( 4 ) IN the petition in hand, this Court by means of order dated 10. 1. 2006 called upon concerned consolidation officer to appear in person before this Court today and explain in justification of the order passed by him. The Officer who passed the impugned officer is present in Court today. He has also filed three affidavits in tandem, firstly sworn on 21. 2. 2006, secondly, on 7. 3. 2006 and thirdly on 29. 3. 2006. In the affidavit sworn on 21. 2. 2006 the Officer has spelt out that he laboured under the wrong impression that since order had been affirmed upto the stage of the high Court, the mistake could only be corrected by the Hon. High Court. The officer filed yet another affidavit sworn on 7. 3. 2006 the text of which is that he, by order dated 17. 3. 2006, set aside the order-dated 1. 3. 2006, and corrected mistake in the revenue record. Vet another affidavit has been filed today in which he has made a statement that Sunil and Manish had alienated the land pertaining to Khata No. 74 in pursuance of order of Tahsildar dated 19. 2. 2005 and immediately on coming to know of the matter, a letter was written to Tahsildar, Tahsil meerganj on 17. 3. 2006 pursuant to which correction has already been effected in the revenue record by Tahsildar vide his order dated 19. 2. 2005. In compliance, copies of letter written to tahsildar and copy of order passed by Tahsildar dated 1. 12. 2005 pursuant to the aforesaid letter have been annexed to the affidavit as Annexures l and 2 respectively. In the last affidavit, the officer has expressed his unqualified contrition and apology in the matter with the prayer that laches if any may be condoned. ( 5 ) IT would thus transpire in the above conspectus that the revenue record has since been corrected to the fullest and by this reckoning, the petition is rendered infructuous. ( 6 ) THE facts of the case apart, as stated supra, the mistake, which occurred in the year 1989 in the order of Consolidation officer dated 25. 1. 1989, remained unnoticed and unabated.
( 6 ) THE facts of the case apart, as stated supra, the mistake, which occurred in the year 1989 in the order of Consolidation officer dated 25. 1. 1989, remained unnoticed and unabated. No doubt, correction application was made in the year 2004, the correction prayed for was disallowed without any valid justification by the order impugned herein. The explanation of the officer who appeared in person in the Court that he laboured under the wrong impression that it was the High court which could correct the mistake, does not commend to me for acceptance. It is well settled principles reinforced by catena of decisions that where there is no mistaken identity but rather there is misdescription of the property, the correction must succeed. The test to determine whether the slip or omission is accidental or not is to see whether the order as it stands represents the intention of the Judge at the time he made it and if it does then a mistake in it cannot be treated as an accidental slip or omission. The quintessence of various decisions on the point appears to be that unless it will be inequitable to do so, mistakes in judgments due to accidental slips or omissions should be corrected. ( 7 ) SECTION 42a of the U. P. Consolidation of Holdings Act, 1958 also provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission. This section is in pari material of Section 152 of the C. P. C. It being relevant, is quoted below for ready reference. 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 interested, correct the same. ( 8 ) IN Master construction Co.
( 8 ) IN Master construction Co. (P) Ltd v. State of Orissa AIR 1966 SC 1047 , which is an ex-cathedra decision on the point, it was observed that the arithmetical mistake is a mistake of calculation, a clerical mistake is a mistake in writing or typing whereas an error arising out of or occurring from accidental slip or omission is an error due to careless mistake on the part of the court liable to be corrected. To illustrate this point, it was said in the said in the aforesaid decision that in a case where the order contains something which is not mentioned in the decree it would be a case of unintentional omission or mistake as the mistake or omission is attributable to the court which may say something or omit to say something which it did not intend to say or omit. ( 9 ) FROM a perusal of the entire record, it is unmistakably explicit that the mistake was an accidental omission occurring due to inadvertence, which could be corrected by the consolidation officer, and it was not a mistake which went to the root of the merits, and it did not require filing of appeal or revision or review application. It leaves no manner of doubt that on account of failure on the part of Consolidation officer to exercise power under Section 42a of the U. P. Consolidation of Holdings Act, the petitioner was constrained to approach this Court by way of writ petition. It would also appear that on account of refusal by the Consolidation officer to correct the mistake, sale deed was executed by the other party transferring the property of khata No. 74 leading to multiplicity of litigation although during pendency of the correction application, the mistake was later on corrected as aforesaid. ( 10 ) IN the above perspective, I am of the view that the Consolidation officer illegally declined to exercise power vested in him and as a result of which the petitioner was constrained to knock the door of this Court by way of present petition incurring all the harassment and expenses. Considering the facts and circumstances aforesaid, Bharat Singh Consolidation officer concerned is warned to be careful in future. ( 11 ) IN the result, the petition is dismissed as having become infructuous. . .