Ramveer Kashyap v. Deputy Director of Consolidation Bareilly
2015-08-27
RAM SURAT RAM (MAURYA)
body2015
DigiLaw.ai
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri Ayub Khan for the petitioner and Sri Shivaji Singh Sisodiya for the contesting respondents. 2. The writ petition has been filed against the order of Deputy Director of Consolidation dated 13.7.2015 allowing the revision and setting aside the order of Consolidation Officer dated 12.2.2014 and 26.2.2014 and affirming the order of Consolidation Officer dated 28.9.2013 directing to record the names of respondents - 2 to 4 over the land of khata no. 229 which was carved out from old khata no. 165 of village Umarsiya, tehsil and distt. Bareilly. 3. Respondents - 2 to 4 filed an application under Section 42 A of UP C. H. Act on 4.9.2013 for recording their names over the land in dispute. It has been stated by the respondents that prior to consolidation operation the land of khata nos. 129, 164 and 165 of village Umarsiya were recorded in the name of Chunni Lal. Chunni Lal died issueless as such after his death names of respondents - 2 to 4 who were brother's son of Chunni Lal were directed to be recorded by the order of Supervisor Kanoongo dated 9.2.1976 on the basis of report on PA 11. Accordingly in consolidation records names of respondents - 2 to 4 were recorded over the land of khata nos. 129 and 164 but inadvertently their names could not be recorded over the land of khata no. 165. Tarachand and Ram Swaroop alleging themselves to be heir of Chhunni Lal got their names mutated by the order of Revenue Inspector dated 28.5.2013 which is illegal. As the names of the respondents - 2 to 4 have already been recorded in respect of two khatas of Chunni Lal in pursuance of the order of Supervisor Kanoongo dated 9.2.1976 as such their names were liable to be recorded over the land of khata no. 165 of which new khata no. 229 has been made. The Consolidation Officer initially by order dated 28.9.2013 allowed the application of respondents- 2 to 9 and directed for recording their names over the land in dispute. Thereafter a recall application has been filed by the petitioner on which the Consolidation Officer by the order dated 12.2.2014 recalled the order dated 28.9.2013 and thereafter by the order dated 26.2.2014 rejected the objection of respondent- 2 to 4.
Thereafter a recall application has been filed by the petitioner on which the Consolidation Officer by the order dated 12.2.2014 recalled the order dated 28.9.2013 and thereafter by the order dated 26.2.2014 rejected the objection of respondent- 2 to 4. The Consolidation Officer by a separate order dated 14.3.2014 also set aside the order dated 30.10.2013 passed in the proceeding under Rule 109 A of UP CH Rules. Thereafter respondents - 2 to 4 filed a revision against the orders dated 12.2.2014 and 26.2.2014. The revision was heard by the Deputy Director of Consolidation who by the order dated 13.7.2015 found that as the names of respondents - 2 to 4 were already directed to be recorded as the heirs of Chunni Lal by the order of Supervisor Kanoongo dated 9.2.1976 and the order of Supervisor Kanoongo dated 9.2.1976 has been given effect to in respect of khata no. 129 and 164 of Chunni Lal however inadvertently it could not be given effect to in respect of land of khata no. 165. Although respondents - 2 to 4 were alleged to be the heirs of Chunni Lal and no one has challenged their claim before the consolidation authorities. On these findings he allowed the revision and set aside the order of Consolidation Officer dated 12.2.2014 and 26.2.2014 and reinstated the order dated 28.9.2013 passed by the Consolidation Officer. Hence this writ petition has been filed. 4. The counsel for the petitioner submits that the village has already been notified under Section 52 of UP C. H. Act prior to moving the application of respondents - 2 to 4 on 4.9.2013 as such the consolidation authorities have no jurisdiction to pass any order in respect of the land in dispute. He relied upon the judgment of this Court in Bhunesh Dutt & others Vs. Joint Director of Consolidatin and others 2015 (1) CRC 581= 2015 (126) RD 525 . in which it has been held that the consolidation authorities could not entertain the application under Section 42 A after notification under Section 52 of the Act. 5, I have considered the arguments of the counsel for the parties and examined the records. 6. Division Bench of this Court in Gopi Singh Vs. Deputy Director of Consolidation and others 1967 RD, 214 (DB) and Ram Bahadur Vs.
5, I have considered the arguments of the counsel for the parties and examined the records. 6. Division Bench of this Court in Gopi Singh Vs. Deputy Director of Consolidation and others 1967 RD, 214 (DB) and Ram Bahadur Vs. Deputy Director of Consolidation 1974 RD, 53 (DB) as well as hon'ble Single Judge in Siddh Narain Vs. Deputy Director of Consolidation, 2007, 103 RD, 627 have held that right and liabilities accrued by the order of Consolidation Authorities can be challenged under the provisions of UP Consolidation of Holdings Act, 1953 even after notification under Section 52 of the Act. Division Bench in Ram Bahadur (supra) have overruled the earlier judgment of hon'ble Single Judge passed Mohd. Saddiq Vs. Deputy Director of Consolidation 1967, AWR, page 228. Division Bench judgments passed in the case of Ram Bahadur and Gopi Singh (supra) were not brought to the notice of hon'ble Single Judge. Hon'ble Single Judge has relied upon the judgment of another Division Bench of this Court in Gafoor Vs. Additional Commissioner and others, 1979 RD, page 76 in which it has been held that mistake committed in the map by the consolidation authorities can be corrected after the notification under Section 52 of the Act in exercise of powers under Section 28 of UP Land Revenue Act. Thus the Division Bench in the case of Gafoor (supra) has not examined as to whether the application before the consolidation authorities under Section 42 A was maintainable after the notification under Section 52 of the Act. Judgement of hon'ble Single Judge in the case of Bhunesh Dutt (supra) is per incurium. 7. Section 42 A of UP Consolidation of Holdings Act 1953 provides : 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. A bare reading of the provision shows that it has override effect over all the provisions of this Act as well as other law.
8. A bare reading of the provision shows that it has override effect over all the provisions of this Act as well as other law. In case any mistake has been committed by the consolidation authorities then they can correct the same in spite of the notification under Section 52 of the Act. Division Bench of this Court in the case of Ram Bahadur (supra) and Gopi Singh (supra) has held that right and liability accrued under the Act therefore recall application is maintainable even after notification under Section 52 of the Act, is fully applicable in the facts of the case. As in this case mistake has been committed during consolidation proceeding as such it can be corrected by the consolidation authorities in spite of the notification under Section 52 of the Act. In such circumstances, the order of Deputy Director of Consolidation does not suffer from any jurisdictional error. 9. So far as the merit of the case is concerned, the Deputy Director of Consolidation has found that by the order of Supervisor Kanoongo dated 9.2.1976 passed under Section 33 A of UP Land Revenue Act , respondents - 2 to 4 were held to be the heirs of Chunni Lal and their names were recorded over the land of Chunni Lal in respect of khata nos. 129 , 164 and 165. The right of respondents - 2 to 4 has not been challenged by any one nor Tarachand and Ram Swaroop has filed any objection either under Section 9 or under Section 12 claiming themselves to be heir of Chunni Lal before the consolidation authorities. Thus the right of Tarachand and Ram Swaroop, if any, was barred under Section 49 of UP Consolidation of Holdings Act 1953. So far as respondents - 2 to 4 are concerned, they were already held as heirs of Chunni Lal and order of Supervisor Kanoongo has been given effect in respect of two khatas of Chunni Lal but inadvertently it could not be given effect to in respect of khata no. 165. Therefore this was a clerical mistake and was corrected by the Deputy Director of Consolidation. There is no illegality in the order of Deputy Director of Consolidation. 10. The writ petition has no merit, it is dismissed.