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2015 DIGILAW 682 (ALL)

Anand Swarup Sharma v. D. D. C.

2015-04-02

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri V.D. Ojha, for the petitioner and Sri Satendra Pratap Singh, for the contesting respondents. This writ petition has been filed against the orders of Consolidation Officer dated 17.5.2012 and Deputy Director of Consolidation dated 20.12.2012 passed in the proceeding under section 42-A of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 2. Smt. Meena Kaushik (respondent-2) moved an application (registered as Case No. 44) under section 42-A of the Act, for correction of the map, on the allegations that plot No. 440 was bhumidhari holding of Krishna Kumar son of Devi Sahai. During consolidation operation, in CH Form-2-A, plot 440/2 (area 0-2-0 bigha)was shown as inside road and was recorded in CH Form-18. While plot 440/3 (area 0-1-0 bigha) was recorded in the name of Krishna Kumar, which was subsequently allotted new number 341-kha. This plot was recorded in khata 34 in the name of Krishna Kumar, in khatauni 1409 F-1414 F. She purchased plot 341-kha (area 0.013 hectare) from Krishna Kumar, through registered sale-deed and her name was also mutated over it. Although in final consolidation record, plot No. 341-kha (area 0.013 hectare) was recorded but in the final consolidation map, it has not been shown at any place. Accordingly, the prayer has been made for correction of final consolidation map and locating plot No. 341-kha in it. 3. On the application of respondent-2, a report has been submitted by Assistant Consolidation Officer, mentioning therein that plot 440/1 (area 0-13-11 bigha) was allotted in chak 93, which was numbered as new plot 360, after consolidation. Plot 440/2 (area 0-2-0 bigha), which was found inside road, during partal, was left as chak out and was recorded in CH Form-18, was numbered as new plot 341 as road, after consolidation. Plot 440/3 (area 0-1-0 bigha), which was in the name of Krishna Kumar, was recorded in khata-34 and was numbered as new plot 341-kha, after consolidation. Report of Chief Tracer dated 2.1.2012, was available in the record, according to it, plot 341-kha (area 0.013 hectare) was liable to be located in final consolidation map in south-east corner of plot 360. The Consolidation Officer by order dated 17.5.2012 accepted the report of Chief Tracer dated 2.1.2012 and directed for correcting final consolidation map accordingly. Report of Chief Tracer dated 2.1.2012, was available in the record, according to it, plot 341-kha (area 0.013 hectare) was liable to be located in final consolidation map in south-east corner of plot 360. The Consolidation Officer by order dated 17.5.2012 accepted the report of Chief Tracer dated 2.1.2012 and directed for correcting final consolidation map accordingly. The respondent has produced, the corrected map before this Court, showing that plot No. 341-kha has been located in the road of plot No. 341. 4. The petitioner filed a revision (registered as Revision No. 59) from the aforesaid order of Consolidation Officer. The revision was heard by Deputy Director of Consolidation, who by order dated 20.12.2012 held that as in final consolidation map, plot 341-kha was not located, as such, the application for its location and correction of the map was maintainable. In such circumstances, Consolidation Officer has not committed any error in locating plot No. 341-kha, in the final consolidation map. Accordingly, the revision was dismissed. Hence, this writ petition has been filed. 5. The Counsel for the petitioner submits that notification under section 52 of the Act, took place in the year 1993. The application under section 42-A was moved in the year 2012, which is highly time barred and is not maintainable. Such a dispute cannot be raised after notification under section 52 of the Act and the application under section 42-A of the Act filed by respondent-2 was not maintainable. He relied upon the judgment of this Court in Ram Niwas v. Consolidation Officer, 1989 RD 201 in which it has been held that after notification under section 52 of the Act, the consolidation authorities have no jurisdiction to restart the consolidation operation or adjudicate upon any title regarding plots and chaks situated in such village or make any correction in the consolidation record in exercise of powers under section 42-A of the Act. He submits that the orders of Consolidation Officer and Deputy Director of Consolidation, are illegal and without jurisdiction and liable to be set aside. 6. I have considered the arguments of Counsel for the parties and examined the record. He submits that the orders of Consolidation Officer and Deputy Director of Consolidation, are illegal and without jurisdiction and liable to be set aside. 6. I have considered the arguments of Counsel for the parties and examined the record. Section 42-A of the Act is quoted below "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." 7. Thus, a bare reading of section 42-A shows that it has an overriding effect on any other provision under the law. No limitation has been provided for moving the application under section 42-A, as such, the application cannot be rejected on the ground of latches. If there is mistake in final consolidation record, the consolidation authorities, not only have jurisdiction to correct it but also duty bound to correct it, notwithstanding that notification under section 52 of the Act has taken place as held by Division Bench of this Court in Gaffor v. Additional Commissioner, 1978 AWC 836 (DB) The consolidation is final settlement and an incorrect record prepared during consolidation cannot be maintained for ever. The case law relied upon by the Counsel for the petitioner has no application in this case as in that case, the dispute regarding title and chak has been found to be not maintainable after notification under section 52 but in this case, there is no dispute relating to title or chak as plot 341-kha is recorded in final consolidation record in the name of respondent-2 and no one dispute it. In this case, the controversy is only in respect to final consolidation map, in which plot 341-kha has not been shown at any where. 8. Final consolidation map is prepared under section 27 of the Act, on the basis of entry in old settlement map as corrected under section 7, khasra chak-bandi (i.e. CH Form-2-A), annual register prepared under section 10 (i.e. CH Form-11) and the allotment orders as finally made (i.e. CH Form-23 and confirmed chak map, CH Form-41 and CH Form-45). 8. Final consolidation map is prepared under section 27 of the Act, on the basis of entry in old settlement map as corrected under section 7, khasra chak-bandi (i.e. CH Form-2-A), annual register prepared under section 10 (i.e. CH Form-11) and the allotment orders as finally made (i.e. CH Form-23 and confirmed chak map, CH Form-41 and CH Form-45). So far as the title of respondent-2 over plot No. 341-kha (area 0.013 hectare) is concerned, the name of her predecessor and her name was recorded in final consolidation record (i.e. CH Form-11 and CH Form-45 and new khatauni prepared on its basis). 9. The dispute is in respect of location of plot No. 341-kha (area 0.0130 hectare) in the final consolidation map. For that purpose, the consolidation authorities have to examine old settlement map and as it was corrected under section 7, CH Form-23 and confirmed chak map. According to the report of Assistant Consolidation Officer and Chief Tracer, plot 440/1 (area 0-13-11 bigha) was allotted in chak 93, and was numbered as new plot 360, after consolidation. Plot 440/2 (area 0-2-0 bigha), which was found in road, during partal, was left as chak out and recorded in CH Form-18. New plot 341 is of the road, after consolidation. Thus this plot 440/2 (area 0-2-0 bigha) must be in plot 341. Although plot 440/3 (area 0-1-0 bigha), which was in the name of Krishna Kumar, was numbered as new plot 341-kha, after consolidation and recorded in khatauni khata-34. But these reports are silent as to whether this plot was left chak out or its valuation was determined and allotted in the chak of Krishna Kumar. But in any case, plot 341-kha cannot be demarcated either in plot 341 or in plot 360. 10. In case, plot 440/3 (area 0-1-0 bigha) [new plot 341-kha (area 0.013 hectare)] was left chak out then it can be located in new map at the place, where it was left as chak out in old settlement map as corrected under section 7. In case, its valuation was determined and allotted in the chak of Krishna Kumar, then it has to be located at the place where chak was allotted to Krishna Kumar according to his CH Form-23 and in confirmed chak map. In case, its valuation was determined and allotted in the chak of Krishna Kumar, then it has to be located at the place where chak was allotted to Krishna Kumar according to his CH Form-23 and in confirmed chak map. In case, it is neither left as chak out nor allotted in the chak of Krishna Kumar, then the petitioner has to be compensated its valuation from the bachat land of the Gaon Sabha and in final consolidation record also, it has to be located at the place of such bachat land. But these facts have not been analyzed either by Chief Tracer or by Consolidation Officer. 11. According to respondent-2, the place where the Consolidation Officer has now located plot No. 341-kha, situated on the road of plot 341 which cannot be done by the consolidation authorities as no part of plot 440/3 (area 0-1-0 bigha) was in the land of road. Similarly it cannot be located in plot 360, which has been allotted to the petitioner. The orders of Consolidation Officer and Deputy Director of Consolidation, locating plot No. 341-kha by the side of plot 360 or on the road of plot No. 341, without examining the aforesaid papers, are illegal and liable to be set aside. In view of the aforesaid discussions, the writ petition succeeds and is allowed. The orders of Consolidation Officer dated 17.5.2012 and Deputy Director of Consolidation dated 20.12.2012 are set aside. The matter is remanded to the Consolidation Officer to decide the application of respondent-2 afresh, in accordance with law. Since the matter is very old, fresh exercise be completed within four months from the date of receipt of a certified copy of this order.