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Allahabad High Court · body

2015 DIGILAW 780 (ALL)

Shanti Devi v. Ram Chandra Singh

2015-04-10

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri D.V. Jaiswal, for the petitioner and Sri Ashok Kumar Singh, for the contesting respondents. This writ petition has been filed against the orders of Settlement Officer Consolidation dated 13.8.2004 and Deputy Director of Consolidation dated 16.11.2004 passed in the proceeding under section 42-A of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 2. Smt. Shanti Devi (the petitioner) filed an application (registered as Case No. 62) under section 20 of the Act, for correction of plots 136/3 (area 0.0640 hectare) and 136/4 (area 0.0273 hectare), as plot 136/2 (area 0.0913 hectare) in her CH Form-11 of khata 31 and CH Form-23 of chak 48 of village Chak Fatma, pargana Jhunsi, district Allahabad. The petitioner pleaded that Smt. Jamuni widow Algoo was bhumidhar with transferable right of plots 136/2 (area 1-0-0 bigha) and 136/4 (area 1-10-0 bigha). The petitioner has purchased an area of 0-8-0 bigha of plot 136/2 through registered sale deed dated 26.7.1992 and her name was mutated in consolidation record on its basis. She constructed her house over a portion of it and on remaining portion she planted trees. During consolidation, the land purchased by her i.e. plot 136/2 (area 0-8-0 bigha) was chak out. But in CH Form-11 and CH Form-23, number of the land purchased by the petitioner was recorded as plots 136/3 (area 0.0640 hectare) and 136/4 (area 0.0273 hectare). Plot 136/3 (area 1-0-0 bigha) was old abadi and was recorded as such since before date of vesting. The consolidation authorities have no jurisdiction to make any change in old abadi. Recording plot 136/3 (area 0.0640 hectare) in the name of the petitioner was illegal and without jurisdiction. Smt. Jamuni had constructed her house on plot 136/4, which was found during partal and left as chak out. As the petitioner has not purchased plot 136/4 as such recording plot 136/4 (area 0.0273 hectare) in her name in CH Forms-11 and 23 was illegal. Accordingly correction be made in her CH Form-11 and CH Form 23. 3. Smt. Jamuni filed her written statement and admitted the case of the petitioner. On the application, Assistant Consolidation Officer, submitted his report dated 1.3.1994, mentioning therein that in CH Form-2-A, plot 136/1 (area 2-2-0 bigha) was recorded in the name of Mohd. Accordingly correction be made in her CH Form-11 and CH Form 23. 3. Smt. Jamuni filed her written statement and admitted the case of the petitioner. On the application, Assistant Consolidation Officer, submitted his report dated 1.3.1994, mentioning therein that in CH Form-2-A, plot 136/1 (area 2-2-0 bigha) was recorded in the name of Mohd. Faruk Ali and others, plot 136/2 (area 1-0-0 bigha) and 136/4 (area 1-10-0 bigha) were recorded in the name Smt. Jamuni. Plots 136/3 (area 0.0640 hectare) and 136/4 (area 0.0273 hectare) were recorded in the name of Smt. Jamuni Devi. Assistant Consolidation Officer by order dated 15.12.1992 left these plots as chak out and recorded in CH Form-18. Consolidation Officer by order dated 8.1.1993, passed in Case No. 186 directed for recording the name of Smt. Shanti Devi over plots 136/3 (area 0.0640 hectare) and 136/4 (area 0.0273 hectare) on the basis of sale deed executed by Smt. Jamuni. Plot 136/3 (area 1-0-0 bigha) was an old abadi as such entry of plot 136/3 in the name of the petitioner was a mistake. The Consolidation Officer by order dated 4.4.1995 allowed the application of the petitioner and directed for correction of CH Form-11 and 23 of the petitioner. 4. The respondents filed an application for recall of the order dated 4.4.1995. The Consolidation Officer by order dated 5.7.1996 recalled order dated 4.4.1995. Thereafter, the respondents filed their objection and contested the matter. The respondents pleaded that the plots purchased by the petitioner was chak out as such no objection under section 20 of the Act was maintainable. The petitioner did not file any objection under section 9 of the Act as such her objection is barred under section 11-A of the Act. The Consolidation Officer, after hearing the parties, by order dated 5.6.2004 held that the petitioner has obtained sale deed of plot 136/2 (area 0-8-0 bigha) and her name was directed to be mutated over plot 136/2 (area 0-8-0 bigha). During spot inspection made by him, it was found that the petitioner was having his old house adjacent to plot 136/2 and in backside of her house she purchased land of plot 136/2 (area 0-8-0 bigha) on which, she was in possession. But due to mistake of subordinate authorities, in CH Form-11 and 23 of the petitioner, plots 136/3 (area 0.0640 hectare) and 136/4 (area 0.0273 hectare) have been mentioned. But due to mistake of subordinate authorities, in CH Form-11 and 23 of the petitioner, plots 136/3 (area 0.0640 hectare) and 136/4 (area 0.0273 hectare) have been mentioned. Such a mistake is liable to be corrected in exercise of powers under section 42-A of the Act and the application of the petitioner was maintainable as held by order dated 20.8.1996. Mentioning section 20 on the application of the petitioner was a mistake committed by her Advocate. Plots 136/2 and 136/4 were the original holdings of Smt. Jamuni. During partal, house of Smt. Jamuni was found on plot 136/4 and was recorded as such and also left as chak out. Plots 136/3 and 136/4 were wrongly recorded in the name of the petitioner. On these findings, he allowed the application of the petitioner and directed to correct CH Form-11 and 23 of the petitioner by writing plot 136/2 (area 0.0913 hectare) in it and deleting plots 136/3 (area 0.0640 hectare) and 136/4 (area 0.0273 hectare). 5. Ram Chandra and others (the respondents) filed an appeal (registered as Appeal No. 59) from the aforesaid order of Consolidation Officer. The appeal was heard by Settlement Officer Consolidation, who by order dated 13.8.2004 held that in spot inspection made by him, the petitioner was found in possession of plot 208 (area 0.0640 hectare) (which was made from old plot 136/3) and plot 210 (area 0.0273 hectare) (which was made from old plot 136/4), in which she had constructed a pacca house. In measurement of these plots, its area was also found as 0-8-0 bigha, which fully corroborated with her sale deed, in which plot 136-M was mentioned and area of CH Forms-11 and 23 of the petitioner. Old house of the petitioner was of khaprail roof in old abadi of the village. Plot 207 was made from old plot 136/2. In case, Smt. Shanti Devi had purchased land of plot 136/2, then how she had occupied plots 208 and 210 which were made from old plots 136/3 and 136/4. From the report of Assistant Consolidation Officer, it is clear that during partal, five sub-plots of plot 136 were demarcated. From spot position, it is clear that entry of plots 136/3 (area 0.0640 hectare) and 136/4 (area 0.0273 hectare) were correctly made in CH Forms-11 and 23 of the petitioner. From the report of Assistant Consolidation Officer, it is clear that during partal, five sub-plots of plot 136 were demarcated. From spot position, it is clear that entry of plots 136/3 (area 0.0640 hectare) and 136/4 (area 0.0273 hectare) were correctly made in CH Forms-11 and 23 of the petitioner. While deciding chak objection under section 21 of the Act, Consolidation Officer was not justified in invoking powers under section 42-A of the Act. On these findings, the appeal was allowed and order of Consolidation Officer was set aside. The petitioner filed a revision (registered as Revision No. 1875) from the aforesaid order. The revision was heard by Deputy Director of Consolidation, who by order dated 16.11.2004 affirmed the findings of Settlement Officer Consolidation and dismissed the revision. Hence, this writ petition has been filed. 6. The Counsel for the petitioner submitted that in CH Form-5, plots 136/2 (area 1-0-0 bigha and 136/4 (area 1-10-0 bigha) were recorded in the name of Smt. Jamuni. The petitioner purchased plot 136-M (area 0-8-0 bigha) from Smt. Jamuni Devi through sale deed dated 26.7.1992. On the basis of sale deed, her name was mutated in consolidation record by order of Consolidation Officer dated 8.1.1993 passed in Case No. 186. The petitioner had no cause of action for filing an objection under section 9 of the Act. After purchasing the land in dispute, the petitioner has raised her house over a part of it and planted trees over remaining part. Assistant Consolidation Officer by order dated by order dated 15.12.1992 kept this plot as chak out and recorded in CH Form-18. Thus the petitioner had no cause of action for filing any objection under section 20 of the Act. When CH Form 23 was distributed to the petitioner, then it was noticed that in her CH Forms 11 and 23, plots 136/3 (area 0.0640 hectare) and 136/4 (area 0.0273 hectare) were recorded. Plot 136/3 area 1-0-0 bigha was old abadi of the village and was recorded since 1359 F Khasra. The consolidation authorities have no jurisdiction for recording plot 136/3, which was old abadi, in the name of the petitioner. Similarly plot 136/4 was found as abadi of Smt. Jamuni Devi and was made chak out during consolidation. These plots were wrongly recorded in the name of petitioner. The consolidation authorities have no jurisdiction for recording plot 136/3, which was old abadi, in the name of the petitioner. Similarly plot 136/4 was found as abadi of Smt. Jamuni Devi and was made chak out during consolidation. These plots were wrongly recorded in the name of petitioner. Smt. Jamuni Devi admitted that plot 136/2 (area 0-8-0 bigha) was sold to the petitioner by her. Accordingly Consolidation Officer directed for correction of the entry in CH Forms-11 and 23 of the petitioner, which were erroneous entry, resulted due to mistake committed by subordinate authorities. Settlement Officer Consolidation and Deputy Director of Consolidation, have illegally relied upon erroneous entries made in CH Forms-11 and 23 as well as in new map. The orders of Settlement Officer Consolidation and Deputy Director of Consolidation are illegal and liable to be set aside. 7. 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." 8. 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 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. 9. Although in the application of the petitioner, section 20 of the Act was noted but mentioning of wrong provision does not affect the jurisdiction of Consolidation Officer to invoke his powers under section 42-A of the Act, and correct erroneous records prepared during consolidation. 9. Although in the application of the petitioner, section 20 of the Act was noted but mentioning of wrong provision does not affect the jurisdiction of Consolidation Officer to invoke his powers under section 42-A of the Act, and correct erroneous records prepared during consolidation. Respondents-12 and 13 have illegally held that while deciding chak objection under section 21 of the Act, Consolidation Officer was not justified in invoking powers under section 42-A of the Act. Three-Judge Bench of Supreme Court in N. Mani v. Sangeetha Theatre (2004) 12 SCC 278 , held that it is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law." This judgment has been followed in Ram Sunder Ram v. Union of India 2007 (58) AIC 131 (SC) : 2007 (115) FLR 8 (Sum.) : (2007) 13 SCC 255 , Mohd. Shahabuddin v. State of Bihar (2010) 4 SCC 653 , and Ayaaubkhan Noor Khan Pathan v. State of Maharashtra 2013 (136) FLR 574 (SC) : 2013 (123) AIC 2 (SC) (Sum.). 10. The petitioner had no cause of action for filing objection under section 9 of the Act. The petitioner purchased plot 136-M (area 0-8-0 bigha) from Smt. Jamuni Devi through sale deed dated 26.7.1992. On the basis of sale deed, her name was mutated in consolidation record by order of Consolidation Officer dated 8.1.1993 passed in Case No. 186. After purchasing the land in dispute, the petitioner has raised her house over a part of it and planted trees over remaining part. Assistant Consolidation Officer by order dated 15.12.1992, directed to keep this plot as chak out and it was recorded in CH Form-18. Thus the petitioner had no cause of action for filing any objection under section 20 of the Act also as she has no grievance against keeping her land as chak out. Bar contained under section 11-A of the Act is not applicable to the petitioner as land purchased by her has been recorded in her name in consolidation. 11. Thus the petitioner had no cause of action for filing any objection under section 20 of the Act also as she has no grievance against keeping her land as chak out. Bar contained under section 11-A of the Act is not applicable to the petitioner as land purchased by her has been recorded in her name in consolidation. 11. Grievance of the petitioner was that when CH Form-23 was distributed, it was noticed that plots 136/3 (area 0.0640 hectare) and 136/4 (area 0.0273 hectare), were recorded in her name, in it, although she had purchased plot 136/2 (area 0-8-0 bigha). As such she prayed for recording plot 136/2 (area 0.0913 hectare), in place of plots 136/3 (area 0.0640 hectare) and 136/4 (area 0.0273 hectare) in her CH Form-11 of khata 31 and CH Form-23 of her chak 48. A perusal of khasra 1359 F shows that plots 136/1 (area 2-0-0 bigha) was recorded in the name of Vindeshwari and others, plots 136/2 (area 1-0-0 bigha) and 136/4 (area 1-10-0 bigha) were recorded in the name of Algoo and plot 136/3 (area 1-0-0 bigha) was recorded as abadi. Same entry continued in basic consolidation record, except plot 136/1 came to be recorded in the names of Mohd. Faruk Ali and others and the land of Algoo were recorded in the name of his widow Smt. Jamuni. The petitioner purchased an area of 0-8-0 bigha of plot 136-M through registered sale deed dated 26.7.1992 and her name was mutated by order of Consolidation Officer dated 8.1.1993. But in CH Forms-11 and 23, number of the land purchased by the petitioner was recorded as plots 136/3 (area 0.0640 hectare) and 136/4 (area 0.0273 hectare). Plot 136/3 (area 1-0-0 bigha) was old abadi and was recorded as such since before date of vesting. The consolidation authorities have no jurisdiction to make any change in old abadi. Recording plot 136/3 (area 0.0640 hectare) in the name of the petitioner was illegal and without jurisdiction. Smt. Jamuni constructed her house on plot 136/4. The petitioner has not purchased plot 136/4 as such recording plot 136/4 (area 0.0273 hectare) in her name was also illegal. Although, in sale deed plot 136-M was mentioned but Smt. Jamuni admitted that she had sold plot 136/2 as such there was no obstacle in recording plot 136/2 in name of the petitioner. 12. The petitioner has not purchased plot 136/4 as such recording plot 136/4 (area 0.0273 hectare) in her name was also illegal. Although, in sale deed plot 136-M was mentioned but Smt. Jamuni admitted that she had sold plot 136/2 as such there was no obstacle in recording plot 136/2 in name of the petitioner. 12. Correctness of the consolidation record has to be examined on the basis of previous record and not on the basis of consolidation record, which correctness is disputed. Settlement Officer Consolidation held that in spot inspection made by him, the petitioner was found in possession of plot 208 (area 0.0640 hectare) (which was made from old plot 136/3) and plot 210 (area 0.0273 hectare) (which was made from old plot 136/4), in which she had constructed a pacca house. Location of these plots were found by the side of old abadi. In measurement of these plots, its area was also found as 0-8-0 bigha, which was corroborated with it area mentioned in the sale deed, dated 26.7.1992. Assistant Consolidation Officer reported that during partal, five sub-plots of plot 136 were demarcated in revision of the map. 13. Revision of the map is provided under section 7 of the Act. According to the provisions of Rule 18 (b), while conducting survey for the purposes of revision of map, the provisions as contained for correction of map under U.P. Land Record Manual has to be followed. Paragraph-A-57 of U.P. Land Record Manual, which provides for correction of map, relevant part of which is quoted below "A-57 Correction of map.--(1) During each inspection tour, the Lekhpal shall compare the field one by one with his map and shall note thereon all changes in field boundaries and other alterations after making necessary measurements. Changes may be shown in the field in pencil, but must afterward be made in red ink. When a field is found to have been divided into two or more portions, he shall give a separate number to each portion, writing the original number as numerator and the fractional number as denominator; but...." 14. There is no dispute in respect of plots 136/1, 136/3 and 136/4. According to Smt. Jamuni, she sold an area of 0-8-0 bigha of plot 136/2 as such plots 136/2 was divided on the spot by the parties, due to which two fractions had become, making total five fractions of plot 136. There is no dispute in respect of plots 136/1, 136/3 and 136/4. According to Smt. Jamuni, she sold an area of 0-8-0 bigha of plot 136/2 as such plots 136/2 was divided on the spot by the parties, due to which two fractions had become, making total five fractions of plot 136. According to the aforesaid provisions, an area of 0-12-0 bigha of plot 136/2, retained by Smt. Jamuni had to be demarcated as plot 136/2/1 and an area of 0-8-0 bigha of plot 136/2, which was sold to the petitioner had to be demarcated as plot 136/2/2. Settlement Officer Consolidation has misread the report of Assistant Consolidation Officer. He had not applied his mind as to whether correct numbers were allotted during consolidation by subordinate authorities in consolidation record, while revision of the map. He had illegally failed to take notice of previous record, in which plot 136/3 (area 1-0-0 bigha) was recorded as old abadi, for which the consolidation authorities have no jurisdiction to make any change. Plot No. 136/3 (area 0.0640 hectare) could not be recorded in the name of the petitioner. Similarly, he has also illegally failed to take notice, that during partal, plot 136/4 was found as abadi of Smt. Jamuni and was left as chak out. Even then, if the name of the petitioner was recorded over plot 136/4, then it was an error committed by subordinate authority. According to Smt. Jamuni, she had not sold plot 136/4 to the petitioner but sold plot 136/2. Settlement Officer Consolidation himself found that there was no dispute relating to possession of the parties on the spot. The land in possession of the petitioner was found as adjacent to old abadi as such its fraction would be 136/2/2. Thus while allotting fraction number of plot 136/2, during partal, subordinate authorities have committed mistake. This was an error in consolidation record and was liable to be corrected in exercise of powers under section 42-A of the Act. The Consolidation Officer has not committed any illegality in correcting it. The orders of Settlement Officer Consolidation and Deputy Director of Consolidation are illegal and liable to be set aside. In view of the aforesaid discussions, the writ petition succeeds and is allowed. The orders of Settlement Officer Consolidation dated 13.8.2004 and Deputy Director of Consolidation dated 16.11.2004 are set aside. The orders of Settlement Officer Consolidation and Deputy Director of Consolidation are illegal and liable to be set aside. In view of the aforesaid discussions, the writ petition succeeds and is allowed. The orders of Settlement Officer Consolidation dated 13.8.2004 and Deputy Director of Consolidation dated 16.11.2004 are set aside. The orders of Consolidation Officer dated 5.6.2004 is affirmed with some modification that fraction found during partal, of old plot 136/2 be noted as 136/2/1 (area 0-12-0 bigha) and 136/2/2 (area 0-8-0 bigha) or (0.0913 hectare) in all the papers prepared during consolidation i.e. CH Forms-11, 23, 41, 45 etc. and final consolidation map be corrected accordingly.