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2016 DIGILAW 2629 (ALL)

Peetam Lal v. D. D. C. ,

2016-07-29

RAM SURAT RAM (MAURYA)

body2016
JUDGMENT Ram Surat Ram (Maurya),J. 1. Heard Sri Prabhakar Singh, for the petitioner and Sri Puran Nath Shukla, for respondent-4. 2. The writ petition has been filed against the order of Deputy Director of Consolidation, dated 26.10.2015, passed in reference, prepared for correction of record under U.P. Consolidation Act, 1953 (hereinafter referred to as the Act). 3. Pancham Lal (now represented by respondents-4 and 5) was allotted chak-429. He executed a sale dated 27.12.1993 of plots 340/1 (area 0-8-7 bigha) and 341/1 (area 0-1-12 bigha) from his first chak of chak-429 in favour of Peetam Lal. Assistant Consolidation Officer, by order dated 08.04.1994, recorded name of the petitioner over aforesaid plots. This order was endorsed in CH Form-23 of Chak-429. Land transferred to the petitioner through aforesaid sale deed was allotted new plot 316 (area 0-16-19 bigha) and recorded in CH Form-45, of the petitioner in khata 369. Village was notified under Section 52 of the Act, on 12.07.2008. 4. Kishan Pal and Banwari Lal (respondents-4 and 5) moved an application dated 04.10.2010 under Section 42-A of the Act, for correction settlement map and CH Form-41 and 45, complaining that area of his chak has been deficiently recorded in final consolidation records. On this application, Assistant Consolidation Officer, submitted his report dated 20.04.2011, stating that although through sale dated 27.12.1993 of plots 340/1 (area 0-8-7 bigha) and 341/1 (area 0-1-12 bigha) (total area 0-9-19 bigha) was transferred to Peetam Lal but due to clerical mistake new plot 316 (area 0-16-19 bigha) was recorded in khata of the petitioner. As such area of plot 316 would be recorded as 0-8-19 bigha and area of plot 315 would be recorded as 1-8-10 bigha in place of 1-0-10 bigha. Accordingly reference has been submitted to Deputy Director of Consolidation, who accepted it by order dated 02.09.2011. 5. The petitioner filed an application for recall of order dated 02.09.2011, which was allowed by Deputy Director of Consolidation by order dated 17.02.2013. Deputy Director of Consolidation, by order dated 08.08.2013, remitted the matter to Settlement Officer Consolidation, with direction that Consolidation Officer would hear the parties and submit a clear report in this respect again. In pursuance thereof a fresh report was submitted Assistant Consolidation Officer on 21.12.2013, for deducting an area of 0-7-19 bigha from new plot 316 of the petitioner and adding it chak of respondents-4 and 5. In pursuance thereof a fresh report was submitted Assistant Consolidation Officer on 21.12.2013, for deducting an area of 0-7-19 bigha from new plot 316 of the petitioner and adding it chak of respondents-4 and 5. Consolidation Officer did not accept this report and called for a fresh report. Thereafter, Assistant Consolidation Officer submitted fresh report dated 26.07.2014. In this report, it has been mentioned that although in first chak of chak-429 of Pancham Lal was allotted on plot 340/1 (area 0-8-12 bigha) only from the stage of Deputy Director of Consolidation but through sale deed dated 27.12.1993, he had transferred plots 340/1 (area 0-8-7 bigha) and 341/1 (area 0-1-12 bigha) (total area 0-9-19 bigha) (i.e. excess area of 0-1-12 bigha). Land transferred to the petitioner through aforesaid sale deed was allotted new plot 316 (area 0-16-19 bigha) and recorded in CH Form-45, of the petitioner in khata 369. Total valuation of plot 340/1 (area 0-8-12 bigha) was 36.70 annas but total valuation of new plot 316 (area 0-16-19 bigha) comes to 72.52 annas. Thus an area of 0-7-19 bigha (total valuation of 35.82 annas) was liable to be deducted from new plot 316. An area of 0-8-7 bigha was liable to be added in chak of respondents-4 and 5. This includes area of 0-7-19 taken from the petitioner and an area of 0-0-8 bigha from chak road. This reference has been accepted by Deputy Director of Consolidation by impugned order. Hence this writ petition has been filed. 6. The counsel for the petitioner submitted that the petitioner purchased plots 340/1 (area 0-8-7 bigha) and 341/1 (area 0-1-12 bigha) from Pancham Lal through sale dated 27.12.1993. Assistant Consolidation Officer, by order dated 08.04.1994, directed for recording name of the petitioner over aforesaid plots. This order was endorsed in CH Form-23 of Chak-429. Land transferred to the petitioner through aforesaid sale deed was allotted new plot 316 (area 0-16-19 bigha) and recorded in CH Form-45, of the petitioner in khata 369. Village was notified under Section 52 of the Act, on 12.07.2008. Pancham Lal, during his life time, never challenged either execution of sale deed or mutation of the name of the petitioner. The application under Section 42-A of the Act, filed on 04.10.2010, was not maintainable. He relied upon judgment of this Court in Sukhkhan Vs. Village was notified under Section 52 of the Act, on 12.07.2008. Pancham Lal, during his life time, never challenged either execution of sale deed or mutation of the name of the petitioner. The application under Section 42-A of the Act, filed on 04.10.2010, was not maintainable. He relied upon judgment of this Court in Sukhkhan Vs. DDC and others, 2003 (95) RD 717 , in which it has been held that Section 42-A of the Act, cannot be used to grant a relief which could be granted in proceeding under Section 9-A of the Act. Sita Ram Vs. DDC and others, 2005 (98) RD 460, in which it has been held that error apparent can only be corrected in exercise of power under Section 42-A of the Act. Shiva Bachan Vs. DDC and others 2010 (109) RD 95 , in which it has been held that order passed on compromise cannot be deleted in exercise of powers under Section 42-A of the Act. Ram Surat Vs. DDC and others, 2013 (118) RD 639, in which it has been held that "correction" means removal of defect and it does not include any addition or deletion. He submitted that order is illegal and be set aside. 7. I have considered the arguments of the counsel for the parties and examined the record. Section 42-A of the Act is quoted below: - Section 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 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. Section 42-A is pare-materia with Section 152 C.P.C. Supreme Court in Srihari v. Syed Maqdoom Shah, (2015) 1 SCC 607 , held that this Court has earlier also reiterated in U.P. SRTC v. Imtiaz Hussain, (2006) 1 SCC 380 that the basis of the provision of Section 152 of the Code is found in the maxim actus curiae neminem gravabit i.e. an act of court shall prejudice no man. As such an unintentional mistake of the court which may prejudice the cause of any party must be rectified. As such an unintentional mistake of the court which may prejudice the cause of any party must be rectified. However, this does not mean that the court is allowed to go into the merits of the case to alter or add to the terms of the original decree or to give a finding which does not exist in the body of the judgment sought to be corrected. 9. Section 42-A of the Act, authorises consolidation authorities to correct any document prepared under any provision of this Act. This provision has an overriding effect and notification under Section 52 of the Act, does not affect the jurisdiction to correct any document prepared under any provision of this Act as held by this Court in Ram Pyare Vs. DDC and others, 2007 (102) RD 72. 10. In present case, it has been found that the petitioner, through sale deed dated 27.12.1993, had purchased plots 340/1 (area 0-8-7 bigha) and 341/1 (area 0-1-12 bigha) (total area 0-9-19 bigha). Land transferred to the petitioner through aforesaid sale deed was allotted new plot 316 (area 0-16-19 bigha) and recorded in CH Form-45, of the petitioner in khata 369. Although first chak of chak-429 was allotted on plot 340/1 (area 0-8-12 bigha) to Pancham Lal from the stage of Deputy Director of Consolidation but through sale deed dated 27.12.1993, he had transferred plots 340/1 (area 0-8-7 bigha) and 341/1 (area 0-1-12 bigha) (total area 0-9-19 bigha) i.e. excess area of 0-1-12 bigha. Although the petitioner purchased total area 0-9-19 bigha but in his CH Form-45 an area of 0-16-19 bigha was recorded. Total valuation of plot 340/1 (area 0-8-12 bigha) was 36.70 annas and total valuation of new plot 316 (area 0-16-19 bigha) allotted in CH Form-45 of the petitioner was 72.52 anna. Thus an area of 0-7-19 bigha (total valuation of 35.82 annas) was in excess in khata of the petitioner, which was liable to be deducted from new plot 316. This findings of fact could not be challenged by the petitioner. 11. Final consolidation records are prepared under Section 27 (1) of the Act, on the basis of entries in map as corrected under Section-7, the khasra chakbandi, the annual register prepared under Section 10 and the allotment orders as finally made and issued. This findings of fact could not be challenged by the petitioner. 11. Final consolidation records are prepared under Section 27 (1) of the Act, on the basis of entries in map as corrected under Section-7, the khasra chakbandi, the annual register prepared under Section 10 and the allotment orders as finally made and issued. In case, finally an area of 0-8-12 of plot 340/1 was allotted to Pancham Lal and corrected chak map has been prepared accordingly. New plot 316 was allotted to this chak on plot 340/1 (area 0-8-12 bigha) could not be of the area 0-16-19 bigha. Recording area of plot 316 as 0-16-19 bigha in CH Form-45 of the petitioner is an error apparent on face of record. This was a clerical error and has been rightly corrected. So far as the arguments that the petitioner has raised a specific plea that after notification under Section 52 of the Act, the application under Section 42-A of the Act was not maintainable but this point was not considered by Deputy Director of Consolidation, is concerned, this Court finds that the application was maintainable and objection in this respect is baseless. As such judgment on merit cannot be set aside on this ground alone. Other arguments that no objection under Section 9 or 20 has been filed. As such no relief can be granted under Section 42-A of the Act, is concerned, cause of action does not arose at the stage of Section 9 or Section 20. There is no dispute that the petitioner, through sale deed dated 27.12.1993, purchased plots 340/1 (area 0-8-7 bigha) and 341/1 (area 0-1-12 bigha) (total area 0-9-19 bigha). Only question was Pancham Lal was allotted only an area of 0-8-12 bigha on plot 340/1, sale deed, in excess of area was illegal. In CH Form-45 of the petitioner an area of 0-16-19 bigha of plot 316 was illegally recorded. 12. In view of the aforesaid discussion, the writ petition has no merit and is dismissed.