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2018 DIGILAW 306 (ALL)

RAJENDRA v. D. D. C.

2018-02-05

SUNITA AGARWAL

body2018
JUDGMENT : SUNITA AGARWAL, J. 1. Heard Sri Rajesh Tripathi learned counsel for the petitioner and Sri V.K. Chandel learned counsel for the respondent no.5. 2. The dispute being raised herein is with regard to the order dated 29.07.2013 and 27.12.2013 passed by the Consolidation Officer and the Deputy Director of Education Azamgarh; respectively, in a proceeding under Section 42-A of the U.P. Consolidation of Holdings Act. 3. The contention of the learned counsel for the petitioner is that these orders are without jurisdiction in as much as, the consolidation authorities cannot invoke the provision of Section 42-A of the Act after the village has been de-notified under Section 52(1) of the Act. Submission is that after de-notification of the village, the Consolidation Authorities do not have any jurisdiction within the meaning of the Act. Reliance is placed upon the judgment of this Court in Writ Petition No.37381 of 2014 (Sant Lal & others Vs. D.D.C. & others) dated 08.08.2014 wherein this Court has held that the correction of records after closure of the consolidation operation can only be made in the proceeding under section 27(3) of the Land Revenue Act and the reliance placed by the respondent thereon on the judgment of this Court in Wajid Ali and others Vs. D.D.C & others, (2009) 4 AWC 3809 of no benefit in as much as the said judgment does not laid down the correct law. 4. Considering the said statement, it would be suffice to note that the proceeding under Section 42-A of the Act pertains to any correction of clerical or arithmetical error apparent on the face of the record, which exist in the document(s) prepared under provision of the U.P Consolidation of Holdings Act. The said mistake can be corrected either by the Consolidation Officer or the Settlement Officer Consolidation, on his own motion, or on an application of any person interested. The final consolidation records are prepared before issuance of the notification under Section 52(1) of the Act and C.H. form 41 and 45 are issued. C.H. Form 41 is prepared under Rule 93 in exercise of the power under Section 27 of U.P Consolidation of Holdings Act which came into force with the preparation of the final consolidation Scheme. The final consolidation records are prepared before issuance of the notification under Section 52(1) of the Act and C.H. form 41 and 45 are issued. C.H. Form 41 is prepared under Rule 93 in exercise of the power under Section 27 of U.P Consolidation of Holdings Act which came into force with the preparation of the final consolidation Scheme. The District Deputy Director of Consolidation shall require that for each village, the records such as a new map, field book and records of rights in respect of the consolidation area, on the basis of entries in the map as corrected under Section 7, the Khasra Chakbandi, the annual register prepared under Section 10 and the allotments orders be finally made and issued in accordance with the provision of this Act. 5. It further provides that the provision of U.P. Land Revenue Act shall, subject to the modification and alteration as may be prescribed, be followed in the preparation of the map and the records. Sub section (2) of Section 27 says that all entries in the record of rights prepared in accordance with the provision of sub-section (1) shall be presumed to be true until the contrary is proved. 6. Sub section (3) of Section 27 further says that after issuance of the notification under Section 52, the Collector shall maintain the map, field book and record of rights prepared in accordance with sub-section (1) of Section 25, 27 and the provision of U.P. Land Revenue Act, 1901 shall mutatis mutandis apply in relation to the maintenance and correction of such map and records. 7. The conjoined reading of Section 27(3) and Section 42-A of U.P. Consolidation of Holdings Act makes it clear that the final consolidation records i.e. map, field book and the record of rights once prepared shall be handed over to the Collector of the District who shall maintain the records of his office in accordance with sub section (3) and any mistake in the records maintained in his office, the correction can be made invoking the provision as contained in Land Revenue Act. 8. Section 42-A starts with non-obstante clause which gives an overriding effect in so far as the power of correction of consolidation records are concerned. 8. Section 42-A starts with non-obstante clause which gives an overriding effect in so far as the power of correction of consolidation records are concerned. The correction of mistake in the final consolidation records prepared under Section 27 (1) i.e. the Bandobasti record can thus be corrected under Section 42-A of the Act irrespective of any other provision or the fact that the notification under Section 52 had been issued and the consolidation operations have been closed in the village. 9. A learned Single Judge in Ram Beer Kashyap Vs. D.D.C & others, (2015) 129 RevDec 220 considering the pronouncement of Division Bench of this Court and the legal position came to the conclusion that in case any mistake has been committed by the consolidation authorities, they can correct the same inspite of the de-notification of the village under Section 52 of the Act. The Division Bench judgment of this Court in Ram Bahadur Vs. D.D.C & others, (1974) RevDec 53 (DB) and Gopi Singh Vs. D.D.C. & others, (1967) RevDec 214 (DB) wherein it has been held that the rights and liability accrued under the Act and, therefore, recall application was maintainable even after notification under section 52 of the Act, have been relied upon. 10. It appears that while noticing that there are contradictory decision of the Single Bench of this Court, the learned Single Judge vide judgment and order dated 28.07.2016 has referred the question of scope of exercise of power under Section 42-A of the Act after issuance of notification under Section 52 of the Act, to a larger Bench. Learned counsel for the petitioner is not in a position to inform as to whether the larger Bench has been constituted and has ceased with the matter. 11. Considering the above legal position, this Court is also of the considered view that in case final consolidation records prepared under section 27(1) of U.P. C.H Act are not in the same line, the mistake apparent on the face of the records i.e. clerical or arithmetical mistake which does not require any adjudication of the rights of the parties can be corrected in exercise of power under Section 42-A of the Act by the Consolidation Authorities. The provision under the Land Revenue Act for correction of mistake in the map and other records of rights are attracted for correction of the revenue records which are prepared on the basis of final consolidation records. 12. There is no overlapping between the two provision as both operate in different field and are distinct with each other. 13. However, looking to the language of Section 42-A of U.P. Consolidation of Holdings Act, which gives it an overriding effect in so far as the correction of mistake in the consolidation records maintained by the consolidation authorities are concerned. 14. The Consolidation Authorities, therefore, had rightly proceeded to make the necessary correction. Moreover, the correction under Section 42-A of the Act can be done even in a suo moto proceeding in case, such mistake, apparent on the face of the record, comes with the knowledge of the consolidation authorities. 15. Applying the said principle, it would be sufficient to note that the Consolidation Officer and the Deputy Director of Consolidation both found that the consolidation map was not in conformity with Akar Patra 41. The shape of plot no.535 in the final consolidation map is not inline with the entries in Akar Patra-41. The mistake was thus corrected while allowing the application 42-A of the Act moved by the petitioner. 16. For all the above noted reasons, no infirmity is found in the order impugned, the writ petition is found devoid of merits and hence dismissed.