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Allahabad High Court · body

2018 DIGILAW 629 (ALL)

INDRA BAHADUR v. D. D. C. , ALLD

2018-03-15

SALIL KUMAR RAI

body2018
JUDGMENT : SALIL KUMAR RAI, J. 1. Heard Sri B.P. Yadav, counsel for the petitioner and Standing Counsel representing respondent nos. 1 and 2 as well as Sri Rakesh Prasad, Advocate representing respondent nos. 4 to 7. 2. In view of the office reports dated 14.3.2002 to 25.10.2006, service of notice of the writ petition on respondent no. 3 is deemed sufficient. However, no body has appeared on behalf of respondent no. 3 to oppose the writ petition. 3. It transpires from the records that during the consolidation operations, Plot No. 267 was allotted to one Banshi. Notification under Section 52(2) of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'Act 1953') was issued in 1982 (the aforesaid fact has been stated in paragraph no. 7 of the counter affidavit filed by respondent nos. 4 to 7). It has been alleged by the petitioner in the writ petition as well as in the courts below that Banshi had died in 1994. An application in the name of Banshi was filed before the concerned officer praying for correction of CH Form-45 issued under the Act, 1953 by implementing the alleged order dated 20.12.1986 passed in some Case No. 43 and consequently to increase the area of Plot No. 267 in CH Form-45 to 1-18-5 from 1-13-5 as reflected in CH Form-45. The concerned Consolidation Officer vide his order dated 5.7.1995 allowed the aforesaid application by directing that CH Form-45 in relation to Plot No. 267 be corrected and its area in the aforesaid document be shown as 1-18-5 and not 1-13-5 as previously recorded. Petitioner is the owner of Plot No. 266 which is adjacent to Plot No. 267. Against the order dated 5.7.1995 passed by the Consolidation Officer, the petitioner along with Gaon Sabha filed an appeal before the Settlement Officer of Consolidation, Allahabad. The memorandum of appeal has been annexed as Annexure No. 2 to the writ petition and the contents of the same have not been denied by respondent nos. 2 to 7 in their counter affidavit. A perusal of the memorandum of appeal annexed as Annexure no. 2 to the writ petition shows that in the aforesaid appeal, the concerned Gaon Sabha had joined the petitioner as appellant. A perusal of the memorandum of appeal also shows that it has ostensibly been filed under Section 11 of the Act, 1953. A perusal of the memorandum of appeal annexed as Annexure no. 2 to the writ petition shows that in the aforesaid appeal, the concerned Gaon Sabha had joined the petitioner as appellant. A perusal of the memorandum of appeal also shows that it has ostensibly been filed under Section 11 of the Act, 1953. In his memorandum of appeal, the petitioner contended that the order dated 5.7.1995 passed by the Consolidation Officer was fraudulently obtained by respondent nos. 4 to 7 as Banshi had died by the date the application in his name was filed before the Consolidation Officer under Section 52(2) of the Act, 1953. It was further contended by the petitioner in his memorandum of appeal that no order dated 20.12.1986 was passed in any Case No. 43 and no records relevant to the aforesaid case and order are available in the relevant offices. In his memorandum of appeal, the petitioner had also contended that respondent nos. 4 to 7 have got the order dated 5.7.1995 passed by the concerned Consolidation Officer only to encroach on Plot No. 266 of which the petitioner is allegedly the owner in possession and the order dated 5.7.1995 adversely affects the position and boundaries of Plot No. 266 owned by the petitioner. Initially, the Settlement Officer of Consolidation vide his order dated 24.7.1995 stayed the order dated 5.7.1995 passed by the Consolidation Officer. Subsequently, vide his judgment and order dated 28.1.1997, the Settlement Officer of Consolidation allowed the appeal filed by the petitioner and set-aside the order dated 5.7.1995 passed by the Consolidation Officer. In his judgment and order dated 28.1.1997, the Settlement Officer of Consolidation recorded a finding that the alleged order dated 20.12.1986 was never passed in any case and no records relating to the alleged Case No. 43 were available in the concerned offices as was evident from the reports sent by the consolidation courts and the revenue courts. In his judgment and order dated 28.1.1997, the Settlement Officer of Consolidation has also recorded the fact that the order dated 5.7.1995 was passed by the Consolidation Officer merely relying on the photocopy of the alleged order dated 20.12.1986 which was submitted before him. In his judgment and order dated 28.1.1997, the Settlement Officer of Consolidation has also recorded the fact that the order dated 5.7.1995 was passed by the Consolidation Officer merely relying on the photocopy of the alleged order dated 20.12.1986 which was submitted before him. In his aforesaid judgment, the Settlement Officer of Consolidation has further recorded his opinion that action under Section 52(2) of the Act, 1953 or under Section 42(A) of the Act, 1953 cannot be taken merely relying on a photocopy of the alleged orders. In his judgment dated 28.1.1997, the Settlement Officer of Consolidation also took note of the argument of the appellant/petitioner that the area of Plot No. 267 was 1-13-0 as would be evident from the noting on CH Form-23 relating to Plot No. 267. In view of the aforesaid facts as well as the fact that Banshi had died before the alleged application was filed in his name in the court of Consolidation Officer, the Settlement Officer of Consolidation quashed the order dated 5.7.1995 passed by the Consolidation Officer and also directed that an inquiry be held against the officers responsible for implementing the order dated 5.7.1995 despite the fact that the said order was stayed by the Settlement Officer of Consolidation vide his order dated 24.7.1995. Against the judgment and order dated 28.1.1997, respondent nos. 4 to 7 filed a revision before respondent no. 1 which was numbered as Revision No. 158/1772 and the said revision has been allowed by respondent no. 1 vide his order dated 22.12.2001 on the ground that the petitioner was not aggrieved by the order dated 5.7.1995 and therefore the appeal filed by him under Section 11 of the Act, 1953 against the order dated 5.7.1995 was not maintainable and also on the ground that the area of Plot No. 267 as reflected in the map was 1-18-5 and therefore there was no error in the impugned order dated 5.7.1995 passed by the Consolidation Officer. The order dated 22.12.2001 passed by the revisional court/respondent no. 1 has been challenged in the present writ petition. 4. The order dated 22.12.2001 passed by the revisional court/respondent no. 1 has been challenged in the present writ petition. 4. It has been argued by counsel for the petitioner that the appeal filed by the petitioner against the order dated 5.7.1995 was maintainable and the petitioner was aggrieved by the aforesaid order as increasing the area of Plot No. 267 would adversely affect the boundaries and location of Plot No. 266 of which the petitioner is the owner and which is adjacent to Plot No. 267. It has been further argued by counsel for the petitioner that the opinion of respondent no. 1 that there was no error in the order dated 5.7.1995 because the area of Plot No. 267 as reflected in the map was 1-18-5 is also illegal inasmuch as the correctness of village map was also doubtful and was so argued by counsel for the petitioner before respondent no. 1. Counsel for the petitioner has further argued that the judgment and order dated 22.12.2001 passed by respondent no. 1 is vitiated by error of law apparent on the face of record and is also vitiated due to consideration of irrelevant factors and materials and is, therefore, liable to be set-aside. Rebutting the arguments of counsel for the petitioner, counsel for respondent has argued that the appeal filed by the petitioner was not maintainable as he was not aggrieved by the order dated 5.7.1995 passed by the Consolidation Officer as he had no share in Plot No. 267 and the said appeal was filed under Section 11 of the Act which in itself was not maintainable because the order dated 5.7.1995 was passed by the Consolidation Officer under Section 52(2) of the Act, 1953. It has been further argued by counsel for the respondent nos. 4 to 7 that respondent no. 1 has not committed any illegality in judging the correctness of the order dated 5.7.1995 relying on the village map prepared during the consolidation operations. 5. I have considered the rival submissions of counsel for the parties. 6. A perusal of memorandum of appeal filed by the petitioner before the Settlement Officer of Consolidation which has been annexed as Annexure No. 2 to the writ petition and the contents of which have not been denied by respondent nos. 5. I have considered the rival submissions of counsel for the parties. 6. A perusal of memorandum of appeal filed by the petitioner before the Settlement Officer of Consolidation which has been annexed as Annexure No. 2 to the writ petition and the contents of which have not been denied by respondent nos. 4 to 7 in their counter affidavit shows that the concerned Gaon Sabha had joined the petitioner as appellant in the aforesaid appeal. Further, any alteration in the area of Plot No. 267 would affect the situation and boundaries of adjacent plots which includes Plot No. 266 and which is allegedly owned by the petitioner. In the circumstances, any alteration of area of Plot No. 267 would affect the petitioner and the petitioner has the right to challenge the same before the appropriate forum in accordance with law. The appeal filed by the petitioner, as would be evident from Annexure No. 2 to the writ petition, shows that the said appeal was filed under Section 11 of the Act, 1953. The order dated 5.7.1995 was passed under Section 52 (2) of the Act, 1953 against which an appeal can be filed by any aggrieved person under Rule 109 (2) of the Uttar Pradesh Consolidation of Holdings Rules, 1954. Mere reference to a wrong provision would not be fatal for the appeal and therefore the argument of counsel for respondent that the said appeal was not maintainable as the same was filed under Section 11 of the Act is rejected. Thus, it is held that the appeal filed by the petitioner was maintainable and the Settlement Officer of Consolidation was within his jurisdiction in deciding the aforesaid appeal and the opinion of Deputy Director of Consolidation as recorded in his order dated 22.12.2001 that the order dated 28.1.1997 was without jurisdiction is erroneous and contrary to law. 7. In his judgment and order dated 28.1.1997, the Settlement Officer of Consolidation has recorded a finding that the records relating to Case No. 43 were not available and from the reports of the concerned offices it was evident that no such case was ever instituted and no order dated 20.12.1986 was passed in any case either by the consolidation authorities or any other authority. It has also been recorded in the aforesaid order that the order dated 5.7.1995 was passed relying on a photocopy of the alleged order dated 20.12.1986. It has also been recorded in the aforesaid order that the order dated 5.7.1995 was passed relying on a photocopy of the alleged order dated 20.12.1986. A perusal of Section 52(2) of the Act, 1953 would clearly show that any order passed as a consequence of the events enumerated under Section 52 (2) of the Act has to be passed on the basis of documents which are reliable and which form part of the records of the case. No original order can be passed under Section 52(2) of the Act. In case, no order dated 20.12.1986 was ever passed in any proceedings and by any authorized officer, the village map showing the area of Plot No. 267 as 1-18-5 was obviously erroneous and was liable to be corrected by the competent authority. The reliability of the village map prepared during the consolidation operations held in the village reflecting the area of Plot No. 267 as 1-18-5 is dependent on the existence of alleged order dated 20.12.1986 passed in some Case No. 43. It is also pertinent to note that under Section 27 of the Act, 1953 the presumption of correctness is only regarding the contents of record of rights. In his impugned order dated 22.12.2001, the Deputy Director of Consolidation, putting the cart before the horse, has held that the order dated 5.7.1995 was rightly passed as the area of Plot No. 267 shown in the village map was 1-18-5. The aforesaid opinion of respondent no. 1 is clearly contrary to law. The correctness of the map or entries in CH Form-45 are dependant on the existence or non-existence of order dated 20.12.1986 passed in Case No. 43. Either of the aforesaid documents can be corrected by the competent authority and can be corrected only after the inquiry regarding existence of order dated 20.12.1986 is complete. The respondent no. 1 was liable to investigate and inquire and take appropriate action and pass appropriate orders only after verifying about the existence of order dated 20.12.1986 passed in Case No. 43. The Deputy Director of Consolidation mechanically and without application of mind allowed the revision filed by respondent nos. 4 to 7 relying merely on the village map. 8. For the aforesaid reasons, the impugned order dated 22.12.2001 passed by the Deputy Director of Consolidation is illegal and is hereby set-aside. The Deputy Director of Consolidation mechanically and without application of mind allowed the revision filed by respondent nos. 4 to 7 relying merely on the village map. 8. For the aforesaid reasons, the impugned order dated 22.12.2001 passed by the Deputy Director of Consolidation is illegal and is hereby set-aside. The matter is remanded back to the Deputy Director of Consolidation to pass fresh orders in Revision No. 158/1772 after giving the concerned parties an opportunity of hearing and only after verifying about the existence of any order dated 20.12.1986 passed in some alleged Case No. 43. It is clarified that the aforesaid verification shall be done by the Deputy Director of Consolidation, Allahabad after due inquiry in accordance with law. The aforesaid exercise shall be completed by the Deputy Director of Consolidation within four months from the date a certified copy of the order is produced before him. 9. With the aforesaid directions, the writ petition is allowed.