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2023 DIGILAW 1176 (ALL)

Vijay Anand v. Board of Revenue

2023-04-27

JAYANT BANERJI

body2023
JUDGMENT Jayant Banerji, J. Heard Shri Pradeep Kumar Rai, learned counsel for the petitioners. Learned Standing Counsel appears for the respondent nos.1 and 2, Shri D.V. Jaiswal, learned counsel appears for respondent no.3 and 4, and Shri Mahesh Kumar, learned counsel represents the respondent nos.5 to 10. 2. It appears from the writ petition that the petitioners and one Ashish Das filed an application under Section 24 of the Uttar Pradesh Revenue Code, 2006 for demarcation of their Plot Nos.450 and 452 situate in Village-Sihara Govind Bahar Chungi (Moradabad), Tehsil and District Moradabad. In the Khatauni that is enclosed as Annexure-4 to the writ petition, the area of Plot No.450 is shown as 1.7520 hectares and area of Plot No.452 is shown as 0.4050 hectares. On the aforesaid application, a report was called for by the Sub-Divisional Officer from the Tehsildar Sadar. Though initially a report was submitted on 20.11.2017, it was subsequently cancelled and thereafter another report was submitted by the Revenue Inspector on 23.09.2019 which was forwarded by the Tehsildar on 24.09.2019 to the Sub-Divisional Officer, Sadar. It is stated that the respondent no.3, Om Prakash Saini, filed an objection against the report dated 23.09.2019. Om Prakash Saini is stated to be a tenure-holder of Plot No.454/503, which is likely to be affected by the demarcation. The testimony of the Revenue Inspector was recorded on 13.11.2019. Thereafter, the order dated 28.11.2019 was passed by the Sub-Divisional Officer, Sadar, Moradabad accepting the report of the Revenue Inspector dated 23.09.2019, which was forwarded by the Tehsildar, Moradabad on 24.09.2019. Accordingly, it was directed that for affixing the permanent boundary marks, the record be sent to the Tehsildar, Moradabad. 3. Thereafter, it appears that the respondent nos.3 and 4 filed an appeal before the Court of the Additional Commissioner (Administration), Moradabad under Section 207 of the Code, 2006. By the order impugned dated 21.11.2020, the Additional Commissioner (Administration), Moradabad Division, Moradabad allowed the appeal and set aside the order of the Sub-Divisional Officer dated 28.11.2019. While passing the order dated 21.11.2020, the Additional Commissioner referred to the very same report dated 23.09.2019, which was forwarded by the Tehsildar on 24.09.2019, and found that the map of Plot Nos.450 and 452 reflects excess area than the area present on site by 396.25 sq. mts. and 820.28 sq. mts. respectively. While passing the order dated 21.11.2020, the Additional Commissioner referred to the very same report dated 23.09.2019, which was forwarded by the Tehsildar on 24.09.2019, and found that the map of Plot Nos.450 and 452 reflects excess area than the area present on site by 396.25 sq. mts. and 820.28 sq. mts. respectively. It was observed by the Additional Commissioner that in case the petitioners/respondents wish, they can take steps for demarcation after the map is corrected. 4. Thereafter, Revision No.1940 of 2020 was filed before the Board of Revenue, U.P. at Prayagraj by the petitioners. In the impugned order dated 20.09.2021, the Board, it is stated, merely adopted the finding and observation of the Additional Commissioner and, while holding that the demarcation can be done after the correction of the map, dismissed the revision at the stage of admission. 5. The contention of the learned counsel for the petitioners is that the petitioners had filed an application for demarcation under Section 24 of the Code, 2006. The Sub-Divisional Officer had correctly directed demarcation to be made, and yet the Additional Commissioner, without actually directing demarcation, observed that the map should be corrected first and after correction of the map, the petitioners can apply for demarcation. The contention, therefore, is that in case the authorities feel that the map is not correctly prepared, then it is for them to initiate steps for correction of the map under the provisions of sub-rule (2) of Rule 36 of the Uttar Pradesh Revenue Code Rules, 2016 read with Section 38 of the Code, 2006. It is stated that it is for the competent authority to demarcate the land of the petitioner which cannot be made dependent on the correction of the map. 6. Learned counsel for the respondent nos.3 and 4 has opposed the writ petition and has stated that there is likelihood of Plot No.454/503 being affected and, therefore, they have a right to be heard in the matter. 7. Learned Standing Counsel, though has opposed the writ petition, has not been able to deny that under the provisions of sub-rule (2) of Rule 36 of the Rules, 2016, if no application is made by the petitioners, the Tehsildar can take steps for correction of the map. 8. 7. Learned Standing Counsel, though has opposed the writ petition, has not been able to deny that under the provisions of sub-rule (2) of Rule 36 of the Rules, 2016, if no application is made by the petitioners, the Tehsildar can take steps for correction of the map. 8. Having heard the counsel for the parties and perused the record, it is evident that a valid application under Section 24 of the Code, 2006 was filed by the petitioners. An elaborate procedure for settlement of boundary disputes and demarcation is specified in Section 24 of the Code, 2006 and Rule 22 of the Rules, 2016. Under sub-rule (2) of Section 24, the Sub-Divisional Officer is enjoined, either on his own motion or on an application made in this behalf by a person interested, to decide, by summary inquiry, any dispute regarding boundaries on the basis of existing survey maps or, where they have been revised in accordance with the provisions of the Uttar Pradesh Consolidation of Holdings Act, 1953, on the basis of such maps, but if this is not possible, the boundaries shall be fixed on the basis of actual possession. Sub-section (2) provides that where the Sub-Division Officer unable to satisfy himself as to which party is in possession or if it is shown that possession has been obtained by wrongful dispossession of the lawful occupant, the Sub-Divisional Officer shall - (a) in the first case, ascertain by summary inquiry who is the person best entitled to the property, and shall put such person in possession; (b) in the second case, put the person so dispossessed in possession, and for that purpose use or cause to be used such force as may be necessary and shall then fix the boundary accordingly. 9. Rules 22 of the Rules, 2016 provides as follows:- "22. Settlement of boundary dispute (Section 24) - (1) Under section 24(1) of the Code the tenure-holder shall be submit two copies of the application for settlement of boundary dispute to the Sub-Divisional-Officer for one or more than one contiguous gatas, and it shall contain the following particulars : (a) Details of Gata.- Gata number, name of tenure holder, father/husband's name of village/tehsil. If the tenure-holders are more than one, then particulars of all shall be mentioned; current updated khatauni shall also be to be attached to the application. If the tenure-holders are more than one, then particulars of all shall be mentioned; current updated khatauni shall also be to be attached to the application. (b) Details of contiguous Gata.- Gata number, name of tenure holder, father/husband's name, name of village/tehsil. If the tenure holders are more than one, then particulars of all shall be mentioned. Current updated khatauni shall also be attached to the application. (2) If the khata is different in khatauni, but subdivision is not done in sazra-map, then sub-division in sazra-map shall be necessary. (3) If boundary of any property of Gram Panchayat/State Government is adjacent to gata/gatas to be demarcated, then the Chairman, Land Management committee/Gram Pradhan and the State Government shall be made a party in the case. (4) Only the outer boundary shall be demarcated for an application made for boundary demarcation of contiguous gatas. (5) The applicant shall deposit a fee of Rs. 1000/- in Government treasury for the demarcation of gata/attached gatas. A copy of challan receipt shall also be attached with the application form. (6) On receipt of an application for demarcation, on the same or next working day, the Sub-Divisional-Officer shall register the case in Revenue Court Computerised Management System (RCCMS). Three copies of notices-shall be issued from the computerized system and will be delivered to the Revenue Inspector through Tehsildar. (7) The Revenue Inspector shall serve notice to the concerned tenure-holder/tenure-holders as mentioned in sub-rule (1), through the Lekhpal through any other mode. In absence of the tenure-holders, notice will be served to the adult family member of the tenure-holder/ tenure-holders. The information of demarcation shall also be given to the Chairman, Land Management Committee. or (8) At the time of sending the information or before the demarcation on site, if the Revenue Inspector wants to make any other affected person, a party to the case he can do so. (9) After fixing the date of demarcation and intimation to all the concerned tenure-holders, the Revenue Inspector or any other revenue official will demarcate the land parcel or parcels, as the case may be, during demarcation if any affected tenure-holder is not a party to the case, such tenure-holder shall be made a party to the case by the Revenue Inspector on the spot and he will mention the same in his demarcation report. Demarcation shall be completed within a month from the date of order for the same by the Sub-Divisional-Officer. (10) The Revenue Inspector or other revenue officials shall prepare the demarcation report along with the site memo. If there are no objections to the same, then after getting the consent and signature of all the concerned parties on the demarcation report, the same shall be sent it to the Sub-Divisional-Officer through Tehsildar in a week. On receipt of the aforesaid report of the Revenue Inspector, the Sub-Divisional-officer will pass the order confirming the demarcation report. (11) If the affected parties to the demarcation have not given their consent to the demarcation, or if there is any objection to the demarcation report, notice(s) will be issued by the Sub-Divisional-Officer to all the parties, fixing a date of hearing which shall not be beyond 15 days from the date of issuance of notice. (12) The Sub-Divisional-Officer shall pass an order on the matter of boundary demarcation after hearing all the concerned parties. The Revenue Inspector shall comply with such order within two weeks from the date of order, and shall submit his report to the Sub-Divisional- Officer. (13) Where the boundary of gata/survey number is not recognizable due to alluvion or diluvion of land, or heavy rain, or due to damage caused by any other reason, then on the application of the Chairman of village Revenue Committee of that village, or on the report of the Revenue Inspector or Lekhpal, or on the joint application signed by all the concerned parties, the Sub-Divisional-Officer shall instruct the Revenue Inspector or Lekhpal by a general or special order in writing, that the demarcate the boundary on ground on the basis of current survey map or, where it is possible, on the basis of possession, and if there is any complaint, then on the advice of Village Revenue Committee, resolve the same on the basis of mutual consent. The Revenue Inspector or Lekhpal shall comply with such order within two weeks from the date of order, and will submit his report to the Sub-Divisional-Officer. (14) At the time of passing order for demarcation under sub-rules (10), (13) or (14), the Sub-divisional-Officer can direct the SHO of the concerned police station to make police force available on the spot at the time of demarcation of land, in order to maintain law and order. (14) At the time of passing order for demarcation under sub-rules (10), (13) or (14), the Sub-divisional-Officer can direct the SHO of the concerned police station to make police force available on the spot at the time of demarcation of land, in order to maintain law and order. (15) The Sub-Divisional-Officer, will try to complete the process within the stipulated time as mentioned in Section 24(3) of the Code and if the process is not completed within such time then the reason for the same shall be recorded." 10. The provision for correction of error and omission in maps, field-book or record of rights is mentioned in Section 38 of the Code, 2006 and an elaborate procedure is provided in Rule 36 of the Rules, 2016, which are quoted below:- "Section 38. Correction of error and omission.- (1) An application for correction of any error or omission in the map, filed-book (Khasra) or record of rights (Khatauni) shall be made to the Tahsildar in the manner prescribed. (2) On receiving an application under sub-section (1) or on any error or omission otherwise coming to his knowledge, the Tahsildar shall make such inquiry as may appear to him to be necessary, and refer the case along with his report to the Collector in the case of map correction and to the Sub-Divisional Officer in matter of other correction. (3) The case shall be decided by the Collector or the Sub-Divisional Officer, as the case may be, after considering any objection filed and evidence produced before him or before the Tahsildar. (4) Any person aggrieved by an order of the Collector or the Sub-Divisional Officer, as the case may be, under sub-section (3), may prefer an appeal to the Commissioner within a period of thirty days from the date of such order, and the decision of the Commissioner shall subject to the provisions of Section 210, be final. (5) Any forged or manipulated entry in the map, the khasra or the record of rights (khatauni) may be expunged under this section. (6) Notwithstanding anything contained in other provisions of this Code, the Revenue Inspector may correct any undisputed error or omission in the record of rights (khatauni) or khasra in such manner and after making such inquiry, as may be prescribed. Explanation. (6) Notwithstanding anything contained in other provisions of this Code, the Revenue Inspector may correct any undisputed error or omission in the record of rights (khatauni) or khasra in such manner and after making such inquiry, as may be prescribed. Explanation. - The power to correct any error or omission under this section shall not be construed to include the power to decide a dispute involving question of title. "Rule 36. Correction of error or omission (Section 38) - (1) Every application for correction of any error or omission in the map, field-book (Khasra) or record-of-rights (Khatauni) referred to in Section 38(1) shall contain the following particulars:- (a) Name, parentage and address of the applicant. (b) The document for the correction whereof the application is being made. (c) Particulars of the land to which the error or omission relates. (d) The precise nature of the error or omission. (e) The application shall be accompanied by a certified copy of the map, Khasra or Khatauni to which the alleged error or omission relates. (2) Proceedings for correction of the map, field book or record-of-rights may be initiated even without any application under sub-rule (1), if the error or omission otherwise comes to the knowledge of the Tahsildar. (3) If during the preparation of new Khatauni, partal, spot verification and local visit or inquiry, the Lekhpal, Naib Tahsildar, Revenue Inspector or any other revenue officer has reasons to believe that any error or omission (including any fake or fraudulent entry but excluding the errors or omissions referred to in the explanation to section 38) has crept in the map, field book or the record of rights, he shall refer the matter to the Tahsildar who shall initiate necessary proceedings under this rule. (4) In proceedings for correction of errors and omission under this rule, the Tahsildar shall call for a report from the Revenue Inspector or the Lekhpal and after affording reasonable opportunity of hearing to the parties concerned and making summary inquiry, refer the case to the Collector in the case of map correction and to the Sub-Divisional Officer in the case of other correction along with his report within a period of thirty days from the date of registration of the application. (5) The Collector or the Sub-Divisional Officer, as the case may be, shall allow the parties to file objection, if any, against the report of the Tahsildar submitted under sub-rule (4), and then decide the dispute. If the Collector or the Sub-Divisional Officer, as the case may be, is of the opinion that the map, field book or record of rights contains any error or omission, he shall direct for the correction thereof. (6) An endeavour shall be made to conclude the proceeding for correction under section 38 within the period of 45 days from the date of receiving the application with the report and if the proceeding is not concluded within such period the reasons for the same shall be recorded. (7) The Revenue Inspector may correct any undisputed error or omission in the Record of Rights (Khatauni) or Khasra after making such inquiry in the manner contained in the Land Record Manual." 11. The Sub-Divisional Officer, in its order dated 28.11.2019, had made a definitive direction for demarcation of the plots in question on the basis of a report dated 23.09.2019 of the Revenue Inspector. Relying on the same report, the Additional Commissioner, by its order dated 21.11.2020, had set aside that order of the Sub-Divisional Officer. The finding recorded by the Additional Commissioner is that a perusal of the report of the Revenue Inspector and the field-book reflects that Plot No.450 is in excess by 396.25 sq. mts. in the area reflected in the map and record of rights. Similarly, Plot No.452 is reflected in the map and Khatauni in excess by 820.28 sq. mts. The Additional Commissioner has put the onus on the applicants to move for correction of the map and, thereafter, to file application for demarcation. 12. As is reflected in sub-rule (2) of Rule 36 of the Rules, 2016, the proceedings for correction of the map, field-book or record of rights may be initiated even without any application under sub-rule (1), if the error or omission otherwise comes to the knowledge of the Tehsildar. It is evident that the error or omission to which Section 38 of the Code, 2006 pertains to the plots in question, is in the knowledge of the Tehsildar. 13. However, a perusal of the array of parties in the writ petition reflects that neither the Tehsildar nor the Sub-Divisional Officer have been made parties. It is evident that the error or omission to which Section 38 of the Code, 2006 pertains to the plots in question, is in the knowledge of the Tehsildar. 13. However, a perusal of the array of parties in the writ petition reflects that neither the Tehsildar nor the Sub-Divisional Officer have been made parties. Therefore, no positive direction can be issued to the Tehsildar/competent authority to take steps under the provisions of Section 38 of the Code, 2006. However, this Court has no reason to doubt that on this order being brought to the knowledge of the respondent no.2 or the competent authority by the petitioners, appropriate steps would be taken by that authority in accordance with law. It is made clear that the observation made herein shall not be taken as an opinion on merits of the case of either of the parties to this writ petition. 14. With the aforesaid observations, the writ petition is disposed of.