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2023 DIGILAW 518 (ALL)

Vijay Pal v. State Of U. P.

2023-02-21

DINESH PATHAK

body2023
JUDGMENT : Dinesh Pathak, J. 1. Heard learned counsel for the petitioner, learned Standing Counsel representing respondent nos. 1 to 3 as well as learned counsel for the private respondent no. 4. 2. By way of filing the instant writ petition under Article 226 of the Constitution of India, the petitioner has challenged the orders passed by the consolidation authorities in two separate proceedings i.e. under Section 9-B of the U.P. Consolidation of Holdings Act (in brevity "U.P.C.H. Act") and under Section 42-A of U.P.C.H. Act. 3. Grievance of the petitioner is that consolidation authorities have incorrectly fixed two different exchange value of plot no. 158. For some of the portion it has been fixed 90 paise and for remaining portion it has been fixed 70 paise. In this backdrop of the fact, the petitioner has initially invoked proceeding under Section 9-B of U.P.C.H. Act and after becoming unsuccessful in the said proceeding, he has resorted to another proceeding under Section 42-A of U.P.C.H. Act. As such, the petitioner has demanded to deduct the exchange value of plot no. 158 from 90 paise to 70 paise. 4. Facts culled out from the averment made in the writ petition are that plot no. 158 is a big plot and its area has been adjusted along with several Khata holders. Initially an application under Section 9-B of U.P.C.H. Act was filed on behalf of Ram Gopal Kaushik (father of Atul Kaushik and Ashish Kaushik) with the prayer to deduct the exchange value of plot no. 158 from 90 paise to 70 paise. Said application was allowed vide order dated 19.05.2005 passed by the Consolidation Officer. Consequently, valuation of plot no. 158M area 2.097 hectare was reduced from 90 paise to 70 paise. Having been aggrieved Satish Chandra (respondent no. 4) had filed an appeal. The Settlement Officer of Consolidation has allowed the appeal treating the objection under Section 9-B of U.P.C.H. Act to be barred under the provisions as enunciated under Section 11-A(3) of U.P.C.H. Act. The Deputy Director of Consolidation, on revision being filed on behalf of the petitioner and others, has dismissed the revision on the same ground. At the subsequent stage, present petitioner along with Atul Kaushik and Ashish Kaushik have taken the second chance to correct the exchange value of plot no. The Deputy Director of Consolidation, on revision being filed on behalf of the petitioner and others, has dismissed the revision on the same ground. At the subsequent stage, present petitioner along with Atul Kaushik and Ashish Kaushik have taken the second chance to correct the exchange value of plot no. 158 by moving an application under Section 42-A of U.P.C.H. Act, which was rejected by the Settlement Officer of Consolidation and affirmed by the Deputy Director of Consolidation on the ground that section 42-A is mean only for the purposes of rectifying the clerical error. Having been aggrieved against said orders, Vijay Pal (petitioner) alone has filed instant writ petition. 5. It is submitted by the counsel for the petitioner that partition between the parties had already been taken place in the year 1966 and according to their share all the parties have entered into their possession. It is next submitted that, in the chak of the petitioner, consolidation authorities have fixed the exchange value of plot no. 158 in two categories, some portion has been shown having exchange value of 90 paise, however, remaining portion has been shown having exchange value of 70 paise. Therefore, it is an arithmetical error which can be cured by the consolidation authorities under Section 42-A of U.P.C.H. Act. It is next submitted that the order passed by the Settlement Officer of Consolidation and the Deputy Director of Consolidation are illegal, unwarranted under the law and tainted with irregularity and, therefore, same is liable to be quashed. 6. Learned counsel for the respondent no. 4 has contended that difference of exchange value in plot no. 158 has been occurred because of the nature of the land. Some of the portion of land is low laying area, therefore level of the said area is below than normal level of remaining portion of plot no. 158. It is further contended that the regular proceeding for fixation of valuation has already been decided under Section 9-B of U.P.C.H. Act, therefore, the subsequent proceeding under Section 42-A of U.P.C.H. Act is not maintainable in the eye of law. It is next contended that the instant writ petition is liable to be dismissed in limine being misconceived and devoid of merits. 7. It is next contended that the instant writ petition is liable to be dismissed in limine being misconceived and devoid of merits. 7. Having considered the rival submissions advanced by the learned counsel for the parties and perusal of record, it reveals that prior to filing the application under Section 42-A of U.P.C.H. Act the predecessor in the interest of the petitioner has already lost the matter qua fixation of valuation of plot no. 158 in proceeding under Section 9-B of U.P.C.H. Act. As per finding returned by the Settlement Officer of Consolidation and the Deputy Director of Consolidation, vide their order dated 12.09.2017 and 15.03.2018 respectively, objection under Section 9-B of U.P.C.H. Act was moved at a belated stage, therefore, said objection was treated to be barred under Section 11-A(3) of U.P.C.H. Act. The provision under Section 9-B of U.P.C.H. Act gives an opportunity to the tenure holders for filing an objection against the statement of principles, therefore, proceeding under Section 9-B of U.P.C.H. Act is a regular proceeding for the purposes of raising any question with respect to the correctness of the statement of principles pertains to the exchange value of the plots. As per finding returned by the Settlement Officer of Consolidation in its order dated 12.09.2017, the statement of principles, prepared by the consolidation authorities, has attained finality and, accordingly, provisional consolidation scheme has been notified under Section 20 of U.P.C.H. Act promulgated on 29.08.1998. Objections with regard to the chaks proposed to the tenure holders have been decided till dated 28.04.2003. Therefore, at a belated stage passing any order on the application under Section 9-B of U.P.C.H. Act would disturb the settled possession of the parties which has already attained finality. 8. The petitioner has challenged the order dated 12.09.2017 and order dated 15.03.2018 passed by the Settlement Officer of Consolidation and the Deputy Director of Consolidation respectively, passed in proceeding under Section 9-B of U.P.C.H. Act, as well in the instant writ petition. In assailing the order dated 15.03.2018 counsel for the petitioner submits that in the interest of justice the court can change the valuation of the plot at any stage. In support of his submission counsel for the petitioner has relied upon the case of Maharaja Singh vs. Deputy Director of Consolidation, reported in 2005 (98) R.D. 600. In assailing the order dated 15.03.2018 counsel for the petitioner submits that in the interest of justice the court can change the valuation of the plot at any stage. In support of his submission counsel for the petitioner has relied upon the case of Maharaja Singh vs. Deputy Director of Consolidation, reported in 2005 (98) R.D. 600. I have carefully perused the ratio decided by the coordinate Bench of this Court in the case of Maharaja Singh (supra). Subject matter of cited case was with respect to the creation of chak road, which was ordered to be considered after spot inspection and, accordingly, matter was remanded to the revisional court. Facts of the cited case are not akin to the given circumstances of the present case. Therefore, the case of Maharaja Singh (supra) is not applicable in the instant matter. 9. So far as the partition of the property is concerned, as submitted by the counsel for the petitioner, it is own case of the petitioner that the partition was took place before the start of the consolidation operation, that too in the year 1966. After start of the consolidation operation, notification under Section 9 of U.P.C.H. Act has been promulgated, however, at that stage the petitioner never came forward to raise any objection with respect to the exchange value of plot no. 158. At the belated stage, after notification dated 28.04.2003 under Section 20 of U.P.C.H. Act and finalization of chak objections till 28.04.2003, an application dated 26.03.2004 under Section 9-B of U.P.C.H. Act was filed by his predecessor, namely, Ram Gopal Kaushik, which was rejected up to the stage of Deputy Director of Consolidation. So far as difference of valuation of plot no. 158 in the chak of the petitioner is concerned, it emerged from the record that said difference in the exchange value in plot no. 158 has been occurred due to the quality of land. Some portion of plot no. 158 is low lying area in comparison with the remaining part of the said land. Considering the nature and quality of land, valuation has been fixed by the authority concerned at the time of preparation of statement of principles. In provisional consolidation scheme chak no. 740 has been allotted to Satish Chandra (respondent no. 4), chak no. 330 has been allotted to Vijay Pal (petitioner) and chak no. Considering the nature and quality of land, valuation has been fixed by the authority concerned at the time of preparation of statement of principles. In provisional consolidation scheme chak no. 740 has been allotted to Satish Chandra (respondent no. 4), chak no. 330 has been allotted to Vijay Pal (petitioner) and chak no. 3 has been allotted to Atul Kaushik (predecessor in the interest of respondent no. 5 to 7). Up to the stage of allotment of chak no objection has been raised by any party with respect to exchange value of their respective chaks. At subsequent stage any change in the chak of the petitioner will disturb the other chak holders and unsettle the situation over plot in question. The Deputy Director of Consolidation has given a categorical finding, showing the cause for difference of valuation of plot no. 158, that partial area of plot no. 158, which is low lying area to the level of the remaining area of plot no. 158 is fixed at the valuation of 70 paise, however, rest of the area which is in normal level is fixed at the valuation of 90 paise. The Deputy Director of Consolidation and the Settlement Officer of Consolidation are in agreement with respect to fixation of valuation of plot no. 158. 10. It is surprising to note that as to how the petitioner has moved an application under Section 42-A of U.P.C.H. Act, whereas regular objection under Section 9-B of U.P.C.H. Act has already been decided by the court competent up to the stage of Deputy Director of Consolidation. It appears that under the mala fide intention the petitioner has tried to avail a second chance by moving an application under Section 42-A of U.P.C.H. Act. 11. It would be apposite to point out that the scope under Section 42-A of U.P.C.H. Act is very limited only for the purposes of rectifying the clerical mistake in the consolidation record and same cannot be resorted to for the purposes of changing the exchange value of plot or right and title of the parties over the plot in question. Any change in the exchange value of plot no. 158 will certainly affect the area of plots, which would disturb the settled position of the tenure holders over their respective chaks. For ready reference, provisions as enunciated under Section 42-A of U.P.C.H. Act is quoted herein below:- "42A. Any change in the exchange value of plot no. 158 will certainly affect the area of plots, which would disturb the settled position of the tenure holders over their respective chaks. For ready reference, provisions as enunciated under Section 42-A of U.P.C.H. Act is quoted herein below:- "42A. 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." 12. A bare perusal of Section 42-A of U.P.C.H. Act evince that consolidation authorities have no jurisdiction to make any measure change in the land record except to correct the clerical or arithmetical error. The relevant phrase as employed under Section 42-A of U.P.C.H. Act i.e. "a clerical or arithmetical error apparent on the face of the record exists in any document prepared under any provision of this Act" clearly denotes that, except the clerical or arithmetical error, consolidation authorities have no jurisdiction to make any change in the land record. There should be corroborative evidence to prove the clerical or arithmetical error in consolidation record. Changing the exchange value of the plot without resorting to the legal procedure as provided under the U.P.C.H. Act will effect the statement of principles which has attained finality in absence of any valid objections. The demand, as raised by the petitioner with respect to the correction of valuation of plot no. 158, does not come within the phrase as employed by Section 42-A of U.P.C.H. Act, which pertains to clerical or arithmetical error. The petitioner has very cleverly initiated second round of litigation to mischief the consolidation authorities, which is not sustainable in the eye of law. 13. In this conspectus, as above, I do not find any justifiable ground to interfere in the orders dated 15.03.2018 passed by the Deputy Director of Consolidation and dated 12.09.2017 passed by the Settlement Officer of Consolidation arising out of proceeding under Section 9-B of U.P.C.H. Act. 13. In this conspectus, as above, I do not find any justifiable ground to interfere in the orders dated 15.03.2018 passed by the Deputy Director of Consolidation and dated 12.09.2017 passed by the Settlement Officer of Consolidation arising out of proceeding under Section 9-B of U.P.C.H. Act. And also I do not find any justifiable ground to interfere in the order dated 23.07.2021 passed by the Settlement Officer of Consolidation and order dated 31.10.2022 passed by the Deputy Director of Consolidation arising out of proceeding under Section 42-A of U.P.C.H. Act. There is no illegality, perversity or ambiguity in the orders under challenge so as to warrant indulgence of this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. 14. As such, instant writ petition, being misconceived and devoid of merits, is dismissed with no order as to costs.