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2024 DIGILAW 1918 (ALL)

Budh Prakash Tyagi v. State Of UP

2024-08-21

DINESH PATHAK

body2024
JUDGMENT : Dinesh Pathak, J. 1. Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondents. 2. Instant writ petition has been filed, inter alia, for the following relief: "(i) Issue a writ order or direction in the nature of mandamus commanding and directing the respondents to correct the Revenue Records (Khatauni) of the petitioner within some reasonable stipulated period which may be deem fit and proper by this Hon'ble Court. (ii) Issue a writ order or direction in the nature of certiorari quash the order dated 18.08.2023 passed by respondent no.2 and order dated 10.06.2024 passed by the respondent no.3 (Annexure No. 4 & 6) to this writ petition." 3. Petitioner is aggrieved with the inaction/omission at the part of the Consolidation Authorities who have miserably failed to give effect to the order dated 24.08.2015 passed by Deputy Director of Consolidation in Revision No. 17 (Annexure no.5) in the land record, which resulted into preparation of incorrect final consolidation record. 4. In view of the peculiar facts and circumstances of the present case and order proposed to be passed herein, this Court proceeds to decide the instant writ petition finally with the consent of counsel for the parties present without calling for their respective affidavits. 5. Facts culled out from the record are that arising out of chak allotment proceeding, a revision has been preferred on behalf of Devakram (father of petitioner) assailing the orders dated 13.08.2010/30.04.2011 and 21.11.2011 passed by Settlement Officer of Consolidation under Section 21(2) of U.P. Consolidation of Holdings Act, 1953 (in brevity 'U.P.C.H. Act'). Deputy Director of Consolidation, vide order dated 24.08.2015, has allowed the revision and modified the chak no. 384, 240, 1117, 1008A, 4, 405, 1291, 1325, chak road, main road and naveen parati. Order dated 24.08.2015 passed by Deputy Director of Consolidation became final between the parties inasmuch as same has not been assailed before any court competent. As per record, order dated 24.08.2015 has been transcribed in C.H. Form 45 as it is, however, due to inadvertent mistake at the part of the Consolidation Authorities, same could not be endorsed in C.H. Form 23. It is apposite to mention that, as per report submitted by Tehsildar in proceeding under Section 38(2) of U.P. Revenue Code, 2006, C.H.-Form-45 was prepared in the year 2014, however, village was de-notified under Section 52 of U.P.C.H. Act in the year 2018. It is apposite to mention that, as per report submitted by Tehsildar in proceeding under Section 38(2) of U.P. Revenue Code, 2006, C.H.-Form-45 was prepared in the year 2014, however, village was de-notified under Section 52 of U.P.C.H. Act in the year 2018. In the meantime, order dated 24.08.2015 has been passed by Deputy Director of Consolidation in revision. Consolidation Authorities concerned have simply transcribed the amendment chart of the order dated 24.08.2015 in C.H.-Form-45, without correcting the relevant record and same was remain standing at the time of denotification under Section 52 of U.P.C.H. Act. Consequent thereto, proper correction in the relevant consolidation record could not be carried out which led discrepancy in the final consolidation record, relating to old plot numbers which were taken out by the Deputy Director of Consolidation and new plot numbers which were allotted in the chak of the concerned chak holders, effected by order dated 24.08.2015. Due to this discrepancy, there is an anomaly in the final consolidation record which has been carried forward in the corresponding khatauni (land revenue record). Owing to said anomaly, there is an apprehension of breach of peace on the spot and all the concerned parties are at loggerheads with respect to their right and title over the property in question. To correct the said anomaly petitioner has initially moved an appropriate application under Section 38(2) of U.P. Revenue Code, 2006 to correct the land revenue record, however, Sub-Divisional Officer, Modinagar, vide its order dated 18.08.2023, has rejected the application for want of jurisdiction on the ground that matter relates to correction of the consolidation record, therefore, petitioner has an alternative remedy to approach before Consolidation Authorities to get the consolidation record corrected. In pursuance of the order dated 18.08.2023 passed by Sub-Divisional Officer, petitioner has moved an application dated 04.09.2023 under Section 42-A of U.P.C.H. Act for implementation of order dated 24.08.2015 passed by Deputy Director of Consolidation in the consolidation record and, accordingly, correct the entries. Deputy Director of Consolidation, vide order dated 10.06.2024, has rejected the application on the ground that Consolidation Authorities have no jurisdiction to review the order which has already been passed on merits. 6. Deputy Director of Consolidation, vide order dated 10.06.2024, has rejected the application on the ground that Consolidation Authorities have no jurisdiction to review the order which has already been passed on merits. 6. Having considered the rival submissions advanced by learned counsel for the petitioner as well as learned Standing Counsel, it is manifested that Deputy Director of Consolidation has misconstrued the application dated 04.09.2023, filed on behalf of petitioner under Section 42-A of the U.P.C.H. Act, to have been filed intending to review the order dated 24.08.2015 passed by Deputy Director of Consolidation. Laying emphasis at his misconception, he has observed that Consolidation Authorities have got no jurisdiction to review the order passed by the Consolidation Court. He has further observed that the amendment chart appended to the order passed by the Deputy Director of Consolidation is already approved by him, therefore, neither the order could be amended nor the amendment chart appended to the order could be amended/corrected. As such, Deputy Director of Consolidation has held the application dated 04.09.2023 moved on behalf of petitioner under Section 42-A of U.P.C.H. Act to be not maintainable. 7. In my considered opinion, Consolidation Authorities are under the legal obligation to implement the judicial orders passed by the consolidation courts during consolidation operation. It is, therefore, their legal duty to give effect to the order passed by consolidation court in the relevant consolidation record and, thereafter, in the final consolidation record so that correct entries could be carry forwarded in the corresponding khatauni (land revenue record) under Section 27 of U.P.C.H. Act. In case any error emerged and left to be corrected in the consolidation records i.e. C.H. Form 23, C.H. Form 41, C.H. Form 42, C.H. Form 45, same will be caused to be carried forward in the corresponding khatauni of the relevant fasali year when the land revenue records are being prepared at the behest of the District Deputy Director of Consolidation/District Magistrate under Section 27 of U.P.C.H. Act. While dealing with the application under Section 42-A of U.P.C.H. Act, Deputy Director of Consolidation has miserably failed to construe the same in right perspective. He has totally misread and misinterpreted the prayer made in the application that petitioner/applicant seeks correction in the order dated 24.08.2015 passed by Deputy Director of Consolidation and the amendment chart appended to said order. While dealing with the application under Section 42-A of U.P.C.H. Act, Deputy Director of Consolidation has miserably failed to construe the same in right perspective. He has totally misread and misinterpreted the prayer made in the application that petitioner/applicant seeks correction in the order dated 24.08.2015 passed by Deputy Director of Consolidation and the amendment chart appended to said order. In his application dated 04.09.2023, petitioner has unequivocally came with the plea that order dated 24.08.2015 passed by Deputy Director of Consolidation has been transcribed as it is in C.H. Form 45, however, same could not be endorsed in C.H. Form 23 and, accordingly, final correction could not be made in C.H. Form 23 which led incorrect entry in C.H. Form 45 imbibed with the previous plot numbers which were taken by Deputy Director of Consolidation as well as the new plot numbers which were allotted to the chak holders including the chak road and naveen parti etc. 8. It is no more res integra, as ratio decided by Hon'ble Division Bench of this Court in the matter of Mukhtar Vs. Deputy Director of Consolidation and Others in Civil Misc. Writ Petition No. 11482 of 1980, (1993) 08 AHC CK 0065 that the Consolidation Authorities should have corrected the consolidation record as per the order passed by the consolidation courts, however, in case, any such order is left to be incorporated in the consolidation record that will amount slackness and reluctance at their part. The relevant paragraph nos. 11 and 12 of the aforesaid judgment are quoted herein below: "11. The Act has been made to provide for the Consolidation of agricultural holdings in Uttar Pradesh for the development of agriculture. The relevant paragraph nos. 11 and 12 of the aforesaid judgment are quoted herein below: "11. The Act has been made to provide for the Consolidation of agricultural holdings in Uttar Pradesh for the development of agriculture. u/s 4 of the Act the State Government may bring any district or part thereof tinder consolidation operations for which purpose a notification may be issued under Sub-section (2) of Section 4, The effect of the notification u/s 4(2) of the Act has been provided u/s 5 wherein it has been provided that all proceedings for correction of records and every suit and proceeding in respect of declaration of rights or interest in any land lying in the area, or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any court or authority whether of the first instance or of appeal, reference or revision, shall, on an order being passed in that behalf by the court or authority before whom such suit or proceeding is pending stand abated. The Consolidation Authorities under the Act are entrusted with the duty of revising the revenue records of each village or part thereof which is brought under consolidation operations, correction of the clerical mistakes in the revenue records in respect of the tenure holders and their rights and liabilities in relation to the land including specific individual tenure holders in joint holdings, valuation of the plots, valuation of trees, wells and other improvements. Adjudication of disputes relating to claim to land and partition of joint holding is contemplated by inviting objections by the tenure-holders. After the decision of these objections a provisional consolidation scheme is prepared for the purpose of consolidation of holdings and allotment of chaks. Objections are invited at this stage also by the tenure holders which are decided and new records are prepared u/s 27 of the Act. Under Rule 27 of the Rules a duty has been enjoined on the District Deputy Director of Consolidation to get prepared for each, village a now map, field book and records of rights in respect of the Consolidation area on the basis of the entries in the map and allotment orders as finally made and issued in accordance with the provisions of the Act. 12. 12. From the entire scheme of the Act and the Rules framed thereunder it thus becomes clear that the duty for revising the revenue records is cast on the Consolidation Authorities and it is for the Consolidation Authorities to implement the orders which are passed under the Act. The Scheme of the Act is not like the scheme which has been provided under the CPC in the sense that after obtaining a judgment and decree in his favour a party has to apply for execution within a certain period of limitation prescribed to get the fruits of the decree. Here under the Act the duty is enjoined on the Consolidation Authorities themselves to implement the orders which have been passed under the Act and no duty is cast on the person in whose favour the decision has been given to make an application to the authorities under the Act for implementation of that order within any prescribed period of limitation. In our opinion, till the order passed by the Consolidation authorities on 13-5-1974 was not finally implemented by the Consolidation Authorities as contemplated under the Rules, the proceedings under the Act would be deemed to be pending. The order which has been passed in favour of the contesting Respondents was to be incorporated by the Consolidation Authorities in the revenue records. The Consolidation Authorities having not done so, the proceedings in respect thereof can not be said to have been concluded before de-notification of the village. The proceedings for correcting the revenue records in pursuance of the order dated 13-5-1974 would necessarily be taken to be pending on the date of the notification issued u/s 52(1) of the Act. The Consolidation Authorities were thus bound to implement the directions contained in the final order dated 13-5-1974 under the Act even though a notification u/s 52(1) of the Act had taken place. In our opinion, the view taken by learned Single Judge in the case of Raja Ram (supra) does not lay down the correct law." 9. In this conspectus, as above, in my considered opinion, Deputy Director of Consolidation has failed to exercise its jurisdiction so vested in it by law. In our opinion, the view taken by learned Single Judge in the case of Raja Ram (supra) does not lay down the correct law." 9. In this conspectus, as above, in my considered opinion, Deputy Director of Consolidation has failed to exercise its jurisdiction so vested in it by law. A simple application, which has been moved for giving effect to the order dated 24.08.2015 passed by Deputy Director of Consolidation in the land revenue record/consolidation record, has illegally been construed to be an application for review/correction/modification of the order dated 24.08.2015 passed by Deputy Director of Consolidation and amendment chart appended to the said order. It is the right of the litigant to get the order of the consolidation court implemented/given effect to in the consolidation record and, accordingly, get the correct entries in his favour. Litigant should not be harassed and allowed to run from pillar to post to get his legal right enforced. The Authority concerned (Deputy Director of Consolidation) has not justified to ignore the legal right of the present petitioner who is entitled to get the order dated 24.08.2015 given effect to in the land revenue record. 10. As such, instant writ petition succeeds and is allowed. Order dated 10.06.2024 passed by the Deputy Director of Consolidation is hereby quashed and parties are relegated before the Deputy Director of Consolidation to get the matter decided afresh in the light of the order dated 24.08.2015 passed by Deputy Director of Consolidation in Revision No. 17 (Annexure no.5 to the writ petition). 11. Petitioner is hereby directed to appear before the Deputy Director of Consolidation on 30.08.2024 along with certified copy of order of the date and self attested copy of the instant writ petition, who shall consider and decide the grievance of the petitioner, in accordance with law, expeditiously, preferably within a period of three months from the date of appearance of the petitioner, as mentioned above.