Heard Sri Rahul Sahai, learned counsel for the petitioner and Sri R.C. Singh, for the contesting respondent no. 2.
The writ petition arises out of proceedings under Section 33/39 of the U.P. Land Revenue Act and seeks quashing of the order dated 15.01.2016 passed by the Board of Revenue allowing a revision filed by the respondents.
The facts of the case briefly stated are that an entry was made by the Lekhpal in the khasra of non Z.A. land situated in Mauja Sahatwar Urf mahatpal, Pargana Khareed, Tehsil Bansdeeh, District Ballia. The petitioner instituted proceedings under Section 33/39 for expunging this entry alleging that the name of Vishwanath had wrongly been recorded under Class 15(2) in the khasra.
It appears that the respondent put in appearance but subsequently absented himself. The Sub Divisional Magistrate, Bansdeeh by his order dated 11.05.2000, directed that the entry made in the khasra be expunged.
The contesting respondent thereafter filed a restoration application which was rejected on the ground that since he had appeared in the proceedings initially but, subsequently absented himself, the restoration application was not maintainable.
Against the order rejecting the restoration application, the respondent preferred a revision. This revision has been allowed by the impugned order.
The contention of learned counsel for the petitioner is that the main grievance of the respondent was that the order passed by the Sub Divisional Magistrate, was ex-parte. Under the circumstances, the revisional Court, should have remanded the matter back for passing a fresh order after hearing the parties. He has on the contrary terminated the proceedings after setting aside the order passed in favour of the petitioner, thereby maintaining the entry made in favour of the respondent in the khasra.
Apart from lengthy submissions made by learned counsel for the parties on the merits on their respective claims, the primary issue, which in my considered opinion, arises for adjudication is as to whether any entry made in the khasra in accordance with the provisions contained in Para A-60 of the Land Record Manual, is liable to be corrected by means of the proceedings under Section 33/39 of the U.P. Land Revenue Act.
In this context, it would be relevant to note the relevant provisions of the Act, namely Sections 33/39 of the U.P. Land Revenue Act, which are quoted herein above.
"33. The annual registers.- (1) The Collector shall maintain the record of rights and for that purpose shall annually or at such longer intervals as the State Government may prescribe, cause to be prepared an amended register mentioned in Section 32.
The register so prepared shall be called annual registered.
(2) The Collector shall cause to be recorded in the annual register-
(a) all successions and transfers in accordance with the provisions of Section 35; or
(b) other changes that may take place in respect of any land; and shall also correct all errors and omissions in accordance with the provisions of Section 39:
Provided that the power to record a change under clause (b) shall not be construed to include the power to decide a dispute involving any question of title.
(3) No such change or transaction shall be recorded without the order of the Collector or as hereinafter provided, of the Tehsildar or the Kanungo.
(4) The Collector shall cause to be prepared and supplied to every person recorded as bhumidhar, wither with or without transferable rights, assami or Government Lessee a Kisan Bahi (Pass Book) which shall contain-
(a) such extract from the annual register prepared under sub-section (1) relating to all holdings of which he is so recorded (either solely or jointly with others);
(b) details of grants sanctioned to him; and
(c) such other particulars as may be prescribed:
Provided that in the case of joint holdings it shall be sufficient for the purpose of this sub-section of Kisan Bahi (Pass Book) is supplied to such one or more of the recorded co-sharers as may be prescribed.
(4A) The Kisan Bahi (Pass Book) referred in in sub-section (4) shall be prepared in such manner and on payment of such fee, which shall be realisable as arrears of land revenue, as may be prescribed.
(5) Every such person shall be entitled, without payment of any extra fee, to et any amendment made in the annual register under sub-section (2) incorporated in his Kisan Bahi (Pass Book).
(6) The State Government may make rules to carry out the purpose of this section, including, in particular, rules, prescribing the mode of reception in evidence,and of proof in judicial proceedings, of entries in the Kisan Bahi (Pass Book), and the mode of its revision and authentication up-to-date and for issuing of duplicate copies thereof, and the fees, if any, to be charged for any of the said purpose.
(7) In this section, 'prescribed' means prescribed by rules made by the State Government.
(8) Nothing in sub-sections (4) to (7) shall apply in relation to any area which is either under consolidation operations or under record operations.
39. Correction of mistakes in the annual register.-(1) An application for correction of any error or omission in the annual register shall be made to the Tehsildar.
(2) On receiving an application under sub-section (1) or any error or omission in the annual register coming to his knowledge,the Tehsildar shall make such inquiry as appears necessary and then refer the case to the Collector, who shall dispose if of, after deciding the dispute in accordance with the provisions of Section 40.
Provided that nothing in this sub-section shall be construed to empower the Collector to decide a dispute involving any question of title.
(3) The provisions of sub-sections (1) sand (2) shall prevail, notwithstanding anything contained in the U.P. Panchayat Raj Act, 1947."
A bare reading of the provisions quoted above, makes it clear that the aforesaid sections 33 and 39 of the Act, can be invoked for correcting errors in the Annual Register.
The khasra of a non Z.A. area, is prepared in accordance with the provisions of the Chapter 5 of the U.P. Land Record Manual.
Para 60 of the aforesaid Chapter provides that the khasra is a field book in which the Lekhpal, shall enter from time to time, all changes in boundaries and facts required for the preparation of the khatauni. It is to be prepared in P.A. form 3, which is also given in the Land Record Manual itself.
The khatauni in a non Z.A. area, is prepared in accordance with the provisions contained in Chapter VIII of the U.P. Land Record Manual.
Chapter III (C) thereof deals with annual registers. Section 33 empowers the Collector to maintain the record of rights, which may be prepared annually or at such intervals at the State Government may provide.
The question therefore, is as to whether a field book namely the khasra prepared under Section 28 of the U.P. Land Revenue Act, can be termed an Annual Register specified under Section 33 of the Act. The answer is a categorical no.
The Annual Register referred to under Section 33 of the Act, necessarily means the khatauni prepared by the revenue authorities, which is the record of rights. The provisions of Section 33/39 of the U.P. Land Revenue Act, can be invoked for corrections in the khatauni. No correction in the khasra can be made, invoking Section 33/39 of the Act, which is the field book. Any corrections initiated in the field book prepared under Section 28 of the Act, can be corrected only through proceedings under Section 28 of the Act itself. Under Section 28, the power to order corrections vests in the Collector.
The power to order corrections in the Annual Register is with the Collector upon a report having been made by the Tehsildar. However, even the Sub-Divisional Officer can exercise this power in view of Section 227 of the U.P. Land Revenue Act.
It is clear from the record of the writ petition that the proceedings initiated by the petitioner under Section 33/39, were for correction of an entry made in the khasra prepared in the form provided in Para A-60 of the Land Record Manual. The correction sought by the petitioner could have been sought by means of proceedings under Section 28 of the Act.
The procedure prescribed for dealing with applications under Section 28, viz-a-viz application under Section 33/39 of the Act, is materially different. This view is in consonance with the judgment in the case of Raj Kumar Vs. Bhagwat Singh, 1956 RD 434. This is a decision by a Full Bench of the Board of Revenue and it has held that the khasra can be corrected in proceedings under Section 28 of the U.P. Land Revenue Act by the Collector. Proceedings under Section 33 and 39 of this Act are for corrections in the annual registers or the khatauni alone and such correction can be made by the Collector or the Assistant Collector in charge of a sub-division (SDO) to whom the power has been delegated by Section 227 of the Act. In my opinion this decision lays down the correct law.
In view of the aforesaid discussion, it must necessarily be held that the proceedings under Section 33/39 of the U.P. Land Revenue Act, initiated by the petitioner, were clearly not maintainable.
It therefore, follows that the Board of Revenue, has rightly restored the entry and directed the parties to seek their remedy under the relevant sections of law.
The order therefore, calls for no interference.
Accordingly and in view of the above, this writ petition is dismissed.
Order Date :- 17.2.2016 Mayank