Court No. - 9
Case :- WRIT - B No. - 10 of 2019 Petitioner :- Arjun Respondent :- State Of U.P. And 15 Others Counsel for Petitioner :- Abhishe Pandey Counsel for Respondent :- C.S.C.,Ramesh Kumar Singh
Hon'ble Anjani Kumar Mishra,J.
Heard learned counsel for the petitioner, Shri Virendra Kumar, Advocate for respondent nos.5,6,7,9 and 10 and Shri Ramesh Kumar Singh, who has filed caveat on behalf of respondent nos.4,8,11,12,13 and 15.
Thus only respondent no.14 in this writ petition is not represented and counsel for the Gaon Sabha has not appeared. He also appears to be only a formal party.
However, the submission of counsel for the petitioner is that respondent nos. 4 to 6 are the contesting respondents and it is on their application under Section 42A of the U.P. Consolidation of Holdings Act, which was filed by the aforesaid three respondents, wherefrom this writ petition arises. Hence, even respondent no.15 is also a formal party.
The contention of counsel for the petitioner is that the aforesaid respondents 4 to 6 filed an application under Section 42A of the U.P. Consolidation of Holdings Act in 2017, long after close of consolidation operations by issuance of a notification under Section 52 of the Act, which was issued in the year 1978. On the application being filed, a report was obtained and this report was accepted, exparte as is recorded in the order itself.
It is also submitted that the application that was filed purporting to be one for correction of the map. However, in the garb of this application, reallocation of chaks has been effected. In any case, such an order was beyond the scope of the proceedings under Section 42A of the Act, which is only for correction of clerical or arithmetical errors. These proceedings cannot be utilized for reallocation or modifications of chaks allotted during the consolidation operations.
Besides, once a notification under Section 52 of the Act had been issued and the consolidation operations had to be closed, any correction in the map could have been resorted to only under the provisions of the U.P. Land Revenue Act or under the Provisions of the U.P. Revenue Code 2006. This is so in view of sub-section 3 of section 27 of the U.P. Consolidation of Holdings Act.
Counsel appearing for the respondents had supported the impugned orders. It is their case that since there was a mistake in the map, the same has rightly been corrected.
They have also referred to the findings returned by the Deputy Director of Consolidation while dismissing the revision filed by the petitioner, wherein it has been observed that in case, the order passed by the Consolidation Officer on the application under Section 42A of the Act is set aside on technicalities, it would result in a poultry form belonging to the respondents being allotted in the chak of the revisionist petitioner.
It is, therefore, contended that by the orders impugned, substantial justice has been effected between the parties and for this reason, this Court should not interfere, especially in exercise of its equity jurisdiction, under Article 226 of the Constitution of India.
I have considered the submissions made by the parties and perused the record.
Although, it is the case of the respondents that mere correction in the map has been resorted to by the order passed by the Consolidation Officer and therefore, substantial justice has been done between the parties, find no substance at all in this submission.
From the perusal of the impugned orders, it clearly emerges that on the application under Section 42A being filed, a report was obtained on its basis, a correction table was also prepared. Preparation of a correction table necessarily means that certain modifications in the chaks allotted were being resorted to. The impugned orders therefore, amount to a chak allotment and cannot be said to be orders correcting a clerical or arithmetical error.
It is settled law that while dealing with an application under Section 42A of the U.P. Consolidation of Holdings Act, the consolidation authorities cannot resort to chak allotment proceedings in the garb of such an application. The order passed by the Consolidation Officer was therefore, wholly without jurisdiction.
For the same reason, the Deputy Director of Consolidation has committed manifest illegality in refusing to interfere with this order and by glossing over the illegality on the ground of substantial justice having been done between the parties.
It would also be relevant to note that the Deputy Director of Consolidation while exercising jurisdiction under Section 48A of the Act is exercising revisional jurisdiction conferred upon him by the provisions contained in Section 48 itself. This Section 48 does not confer any equity jurisdiction upon the Deputy Director of Consolidation. He therefore, is necessarily bound by law to exercise only such jurisdiction, which is vested in him. The Deputy Director of Consolidation appears to have felt that he was also competent to exercise jurisdiction conferred by Article 226 of the Constitution of India. Either the Deputy Director of Consolidation who passed the impugned revisional order is totally ignorant by law or has passed the order for extraneous consideration, as was manifestly done by the Consolidation Officer.
However, both the impugned orders are patently illegal and must necessarily be set aside.
However, before parting with the case, it would also be relevant to take note of the provisions contained in Sub-section 3 of Section 27 of the Act which, provision is extracted below.
" Section 27(3) After the issue of notification under Section 52, the Collector shall, instead of map, field-book and record-of-rights previously maintained by him, maintain the map, field-book and record of rights prepared in accordance with the provisions of sub-section(1) and the provisions of the U.P. Land Revenue Act, 1901, relating to the maintenance and correction of such map, field-book and record-of-rights shall mutatis mutandis apply."
A bare perusal of the provision clearly shows that the power conferred by Section 42A of the Act cannot be exercised by the consolidation authorities, once the village in question ceases to be under consolidation operations consequent to issuance of a notification under Section 52 of the Act.
For the same reason, the application under Section 42A of the Act was not maintainable and since the orders passed thereon have already been held to be liable to be quashed, this Court considers it expedient also to quash the application itself, that was filed by respondents 4 to 6.
Accordingly and for the reasons given above, this writ petition is allowed.
The impugned orders dated17.12.2018 and 19.01.2018 passed by the respondents 2 and 3 respectively are hereby set aside.This Court also exercising powers conferred by Article 226 of the Constitution of India, hereby quashes the application under Section 42A of the Act, filed by the respondents 4 to 6.
This Court further directs that the papers relating to this case, along with a certified copy of this order, be placed before the Consolidation Commissioner within a period of two weeks from today. The Consolidation Commissioner shall examine the matter and institute an enquiry against the Consolidation Officer and the Deputy Director of Consolidation, who have passed the orders impugned in this writ petition.
His report upon the enquiry directed above shall be filed before this Court within a period of six weeks from today and for this purpose, this writ petition shall be deemed to be pending.
List this matter on 28.02.2019 for perusal of the report that is to be filed by the Consolidation Commissioner and, if required, for passing further orders, in that regard.
Order Date :- 22.1.2019 RKM