RESERVED ON 01.12.2017 DELIVERED ON 27.07.2018 Case :- WRIT - C No. - 29140 of 2015 Petitioner :- Ram Pratap And 3 Others Respondent :- Addl. Commissioner Judicial Ist And 12 Others Counsel for Petitioner :- Suresh Kumar Srivastava, Amish Srivastava Counsel for Respondent :- C.S.C., Manoj Kumar Yadav, Sudarshan Singh
Hon'ble Mrs. Sangeeta Chandra,J.
1. This writ petition has been filed praying for quashing of the order dated 23.10.2013 passed by the Respondent No. 1, Additional Commissioner (Judicial) – Ist, Varanasi Division, Varanasi rejecting the revision of the petitioners against the order dated 07.01.2011 passed by A.D.M. (Finance and Revenue), Jaunpur and also the order dated 07.01.2011 by which the A.D.M. has allowed the Correction Application moved under Section 28 of the U.P. Land Revenue Act by the private respondents No. 4 to 13.
2. It is the case of the petitioner as stated in the writ petition that the Respondents No. 4 to 13 filed an application under Section 28 of the U.P. Land Revenue Act for correction of the consolidation settlement map on the ground that plot No. 2248 is shown in the Khatauni/Record of Rights as having an area of 1.12 decimal but in the map, it is shown having an area of 0.99 decimal. On the the other hand, the adjoining plot No. 2205 (belonging to the petitioners) is shown in the map having more area than the area mentioned in the Khatauni. The Respondent No. 2 called for a report from Tehsildar, Kerakat, District Jaunpur, who on 28.03.1992 submitted a report without giving any notice to the petitioners and without any physical verification of the boundaries by on the spot inspection. This report only mentioned the Plot No. 2248 and Plot No. 2205. It did not take into account the surrounding plots of these two plot numbers and the area of such plots being shown more in the map than what was mentioned in the Record of Rights.
3. The petitioners challenged the ex-parte report by filing their objection on 22.01.1997. In the objections the petitioners mentioned that Plot No. 2248 has been carved out of old Plot No. 2478 which in consolidation operations was subdivided into plot No. 2478/1 having an area of 1.12 and 2478/2 having an area of 16 decimals. Plot No. 2478/1 had been kept out of consolidation. Only Plot No. 2478/2 was valued and the same was allotted in the Chak of petitioners. The petitioners filed evidence like CH Form – 41 and 45. They also submitted that Plot No. 2248 was surrounded by Plot Nos. 2204, 2255, 2256, 2257 and 2258, which had more area shown in the map than the area shown in the Record of Rights and if the Tehsildar had carried out on the spot inspection of boundaries and then prepared a report instead of basing the same only on the approved/pustikrit map of the village, then, the correct position on the ground would have been revealed. The objection of the petitioners was rejected by the Respondent No. 2 on 07.01.2011 without considering the relevant procedure prescribed in law for correction of map and making of report by the Tehsildar.
4. Aggrieved by the order dated 07.01.2011 the petitioners filed a revision before the Respondent No. 1. The Respondent No. 1 initially granted an interim order for maintaining the status quo with regard to the possession. Later on, the Respondent No. 1 rejected the revision on 23.10.2013. In dismissing the revision the Respondent No. 1 disregarded the specific grounds taken by the petitioners in their written arguments as well as in the oral arguments made by their counsel, that the procedure prescribed in Chapter – VI of the Rules framed under the U.P. Land Revenue Act, 1901 for correction of the map was not followed. No on the spot inspection was done. The Tehsildar placed reliance upon the approved/pushtikrit map and the alleged difference of the said map from the map prepared in the consolidation settlement.
5. The counsel for the petitioners has argued that the private respondent Nos. 4 to 13 had moved a correction Application under Section 28 of the U.P. Land Revenue Act on 18.02.1992 with respect to the Plot No. 2248 which according to them should have been shown as 1.12 decimal but was incorrectly shown in the map as 0.99 decimal and it was alleged that the adjoining plot No. 2205 of the petitioners, namely, Ram Pratap, Shiv Pratap, Rama Shanker and Shiv Shanker sons of Sankata had been shown as increased in the map. Tehsildar, Kerakat submitted a report on 28.03.1992 without following the procedure and without actually measuring and without on spot inspection of the plots in question and in a completely exparte manner. He had verified the pustikrit/corrected map of the plots in question and compared it with the map prepared under the consolidation operations and he had found certain discrepancies and submitted a report that the facts mentioned in the Application moved under Section 28 of the U.P. Land Revenue Act by the private respondents appeared to be correct and he made a recommendation for correction of the map accordingly.
6. The petitioners thereafter filed a specific objection to the said report of the Tehsildar, Kerakat in which they said that the report itself was prepared exparte and without following the procedure prescribed under the Act and the Rules. No on spot inspection was carried out. Not only the procedure followed by the Tehsildar in submitting the report was objected to, but also the findings recorded by the Tehsildar, Kerakat with regard to the wrong or incorrect measurements of the plot No. 2248 was challenged.
7. The Respondent No. 2, however, accepted the report of the Tehsildar and rejected the objections of the petitioners and directed that the consolidation map be corrected. This order dated 07.01.2011 according to the petitioners was completely arbitrary and therefore, aggrieved by it the petitioners filed a Revision before the Respondent No. 1.
8. The counsel for the petitioners has pointed out the various grounds taken in the Revision filed before the Respondent No. 1 and thereafter, has read out the order impugned dated 23.10.2013 by which the Revision Application of the petitioners has been rejected. It is his contention that when specific ground was taken in the Revision that the procedure prescribed in the U.P. L.R. Act and Rules framed thereunder had not been followed by the Respondent No. 2, then, at least there should have been some mention of the Rules applicable for deciding the Correction Application in the order impugned.
9. It has been argued by the learned counsel for the petitioners that from a perusal of the order passed in revision, it is evident that the same facts that have been mentioned in the order passed by the Respondent No. 2 have been again repeated although in a different language.
10. Specific grounds raised in the Revision have not been adverted to at all in the order dated 23.10.2013.
11. The learned counsel for the petitioners has also referred to Section 28 of the U.P. Land Revenue Act before this Court. Section 28 of the Act is being quoted herein below:-
"28. Maintenance of Map and Field-book.– The Collector
shall in accordance with rules made under Section 234, maintain a map and field-book of each village in his district and shall cause annually, or at such longer intervals as the State Government may prescribe, to be recorded therein all changes in the boundaries of each village or field and shall correct any errors which are shown to have been made in such map or field-book."
12. The Rules made under Section 234 of the U.P. Land Revenue Act have also been adverted to during the course of the argument by the learned counsel for the petitioners more specifically Chapter - VI relating to map correction. Rule No. 44 has been specifically read out and which is being quoted herein below:-
"44. (iv) Method of correction.– The Lekhpal will first go round the boundary of the village to find out : (1) whether all the trijunction and other boundary marks, which define boundaries, do exist on the spot at the proper places and are shown in the map correctly; and (2) whether the boundary as shown in the map generally tallies with the position on the spot. If he finds any discrepancy he will report about it to the Field Inspector, who will examine the position with the help of the maps of the neighbouring villages and report to the Record Officer for prompt necessary action under Section 50, U.P. Land Revenue Act. All cases in which the areas of one village are shown in the map of another village due to gaps, overlapping or otherwise will receive attention at this stage."
13. The counsel for the petitioner has also adverted to Section 27 Sub Clause - 3 of the Consolidation of Holdings Act and has argued that under Sub Clause - 3 of Section 27 of the Consolidation of Holdings Act the Collector shall maintain the map, field book and records of rights prepared under the provisions of the Consolidation of Holdings Act but at the same time with regard to the maintenance and correction of map, field book and records of rights the relevant provisions of the U.P. Land Revenue Act, 1901 shall apply mutatis mutandis. The necessary correction in this case would be the replacement of word 'village' with the replacement of word 'plot', where the Correction Applications with respect to plots are moved by individual tenure holders.
14. It is the case of the counsel for petitioners that from a perusal of the Rules applicable for correction of maps and from perusal of the report submitted by the Tehsildar dated 28.03.1992 relied upon by the Respondent No. 2 and Respondent No. 1 respectively, in the two orders impugned in this writ petition, it is evident that the procedure was not followed at all. No on the spot inspection was done. Moreover, the Principles of Natural Justice were not followed as the petitioners were never granted any opportunity by the Tehsildar before submitting his report.
15. The learned counsel for the private respondents has relied upon his counter affidavit to state that for the same dispute as is being raised before this Court with regard to the plot No. 2248 and plot No. 2205, the petitioners had filed O.S. No. 728 of 1994: Shiv Shanker and others Vs. Uday Narain and others where their Application for temporary injunction had been rejected by the learned Court below and he has read out in detail the order passed by the learned Additional Civil Judge (Junior Division) - 5th, Jaunpur on 27.11.1999 rejecting the Application for temporary injunction moved by the plaintiffs therein.
16. The learned counsel for respondent has also relied upon the Commission report submitted by Amin dated 03.02.1994 and the map of the plots in question relating to the dispute raised before the Civil Judge (Junior Division), Jaunpur prepared by Amin and submitted before the Court concerned in O.S. No. 728 of 1994.
17. It is the case of the respondents that Chapter - VI of Rules made under Section 234 of the U.P. Land Revenue Act are inapplicable as they were omitted by the U.P. Act No. 1 of 1951 i.e.
U.P. ZA and LR Act.
18. From a perusal of the U.P.Z.A. & L.R. Act it is evident that only certain portions of the U.P. Land Revenue Act as mentioned in the List - 2 of Schedule - III under Section 239 of U.P.Z.A. & L.R. Act have been amended/omitted. Chapter - VI of the U.P. L.R. Rules referred to by the counsel for the petitioners has not been mentioned in the List - 2 of the Schedule - III as aforesaid.
19. In Schedule – III List – 2 the amendments made in the U.P. Land Revenue Act by the U.P.Z.A. & L.R. Act are mentioned under Section 28 only thus:-
“In line 6, the comma after the word “village” and the word “mahal” between the words “village” and “or” shall be deleted.”
20. This only means that Section 28 of the U.P. Land Revenue Act initially included the word 'Mahal' after the word 'village' which has been deleted after abolition of Zamindari as no 'Mahal' exists after the U.P.Z.A. & L.R. Act came into force. For correction of map elaborate Rules exist as framed under Section 234 of the U.P. Land Revenue Act and the U.P. Land Records Manual. The procedure prescribed under Chapter – VI of the Rules framed under the U.P. Land Revenue Act relate to map correction and Rule 44 requires the Lekhpal to first go around the boundaries of the village and find out all the trijunctions and other boundary marks which define the boundaries and to ascertain whether such boundary marks do exist on the spot at the appropriate places and are shown in the map correctly. If he finds any discrepancy, he will report it to the Field Inspector who will examine the position and report to the Record Officer for prompt necessary action. Not only the village map but also the field maps are corrected in this manner by making on the spot inspection. For on the spot inspection to be carried out, it is but natural that the persons in possession of the disputed plots are given notice and heard.
21. I have perused the order passed by the Respondent No. 2 and I find that despite objections being raised by the petitioners to the effect that no on the spot inspection was carried out and no notice was served upon the petitioners before the report was submitted by the Tehsildar to the Chief Revenue Officer/Additional District Magistrate (F & R), Jaunpur, such objection has not been dealt with by referring to the records sent along with the report of the Tehsildar, and giving a finding thereon that notice was issued by Tehsildar on a particular date for on-spot inspection and such notice was served on the petitioners/objectors. There is mention only of the fact that objections were raised by the petitioners but the Respondent No. 2 has examined the approved map and found that the Plot No. 2205 “juts out” into the boundary of Plot No. 2248 in the settlement map. Whereas, in the approved map the boundary is shown to be straight. The Respondent No. 2 in the order impugned has also not taken into account the allegation of the petitioners that the surrounding plots of Plot No. 2248 had more area shown in the map than the area recorded in the Khatauni.
22. In the revision filed by the petitioners similarly and in the written arguments a specific ground was raised in challenge to the order dated 07.01.2011 to the effect that the procedure prescribed for correction of map was not followed by the Tehsildar and the Additional Collector/ADM (F & R). The records relating to the case in the Lower Court were not examined and no finding has been recorded by the Revisional Authority regarding the service of notice on the petitioners and on the spot inspection by the Tehsildar before submitting the report.
23. The orders impugned are liable to be set aside for not dealing with the specific objections raised by the petitioners regarding the material irregularity in the procedure followed by the Tehsildar for proposing the corrections in the settlement map.
24. The orders impugned are also liable to be set aside in view of the decisions of this Court and the Board of Revenue. This Court in Mohd. Raja Vs. Board of Revenue, 1973 AWR 621 has held that a map prepared by the consolidation authorities is not necessarily final and conclusive and a map incorrectly drawn up cannot be treated as final and conclusive and can be corrected under Section 28 of the Land Revenue Act. This judgment was reiterated in Gafoor Vs. Additional Commissioner by a Division Bench of this Court reported in 1979 Alld. LJ 331. This Court observed that the Collector in exercise of power under Section 28 of the Land Revenue Act can correct a map in suitable cases notwithstanding that the map has been prepared by the consolidation authorities who have adjudicated the rights and title of the parties. In case there is any discrepancy in the map and final document (Pustikrit map) the same can be corrected in a proceeding under Section 28 of the Land Revenue Act provided the right, interest and title of the party which have been finally adjudicated or become final are not involved. Even after a notification under Section 52 of the U.P. Consolidation of Holdings Act was published, an application under Section 28 can be entertained where the petitioner tenders the evidence that the map was not in conformity with the entries that were made in CH Form - 45. Similar views have been expressed by another Division Bench of this Court in Ali Khan Vs. Ram Prasad and another: 1981 Alld. LJ 271.
25. However, in Har Prasad Vs. Natho, 1992 RD 134 (Board of Revenue) it has been observed that when an application has been moved for correction of map since the relief entails change in the figure of a map in derogation of a tenant's rights finally decided in the consolidation proceedings, the Collector has a duty to interrogate and examine a survey expert with sharp skills in area extraction from a map in the Collector's Court to show with precision how much area is actually deficient which the applicant is entitled to. The Collector has then to evaluate and decide accordingly. The Collector is under no obligation to collect evidence for the applicant by sending his application for inquiry and report to the Sub Divisional officer/Tehsildar/Consolidation Officer. The proceeding being essentially judicial the Collector cannot delegate to an Assistant Collector, Ist Class the power to correct the map nor he can delegate the power to Sub Divisional Officer/Tehsildar/Supervisor Kanoongo to enquire, hear the parties and submit an inquiry report on the subject. This judgment of a member of the Board of Revenue relies upon a Full Bench decision of the Board of Revenue reported in 1977 RD 234: Suraj Narain Vs. Bhawani Prasad.
26. Although in a Full Bench decision rendered by the Board of Revenue in Vijay Pratap Singh Vs. Sukh Nandan Singh, 1992 RD 447, the Board of Revenue has held that Section 28 of the Land Revenue Act has to do with the clerical error in the figure of the map, it relates to correcting of line in the figure of a map in court room when on extraction, area is found less then is noted in the Record of Rights and that it has nothing to do with the ground situation and no inquiry on the spot is necessary, this Court in Smt. Surji Devi Vs. Additional Commissioner (Ist) and others: (2012) 7 ADJ 671 has considered Section 28 of the U.P. Land Revenue Act and also Section 27 (3) of the Consolidation of Holdings Act. It has reiterated the earlier law that Collector has power to correct a map prepared in consolidation proceedings under Section 28 of the Land Revenue Act. This Court has held that intention of the Legislature appears to have prescribed the maintenance of map and its indexes, field-book etc. by observation on the spot. The words used under Section 28 “shown” and not “proved”. Thus, in view of the said legal position only the previous error shown on the spot are to be corrected in summary proceedings. This Court also rejected the respondents' objection regarding maintainability of the writ petition against an order passed by Additional Collector and Commissioner rejecting his application under Section 28 of the Land Revenue Act and Section 219 thereof by observing that in Mohar Tiwari Vs. Board of Revenue this Court in Writ Petition No. 19557 of 1989 decided on 26.04.1990 had merely observed that since title of the petitioner was not affected in an order passed for correction of map, a suit for cancellation of the order ought to have been filed in Civil Court or the Revenue Court.
27. This Court observed in Smt. Surji Devi (supra) that the grounds on which interference by the High Court is available in the writ petition are now well settled. It further observed in paragraph – 20 thus:-
“The Apex Court in M/s. Parry & Co. Ltd. Vs. P.C. Pal, Judge of the Second Industrial Tribunal, Calcutta & others reported in AIR 1970 SC 1334 while considering the earlier judgment in Basappa v. Nagappa AIR 1954 SC 440 has observed in paragraph 11 of the said judgment, the extract of which is quoted below:-
"a writ of certiorari is generally granted when a Court has acted without or in excess of its jurisdiction. It is available in those cases where a tribunal, though competent to enter upon an enquiry, acts in flagrant disregard of the rules of procedure or violates the principles of natural justice where no particular procedure is prescribed. But a mere wrong decision cannot be corrected by a writ or certiorari as that would be using it as the cloak of an appeal in disguise but a manifest error apparent on the face of the proceedings based on a clear ignorance or disregard of the provisions of law or absence of or excess of jurisdiction, when shown, can be so corrected."
28. In the case of petitioners herein they are aggrieved by an order passed by the Additional Collector on the basis of Tehsildar's report, which it was their specific case, the Tehsildar had prepared without visiting the spot in question. The judgment rendered by this Court in Smt. Surji Devi (supra) applies to the facts of the case as this Court has held in paragraph – 22 that a combined reading of the provisions of Section 28 of the Land Revenue Act and Section 27 (3) of the Consolidation of Holdings Act clearly shows that after the map is prepared, it is maintained by the Collector. In case, any error is pointed out which is an error shown on the spot, the same can be corrected and the Collector is bound to make necessary corrections if an application is so moved.
29. The orders impugned dated 07.01.2011 passed by Additional District Magistrate (F & R), Jaunpur and 23.10.2013 passed by the Additional Commissioner (Jud.), Varanasi Division, Varanasi are set aside.
30. The matter is remanded to the Respondent No. 2 to summon a Survey Expert and pass order afresh after following the due procedure prescribed under the Rules framed under the U.P. Land Revenue Act for correction of the map.
31. Since the matter is old, the Respondent No. 2 shall ensure service of notice on all concerned including the owners of surrounding plots as mentioned in the objections raised by the petitioners and after due comparison of areas and due consideration of objections, if any, filed by the concerned parties, pass a reasoned and speaking order within a period of four months from the date of production of a certified copy of this order.
32. The writ petition is allowed to this extent.
Order Date :- 27.7.2018 LBY