Heard Sri Govind Krishna, learned counsel for the petitioner, learned Standing Counsel appearing on behalf of respondents no.1 & 2 and Sri M.P. Sinha, learned counsel appearing for respondents no. 3 to 5.
Present petition arises out of proceedings initiated under Section 28 of the Land Revenue Act read with Section 27(3) of the U.P. Consolidation of Holdings Act, 1963. The application moved by the petitioner was rejected by the order dated 15.6.2002 passed by the Additional District Magistrate (Finance & Revenue), Ballia i.e. respondent no.2. The petitioner preferred a revision under Section 219 of the U.P. Land Revenue Act, 1901 ((hereinafter referred as 'LR Act') which was rejected by the Additional Commissioner (Ist) Azamgarh Division, Azamgarh vide order dated 31.3.2004.
The case of the petitioner is that an application dated 3.2.1999 was moved by her under Section 28 of the LR ACT and Section 27(3) of the U.P. Consolidation of Holdings Act, 1963(hereinafter referred as 'CH Act'). The claim of the petitioner was that plot no. 325/1 area 0.9 Decimal and 326 area 0.03 Decimal situate in Pindhara, Post Bansdih, District Ballia has been given new number in the consolidation proceedings held in the village being 240 (E) area 12 Decimal. The grievance raised by the petitioner is that in the new map prepared after consolidation of the village, the location of plot no. 240-E area 12 Decimal has been shown at a distance of 500 meter towards south of crossing of canal and road. The petitioner only mentioned for correction of map taking into consideration of the map prior to the consolidation proceedings initiated in the village.
Learned counsel for the petitioner informs that prior to moving of this application for correction of map in the year 1999, the Original Suit No. 790 of 1985 was filed by the petitioner for the relief of permanent prohibitory injunction. However, the petitioner did not pursue the said suit and it was dismissed on account of non-appearance on 28.10.1987. The respondent no. 3 having no right or title over the land in question, filed an objection before the respondent no.2. Learned counsel for the petitioner further submits that the Additional Commissioner and Tehsildar submitted their reports in favour of the petitioner and Tehsildar in his report has clearly stated that the corrections are to be made in the map on the basis of existing situation on the spot. The position of petitioner's plot has been wrongly shown in the map prepared after the consolidation. The Additional District Magistrate in its order dated 15.6.2002 has rejected the application moved by the petitioner only on the ground that the documents produced by the petitioner are insufficient to make corrections in the map as no chak map has been produced by the petitioner. The Additional District Magistrate further stated that the chak map is the only basis for correction in the map prepared after the consolidation and no correction can be made on the basis of the documents produced by the petitioner and that the petitioner has failed to establish her case and as such application is liable to be rejected.
Learned counsel for the petitioner states that the Additional District Magistrate has committed illegality in rejecting the application only on the ground of non-availability of chak map and the same could have been obtained from the record of office maintained by the revenue authorities.
He further submits that on the revision under Section 219 of the LR Act moved by the petitioner, the revisional court has recorded the finding of its own and concluded that there is no existence of plot no. 240(E) on the spot. It has further recorded that as per CH Form 2-Ka, the corrected plot no. 325/1 (new plot No. 240E) has found place as concrete road. There is no existence of plot no. 240-E and it cannot be shown in the map. It further concluded that in case such a proceeding is initiated, then the entire consolidation operation would become ineffective. In case, there is any mistake in the map, then it can be corrected in the next consolidation proceedings whenever initiated.
Learned counsel for the petitioner submits that the revisional court has acted illegally with material irregularity in exercise of its jurisdiction in as much as it has re-appreciated the evidences and recorded its own independent findings which could not have been done.
Learned counsel for respondents no.3, 4 & 5 raised objection that the present petition under Article 226 of the Constitution of India is not maintainable as it is preferred against the order passed in proceedings under the Land Revenue Act. In order to substantiate his argument, he relied upon decision of this Court dated 26.4.1990 in writ petition no.19557 of 1989 (Mohar Tiwari vs. Board of Revenue, U.P. Lucknow & others). He placed reliance upon paragraph 4 of the said judgment in submitting that for the order passed for correction of map etc., the title of the petitioner is not affected. The suit for cancellation of said order ought to have been filed in Civil Court or Revenue Court. He further submits that the old number of the petitioner's plots 325 area 0.09 Decimal and 326 area 0.03 Decimal have been alloted new number as 240-E in the consolidation proceeding. The Arazi no. 240-E has been allotted for road to PWD during consolidation proceedings since long. The remaining area of new plot no. 240-E was merged in footpath of the road and area 12 Decimal of the petitioner is shown 500 Meter away from the road at the south of pump canal. He further submits that the petitioner has no land near the road and in front of Arazi No. 240-E which is a road, the Arazi No. 241 is recorded in the name of Malti Devi @ Manti Devi. Reports of Additional Commissioner and Tehsildar are not relevant for correction of map, and other documents filed by the petitioner i.e. electricity bills etc. alongwith the writ petition are not relevant for the purpose of correction of map.
It may be noted that there are two counter affidavits filed on behalf of respondents no.4 & 5, the first one is dated 22.11.2004 filed by Malti Devi respondent no.4 and second one is dated 14.3.2012 by Malti Devi @ Manti Devi respondent no.5. In both the counter affidavits, same objections have been raised with regard to merits of the application for correction of map moved by the petitioner.
Learned counsel for the respondents lastly submitted that consolidation operations were initiated with the notification under section 4 issued on 31.5.1975 and ended vide notification under Section 52(1) of the CH Act issued on 10.8.1985. The application having been moved by the petitioner on 3.2.1999 i.e. after the consolidation operation was over is not maintainable at all and on this ground the writ petition deserves to be dismissed.
After having heard learned counsel for the parties and perusal of the record, it is clear that the application moved by the petitioner under Section 28 of LR Act read with Section 27(3) of CH Act was for correction of map prepared after the consolidation operation. Provisions of Section 28 of the LR Act and Section 27(3) of the CH Act are as under:
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."
"27(3) After the issue of notification under Section 52, the Collector shall, instead of the 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 combined reading of aforesaid provisions shows that the Collector is under obligation to maintain the map, field book and record of rights of each village in his district in accordance with the rules made under Section 234. Section 27(3) states that in maintenance of map and field book, the provision as contained in LR Act relating to maintenance and correction of such map, field book and record of rights shall mutatis mutandis apply. Section 28 of the LR Act states that the Collector shall correct any errors which are shown to have been made in such map or field book maintained by him.
It is well settled that the correction of map cannot be refused on the ground that consolidation operation had already been over. The Collector has power under Section 28 of the LR Act to correct clerical error or omission of the clerical error in the existing map. The proceedings under Section 28 of the LR Act are judicial in nature. The intention of the legislature appears to have prescribed the maintenance of map and its indexes, the field book by observation on the spot. The word used under Section 28 is "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 the summary proceeding. In view thereof, it is bounden duty of the Collector to correct any defect in the map, if it is found by him.
In the present case, the application was moved by the petitioner on 3.2.1999 for correction of map on the ground that the position of plot i.e. 240 (E) area 12 Decimal has incorrectly been shown in the map prepared after the consolidation operation. The application of the petitioner was rejected by the Additional District Magistrate only on the ground that in absence of the chak map, no correction can be made in the map prepared on the basis of documents produced by the petitioner. The said application has been rejected by the Additional District Magistrate on the ground that the petitioner has failed to produce the copy of the chak map. The view taken by the Additional District Magistrate in rejection of the application moved by the petitioner for correction of map is incorrect in as much as the chak map is the part of the revenue record maintained by the authorities. In the event, the chak map was not filed by the petitioner, it is incumbent upon the Additional District Magistrate to call for the record i.e. chak map and pass an appropriate order after looking to the merits of the application moved by the petitioner. The Additional District Magistrate in its order recorded that the basis of correction of final map prepared after the consolidation operation is the Chak map and the same has not been mentioned in the report submitted by the Tehsildar. It further recorded the finding that an effort has been made by the petitioner to get the corrections done by the concealment of the relevant document i.e. chak map. The said findings of Additional District Magistrate are totally perverse and cannot be sustained. In so far as the ground for rejection of application for correction of final map in absence of chak map is concerned, suffice is to say that ground taken by the Additional District Magistrate is technical in nature and the Additional District Magistrate has failed to discharge his duty in not calling for the record himself and pass an appropriate order on the merits of the application moved by the petitioner. In view thereof, the order of Additional District Magistrate dated 15.6.2002 cannot be sustained.
A perusal of the revisional order dated 31.3.2004 shows that the revisional court has gone a step ahead in recording its own independent finding and while recording the said finding he re-appreciated the evidence on record i.e. CH Form 2-Ka. The revisional court has committed illegality in taking a different view in the matter that there is no existence of plot no. 240-Ka, Kha, Ga, Gha and Anga(³) on the spot whereas the Additional District Magistrate in its order dated 15.6.2002 has observed that the plot no. 240-Ka, Kha, Ga, Gha, Anga(³), Cha & Chha are recorded in the name of different tenure holders and the road has been recorded in the special column. The revisional court has further committed error apparent on the face of record in concluding that in case the corrections are done in the final map prepared, it would render the entire consolidation operation ineffective and the mistake, if any, can be corrected only in the next consolidation proceedings. On this ground, the revision filed by the petitioner was rejected.
The power of revision as provided under Section 219 of the LR Act is peri materia with the Section 115 of the Code of Civil Procedure. Section 219 of LR Act is as follows:
"219 Revision:- (1) The Board of the Commissioner or the Additional Commissioner or the Collector or the Record Officer, or the Settlement Officer, may call for the record of any case decided or proceeding held by any Revenue Court subordinate to him in which no appeal lies or where an appeal lies but has not been preferred, for the purpose of satisfying himself as to the legality or propriety of the order passed or proceeding held and if such subordinate Revenue Court appears to have-
(a) exercise a jurisdiction not vested in it by law, or
(b) failed to exercise a jurisdiction so vested, or (C) acted in the exercise of jurisdiction illegally or with material irregularity.
The Board or the Commissioner or the Additional Commissioner or the Collector or the Record Officer, or the Settlement Officer, as the case may be, pass such order in the case as he thinks fit.
(2) If an application under this section has been moved by any person either to the Board, or to the Commissioner, or to the Additional Commissioner, or the Collector or to the Record Officer or to the Settlement Officer, no further application by the same person shall be entertained by any other of them."
It is settled law that revisional court can not re-appreciate the evidence and cannot record its own independent finding. Simply because another view of evidence may be taken, the revisional court has no power to interfere in its revisional jurisdiction. Moreover, in case, the other view was possible on the basis of material/evidence on record, it was incumbent upon the revisional court to relegate the matter to the Additional District Magistrate for consideration and deciding the mater afresh. In the present case, the revisional court has committed illegality in recording its own independent finding while upholding the order passed by the Additional District Magistrate.
In view of the above discussion, the order passed by the revisional court also can not be sustained.
Now second question raised by the respondents no. 3 to 5 is regarding maintainability of the present writ petition on the ground that the proceedings arose under the LR Act the the order passed by the Additional District Magistrate are summary in nature, no rights in holding of the petitioner are being affected, and as such the proper course of the petitioner is to go to the Civil Court or the revisional court for redressal of her grievance.
The petitioner relied upon the judgment of this Court in Mohar Tiwari(supra). The submission of the learned counsel for the respondents regarding maintainability of present writ petition cannot be sustained in view of the fact that the orders passed by the Additional District Magistrate as well as the revisional authority i.e. the Additional Commissioner are perverse and there is error apparent on the face of record. The grounds on which interference by the High Court is available in writ petition now is well established. 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."
As already observed, the decision taken by the respondent authorities suffer from manifest error of law apparent on the face of record as the application of the petitioner has been rejected on technical ground, the writ petition is maintainable.
As far as the question raised by the petitioner with regard to maintainability of the application moved under Section 28 of the Act by the petitioner for correction of the map after the consolidation operations were over in the village and its notification under Section 52 issued on 10.8.1985 is concerned, it is well settled that the power and scope of the Collector under Section 28 of the Act to make corrections in the map is confined to the clerical errors in the existing map after observation on the spot. The combined reading of provisions of Section 28 of the LR Act and Section 27(3) of CH Act clearly shows that after the map is prepared and 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 in the summary proceedings under section 28 of the Act. The rectification of mistake/corrections can be done at any stage, and in view thereof, the objection of the respondents that the application under Section 28 of LR Act read with Section 27(3) of CH Act for correction of map moved by the petitioner is not maintainable after the consolidation operations are over, is unsustainable.
In view of the above discussions, the impugned order dated 15.6.2002 passed by the Additional District Magistrate(Finance & Revenue) Ballia and order dated 31.3.2004 passed by the Additional Commissioner(Ist), Azamgarh Division, Azamgarh are hereby quashed.
The writ petition is allowed.
The matter is remanded back to the Collector, Azamgarh with a direction to consider and decide the application of the petitioner moved under Section 28 of LR Act read with Section 27(3) of the CH Act for correction of map on merits in accordance with law. The Collector shall pass a fresh order within a period of six months from the date a certified copy of this order is filed before him.
In view of the fact that interim order dated 17.5.2004 was passed by this Court directing that the status quo with regard to possession over the land in dispute existing on the said date shall be maintained, it is directed that the status quo with regard to possession over the land in dispute as existing on 17.5.2004 shall be maintained till the application is decided by the Collector within the stipulated time.
Order Date :- 1.5.2012 P.P.