Hon'ble Yogesh Chandra Gupta,J.
By means of the present petition, the petitioner has sought a writ in the nature of certiorari for quashing the notice dated 9.9.1991 and the letter dated 5.12.1991 issued by the Special Land Acquisition Officer where by the petitioner has been directed to pay a sum of Rs.6,64,800/- and the said amount has been sought to be recovered as arrears of land revenue.
The facts of the case lie in a narrow compass:
The dispute relates to plot No.1206 situate in Village Markanpur Tehsil Dadri District Ghaziabad.
The said plot measuring 6 bigha 1 biswa was purchased by the father of the petitioner by means of three sale deeds. The said plot was acquired under the land acquisition Act by issuing notification under sections 4 & 6 thereof. Not only this, the compensation amount was determined and paid to the petitioner's father in pursuance of the award dated 1.2.1991 passed by the Special Land Acquisition Officer, Noida, Ghaziabad. Thereafter, it appears that some complaint was received by the Special Land Acquisition Officer that the amount of award has been wrongly disbursed to the petitioner's father. The Special Land Acquisition Officer after making certain inquiries reached to the conclusion that the said plot was recorded as Talab in the revenue record and ordered the father of the petitioner to refund the compensation amount amounting to Rs.6,64800/- through the letter dated 9.9.1991. He on 5.12.1991 in exercise of power under section 13- A of the Land Acquisition Act read with section 6(4) of Public Money 2 Recovery Act has issued a recovery certificate for realization of the aforesaid amount as arrears of land revenue. Challenging these two orders and the citation, the present writ petition has been filed.
A counter affidavit has been filed on behalf of the State Government on the pleas inter alia that the father of the petitioner by playing fraud has got his name recorded over the plot in question. The said plot is recorded as 'Johar' (Talab) in 1358 Fasli. Since it is recorded as Johar in the revenue record, the property in dispute vested in the Gaon Sabha which came to be recorded in the name of Raghuvir S/o Bhartu. There being no order in the revenue record relating to the 1358 Fasli, the name of the Raghuvir was recorded in 1359 under category 10-C, which is evident from the report of the Lekh Pal. The further case is that without there being any order, entry of Sirdar was wrongly made in the revenue record relating to 1361 Fasli. In substance, by means of the counter affidavit, the State Government has sought to challenge the tile of the petitioner.
In the rejoinder affidavit, the petitioner has reiterated his stand as taken in the writ petition.
Shri S.C.Verma, learned counsel for the petitioner submits that the impugned orders and the recovery citation are totally without jurisdiction. Elaborating the arguments he submits that the name of the petitioner's father was recorded in the revenue record at the relevant point of time when the land acquisition proceedings were initiated under the Act. The compensation was paid to the petitioner's father and thereafter if any dispute regarding title is raised by anybody, the remedy is to invoke Section 30 of the Land Acquisition Act and to refer the matter to the Civil Court. In other words, he submits that the Special Land Acquisition Officer could not have undertaken the exercise of determination of question of title of the petitioner's father. In any view of the matter, he submits that the order cannot be passed under section 13-A of the Land Acquisition Act as under the said provision, a clerical or arithmetical mistake can be corrected. Whether the name of the father of the petitioner was correctly recorded in the revenue record or 3 not is a debatable question and such an error could not have been corrected by invoking section 13-A of the Act.
In contra, the learned standing counsel submits that the name of the petitioner's father was wrongly recorded in the revenue record and as such there is no any illegality in the impugned orders.
Considered the respective submissions of the counsel for the parties,.
The petitioner's father purchased the plot in question by means of registered sale deed dated 17.6.1982. Thereafter the notification under section 4 of the Land Acquisition Act dated 10.3.1988 was published in the Gazette on 15.3.1988 and in the two newspaper on 1.4.1988. The said notification was published on 9.4.1988 and 17.12.1990. The notification under section 6 dated 8.7.1988 was published in the gazette on 7.7.1988. The award determining the amount of compensation was made on 1.2.1991. In pursuance of the award of the Special Land Acquisition Officer, it is not in dispute that the petitioner's father was paid the compensation.
This being so, we are of the opinion that it was no longer open to the Special Land Acquisition Officer to open the question of of title of the plot in dispute. If there was any dispute with regard to the title of the land in question, the remedy was to approach the District Magistrate under section 30 of the Act for making a reference to the Civil Court.
Learned standing counsel could not place any provision which may enable the Special Land Acquisition Officer to investigate or enter into the question of title of a recorded tenure holder. Along with the writ petition, number of documents have been annexed by the petitioner to show his title over the land in question. On a bare perusal of them, we are satisfied that at the most it can be a case of wrong recording of name of the petitioner's father over the land in question, but by no stretch of imagination , it can be said that it is a case of fraud. The name of the petitioner's father was recorded much before the commencement of the land acquisition proceedings. It cannot be said that the name of the petitioner's father was recorded in the revenue record just to get the compensation of the land in question.
Apart from the above, we find that the order passed by the Special Land Acquisition Officer impugned in the present writ petition is cryptic.
Only this much has been mentioned that on an inquiry, he found that the land in dispute was recorded as 'Johar' and as such it stands vested in the Gaon Sabha. It does not disclose with whom the inquiry was. It does not also mention any document on the basis of which the above conclusion has been drawn by the Special Land Acquisition Officer.
A bare perusal of the impugned order would show that the said order has been passed by the Special Land Acquisition Officer in exercise of power under section 13-A of the Land Acquisition Act. Section 13-A of the Act relates to correction of clerical errors, etc. It empowers the Collector to correct any clerical or arithmetical mistakes in the award or errors arising therein either on his own motion or on the application of any person interested or a local authority. Its sub section (3) provides that where any excess amount is proved to have been paid to any person as a result of the correction, the excess amount so paid shall be liable to be refunded.
We are of the opinion that this is not a case of correction of clerical errors. It is not the case of Special Land Acquisition Officer that at the time of acquisition proceedings or before its commencement, the name of the petitioner's father was not recorded over the land in question. The said provision does not authorize the District Magistrate, to hold that the long stand entry in the revenue is incorrect. Nor it empowers the District Magistrate to decide the intricate question of title. The errors sought to be corrected by the impugned order is neither a clerical nor arithmetical mistakes. 'Clerical or arithmetical mistakes' do connote a specific thing i.e a human error in making calculation. In the guise of correction of clerical or arithmetical mistakes, question of title cannot be gone into nor the correctness of revenue entry can be doubted.
Even otherwise also, we are of the opinion that the Special Land Acquisition Officer had no jurisdiction to undertake any such inquiry which he has undertaken.
The upshot of the above discussion is that the impugned order dated 9.9.1991 passed by the Special Land Acquisition Officer cannot be allowed to stand, being totally without jurisdiction and beyond the purview of power, therefore, the order dated 5.12.1991 ordering that the compensation amount may be recovered under Public Money Recovery Act is also not sustainable.
In the result, the writ petition succeeds and is allowed. The impugned order dated 9.9.1991 and 5.12.1991 are hereby quashed. No order as to costs.
(Prakash Krishna,J) (Y.C.Gupta,J) Order Date :- 13.1.2010 IB