Allahabad High Court
Ram Narain And Ors. vs D.D.C. District Barabanki And Ors. on 3 March, 2020
Equivalent citations: AIRONLINE 2020 ALL 642
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 25 Case :- CONSOLIDATION No. - 6010 of 2020 Petitioner :- Ram Narain And Ors. Respondent :- D.D.C. District Barabanki And Ors. Counsel for Petitioner :- Ram Kumar Singh,Vinay Kumar Singh Counsel for Respondent :- C.S.C. Hon'ble Mrs. Sangeeta Chandra,J.
1. This petition has been filed praying for quashing of the order dated 30.07.2019 passed by the Deputy Director of Consolidation Barabanki in Reference No. 415: Ram Narain & Others Vs. Tej Bahadur and others, under Section 48(3) of the U.P. Consolidation of Holdings Act and also for quashing of the order dated 30.01.2016 passed in Case No.178/403/219/133/2016: Lauhar Prasad and others Vs. Tej Bahadur and others, under Section 28 of the U.P. Land Revenue Act.
2. It has been submitted by learned counsel for the petitioners that the father of the petitioner nos. 1 and 2 was the original tenure holder of the land of Gata No.467/1277 (Old No.255/1) area 5-7-0 situated at village Mahulara, Pargana Suryapur, Tehsil Ram Sanehi Ghat, District Barabanki. The father of petitioner nos.1 and 2, namely, Molhe executed a sale deed on 30.01.1992 in favour of respondent nos.3 to 6 as well as one Mansa Ram- the husband of respondent no.7, by means of which he transferred an area of 8 Biswa only to the private respondents.
On the basis of the such registered sale deed, mutation orders were passed on 30.12.1993. It is evident from the sale deed that the land which was sold out by the father of the petitioner was the northern part of the larger plot no.255/1 and the remaining plot had its opening on the Bhitariya-Haidergarh road. Only a small opening on the Bhitariya road was given to the purchasers and the major part of old No.255/1 remained with the father of the petitioners. The parties concerned remained in possession as per the sale deed dated 30.12.1993. On the old plot no.255/1, the father of the petitioners was provided chak no.333 and it was also shown in C.H. Form No.23. However without there being any order passed by any consolidation authorities, a new plot no.462/1277 was carved out fraudulently at the behest of the respondent nos.3 to 7. By preparing the final record, the Consolidation Authorities created new numbers i.e. 255/1/1 and 255/1/2, without there being any order passed by any competent authority. On the aforesaid plot no.255/1/1, a new number 462/1277 was marked through manipulation. C.H. Form 41 and 42 was thereafter prepared.
3. In the year 2013, the respondent nos.3 to 7 tried to take possession of the land towards the road side, then it came to the knowledge of the petitioners that such manipulation had been created in the records. The petitioners initially filed a case under Section 28 of the U.P. Land Revenue Act, before the respondent no.2 for correction of map, however the said case was rejected on 30.01.2016 by saying that only correction in map of existing boundaries can be done under Section 28 of the Act and new boundaries cannot be marked under the said Section.
4. The petitioners thereafter filed a Revision on 14.05.2016 under Section 48(3) of the U.P. Land Revenue Act challenging the order dated 30.01.2016. A report was called for by the respondent no.1, which was submitted by the Assistant Consolidation Officer stating that the old Gata No.255/1 had been kept out of the consolidation proceedings. There is no order for correction of new number. It was also mentioned in the report that in the map prepared by the consolidation authorities only Gata No.255/1 has been mentioned and not Gata No.255/1/1, renumbered as Gata No.462/1277. Despite such report been submitted admitting that there is a manipulation in the record and the Deputy Director of Consolidation being satisfied upon the correctness of the report and the genuineness of the case of the petitioners, failed to intervene on the ground that after Section 52 notification was issued closing consolidation operations in the village concerned, no orders could be passed in the reference by the Deputy Director of Consolidation.
The Deputy Director of Consolidation has referred to the judgment of this Court, namely, Consolidation No.571 of 2015: Pateshwari Dutt Pandey Vs. Deputy Director of Consolidation District Faizbad and others, decided on 07.08.2015, to say that he had no jurisdiction to pass any orders for correction of boundaries or even to entertain the reference after issuance of Section 52 notification. It was observed that Section 52 notification was issued more than 14 years ago. He referred to Section 27(3) of the U.P. Consolidation of Holdings Act that the records have to be transferred to the Collector after closing of consolidation operations and any correction in the map etc. or even in the record can only be carried out by the Collector thereafter.
5. It has been further submitted by learned counsel for the petitioners that the petitioners have been rendered remediless as their application under Section 28 has already been considered and rejected by the Additional Collector, Barabanki by his order dated 30.01.2016, also impugned in this writ petition.
6. Learned counsel for the petitioners has submitted on the basis of the judgment rendered by this Court in Dr. Sukhbeer Singh Vs. Commissioner, Meerut and others, reported in 2014 (32) LCD 1912 and in Gaya Prasad and others Vs. Yadunath and others, reported in 2017 (35) LCD 1988, that correction of mistakes apparent in the village map prepared during the consolidation operations are permissible in an application under Section 28 before the Collector.
7. It has also been submitted that only one plot no.462 ka was prepared out of the original plot no.255/1 area 5 bigha 10 biswa during the consolidation operations. It has come out in the report that no new number was created over Gata No.255/1 such as 255/1/1 and 255/1/2. As such converting the alleged plot no.255/1/1 into new plot no.462/1277 could not have been done and it was the result of manipulation at the behest of respondent nos.3 to 7.
8. Sri Upendra Singh, Learned Standing Counsel, has pointed out that since the petitioners are actually looking for a declaration that the undivided portion of old Gata No.255/1 which was sold off by the father of the petitioners i.e. 8 biswa, in accordance with the sale deed dated 30.12.193, should be treated towards the north and the west of plot which remained and not alongside Bhitariya-Haidergarh road. He has also pointed out from the report submitted by the Assistant Consolidation Officer that the land in question had already been declared as 'chak out' land. No orders could have been passed by the consolidation authorities as requested by the petitioners under Section 48 (3) of the Act.
9. Learned Standing Counsel, has also pointed out that even application under Section 28 of the U.P. Land Revenue Act could not have been entertained as under Section 28, a limited jurisdiction is exercised by the Collector in correcting any mistakes that are apparent in the village map after the confirmed map in the consolidation operations is prepared on the basis of which the new village map is prepared.
It has been further pointed out that it is always open for the petitioners to approach the competent court for getting such declaration/ partition that the sale deed which was executed on 30.12.1993 on the undivided portion of old gata No.255/1 was only of a small portion opening on the Bhitariya-Haidergarh road, whereas the larger portion of old Gata No.255/1 remained with the seller Molhe, the father of the petitioner nos.1 and 2.
10. It has also been pointed out from C.H. Form 23 filed along with the writ petition as annexure-4, that plot no.255/1 had already been further divided into 255/1/1 and 255/1/2, the name of Molhe, the erstwhile tenure holder, has been scored out and the name of Jai Chand had been directed to be recorded.
11. Be that as it may, this Court is only concerned as to whether the orders impugned could have been passed by the authorities and the legality of such orders.
12. This Court finds that in the order impugned dated 30.01.2016, the Additional Collector Barabanki has mentioned the limitation under Section 28, which prevented him from re-determining the boundaries and marking out a part of plot no.255/1 as the part of the land which had been sold off by Molhe, the predecessor in interest of the petitioners. There is no illegality in the order dated 30.01.2016 in so far as the scope of Section 28 of the Land Revenue Act has been rightly appreciated by the Additional Collector.
13. With regard to the other order under challenge i.e. the order dated 30.07.2019 passed by the Deputy Director of Consolidation Barabanki in Reference under Section 48 (3) of the U.P. Consolidation of Holdings Act, the Reference has been rejected only because of lack of jurisdiction placing reliance upon the judgment of this Court rendered in Pateshwari Dutt Pandey (supra).
14. This Court has perused the judgment and order dated 07.08.2015 passed in the case of Pateshwari Dutt Pandey (supra). In the said case, a Co-ordinate Bench of this Court considered the scope of application under Section 42-A of the Consolidation of Holdings Act after notification under Section 52 of the Act had already been issued. This Court relied upon the Division Bench judgement rendered in Gafoor Vs. Addl. Commissioner, Lucknow and others; 1979 RD 76 (DB), Hari Ram Vs. D.D.C. Azamgarh; 1989 RD 281, Ghamari Vs. Deputy Director of Consolidation, Ballia and others; 2003 94 RD 90 and Sant Lal & Ors. Vs. Deputy Director of Consolidation, Allahabad & Ors.; 2015 (1) JCLR 310, where this Court had considered the limitation of jurisdiction of consolidation authorities after section 52 notification was issued closing the consolidation operations.
The Co-ordinate Bench pointed out the exceptions that have been carved out by the judicial precedents for entertaining the application under Section 42-A of the Act. There were only two exceptions carved out. Firstly, the cases which are pending under Article 226 of the Constitution of India at the time of notification and were decided after de-notification, and secondly, the cases which were pending before the consolidation authorities at the time of de-notification and judgments were rendered thereafter. In all other cases, the remedy for the tenure holder is to approach the Collector, where the records had been sent by the Consolidation Authorities after Section 52 notification is issued for correction of map to be carried out in conformity with the confirmed map prepared by the consolidation authorities and as per area of plot / chak mentioned in C.H. Form 41 and C.H. Form 45.
15. This Court has also considered the judgments rendered by Co-ordinate Bench in Pooran Singh Vs. Deputy Director of Consolidation, Meerut and others; 2008 (105) RD 469 and Dr. Sukhbeer Singh Vs. Commssioner, Meerut and others, 2014 (32) LCD 1912, and held that the aforecited two judgments were given in the peculiar facts and circumstances of the cases as mentioned in the said judgments, and cannot help in advancement of petitioner's case that even after Section 52 notification has been issued, application under Section 42-A of the Act can be entertained.
16. Learned counsel for the petitioners has placed reliance upon the judgement rendered in Gaya Prasad (supra), where this Court after considering the earlier binding precedent had held that it is permissible to correct mistakes that are apparent in the village map prepared during the consolidation operations in exercise of powers under Section 27 (3) of the Consolidation of Holdings Act and Section 28 of the U.P. Land Revenue Act.
17. There is no dispute to that if a matter relates to simple correction of mistakes that are apparent in the village map after the confirmed map under C.H. Form 41, an application can be entertained under Section 28 by the Collector, but this is not a simple case of correction of mistakes.
18. The case set up by the petitioners as mentioned in paragraphs herein above is to the effect that the father of the petitioner nos. 1 and 2 had sold out certain land to one Jai Chand Singh out of his own plot, which was under joint occupation. It is mentioned in the sale deed dated 30.12.1993 that out of 5 bighas 10 biswa, only 8 biswas had been sold off. It is with regard to the identification of these 8 biswas of land that were sold off, as there was no partition and demarcation carried out at that time between the sellers and the purchasers. The purchasers have somehow got the land that they had purchased marked along side the Bhitariya-Haidergarh road, instead of getting only small portion of their land opening alongside the said road as alleged by the petitioners herein.
19. It would therefore be in the fitness of things that this writ petition be dismissed with the liberty to the petitioners to approach the competent court for getting that part of land which was sold off to the contesting respondents partitioned from the original plot of land that initially belonged to Molhe and has devolved upon them by way of succession.
20. The writ petition is dismissed with the aforesaid liberty.
Order Date :- 3.3.2020 Rahul