Sheesh Ram and ors. Vs. Deputy Director of Consolidation and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/470107
SubjectProperty
CourtAllahabad High Court
Decided OnMay-04-2009
JudgeRajes Kumar, J.
Reported in2009(3)AWC2459
AppellantSheesh Ram and ors.
RespondentDeputy Director of Consolidation and ors.
Excerpt:
- rajes kumar, j.1. by means of present petition, the petitioners are challenging the order dated 17th march, 1999 passed by the deputy director of consolidation, ghaziabad by which he has rejected the application of the petitioners dated 3.7.1998 under section 42a read with section 52 of the uttar pradesh consolidation of holdings act, 1953 (hereinafter referred to as the 'act').2. the brief facts giving rise to the present writ petition are that in a consolidation proceeding held in village mahiuddinpur mainapur, pargana jalalabad, tehsil and district, ghaziabad chaks were allotted. the proceeding in respect of the allotment of the chak had become final. however, it is not clear that up to what stage the same had become final but there is no dispute in this regard in the present petition. it, appears that the petitioners had moved an application dated 28.4.1972 before the settlement officer consolidation, meerut under section 42a of the act for the correction of the mistake. vide order dated 28.4.1972 the settlement officer consolidation, meerut observed that on the application being made by some of the persons he himself made spot inspection and there appears to be some mistake which requires rectification. he accordingly referred the matter to the consolidation officer, meerut ii for giving the detailed report after the enquiry of the record. it appears that several persons moved application before the settlement officer. consolidation, meerut in case no. 148/60 atar singh and ors. v. state stating therein that there were errors in the final shijra prepared for village mohiuddinpur mainapur. the settlement officer consolidation, meerut on the said application in its order dated 29.11.1976 observed as follows:i got the records examined by the assistant consolidation officer. the final map does not tally with the confirmed map. this is an apparent clerical error on the face of the record and can be corrected under section 42a of the u.p.c.h. act. but the errors in the map need a thorough scrutiny. the file is, therefore, sent to the court of the co. for scrutinizing the errors and correcting them under section 42a of the u.p.c.h. act, which confers simultaneous jurisdiction.3. it appears that in a reference titled as chandra kiran v. khacheroo and ors. on the inspection of the settlement officer consolidation, meerut a report dated 31.12.1986 has been submitted which relates to the correction of the map. in the said report he has submitted that certain corrections in the map have been carried on. in the said report he has also given opinion that to settle the dispute it would be appropriate that shishram would be provided land somewhere else in place of northern part of old gata no. 456 for which he did not agree.4. it appears that in pursuance of the order dated 17.10.1985 of the deputy director of consolidation, ghaziabad a report has been submitted for disposal of the file under section 48(3) of the act by the settlement officer consolidation, ghaziabad vide its report dated 4.1.1986. in the report he submitted that out of eight disputes, six disputes have been finally settled on the basis of the settlement arrived at between the parties, but in respect of the two disputes relating to new gata nos. 250 and 256 and old gata no. 456 and another dispute relating to new gata no. 266 and old gata nos. 492 and 458, on the basis of the record the map has been corrected to large extent but to resolve the dispute finally the parties have not agreed for the reference. so far as correction of error is concerned, the same has been carried out.5. it appears that the deputy director of consolidation, ghaziabad vide its order dated 23.12.1986 has held that the allotment of the chak by the settlement officer consolidation is corrected but the final report prepared on the basis of the revisional order is incorrect which is clear from the report of the consolidation officer, ghaziabad dated 31.12.1985 and settlement officer consolidation report dated 4.1.1986. according to him, the map is required to be corrected under section 48(3) of the act because no proper order has been passed by the court below. he further held that there is no need of any correction under section 48(3) of the act while the settlement officer consolidation is a competent authority to correct the map after hearing the parties and accordingly he has decided the reference and sent back the record to the settlement officer consolidation, ghaziabad.6. the settlement officer consolidation, ghaziabad passed the order dated 4.5.1998 and held that the correction is being made under section 48(3) but refused the demand of the correction in the map as according to him the same was in accordance to the spot inspection.7. it appears that the petitioners have moved the application on 3.7.1998 before the deputy director of consolidation, ghaziabad with the prayer that their case no. 1 under section 42a of the act sheeshram and ors. v. state is pending before the settlement officer consolidation who may be directed to decide the same in accordance to the order dated 23.12.1986 passed in reference no. 11 under section 48(3) of the act. the said application has been rejected by the impugned order dated 17.3.1999 on the ground that the case has already been decided earlier and now the village is out of chakbandi, therefore, no proceeding can be taken by this court.8. heard sri sankatha rai, learned counsel appearing for the petitioners and learned standing counsel.9. despite the list being revised, shri n.k. sharma, learned counsel appearing for the respondent nos. 6 to 9 was not present.10. learned counsel for the petitioners submitted that the application under section 42a of the act for the correction of the map was filed in the year 1972 while notification under section 52 (1) of the act was issued on 1.9.1973. he submitted that on the said application report was also sought by the settlement officer consolidation on 28.4.1972 from the consolidation officer, ghaziabad. he submitted that vide order dated 29.11.1976 the settlement officer consolidation has sent back the matter to the consolidation officer, ghaziabad for making necessary correction under section 48a of the act after making thorough scrutiny. he submitted that all the officers found that there was an error. he submitted that deputy director of consolidation, ghaziabad vide order dated 23.12.1986 annexure-vii to the writ petition, in reference no. 11 under section 48(3) of the act has directed the settlement officer consolidation to prepare the final map after hearing both the parties and since then the matter is pending. he submitted that if there is mistake in the map and such mistake is apparent on the face of the record, the same can be corrected under section 42a of the act irrespective of the notification under section 52 (1) of the act. he further submitted that the proceeding is still pending and the notification issued under section 52 of the act has no effect.11. in support of the contention he relied upon a division bench decision of this court in the case of mukhtar v. dy. director of consolidation azamgarh and ors. 1993 rd 457 : 1993 (3) awc 1549.12. having heard learned counsel for the parties, i have perused the impugned order.13. section 42a of the act has an overriding effect. the power to correct the apparent mistake in the map can be exercised even after the notification under section 52 of the act. by means of the/application dated 3.7.1998 the petitioners have only sought a direction from the deputy director of consolidation, ghaziabad to the settlement officer consolidation to pass the order in pursuance of the order passed in reference no. 11 under section 48(3) of the act chandra kiran v. khacheroo and ors. dated 23.12.1986. in my opinion, the deputy director of consolidation, ghaziabad has rightly rejected the application as no matter was pending before him. in case, if in pursuance of the order in reference no. 11 no order has been passed by the settlement officer consolidation, the petitioners should have approached the settlement officer consolidation for the disposal of the matter instead of approaching the deputy director of consolidation and seeking the direction for the disposal of the matter. therefore, i do not see any reason for interference with the impugned order dated 17.3.1999.14. in the result, the writ petition fails and is accordingly dismissed. however, it is open to the petitioners to approach the settlement officer consolidation, ghaziabad who may pass appropriate order in pursuance of the order dated 23.12.1986 passed by the deputy director of consolidation ghaziabad, in case, if the matter is pending and the same has not yet been disposed of.
Judgment:

Rajes Kumar, J.

1. By means of present petition, the petitioners are challenging the order dated 17th March, 1999 passed by the Deputy Director of Consolidation, Ghaziabad by which he has rejected the application of the petitioners dated 3.7.1998 under Section 42A read with Section 52 of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as the 'Act').

2. The brief facts giving rise to the present writ petition are that in a consolidation proceeding held in village Mahiuddinpur Mainapur, Pargana Jalalabad, Tehsil and District, Ghaziabad chaks were allotted. The proceeding in respect of the allotment of the chak had become final. However, it is not clear that up to what stage the same had become final but there is no dispute in this regard in the present petition. It, appears that the petitioners had moved an application dated 28.4.1972 before the Settlement Officer Consolidation, Meerut under Section 42A of the Act for the correction of the mistake. Vide order dated 28.4.1972 the Settlement Officer Consolidation, Meerut observed that on the application being made by some of the persons he himself made spot inspection and there appears to be some mistake which requires rectification. He accordingly referred the matter to the Consolidation Officer, Meerut II for giving the detailed report after the enquiry of the record. It appears that several persons moved application before the Settlement Officer. Consolidation, Meerut in case No. 148/60 Atar Singh and Ors. v. State stating therein that there were errors in the final Shijra prepared for village Mohiuddinpur Mainapur. The Settlement Officer Consolidation, Meerut on the said application in its order dated 29.11.1976 observed as follows:

I got the records examined by the Assistant Consolidation Officer. The final map does not tally with the confirmed map. This is an apparent clerical error on the face of the record and can be corrected under Section 42A of the U.P.C.H. Act. But the errors in the map need a thorough scrutiny. The file is, therefore, sent to the Court of the CO. for scrutinizing the errors and correcting them under Section 42A of the U.P.C.H. Act, which confers simultaneous jurisdiction.

3. It appears that in a reference titled as Chandra Kiran v. Khacheroo and Ors. on the inspection of the Settlement Officer Consolidation, Meerut a report dated 31.12.1986 has been submitted which relates to the correction of the map. In the said report he has submitted that certain corrections in the map have been carried on. In the said report he has also given opinion that to settle the dispute it would be appropriate that Shishram would be provided land somewhere else in place of northern part of old gata No. 456 for which he did not agree.

4. It appears that in pursuance of the order dated 17.10.1985 of the Deputy Director of Consolidation, Ghaziabad a report has been submitted for disposal of the file under Section 48(3) of the Act by the Settlement Officer Consolidation, Ghaziabad vide its report dated 4.1.1986. In the report he submitted that out of eight disputes, six disputes have been finally settled on the basis of the settlement arrived at between the parties, but in respect of the two disputes relating to new gata Nos. 250 and 256 and old gata No. 456 and another dispute relating to new gata No. 266 and old gata Nos. 492 and 458, on the basis of the record the map has been corrected to large extent but to resolve the dispute finally the parties have not agreed for the reference. So far as correction of error is concerned, the same has been carried out.

5. It appears that the Deputy Director of Consolidation, Ghaziabad vide its order dated 23.12.1986 has held that the allotment of the chak by the Settlement Officer Consolidation is corrected but the final report prepared on the basis of the revisional order is incorrect which is clear from the report of the Consolidation Officer, Ghaziabad dated 31.12.1985 and Settlement Officer Consolidation report dated 4.1.1986. According to him, the map is required to be corrected under Section 48(3) of the Act because no proper order has been passed by the court below. He further held that there is no need of any correction under Section 48(3) of the Act while the Settlement Officer Consolidation is a competent authority to correct the map after hearing the parties and accordingly he has decided the reference and sent back the record to the Settlement Officer Consolidation, Ghaziabad.

6. The Settlement Officer Consolidation, Ghaziabad passed the order dated 4.5.1998 and held that the correction is being made under Section 48(3) but refused the demand of the correction in the map as according to him the same was in accordance to the spot inspection.

7. It appears that the petitioners have moved the application on 3.7.1998 before the Deputy Director of Consolidation, Ghaziabad with the prayer that their case No. 1 under Section 42A of the Act Sheeshram and Ors. v. State is pending before the Settlement Officer Consolidation who may be directed to decide the same in accordance to the order dated 23.12.1986 passed in reference No. 11 under Section 48(3) of the Act. The said application has been rejected by the impugned order dated 17.3.1999 on the ground that the case has already been decided earlier and now the village is out of chakbandi, therefore, no proceeding can be taken by this Court.

8. Heard Sri Sankatha Rai, learned Counsel appearing for the petitioners and learned Standing Counsel.

9. Despite the list being revised, Shri N.K. Sharma, learned Counsel appearing for the respondent Nos. 6 to 9 was not present.

10. Learned Counsel for the petitioners submitted that the application under Section 42A of the Act for the correction of the map was filed in the year 1972 while notification under Section 52 (1) of the Act was issued on 1.9.1973. He submitted that on the said application report was also sought by the Settlement Officer Consolidation on 28.4.1972 from the Consolidation Officer, Ghaziabad. He submitted that vide order dated 29.11.1976 the Settlement Officer Consolidation has sent back the matter to the Consolidation Officer, Ghaziabad for making necessary correction under Section 48A of the Act after making thorough scrutiny. He submitted that all the officers found that there was an error. He submitted that Deputy Director of Consolidation, Ghaziabad vide order dated 23.12.1986 Annexure-VII to the writ petition, in reference No. 11 under Section 48(3) of the Act has directed the Settlement Officer Consolidation to prepare the final map after hearing both the parties and since then the matter is pending. He submitted that if there is mistake in the map and such mistake is apparent on the face of the record, the same can be corrected under Section 42A of the Act irrespective of the notification under Section 52 (1) of the Act. He further submitted that the proceeding is still pending and the notification issued under Section 52 of the Act has no effect.

11. In support of the contention he relied upon a Division Bench decision of this Court in the case of Mukhtar v. Dy. Director of Consolidation Azamgarh and Ors. 1993 RD 457 : 1993 (3) AWC 1549.

12. Having heard learned Counsel for the parties, I have perused the impugned order.

13. Section 42A of the Act has an overriding effect. The power to correct the apparent mistake in the map can be exercised even after the notification under Section 52 of the Act. By means of the/application dated 3.7.1998 the petitioners have only sought a direction from the Deputy Director of Consolidation, Ghaziabad to the Settlement Officer Consolidation to pass the order in pursuance of the order passed in reference No. 11 under Section 48(3) of the Act Chandra Kiran v. Khacheroo and Ors. dated 23.12.1986. In my opinion, the Deputy Director of Consolidation, Ghaziabad has rightly rejected the application as no matter was pending before him. In case, if in pursuance of the order in reference No. 11 no order has been passed by the Settlement Officer Consolidation, the petitioners should have approached the Settlement Officer Consolidation for the disposal of the matter instead of approaching the Deputy Director of Consolidation and seeking the direction for the disposal of the matter. Therefore, I do not see any reason for interference with the impugned order dated 17.3.1999.

14. In the result, the writ petition fails and is accordingly dismissed. However, it is open to the petitioners to approach the Settlement Officer Consolidation, Ghaziabad who may pass appropriate order in pursuance of the order dated 23.12.1986 passed by the Deputy Director of Consolidation Ghaziabad, in case, if the matter is pending and the same has not yet been disposed of.