Nanhkai vs Deputy Director of Consolidation, Pratapgarh and others

A. P. Singh, J.—This writ petition has been filed against the order of Deputy Director of Consolidation, Pratapgarh passed on 151989 in exercise of the powers under section 48(3) of the U.P. Consolidation of Holdings Act.

It appears that the consolidation proceedings in village where the land in dispute was situated, came to an end with the notification under section 52(1) of the Act on 8th March, 1979 A copy of said notification has also been filed by the petitioner as Annexure No. 1 to the writ petition. The land in dispute is situated in village Chilawan, Pargana & Tehsil Patti, district Pratapgarh which is mentioned at serial no. 5 in the notification. The notification was published in the official gazette on 5th May, 1979, Then respondent no 2 to 6 made an application for correction of records before the Sub Divisional Officer under sections 28/33/39 of the U P. Land Revenue Act with the contention that the plot no. 297/3 measuring 1 biswa 16 biswansi which was recorded in the name of the opposite parties as per orders of the Consolidation Authorities, has disappeared from the village map and is not traceable and, therefore, the plot should be shown in the village map and also in the records. The respondents'' application was, however, rejected by the Sub Divisional Officer vide order dated 21st September, 1983, though copy of the order of the Sub Divisional Officer is not available but according to the petitioner, by the said order the Sub Divisional Officer rejected respondents'' application on the ground that same is not maintainable under the provisions of U. P. Land Revenue Act. The respondents no. 2 to 6 then moved another application on the same facts and for the same relief. This application, according to the petitioner, has perhaps been rejected again by the SubDivisional officer patti, district Pratapgarh. Opposite parties then filed a third application on 3rd April, 1986 addressed to District Magistrate, Pratapgarh through the Court of Settlement Officer (Consolidation), Pratapgarh under Section 42 of the Act read with sections 28, 33 and 39 of the U. P. Land Revenue Act. A copy of this application has been filed as Annexure No. 3 to the writ petition. On this application, the Collector, Pratapgarh called for a report from the Settlement Officer (Consolidatior) who after holding inquiry made a reference and sent the same for disposal before the Deputy Director of Consolidation under section 48(3) of the Act. The Deputy Director of Consolidation accordingly passed the impugned order for correction of the village map as well as the records of the village on 151989.

The order of the Deputy Director of Consolidation has been challenged only on the ground of jurisdiction. According to learned Counsel for the petitioner, after the village where the land in dispute is situate was denotified under section 52(1) of the Act vide notification dated 8th March, 1979, published in the gazette on 5th May, 1979, the application for correction of records and of the village map on any ground whatsoever cannot be entertained by the Consolidation Authorities nor they are left with the power to pass orders on the same and, therefore, impugned order passed by the Deputy Director of Consolidation is illegal and liable to be quashed by the writ of certiorari.

Learned Counsel for the petitioner has placed reliance on two judgments of this Court. The first judgment is of a Division Bench of this Court reported in 1989 Revenue Decisions, 281 Hari Ram v DDC, Azamgarh and others. This Court was approached by means of a writ petition for issue of the writ of prohibition by one Hari Ram who happened to be opposite party in a case which was pending before the Deputy Director of Consolidation under section 48(3) of the Act. In the writ petition it was alleged by him that although consolidation proceedings in the village where the land was situate has come to an end by issue of Notification under section 52(1) of the Act, Deputy Director of Consolidation wrongly proceeded with the reference under section 48(3) of the Act. It was argued on his behalf that if a notification under section 52(1) of the Act has been issued, the village goes out of the consolidation and the Consolidation Authorities cease to have jurisdiction to either entertain any application or pass orders for correction of papers or whatever purpose. The Division Bench of this Court while finally disposing of this writ petition at the admission stage passed the order directing the Deputy Director of Consolidation, Azamgarh to first record a finding as to whether Notification under section 52(1) of the Act had been issued in respect of the land in dispute and to determine as to whether the village where land in dispute is situate, has been denotified. The direction further was that in case it was found that the land has ceased to be the subject matter of the consolidation proceedings, the Deputy Director of Consolidation sha 11 not proceed with the application and shall not pass any order thereon in as much as in such situation he lacks jurisdiction to entertain and decide the application.

The second judgment on which reliance has been placed by learned Counsel for the petitioner, is a single Bench judgment in the case of Raja Ram v. Deputy Director of Consolidation, U. P., Lucknow and other''s reported in 1982, Revenue Decisions, 387. In this case, an application for correction of papers was made under section 42A of the Act for the purposes of carrying out the orders passed by the Consolidation Authorities and the Deputy Director of Consolidation on the basis of that application exercising powers under Section 48 of the Act passed orders for the correction of papers. The Court held that when the village has been denotified under Section 52(1) of the Act, the Deputy Director of Consolidation loses jurisdiction to entertain the application and pass orders under Section 42A of the Act either in the garb of making correction or for execution of the orders earlier passed by the Consolidation Authorities. The view taken by the learned Single Judge in the case of Raja Ram is in consonance with the view taken by the Division Bench of this Court in the case of Hari Ram (Supra). In the present case, the Consolidation proceedings ended with the publication of Notification under section 52(1) of the Act as early as in the year 1979. Respondents after a lapse of four years made an application for correction of papers before the Revenue Authorities (SubDivisional Officer) which, as observed above, was rejected in September, 1983. Thereafter second application was moved in the year 1985 before the District Magistrate and the Settlement Officer (Consolidation). The fate of the second application is not known to the learned counsel for the parties. The respondents then moved third application on which the impugned order has been passed by the Deputy Director of Consolidation. It is not a case where the respondents wanted execution of the orders passed by the Consolidation Authorities. His application was for the correction of papers and the village map in respect of plot no. 297/3 measuring 1 biswa and 16 biswansi which according to them had disappeared from the papers and had also not been included in the map prepared by the Consolidation Authorities. This application, in my opinion, could not be filed after the denotification of the village which had the effect of concluding the Consolidation proceedings. The Consolidation Authorities lack inherent jurisdiction to entertain such an application after the land remains no more subject matter of consolidation proceedings, orders passed thereon by them, therefore, is without jurisdiction. This opinion of mine is fully supported by the view taken by the Division Bench as well as the learned Single Judge.

Learned Counsel for the respondents however placed reliance on a Single Judge judgment of this Court reported in 1987(1), Vol XIII,

AWC, 326, Brij Bir Singh v.D.DC. Meerut Camp at Muzaffarnagar & others. Facts of the case are as follows :

Orders in favour of respondents no. 4 & 5 were passed by the Deputy Director of Consolidation on 871964. That order was not challenged by petitioner and it became final. Despite the order having been passed by the Consolidation Officer on 871964, the requisite entries for carrying out the said order of the Consolidation Officer was not made in the revenue papers and the relevant CH Forms were not prepared accordingly. After some time, the village was denotified after issuance of notification under section 52(1) of the Act. Whereafter respondents on discovering the mistakes, filed application under section 28 of the U. P. Land Revenue Act for correction of the map and papers on the basis of the order dated 871964 before the Sub Divisional Officer concerned who forwarded the application to the Settlement Officer (Consolidation) on which Order dated 2111985 was passed by the Settlement Officer (Consolidation) referring the case for correction of papers under section 48(3) of the Act. Against the order of the Settlement Officer (Consolidation) petitioners filed an application under section 48 of the Act but the revision of the petitioners was dismissed against which they filed writ petition praying for the issue of the writ of Prohibition.

The contention of learned Counsel for the petitioners in that case was that since the village had been denotified, the application for correction of papers was not maintainable. This contention of the petitioners made in that case was rejected by the learned Single Judge holding that for purpose of carrying out the orders earlier passed by Consolidation Authorities application was maintainable and the Consolidation Authorities were competent to pass orders thereon. This view of the learned Single Judge is in direct conflict with the view taken by another learned Single Judge in the case of Raja Ram (Supra) as well as with the view taken by Division Bench in the case of Hari Ram (Supra). Since the view taken by the Single Judge in the case of Raja Ram is fully supported and endorsed by the view taken by the Division Bench in the case of Hari Ram (Supra), in my opinion, the view taken by the learned Single Judge in the case of Brij Bir Singh cannot prevail and it cannot be said to be a correct view. In the normal course where the Court is faced with two conflicting views taken by coordinate benches, the case is to be referred to a larger bench. In this case, this course is not required to be adopted as the view taken by this Court in the case of Raja Ram (Supra) has fully been endorsed by the Division Bench of this Court which will be deemed to have overruled the view taken by the learned single Judge in the case of Brij Bir Singh (Supra).

Learned Counsel for the respondents has further cited another case reported in 1986, Revenue Decisions 206, Kamta Prasadv. Board of Revenue, U. P., Lucknow and others. This too is a case of correction of papers for carrying out orders passed by Consolidation Authorities. Here, the learned Single Judge held that for carrying out the orders of the Consolidation Authorities after denotification of the village under section 52(1) of the Act, Revenue Authorities will have jurisdiction to make necessary corrections. This judgment also supports the view taken in the case of Raja Ram and the view taken by the Division Bench in Hari Ram''s case. I am, therefore, of the opinion that Consolidation Authorities will have no power to entertain any application for correction of papers after the village is denotified by issue of Notification under section 52(1) of the Act as thereafter land is no more subject matter of consolidation proceedings.

In the present case, application moved by respondents was not maintainable before Consolidation Authorities which, in my opinion, was wrongly referred by the District Magistrate/Collector, Pratapgarh to the Settlement Officer (Consolidation). The said application should have been decided by the competent authorities under the provisions of Land Revenue Act in view of the law as laid by this Court in the case of Kamta Prasad (Supra).

In the result, writ petition succeeds and order dated 1st May, 1989, passed by Deputy Director of Consolidation which is Annexure No. 7 to the writ petition, is quashed. As observed above, the District Magistrate concerned shall take necessary action in accordance with law. There shall be no order as to costs.