Udai Bhan Pratap Shukla and Others vs Addl. District Magistrate (F&R) and Others

Anjani Kumar Mishra, J.—Heard Sri Ashok Tripathi, learned Counsel for the petitioners and Sri R.N. Singh, learned Senior Advocate on behalf of contesting respondents 5 and 6. The petition has been filed challenging the order dated 9.4.1981 passed by the Consolidation Officer, respondent No. 2 and the order dated 17.1.2012 passed by the respondent No. 1, whereby the order of the Consolidation Officer had been upheld.

The facts of the case, in brief, are that an application was filed by respondent No. 6, Harish Chandra, the erstwhile Pradhan on 22.3.1980, praying that a chak road be provided from chak No. 35, carved out in the name of Smt. Gayatri Devi, the mother of the applicant. On the same date, another application was made praying that plot Nos. 499, 500, 503, 504 and 514 allotted in the chak of Gulab Chand be reserved as Khalihan and in lieu thereof Gulab Chand be allotted chak on plot Nos. 254, 255, 256, 257, 271, 272, 273, 274, 275, and 276. In this connection, it is relevant to note that chak holder No. 37 Gulab Chand is the brother of the objector, Harish Chandra, the erstwhile Pradhan. These applications appear to have been filed under section 42-A of the U.P. Consolidation of Holdings Act.

The objections were allowed by order dated 9.4.1981 and it is this order which has finally been affirmed by the order passed by the respondent No. 1 on 17.1.2012.

Sri Ashok Tripathi, learned Counsel for the petitioners has submitted that the order of the Consolidation Officer was passed on an application under section 42-A of the Act. He has submitted that the said provision can be invoked for correcting clerical or arithmetical errors only. In the instant case, this provision was invoked for modifying the chaks proposed to the parties and, therefore, the orders passed are wholly without jurisdiction and are liable to be set aside on this short ground alone. He has further submitted that a final order had been passed in these proceedings on 4.3.1999 passed by the Deputy Director of Consolidation. This order had been passed after hearing the parties but a restoration application filed by the respondents was wrongly allowed and the order of the Consolidation Officer was affirmed.

The submission therefore is that since the order dated 4.3.1999 had been passed after hearing the parties and was not an ex parte order, the subsequent impugned order dated 17.1.2012 amounts to a review, which power the Deputy Director of Consolidation does not possess under the Act.

Learned Counsel for the petitioners has lastly submitted that no restoration application was filed by Gayatri Devi, yet the order passed against her has been recalled by the Deputy Director of Consolidation, which was not legally permissible.

Sri R.N. Singh, learned Senior Advocate, on the other hand, has supported the impugned order. He has submitted that the order of the Consolidation Officer was passed in a reference under section 48(3) of the Act and was not an order passed under section 42-A and, therefore, the submissions of learned Counsel for the petitioners lack substance. He has next submitted that the order of the Consolidation Officer cannot be faulted with on merits as it does substantial justice and is beneficial for the villagers as a whole. He has lastly submitted that the petitioners have no locus to challenge the impugned orders as their chaks have not been effected thereby. The orders impugned having been passed in the interest of the villagers as a whole affecting Bachat land, which vested in the Gaon Sabha. It was only open for the Gaon Sabha to challenge the same. The petitioner is neither the Pradhan nor he has been authorized to prosecute the writ petition, which for all practical purposes is for the benefit of the Gaon Sabha alone.

In the writ petition, interim order was granted on 16.3.2012, whereby the operation of the impugned orders was stayed. The interim order was granted by a detailed order, which is quoted herein below:--

"According to Sri Ashok Tripathi, learned Counsel for the petitioners, the proceedings under section 9 of the U.P. Consolidation of Holdings Act (for short ''the Act'') attained finality upto the stage of Deputy Director, Consolidation and the chaks were allotted to tenure holders and the bachat land was identified. He submits that at such belated stage, an application for restoration was filed by the respondent No. 5, before the Deputy Director, Consolidation for exchange of the chak allotted to him with that of the bachat land and giving bachat land in that proportion in the chak allotted to the respondent No. 5. The said restoration application was rejected by the order dated 4.3.1999 passed by the Deputy Director Consolidation, holding therein that such exchange was not permissible in exercise of jurisdiction under section 42-A of the Act.

Learned Counsel for the petitioners has also referred to an earlier order dated 30.12.1989 (Annexure 3 to the writ petition) passed by the Deputy Director, Consolidation and has submitted that the Deputy Director Consolidation has clearly held thereunder that such an application under section 42-A of the Act for exchange of the chak of the respondent No. 5 with the bachat land was not maintainable after the title and allotment of chak proceedings had attained finality. It was also held by the Deputy Director, Consolidation that the jurisdiction under section 42-A of the Act, does not permit such an exchange of bachat land with the chak allotted. He therefore, set aside the order dated 9.4.1981 passed by the Consolidation Officer under section 42-A of the Act.

He further states that yet another restoration application was moved and it was allowed on 18.3.2008 and the revision was restored. Now, the Deputy Director, Consolidation by his order dated 17.1.2012 has dismissed the revision filed by the father of the petitioner and has confirmed the order dated 9.4.1981 passed by the Consolidation Officer permitting such exchange under section 42-A of the Act. He submits that clearly the Deputy Director, Consolidation has committed an illegality in affirming the order of the Consolidation Officer, whereby the Consolidation Officer had passed order under section 42-A of the Act without jurisdiction since it was not a clerical error which was sought to be corrected but the bachat land of the Gaon Sabha was being exchanged with the chak of respondent 5.

Prima facie, the submissions of learned Counsel for the petitioner on the question of illegal exercise of jurisdiction under section 42-A of the Act by the Consolidation Officer, as affirmed by the Deputy Director, Consolidation, appears to have substance.

In view of the aforesaid circumstances, until further orders of this Court, the effect and operation of the impugned order dated 9.4.1981, passed by the Consolidation Officer and also the order dated 17.1.2012, passed in Revision No. 109, Revision No. 117 and Revision No. 118 by the respondent No. 1, shall remain stayed."

Upon hearing learned Counsel for the parties and upon a perusal of the record, I am in respectful agreement with what has been stated in the order dated 16.3.2012, quoted hereinabove.

Perusal of the order passed by the Consolidation Officer on 19.4.1981 reveals that it was passed in proceedings under section 42-A of the Act and this fact is clearly mentioned in the certified copy of this order, filed along with the writ petition.

Under the circumstances, I am unable to accept the contention of learned Counsel for the respondents that this order was passed on a reference under section 48(3) of the Act.

A bare perusal of section 42-A shows that this provision is meant for correcting clerical or arithmetical errors. The relief claimed in the objections filed by Harish Chandra, respondent No. 6, sought modification of the chaks, that has been carved out and which appear to have attained finality. There is no material on record to show that corrections were sought on the basis of some orders passed earlier and, therefore, in my considered opinion, the order dated 9.4.1981 could not have been passed in the facts and circumstances of the case. The relief, prayed by the contesting respondents, if at all, could have been granted in proceedings for allotment of chaks or on an objection under section 9-B. This is not the case here. It appears that the chak allotment proceedings have attained finality and thereafter the modifications were prayed for and have been granted in the garb of proceedings for correcting clerical or arithmetical errors.

There is yet another aspect of the matter. Insofar as the second objection for exchange of the plots reserved as Khalihan is concerned, it may be stated that such reservation for a public purpose is made in accordance with the procedure prescribed under section 8-A of the Act. Reservation of land for public purposes is contained in the Statement of Principles prepared under the Act. Objections against the statement of principles can be filed under section 9 of the Act. There is no material on record to show that any objection against the statement of principles was ever filed under section 9. Admittedly, reservation for Khalihan had been made on the original holding of the respondents and, therefore, such objection could not have been raised after the chaks have been carved out, in view of the bar created by section 11-A of the Act, which incorporates the principle of constructive res judicata. This view is in conformity with the decision of this Court Punvasi Vs. Dy. Director of Consolidation and Others, .

In view of the above, in my considered opinion, the order dated 9.4.1981 could not have been passed by the Consolidation Officer on objections under section 42-A. Since there is no material on record to show that any earlier order have been passed for carnation of a chak road at the place where it has been carved out by the impugned order or for shifting the land reserved for Khalihan, section 42-A of the Act could not have been invoked for that purpose.

The observation made and the reasoning given by the Deputy Director of Consolidation while affirming the order of the Consolidation Officer that the order of the Consolidation Officer had been passed in public interest and for reservation of land for public purpose and that such an order could be passed in proceedings under section 42-A, cannot be accepted.

Insofar as the question of locus of the petitioners to maintain this writ petition is concerned, learned Counsel for the respondents has placed reliance on the following judgments:--

A.M. Allison Vs. B.L. Sen, .

Rai Shivendra Bahadur Vs. The Governing Body of the Nalanda College, .

As regard the case of AM. Allison (supra), reliance has been placed on paragraph 11, wherein it has been held that proceedings for issuing a writ of certiorari is not a matter of course and the High Court has power to decline the relief, in case it is found that no failure of justice has occurred while in the case of Rai Shivendra Bahadur (supra), it has been held that a writ of mandamus can be issued only if the petitioner has a legal right to enforce the performance of a legal duty cast upon the respondents.

In this connection, in my considered opinion, as far as reservation of land for the purposes of Khalihan, the same is a purpose wherein every agriculturist residing in the unit has an interest as Khalihan is a place reserved for use for agricultural purposes. According to the dictionary meaning Khalihan is a place for storing agricultural implements as also the harvested crops. It may include both covered and open spaces. Therefore, in my considered opinion, the petitioners have locus to challenge the impugned orders which change the location of the land reserved for Khalihan, which reservation must necessarily be assumed to have been made while preparing the statement of principles in accordance with the procedure prescribed for the same in the Act, in consultation with the Consolidation Committee.

In the case of A.M. Allison (supra) it has been held by the Supreme Court that the High Court can decline to grant relief, in case it finds that there is no failure of justice. It has not been held that the High Court must necessarily decline the relief, even if no failure of justice has resulted.

In my considered opinion, there is failure of justice in the instant case because a provision of the Act has been invoked for granting a relief, which could not have otherwise been granted and it is settled law that something, which is not permissible to be done directly, cannot be permitted to be done indirectly.

As already held hereinabove, the claim for shifting the location of the Khalihan was barred by section 11-A of the Act having been raised after the carvation of chaks. Even the other judgments cited, do not help the petitioners inasmuch as every agriculturist in the village has an interest in the land reserved for Khalihan. Such reservation is necessarily made in public interest and every member of the unit has a right to enforce such reservation and, therefore, the contention of learned Counsel for the petitioners in this regard cannot be accepted.

Accordingly and for the reasons given above, I find that the order passed by the Consolidation Officer, was passed under section 42-A of the U.P. Consolidation of Holdings Act, and was therefore wholly without jurisdiction because the Consolidation Officer has not corrected any clerical or arithmetical error but has in fact modified the reservation made in the Statement of Principles or in the process of carvation of chaks, which cannot be done. Also, the land involved in such modification was land reserved for public utility for the benefit of the residents of the unit as a whole and, therefore, the petitioners have locus to challenge the orders.

Moreover, the reasoning given by the Deputy Director of Consolidation for dismissing the revision that the modification made by the Consolidation Officer was permissible in public interest under section 42-A of the Act, is patently erroneous.

The writ petition therefore is liable to be allowed.

I therefore allow the writ petition and set aside the orders dated 9.4.1981 and 17.1.2012 passed by the respondents 2 and 1 respectively. There will however be no orders as to costs.