A.P. Sahi, J.@mdashHeard Sri G.P. Singh, learned Counsel for the petitioners and Sri Mohan Yadav, learned Counsel for the respondent No. 5. The village was de-notified on 9th April, 1988 u/s 52 (1) of U.P. Consolidation of Holdings Act, 1953. After about 17 years, respondent Nos. 4 to 6 moved an application on 3rd August, 2005 to the District Magistrate, Allahabad purported to be u/s 42A read with section 48(3) of the Act for correcting the records in terms of the order dated 7.9.1973 passed by the Deputy Director of Consolidation in Revision No. 662 /822. The correction sought was that the old plot No. 86-M area 2 biswa and 10 biswansi and old plot No. 80M area 11 biswansi of village Ramnathi have been allotted in a Chak-road which order is endorsed on CH Form-23 but the same was not erroneously incorporated in CH Form- 41 and 45 and as such this error should be rectified.
2. A report was called for on the said application on 4th August, 2005 which was submitted on 22.11.2005. On the strength of this report an ex parte order without putting the petitioners to notice was passed on 28.11.2005 by a three word cryptic order, ''approved as proposed''.
3. The petitioners filed a restoration application along with a delay condonation application and the same was entertained. The grievance of the petitioner was that a large area of 4 biswas and 19 biswansi was sought to be reduced from the recorded area of the petitioners as contained under CH Form-41 and 45. The Deputy Director Consolidation while proceeding to consider the restoration application-called for a fresh report on 30th January, 2010 to which the petitioners had filed an objection. Without deciding the said objection the restoration was dismissed on 8th December, 2011 recording findings about the existence of the order dated 7.9.1973 and implementation thereof for the reason that it related to a public utility Chak-road.
4. Sri G.P. Singh, learned Counsel for the petitioners submits that the proceedings are without jurisdiction in view of the law laid down by this Court as reported in 2011 (113) RD 703, 2003 (94) RD 90, 1989 RD 281 (DB) and 1989 RD 201, the submission is that an application u/s 42A read with 48(3) of the 1953 Act was not maintainable.
5. The matter was heard at length with the assistance of Sri Mohan Yadav, learned Counsel for the respondent No. 5 and learned Standing Counsel and learned Counsel for the Gaon Sabha Sri D.D. Chauhan on 28.2.2012, on which date CH Form- 23 was directed to brought on record. The supplementary affidavit was filed bringing on record CH Form 23.
6. On 1.3.2012, the matter was again heard and following order was passed:
After the matter was heard at length Sri G.P. Singh on instructions from his client submits that even presuming the order of 1973 to be valid the chak road as proposed under the said order can be carved out provided the same does not bring about any reduction in the bandobasti area of the petitioner.
Let an affidavit to that effect be filed tomorrow before the Court.
Put up tomorrow.
7. Sri Singh has filed a second supplementary affidavit entailing his arguments and in response to the aforesaid order, he has incorporated paragraph-2(8) to the following affect:
2(8) That even presuming this order of 1973 to be valid the chak road as proposed under the said order can be carved out provided the same does not bring about any reduction in bandobasti area of the petitioner''s plots as mentioned in C.H. Form 41 and 45 and also in the extract of Khatauni annexed as Annexure-SA-2 of 1st supplementary affidavit.
8. A perusal of the said affidavit therefore demonstrates that the petitioner insist that no reduction in the area of the petitioners'' plots should be made as recorded in CH Form-41 and CH Form- 45 even if the order of 1973 is presumed to be correct.
9. Sri Singh, learned Counsel for the petitioners while initially advancing his submissions urged that there was no such order dated 7.9.1973 and he has invited the attention of the Court to para 24 of the affidavit filed by Ram Prasad Singh on 13.7.2006 before the Deputy Director Consolidation to contend that in the absence of any such order no such correction could be carried put.
10. Needless to mention that the petitioners had filed writ petition No. 22457 of 2005 when the authorities were proceeding for getting the order of 1973 implementing. The said writ petition was disposed of on 24.3.2005 by the following order:
This writ petition has been filed for raising the grievance that petitioner is a bhumidhar of a land and has being dispossessed for carving out the chak road from the land owned and possessed by him, though such chak road has not been shown in the map of the village. More so, his land is being taken away without acquistition and without making any payment of compensation.
The learned Standing Counsel has assured that the petitioner would not be dispossessed from the land owned by him without adopting the procedure prescribed by law and he has further suggested that the learned District Collector, Allahabad may be directed to examine the issue and to ensure that petitioner be not deprived of his rights by any arbitrary method.
In view of the submissions made by the learned Standing counsel, we are not inclined to examine the issue further. However, petition stands disposed of requesting the learned District Collector, Allahabad to ensure that the petitioner be not dispossessed of any part of his own land without following the procedure prescribed by law.
11. Thus the authorities were directed not to dispossess the petitioner except otherwise then in accordance with law. It is thereafter that the petitioners were called upon to advance their contention in the matter before the. Deputy Director Consolidation giving rise to the impugned order dated 8th December, 2011.
12. The submission of Sri G.P. Singh, learned Counsel for the petitioners is therefore that the order is without jurisdiction and based on a non existent order dated 07.09.1973.
13. Replying to the aforesaid submissions Sri Mohan Yadav, learned Counsel for the respondent No. 5 contends that the allegation that there is no such order in existence is false and incorrect, inasmuch as the said order is endorsed on CH Form- 23 and a clear finding to that effect has been recorded in the impugned order. He contends that the application for correction which was moved may have been captioned erroneously but such an application for implementation of an order is even otherwise maintainable under Rule 109 of U.P. Consolidation Land Holdings Rule, 1954. He further submits that the petitioners after having unlawful occupied the land allotted for a Chak-road are causing inconvenience to all the villagers and tenure-holders at large. Therefore this error which has crept into the final records of CH Form-41 and CH Form-45 was rightly corrected by the Deputy Director Consolidation. He contends that the order was very much within the jurisdiction of the Deputy Director Consolidation and is in accordance with law.
14. Learned Standing Counsel and learned Counsel for the Gaon Sabha, Sri D.D. Chauhan have adopted the same arguments. They submit that the writ petition has no merit and deserves to be dismissed.
15. Having heard learned Counsel for the parties, it is evident that the dispute relates to the order dated 7.9.1973 being implemented after the village has been de-notified in the year 1988. It is no doubt true that after the village has been de-notified, the Consolidation Authorities become functus officio but they continue to have jurisdiction to correct their own errors and implementation of orders passed during consolidation operations under the provisions of the Act and Rules.
16. Sri Singh, learned Counsel for the petitioners is correct in his argument that an application u/s 42A may not be maintainable but at the same time an application for implementing the order dated 7.9.1973, coupled with request for correcting the entries of CH Form-41 and 45 was maintainable. In the present case so long as the order dated 7.9.1973 is in existence, the petitioners can not defy the same moreso when the order is in relation to a public utility Chak- road which is said to be occupied by the petitioners in their holding. The application therefore in my opinion even if wrongly captioned was an application for implementation of the order of Consolidation Authorities as per the provisions referred to herein above under the 1954 Rules, The petitioner can not be permitted to continue to occupy public utility land as reserved under the orders of the Competent Authority.
17. Coming to the allegations of Sri Singh, learned Counsel for the petitioners that the order dated 7.9.1973 is not in existence, it is evident from the record that neither in the restoration application nor in the affidavit filed in support thereof that there is any averment that the endorsement of the order dated 7.9.1973 on CH Form -23 is forged or fake. The only averment in paragraph 24 of the affidavit of the petitioner is that there is no such order in existence. This is a bald averment without any evidence to support the same and as such has been rightly disbelieved by the Deputy Director Consolidation.
18. The clear finding has been recorded by the Deputy Director Consolidation that the order dated 7.9.1973 is endorsed on CH Form-23 during the consolidation operations. This finding has no where being challenged in the entire writ petition or supplementary affidavit filed on behalf of the petitioners. In such a situation, there is no material before this Court to believe that the order dated 7.9.1973 is not in existence. Sri Singh, learned Counsel for the petitioners submits that the question answer which has been filed as Annexure 11 to the writ petition clearly indicates that the said file is not available in the record room. I have perused the said question answer obtained from the record room and the answer given is that the file is not available in its place and if the file has been consigned to the record room, men the applicant should supply the Basta number and date of, deposit to give and further reply. The aforesaid question answer no where says that such a file was never in existence. After having obtained the said question answer, petitioner should have made a querry from the record room about the existence of endorsement of such a file in the "Misil Bandobast" or the "Goswara" which are the'' relevant records relating to the entry of such files and there weeding out The petitioner did not make any such attempt and therefore the endorsement of the order on CH Form- 23 has rightly been presumed to be correct by the Deputy Director Consolidation.
19. In view of the conclusions drawn herein above, there does not appear to be any force in the argument of Sri Singh, learned Counsel for the petitioners.
20. Sri Mohan Yadav, learned Counsel for the respondent No. 5 has further pointed out that there is no reduction in the area of the petitioners as it was originally recorded in their name in CH Form-23. The petitioner has no where disputed the area recorded in CH Form- 23. What he insists is that the area of CH Form-41 and CH Form-45 should be maintained. The authority has relied on a report which indicates that there is no reduction of the actual area that there was recorded in the name of the petitioners when the consolidation operations commenced. The discrepancies is therefore clearly entered at the stage of preparation of final records in CH Form-41 and CH Form-45 which was not in conformity with the order dated 7.9.1973 endorsed in CH Form-23.
21. Accordingly the writ petition does not call for any interference under Article 226 of the Constitution of India for the reasons aforesaid particularly when the order is to sustain a Chak-road which is a public utility land under the orders of the Deputy Director Consolidation dated 7.9.1973.
22. The apprehension of the petitioners is that the land of the petitioners has been considerably reduced is therefore a matter of implementation and 1 measurement to be carried out. It shall be open to the petitioner to point out to the authorities about the actual area of the petitioners which they are entitled to retain as per the endorsement of CH Form-23. It is further to be noted that the petitioners do not attempt to have made any effort to get the order dated 7.9.1973 set aside in spite of the fact that the same is endorsed in CH Form-23. Accordingly for all the aforesaid reasons there is no merit in the petition and it is accordingly dismissed.
