Allowed

Dharam Pal v. District Deputy Director Of Consolidation and Ors.

Uttarakhand HC21 Jul 2017WPMS/52/2006

Case brief

AI extract

What is this about?

The High Court of Uttarakhand allowed a writ petition quashing an order by the Deputy Director Consolidation that altered chak boundaries and allocated chak road. The court held that Section 42-A of the U.P. Consolidation of Holdings Act, 1953, is limited to correcting clerical or arithmetical errors and cannot be used to determine substantive rights or alter settled proceedings.

What did the court decide?

The order of the Deputy Director Consolidation dated 19.11.2005, accepting the reference and altering chak boundaries under Section 42-A, is quashed.

Dharam Pal Vs District Deputy Director Of Consolidation… — Land Acquisition | Uttarakhand HC (2017)

¶1

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

¶2

Writ Petition No. 52 of 2006 (M/S)

¶3

Dharam Pal …...Petitioner

¶4

Versus District Deputy Director of Consolidation and others

¶5

…… Respondents.

¶6

Present:

¶7

Mr. Sudhir Kumar, Advocate for the petitioners. Mr. Vipul Sharma, Advocate for respondent Nos. 1 and 2. Mr. Pankaj Purohit, Deputy Advocate General for the State of Uttarakhand.

¶8

Dated: 21^st July, 2017

¶9

JUDGMENT

¶10

Hon’ble Sharad Kumar Sharma, J.

¶11

Section 42-A of U.P. Consolidation of Holdings Act, 1953 reads as under :-

¶12

“ Correction of clerical or arithmetical errors. - Notwithstanding anything contained in any law for the time being in force, if the Consolidation Officer or the Settlement Officer, Consolidation, is satisfied that a clerical or arithmetical error apparent on the face of the record exists in any document prepared under any provision of this Act, he shall, either on his own motion or on the application of any person interested, correct the same.”

¶13

The precondition for invoking Section 42-A of Consolidation of Holdings Act, begins with a non obstinate clause and it could be invoked only when a satisfaction is recorded by the Consolidation Officer or the Settlement Officer that there is clerical or arithmetical mistakes in the document prepared under the Consolidation Act and it could be done on its own motion or on an application of another person interested.

¶14

¶15

The prime consideration is that there has to be an apparent mistake in a document prepared during the consolidation proceedings to be corrected on an application of person interested.

¶16

In the instant case, an application was filed by one Mr. Om Veer Singh on 04.03.2002 (Annexure No.1 to the writ petition). The action proceeded on the application, thus, filed by Mr. Om Veer Singh on 04.03.2002, was not a reference during the suffering from a clerical mistake rather it seems that he was trying to avenge his grievance in relation to a chak road which he wanted to be of certain width so that his boogies may commute easily, this is not the scope within under Section 42A.

¶17

It was the case of Om Veer Singh that he has no chak road for approaching his chak Nos. 411 and 413, rather on reading of his objection shows that he has chalk road, there was a chak road but not as per his expectation relating to width only.

¶18

Coincidentally, the application filed by Om Veer Singh on 04.03.2002 was opposed by Arjun Singh by filing an objection on the same day, i.e. 04/03/2002, requesting that chak road as provided may be maintained, as pursuance to orders chaks have already been altered, this prayer of Om Veer Singh may not be accepted.

¶19

The findings as recorded by Consolidation Officer were rather beyond the case of Om Veer Singh who wanted chak road to be widened only, shifting of road from eastern side of chak No. 24A to western side would be amounting to disturbing the entire proceedings already culminated, by extending the ambit of powers under Section 42-A of the Act.

¶20

¶21

Case of the petitioner is that under the grab of reports of Assistant Consolidation Officer and the objection of respondent No. 2, which was submitted by Consolidator on 04.03.2003, who reported that there is mistake between Bachat land and Gata 333/1 and its has been taken as to shelter for invoking under Section 42-A, which was not the case. It would amount to carving out a new case not even pleaded by a party to the proceedings. Thus, mistake that there was mistake between Bachat land and Ghata 331/1 was fictitious.

¶22

It seems the Consolidation Officer having premonition that he would be getting application under Section 42-A, passed an order on 04.03.2002 itself, asking the Assistant Consolidation Officer to give his report which too was submitted on 04.03.2002. The Consolidation Officer based on the report made a reference under Section 42-A, filed on application by Om Veer Singh, itself, creates a doubt.

¶23

On a reference being made to the Consolidation Officer, it seems that the Consolidation Officer referred the matter to the Settlement Officer Consolidation on 27.09.2002 who submitted the reference to the Deputy Director Consolidation for an appropriate order and acceptance of reference. The Deputy Director, Consolidation in Reference Case No. 5 of 2002-03, under Sub-Section 3, had declined to accept the reference and remanded the matter back to the Settlement Officer, Consolidation to hold a spot inspection, hear the parties and then passed an order after getting a report as per the provision of holding an inspection under Section (3) of Section 21 of the Consolidation of Holdings Act. The ratio of inspection in the Consolidation Act is given

¶24

¶25

to the Consolidation Officer while deciding the objections contemplated under the Act.

¶26

The petitioner’s case as it has been taken at the stage of preparation of provisional consolidation scheme, none of the respondents has raised demand of chak road, they under the garb of alleged mistake pointed by Assistant Consolidation Officer in his report 04.03.2002, which as per petitioner, is a false report, no change is to be made under Section 42-A; thus, as per petitioner in due claim of Mahendra Singh for providing chak road from chak of petitioner is contrary to the provision of the Act.

¶27

From objection of respondent, it also reveals that either before the proceedings under Section 42-A, none of the respondents claimed chak from the holding of Gata 330(M), by Chakdar 411 and 413. The Consolidation Officer could not have traveled beyond the case of parties to the dispute by carving out a case for respondent No. 4, Mahendra Singh who was not applicant or claiming chak road.

¶28

On remand, Reference No. 05 of 2002-03, Om Veer Singh and others and Reference No. 06 of 2002-03, State Vs. Mahendra Singh were taken up yet again and the Consolidation Officer on 31.01.2004, made reference to Settlement Officer Consolidation to place the reference before D.D.C.

¶29

Settlement Officer, Consolidation referred the matter to D.D.C. for acceptance of reference and to accept the report of Assistant Consolidation Officer dated 27.09.2002, which reported that there is mistake in chak no. 333 and chak road.

¶30

Reference before the Consolidation Officer, afresh by order dated 31.01.2004, was objected by petitioner on following grounds :-

¶31

¶32

Respondent No.1 already had chak road on Gata 24A.

¶33

Respondent No. 1 is suitably converted to his chak No. 411 and 413 that there was no need to altar chak.

¶34

Petitioner contended that he has tree planted on the boundaries of chak No. 112.

¶35

Petitioner questioned propriety of report 04.03.2002 and 27.09.2002, being procured report, which were even beyond the principal objection and the application for reference under Section 42-A.

¶36

Chak given to petitioner had become final no alteration was required to be made for providing so called chak road claimed by the respondents.

¶37

Petitioner assailed the order of Deputy Director of Consolidation dated 19.11.2005, altering chak of petitioner and allowing reference giving chak road to respondent in the petition. Petitioner further contended its wrong to contend that respondent do not have chak road to approach chak 411 and 413.

¶38

On perusal, this Court feels that the Courts below have magnified the case beyond what was pleaded by respondents. Their case had never been a claim of chak road from petitioner chak 112, they claimed that chak road on Gata 24 A to be shifted from East to West given on Gata 24A, I, hold that Courts have traveled beyond the case and beyond 42-A itself, and beyond the purpose of U/S 42-A as provided by law. Under the garb of clerical mistake, new

¶39

¶40

case cannot be carved by the Consolidation Authorities to the prejudice of petitioner.

¶41

An application under Section 42-A which is contemplated for making of a reference for correction of mistake would always be read in relation to the mistake which is challenged in the order where the objection is contemplated. Hence Section 42-A of the Act will itself not constitute to be an objection contemplated under the Act under Section 20 or 21 (1). Hence, there is no occasion for Deputy Director Consolidation, while passing the dated 28.10.2002, to remit the matter back to reconsider matter on reference dated 04.03.2002 by passing order afresh after holding the spot inspection. This is not the intention and purpose of Section 42-A. Thus, the objection by Om Veer Singh seems to be with some ulterior motive and does not apply in normal proceedings provided under the Act.

¶42

Subsequent to the order of Deputy Director Consolidation dated 28.10.2002, a fresh order was passed by the Consolidation Officer on 30.01.2004, wherein, he declined to take any action in pursuance to the Deputy Director Consolidation order dated 28.10.2002, as none of the parties despite notice had appeared. After reaching the stage of the Consolidation Officer and, thereafter, the Settlement Officer, Consolidation, by the impugned order, the Deputy Director, Consolidation on 19.11.2005, has accepted the reference and had accepted the prayer made in the application dated 04.03.2002 and simultaneously altering the chak in relation to Chak 20A, 196, 225, 24-A, 112, 411 and 413.

¶43

If Deputy Director, Consolidation by the impugned order dated 19.11.2005, was almost affecting the chalk of major tenure holders affecting entry of CH 23 Part (I), he

¶44

¶45

could not have done in the garb of exercising the power under Section 42-A, as it would amount to overcoming the proceedings under 9A (2) or 21. Section 42-A is not meant to determine a right of the parties by making a reference and that too in the manner in which the power has been exercised by the Deputy Director Consolidation under Section 42-A. Reference is beyond the scope of provision itself and it smacks malice because the chak holder has referred in the operative portion of the order who would be affected and alteration made it would absolutely be in relation to tenure holders they have been allotted. The order does not speak that those persons whose chaks would be disturbed by reference order, and whose plots have been referred in the operative portion, they were noticed and were heard. Since the order dated 19.11.2005, being beyond the scope and intention of Section 42-A of the Act is bad in the eyes of law, hence, is quashed.

¶46

The writ petition is allowed.

¶47

(Sharad Kumar Sharma, J.)

¶48

21.07.2017 Sanjay

Dharam Pal v. District Deputy Director Of Consolidation and Ors.

Case brief

What is this about?

What did the court decide?

Dharam Pal v. District Deputy Director Of Consolidation and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Chaman Lal Vs D.J. Haridwar and Ors.

Bhaskar Guru Niranjan Singh and Ors. Vs State and Ors.

Shyam Lal and Ors. Vs Sukhmaal Chand Jain and Ors.

Raghubir Singh and Ors. Vs A.C.R.C and Ors.

State and Ors. Vs Surendra Singh and Anr.

Narain Dutt Joshi Vs P.O.L.C. and Anr.