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Smt. Rekha Singh and ors. Vs. the State of U.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberWrit Petn. No. 360 of 1972
Judge
Reported inAIR1973All539
ActsUttar Pradesh Land Revenue Act, 1901 - Sections 28, 39, 40 and 57
AppellantSmt. Rekha Singh and ors.
RespondentThe State of U.P. and ors.
DispositionPetition allowed
Excerpt:
civil - power of correction - sections 28 , 39 , 40 , 57 of u.p. land revenue act,1901 - power of collector to be exercised to correct clerical errors, record changes or alterations in the boundaries - collector does not have power to bring changes or alterations in the entries of khataunis - only civil court can make the correction. - - this is so because the power exercised under section 28 by the collector is a non-judicial power which is well-settled by a full bench of this court in raj kumar v. in conferring power of correcting errors in the field-book and the map under section 28 in a unilateral manner by a executive order the legislature clearly did not intend to confer on the collector power to make correction in the field-book and the map in respect of disputed entries......villages are forged or otherwise incorrect then the remedy lies in approaching the competent civil court for adjudication. as it is, the petitioners are entitled to the relief asked for. 6. the petition is allowed and the opposite parties are commanded not to make any changes in the khasras, khataunis and the maps of villages bhageria, ponda, saran kalan, sohni and niddhi purwa prepared during record operations as closed on 2nd august, 1971 except on the basis of a declaration obtained from the competent civil court through proper legal proceedings. the petitioners will get costs of these proceedings from opposite party no. 1.
Judgment:
ORDER

Om Prakash Trivedi, J.

1. This writ petition under Article 226 of the Constitution of India has been filed by Smt. Rekha Singh and 16 others against the State of Uttar Pradesh, the Deputy Commissioner, Bahraich and the Divisional Forest Officer, Bahraich.

2. The petitioner's case is that they are the tenants of plots lying in villages Saran Kalan, Bhageria Sohni, Ponda and Niddhipurwa as specified in para 1 of the petition: that adjoining the land of the petitioners there is forest area which has been declared by the State of Uttar Pradesh to be, reserve forest under a notification of 12-9-1967. It is alleged that the Forest Department illegally and wrongfully encroached upon and included a part of petitioners land by fixing demarcation pillars, whereupon they applied to the Sub-Divisional Officer Nanpara for demarcation of forest land. The said application came up for disposal before the Additional Sub-Division Officer Nanpara who rejected the same, where after the petitioners filed an application before the Divisional Forest Officer for demarcation of the Forest land which was also rejected in March, 1971. Aggrieved by this petitioner No. 1 filed Writ Petition No. 504 of 1971, petitioner No. 2 filed Writ Petition No. 505 of 1971, petitioners Nos. 3 to 7 filed Writ Petition No. 506 of 1971, petitioners Nos. 8 to 11 filed Writ Petition No. 507 of 1971, petitioners Nos. 12 to 15 filed Writ Petition No. 509 of 1971, petitioner No. 16 feed Writ Petition No. 510 of 1971 and petitioner No 17 filed Writ Petition No. 508 of 1971 in this Court. These Writ Petitions were heard together and decided by a common judgment. The petitions were allowed and a writ of mandamus issued commanding the State of Uttar Pradesh to get the land of the petitioners demarcated and directing that if on demarcation it was discovered that any land of the petitioners had been encroached upon the same shall be released in their favor forthwith. Aggrieved by this order the State Government filed a special appeal and also applied for stay but the prayer for stay was rejected. The special appeal was however, admitted and is still pending. It was alleged that the State Government did not obey the mandamus issued in the said writ petitions and the petitioners moved for taking contempt proceedings against it. Upon a notice being issued to show cause why contempt proceedings should not be taken the State of Uttar Pradesh and the Divisional Forest Officer submitted an apology. Thereafter in compliance with the order of the Single Judge in the said writ petitions demarcation of petitioners' land in the said five villages was done by the Lekhpal and concluded on 3-12-1971. The Lekhpals reported to the Forest Department after demarcation proceedings that the land of the petitioners had been encroached upon and included in forest The forest Department was directed to remove their boundary pillars and to fix them in accordance with the survey and demarcation carried on by the lekhpals. After submission of the aforesaid reports by the Circle Lekhpals it is alleged that the Deputy Commissioner, Bahraich was taking steps to have changes made in the Khasras, Khataunis and maps of the villages which had been prepared during record operations and which had become final with the closure of those operations. It may be mentioned here that according to the petitioners the aforesaid villages were under record operations from, 1375 Fasli under Government Notification dated November 28, 1967 mentioned in para 10 of the petition and the said operations were finalised and closed under a notification dated August 2, 1971. All the disputes during the record operations, it is contended, were to be decided by the Record Officer under Section 51 of the Land Revenue Act in the manner prescribed in Section 41. The petitioners maintain that after close of the record operations the Khasras, Khataunis and the maps of these villages could not be corrected by the Record Officer or by the Collector.

3. Again the petitioners claimed to have moved this Court for contempt proceedings when the Deputy Commissioner, Bahraich, was said to have taken steps to effect changes in the Khasras, Khataunis and the maps. Those proceedings were, however, eventually dropped. The petitioners apprehend that the opposite parties may make illegal changes in the Khasras, Khataunis and the maps of these villages affecting the rights of the petitioners and pray for a mandamus commanding them not to make any such changes in the said records and maps of the said villages.

4. In the counter affidavit sworn by Bachchu Lal Awasthi on behalf of opposite party No. 2 the defence raised is that copies of the maps of these villages do not tally with the originals which are in the office of the Board of Revenue and the maps in the Office of the Deputy Commissioner contain forgeries and as the Khasras and Khataunis of these villages are based on these forged maps and are inconsistent with the maps in the office of the Board of Revenue, they are incorrect and forged and the collector is empowered under the provisions of the U. P. Land Revenue Act to make necessary corrections in the Khasras, Khataunis and maps of these villages. In the course of arguments learned Chief Standing Counsel Sri K. S. Verma placed reliance solely upon the provisions contained in Section 28 of the U. P. Land Revenue Act which is in these words:

'The Collector shall, in accordance with rules made under Section 234, maintain a map and field-book of each village in ins district, and shall cause annually, or at such intervals as the State Government may prescribe, to be recorded therein all changes in the boundaries of each village or field and shall correct any errors which are shown to have been made in each such map or field-book.'

After hearing Sri S. D. Misra, learned counsel for the petitioners and the Chief Standing Counsel I am of the opinion that on the facts stated in the counter affidavit for the opposite parties the Collector has no power to make changes in the entries of the Khasras, Khataunis and maps of the aforesaid villages under Section 28 of the U. P. Land Revenue Act (hereinafter called the Act), or under any other provision of the said Act. Under Section 28 the Collector is empowered to cause to be recorded annually or at such intervals as may be prescribed by Government all changes in the map regarding boundaries of each village and field. He has also been empowered to correct any errors which are shown to have been made in such map or field-book. It is clear that Section 28 does not empower the Collector to make any changes or alterations in the entries of Khatauni. He can make changes in the field-book or Khasra and the map only under specified conditions. Firstly, he can make changes in the map of any village annually or at such intervals as the State Government may prescribe in respect of changes in the boundary of each village. Secondly, he has power to correct any errors in the map or field-book of the village. Now, it is not even suggested that there has been any changes in the boundaries of these villages after the map was finalised by the Record Officer. Thirdly, it is not suggested in the counter affidavit that the field-book or map contained any errors. In fact the counter-affidavit does not specify any error at all in the field-book or Khasra. No errors are specified in the maps also. On the other hand, the only allegation is that the copy of the map kept in the office of the Deputy Commissioner, Bahraich, contains forgeries. The only ground alleged for forgery is that it does not tally with the copy of the map kept in the office of the Board of Revenue. No forgery is alleged in respect of field book or the Khasra. It is also described as forged only because it does not tally with the copy of the map found in the office of the Board of Revenue. The net result, therefore, is that while there are allegations of forgery against the map and also in a far-fetched manner against the Khasra there is no allegation of any error in the map or the Khasra. In the absence of any changes in the boundaries of these villages and in the absence of any errors being alleged against the map the same could not, therefore, be corrected by the Collector in exercise of power conferred by Section 28 of the Act and the field-book or the Khasra also could not be corrected because it is not the petitioners' case that any errors were detected in it or had crept in it. Apart from this I am of the view that it is those errors only in the field-book or the map which are of purely clerical nature and which are not disputed by interested parties that can be corrected by the Collector under Section 28 of the Act. This is so because the power exercised under Section 28 by the Collector is a non-judicial power which is well-settled by a Full Bench of this Court in Raj Kumar v. Bhagat Singh, 1956 All LJ 233 (Rev.) see also Sukhbir Singh v. Mohd. Saeed, 1957 All LJ 9. This implies that the power which may be exercised under Section 28 administratively should not adversely affect the rights of any one. The moment a certain error is a disputed one the Collector cannot obviously decide it under Section 28 without affecting the rights of the disputants. In conferring power of correcting errors in the field-book and the map under Section 28 in a unilateral manner by a executive order the Legislature clearly did not intend to confer on the Collector power to make correction in the field-book and the map in respect of disputed entries. Where there is a disputed error in the map or Khasra it is the Civil Court only which is competent to adjudicate upon it. Under Section 57 of the Act all entries in the record of rights prepared in accordance with the provisions of Chapter IV of the Act are presumed to be true until the contrary is proved and the entries which are binding on all Revenue Courts can be challenged only before the Civil Court. The presumption of correctness about these entries must hold until the contrary is proved before the Civil Court. It is, therefore, clear from Section 57 of the Act that in the case of a disputed error in the field-book and the map or the record of rights prepared in accordance with Chapter IV of the Act the Collector has no power to decide whether there is an error of there is no error and it is the Civil Court alone which can adjudicate upon a disputed error. It follows, therefore, that the remedy of the opposite parties lay not in proceeding to correct the Khasra and the map under Section 28 of the Act but in bringing an action in the Civil Court and to obtain a declaration that the maps, Khasras and Khataunis were forgeries or incorrect and that some other record as held by the Court was correct. Even apart from this the Collector under no circumstances could correct the entries of Khataunis of these villages under Section 28 which empowers correction in the village map and the field book only under limited conditions already adverted to. The Khataunis could only be corrected according to the procedure laid down in Sections 39 and 40 of the Act read with Section 33 after hearing the parties. But this is not sought to be done. Even under Section 39 entries of the Khatauni can be corrected only in the case of a mistake in the entries. But there is no allegation even in the case of Khataunis of mistake in the entries. It is clear that there is no provision under which Khatauni entries could be corrected on the ground that the entries are not true or are forged in view specially of Section 57 of the Act under which the presumption of correctness of the entries of the Khatauni attaches until proved to the contrary before the competent Civil Court. It follows, therefore, that a dispute regarding correctness of entries can be decided only by the Civil Court

5. One of the points raised by the learned Chief Standing Counsel was that the Khasras, Khataunis and the maps were not made in accordance with the procedure provided by law and, therefore, the presumption of correctness did not attach to them under Section 57 of the Act. There is no provision in the Act conferring power on any Revenue Authority to draw up fresh records of rights or the village map on the ground that the record of rights and the map prepared by the Record Officer during survey operations were not according to law. Finality attaches to the record of rights prepared by the Record Officer under Section 52 of the Act and under Section 53 it is the duty of the Collector to maintain such record instead of the record previously maintained under Section 33. The records prepared by the Record Officer under Section 52 cannot be corrected even by the record Officer after they gained finality in this way, let alone the Collector. In the present case it is an admitted fact that these villages were under record operations from 1375 Fash which operations were finalised and closed in August, 1971. All disputes regarding the annual registers and records of rights must have been disposed of and decided by the Record Officer under Section 51 of the Act in accordance with the procedure laid down in Section 41 and after the close of these operations the Khasras, Khataunis and the maps of these villages became final as rightly urged by learned counsel for the petitioners and they could not be corrected by the Collector. Their entries could be challenged only in a proper suit before the competent Civil Court. Even so far as the allegation that the Khasras, Khataunis and the maps were not prepared according to law there is no allegation of disregard of any procedure in the preparation of these records. The only allegation is that the entries of these records were not correct as they do not tally with the so-called forged maps of the villages. But it is not even alleged that Khasras and Khataunis were made from forged maps Indeed they could not have been made from forged maps which record only boundaries of fields. From every point of view, therefore, it is clear that the State of Uttar Pradesh, or the Deputy Commissioner, Bahraich or their subordinates possess no power in law to make any corrections in the khasras. Khataunis and the maps of the aforesaid five villages either under Section 28 or under any other provisions of the Act, the same having been finalised on the close of record operations. Any attempt to achieve this on their part would be unlawful and bound to affect the rights of the petitioners who are entitled to ask for this court's intervention. If the opposite parties believe that the village maps, Khasras or Khataunis of these villages are forged or otherwise incorrect then the remedy lies in approaching the competent Civil Court for adjudication. As it is, the petitioners are entitled to the relief asked for.

6. The petition is allowed and the opposite parties are commanded not to make any changes in the Khasras, Khataunis and the maps of villages Bhageria, Ponda, Saran Kalan, Sohni and Niddhi Purwa prepared during record operations as closed on 2nd August, 1971 except on the basis of a declaration obtained from the competent Civil Court through proper legal proceedings. The petitioners will get costs of these proceedings from opposite party No. 1.


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