# Pateshwari Dutt Pandey v. D.D.C. Dist. Faizabad & Ors

- **Citation:** (2015) 2 ILRA 905
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-08-07
- **Case number:** Consolidation No. 571 of 2015
- **Bench:** Ritu Raj Awasthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pateshwari-dutt-pandey-v-d-d-c-dist-faizabad-ors-43235
- **Pages:** 6

## Headnote

U.P. Consolidation of Holdings Act-Section
42-A read with 52(2) and Rule 109-Acorrection
of
map-after
40
years
of
publication of notification under Section 52whether can be entertained by consolidation
authorities-held-on highly belated stage-can
not
be
entertained
by
consolidation
authorities-except
the
exceptional
circumstance given in Ghamari case.
Held: Para-20
In view of above, it is, therefore, held
that the application under Section 42-A
of
the
Act
for
correction
of
final
consolidation map will not lie before the
Consolidation Courts after the close of
consolidation operation in the unit after
issuance of notification under Section 52
(1) of the Act except in exceptional
circumstances as observed in the case of
Ghamari
Vs.
Deputy
Director
of
Consolidation, Ballia and others; [2003
(94) RD 90]. Such application will lie
only before the authority under the U.P.
Land Revenue Act under Section 28.
Case Law discussed:
[2008 (105) RD 469]; [2014 (32)LCD 1912];
1979 RD 76 (DB); 1989 RD 281; [2003 (94)
RD 90]; [2015 (1) JCLR 310 (All)]; [2003 (94)
RD 90].

## Text

2 All] Pateshwari Dutt Pandey Vs. D.D.C. Dist. Faizabad & Ors.
905
proceedings, hence petitioner, at this
stage, cannot be permitted to raise such a
plea in order to challenge the impugned
orders.
16. In view of above, I do not find
any infirmity or illegality in the order
impugned. The writ petition being devoid
of merit is dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.08.2015
BEFORE
THE HON'BLE RITU RAJ AWASTHI, J.
Consolidation No. 571 of 2015
Pateshwari Dutt Pandey
......Petitioner
Versus
D.D.C. Dist. Faizabad & Ors.
Respondents
Counsel for the Petitioner:
Aditya Tiwari
Counsel for the Respondents:
C.S.C., Vijay Krishna
U.P. Consolidation of Holdings Act-Section
42-A read with 52(2) and Rule 109-Acorrection
of
map-after
40
years
of
publication of notification under Section 52whether can be entertained by consolidation
authorities-held-on highly belated stage-can
not
be
entertained
by
consolidation
authorities-except
the
exceptional
circumstance given in Ghamari case.
Held: Para-20
In view of above, it is, therefore, held
that the application under Section 42-A
of
the
Act
for
correction
of
final
consolidation map will not lie before the
Consolidation Courts after the close of
consolidation operation in the unit after
issuance of notification under Section 52
(1) of the Act except in exceptional
circumstances as observed in the case of
Ghamari
Vs.
Deputy
Director
of
Consolidation, Ballia and others; [2003
(94) RD 90]. Such application will lie
only before the authority under the U.P.
Land Revenue Act under Section 28.
Case Law discussed:
[2008 (105) RD 469]; [2014 (32)LCD 1912];
1979 RD 76 (DB); 1989 RD 281; [2003 (94)
RD 90]; [2015 (1) JCLR 310 (All)]; [2003 (94)
RD 90].
(Delivered by Hon'ble Ritu Raj Awasthi, J.)
1. Notice on behalf of respondents
no. 1 and 2 has been accepted by the
learned Chief Standing Counsel. Mr. N.K.
Seth, learned senior advocate assisted by
Mr. Vijay Krishna has put in appearance
on behalf of respondent no. 3.
2. For the order proposed to be
passed, there is no need to issue notices to
respondents no. 4 and 4, hence notices to
them are hereby dispensed with.
3. Heard learned counsel for the
parties.
4. The writ petition has been filed
challenging the order dated 03.07.2015
passed by the Deputy Director of
Consolidation, Faizabad in Reference No.
213 as contained in Annexure-1 to writ
petition.
5.
As per given facts of the case,
Village Janaura, Pargana - Haveli Awadh
was notified for consolidation operation
under Section 41 U.P. Consolidation of
Holdings Act (for short 'the Act') sometime
in
the
year
1968.
The
Assistant
Consolidation Officer during preparation of
Khasra Chak bandi of each plot as well as
revision of the map, found that there is a
tube-well and temporary construction on one
biswa land of old plot no. 639. He vide order
906
 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 24.11.1971 declared the said one biswa
land of plot no. 639 as chak out. After
completion of the consolidation proceedings,
notification under Section 52 of the Act was
issued sometime in the year 1975. The
petitioner on 11.2.2013 had moved an
application under Section 42-A of the Act
before
the
Consolidation
Officer
for
correction in the map. The Consolidation
Officer vide order dated 17.02.2014 had
made reference under Section 48 (3) of the
Act
before
the
Deputy
Director
of
Consolidation as he was of the opinion that
since notification under Section 52 of the Act
has already been issued and a considerable
long time has passed, as such, he has no
jurisdiction to pass any order under Section
42-A of the Act.
6. Learned counsel for petitioner
submits that in this regard the Assistant
Consolidation Officer had submitted his
report
dated
24.1.2015
before
the
Consolidation Officer in which it was
specifically mentioned that incorporation
of one biswa land that was declared as
abadi land by order dated 24.11.1971
shall be incorporated in Gata No.
195/1337, it was not correctly mentioned
in the map. The reference was ultimately
decided by the Deputy Director of
Consolidation by the impugned order
wherein he has rejected the same on the
ground that after issuance of notification
under Section 52 of the Act, 39-40 years
have passed when the application was
preferred which is highly time barred. The
petitioner
could
get
the
necessary
correction made by availing the remedy
under Section 28 U.P. Land Revenue Act.
7. Submission is that there is no bar
that application under Section 42-A of the
Act cannot be entertained after issuance
of notification under Section 52 of the
Act. It is also submitted that there is no
limitation
prescribed
to
move
the
application under Section 42-A of the
Act, as such, it cannot be termed as time
barred.
8. In support of his submissions,
learned counsel for petitioner relies on the
judgment of this Court in the case of
Pooran Singh Vs. Deputy Director of
Consolidation, Meerut and others; [2008
(105) RD 469], particularly paragraph 8.
He also relies on the judgment of this
Court in the case of Dr. Sukhbeer Singh
Vs. Commissioner, Meerut and Others;
[2014 (32) LCD 1912] wherein it has
been held that if the map is not according
to the final order then it can be corrected
either under Section 42-A read with
Section 52 (2) and Rule 109-A of the Act
or under Section 28 U.P. Land Revenue
Act. The mistake cannot be permitted to
continue in the revenue records.
9. Mr. N.K. Seth, learned senior
advocate appearing for respondent no. 3
submits that the application preferred
under Section 42-A of the Act for
correction in the map by the petitioner
was
not
maintainable,
once
the
notification under Section 52 of the Act
for
denotifying
the
consolidation
operation was issued. It is submitted that
the law is well settled in this regard. The
Division Bench of this Court in the case
of Gafoor Vs. Addl. Commissioner,
Lucknow and others; 1979 RD 76 (DB)
has held that if a map is subsequently
found incorrect and it is not in conformity
with the document prepared by the
consolidation authorities, the same can, in
suitable cases, be corrected subsequent to
the publication of the notification under
Section 52 of the Act by the Collector in
exercise of power under Section 28 of the
2 All] Pateshwari Dutt Pandey Vs. D.D.C. Dist. Faizabad & Ors.
907
Land Revenue Act. The same view has
been taken in the case of Hari Ram Vs.
D.D.C. Azamgarh; 1989 RD 281. He also
relies on the judgment of this Court in the
case of Ghamari Vs. Deputy Director of
Consolidation, Ballia and others; [2003
(94) RD 90] wherein the Court has laid
down the criteria under which in
exceptional circumstances no application
under Section 42-A of the Act can be
entertained after closing of consolidation
operations and issuance of notification
under Section 52 of the Act. He also relies
on the judgment in the case of Sant Lal &
Ors.
Vs.
Deputy
Director
of
Consolidation, Allahabad & Ors.; [2015
(1) JCLR 310 (All)], wherein it has been
held that the application under Section 42A, filed almost two years after the
consolidation
operations
closed
was
clearly not maintainable.
10.

I
have
considered
the
submissions made by the parties' counsel
and gone through the records.
11.

After
considering
the
submissions made by the parties' counsel,
only a short legal question which evolves
for consideration before this Court is
whether the application preferred under
Section 42-A of the Act by the petitioner
in the given facts and circumstances, after
issuance of notification under Section 52
of the Act was maintainable and in case
such application was not maintainable
whether the petitioner has any remedy of
getting the alleged correction in the map
under any other law.
12. The respondent no. 1 by the
impugned order dated 03.07.2015 has
recorded in its finding that after closing of
consolidation operations and issuance of
notification under Section 52 of the Act in
the village Janaura which was near to the
city a lot of development has taken place
on and around the land in question. The
application for correction was made after
approximately 39-40 years of issuance of
notification under Section 52 of the Act.
In case there is any error in the map, the
said error can be corrected under Section
28 U.P. Land Revenue Act, as such, there
is no reason to entertain the application
for correction moved by the petitioner.
The petitioner can get the correction made
in the map by moving application under
Section 28 U.P. Land Revenue Act.
13. The legal position as come out
on consideration of the above facts is as
under: -
14. The Division Bench of this
Court in the case of Gafoor (supra) has
categorically held that if a map is
subsequently found incorrect and it is not
in conformity with the document prepared
by the consolidation authorities, the same
can in suitable cases be corrected
subsequent to the publication of
the
notification under Section 52 of the Act
by the Collector in exercise of power
under Section 28 of the Land Revenue
Act. Relevant paragraph 4 of the
judgment on reproduction reads as under:
"4. Looking to the provision of the
U.P. Consolidation of Holdings Act and
the Land Revenue Act, we are in
agreement with the view expressed in
Mohammad Raza v. Board of Revenue
(supra) and we hold that if a map is
subsequently found incorrect and it is not
in conformity with the document prepared
by the consolidation authorities, the same
can in suitable cases be corrected
subsequent to the publication of the
notification under Section 52 of the Act by
908
 INDIAN LAW REPORTS ALLAHABAD SERIES
the Collector in exercise of power under
Section 28 of the Land Revenue Act. Thus
we are of the view that the law laid down
in Ganga Glass Work (Private) Ltd.,
Balavali v. State of U.P. (supra) is not
good law."
15. The same view has been taken
by another Division Bench of this Court
in the case of Hari Ram (supra).
16. In the case of Ghamari (supra) this
Court has carved out exceptions to apply the
maintainability of application under Section
42-A of the Act after issuance of
notification under Section 52 of the Act.
The Court has held that firstly the cases
which were pending under Article 226 of
the Constitution of India before the High
Court at the time of notification and were
decided after de-notification and secondly,
the cases which were pending before the
consolidation authorities at the time of the
de-notification and judgment were rendered
thereafter, only in such cases application
under Section 42-A of the Act after issuance
of notification under Section 52 of the Act
is
maintainable
and
in
no
other
circumstance, the application under Section
42-A
of
the
Act
after
closing
of
consolidation operations and issuance of
Notification under Section 52 of the Act is
maintainable. Relevant paragraph 5 of the
judgment on reproduction reads as under:
"5. A reading of the abovenoted
statutory provisions clearly reveals that
only two types of cases are covered by the
said sub-section (2) of Section 52 and by
the Rule 109-A. Firstly, the cases which
were pending under Article 226 of the
Constitution of India before the High
Court at the time of notification and were
decided
after
de-notification
and
secondly, the cases which were pending
before the consolidation authorities at the
time of the de-notification and judgment
were rendered thereafter. Sub-section (2)
of Section 52 begins with a non-obstante
clause meaning thereby whatever has
been provided by sub-section (1) is
irrelevant and is not to be looked into
while dealing with the case under subsection (2). In the instant case admittedly
on the date of the de-notification neither
the case was pending before the High
Court nor before any authority under the
Act. The decision was rendered on
16.1.1969 much before the de-notification
on the basis of which the application
under Section 42-A of the Act was filed.
By means of the said application the
contesting respondent wanted to give
effect to the order passed on 16.1.1999
when it was legally not permissible as
Rule 109-A had not application in the
present case. The authorities below had
no
jurisdiction
to
entertain
the
application
filed
by
the
contesting
respondent. They have acted illegally in
entertaining the said application and
deciding the same in his favour."
17. In the case of Sant Lal & Ors.
(supra), the Court has held that once the
notification under Section 52 of the Act
has
been
issued
and
consolidation
operations have
come
to a
close,
maintenance and correction of final
consolidation map prepared by the
Consolidation authorities shall be carried
out by the Collector in accordance with
the provisions as contained in U.P. Land
Revenue Act. Relevant paragraphs of the
judgment on reproduction read as under:
"11. It is clear from a bare reading
of the provision itself that it specifically
provides that once notification under
section 52 of the Act has been issued and
2 All] Pateshwari Dutt Pandey Vs. D.D.C. Dist. Faizabad & Ors.
909
consolidation operations have come to a
close, maintenance and correction of final
consolidation map prepared by the
Consolidation
authorities
during
consolidation shall be carried out by the
Collector
in
accordance
with
the
provisions as contained in the UP Land
Revenue Act.
12. Since there is a specific provision
in the Act itself providing for correction
of map after de-notification of the village
and
after
close
of
consolidation
operations,
the
observations
is
the
judgements relied upon by the contesting
respondents, which state that section 42-A
has overriding effect and there is nothing
contrary in the Act which debars orders
being passed under this section even after
notification under section 52 has been
issued, appears to be unjustified. It is
evident that the provision contained in
section 27(3) of the Act which provides
specially that correction of map is to be
made in accordance with the provisions of
the UP Land Revenue Act, 1901, once
consolidation operations has been closed,
was not brought to the notice of the court
while it was deciding the aforesaid cases.
13. The counsel for the respondents,
therefore, is not entitled to any benefit
under the judgements cited by him and I
am constrained to hold to the judgements
relied upon do not lay down the correct
law having failed to notice the effect and
import of section 27(3) of the Act.
14. It is, therefore, held that an
application under section 42-A for
correction of the final consolidation map
will not lie before the Consolidation
Courts under section 42-A after the close
of consolidation operation in the unit by
issuance of notification under section
52(1) of the Act and such an application
will lie only before the authority as
provided under the UP Land Revenue Act.
Section 42-A of the UP Consolidation of
Holdings
Act
can
be
invoked
for
correction of the map only till such time
the consolidation operations have not
been closed by issuance of a notification
under section 52 of the Act. However the
courts have jurisdiction to decide an
application and order correction in the
map under section 42-A even after a
notification under section 52(1) has been
issued only if such application for
correction
was
filed
before
the
notification was issued and was pending
on that date."
18. So far as the judgment of this Court
in the case of Pooran Singh (supra) reliance on
which has been placed by the petitioner's
counsel is concerned, in the said case the
application preferred under Section 42-A of the
Act for correction was allowed by the
Consolidation Officer. The Court held that
there is no absolute prohibition that such power
cannot be exercised under Section 42-A of the
Act after publication of Notification under
Section 52 of the Act. In the case of Dr.
Sukhbeer Singh (supra), the Court has
observed that in case map is not according to
the final order then it can be corrected either
under Section 42-A read with Section 52 (2)
Rule 109-A of the Act or under Section 28 U.P.
Land Revenue Act. The mistake cannot be
permitted to continue in the revenue records.
Relevant paragraph 9 of the judgment on
reproduction reads as under:
"9. In this case, the petitioner took the
case that by the order dated 9.9.1980, passed
in reference proceeding, the location of the
chak road was shifted. Although, the order of
Deputy Director of Consolidation was duly
incorporated in other consolidation record,
but the map has not been corrected according
to it. Thus, the map which was prepared
during consolidation operation, was not
910
 INDIAN LAW REPORTS ALLAHABAD SERIES
according to the final order of Deputy
Director
of
Consolidation
and
final
consolidation records In case the map is not
according to the final order, then it could be
corrected, either under Section 42-A read with
Section 52(2) and Rule 109-A of U.P.
Consolidation of Holdings Act, or under
Section 28 of the Act. The mistake cannot be
permitted to continue in the revenue record. "
19. Both these judgments in the
given facts and circumstances of this case
do not help the petitioner as they are not
applicable.
20. In view of above, it is, therefore,
held that the application under Section 42-A
of the Act for correction of final
consolidation map will not lie before the
Consolidation Courts after the close of
consolidation operation in the unit after
issuance of notification under Section 52 (1)
of
the
Act
except
in
exceptional
circumstances as observed in the case of
Ghamari
Vs.
Deputy
Director
of
Consolidation, Ballia and others; [2003 (94)
RD 90]. Such application will lie only
before the authority under the U.P. Land
Revenue Act under Section 28.
21.
As such, I am of the considered
view
that
in
the
given
facts
and
circumstances, as mentioned above, the
application preferred by the petitioner under
Section 42-A of the Act after issuance of
notification under Section 52 of the Act was
not maintainable. The view taken by the
respondent no. 1, Deputy Director of
Consolidation while deciding the reference
is just and proper. The petitioner has a
remedy of getting the correction made in the
map by moving application under Section
28 U.P. Land Revenue Act before the
concerning Collector.
22. The writ petition being devoid of
merit is dismissed.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.07.2015
BEFORE
THE HON'BLE VIPIN SINHA, J.
Government Appeal No. 666 of 1987
State of U.P.
...Appellant
Versus
Harish Chandra & Ors.
...Respondents
Counsel for the Appellant:
A.G.A.
Counsel for the Respondents:
Sri Vijendra Singh, Sri Virendra Singh
Govt. Appeal-against acquittal-offence
u/s
3/7
E.C.
Act-no
illegality
or
perversity shown-nor can be disputed
the
view
taken
by
Trail
Court-no
reasonable prudence of man can form
such opinion-after laps of 25 years-can
not be interfered-Appeal dismissed.
Held: Para-16
It is an established position of law that if
the court below has taken a view which
is a possible view in a reasonable
manner, then the same shall not be
interfered with and that too in view of
the fact that more than 25 years have
already elapsed.
Case Law discussed:
Criminal Appeal No. 791 of 2011; Criminal
Appeal No.512 of 2014; Criminal Appeal No.
1508 of 2005.
(Delivered by Hon'ble Vipin Sinha, J.)
1.
Heard
learned
Additional
Government Advocate, learned counsel
for the respondents and perused the
record.