High Court · 2025 on 11 Feb 2025

Judgment

1. This writ petition is directed against an order dated 26.09.2024 passed by the Deputy Director of Consolidation, Agra in a revision under Section 48(1) of the U.P. Consolidation of Holdings Act, 1953 (for short, 'the Act') arising out of an order dated 06.12.2023 passed by the Settlement Officer of Consolidation, Agra rejecting the petitioner's application under Section 42-A of the Act on the ground of maintainability and inordinate delay.

2. The petitioner's case is that in the Khatauni for the Fasali Years 1366 to 1368, Khata No. 112, Plot No. 265 ad-measuring 0-3-0 was recorded as a graveyard in the revenue record relating to village Kharkana, Pargana & Tehsil Etmadpur, District Agra. Consolidation operations were notified in the village about the years 1963-64. It is the petitioner's case that during field to field Padtal, Khata No. 112, Plot No. 265 ad-measuring 0-3-0 was found to be a graveyard and recorded as such in CH Form 2A. It was not valued and kept out of consolidation operations. During allotment of Chaks, the predecessor-in-interest of respondent nos. 4 to 14 surrepticiously got Plot No. 265 proposed in Chak No. 72. Subsequently, the said entry of Plot No. 265, ad-measuring 3 biswa was included in new Plot No. 155 due to a mistake of the Consolidation Authorities.

In this connection, learned counsel for the petitioner has relied upon CH Form 23 and CH Form 40. The old Plot No. 265, ad- measuring 0-3-0 was recorded in CH Form 41 separately and not included in the Chak of the private respondents' predecessors but due to the consolidation Authorities mistake, it was included in Khata No. 89Kha, and assigned Plot No. 155 in CH Form 45 without the order of a competent Court or Authority. The petitioner says that in the map Zild Chakbandi graveyard is still shown and on the spot, it is retained as Parti. The petitioner asserts that he is a Muslim and that he and other Muslims of the village would use old Plot No. 265 for burial of the dead since before enforcement of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, and also prior to commencement of the consolidation scheme in the village without hindrance. In the month of October, 2021, the respondents prevented the petitioner from burying a dead body in Plot No. 265, now included in Plot No. 155. They set up their rights to the said plot. The petitioner made inquiry from the District Record Room, Agra and found that Plot No. 265, ad-measuring 0-3-0 is wrongly entered and illegally included in Plot No. 155 and shown in CH Form 45. The petitioner, therefore, moved an application under Section 42-A on 07.10.2021 seeking correction of the wrong entries in the final consolidation map. The petitioner says that the Consolidation Lekhpal/Consolidator made inquiries and submitted report, according to the petitioner, vindicating the fact that old Plot No. 265 was recorded as graveyard in the revenue records but during consolidation proceedings, it was included in new Plot No. 155. He also reported that in CH Form 2A, old Plot No. 265 was shown as a graveyard. The Consolidation Officer also submitted a report dated 10.04.2023 to the effect that in CH Form 2A, the old Plot No. 265, ad-measuring 0-3-0 was recorded as a graveyard but shown in CH Form 41 separately. Later on in CH Form 45, it has been entirely included in Plot No. 155. 2 of 6

4. The petitioner's application under Section 42-A of the Act was rejected vide order dated 06.12.2023 by the Settlement Officer of Consolidation, primarily on the ground of delay in making it and also on ground that after issue of a notification under Section 52 of the Act, an application on that account was not maintainable. Adding to it, the Settlement Officer of Consolidation has buttressed his opinion with decision of this Court in Ram Bahadur and another vs. Deputy Director of Consolidation, Amethi and others, 2023 (159) RD 540, where it has been held that the provisions of Section 42-A of the Act are meant to correct clerical and arithmetical errors and not to change recorded nature of the land or decide complicated questions affecting. The said order has been upheld in revision by the Deputy Director of Consolidation vide order dated 26.09.2024.

5. Aggrieved, this writ petition has been instituted under Article 226 of the Constitution.

6. Heard Mr. Mohd. Ayub, learned counsel for the petitioner in support of the motion to admit this petition to hearing at length and the learned Standing Counsel in answer .

7. Upon hearing learned counsel for the parties, what we find is that the consolidation operations ended in the village in the year 1965 with the publication of a notification under Section 52 of the Act. The mistakes about inclusion of Plot No. 265 in Plot No. 155 that the petitioner alleges, relates to the consolidation operations that commenced in the year 1962 and ended in the year 1965. All along final consolidation records show the land in dispute to be a part of Plot No. 155 and not a graveyard. Right from the year 1965 to the year 2021, the petitioner nor any other Muslim native of the village, raised the issue before any Authority or a Court of competent jurisdiction, which the petitioner now canvasses. During the first 3 of 6 round of consolidation, when the final records and map were drawn without objection to the land, which the petitioner now claims, being included in Plot No. 155 belonging to the predecessor-in-interest of respondent nos. 4 to 16, it is not a case of a clerical or an arithmetical error. Rather, it is substantial, where in the absence of steps being taken to establish their rights promptly during the first round of consolidation concluded in the year 1965, the bar of Section 49 would be attracted against the petitioner's claim. Even if it be assumed that indeed there was a clerical error that happened way back in the years 1962 to 1965, steps for correction had to be taken before the competent Authority, whether under Section 42-A or before the Revenue Authorities, wherever the remedy lay, promptly. It is difficult to accept that the petitioner would not have come to know of this record of rights in the final consolidation map for as long as a period of 57 years.

8. Admittedly, the petitioner never moved any Authority in the matter with the case that he now urges before the year 2021 against a wrong which, according to him, happened between the years 1962 to

1965. Jurisdiction under Section 42-A of the Act is limited to clerical and arithmetical errors being corrected and it cannot be utilized to undo entries in consolidation records pertaining to old consolidation operations that have stood the way they are for half a century and more. The nature and the power to correct under Section 42-A of the Act, apart from being limited to clerical and arithmetical errors, would require promptitude on the applicant’s part in taking action. There is a peculiar feature to this cause which must be noticed. The petitioner says that he came to know of this incorrect entry, made during the consolidation operations from 1962 to 1965, in the month of October, 2021, when he and other villagers were prevented from burying the dead. There is hardly any pleading or evidence to show when, how 4 of 6 and where the petitioner was prevented from burying a corpse. In the nature of things, if in a Muslim graveyard, there were a sudden obstruction to the right of burial, there would be events of protest and telltale events of such a happening. No such facts, in particular, date, time and place and what transpired when the petitioner was prevented from burying a particular corpse, have been mentioned. Paragraph no.12 of the writ petition is all that is there for a pleading on this point. It reads: “12. That in the month of October 2021, the respondent no. 4 to 14 restrained, the petitioner for criminating the dead body over the old plot no. 265 including in new plot no. 1555 and they exposed their right over the same, thereafter the petitioner made an inquiry in the office of District Record room Agra, and found that the old plot no. 265 area 3 Biswa has wrongly and illegally been included in Khata No. 89Kha plot No. 155 of C.H. Form No. 45.”

9. There would be evidence also of members of the community to which the petitioner belongs agitating their rights or reporting matters to the Authorities, if a right of burial had been suddenly obstructed. There is neither any mention of facts that show a sudden obstruction of the right nor any evidence to vindicate it. There is not even a complaint addressed to the Civil or Police administration in the matter which would invariably be there if the right of burial were obstructed. All the pleadings and documents are about consolidation records with a vague assertion that in the month of October, 2021, the petitioner was prevented from burying a dead body in Plot No. 265. Not a word about the overt circumstances attending the event have been pleaded, much less evidence given of the slightest consequence. 5 of 6

10. One of the points that was argued was that the authorities below have gone wrong in declining an application under Section 42-A of the Act on ground that after issue of a notification under Section 52 of the Act, an application under Section 42-A is not maintainable. It is true that this question is engaging the attention of a larger Bench of this Court in Ashrafi Devi and others vs. Deputy Director of Consolidation Varanasi and others, Writ-B No. 33966 of 2016 but that point is not of much consequence here. The reason is that assuming that the application was maintainable after a publication under Section 52 of the Act, for the other reasons indicated, the application is not fit to be entertained on the multiple counts that we have noticed.

11. In the result, we are of the considered opinion that no case for interference with the impugned order is made out. This petition fails and is summarily dismissed. Order Date :- 11.2.2025 Brijesh Maurya 6 of 6 BRIJESH KUMAR High Court of Judicature at Allahabad