K. N. Misra, J. - (1.) THIS petition under Article 226 of the Constitution has been directed against the orders passed by the opposite parties nos. 3 and 4 in the proceedings under Sec. 42-A of the U. P. Consolidation of Holdings Act (hereinafter refered to as the said Act). Briefly stated the facts of the case are that the petitioner no. 1 Ram Murat was allotted chak no. 254 and petitioner no. 2 Kalloo was allotted chak no. 37 as against their original holding. The opposite party no. 1 Mata Saran was allotted chak no. 207 and his father Ram Jiawan, opposite party no. 2, was allotted chak no. 265 as against their original holding. The allotment of chak was confirmed by the Settlement Officer (Consolidation) under Sec. 23 (1) of the said Act and possession over the respective chaks was delivered to all the tenure-holders including the petitioners and opposite parties nos. 1 and 2 some 10 years ago and thus they were in cultivatory possession over their respective land. Petitioner No. 1 Ram Murat had constructed a well on his chak no. 254 for irrigating his land. The opposite party No. 1 Mata Saran moved an application before the Settlement Officer (Consolidation) praying that the chak road be provided from the village abadi to his chak and that the petitioner no. 1 be estopped from making the construction of the well. The Settlement Officer (Consolidation) vide order dated 19-12-1978 allowed the application of opposite party No. 1 under Sec. 42-A of the Act and provided chak road to the father of opposite party No. 2 Ram Jiawan who was allotted chak no. 265. Petitioner has filed chak map and its perusal indicates that by providing this chak-road to the chak of opposite party No. 2, the chaks of the petitioner No. 1 and 2 have been affected and as the chak-road has been provided on the land which was allotted to the petitioner nos. 1 and 2. THIS chak-road has been carved out towards east of chak of petitioner no. 1 and it covers chak no. 37 of petitioner no. 2 on three sides. The Settlement Officer (Consolidation) in his impugned order has mentioned that the parties are agreed to the proposed amendment in the chak and for providing of chak-road. He has also ordered that the chaks allotted to the petitioner and to opposite party No. 2 will be be reduced to the extent of the valuation which has gone in the chak-road they will be benefitted by it. Aggrieved by this order the petitioners filed revision under Sec. 48 of the Act which was dismissed as not maintainable by the Deputy Director of Consolidation vide order dated 27th June, 1980. The petitioners have filed this writ petition challenging the aforesaid orders passed by opposite parties nos. 3 and 4.
(2.) LEARNED counsel for the petitioners contended that the Assistant Settlement Officer (Consolidation) has no jurisdiction under Sec. 42-A of the Act to make alterations in the chak of the petitioners. He further urged that the application of the opposite party no. 1 Mata Saran was not maintainable as no chak-road could be provided to any individual tenure-holder nnder Sec. 42-A of the Act nor an individual tenure-holder can claim a chak-road for his benefit at the cost of the other tenure-holder. LEARNED counsel contended that by the impugned order passed by the opposite party no. 3 the petitioner's chak in village abadi has been reduced in the valuation aswell as in the area and he has been materially affected as the well which the petitioner no. 1 has constructed would become unserviceable as the chak road which has been provided will run through paudhari of the well. In reply the learned counsel for the opposite parties nos. 1 and 2 contended that the opposite parties 3 and 4 in exercise of power under Sec. 42-A of the Act provided a chak road to the opposite party no. 2 on an application which has been filed by his son Mata Saran. I have carefully considered the aforesaid argument and I find substance in the argument of the learned counsel for the petitioners. My attention has been drawn to an unreported decision in Civil Misc. Writ Petition No. 3464 of 1962 decided on July 7, 1969. This decision was affirmed in Special Appeal No. 800 of 1969 decided on Sept. 25,1970. In the said case a Rasta was claimed from the portion of the plot allotted to the chak of other tenure-holders. The Deputy Director of Consolidation accepted the claim and sallowed Rasta through chak of others giving him land of equal valuation but the order passed by the Deputy Director of Consolidation was quashed by this Court and it was observed that the claim of the petitioner to carve out path for him from the chak allotted to the various other tenure-holders was not reasonably claimed. Moreover, after allotment of the chak over which the possession has been delivered to the allottees it was not expedient on the part of the Deputy Director of Consolidation to have interfered with them. In this view of the matter I am of the opinion that the application of the opposite party No. 1 wherein he prayed for providing Rasta to chak of his father from village abadi was not maintainable at all nor such request could be considered by the Assistant Settlement Officer (Consolidation) in exercise of his powers under See. 42-A of the Act. It is not disputed that the chaks were carved out in the village some 10 years ago and the same were confined under Sec. 23 (1) of the Act and possession was delivered to the respective allottees and they are in cultivatory possession ever since then. The Settlement Officer (Consolidation) in exercise of power inder Sec. 42-A could correct any clerical or arithmetical error apparent on the face of the record. In Ganga Prasad v. Consolidation Officer, 1966 AWR 519 Hon'ble B. N. Nigam, J. has held that : "What can be corrected is a clerical or arithmetical error and not an error in the decision. The Consolidation Officer could not have corrected, revised or reviewed the order possed by the Settlement Officer, Consolidation in this connection. Giving effect to the orders of Settlement Officer, Consolidation cannot be treated as a clerical or arithmetical error, simply because the Settlement Officer (Consolidation) happened to grant a chak to one of the petitioners in excess of ?what he was legally entitled to. That may be an error of decision. It cannot be said to be a clerical or arithmetical error." In the present case it is not disputed that there was no error in the decision of the allotment of chaks to the parties. What has been done by the Assistant Settlement Officer (Consolidation) by the impugned order is that he has provided chak road to the opposite party no. 2 which he could not legally do u/S. 42-A of the Act and by doing so he has committed manifest error of law and jurisdiction in making the alteration in the confirmed chaks which were allotted to the petitioners. He has also reduced the area and valuation of the chaks which were allotted to the petitioners near the village abadi. Such power could not be exercised by the Assistant Settlement Officer (Consolidation) in purported exercise of power under section 42-A of the Act. In this view of the matter I am of the opinion that the impugned order passed by the Assistant Settlement Officer (Consolidation), Annexure-4 dated 19-12-1978 is per se illegal and without jurisdiction. The application filed by the opposite party No. 1 for providing a chak road to chak of his father was also incompetent and not maintainable, as no chak road could be provided to any individual tenure-holder in exercise of power under section 42-A of the Act. Learned counsel for the opposite parties contended that even though such order could not be passed by the Assistant Settlement Officer (Consolidation) in exercise of power under section 42-A of the Act, the Deputy Director of Consolidation could pass such order in exercise of power under section 48 (3) of the Act. I am unable to agree with this contention. The Deputy Director of Consolidation, as already held by this Court jn Sripat v. Haridwar, 1980 AWC 146 has no power under section 48 (3) to make alteration in the chak by providing Rasta or nali to any individual tenure-holder. The relevant portion of the said decision is as under ; "No provision has been pointed out under the Act or the Rules framed under the Act for providing a Rasta and Nali to any private tenure-holder. In the absence of any specific provision under the Act or the rules framed under the Act for any act to be done by any authority, nothing can be done by the Deputy Director of Consolidation in exercise of his powers under section 48 (3) of the Act. in this view of the matter, the application of the petitioner for providing Rasta and Nali from one chak to the other where he has got his pumping set was not maintainable."
(3.) I am also of the same view. The Deputy Director of Consolidation in exercise of power under section 48 (1) or sub-clause (3) could consider the legality or propriety or correctness of the orders passed by the subordinate authorities or proceedings taken by them. He cannot in exercise of power under section 48 (3) nor under section 42-A interfere with the consolidation scheme and cannot make any alteration in the chaks of the tenure-holders by providing chak road or nali to any individual tenure-holder for which there is no provision under the Act. In this view of the matter I do not find any merit in the aforesid submission of the learned counsel for the opposite parties nos. 1 and 2. The Deputy Director of Consolidation has also committed manifest error of law in holding that the revisions filed by the petitioners were not maintainable without assigning any reason for the same. The orders passed by the Assistant Settlement Officer (Consolidation) under Sec. 42-A of the Act are revisable and the revision under Sec. 48(1) was, therefore, maintainable. The Deputy Director of Consolidation has thus committed manifest error of law in rejecting the revision filed by the petitioners as not maintainable. In view of what has been stated above, since the order passed by the Assistant Settlement Officer (Consolidation) was illegal and without jurisdiction, I think that no useful purpose will be served in remanding the case to the Deputy Director of Consolidation for deciding the case afresh.;