A.P. Sahi, J. - (1.) THE petitioner has come up praying for quashing of the order dated 6.9.2011 passed by the Collector, Gautam Budh Nagar, refusing to entertain the restoration application of the petitioner for correction/rectification of the order dated 7.4.1993 on the ground that the correction sought is time barred, and secondly in view of the orders passed by the High Court and the Apex Court, the Collector will have no authority to carry out corrections in the order dated 7.4.1993 which was subject matter of controversy before the said Courts and has been affirmed.
(2.) THE petitioner has further prayed for a mandamus directing the respondents to dispose of the petitioner's application dated 22.2.1995 which had been filed for rectification of the order dated 7.4.1993 in terms of the directions of the High Court dated 22.9.2004 passed in Writ Petition No. 31741 of 1998 as referred to in the letter of the State Government dated 13.5.2011. A further prayer has been made that a mandamus be issued directing the respondents not to alter the status of the petitioner's land in dispute or transfer the same to any other agency. This apprehension has been expressed on the ground that the entire land which was subject matter of the order dated 7.4.1993, is sought to be handed over to NOIDA authority for allotment. In view of the nature of the allegations made in the writ petition, this Court passed an order on 13.10.2011 calling upon the District Magistrate to explain as to why the impugned order dated 6.9.2011 be not treated to be a malicious order in the background of the case and as to why costs be not imposed in this regard. The order dated 13.10.2011 is reproduced hereunder: "Heard Sri S.D. Kautilya, learned counsel for the petitioner and the learned Standing Counsel. This writ petition is another glaring example of executive in sensitiveness of an ordinary litigant of this country. The petitioner's case is that he has never parted with his land, which was subject matter of proceedings against Pragatisheel Samuhik Sahakari Krishi Samiti Limited, which came to be finalized by the Apex Court after the dismissal of the special leave petition on 7.12.2010. The main issue is that an order was passed on 7th of April, 1993 vesting the property in the State in a proceeding against the said Samiti. The petitioner moved an application for correction/modification of the said order on the ground that the petitioner's land in dispute to the extent of the area claimed had been wrongly included in the proceedings and it was a pure arithmetical error. This error was sought to be rectified through the said application, which remained pending. The application could not be disposed of on account of the pendency of the litigation of the aforesaid Samiti. The application came to be rejected in the year 1998 and one of the aggrieved persons namely Sohan had filed Writ Petition No. 44406 of 1997, which was disposed of on 6.1.1998 directing the authorities to consider the said grievance. The petitioner also challenged the order passed against him and the writ petition filed by the petitioner was disposed of on 22.9.2004, a copy whereof is Annexure 6 to the writ petition. The order passed against the petitioner dated 19.2.1998 was quashed. The matter again remained pending on the pretext of the pendency of litigation of the Samiti. The petitioner's application was again processed and the District Magistrate on 13.10.2008 without passing any order on the application of the petitioner consigned the file. The petitioner again approached the authorities and as a matter of fact, after the dismissal of the special leave petition, the petitioner approached the Collector, who in turn dispatched a letter on 7th of January, 2011 to the Principal Secretary, Government of Uttar Pradesh informing him that on the basis of the report, it appears that such applications as moved by the petitioner, are still pending and, therefore, appropriate directions should be issued for their disposal. This letter of the District Magistrate to the Principal Secretary, Revenue Government of Uttar Pradesh (Annexure 9 to the writ petition) in detail indicates the status of affairs and which clearly acknowledges the pendency of such applications relating to corrections that were sought in the order dated 7.4.1993. The petitioner, therefore, again moved an application in 2011. With the change of guard, the present District Magistrate, Mr. Hridesh Kumar, appears to have constituted a committee which also submitted a report indicating that the claim of the petitioner appears to be correct. The District Magistrate, however, inspite of the said report has rejected the application of the petitioner on the ground that it is highly time barred. It is this order dated 6th of September, 2011 which is assailed before this Court. In the aforesaid background, Sri Kautilya submits that this is a clear case of harassment of the petitioner and the District Magistrate has simply brushed aside the directions of this Court as also the report of the committee itself. The order, therefore, is not only illegal but is also contemptuous. The contention raised by the petitioner appears to be correct and in the opinion of the Court, such an executive in sensitiveness calls for imposing a heavy exemplary cost on the District Magistrate for having dealt with the matter so casually. The issue of applying Section 5 of the Limitation Act to the proceedings or treating the same to be highly time barred appears to be preposterous as noted herein above. The petitioner has been continuously pursuing his matter. On the contrary the authorities have failed to discharge their duties as is evident from the letter of the Collector dated 7.1.2011. Accordingly, this Court is of the opinion that this petition prima facie deserves to be allowed with a cost of Rs. 1 lac on the District Magistrate/ Collector, G.B. Nagar for having passed the order dated 6th of September, 2011 which clearly reflects malice in law. Learned Standing Counsel, however, prays that the matter be adjourned in order to enable him to obtain instructions from the concerned District Magistrate by the next date fixed. Put up on Tuesday i.e. 18.10.2011 to enable the learned Standing Counsel to do so."
(3.) THE matter was adjourned on the request of Sri S.G. Hasnain, learned Addl. Advocate General, who made a request on 18.10.2011 on behalf of the District Magistrate/Collector for filing an Affidavit in response to the aforesaid order. Today when the matter was taken up, a short counter affidavit has been filed sworn by Sri Satish Shukla, Tehsildar Dadri, Gautam Budh Nagar, on behalf of the District Magistrate. Sri S.D. Kautilya, learned counsel for the petitioner, states that the said short counter affidavit only narrates facts and proceeds to defend the impugned order on the pretext that the Collector cannot pass an order of any rectification or correction of the order dated 7.4.1993, which has been upheld up to the Supreme Court. This pretext in the submission of Sri Kautilya is a cloak to avoid decision in the matter as the Collector appears to be apprehending violation of the orders of the High Court and the Supreme Court or in the alternative is unable to cater to the directions issued by the State Government. He submits that the petitioner being a humble litigant, he has been tossed from one place to another for no valid reason and he further relies on the decisions in the case of L. Janki Rama Iyer and others v. P.M. Nilakanta Iyer and others, AIR 1962 SC 633, and the case of 6. Shivananda v. Andhra Bank Ltd. and another, (1994) 4 SCC 368, to contend that this was a simple case of rectification invoking the provisions of Sections 151 and 152 of CPC, and instead of carrying out the rectifications which are practically admitted by the respondents, the Collector has shelved his responsibility on an altogether erroneous approach, hence the impugned order deserves to be quashed. He contends that the obligation of the Collector was to hear and decide the application on merits but the same has been conveniently avoided in the circumstances indicated above which is a complete failure to exercise his discretion, more so in the light of the judgment of the Division Bench of this Court dated 22.9.2004.;