A.P. Sahi, J. - (1.) THE two petitioners, Dev Sharma and Gaurav, have prayed for quashing of the order dated 10th March, 2003 passed by the Additional Collector (Finance & Revenue) Gautambudh Nagar, in case No. 33 of 2001, whereby the learned Additional Collector has come to the conclusion that the proceedings initiated under Sub-section 4 of Section 198 of the U.P. Z.A. & L.R. Act, 1950 are not barred by time, as in view of the submissions so raised, the action having been taken suo motu under the said Act are valid and that notices should be issued calling upon the petitioners and such other persons to examine as to whether the allotment of land in favour of the petitioners in 1954 was genuine and in accordance with law or not. Assailing the said order the petitioners approached the Board of Revenue by filing a revision which was also dismissed affirming the order of the Additional Collector. Hence, this petition.
(2.) THE litigation has a chequered history and therefore a brief background would be necessary to understand the controversy. The petitioners with several others claim that allotment was made in their favour by the Gaon Sabha and had the sanction of the competent authority under the then existing provisions of Section 195 of the 1950 Act. The petitioners also claim that they fell in the order of preference as then existed under Section 198 of the Act. It is further their contention that Rules were followed for such allotment and there was no irregularity in the procedure prescribed as contemplated under Rule 173 to 175 of the U.P. Z.A. & L.R. Rules, 1952. After the allotment in the year 1954, which was under the prescribed rules the same also finds entry in several public documents. The names of the petitioners or their predecessors were entered into the revenue records as bhumidhar with non-transferable rights and later on in view of the provisions of U.P. Act No. 8 of 1977 the petitioners became bhumidhars and are continuously in possession over the land in dispute. The title and possession of the petitioners came to be tinkered with for the first time in the year 1995 and they were sought to be dispossessed by the authorities on the pretext that the land vests in the Gaon Sabha and that the names of the petitioners have been wrongly recorded, hence, they deserve to be dispossessed. The petitioners approached this Court through writ petition No. 1958 of 1995 alongwith other petitioners and the said writ petition was disposed of on 20th January, 1995 by the following order: "BY The COURT The petitioners have alleged that they have been granted patta in 1954 but now they apprehend that they may be dispossessed. Learned counsel for the petitioners states that as yet no order for dispossession has been passed under Section 198 (4) of the U.P. Z.A.L.R. Act. Hence this petition is premature. However, I clarify that the petitioners shall not be dispossessed except in accordance with law. With these observations the petition is finally disposed of. dated 20.1.1995 S6.I- M. Katju."
(3.) IT appears that after the disposal of the said writ petition, on 27th January, 1995, an endorsement came to be made in the revenue record of rights (Khatauni) directing expunging of the names of the petitioners and the other tenure holders who were recorded over the said land in proceedings under Sections 33/39 of the U.P. Land Revenue Act, 1901. This action of the revenue authorities came to be challenged by the petitioners in writ petition No. 3751 of 1995. The said writ petition was entertained and after exchange of affidavits and summoning of the records the petition was allowed holding that the basis for expunging the entries did not fail within the scope of correction and therefore the name of the petitioners could not be expunged summarily. IT was also observed that if the allotment in favour of the petitioners was sought to be annulled then the same could have been done only under the provisions of Section 198 and not by an indirect method through summary proceedings. IT was further held that the action of the Sub Divisional Magistrate was mala fide and was contrary to the settled law in relation to correction of entries as such the petition was allowed. The operative part which is relevant for the present controversy apart from the other facts discussed therein is quoted herein below: "The law in respect of correction of papers case is well settled. The highest revenue Court in the State has consistently held that long standing entries cannot be corrected in a case of correction of papers. According to settled legal position any person aggrieved by a long standing entry has to get his rights determined in regular suit. In case the Gaon Sabha or State was aggrieved then it was for them to seek appropriate remedy but so far this case is concerned, it is not a case of correction of papers. In these cases the Sub-Divisional Officer was summoned in view of the fact that the order was passed by Sub-Divisional Officer against settled legal position. He was asked to point out circumstances in which he passed order on undated reports of Lekhpal, Supervisor Kanoongo and Naib Tehsildar while the matter was dealt with in such a hurry that the order was passed by Tehsildar on 2.1.1995 and on scme day file reached the Court of sub-Divisional Officer and he also passed order on same day on 2.1 1995 without affording opportunity of hearing to petitioners to have their say in the matter. He was specifically asked about the file being dealt with in a hurry against normal practice of sending of file by Tehsildar and then passing of order after sometime to which he had no reply. He was also asked, as allegations of mala fide were there, to inform Court as to how he came to the conclusion that correction could be made in this case and why it be not considered that he has abused his powers. The sub-Divisional Officer submitted that as he considered the entry to have been made wrongly, he passed the order. So far this aspect is concerned, the Sub-Divisional Officer Sikandarabad in his order has indicated that he relied on the report to the effect that petitioners are large land holders and they do not live in territorial limits of village of tehsil Sikandarabad and allotment has not been done in accordance with law. He has also assigned reason for ordering correction that approval of Sub-Divisional Officer, Sikandarabad was not obtained in respect of allotment of this land and there was no file in respect of this allotment of land. According to Sub-Divisional Officer what was done by him by ordering deletion of names of petitioners was for the benefit of Gaon Sabha when it was pointed out to him that no approval of Sub Divisional Officer was required under law at the time of allotment of land to petitioners and it was by a subsequent legislation that it was made necessary, he was unable to clarify the position despite his order which is before me. Although what has been said above may be relevant for determining the malice I do not consider it necessary to go into the question as to whether the revenue authorities acted mala fidely in this case, as the writ petition can be disposed of on a different ground. As stated earlier, it is settled law in the State that long standing entries cannot be corrected in correction of papers matters and the orders directing deletion of petitioners' name are contrary to that settled legal position. IT is further relevant to observe that so far this case is concerned, from perusal of the orders of Sub-Divisional Officer it is apparent that the Sub Divisional Officer was of the view that the land could not be allotted to petitioners as they are large land holders and non-residents of tehsil Sikandarabad as well as approval of Sub-Divisional Officer was not obtained. So far latter requirement of approval of Sub-Divisional Officer is concerned it was not necessary in 1362F as the law as it stood at that time did not require approval of the Sub-Divisional Officer in respect of allotment of Gaon Sabha land under Section 198 of Zamindari Abolition Act. As it was not necessary to obtain approval of Sub-Divisional Officer in respect of allotment, therefore, the reason assigned for correction about want of approval of Sub-Divisional Officer is unsustainable. There is another reason due to which the orders cannot be sustained. In cases of correction of papers it is not open for Sub-Divisional Officer to see the regularity of procedure in allotment. In case the Sub-Divisional Officer was of the view that necessary procedure has not been followed in making allotment or there was any procedural irregularity then he could have brought it to the notice of the Collector, who could have drawn proceedings under Section 198 of Zamindari Abolition Act keeping in view the law of limitation and other legal provisions. The allotment made in favour of tenure-holders can-be cancelled after following the procedure provided under Section 198 of Zamindari Abolition Act. Unless the allotment is cancelled, the allottee continues to be tenure-holders of land allotted to him. These aspects were pointed out to the Sub-Divisional Officer, who was summoned in this case. He has been unable to point out any provision of law under which such a case fall within the ambit of correction of papers case. The State has failed in this case to support the orders passed which are contrary to settled law to the effect that the long standing entries could not be corrected. The entries deleted in this case of correction of papers are therefore liable to be restored. For aforesaid reasons the writ petition succeeds and orders of Sub-Divisional Officer, Sikandarabad, Bulandshahar dated 2.1.1995 in Case Nos. 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24 of 1995 under Sections 33/39 of U.P. Land Revenue Act are quashed. The Collector Bulandshahar is directed to correct the papers by restoring the names of petitioners in their respective case within one month from the date of production of certified copy of this order. The writ petition is allowed with costs. The record of the Court below be handed over to the Standing Counsel." It appears that some of the tenure holders including the petitioner No. 2 Gaurav were again threatened with dispossession and they filed a civil suit for injunction being Original Suit No. 232 of 2002 impleading the State of U.P. and Gaon Sabha both as respondents in the said suit.;