Ashok Bhushan, J.

1. Heard Sri R.B. Singhal. Sri Pradeep Kumar Bhardwaj, Sri R.K. Mishra, Sri B.D. Mishra, Sri Sharad Mandhyan, Sri Manoj Pathak, Sri Santosh Kumar Srivastava, Rajendra Kumar Mishra, Sri V.K. Mishra, Sri Abhishek Mayank, Harish Chandra Mishra, Sri Javed Habib, Sri B.M. Singh, Sri Syed Mahmood, Sri Ashfaq Ahmad Ansari, Sri Anil Kumar Aditya and Sri Triveni Shanker, learned Counsel appearing for the petitioners. Sri V.K. Singh has been heard for respective Land Management Committees and learned standing Counsel has been heard for the State.

2. All the above writ petitions raise similar issues, which have been heard together and are being disposed of by this common judgment.

3. Learned Counsel for the parties have agreed that writ petitions be finally decided. Counter affidavit has been filed by learned Standing Counsel in Writ Petition No. 4095 of 2008 to which rejoinder affidavit has also been filed, the said writ petition is being treated as leading writ petition.

4. All the above writ petitions can be conveniently grouped in three different categories. The first group of the writ petitions are Writ Petition Nos. 4095 of 2008, 7146 of 2008, 7160 of 2008, 7164 of 2008, 7168 of 2008, 9775 of 2008, 4093 of 2008, 15115 of 2008, 15057 of 2008, 15102 of 2008, 15579 of 2008 and 14162 of 2008 in which writ petitions prayer has been made for quashing the letter dated 9th June, 2006 issued by the Commissioner and Secretary, Board of Revenue as well as the orders issued by the Tahsildar directing expunction of the entries of the petitioners whose names were recorded as asami in the revenue entries.

5. Petitioners case in the writ petition is that a report was sent by Lekhpal and forwarded by other revenue officials to Tahsildar/Sub Divisional Officer stating that the names of the petitioners are continuing in Class-3 as asami in Khatauni, which may be expunged and the land be vested in the State. The Tahsildar/Sub Divisional Officer acting on the said reports, has directed expunction of the entries. Petitioners grievance is that the said expunction has been directed without drawing any proceeding and without issuing any notice to the petitioners.

6. The second group of writ petitions are Writ Petition Nos. 11932 of 2008, 5884 of 2008, 10702 of 2008, 4288 of 2008, 4285 of 2008, 4286 of 2008, 4287 of 2008 and 18273 of 2008. These writ petitions have been filed against the orders passed by Tahsildar/Sub Divisional Officer directing expunction of the entries. Revision was filed before the Commissioner under Section 219 of U.P. Land Revenue Act, 1901, which having been rejected, writ petitions have been filed challenging the order of the Tahsildar/Sub Divisional Officer as well as the order of the revisional Court.

7. The grievance of the petitioners in second group of writ petitions is that their names have been expunged without issuing any notice and without giving any opportunity to the petitioners. However, the facts and pleadings in this group of writ petitions differs from case to case, which shall be referred to hereinbelow while considering respective writ petitions.

8. The third group of writ petitions are Writ Petition No. 15886 of 2008, 14128 of 2008, 15262 of 2008 and 14751 of 2008. In these writ petitions the order passed by Consolidation Officer directing expunction of the entries of the petitioners from the revenue record has been challenged. Petitioners case is that on the basis of report received from Assistant Consolidation Officer that the names of the petitioners are continuing in Class-3 as asami, an order was passed by Consolidation Officer expunging the name from the revenue records. The order passed by Consolidation Officer has been challenged on the ground that no proceedings were drawn for cancellation of the leases and no opportunity was given to the petitioners.

9. Learned Counsel for the petitioners, challenging the impugned orders, have raised various submissions. The submissions raised by counsel for the petitioners are to the following effect:

1. The asami leases granted to the petitioners by Land Management Committee cannot be cancelled by Sub Divisional Officer/Consolidation Officer and the only method of ejectment of the petitioners is by filing a suit under Section 202 of U.P. Zamindari Abolition and Land Reforms Act, 1950 by the Land Management Committee. No suit having been filed under Section 202, the expunction of names of the petitioners from the revenue record is illegal.

2. The petitioners have become bhumidhar of the land in dispute under Section 204 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, no suit having been filed under Section 202 of U.P. Zamindari Abolition and Land Reforms Act, 1950.

3. In any view of the matter, no adverse order directing for expunction of the entries can be passed without issuing any notice and without giving any opportunity.

4. The procedure for summary ejectment from land of public utility is provided under Section 212A of U.P. Zamindari Abolition and Land Reforms Act, 1950 and in the present proceedings provisions of Section 212A having not been invoked, the petitioners cannot be ejected.

10. Sri Triveni Shanker, learned Counsel has made an additional submission for challenging the impugned action. It has been submitted that even if Rule 176A Sub-rule (2) of U.P. Zamindari Abolition and Land Reforms Rules, 1952 is to be invoked by Assistant Collector for determining the lease, the said provision can be invoked only with regard to one category of leases, i.e., leases which are referred to under Section 198(9) of the U.P. Zamindari Abolition and Land Reforms Act, 1950. He submitted that Rule 176A(2) has been added only for determination of such leases as contemplated under Section 198(9) of the U.P. Zamindari Abolition and Land Reforms Act, 1950.

11. Learned standing Counsel as well as Sri V.K. Singh, appearing for Gaon Sabha, refuting the submissions of Counsel for the petitioners, contended that period of lease granted to the petitioners having come to an end, all the petitioners are liable for ejectment and the Assistant Collector has every jurisdiction to direct for expunction of the entries, which were wrongly continuing. Learned standing counsel submits that after expiry of the term of leases, the leases automatically are determined and no kind of opportunity is required to be given to the lessees. It is submitted that Section 202 of U.P. Zamindari Abolition and Land Reforms Act, 1950 is not the only method contemplated under the for eviction of asami and the submissions raised by counsel for the petitioners in this regard has already been dealt with and rejected by this Court in Hari Ram v. Collector, District Saharanpur and Ors. judgment of this Court reported in 2007 (102) R.D. 822 Kehri Singh and Ors. v. State of U.P. through Collector and Ors. It is further submitted by learned Standing Counsel that petitioners leases are covered by Section 133(c)of the U.P. Zamindari Abolition and Land Reforms Act, 1950 and the petitioners leases are not covered under Section 21 of the.

12. Learned Counsel for the petitioners in rejoinder has submitted that Rule 176A of U.P. Zamindari Abolition and Land Reforms Rules, 1952 is not applicable since rights have been perfected under Section 204 of the U.P. Zamindari Abolition and Land Reforms Act, 1950.

13. I have considered the submissions of learned Counsel for the parties and perused the record.

14. The first and second submissions raised by counsel for the petitioners being interrelated, are being dealt together. The principal submission of the petitioners is that the only method of ejectment of an asami is to file a suit under Section 202 of U.P. Zamindari Abolition and Land Reforms Act, 1950. It is further submitted that according to Appendix-C of Rule 338, the limitation of filing a suit under Section 202 being three years, the petitioners have perfected their right of bhumidhari under Section 204.

15. Section 200 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 provides procedure for ejectment of an asami. Petitioners claim allotment of land by Land Management Committee. There being no material in any of the writ petitions that allotment in favour of the petitioners was made prior to the date of vesting of the leases, the asami leases of the petitioners are covered under Section 133(c) of the. Section 133 is quoted below:

133. Asami.- Every person belonging to any of the following classes shall be called an asami and shall have all the rights and be subject to all the liabilities conferred or imposed upon asami by or under this Act, namely-

[(a) every person who, as a consequence of the acquisition of estates, becomes an Asami under Section 11, 13 of 21.

(b) every person, who was admitted before the commencement of the Uttar Pradesh Land Laws (Amendment) Act 1977, by a bhumidhar or sirdar or, after such commencement, by a bhumidhar as a lessee of land comprised in his holding, in accordance with the provisions of this Act,;

(c) every person who, or on after the date of vesting, is admitted by the/Land Management Committee/or the person entitled as a lessee of land described in Section 132; and

(d) every person who in any other manner acquires the rights of an asami under or in accordance with the provisions of this Act or of any other law for the time being in force.]

16. Under Section 202 suit for ejectment can be filed with regard to asami leases, which are from year to year or for a fixed period, which has expired. Thus there is no doubt that in a suit under Section 202 the asami is liable to be ejected. The question is as to whether under Section 204, the petitioners have perfected their right of bhumidhari with non transferable right. Section 204 of U.P. Zamindari Abolition and Land Reforms Act, 1950 is quoted below:

204. Failure to institute a suit for ejectment under Section 202 or execute the decree obtained thereunder.- If a suit for ejectment of an asami, to whom any of the [Clauses (a), (b), (c), (d)] [or (h) or Sub-section (1) of Section 21 or Section 11] or Clause (b) of Section 133 applies, is not instituted, or decree obtained in such suit is not executed, within the period of limitation prescribed therefor, the asami shall, on the expiry of the period, become a [bhumidhar with non-transferable rights] of the land held by him:

[Provided that no such rights shall accrue to an asami in respect of any land held by a person belonging to a Scheduled Tribe].

17. A perusal of Section 204 indicates that the said provision is applicable to asami who are covered by Clauses as mentioned in Section 204 of Section 21 or Section 11 or Clause (b) of Section 133. The asami, who is mentioned in Section 133(c) has not been conferred right under Section 204. Rights have been conferred of bhumidhari with non-transferable right only to limited class of asami as mentioned in Section 204, which indicates that legislature contemplated conferring bhumidhari with non transferable rights not to those asamis who have been let out the land by Land Management Committee after the date of vesting as lessee of land described in Section 132. Not conferring rights to such lessee is with object and purpose, the object being that the said lessee may be ejected after expiry of the lease so that the land may be available for fresh allotment to serve the common good. The scheme further discloses that even if Land Management Committee does not file the suit for ejectment after expiry of the term of the lease, the lessee continues to be an asami and cannot acquire any superior right. Rule 176A, which has been added in the rules by notification dated November 1, 1975, empowers the Assistant Collector in-charge of the Sub Division to determine at any time the lease in favour of an asami and the same in no way is contrary to the provisions of the or violate any provisions, rather the said provision has been added to give effect to the provisions of the.

18. Various aspects with regard to Rule 176A of UP. Zamindari Abolition and Land Reforms Rules, 1952 and Section 202 of U.P. Zamindari Abolition and Land Reforms Act, 1950 were considered by me in judgment of this Court in Hari Rams case (supra). After analysing the various provisions of the and the Rule 176A, it was laid down that Section 202 is not the only method for ejectment of an asami. Following was laid down in Hari Rams case (supra) in paragraphs 18 and 19 of the judgment:

18. As noted above, Section 202 provides that an asami shall be liable to ejectment from his holding on the suit of the Gaon Sabha or the land holder on the ground as mentioned therein. Under Clause (b) the suit can be filed on the ground that asami holds the land from year to year or for a period which has expired or will expire before the end of the current agricultural year. In the present writ petition all the leases are claimed to have been granted by the Land Management Committee after the date of vesting as contemplated under Sub-section (c) of Section 133. The suit under Section 202 cannot be brought with regard to leases granted after the date of vesting except on the ground as mentioned in Section 202(b). It is also relevant to note Section 206, which provides ejectment of asami on suit of Gaon Sabha for using land for any purpose other than a purpose connected with agriculture, horticulture or animal husbandry. Thus, Section 202 is not the only Section under which suit for ejectment can b brought nor contains the only grounds on which asami can be ejected. A perusal of various provisions contained in Chapter VIII of the also indicates that Land Management Committee can take possession from an asami in different other contingencies. Section 194 provides that Land Management Committee is entitled to take possession of land held by an asami when the asami has been ejected or his interest therein have otherwise extinguished. From Section 194, it is clear that if the right of an asami have been extinguished, the Land Management Committee can take possession of the land without institution of suit. For carrying out the provisions of Section 194, Rules have been framed. Rule 172 read with Rule 154 of the Rules give the procedure under which declaration will be made by Assistant Collector that the interest of the asami has been extinguished. Rule 172(3) provides that possession shall be delivered to the Land Management Committee on behalf of the Gaon Sabha in accordance with the procedure laid down in Rule 154. Provisions of Section 194 of theread with Rules 172 and 154 of the Rules, thus, make it clear that there are other circumstances and contingencies in which possession from asami can be taken apart from ejectment of asami as contemplated under Section 202 of the. The contention of the petitioners Counsel that for taking possession from an asami, suit under Section 202 of theis necessary to be filed in all circumstances, thus, cannot be accepted. For example, if the holding has been abandoned by the asami, there is no necessity of filing a suit under Section 202 of thefor ejectment.

19. Rule 176A of the Rules is a rule, which has been substituted in the Rules by notification dated 1st November, 1975. Proviso to Sub-rule (1) provides that no lease shall be made to an asami for a period exceeding five years. The intention of the provisions is clear that lease should be granted to asami for a period of five years. The object of provisions contained in Chapter VII pertaining to grant of lease by Land Management Committee is a provision which has been enacted to give effect to constitutional mandate as contained in Article 39(b) of the Constitution. The object contained in Article 39(b) is distribution of material resources of the community to best subserve the common hood. The restriction of five years of an asami lease is only for the purpose that lease be again granted after five years to best subserve the common hood. Section 198 of U.P. Zamindari Abolition and Land Reforms Act Sub-clause (1) provides for order of preference in admitting persons to land under Section 195 and 197 of the. The object can be illustrated by taking an example, asami lease is granted to a bhumidhar or asami residing in the circle holding land less than 1.26 hectares for a period of five years. After expiry of period of five years the person who was granted asami lease has added in his holding and possesses land more than 1.26 hectares, hence he will go out of the preferred categories and when the next step will be taken for granting lease some more deserving persons may be there who can be granted the lease. The object of limiting the lease for five years is to sub serve the common hood and the exercise of settling the land is to be repeated after expiry of the lease considering the field of abilities at the time of exercise. Sub-rule (2) of Rule 176A is a provision which empowers the Assistant Collector to determine at any time the lease in favour of an asami. From the materials brought on the record, it is not clear as to whether leases granted to the petitioners were for a fixed period or whether from year to year. There being no material on the record to establish that leases granted to the petitioners were for the fixed period, the asami leases granted to the petitioners are assumed to be leases from year to year. Sub-rule (2) of Rule 176A empowers the Assistant Collector to determine at any time the lease. The determination can be done by the Assistant Collector even before expiry of the period of lease. From the provisions of the and the Rules, it is clear that prior to Rule 176A there was no provision in the Rules for determining the lease. The leases are granted to an asami with the previous approval of the Assistant Collector in-charge. In the present case we are concerned only with the grant of lease under Section 197, which refers to Section 132 of the. The power thus to be exercised by the Assistant Collector under Sub-rule (2) of Rule 176A is with regard to only above categories of leases.

19. One more issue, which has been raised, is that leases were granted prior to insertion of Rule 176A, hence the said provision cannot be applied to the petitioners. This question has already been decided by several decisions of this Court laying down that Rule 176A is applicable both to the leases, which were granted prior to insertion of the Rule as well as to the leases, which were granted subsequent to insertion of the rule. The said proposition has been laid down by this Court in Ahmad Jameel and Anr. v. Additional Commissioner, Moradabad and Ors. : 2003(95) R.D. 429. This Court in the said case laid down following in paragraph 8:

8. For purposes of this case Sub-rule (2) is relevant which provides that it shall be lawful for the Assistant Collector in-charge of the Sub-Division to determine at any time the lease in favour of asami and upon such determination, the asami shall not be entitled to any compensation. Rule 176-A(2) is a rule which empowers the Sub-Divisional Officer to determine asami lease. The provision gives enabiling jurisdiction to the Sub-Divisional Officer. Power under Rule 176-A(2) has to be exercised propectively meaning thereby that the determination of the lease has to be done at any time. The word at any time means a date which has to be subsequent to substitution of the rules. Thus the power under Rule 176-A(2) cannot be exercised retrospectively. The question raised in this case is as to whether this power can be exercised even for leases which were existing on the date when the rule was substituted. The rule do not create any exception with regard to existing leases nor the language of the rule can be read that it shall be lawful for the Assistant Collector to determine at any time the leases granted after the aforesaid rule. The enabling power given to the Assistant Collector under the said rule can very well be exercised with regard to an existing lease. The submission of the Counsel for the petitioners that the said rule is not attracted in the present case, cannot be accepted. There was no vested right in favour of the petitioners that asami lease shall not be determined.

20. The same proposition has been reiterated in : 2005(99) R.D. 49 Farjanda v. Additional Commissioner and Ors. Thus, there is no illegality in invoking the power under Section 176A(2) even for the leases, which were granted prior to insertion of Rule 176A(2) of U.P. Zamindari Abolition and Land Reforms Rules, 1952.

21. The Additional submission made by Sri Triveni Shanker, which requires consideration, is as to whether power under Rule 176A(2) of U.P Zamindari Abolition and Lana Reforms Rules, 1952 is confined to the leases, which are referred to under Section 198(9) of the. For appreciating the above submission, it is relevant to refer Section 198(9) as well as Rule 176A as amended on November 1, 1975 as well as Rule 176A as it existed prior to the said amendment. Section 198(9) as well as Rule 176A (unamended and amended) are quoted below:

198(9). Order of preference in admitting persons to land under Section 195 and 197.- (1) ...

(9) Where any person has been admitted to any land specified in Section 132 as a sirdar or bhumidhar with non-transferable rights at any time before the said date and such admission was made with the previous approval of the Assistant Collector in charge of the sub-division in respect of the permissible area mentioned in Sub-section (3), then notwithstanding anything contained in the order provisions of this Act or in the terms and conditions of the allotment or lease under which such person was admitted to that land, the following consequences, shall, with effect from the said date ensue, namely:

(a) the allottee or lessee shall be deemed to be an asami of such land and shall be deemed to be holding the same from the year to year, and the allotment or lease of the land to the extent mentioned above shall not be deemed to be irregular for the purposes of Sub-section (4);

(b) the proceedings, if any, pending on the said date before the Collector or any other court or authority for the cancellation of the allotment of lease of such land, shall abate.

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Unamended Rule 176A Amended Rule 176A

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[176A. (1) On receipt of the list in 176A. [(1) On receipt of the list in

Z.A. Form 57-B with the order of Z.A. Form 57-B with the order of

the Assistant Collector-in-charge the Assistant Collector in-charge of

of the Sub-Division, the Chairman the Sub-Division, the chairman of

of the Land Management the Land Management Committee

Committee shall call the persons shall call the person whose

whose selection for allotment of selection for allotment of land has

land to them has been approved been approved by the Assistant

by the Assistant Collector-in- Collector in-charge of the sub-

charge of the Sub-Division and division and shall furnish to him a

shall furnish to each such person a certificate in Z.A. Form 58 and

certificate in Z.A. Form 58 and get shall get a counterpart in Z.A.

a counterpart in Z.A. Form 59, Form 58-A executed by him. If the

executed by such person. Before land sought to be allotted is a land

delivering the certificate to the referred to in Section 132, the

person so admitted to land, the person concerned shall be

Chairman shall realise from him, if furnished with the certificate in

he happens to be a person Z.A. Form 59 and shall be asked

belonging to the classes to execute a counterpart in Z.A.

mentioned in Clauses (h) and (i) of Form 59-D:

Sub-section (1) of Section 198 a

premium equal to ten times the Provided that no lease shall be

land revenue of the land calculated made to an Asami for a period

at hereditary rates which amount exceeding five years.

shall be credited to the Gaon fund:

(2) It shall be lawful for the

Provided that no such premium Assistant Collector in-charge of the

shall be charged from any such sub-division to determine at the

persons belonging to the class time the lease in favour of an

mentioned in Clause (i) of Sub- Asami and upon such

section (1) of Section 198 of the determination, the Asami shall not

Act if he is a landless agricultural be entitled to any compensation.

labourer.]

(3) Every order of determination of

lease under Sub-rule (2) shall be

effective from the commencement

of the agricultural year following

the date of the order.



(4) Where the decision of the

Land Management Committee

regarding admission to any land is

not approved by the Assistant

Collector in-charge of the sub-

division, steps will be taken afresh

for settlement of such land in

accordance with the procedure laid

down in Sub-rule (1) read with

Rules 173 to 176-A. All contracts

relating to a lease, licence or

allotment of land shall be executed

in duplicate. One copy of the

contract shall be given to the

lessee, licensee or allottee and the

other copy shall be retained by the

Land Management Committee for

record.]

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22. Section 198(9) confines to land specified in Section 132 with regard to which a person was admitted as sirdar with non-transferable rights at any time before the specified date i.e., 10th November, 1980 with the approval of Assistant Collector in-cnarge of the SUD Division in respect of permissible area mentioned in Sub-section (3). Such lessee has been treated to be an asami of such land. Rule 176A as it stood after the amendment provides that if the land sought to be allotted is a land referred to in Section 132, the person concerned shall be furnished with certificate in Z.A. From 59 and shall be asked to execute a counterpart in Z.A. From 59D. The proviso of the said rule further provides that no lease shall be made to an asami for a period exceeding 5 years. Sub-clause (2) of Section 176A cannot be read to mean that the said power can be exercised only with regard to year to year leases, which are deemed under Section 198(9) as asami lease. No such indication or intention is seen from perusal of Rule 176A. Sub-rule (2) of Rule 176A can be exercised for all kind of leases, which are referred to in Section 176A, which may include the leases referred to in Section 132, which were asami leases granted prior to specified date, i.e., 10m November, 1980 as provided under Section 198(9) as well as other asami leases granted prior to the date or subsequent to the said date. Thus the submission of Sri Triveni Shanker that power under Rule 176A(2) can be exercised only to the leases referred to in Section 198(9) cannot be accepted. The said power can be exercised by Assistant Collector for determining any lease in favour of an asami. The words used in Sub-rule (2) are the leases in favour of an asami. Thus this power can be exercised with regard to any kind of lease in favour of an asami. The word asami used in Sub-rule (2) of Rule 176A cannot be confined to one category of asami lease as contemplated under Section 198(9), rather this will cover all asami leases. Thus the above submission cannot be accepted.

23. Another submission made is that only proceeding provided for ejectment from the land of public utility is Section 212A of U.P. Zamindari Abolition and Land Reforms Act, 1950. Section 212A is quoted below:

212A. Summary procedure for ejectment from land of public utility.- (1) Without prejudice to the provisions of Section 212, the Chairman member or secretary of [a Land Management Committee] may make an application to the Collector for ejectment from the land of the person in possession of the land reierred to in Section 212.

(2) The application under Sub-section (1) shall be, in addition to and not in derogation of the right of suit conferred by the said Section and shall contain the particulars to be prescribed.

(3) If the Collector is satisfied from the particulars contained in the application and after considering the statement on oath of the applicant that there is sufficient ground for proceeding he shall make an order in writing stating the grounds of his being so satisfied and requiring the person against whom the applicant is directed to appear within a time to be fixed by him and to show cause why an order of ejectment be not made against him.

(4) Where the person does not appear in pursuance of the notice under Sub-section (3) or if he appears but does not contest the notice, the Collector may make an order for his ejectment from the land.

(5) If the person appears, in pursuance of the notice under Sub-section (3) and files any objection, the Collector shall proceed to hear the applicant and the objector and any evidence which they may adduce.

(6) Whereupon the said hearing the Collector is satisfied that the person was admitted as a tenure-holder or grove-holder of land referred to in Section 212 or being an intermediary brought such land under his own cultivation or planted a grove thereon or after the eight day of August, 1946, he shall be pass an order for ejectment of the person from the land on payment of such compensation as may be prescribed.

(6) Where an order for ejectment has been made under this section, the party against whom the order has been passed may institute a suit to establish the right claimed by it but subject to the results of such suit the order passed under Sub-section (4) or (6) shall be conclusive.

24. Section 212A of U.P. Zamindari Abolition and Land Reforms Act, 1950 empowers the Chairman member or secretary of Land Management Committee to make an application to the Collector for ejectment from a land of a person in respect of the land referred to in Section 212 Section 212 provides for ejectment on a suit by Gaon Sabha to particular category of land to which a person is admitted. Section 212 is quoted below:

212. Ejectment of person from lands of public utility.- Any person who on or after the eight day of August, 1946, has been admitted as a tenure or grove-holder of, or being an intermediary has brought under his own cultivation or has planted a grove upon land which was recorded as or was customary common pasture land, cremation or burial ground, tank, [pond], pathway or Khalian, shall be liable, notwithstanding anything contained in Section 199, on the suit of [Gaon Sabha] to ejectment from the land, on payment of such compensation as may be prescribed.

25. Section 212 contains a provision of ejectment of a person from land of public utility and Section 212A provides for summary procedure of such ejectment. The provisions of Section 212 and 212A do not militate with the power provided under Rule 176A(2) of U.P. Zamindari Abolition and Land Reforms Rules, 1952 in the Assistant Collector to determine a lease. There cannot be any dispute that summary procedure of Section 212A can also be invoked with regard to public utility land but present is a case where power is sought to be invoked under Rule 176A(2) of U.P. Zamindari Abolition and Land Reforms Rules, 1952. Thus the submission of the petitioners that the only procedure for invoking the power is under Section 202 cannot be accepted.

26. The last submission, which has been made by the petitioners Counsel, is that order for expunction of the entries of the petitioners cannot be passed without drawing any proceeding under Rule 176A and without any notice to the petitioners. This Court in Hari Rams case (supra) has held that a notice is required to be given by the Assistant Collector in exercise of power under Rule 176A of U.P. Zamindari Abolition and Land Reforms Act, 1950. Following was laid down by this Court in paragraph 24 of the Hari Rams case (supra):

24. From abovesaid discussions, it is held that rights of asami can be extinguished by determination of the lease under Rule 176A (2). It is further found that after determination of the lease there is no necessity of filing a suit under Section 202 of thefor ejectment of the asami and the possession of the asami can be taken by Land Management Committee in accordance with the Rules from the commencement of agricultural year following the date of the order. It is further held that before determination of the lease under Sub-rule (2) of Rule 176A, a notice is required to be given by the Assistant Collector to the lessee.

27. Some of the petitioners have made submission that leases granted, were for indefinite period and they could not have been terminated. The said submission does not merit consideration. According to Rule 171A(2) the period of asami lease earlier was 9 years. Rule 171A(2) is quoted below:

171A(2). The period of letting out to an asami shall be nine years.

28. As noticed above, after the amendment made in Rule 176A(1), the said period has been reduced to five years. Thus even earlier to amendment in Rule 176A, the period of the lease was maximum 9 years and those leases, which were continuing from year to year could also have been terminated under Rule 176A(2).

29. In Writ Petition No. 4095 of 2008 and other grouped petitions (the first group of writ petitions) orders have been passed by Tahsildar/Sub Divisional Officer approving the reports submitted by subordinate revenue officials for expunging the names of asami tenure holders. The letter of the Commissioner and Secretary of the Board of Revenue dated 9,n June, 2006 directing expunction of the names of the asamis and those unauthorised occupants, who are continuing in Class-4 according to the rules, has also been challenged. Even if direction was issued by Commissioner and Secretary of the Board of Revenue to all the Collectors for exercising the power of expunging the entries, the procedure as prescribed under the and the Rules was required to be exercised by drawing proceeding under Rule 176A. In these case, no notice is said to be even issued to the petitioners and their names were directed to be expugned. The first step under Rule 176(2) is to issue notice and then determine the lease and thereafter expunction of the entries can be ordered. No expunction of entries can be ordered without determining the lease.

30. In third category of cases, i.e., Writ Petition Nos. 15886 of 2008 and other grouped writ petitions, the Consolidation Officer passed an order on the basis of report received from Assistant Consolidation Officer. These orders presuppose that names of asami tenure holders are illegally continuing in the records, hence they were directed to be expunged. The entries can be expunged only when basis of entry has come to an end. In the present case, unless the leases were lawfully determined, there was no occasion for expunging the entries in the names of the petitioners.

31. In view of the foregoing discussions, all the writ petitions in category 1 and 3 deserve to be allowed and the orders directing expunction of the entries are liable to be set-aside.

32. Now remains the cases of Group II, i.e., Writ Petition No. 11932 of 2008 and other grouped writ petitions. In these writ petitions, the order of Sub Divisional Officer was passed directing expunction of entries only on the basis of the report submitted by subordinate revenue officials. In Writ Petition No. 11932 of 2008 revision was filed but revision was dismissed as not maintainable since copy of the order dated 7th October, 2002 was not filed in the revision. In writ petition of Tarsen Singh, i.e., Writ Petition No. 5884 of 2008 the order of Sub Divisional Officer was passed directing the land to be vested in the Gaon Sabha. There is no material in the aforesaid two writ petitions that any proceeding under Rule 176A was drawn by giving notice, hence Writ Petition No. 11972 and 5884 of 2008 deserve to be allowed.

33. In Writ Petition No. 10702 of 2008, proceedings were initiated on the basis of tahsil report dated 13th August, 2001, case was registered and the notices were issued. The order was passed directing expunction of the name of the petitioners against which application for restoration was filed, which too was rejected on 20th November, 2006. A finding was recorded by Sub Divisional Officer that notice was personally served upon the petitioners. A revision was filed against the order of SUD Divisional Officer. The revisional Court observed that revisionists received the summons on 19th January, 2003 and also filed objection and cross examined the Lekhpal. As noticed above, the power can be exercised by Sub Divisional Officer under Rule 176A and no error has been committed by the Assistant Collector in directing expunction of the entries in favour of the petitioners. According to petitioners case the asami leases were granted after date of vesting and the leases were covered by Section 133(c) and could have been determined by the Sub Divisional Officer. Thus no ground is made out to interfere with the orders passed by Sub Divisional Officer and the revisional Court in Writ Petition No. 10702 of 2008.

34. Writ Petition Nos. 4288 of 2008, 4285 of 2008, 4286 of 2008 and 4287 of 2008 are the cases in which against the order of Sub Divisional Officer directing expunction a restoration application was filed by the petitioners, which as rejected after hearing the petitioners. Thereafter revision was filed raising various grounds, which too has been dismissed by the order of Commissioner dated 1st October, 2007. Petitioners case in the Writ Petition No. 4288 of 2008 is that they were recorded in 1359 fasli and it is further claimed that they are in possession of the land in dispute prior to abolition of zamindari. It is further claimed that the order of Sub Divisional Officer was passed directing expunction without drawing any proceeding and without giving any notice. The Sub Divisional Officer although has rejected the restoration application but has not recorded any finding that notices were issued to the petitioners in proceedings under Rule 176A. The revisional Court dismissed the revision. From facts of the aforesaid cases, it is clear that petitioners were not heard before directing expunction of their entries and the matter needs consideration by the Sub Divisional Officer before ejecting the petitioners from the land in dispute.

35. In view of the above discussions, it is clear that Sub Divisional Officer can determine the asami leases in exercise of power under Sub-rule (2) of Rule 176A, however, the said power can be exercised by issuing a notice. This Court in Kehri Singhs case (supra) while hearing the writ petition against the order directing expunction of the names from the revenue records, made following observations in paragraphs 7, 8, 10 and 11:

7. However, by way of abundant precaution, it is directed that all the petitioners must appear before the Sub Divisional Officer concerned on 4.6.2007 along with written objections showing cause as to why they should not be evicted and their names should not be expunged from the revenue records. The Sub Divisional Officer concerned is directed to pass order on 4.6.2007 or immediately thereafter in the light of the aforesaid authority of Hari Ram v. Collector, Sub Divisional Officer shall immediately issue notice to other similarly situate persons (apart from the petitioners of both these writ petitions) fixing 4.6.2007. Apart from personal notices information in this regard may also be published in Daily Hindi Newspaper Amar Ujala or Dainik Jagaran at lease one week in advance.

8. However, if any one of the petitioners voluntarily surrenders possession or before 4.6.2007 then he may be considered for fresh allotment as asami of portion of the same land which is in his possession.

10. Granting asami patta is in the nature of largess. The more people get it the better. With the increase in the population it is all the more necessary that lesser area must be allotted and allotment must be rotated after every five years as provided under Rule 176A of U.P.Z.A. & L.R. Rules. In this manner more people may get land.

11. It may also be noticed that in different Districts large areas of Gaon Sabha land are in occupation of different persons as asami patta-holders for a very long time inspite of addition of Rule 176A to U.P.Z.A. & L.R. Rules in 1975. Sub-Divisional Officers of all the Tehsils should immediately start proceedings for eviction of such allottees by expunging their names from the revenue records in summary manner. However, it is utmost essential that all the persons concerned must be issued notice. A particular may be fixed for considering all such matters and apart from personal notices a notice in any of the aforesaid two newspapers may be published one week in advance. After eviction allotment proceedings must immediately be initiated in the light of the observations made above.

36. The Assistant Collector is required to take decision in accordance with the provisions of Rule 176A(2) of U.P. Zamindari Abolition and Land Reforms Rules, 1952 for determination of asami leases. In view of the fact that petitioners are now well aware that their leases have been cancelled on the ground that period of leases has expired, it is not required to issue any fresh notices to the petitioners to appear, which shall be only an empty formality. Ends of justice be served in permitting the petitioners to file their detail objections against the proposed action under Rule 176A(2) of U.P. Zamindari Abolition and Land Reforms Rules, 1952 before the Sub Divisional Officer concerned within a period of one month from today and the petitioners to appear before the Sub Divisional Officer on 2nd June, 2008 on which date the Sub Divisional Officer may consider the objection and proceed to take a decision in accordance with law.

37. In result, all the above writ petitions except Writ Petition No. 10702 of 2008 are allowed to the extent as indicated above and the orders impugned in that writ petitions are set-aside. The Writ Petition No. 10702 of 2008 is dismissed.