1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 5025 of 2001 (M/S) (Old No. 16356/1984) 1. Hirday Ram, S/o Sri Shiv Dutt (deceased) R/o Village Chauri, Patti Irakot, Tehsil Champawat, District Pithoragrah. 1/1. Sri Harish Chandra, S/o Late Hirday Ram. 1/2. Sri Basant Ballabh, S/o Late Hirday Ram. Both R/o Village Chauri, Patti Irakot, Tehsil Champawat, District Champawat. …… Petitioner. Versus Commissioner, Kumoun Division, Nainital and others. …… Respondents. Sri B.M. Pingal, learned counsel for the petitioner. Sri Alok Mehra, learned counsel for the respondent nos. 3/2. Sri Sudhir Kumar, learned Brief Holder for the State- respondent. Date: - November 03, 2008. Hon’ble B.S. Verma, J. Heard Sri B.M. Pingal, learned counsel for the petitioner and Sri Alok Mehra, learned counsel for the respondent nos. 3/2. Learned counsel for the petitioner is permitted to array the State of Uttarakhand as respondent no. 4 and shall file the amended memo of parties today. Learned Standing Counsel appearing for the respondent nos. 1 and 2 has stated that the counter affidavit which was filed before the Allahabad High Court by the 2 respondent nos. 1 and 2 be also read for the respondent no. 4. The petitioner has sought a writ of certiorari or any other writ, order or direction quashing the order dated 19.10.1984 passed by the Deputy Commissioner (Upayukt) respondent no. 2 (Annexure No. 13 of the writ petition) in Misc. Case No. 2 of 1984-85 (Prem Ballabh Vs. Hirday Ram) whereby the lease deed dated 31.3.1983 was cancelled. Brief facts giving rise to the writ petition are that the petitioner had applied for regularization of 26 nali 5 muthi on 5.3.1982 in pursuance to the Government Order dated 7.12.1976 and 16.2.1981 (Annexure No. 1 to the writ petition) On the application which was moved by the petitioner for regularization of the land claimed to be in possession since 1968 prior to 1st July 1975 which was a cut of date for regularization. The report was called from the Lekhpal and on the basis of the report of the Lekhapl, the Sub-divisional Officer/ Pargana Adhikari, Lohaghat recommended the case of the petitioner on 25.10.1982 to the Collector (Upayukt) and a list was granted in favour of the petitioner on 31.3.1983. One Mr. Prem Ballabh (deceased) respondent no. 3 filed review application before the Collector (Upayukt) which was rejected on 24.2.1983 and second Review Application was also filed which too was dismissed on 31st March 1983. Then again Mr. Prem Ballabh (deceased) filed misc. application before the Commissioner, Kumoun Division, Nainital on 2.6.1983. On 19.10.1984 the learned Commissioner in administrative capacity directed the Sub- 3 divisional Officer to re-investigate the matter. On the direction of the Commissioner, Sub-divisional Officer/ Pargana Adhikari inspected the spot on 28.7.1983 and submitted report on 24.8.1983 to the Collector, Pithoragarh. In his report it was mentioned that the land which is to be regularized was not being used for cultivation wholly. In part of the of the land there are some step-fields and approximately half of the land is banjar, and found that there are some tress of Devdar, Banj, Phalyant and Chir, and it has further been mentioned that the amin did not show that the above mentioned trees in his earlier report. On the basis of the said report, Collector without speaking order cancelled the lease granted in favour of the petitioner, vide order dated 19.10.1984. Having heard the learned counsel for the petitioner and after perusal of the report of the Pargana Adhikari and earlier report of the Pargana Adhikari and averments made in the counter affidavit, it reveals from the report of the Pargana Adhikari (Annexure No. 10 to the writ petition) which was submitted on the direction of the Commissioner, Kumoun Division that there are step fields in half portion of the area and it has been mentioned in the report by the Pargana Adhikari himself that the possession of the petitioner seems to be prior to year 1975. Cancellation of lease of the whole of the area is not proper., The petitioner was entitled to get the regularization at least of the area under his cultivation which was approximately half of the area of applied land as per the report of the Pargana Adhikari. On the basis of the report of the Pargana Adhikari dated 24.8.1983, the learned Collector in his order dated 19.10.1984 only passed one line order cancelling the lease deed of whole of the area and did not consider the fact which was mentioned that half of the land 4 was in possession of the petitioner prior to year 1975 as has been mentioned in the report of the Pargana Adhikari. The writ petition is partly allowed. The order dated 19.10.1984 passed by the Deputy Commissioner (Upayukt) Champawat is set aside. Learned Collector (Upayukt) Shall consider the application of the petitioner for regularization for the area which was in his cultivatory possession in the year 1975 as per report of the Pargana Adhikari (Annexure No. 10 to the writ petition). Till the decision is taken on the application, the petitioner shall not be evicted from the land under his cultivation as per the report of the Pargana Adhikari. Interim order dated 28.11.1984 is modified as directed above. All pending applications stand disposed of accordingly. Dated: 3.11.2008 (B.S. Verma, J.) RMY