IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Stay Vacation application No.101 of 2008 Delay Condonation Application No.2095 of 2010 In Writ Petition No. 1020 of 2007 (M/S) Dhananjay Singh. ……Petitioner Versus Commissioner, Kumaon Division, Nainital and others. …….Respondents. Mr. RamJi Srivastava, Advocate for the petitioner. Mr. K.P. Upadhyay, Addl.C.S.C. for the State-respondent Nos. 1 to 3. Mr. K.N. Joshi, Advocate for the respondent Nos. 4 to 19 Dated:-17-06-2010 Hon’ble B.S.Verma, J. Heard learned counsel of the parties and perused the record. By means of this writ petition, the petitioner has sought a writ in the nature of certiorari calling for the records and setting aside the order dated 04-07-2007 passed by the respondent No.1 i.e. Commissioner, Kumaon Division, Nainital, annexed as annexure No.3 to the writ petition whereby the learned Commissioner has rejected the application of the petitioner filed under Section 27(4) of the Uttar Pradesh Imposition of Ceiling On Land Holdings Act, 1960 (hereinafter referred to as the ‘Act’) for cancellation of the lease which was granted in favour of the respondent Nos. 4 to 19. Brief facts giving rise to the present writ petition are that the land of the original tenure holders of late Smt. Rani Padma Devi was declared surplus land by the prescribed Authority by order dated 23-11-1976, the order of prescribed authority declaring the land of aforesaid tenure holder as surplus was challenged in appeal which was 2 confirmed by the appellate authority. The order of the appellate authority was challenged before the Allahabad High Court in writ petition No. 4774 of 2001(M/S), Smt. Rani Padma Devi and others Vs. State and others and after creation of the State of Uttarakhand, the same was transferred to this High Court under the provision of the U.P. Reorganization, Act, 2000. On 8th September 2009, this court has allowed the writ petition and the judgment and order dated 29-01-1991 passed by the Additional Commissioner (Administration) Kumaon Division, Naintal as well as the judgment and order dated 23-11-1976 passed by the Prescribed Authority were set aside and the matter was remanded to the Prescribed Authority for decision afresh. It is not disputed that as on today there is no order declaring the land as surplus. Learned counsel for the petitioner has submitted that during the pendency of cases, the respondent authority allotted the surplus land in favour of the respondent Nos. 4 to 19. The petitioner being the legal representative of late Smt. Rani Padma Devi moved an application on 26-04-2006 under Section 27(4) of the Act before the learned Commissioner on the ground that since the matter is pending before the High Court and no notification under Section 14(1) of the Act was issued by the respondent authorities, therefore the allotment order passed in favour of the respondent Nos. 4 to 19 is illegal and liable to be cancelled. The learned Commissioner rejected the application of the petitioner on the ground that since the matter is pending before the High Court of Uttarakhand for decision, therefore, he cannot decide the application and further it was observed in the order that the petitioner may approach the High Court for redressal of their grievance. I have perused the impugned judgment and material on record. In my opinion, the impugned order has been passed without 3 application of mind and cannot be sustained in the eye of law particularly when the learned commissioner was himself aware that the matter is subjudice before this Court and an interim order dated 23-04-1991 was in favour of original tenure holder. Now, the matter has been remanded to the Prescribed Authority for decision afresh by order dated 08-09-2009. Therefore the order dated 04-07-2007 (Annexure No.3) passed by the Commissioner, Kumaon Division, Nainital is liable set aside. The same is set aside. In view of the above facts, the writ petition is allowed. However, the respondent No.1 i.e. Commissioner, Kumaon Division, Nainital is directed to take decision on the application of the petitioner filed under Section 27(4) of the Act after hearing both the parties and in view of the judgment and order dated 08-09-2009 passed by this Court in Writ petition No. 4774 of 2001(M/S), Smt. Rani Padma Devi and others Vs. State and others in accordance with law. All pending applications stand disposed of accordingly. (B.S.Verma, J.) 17-06-2010 MK