R.S. Pathak, J. - (1.) THIS special appeal is directed against the judgment and order of a learned Single Judge dimissing a petition Under Article 226 of the Constitution.
(2.) IN 1966 the Respondents Nos. 3 to 6 applied Under Section 23 of the Kumaon Nayabad and Waste Lands Act, 1948 for cancellation of a grant made in favour of the Appellants' grandfather Motiram in 1927. The Asstt. Collector who entertained the application, held that the Appellants had acted in contravention of the terms of the grant and had made extensions ; and by his order dated 12 -1 -1957 he ordered the Petitioners to evacuate the land under the grant and that covered by the extensions . He also forwarded the case to the Dy. Commr. for cancellation of the grant Under Section 23(2) of the Act. The Dy. Commr. examined the terms of the grant and also took into account an agreement between the parties in an earlier proceeding before the Board of Revenue in 1930 and while finding that the Appellants had implemented part of the agreement held that they had contravened the other terms and conditions. Having regard to all the circumstances, he modified the order of the Asstt. Collector and substituted an order directing the Appellants to repair a gaushala existing on the land and to employ the land for the purposes of the gaushala. In regard to the extension made by the Appellants, he directed them to vacate it. The case was taken in appeal to the Commissioner of the Kumaon Division. The Commissioner set aside the order of the Dy. Commr. and made an order cancelling the grant in respect of some of the plots. The Appellants filed a revision application before the Board of Revenue. The revision application was dismissed by the Board on 25 -11 -1960. The Appellants then applied to this Court for relief Under Article 226 of the Constitution and the petition has been dismissed by a learned Single Judge. In this special appeal, the first contention on behalf of the Appellants is that the entire proceeding initiated by the Respondents Nos. 3 to 6 was misconceived. It is pointed out that the grant was made in 1927 under the "Rules regulating application for and grants of Nayabad lands" framed by order No. 1990/I -627, dated 30 -6 -1916 and was not a grant to which Section 23 of the Act of 1948 could be extended. It is urged that Section 23 is confined to grants made under the Act of 1948 and the jurisdiction conferred on the Asstt. Collector cannot be invoked in the case of other grants.
(3.) AFTER hearing learned Counsel for the parties, we are of opinion that the contention of the Appellants must be accepted. Section 23 of the Act of 1948 provides: (1) When an extension has been made or a grant has been used contrary to the provisions of this Act or of the rules framed thereunder, the Asstt. Collector in charge of the sub -division may, on the application of any party or of his own motion, proceed against persons liable for the contravention in any one or more of the following manners: (a).......(b)......(c)......(d)...... (2) If the Asstt. Collector in charge of the sub -division orders evacuation or forbids the use of the land Under Clauses (a), (b) or (c) of Sub -section (1) he shall forward the case to the Dy. Commr. of the district for the cancellation of the grant.;