HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1909 of 2007 (M/S) Smt. Hemlata Singh ….Petitioner Versus Collector, District Pithoragarh & others ....Respondents. Mr. Sharad Sharma, Advocate along with Mr. Siddartha Sah, Advocate for the petitioner. Mr. K.P. Upadhyay, learned Additional Chief Standing Counsel for the respondents. 8th December, 2008 Hon’ble Sudhanshu Dhulia, J. “Chutzpah” is a remarkable expression in Hebrew. Chutzpah is said to happen when a man kills his mother and father and then asks for clemency on the ground that he is now an orphan ! Analogically speaking, there is something of a “chutzpah” in the present case. The petitioner has challenged the order of the Sub Divisional Magistrate, Berinag (District Pithoragarh) dated 2.5.2006 as well as that of the District Magistrate, Pithoragarh dated 13.9.2007, on the grounds that the same are illegal and without jurisdiction. In fact, a bare perusal of order dated 2.5.2006 would show that the said order which has been passed after a due enquiry, merely reiterates the position of law as it exists in the State of Uttarakhand. The Act relevant for the purposes is U.P. Imposition of Ceiling on Land Holdings Act, 1960 (from hereinafter referred to 2 as the Ceiling Act). The Legislature had passed the Ceiling Act in order to restrict land holding of a tenure holder to a certain limit and, thereafter, declare any excess land as surplus, and all such surplus land was to vest in the State. At the same time, certain categories of land such as the land used for tea, coffee or rubber plantation have been exempted from the purview of the Ceiling Act. Yet, the Ceiling Act also places certain restrictions on the transfer of such exempted category of land and stipulates that any transfer of this land without prior permission of the State Government would be void. The Sub Divisional Magistrate after holding an enquiry has passed the order dated 2.5.2006 wherein, inter alia, certain instructions have also been given to the relevant officers that since there is a restriction in the Ceiling Act and it has been brought to the notice of the Government and confirmed in the enquiry that in spite of the restrictions under the Ceiling Act, the transfer of the land which is under tea cultivation is going on without any prior permission of the Government. As such, the Sub Divisional Magistrate has instructed officers not to register any such transfers of land, apart from giving other instructions. This order of the Sub Divisional Magistrate dated 2.5.2006 was earlier challenged by the petitioner before this Court in the Writ Petition (M/S) No. 885 of 2007. The said writ petition was disposed of by the learned Single Judge vide his order dated 31.7.2007 directing the petitioner to move a representation before the District Magistrate, Pithoragarh and further directed the District Magistrate, Pithoragarh to dispose of the said representation. Consequently, the petitioner had filed a detail representation before the District Magistrate, Pithoragarh, which was 3 decided by the District Magistrate, Pithoragarh vide his order dated 13.9.2007. The District Magistrate has held in his well considered order dated 13.9.2007 that the order of the Sub Divisional Magistrate, Berinag is just, proper and in accordance with law and rejected all the claims made by the petitioner. A stage therefore was reached for the petitioner to go for another round of litigation challenging the “legality” of both the administrative orders i.e. 2.5.2006 and 13.9.2007 passed by the Sub Divisional Magistrate and the District Magistrate, Pithoragarh respectively. It is these two orders which are presently under challenge before this Court in this writ petition. The main argument of the petitioner before the District Magistrate was that the land was purchased by the predecessors of the petitioner as far back as in the year 1919 and although the petitioner does not deny the statutory provisions, it had stated before the District Magistrate that since the last 40 years or so the land has been continuously sold in fragments and pieces to different persons and consequently, there is an “abadi” in that area and since there is an “abadi” and many residential houses have been built, the said land automatically comes out of the purview of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 and the Kumaun and Uttarakhand Zamindari Abolition Act and Land Reforms Act, 1960 being now become “abadi” and, therefore, ipso facto the restrictions under Section 6 (2) of the Ceiling Act will not come into play. 4 Whatever the merits of this argument, which would be examined shortly, the immediate question is as to who has been responsible for this creation of “abadi” or urbanization or “ a full breathing township” as the petitioner sometimes calls it. Admittedly, it is the petitioner or the predecessors of the petitioner who have been continuously selling this land, in clear violation of Section 6 (2) of the Act and, therefore, by committing an illegality they cannot now make a plea that because of this illegality the entire nature of the area has changed and, therefore, the restriction cannot be imposed under Section 6 (2) of the Act. It is here that “chutzpah” comes into play. But then this is not all, as the learned counsels for the petitioner Mr. Sharad Sharma and Mr. Siddartha Sah have taken this Court to various provisions of law and to different documents and orders, trying to put forth a case in their favour and prove that the order dated 2.5.2006 is arbitrary, illegal and without jurisdiction, and that there is nothing wrong and no illegality is being committed if the land in question is being sold, without prior permission of the State Government. Let us examine the factual aspects first, which are as follows:- The petitioner by means of the present writ petition has challenged the two orders, one passed by the Sub Divisional Magistrate and the other by the District Magistrate, Pithoragarh as the aforesaid two orders restrict the transfer of the land “owned” by the petitioner. There is an additional prayer for a writ, order or direction in the nature of mandamus commanding said authorities to allow the petitioner to sell her properties situated at “Chaukori” and 5 “Berinag” in district Pithoragarh without obtaining approval of the State Government and also to make construction on such property. It all starts with the passing of an order/letter dated 2.5.2006 by the Sub Divisional Magistrate, Berinag, district Pithoragarh which was addressed to the District Magistrate, Pithoragarh and which has been referred above. In the said order/letter, the Sub Divisional Magistrate after holding an inquiry at his level had found that the area at Chaukori as well as Berinag in district Pithoragarh, which was earmarked as tea estate and reserved for the cultivation and growth of tea, in which there were restrictions by law on transfer of land and, in fact transfer cannot be made without prior permission of the Government. Yet the land is being transferred by sale deeds, gift deeds, etc. to other persons, which is in violation of the law and since this violation of law is going on for the last many years and the land which was a vast track of tea estate has been reduced to a small area and has been fragmented into small holdings. As per the Ceiling Act, holding of a tenure holder after a particular limit are to be declared as “surplus” and this surplus was to vest in the State Government. It is necessary to state that before such vesting the Collector had to issue notice under Section 10 of the Ceiling Act and, thereafter, under Section 11 or under Section 12 of the Ceiling Act necessary orders have to be passed declaring the land as surplus. However, Section 6 of the Ceiling Act exempts certain categories of land from the purview of the Ceiling Act. In other words, these categories of land although beyond the prescribed limit cannot be declared as surplus. One of these categories of 6 land, under which the petitioner claims exemption, is given under Section 6 (1) (d) of the Ceiling Act, which is, inter alia, a land under “tea cultivation”. However, even though the land of the petitioner falls under the exempted category and being exempted cannot be declared as surplus, yet it cannot be transferred without a prior permission of the State Government and any such transfer in violation of Section 6 (2) of the Ceiling Act would be treated to be void. Moreover, Section 6 (3) further states that any land which is the subject of any transfer which by virtue of sub-section (2) is void, shall be deemed to be surplus land, and shall, with effect from October 10, 1975, or the date of such purported transfer, whichever is later, stand transferred to and vest in the State Government free from all encumbrances, and all rights, title and interests of all persons in such land shall stand extinguished. At this stage, certain provisions of the Ceiling Act, some of which have been referred above, need to be stated. Section 5 (1) & (2) of the Ceiling Act, which are, in fact, the main provisions of the Ceiling Act, read as follows : “Section : 5. Imposition of Ceiling. – (1) [On and from the commencement of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972, no tenure-holder shall be entitled to hold in the aggregate throughout Uttar Pradesh, any land in excess of the ceiling area applicable to him. (2) Nothing in sub-section (1) shall apply to land held by the following classes of persons namely – (a) the Central Government, the State Government or any Local Authority or a Government Company or a Corporation; 7 (b) a University; (c) an intermediate or degree college imparting education in agriculture or a post- graduate college; (d) bank as defined in clause (c) of Section 2 of the Uttar Pradesh Agricultural Credit Act, 1973, or a Co-operative Land Development Bank; (e) the Bhoodan Yagna Committee Constituted under the U.P. Bhoodan Yagna Act, 1952. (3) …………. (4) …………. (5) .……….. (6) …………. (7) ………….” Section 6 of the Ceiling Act which exempts certain land from the purview of the Ceiling Act reads as follows : “Section : 6. Exemption of certain land from the imposition of ceiling. – (1) Notwithstanding anything contained in this Act, land falling in any of the categories mentioned below shall not be taken into consideration for the purposes of determining the ceiling area applicable to, and the surplus land of a tenure-holder, namely- (a) land used for an industrial purpose (that is to say, for purposes of manufacture, preservation, storage or processing of goods), and in respect of which a declaration under Section 143 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 subsists; (b) land occupied by a residential house; (c) land used as cremation ground or as a grave-yard, but excluding cultivated land; 8 (d) land used for tea, coffee or rubber plantations, and to the extent prescribed, land required for purposes ancillary thereto and for development of such plantations; (e) land held from before January 24, 1971, for purposes of a stud farm, to the extent prescribed; (f) land held from before the first day of May, 1959, by or under a public religious or charitable waqf, trust, endowment, or institution the income from which is wholly utilized for religious or charitable purposes, and not being a waqf, trust or endowment of which the beneficiaries wholly or partly are settlers or members of his family or his descendants; (g) land held from before June 8, 1973, by a Goshala of a public nature, registered under the Uttar Pradesh Goshala Adhiniyam, 1964, to the extent prescribed; (h) [Omitted] (2) No person shall transfer any land referred to in clause (d) or clause (e) or clause (f) or clause (g) of sub-section (1) without prior permission of the State Government, and every transfer made without such permission shall, notwithstanding anything contained in any other law for the time being in force, be void ; Provided that nothing in this sub- section shall apply to any transfer by or in favour of any person specified in sub- section (2) of Section 5. (3) Any land which is the subject of any transfer which by virtue of sub-section 9 (2) is void, shall be deemed to be surplus land, and shall, with effect from October, 10, 1975, or the date of such purported transfer, whichever is later, stand transferred to and vest in the State Government free from all encumbrances, and all rights, title and interests of all persons in such land shall stand extinguished : Provided that encumbrances, if any, shall be attached to the amount payable under Section 17 in substitution for the surplus land. (4) Where any land is deemed to be surplus land under sub-section (3) – (i) the provisions of Section 14 shall mutatis mutandis apply in relation to such land with the substitution of references to the dates mentioned in sub-section (1) of that section by references to the date mentioned in sub-section (1) of this Section; and (ii) the amount payable therefor, under Section 17 shall be paid to the person in whose favour such transfer was purported to be made.” It is noteworthy that under the said Act, Rule making powers have been given to the State Government. Section 44 of the Ceiling Act reads as under: “Section : 44. Power to make rules. – (1) The State Government may, by notification, make rules for carrying out the purposes of this Act. (2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely – (a) the manner in which any notice or order under this Act may be served or published; 10 (b) the procedure which the Collector shall follow while exercising powers conferred by this Act; (bb) conditions pertaining to the grant of permission to transfer land under sub- section (2) of Section 6. (c) the manner and the principle under which expenses, referred to in sub-section (3) of Section 15, shall be calculated; (d) the fees payable on a petition or appeal under this Act; and (e) the matters which are to be and may be prescribed. Under the aforesaid provision rules have been framed by the State Government known as “Uttar Pradesh Imposition of Ceiling of Land Holdings Rules, 1961” (from hereinafter referred to as the Rules). Rule 4(A) of the said Rules reads as follows: “Rule 4.A. (1) An application for permission to transfer any land referred to in sub- section (2) of Section 6 shall be made in C.L.H. Form 48. (2) The application shall be made to the Collector and latest extracts from the Khatauni and Khasra shall invariably be accompanied with every such application. (3) On receipt of the application, the Collector shall make such inquiry as may appear to him to be necessary and after verifying the facts stated therein the Collector shall send his comments to the Secretary to the State Government in the Revenue Department as expeditiously as possible. (4) After considering the merits of each individual case, the State Government may grant the permission, if it is satisfied – 11 (a) that in the case of the land referred to in clause (d) of sub-section (1) of Section 6- (i) the tenure-holder concerned is unable to run the plantation efficiently and economically, and (ii) the transferee shall utilize the land only for the purposes for which it has been exempted; (b) that in the case of land referred to in clause (e) and (g) of the said sub- section- (i) the land is being transferred to a similar institution for a similar purpose; and (ii) it is necessary to transfer the land for proper maintenance of the existing Gaushala or Stud farm, as the case may be; (c) that in the case of land referred to in clause (f) of the said sub-section, the income from the sale proceeds shall be utilized exclusively for the purposes for which the institution has been established.] A bare perusal of the aforesaid Rule shows that the restriction was imposed on any transfer of the exempted category of land with a view that the nature of the land should not be changed by such transfer and, therefore, under the Rules the concerned authority had to come to a subjective satisfaction that the transferee will not change the nature of the land in case it is transferred to him. In other words, the purpose of “prior approval” under Section 6 (2) of the Ceiling Act was that the nature of the exempted category of land should not change and, therefore, for abundant precaution restrictions were imposed under the 12 Ceiling Act itself for any transfer of such category of land and even in those cases where the Government would grant such a permission, it could only be done after due diligence of the Government that the nature of the exempted category of land was not to change, under any ostensible transfer of the land. Here, the Rules prescribe the fulfillment of two mandatory conditions before the Government grants the permission for transfer. Firstly, it must be satisfied that the tenure-holder cannot run the tea plantation efficiently and economically and secondly, the State Government is satisfied that the transferee shall utilize the land only for the purposes, for which it was exempted. All the same, the report of the Sub Divisional Magistrate (impugned by the Petitioner) reveals that in utter violation of these provisions, the land which was under tea cultivation at Berinag and had an area of 10011 “nali”* 1 “muthi” and at Chaukori which had an area of 42152 nali 13 muthi, much has been transferred and the area has now been considerably reduced. The Sub Divisional Magistrate also made a reference to the settlement report of the year 1966 which states that in Kumaon Division, in order to encourage the tea industry, three areas were earmarked and were called as Fee Simple Estates, in district Pithoragarh. These three places were at (A) Berinag (B) Chaukori and (C) Jhaltola (we are presently concerned with (A) & (B). However, far from continuing tea cultivation on the land, the erstwhile ‘hissedars’** of these land kept on selling portions after (* local unit of land measurement where 1 nali = A measure of capacity equal to two seers of grain.) (** Coparcenary proprietor) 13 portions of these land in small pieces to various persons by registered as well as unregistered agreements, without prior permission of the State Government. In many of these transferred lands residential houses have been constructed and the nature of the land has changed. This activity, the Sub Divisional Magistrate states, is in clear violation of Section 6 (2) of the Ceiling Act. It has already been seen in reference to the aforesaid provision of the Statute as well as the Rules that the said restrictions were enacted with the purpose, which was to maintain the nature of the land. This purpose has been defeated by the said illegal transfers – transfers which are void in the eyes of the law. The Sub Divisional Magistrate then states that in the Ceiling Act there are penal provisions as well and, therefore, he requests the District Magistrate that he may at his level take relevant opinion from the D.G.C. (Revenue) as well as the D.G.C. (Criminal) so that proper action in accordance with law should be taken in this regard against the persons who have so violated the law. He further states that the said transfer of land which has taken place in violation of Section 6 (2) of the Ceiling Act and in violation of principle of natural justice and fair play inasmuch as the State Government was not heard at the time of the registration of these documents or any proceedings and, therefore, an appeal may be filed before the proper forum against such transfer or registration. He also states that although a part of this land was transferred to the Department of State Government but this is not illegal in view of Section 5 (2) read with the proviso to Section 6(2) of the Ceiling Act (these provisions have been referred above), as the transfer of this exempted 14 category of land to the Government or the Government Departments is not illegal. In the said report/letter, the Sub Divisional Magistrate further refers to the ground realities that immediately it may not be practical to evict all such persons who are in possession of the land though they are there in violation of the law, and eviction of persons on such a large-scale may be taken at a later stage, but for immediate action, the Sub Divisional Magistrate, inter alia, has directed the Sub-Registrar, Didihat not to register any land of Chaukori and Berinag as a gift deed, patta, sale deed, etc. as it is in violation of Section 6 (2) of the Ceiling Act. Since the petitioner apparently wanted to sell this exempted category of land without seeking permission of the State Government and/or wants registration of such “transfer” already made, the order of the Sub Divisional Magistrate dated 2.5.2006 puts an obvious hindrance on their plans. One of the main contention of the petitioner before the District Magistrate was that the land is exempted under Section 6 (1) (d) of the Ceiling Act from being declared as a surplus. Further the restriction under Section 6 (2) is not applicable on this land because over the last 40 years and more, the land has continuously been sold to different persons and now there is an “abadi” on this land and since there is an “abadi” on this land, it is outside the purview of the U.P.Z.A. & L.R. Act and also outside the purview of the Ceiling Act since the nature of the land over these years has changed to as ‘abadi’ or a full breathing township from a 15 “tea estate” and since the restriction is only for tea estate, therefore, the restriction will not logically be applicable in the present case. This argument has to be rejected at the very outset for the reasons that convenience cannot accrue to a party for his own wrong and no one can be allowed the benefit of his own wrongful act. There is a legal maxim to it – “Commondum ex injuria sua memo habere debt”. This is what the District Magistrate also states in his order dated 13.09.2007 that when the land was given to the predecessor or the predecessors in interest, there was no “abadi” on the said land and it was a tea estate, and in law it had to remain a tea estate. Merely because the nature of the land has changed (in violation of Section 6 (2) of the Ceiling Act), the petitioner will not be given the benefit; and this Court is of a clear opinion that the District Magistrate was absolutely correct in holding such a view. It was also pointed out by the petitioner before the District Magistrate that the Sub Divisional Magistrate has got no power to pass instructions to the Sub-Registrar directing him not to register a sale deed or any such deed and such an order, in fact, would be in violation of para 241 of the Registration Manual. This argument was again pressed before this Court, and it was stressed that the order of the Sub Divisional Magistrate is in violation of para 241 of the Registration Manual and in any case, it is without jurisdiction. Para 240 and para 241, of the Registration Manual, on which much reliance has been placed by the petitioner’s counsel read as follows :- 16 “Para 240 : Re-registration under section 23A are made by the District Registrar. Under section 30, clause (a), discretional authority is given to the District Registrar of a