JUDGMENT "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. 2. 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 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. 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 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. 3. 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. 4. 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. 5. 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. 5. 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. 6. Let us examine the factual aspects first, which are as follows:- 7. 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 "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. 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 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". 8. 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. 8. 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. 9. 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; (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) ." 10. 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. (3) . (4) . (5) . .. (6) . (7) ." 10. 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; (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." 11. 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; (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. 12. 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). 12. 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.] 13. 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 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) 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. 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 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. 14. as it is in violation of Section 6 (2) of the Ceiling Act. 14. 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. 15. 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 "tea estate" and since the restriction is only for tea estate, therefore, the restriction will not logically be applicable in the present case. 16. 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. 17. 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. 17. 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 :- "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 district to receive and register any document which might be registered by any sub-registrar subordinate to him. District Registrars should exercise the discretion here given them with a due regard to the public convenience. A refusal to register may compel numerous parties and witnesses to travel to a distant sub-office and carry with them large sums of money. Where the document is a will or authority to adopt, or where is relates to a transaction in which the sub-registrar having jurisdiction is pecuniarily interested, or where it is written in English and the sub-registrar having jurisdiction is unacquainted with that language, the District Registrar should never refuse to accept it for registration except for very cogent reasons. Where a District Registrar decides that a document presented to him under section 30 ought to be registered in the office of a sub- registrar, he shall return it to the person presenting it without recording an order of refusal either on the document or in his boon no. II. Para : 241. Where a District Registrar decides that a document presented to him under section 30 ought to be registered in the office of a sub- registrar, he shall return it to the person presenting it without recording an order of refusal either on the document or in his boon no. II. Para : 241. Registering officers should bear in mind that they are in no way concerned with the validity of documents brought to them for registration, and that it would be wrong for them to refuse to register on any such grounds as the following (1) that the executant was dealing with property not belonging to him; (2) that the instrument infringed the rights of third persons not parties to the transaction; (3) that the transaction was fraudulent or opposed to public policy; (4) that the executant had not agreed to certain conditions of the document; (5) that the executant was not acquainted with the conditions of the document; (6) that the executant declared that he had been deceived into executing; (7) that the executant is blind and cannot count. These and such like are matters for decision, if necessary, by competent courts of law, and registering officers, as such, have nothing to do with them. If the document be presented in a proper manner, by a competent person, at the proper office, within the time allowed by law, and if the registering officer be satisfied that the alleged executant is the person he represents himself to be, and if such person admits execution, the registering officer is bound to register the document without regard to its possible effects. But the registering officer shall make a note of such objections of the kinds mentioned in grounds (1) to (7) above, as may be brought to his notice in the endorsement required by section 58." 18. Registration Manual, is merely a compilation of Administrative instructions and have no statutory force. Although a liberal interpretation of these provisions, as referred above, show that not every document is liable to be registered and the Sub-Registrar and the Registrar have got powers to refuse to register a document though they have to give a reason for doing so. Registration Manual, is merely a compilation of Administrative instructions and have no statutory force. Although a liberal interpretation of these provisions, as referred above, show that not every document is liable to be registered and the Sub-Registrar and the Registrar have got powers to refuse to register a document though they have to give a reason for doing so. In para 240, it is stated that the District Registrar should never refuse to accept its registration "except for very cogent reasons" and para 241 says "If the document be presented in a proper manner, by a competent person, at the proper office, within the time allowed by law, and if the registering officer be satisfied that the alleged executant is the person he represents himself to be, and if such person admits execution, the registering officer is bound to register the document without regard to its possible effect". These two provisions give ample scope with the Registrar or the Sub-Registrar to refuse to register a document, particularly, in such a case as is being dealt presently, where the document to be registered is grossly in violation of law. Even assuming that there is no explicit or happily worded provision in the Registration Manual giving powers to the Registrar or the Sub-Registrar to refuse to register a document (even though the document is against the express provisions of law), then such powers have to be read in the Registration Manual as it can be nobody's case that a Registrar or a Sub-Registrar is liable to register a document even though the document is in violation of the law. Moreover, as it has already been stated above, the registration manual is nothing but a collection of administrative instructions. The Registration Manual is subordinate to the Registration Act of 1908 where under Section 71, the Sub-Registrar has got powers to refuse to register a document but while doing so he has to assign reasons. Section 71 of the Registration Act, 1908 reads as follows: "71. Reasons for refusal to register to be recorded. The Registration Manual is subordinate to the Registration Act of 1908 where under Section 71, the Sub-Registrar has got powers to refuse to register a document but while doing so he has to assign reasons. Section 71 of the Registration Act, 1908 reads as follows: "71. Reasons for refusal to register to be recorded. (1) Every Sub-Registrar refusing to register a document, except on the ground that the property to which it relates is not situate within his sub-district, shall make an order of refusal and record his reasons for such order in his Book No. 2, and endorse the words "registration refused" on the document; and, on application made by any person executing or claiming under the document, shall, without payment and unnecessary delay, give him a copy of the reasons so recorded. (2) No registering officer shall accept for registration a document so endorsed unless and until, under the provisions hereinafter contained, the document is directed to be registered." 19. Moreover, when the transfer itself is in violation of the law, this Court sees no anomaly with an administrative authority directing the Sub-Registrar not to register a document. No amount of administrative instructions contained in para 241 of the Registration Manual would come here for the rescue of the petitioner and the District Magistrate was right in holding that the Registration Manual is subordinate to the Statute, such as, the U.P.Z.A. & L.R. Act and the Ceiling Act as well as the amendments made in the Ceiling Act and provisions of this Act would prevail over the Registration Manual. Moreover, the District Magistrate has rightly stated that no restriction on transfer has been imposed by the letter/order of the Sub Divisional Magistrate dated 2.5.2006 and what the order says is that persons such as the petitioner have repeatedly violated the law i.e. the Ceiling Act. The order of the Sub Divisional Magistrate dated 2.5.2006 merely reiterates the position of law. There is another purpose, for the Sub Divisional Magistrate in directing the Sub-Registrar not to register these documents. This would caution an otherwise gullible buyer from purchasing this property, which under law cannot be transferred without prior permission of the Government, and in fact when such a transfer itself is void. The order of the Sub Divisional Magistrate is therefore also precautionary, in fact preemptive in nature. Far from being illegal this order is laudable. 20. This would caution an otherwise gullible buyer from purchasing this property, which under law cannot be transferred without prior permission of the Government, and in fact when such a transfer itself is void. The order of the Sub Divisional Magistrate is therefore also precautionary, in fact preemptive in nature. Far from being illegal this order is laudable. 20. A great effort was made by the learned counsels for the petitioner while elaborating at length the definition and concept of "Fee Simple Estate" and it was argued that a Fee Simple Estate is an estate which is in the nature of free holding and not a Government grant and it has been wrongly given in the settlement report of 1966 that the Fee Simple Estate is an estate which was given by the Government to various cultivators for encouraging the cultivation of tea in Kumaon Division and the settlement report and the order of the Sub Divisional Magistrate as well as the order of the District Magistrate treats the free holding of the petitioner as a Government grant land which is not the correct position. First of all the settlement report of 1966, which the petitioner has annexed in his petition merely states as to what "fee simple estate' means in district Pithoragarh. It says that in order to encourage tea cultivation in Kumaon certain areas were earmarked and were sold to tea cultivators for cultivating tea on this area. These areas are known as 'fee simple estates' and in Pithoragarh such areas are three in number, namely, (A) Jhaltola (B) Chaukori and (C) Berinag. This report does not say that "fee simple estates" were given as grant to cultivators for tea cultivation. It says this land was "sold" to tea cultivators. No one is challenging or questioning the title of the petitioner on the property nor is the quality of their status as a true owner is under challenge. This Court has to place its reliance on the settlement report. 22. A word here about the "settlement reports" is necessary. Unlike in the plains, there is nothing in the shape of an annual village records prepared in the hills. A set of village papers are prepared at settlement and remain the basis of administration and the sole record of rights and tenures, until the next revision of settlement (Stowell, A manual of Land Tenures of the Kumaun Division). Unlike in the plains, there is nothing in the shape of an annual village records prepared in the hills. A set of village papers are prepared at settlement and remain the basis of administration and the sole record of rights and tenures, until the next revision of settlement (Stowell, A manual of Land Tenures of the Kumaun Division). There have been a few major 'settlements' in the hills of Kumaon and Garhwal carried out by the erstwhile 21 Commissioners of this area, during the British period. Perhaps in the post British period, 1966 settlement is the one and only such settlement available to us. This Court has no reason to disbelieve the settlement record and it seems to be the case that the land for tea cultivation was sold to tea cultivators and the rights such tea cultivators were to have on their property were that which one has on a "fee simple estate. 23. The word "Fee Simple Estate" has been defined in the Halsbury's Law of England Vol. 39 (2) ,more or less, as a free hold estate. However, the owners of the Fee Simple Estates in Kumaon, Garhwal region have acquired the status of a "hissedar" (co-sharers) with the imposition of the Kumaon and Uttarakhand Zamindari Abolition & Land Reforms Act, 1960 (from hereinafter referred to as K.U.Z.A.) in Kumaon and Garhwal area with effect from 10.9.1960. The word "hissedar" has been defined under Section 3 (6) of the Act which reads as follows:- "3.(6) "hissedar" shall have the meaning assigned to it in the existing law relating to land tenure applicable to Kumaun and Uttarakhand Division and includes the following: (i) Guzaredar of Pargana Askot, (ii) Holders of free simple estates, (iii) Maharaja of Tehri ( in respect of land held by him as khudkasht on the date of merger of Tehri-Garhwal, as defined in the Tehri-Garhwal (Administration) Order, 1949, in Uttar Pradesh), (iv) Shkalana maufidars in Tehri- Garhwal (in respect of land held by them as their khudkasht on the date of the proprietary and muafidari rights in 1948). (v) the muafidars of padyargaon in Tehri-Garhwal, (vi) a maurusidar or a halbandi muafidar in Tehri-Garhwal or Uttar Kashi in respect of that part of this land which is held by a khaikar, (vii) a jagirdar of a Soldier's Settlement estate, and (viii) an allottee of land in the Dungiri Colonization area in Almora district who has purchased hissedari rights before the appointed date;" 24. The word "hissedar" will have the same meaning as assigned to it in the existing law relating to land tenure in Kumaon and Garhwal Division in Uttarakhand. The best and most acknowledged source about the land tenure system of Kumaon* is V.A. Stowell's "A Manual of the Land Tenures of the Kumaun Division (Hill Tracts)". Stowell has defined 'Hissedar' as a 'Coparcenary proprietor'. Stowell writes as follows : "The hissadari right is, as before mentioned, said to have been an introduction of the British rule. The idea of land without a private owner seems to have been repugnant to the earliest British administrators and as in the plains the proprietary right was conferred on the zamindars or revenue collectors, so in Garhwal it was conferred on the occupant cultivators, unless some one else could show that a grant of the land, and not merely an assignment of the revenue, had been made to him. The cultivators were then termed hissadars or co-sharers in the estate, and were allowed full rights of transfer in the cultivated land of the village." 25. In the same book Stowell also writes, "In practice all proprietors, qua proprietors, are known simply as hissadars, (* as it existed prior to the imposition of K.U.Z.A.) whatever form their proprietorship may take." In fact, by and large, one can safely say that as a hissadar one had the best property rights on the land. The other property rights on land such as that of khaiker or the rest, were definitely inferior. 26. After the imposition of K.U.Z.A. in Kumaon & Garhwal in the year 1960, the holders of fee simple estates would have the status of a "hissedar" as the definition of the word "hissedar" in K.U.Z.A., includes holders of fee simple estates under Section 3 (6) (ii) aforesaid. 26. After the imposition of K.U.Z.A. in Kumaon & Garhwal in the year 1960, the holders of fee simple estates would have the status of a "hissedar" as the definition of the word "hissedar" in K.U.Z.A., includes holders of fee simple estates under Section 3 (6) (ii) aforesaid. It is difficult to understand as to what benefit the petitioner wants to seek in calling himself a proprietor of Fee Simple Estate or an owner of a free hold property inasmuch as after the imposition of K.U.Z.A. and the Ceiling Act in the erstwhile State of Uttar Pradesh, the status of the petitioner on the said land will be determined as per the Statute. Therefore, at the time of imposition of K.U.Z.A., the petitioner's status was of a "hissedar". Section 8 of K.U.Z.A. further reads : "Section : 8. Settlement of certain lands with the hissedars and khaikars as bhumidhars. A khaikar in respect of the khaikari land held by him as such and hissedar in respect of (a) his land other than khaikari land, and (b) such portion of the Gaon Sanjait land, not exceeding his share therein as was in his personal cultivation or held as grove and in 1366 F. Shall, with effect from the appointed date, be called bhumidhar of the provisions of this Act, be entitled to take and retain possession thereof." 27. Therefore, from the appointed date, a "hissedar" has become a "bhumidhar" of the land and, therefore, in the present case, the status of petitioner on the land in question is that of a "bhumidhar". However, irrespective of his rights as a "bhumidhar" with the coming of the Ceiling Act (i.e. Act No. 1 of 1961), no tenure-holder was entitled to hold in the aggregate throughout the State, any land in excess of the ceiling area applicable to him. Notwithstanding the rights which the predecessors of the petitioner enjoyed on the said land, their present status would be determined by K.U.Z.A. and the Ceiling Act and other provisions of law. Since the land is under tea cultivation, it cannot be declared surplus but the restrictions would follow. 28. Notwithstanding the rights which the predecessors of the petitioner enjoyed on the said land, their present status would be determined by K.U.Z.A. and the Ceiling Act and other provisions of law. Since the land is under tea cultivation, it cannot be declared surplus but the restrictions would follow. 28. It is not a stand of the petitioner that the land in question is not a land under cultivation of tea because the moment the petitioner takes this stand, it would ipso facto mean that this land is not the land under the exempted category and, therefore, anything which was above the prescribed limit was liable to be declared as surplus. Since, it has been the consistent stand of the petitioner that he is a tenure-holder of a land which comes under the exempted category, to be precised under Section 6 (1) (d) of the Ceiling Act and, therefore, is exempted from being declared as surplus, the petitioner has to abide by the restrictions imposed by law i.e. under Section 6 (2) of the Ceiling Act 25 whereby before such a land is transferred, prior permission of the State Government becomes mandatory. Admittedly, this permission was never taken by the petitioner. 29. Something about the tea cultivation in Kumaon & Garhwal, needs to be said, at this stage. Tea cultivation was started by the Britishers in Kumaon and Garhwal area of Uttarakhand in the mid-nineteenth century by the initiative of the then Governor General of India, William Bentick. Tea Committees were then set up and nurseries were established initially in Dehradun in Garhwal and at Bheemtal and Hawalbagh in Kumaon. By the time, land was brought under tea cultivation in Garhwal & Kumaon, this cultivation was already prospering well in places like Assam. To that extent, Garhwal & Kumaon were late starters. However, very shortly the tea of Kumaon had gained a market, particularly in Afghanistan. Batten (Commissioner of Kumaon) in his "Notes & Collection on Tea Cultivation in Kumaon & Garhwal"* writes "Almora Tea has become an important topic of conversation among the merchants of Kabul". As per the available sources, the revenue generated from the gardens in 1900 from each of the 23 tea garden of Almora** are as follows : ------------------------------------------------------------------------------------------------------------ Name of garden Average Quantity of Value at 6 tea in lbs. produced. annas per lb. lbs. Rs. ------------------------------------------------------------------------------------------------------------ Almora District 1. Kausani 77,716 29,144 2. As per the available sources, the revenue generated from the gardens in 1900 from each of the 23 tea garden of Almora** are as follows : ------------------------------------------------------------------------------------------------------------ Name of garden Average Quantity of Value at 6 tea in lbs. produced. annas per lb. lbs. Rs. ------------------------------------------------------------------------------------------------------------ Almora District 1. Kausani 77,716 29,144 2. Naughar 3. Malla Katyur 114.034 42,763 4. Siahi Debi 533 200 5. Chirapani 9,034 3,388 6. Charson 8,824 3,388 7. Talla Lohri 7,455 2,796 8. Mall Lohri 533 200 9. Dunagiri 24,000 9,000 10. Chaukori 14,904 5,589 11. Berinag 44,781 16,793 12. Kapina 8 3 13. Magri 53,288 19,961 14. Mumlote 26,198 9,824 15. Jauna 11,902 4,203 16. Lodh 23,460 8,789 17. Hawalbagh 11,698 4,387 18. Dewaldhar 3,500 1,313 19. Mayavati 50 19 20. Raikot 1,571 589 21. Jhaltola 5,018 1,882 22. Saundiar 8,667 3,250 23. Oda Bijaipur 6,700 2,513 Total 453,121 69,608 30. In this case we are concerned with the tea estate of Berinag and Chaukori. And as the data reveals that even in the year 1900 Berinag tea gardens were amongst the leading tea gardens of Kumaon. 31. The final prong of the petitioner's argument is that once the Legislature has exempted a category of land from the general category of land which is not to be declared as surplus no restrictions on the transfer of said land can be placed and the restrictions are, therefore, wrong and consequently both the orders passed by the Sub Divisional Magistrate and the District Magistrate are also wrong. 32. This argument of the petitioner is entirely misconceived. In the present case while exempting certain categories of land from the purview of the Ceiling Act, the Act itself places restrictions on the transfer of these exempted categories of land. Therefore, the intention of the Legislature was two-fold firstly, to declare the land surplus and thereby after the land being so vested in the State to be distributed in accordance with law to those who need such a land and, secondly, to maintain the "nature" of the exempted category of land so that the land which was reserved for tea plantation should continue to be under tea plantation and the nature should not changed or disturbed. We have seen this clearly from the perusal of the relevant provisions of the Ceiling Act as well as the Rules framed, thereunder. 33. We have seen this clearly from the perusal of the relevant provisions of the Ceiling Act as well as the Rules framed, thereunder. 33. The learned counsel for the petitioner contends at the Bar that placing restrictions under Section 6 (2) is not correct. Apparently, the petitioner has not challenged the vires of Section 6 (2) and, therefore, this submission is so much out of the line. Moreover, it is an admitted position of law that U.P. Imposition of Ceiling on Land Holdings Act, 28 1960 and the subsequent Amendments have been placed in the 9th Schedule of the Constitution of India. The Ceiling Act being a 9th Schedule law in any case can be challenged only on the ground of being violative or destructive to the basic structure of the Constitution of India. In any case, there is no challenge to the vires of Section 6(2) of the Ceiling Act. Nevertheless, the petitioner in support of his case has relied upon the decision of the Supreme Court in Kunj Behari Lal Butail and others v. State of H.P. and others reported in (2000) 3 SCC 40. In this case, the Apex Court had an occasion to examine the validity of Himachal Pradesh Ceiling of Land Holding Rules, 1972 (as amended in the year 1986). In the said case, while land was to be declared surplus under the Act, namely, Himachal Pradesh Ceiling of Land Holdings Act, 1972, certain categories of land were admittedly exempted from the purview of the said Act. There was no restriction on the transfer of such an exempted category of land in the Act and no approval was required from the State Government before transfer of this exempted category of land. This restriction was subsequently imposed by an Amendment to the Rules, framed under that Act. This restriction on sale and purchase of the exempted category of land was held by the Apex Court as ultra vires to the powers of the Himachal Pradesh Ceiling of Land Holding Rules, 1973. In the said case, before the Supreme Court, it was the constitutional validity of the Rules which were challenged and the subsequent circular issued by the officers not to register any such land. In Himachal Pradesh, land under tea cultivation was exempted from the purview of the Ceiling Act (as in the case of Uttarakhand). In the said case, before the Supreme Court, it was the constitutional validity of the Rules which were challenged and the subsequent circular issued by the officers not to register any such land. In Himachal Pradesh, land under tea cultivation was exempted from the purview of the Ceiling Act (as in the case of Uttarakhand). However, there was no such restriction for transferring this exempted category of land in the Statute and such a restriction was imposed by making an amendment in the Rules in the year 1986. Since, the Rules had to be framed by the State Government for carrying out the purposes of the Ceiling Act, the amended Rule, which had imposed restriction on the transfer of such exempted category of land, went beyond its scope and beyond the scope of delegated Legislation, hence, these Rules were declared as ultra vires. A reference to para 8 of the said judgment is necessary for our purposes which is the crux of the decision of the Supreme Court in Kunj Behari Lal's case. Para 8 of the judgment of Kunj Behari Lal's case is reproduced below:- "Para 8 : Shri Divan, the learned Senior Counsel for the appellants submitted that lands covered by seven categories as defined in clauses (a) to (g) of Section 5 have been excluded from applicability of the provisions of the Act. Section 26 delegates to the State Government the legislative power of making rules which delegation is circumscribed by the expression "for carrying out the purposes of this Act". In exercise of such delegated power to legislate, the State Government cannot bring within the net of the Rules what has been excluded by the Act itself. We find merit in the submissions so made. Tea estates are excluded from the provisions of the Act by Section 5. "Tea estate" is defined in the interpretation clause of the Act to mean an area under tea plantation and includes within the definition "such other area necessary for purposes subservient to a tea plantation as may be prescribed". Rule 3 defines what areas shall be treated as subservient to a tea plantation. The amendment made vide notification dated 4.4.1986 places an embargo on the right to transfer such subservient land though exempted from the operation of the Act. Clearly the impugned proviso is beyond the rule making power of the State Government as conferred by the Act. Rule 3 defines what areas shall be treated as subservient to a tea plantation. The amendment made vide notification dated 4.4.1986 places an embargo on the right to transfer such subservient land though exempted from the operation of the Act. Clearly the impugned proviso is beyond the rule making power of the State Government as conferred by the Act. It is well settled that the legislature cannot delegate its essential legislative functions which consist in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct. What is permitted is the delegation of ancillary or subordinate legislative functions, or, what is fictionally called, a power to fill up the details. [ see : Principles of Statutory Interpretation, Justice G.P. Singh, (7th Edn., 1999, at pp. 689- 90).]" 34. On the contrary, in the State of Uttarakhand, the exempted category of land has been defined by the Ceiling Act and the same Act puts restrictions on the sale and purchase of this exempted category of land. Here the restrictions have not been imposed by a delegated authority under Rules but by the Statute itself. Hence, this Court does not see as to how the aforesaid ruling is applicable in the present case. Moreover, as pointed above, the petitioner has not challenged the vires of Section 6 (2) of the Ceiling Act. 35. For the aforesaid reasons, I find no merit in the writ petition and the writ petition is liable to be dismissed. 36. Consequently, writ petition is dismissed. No order as to costs.