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2014 DIGILAW 48 (UTT)

Shashi Agrawal v. State of Uttarakhand

2014-02-21

B.S.VERMA

body2014
JUDGMENT B.S. Verma, J. 1. Since, in all these three writ petitions, the controversy to be decided is similar, therefore, all these writ petitions are being decided by this common judgment. 2. Writ Petition (MS) No. 962 of 2005 and Writ Petition (MS) No. 963 of 2005 have been filed by the petitioners seeking common reliefs, which are reproduced herein below: “(i) To issue a writ, order or direction in the nature of certiorari quashing the order dated 10.8.2005 made by respondent No. 2 as contained in Annexure 1. (ii) To issue a writ, order or direction in the nature of certiorari quashing the proceedings initiated by the District Magistrate, Udham Singh Nagar against the petitioner under the provisions of the UP Government Thekedari Abolition Act, 1958 (UP Act No. 1 of 1959) as re-enacted vide UP Government Estates Thekedari Abolition (Re-enactment and Validation) Act, 1970 (UP Act No. 28 of 1970). (iii) To issue a writ, order or direction in the nature of certiorari quashing the order/ notice dated 12.8.2005 issued by the District Magistrate, Udham Singh Nagar, as is contained in Annexure No. 2 so far as the same relates to the petitioner. (iv) To issue a writ, order or direction in the nature of mandamus commanding the respondents not to proceed any further pursuant to the proceedings initiated against the petitioner under the provisions of UP Act No. 1 of 1959 as re-enacted vide UP Act No. 28 of 1970. (v) To issue a writ, order or direction in the nature of mandamus commanding the respondents not to give effect to any proceedings pursuant to the impugned order / notice dated 12.8.2005 as is contained in Annexure P 2 to the writ petition, so far as the same relates to the petitioner. (vi) To issue any other writ, order or direction which the Hon’ble Court may deem just and proper in circumstances of the case. (vii) To allow this writ petition with all costs in favour of the petitioner.” 3. During the course of arguments, relief No. 1 has not been pressed in view of the fact that the Award passed by the learned Arbitrator, i.e. Commissioner, Kumaon Division, Nainital, has been assailed by filing objections under Section 34 of the Arbitration and Conciliation Act before the District Judge and the same is pending for disposal. 4. During the course of arguments, relief No. 1 has not been pressed in view of the fact that the Award passed by the learned Arbitrator, i.e. Commissioner, Kumaon Division, Nainital, has been assailed by filing objections under Section 34 of the Arbitration and Conciliation Act before the District Judge and the same is pending for disposal. 4. Brief facts, giving rise to Writ Petition (MS) No. 962 of 2005 and Writ Petition (MS) No. 963 of 2005, as narrated in Writ Petition (MS) No. 962 of 2005, are stated in the following paragraphs: (i) In consequence of the order passed by the Commissioner in arbitration proceedings, the District Magistrate/Collector, Udham Singh Nagar, issued the notice, whereby he had initiated proceedings under the UP Government Estates Thekedari Abolition Act, 1958 (hereinafter referred to as the “UP Act No. 1 of 1959) as re-enacted by the UP Government Estates Thekedari Abolition (Re-enactment and Validation) Act, 1970 (hereinafter referred to as the “UP Act No. 28 of 1970) and the Rules framed thereunder known as UP Government Estates Thekedari Abolition Rules, 1960 (hereinafter referred to as the “1960 Rules”) in respect of the lands being held by the petitioner in certain villages in the district of Udham Singh Nagar. As per the averments made in the writ petition, the impugned action on the part of the respondents in initiating the proceedings against the petitioner under the aforesaid provisions is being challenged on the ground that the same is completely unlawful, arbitrary and unreasonable. Therefore, the said action is not maintainable. It is also pleaded in the writ petition that the UP Act No. 1 of 1959, as extended to the then district of Nainital on 17.06.1965, was challenged by the predecessors in interest of the petitioner in Writ Petition No. 3642 of 1966 before the Allahabad High Court. In the said writ petition, the petitioner had also challenged the notification dated 30.06.1966 issued under Section 3 of the UP Act No. 1 of 1959, by which, the lease in favour of the predecessors in interest of the petitioner was sought to be determined. On 25.10.1967, the said writ petition was allowed by the Allahabad High Court and the UP Act No. 1 of 1959 was declared as unconstitutional and void w.e.f. 20.06.1964, and, by the same judgment, the notification dated 30.06.1966 was also quashed. On 25.10.1967, the said writ petition was allowed by the Allahabad High Court and the UP Act No. 1 of 1959 was declared as unconstitutional and void w.e.f. 20.06.1964, and, by the same judgment, the notification dated 30.06.1966 was also quashed. Therefore, the proceedings, thus initiated, came to an end and the petitioner and the legal heirs of the original lessee are paying the land revenue and holding the lands under the lease. Petitioner is alleged to be successor in interest of the original lease granted by the then Government to her predecessor in interest on 01.03.1933, namely, Sri Prag Narain. As per the lease conditions, the rent was to be revised from 1384 Fasli and the lease was originally granted for 99 years from 01.10.1933 to 30.09.2032. The land in question was leased out to the predecessor in interest of the petitioner with all surface rights easements, appurtenances belonging to the plots and further the said lease deed provided that the lessee and his heirs will hold the said land for the term of 99 years. According to the petitioner, till the year 2001, there was no dispute as regards the land revenue / rent being paid by the petitioner and other legal heirs; but, however, on the basis of an audit inspection conducted by an audit party of the Board of Revenue, the District Magistrate / Collector, Udham Singh Nagar, passed an order on 03.04.2001 for realizing the alleged dues as arrears of land revenue stating therein that the loss to the Government has been caused on account of the fact that, after 1384 Fasli, in place of lease rent, land revenue had been paid. The said order, according to the petitioner, was passed without giving any opportunity of hearing to the petitioner. The said order of the District Magistrate was assailed by the petitioner and other legal heirs of the original lessee by filing an arbitration petition before the Arbitrator, namely, the Commissioner, Kumaon Division, Nainital, in terms of the provisions contained in Clause 17 of the lease deed itself, which provided that all the disputes between the lessor and the lessee relating to or concerning the lease or any term or covenant thereof, shall be referred to the Commissioner of the Division in which the land is situated. Thus, ultimately, the order dated 10.08.2005 came to be passed by the Commissioner, Kumaon Division, Nainital. Thus, ultimately, the order dated 10.08.2005 came to be passed by the Commissioner, Kumaon Division, Nainital. Since the prayer No. 1, made in respect of this order dated 10.08.2005 has been withdrawn as not pressed, therefore, there is no need to proceed further on this aspect. (ii) As mentioned above, UP Act No. 1 of 1959 was enacted by the then Legislature of the State of Uttar Pradesh on 14.01.1959 and, as per Section 1(2) of the said Act, it was extended to such districts of Uttar Pradesh as may be notified from time to time. This Act was re-enacted and validated by Act No. 28 of 1970. Under Section 3 of the Act No. 28 of 1970, it has been provided that any action taken or purporting to have been taken under any provision of the principal Act, i.e. Act No. 1 of 1959 before the commencement of Act No. 28 of 1970, including under Section 3, shall be deemed to be and always to have been as valid as if the provisions of the UP Act No. 28 of 1970 were in force at all material times. The Act No. 28 of 1970 was also assailed by the predecessor in interest of the petitioner, again, by filing a writ petition before the Allahabad High Court, being Writ Petition No. 4567 of 1970, praying therein for issuance of an appropriate writ or order declaring the Act as unconstitutional and also to strike down the UP Act No. 1 of 1959 and UP Act No. 28 of 1970 and further the notification issued under the said Act determining the lease in question. While entertaining the said writ petition, the Allahabad High Court passed an order on 21.09.1970, whereby the dispossession of the petitioner was stayed. It was also stated by the petitioner that the said order was passed after hearing the counsel for both the parties. In the meantime, the proceedings against the predecessor in interest of the petitioner were started under the relevant provisions of UP Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the “1960 Act”). It was also stated by the petitioner that the said order was passed after hearing the counsel for both the parties. In the meantime, the proceedings against the predecessor in interest of the petitioner were started under the relevant provisions of UP Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the “1960 Act”). During the proceedings in the aforesaid Writ Petition No. 4567 of 1970, statement on behalf of the State of UP was made by the then Advocate General informing the court that the proceedings in interest of the petitioner were pending at that time and further that so far as the land under the personal cultivation of the lessee is concerned, the same shall be dealt with in accordance with law and so far as the buildings are concerned, they shall be dealt with in accordance with the provisions of UP Act No. 1 of 1959, as re-enacted by UP Act No. 28 of 1970. Therefore, on the basis of the said statement, the said writ petition was dismissed vide order dated 01.05.1979, copy of which is annexed as Annexure No. 7 to the writ petition. It was stated in the writ petition that since the predecessor in interest of the petitioner was having certain land in district Aligarh, thus, proceedings were drawn against him by the appropriate authority under the 1960 Act and, in the said proceedings, the land of the lease in question was also the subject matter apart from the land being held in Aligarh. Thereafter, the predecessor in interest of the petitioner and the petitioner have preferred Writ Petition No. 14029 of 1983 (KN Agarwal and another vs. State of UP & others) before the Allahabad High Court challenging the order dated 07.11.1983 passed by the Sub Divisional Officer, Kol, District Aligarh / Prescribed Authority under the 1960 Act, rejecting the application of the petitioner for staying the proceedings, and also praying for issuance of appropriate directions to the Prescribed Authority. In that writ petition, an interim order was also passed by the court on 17.11.1983. In that writ petition, an interim order was also passed by the court on 17.11.1983. It is, therefore, stated in the writ petition that when the matter was pending before the Allahabad High Court, it was not open to the respondents to have issued the impugned notice under the provisions of the UP Act No. 1 of 1959 and the said action is completely under the teeth of the orders passed by the Allahabad High Court on 17.11.1983 in Writ Petition No. 14029 of 1983 as well as the order dated 01.05.1979 passed in Writ Petition No. 4567 of 1970. It was further stated that, as a matter of fact, the order dated 01.05.1979 was passed by the Allahabad High Court on the statement made by the Advocate General on behalf of the State of UP and, therefore, it is now not open for the respondents to resile from the same. (iii) Thus, the impugned notice has been assailed by filing these writ petitions with the reliefs as quoted above. 5. In reply to Writ Petition (MS) No. 962 of 2005 and Writ Petition (MS) No. 963 of 2005, the State has filed its counter affidavit. So far as the factual aspect is concerned, there is no serious dispute regarding the same. A specific stand has been taken by the State that the impugned notice was issued by the District Magistrate in exercise of the power conferred upon it under the UP Act No. 1 of 1959, as re-enacted by the UP Act No. 28 of 1970 and, thus, the said notice does not suffer from any illegality or perversity. It was also stated in para 3 of the counter affidavit that the proceedings under the UP Act No. 1 of 1959, as re-enacted by the UP Act No. 28 of 1970, are independent to the proceedings under the 1960 Act. It was stated that both the Acts cover different fields and, therefore, the impugned notice has been issued in exercise of the power under the UP Act No. 1 of 1959, as re-enacted by the UP Act No. 28 of 1970. 6. It was stated that both the Acts cover different fields and, therefore, the impugned notice has been issued in exercise of the power under the UP Act No. 1 of 1959, as re-enacted by the UP Act No. 28 of 1970. 6. Writ Petition (MS) No. 1001 of 2005 and Writ Petition (MS) No. 1002 of 2005 have been filed by the petitioners seeking common reliefs, which are reproduced herein below: “(i) Issue an order, direction, writ in the nature of certiorari quashing the impugned Notice dated 12.8.2005 issued by Respondent No. 3 (Annexure-2 of the writ petition). (ii) Issue order, direction or the writ of mandamus commanding the respondent No. 3 not to enforce the impugned Notice dated 12.08.2005 (Annexure-2 of the writ petition). (iii) Issue the order, direction or writ in the nature of mandamus to the respondent no. 1, 2 and 3 not to initiate any proceedings for taking possession of the land in question from the petitioner Company till under the ceiling proceeding, the rights, capacity and quantum of holding by every individual successor/legal heir of the lessee are considered and decided and the land accordingly is delineated in respective shares as per law. (iv) Issue an ad-interim order in favour of the petitioner to stay the impugned Notice dated 12.08.2005 in respect of the land under Government Grant/Lease dated 1.3.1933 under cultivatory possession of the petitioner Company. (v) Issue, pass any order in the nature of writ or direction as this Hon’ble High Court may deem fit and proper in the circumstances of the case.” 7. These two writ petitions are also based on similar facts as have been narrated above in respect of Writ Petition (MS) No. 962 of 2005 and Writ Petition (MS) No. 963 of 2005. Petitioners, in these two writ petitions, are sub-lessees of the petitioners in Writ Petition (MS) No. 962 of 2005 and Writ Petition (MS) No. 963 of 2005. Petitioners, in these two writ petitions, are challenging the impugned Notice dated 12.08.2005 on the similar grounds as have been raised by the petitioners in Writ Petition (MS) No. 962 of 2005 and Writ Petition (MS) No. 963 of 2005. A few legal grounds have also been added in these two writ petitions by way of amendment, but those grounds have not been seriously pressed at the time of arguments. 8. Learned Senior Counsel Mr. S.P. Gupta and Mr. A few legal grounds have also been added in these two writ petitions by way of amendment, but those grounds have not been seriously pressed at the time of arguments. 8. Learned Senior Counsel Mr. S.P. Gupta and Mr. M.L. Verma, both, have given more stress on Rule 23 of the Rules framed under the UP Act No. 1 of 1959. It is contended that the Collector has issued Form 9 in exercise of Rule 23 mentioning therein the area 30 acres and, since the proviso wherein the area of 30 acres was mentioned has been deleted, therefore, this Rule has become non-existent and the notice given is illegal and void. It is further contended that the power, which has been exercised by the Collector, is without jurisdiction after the amendment of Section 4(b) of the UP Act No. 28 of 1970, which speaks about ceiling area and the ceiling area could be determined by the Prescribed Authority in exercise of power under the Ceiling Act of 1960. It is further contended that, since the Advocate General had made a statement to this effect that the excess area would be determined under the ceiling proceedings before the Allahabad High Court, therefore, the writ petition was disposed of on the basis of that statement and that statement is also binding upon the successor State of Uttarakhand. 9. Learned Senior Advocate Mr. S.P. Gupta has further contended that the provisions of the UP Act No. 28 of 1970 (GETA) do not apply to the lease land inasmuch as the lease land is not “Estate” of the State Government and the proceedings initiated are barred by limitation, as they were not initiated within reasonable period of time from the date of accrual of the cause of action. It was also contended that the Notification dated 16.10.1970 issued by the State Government under Section 6-B of the UP Act No. 28 of 1970 (GETA) is inconsistent with the provisions of UP ZA & LR Act, inasmuch as, the latter enactment provides only for categories of tenure holders. It was also submitted that the impugned Notification should have been placed before the State Legislature and, in absence of this procedure, the determination of lease is void. It was further contended that the provisions of Section 6-A and Section 6-B of the Act violates Article 31-A of the Constitution and, therefore, the whole Act is unconstitutional. It was also submitted that the impugned Notification should have been placed before the State Legislature and, in absence of this procedure, the determination of lease is void. It was further contended that the provisions of Section 6-A and Section 6-B of the Act violates Article 31-A of the Constitution and, therefore, the whole Act is unconstitutional. It was further contended that the entire lease land is under the personal cultivation of the petitioner and it is not restricted in area by statutory ceiling nor it is covered by any law providing for ceiling and, as such, the petitioner is entitled to retain the possession of the entire land. 10. Reliance has been placed by Mr. S.P. Gupta, learned Senior Advocate, on the judgment of the Hon’ble Supreme Court in the case of Janapada Sabha Chhindwara vs. Central Provinces Syndicate Limited and Another, 1970 (1) SCC 509 . Relevant paras 8 & 10 of the said judgment are reproduced herein below: “8. The relevant words which purport to validate the imposition assessment and collection of cess on coal may be recalled : they are, “cess imposed, assessed or collected by the Board in pursuance of the notifications / notices specified in the Schedule shall, for all purposes, be deemed to be; and to have always been validly imposed, assessed or collected as if the enactment under which they were so issued stood amended at all material times so as to empower the Board to issue the said notifications / notices”. Thereby the enactments, i.e., Act 4 of 1920 and the rules framed under the Act pursuant to which the notifications and notices were issued, must be deemed to have been amended by the Act. But the Act does not set out the amendments intended to be made in the enactments. Act 18 of 1964 is a piece of clumsy drafting. By a fiction it deems the Act of 1920 and the rules framed thereunder to have been amended without disclosing the text or even the nature of amendments. 10. The nature of the amendment made in Act 4 of 1920 has not been indicated. Nor is there anything which enacts that the notifications issued without the sanction of the State Government must be deemed to have been issued validly under Section 51(2) without the sanction of the Local Government. 10. The nature of the amendment made in Act 4 of 1920 has not been indicated. Nor is there anything which enacts that the notifications issued without the sanction of the State Government must be deemed to have been issued validly under Section 51(2) without the sanction of the Local Government. On the words used in the Act, it is plain that the Legislature attempted to overrule or set aside the decision of this Court. That, in our judgment, is not open to the Legislature to do under our constitutional scheme. It is open to the Legislature within certain limits to amend the provisions of an Act retrospectively and to declare what the law shall be deemed to have been, but it is not open to the Legislature to say that a judgment of a Court properly constituted and rendered in exercise of its powers in a matter brought before it shall be deemed to be ineffective and the interpretation of the law shall be otherwise than as declared by the Court.” 11. It is contended that in view of the judgment quoted above, after the amendment, the rules should have been amended. However, in my view, this judgment is of no help to the petitioners since the issue involved there was different. 12. Mr. S.P. Gupta, learned Senior Advocate, further placed reliance on the judgment of the Hon’ble Supreme Court rendered in the case of Gujarat Electricity Board vs. Girdharlal Motilal and Another, AIR 1969 SC 267 . Relevant paras 6 & 7 of the said judgment are reproduced herein below: “6. It was contended by the learned Attorney-General on behalf of the appellant that in matters like these rigid compliance with the provisions of law should not be insisted upon. According to him if the legal requirements are substantially satisfied the validity of the notice given, should be upheld. Proceeding further he urged that so long as the notice given by the Electricity Board is sufficient to intimate the licensee the intention of the Board, the mandate of the law is complied with; in a notice under Section 6(1) what is of the essence is the substance of the matter mentioned therein and not the manner in which the notice is worded. He urged that the licensee must have imported some commonsense into the notice received by him and he could not be allowed to riggle out of his obligation by having recourse to technicalities. In advancing these arguments, the learned Attorney-General overlooked the fact that notice required by Section 6(1) is not a notice of an action to be taken or merely a procedural step. It is a mode of exercising the power conferred on the State Electricity Board by the exercise of which the property rights of the licensees can be affected. Section 6(1) confers power on the State Electricity Board to take away the property of the licensee. Such a power must be exercised strictly in accordance with law. The legislature has prescribed the manner of its exercise. It must exercise in that manner and in no other way. It must also be seen that the Parliament deliberately changed the form of the notice to be given from what it was before Act 32 of 1959 was enacted. It prescribed that the notice must specifically call upon the licensee to sell the undertaking. The mandate of the law is clear and it must be obeyed. We agree with Mr. M.C. Chagla learned Counsel for the licensee that the issuing of a notice strictly in accordance with the provisions of Section 6(1) is a condition precedent to the exercise of the power conferred on the State Electricity Board to purchase the undertaking. That being so, we must hold that Section 6(1) is mandatory and it must be strictly complied with. 7. In this case we are not satisfied that the requirements of law have at least been substantially complied with. Obviously the person who issued the notice was not familiar with the legal position. He appears to be under the misapprehension that Section 71 of the Electricity (Supply) Act, 1948 was still in operation when he gave the notice. He appears to have been in two minds. He was not sure whether he should issue the notice under the provisions of the Act as they stood on the date of the notice or in accordance with the provisions as they were prior to the coming into force of Act 32 of 1959. He appears to have been in two minds. He was not sure whether he should issue the notice under the provisions of the Act as they stood on the date of the notice or in accordance with the provisions as they were prior to the coming into force of Act 32 of 1959. At the top of the notice it is mentioned that it is given under Section 6 of the Act but in the body of the notice it is purported to be given in exercise of the power available under Section 71 of the Indian Electricity (Supply) Act. Again the contents of notice indicate that it is a notice under Section 7(1) read with Section 7(4) of the Indian Electricity Act, 1910 as they stood prior to 1959. Quite clearly the notice speaks in two voices. It is the product of a confused mind. We fail to see how any commonsense can be read into it. On reading that notice the licensee could not have been definite whether the State Electricity Board purported to exercise the power under the law as it was on the date of the notice or as it was under the unamended Act. Rights and liabilities of the Electricity Board and the licensee before Act 32 of 1959 came into force are substantially different from their rights and liabilities under the Act. On reading the impugned notice it could not have been clear to the licensee that he had been called upon to sell the undertaking in accordance with the law as it then stood. We are unable to accede to the request of the Attorney-General to read into notice words which are not there.” 13. Mr. S.P. Gupta, learned Senior Advocate, further placed reliance on the judgment of the Hon’ble Supreme Court rendered in the case of Lallu Yeshwant Singh vs. Rao Jagdish Singh & Others, AIR 1968 SC 620 . Relevant paras 10 & 12 of this judgment are reproduced herein below: “10. In Midnapur Zamindary Co. Ltd. vs. Naresh Narayan Roy, AIR 1924 PC 144 , the Privy Council observed: "In India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court." 12. Relevant paras 10 & 12 of this judgment are reproduced herein below: “10. In Midnapur Zamindary Co. Ltd. vs. Naresh Narayan Roy, AIR 1924 PC 144 , the Privy Council observed: "In India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court." 12. In Yar Mohammad vs. Lakshmi Das, ILR (1958) 2 All 394: AIR 1959 All 1 , the Full Bench of the Allahabad High Court observed: "No question of title either of the plaintiff or of the defendant can be raised or gone into in that case (under Section 9 of the Specific Relief Act). The plaintiff will be entitled to succeed without proving any title on which he can fall back upon and the defendant cannot succeed even though he may be in a position to establish the best of all titles. The restoration of possession in such a suit is, however, always subject to a regular title suit and the person who has the real title or even the better title cannot, therefore, be prejudiced in any way by a decree in such a suit. It will always be open to him to establish his title in a regular suit and to recover back possession." The High Court further observed: "Law respects possession even if there is no title to support it. It will not permit any person to take the law in his own hands and to dispossess a person in actual possession without having recourse to a court. No person can be allowed to become a judge in his own cause. As observed by Edge, C.J., in Wali Ahmed Khan vs. Ayodhya Kundu, (1891) ILR 13 All 537 at p. 556: "The object of the section was to drive the person who wanted to eject a person into the proper court and to prevent them from going with a high hand and ejecting such persons." 14. Mr. M.L. Verma, learned Senior Advocate, in addition to the arguments advanced by Senior Advocate Mr. S.P. Gupta, has contended that it is well settled basic principle of law that, if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. Mr. M.L. Verma, learned Senior Advocate, in addition to the arguments advanced by Senior Advocate Mr. S.P. Gupta, has contended that it is well settled basic principle of law that, if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. In this regard, reliance has been placed upon the judgment of the Hon’ble Supreme Court in the case of Babu Verghese and Others vs. Bar Council of Kerala and Others, (1999) 3 SCC 422 . Relevant para 31 of the said judgment is reproduced herein below: “31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor which was followed by Lord Roche in Nazir Ahmad v. King Emperor who stated as under: Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.” 15. Therefore, it is contended that the proceedings ought to have been initiated under the ceiling act and not by the Collector under the UP Act No. 28 of 1970 (GETA). 16. The learned Advocate General appearing on behalf of the State has contended, in reply, that the writ petitions arising out from the ceiling proceedings against the order of Prescribed Authority, Aligarh, have been dismissed and, till date, those petitions have not been restored by the court. Therefore, there is no pending ceiling proceedings. 17. The learned Advocate General has further contended that the argument of both the learned Senior Advocates is a misconceived argument. Therefore, there is no pending ceiling proceedings. 17. The learned Advocate General has further contended that the argument of both the learned Senior Advocates is a misconceived argument. Section 4(b) of the Act gives jurisdiction to the Collector under the Act, which makes a provision that where under and in accordance with the terms of the lease, the lessee has brought any land included in the lease under his personal cultivation, the lessee shall become hereditary tenant of such land, or where such land exceeds the ceiling area, then of so much of such land as in aggregation with any other land held by him in Uttar Pradesh makes up the ceiling area, and shall be liable as such to pay rent equal or proportionate, as the case may be, to the rent, if any, payable in terms of the lease. What would be the ceiling area, it has been mentioned in amended Section 2 of the principal Act and by way of amendment in Sub-Section (2) substituted “and the express ceiling area shall have the meaning assigned to it in the UP Imposition of Ceiling on Land Holdings Act, 1960 as amended from time to time.” 18. The learned Advocate General has placed reliance on the judgment of the Hon’ble Supreme Court rendered in the case of Kanwar Lal vs. Second Additional District Judge, Nainital and Others, AIR 1995 SC 2078 , whereby the UP Act No. 28 of 1970 was held to be valid. It was held by the Court that, in view of Section 6 of the UP Act No. 28 of 1970, all acts done and purported to have been done under the UP Act No. 1 of 1959 stand validated. The Court further held that there is no violation of Article 31A of the Constitution of India. For ready reference, relevant paras 5 & 6 of the said judgment are reproduced herein below: “5. The next contention of the appellant is that in the absence of a fresh notification issued under the amended Principal Act, the leasehold rights of the appellant cannot be deemed to have been terminated, so as to enable the State to resume the lands. As the facts in the present case reveal, the Principal Act was extended to the district of Nainital by notification dated 17th June, 1965 w.e.f. 26th June, 1965. As the facts in the present case reveal, the Principal Act was extended to the district of Nainital by notification dated 17th June, 1965 w.e.f. 26th June, 1965. By notification dated 30th June, 1966, issued under Section 3 of that Act, the lease of the appellant was determined. The High Court declared as unconstitutional the provisions of that Act and hence the Act was amended and re-enacted w.e.f 20th June, 1964 by U.P. Government Estates Thekedari Abolition [Re-enactment and Validation] Act, 1970. Section 6 of the Validation Act validated anything done of purported to have been done and any action taken or purported to have been taken under the provisions of the Principal Act, viz., U.P. Government Estates Thekedari Abolition Act. That Section reads as follows: "6. Notwithstanding any judgment, decree or order of any court or Tribunal to the contrary, anything done or purporting to have been done and any action taken or purporting to have been taken under any provision of the principal Act before the commencement of this Act including, in particular, any notification under sub-section (3) of section 1, any determination of lease under section 3, or the recovery of any rents or other dues under section 4 or the taking over of possession or charge of land or of books, accounts or other documents under section 6 of that Act, shall be deemed to be, and always to have been as valid as if the provisions of this Act were in force at all material times.” In view of the said express validating provision, the notifications which were issued under the Principal Act in terms revived with the revival of the Principal Act and hence the action taken under the said notifications also stood validated. It was not necessary to reissue the notifications after the enactment of the Validation Act. To argue to the contrary would render the provisions of Section 6 of the Validation Act otiose. It is for this reason that we are unable to understand the reliance placed on behalf of the appellant on the decision of this Court in Mahendra Lal Jaini vs. State of Uttar Pradesh and Others, 1963 Supp. (1) SCR 912. The question considered in that case was whether an Act which was invalid being ultra vires the provisions of the Constitution would stand revived automatically on amendment of the relevant provision of the Constitution. (1) SCR 912. The question considered in that case was whether an Act which was invalid being ultra vires the provisions of the Constitution would stand revived automatically on amendment of the relevant provision of the Constitution. It was held that such a revival was not automatic and that the Act had to be re-enacted after the constitutional provision which it had infringed was amended. The ratio of that decision is, therefore, not applicable to the facts of the present case. The Principal Act has been re-enacted by amending the relevant provisions to bring them in conformity with the provisions of the Constitution and by the provisions of Section 6 of the Validation Act, as pointed out above, all acts done and purported to have been done under the principal Act have been expressly validated. The next contention was that the Validation Act is violative of the second proviso to Article 31A (1) of the Constitution. Under the lease granted under the Grants Act, the rights of the lessee were heritable as well as transferable. As a result of the determination of the lease by the Thekedari Abolition Act, the right which have been conferred on the lessee are only heritable. They are not transfer able by virtue of the provisions of the U.P Tenancy Act, 1939. Hence, the lessee is entitled to full compensation. 6. The relevant provisions of Article 31A (1) of the Constitution read as follows: "31A. They are not transfer able by virtue of the provisions of the U.P Tenancy Act, 1939. Hence, the lessee is entitled to full compensation. 6. The relevant provisions of Article 31A (1) of the Constitution read as follows: "31A. Saving of laws providing for acquisition of estates, etc.- (1) Notwithstanding anything contained in Article 13, no law providing for - (a) The acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, shall be deemed to be void on the ground that it is inconsistent with, or take-away or abridges any of the rights conferred by Article 14 or Article 19: Provided that where such law is a law made by the Legislature of a State, the provisions of this Article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent: Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof." What is prohibited by the aforesaid provision is acquisition by the State of any portion of the land under personal cultivation which portion is within the ceiling limit, without payment of its market value as compensation. By virtue of the Principal Act, as amended, what is conferred permanently on the erstwhile lessees under the Grants Act is the hereditary tenancy. The Principal Act as amended, by itself does not restrict the right of the hereditary tenant to transfer the land. The restriction on the transfer by a hereditary tenant has been placed by the U.P. Tenancy Act, 1939. It is, therefore, not correct to say that it is the Principal Act as amended, which places the restriction on the right of the hereditary tenant to transfer the land. The restriction on the transfer by a hereditary tenant has been placed by the U.P. Tenancy Act, 1939. It is, therefore, not correct to say that it is the Principal Act as amended, which places the restriction on the right of the hereditary tenant to transfer the land. Further while under the old lease, which is abolished by the Principal Act, the lessee could hold the land only for the period of the lease which was in the present case, upto 2013, by virtue of the conferment of the hereditary tenancy under the Principal Act, the lessee can now hold such land permanently. It cannot be said that the conferment of the permanent hereditary tenancy on the erstwhile tenure-lessee is in any way inferior to the rights of the lessee under the old grant. Hence in the first instance, the question of payment of compensation does not arise. Secondly, a mere restriction on the incidence of the lease or ownership is not acquisition within the meaning of Article 31A. Article 31A (1) (a) of the Constitution states that no law providing for the acquisition by the State of any estate or any rights therein or the extinguishment or modification of any such rights, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or Article 19. The second proviso to Article 31A (1), however, states that where any law makes any provision for the acquisition by the State of any estate and where any land comprised in such estate is held by a person under his personal cultivation, it shall not be lawful for the State to acquire the portion of such land as is within the ceiling limit applicable to him under any law for the time being in force, unless the law relating to the acquisition of such land provides for payment of compensation at a rate which shall not be less than the market value thereof. Thus there is a clear distinction between the provisions of Article 31A [1] (a) and of the second proviso to the said Article. Thus there is a clear distinction between the provisions of Article 31A [1] (a) and of the second proviso to the said Article. Whereas Article 31A[1] (a) holds valid the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, the second proviso carves out an exception to it by providing that [i] if any, estate is acquired by the State which comprises any land under personal cultivation and [ii] if such land is within the ceiling limit applicable to such person, such land as is within the ceiling limit will not be acquired without payment of compensation. In other words, the second proviso provides for compensation only if the land within the ceiling limit is wholly acquired by the State. If only some of the rights of the person concerned in such land are acquired or extinguished or are modified, the second proviso does not come into play. In the present case, instead of having the full rights as a lessee including the right to transfer the land, the appellant will be a hereditary tenant without the right to transfer the land. To that extent the rights of the appellant are modified or his right to transfer the land is extinguished. He has not been deprived of all his rights. It is not, therefore, a case of acquisition of his estate within the meaning of the second proviso to Article 31A [1]. Hence, the appellant is not entitled to compensation as provided by the said proviso. Further, as pointed out earlier, the appellant is conferred with the rights as the hereditary tenant permanently in place of his earlier rights as a tenure-lessee which were to expire after 2013. This is, therefore, a clear case of modification of the rights and not of acquisition of all the rights. It cannot be contended further that this modification is less beneficial to the appellant On this account also the second proviso to Article 31A(1) requiring compensation to be paid, does not come into play in the present case.” 19. This is, therefore, a clear case of modification of the rights and not of acquisition of all the rights. It cannot be contended further that this modification is less beneficial to the appellant On this account also the second proviso to Article 31A(1) requiring compensation to be paid, does not come into play in the present case.” 19. The learned Advocate General has placed on record the Notification enforcing the UP Zamindari Abolition and Land Reforms Act, 1950 w.e.f. 16.10.1970, wherein it is mentioned that the said Act shall, subject to exceptions and modifications specified in the Schedule appended hereto, come into force in and apply to estates or parts thereof owned by the State Government, which are situate in the 53 Mustajiri and 35 Thekedari villages of the Tarai and Bhabar Government Estates, district Nainital, where all leases have been determined with effect from July 1, 1965, and July 1, 1966 respectively under Section 3 of the Uttar Pradesh Government Estates Thekedari Abolition Act, 1958 (UP Act No. 1 of 1959). 20. First and foremost, for the facility of reference, the old Section 4(b) of the UP Act No. 1 of 1959 and the new Section 4(b) as has been amended by the UP Act No. 28 of 1970, are reproduced herein below: “Old Section : Section 4 (b) Where under and in accordance with the terms of the lease, the lessee has brought any land included in the lease under his personal cultivation, the lessee shall become a hereditary tenant of such land liable to pay rent equal to the rent calculated at hereditary rates applicable on the date immediately preceding the date of determination. Provided that where the total area of such land held by the lessee exceeds 30 acres, for the lessee shall be a hereditary tenant of only 30 acres area and the excess area, to be separated and demarcated from the 30 acres area by the Assistant Collector in charge of the sub-division on the application of the lessee or the Collector shall become and be deemed to be vacant land and the lessee shall be liable to ejectment from such excess area. New Section : Section 4(b) Where under and in accordance with the terms of the lease, the lessee has brought any land included in the lease under his personal cultivation, the lessee shall become hereditary tenant of such land, or where such land exceeds the ceiling area, then of so much of such land as in aggregation with any other land held by him in Uttar Pradesh makes up the ceiling area, and shall be liable as such to pay rent equal or proportionate, as the case may be, to the rent, if any, payable in terms of the lease.” 21. So far as the calculation of the ceiling area is concerned, the provisions of the 1960 Act (Ceiling Act) would apply, but the proceeding has to be initiated under the UP Act No. 1 of 1959, as re-validated by the UP Act No. 28 of 1970. The argument advanced by the learned Senior Advocates in this regard is misconceived. So far as the statement made by the learned Advocate General before the Allahabad High Court is concerned, that cannot be said to be having a binding effect. If a statement is made against the provisions of law, that cannot be said to be having a binding effect as it is well settled principle of law that, against law, there is no estoppel. 22. Having heard the learned counsel for the parties and in view of the discussion made above, the issue has been crystallized and it is amply clear that the notice has been issued by the Collector under the UP Act No. 1 of 1959, as validated by UP Act No. 28 of 1970. In exercise of power under the said Act, the notice can be issued, but the mistake, which was committed by the Collector, is that the notice was issued referring the area 30 acres, which was mentioned in the proviso of the original un-amended Act. After the amendment by the UP Act No. 28 of 1970, the lessees, who are recorded tenure holders at the time of determination of lease, are entitled to retain the ceiling area. In view of amendment in Section 4(b), the area of 30 acres has been substituted by ‘ceiling area’, which has to be determined by the Collector. After the amendment by the UP Act No. 28 of 1970, the lessees, who are recorded tenure holders at the time of determination of lease, are entitled to retain the ceiling area. In view of amendment in Section 4(b), the area of 30 acres has been substituted by ‘ceiling area’, which has to be determined by the Collector. ‘Ceiling area’ has been defined in the UP Act No. 28 of 1970 as under: “And the expression ‘ceiling area’ shall have the meaning assigned to it in the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960, as amended from time to time.” 23. Further, Section 6-A and 6-B, as inserted by the UP Act No. 28 of 1970, are also reproduced herein below: “6-A In respect of any land included in the lease which under and in accordance with the terms of the lease the lessee has brought under his personal cultivation, the determination and demarcation of the ceiling area and the surplus area, the acquisition of and the taking of possession over the surplus area, the determination and payment of compensation for the acquisition of the surplus area, and all other matters connected therewith shall be governed by the provisions of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960. 6-B The State Government shall issue a notification under section 2 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, applying the whole or any provisions of that Act, with exceptions or modifications, to Government Estates in respect of which an order is made under section 3 of this Act, not later than three months from the date of such order, and in the case of Government estates in respect of which an order has been made or purports to have been made before the commencement of the Uttar Pradesh Government Estates Thekedari Abolition (Re-enactment and Validation) Act, 1970, not later than three months from such commencement.” 24. Section 6 of the UP Act No. 28 of 1970 reads as under: “6. Section 6 of the UP Act No. 28 of 1970 reads as under: “6. Validation – Notwithstanding any judgment, decree or order of any Court or Tribunal to the contrary, anything done or purporting to have been done and any action taken or purporting to have been taken under any provision of the principal act before the commencement of this Act, including, in particular, any notification under sub-section (3) of Section 1, any determination of lease under Section 3, or the recovery of any rents or other dues under Section 4 or the taking over of possession or charge of land or of books, accounts or other documents under Section 6, of that Act, shall be deemed to be, and always to have been as valid as if the provisions of this Act were in force at all material times.” 25. The proviso to Section 4(b) nowhere says that the proceedings of separation of the land would be under the 1960 Act. It is also well settled principle of law that Act will have overriding effect over the Rules. Instead of 30 acres, ‘ceiling area’ would be read into the rules even if the Rules are not amended. 26. The argument advanced by the learned Senior Advocates Mr. S.P. Gupta and Mr. M.L. Verma to the effect that the proceedings would be initiated in view of Section 6-A (quoted above) under the 1960 Act, cannot be accepted for the simple reason that the proceedings have to be initiated under the UP Act No. 28 of 1970, but so far as the determination of the ceiling area is concerned, the same shall be governed by the provisions of the 1960 Act. The Section is very clear. There is no ambiguity in the language. For the purpose of calculation of the ceiling area, the provisions of the 1960 Act would apply. Ceiling area, which has to be determined, has been defined in Section 3 of the UP Act No. 28 of 1970, as has been mentioned above, which says that the expression ‘ceiling area’ shall have the meaning assigned to it in the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 as amended from time to time. Ceiling area, which has to be determined, has been defined in Section 3 of the UP Act No. 28 of 1970, as has been mentioned above, which says that the expression ‘ceiling area’ shall have the meaning assigned to it in the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 as amended from time to time. By a conjoined reading of Section 6-A and the definition of ‘ceiling area’, it is very much clear that the proceedings would be initiated under the UP Act No. 1 of 1959, as validated by UP Act No. 28 of 1970, and the calculation of the ceiling area would be under the provisions of the 1960 Act. 27. So far as the second limb of the argument advanced by the learned Senior Advocates, to the effect that the Advocate General had made a statement before the Allahabad High Court that the proceedings would be under the 1960 Act and the writ petition was disposed of on the basis of that statement and that statement is also binding upon the successor State of Uttarakhand, is concerned, the said statement made by the then Advocate General before the Allahabad High Court cannot be said to operate as estoppel in initiating proceedings under the UP Act No. 28 of 1970. It is well settled principle of law that, against law, there is no estoppel. The writ petition before the Allahabad High Court was not decided on merits. Therefore, the statement made by the then Advocate General before the Allahabad High Court is of no help to the petitioners. 28. Another argument that has been raised, though not pressed seriously, is that the Central Government has the control over the land in dispute. In this regard, it is to be mentioned that, in view of the provisions of the Constitution as well as the UP ZA & LR Act, the land is a State subject and all the lands situated within the territory of the State are State lands. Therefore, this argument is of no help to the petitioners. 29. The only argument advanced by the learned counsel for the petitioners, which can be said to be acceptable, is that 30 acres area has been wrongly mentioned in the notice and, therefore, on this count, the notice is not valid. The impugned notice issued by the Collector, on this count only, is set aside. 29. The only argument advanced by the learned counsel for the petitioners, which can be said to be acceptable, is that 30 acres area has been wrongly mentioned in the notice and, therefore, on this count, the notice is not valid. The impugned notice issued by the Collector, on this count only, is set aside. Writ Petition No. 962 of 2005 (MS) and Writ Petition No. 963 of 2005 (MS) are partly allowed and the Collector, Udham Singh Nagar, is directed to initiate appropriate proceedings in accordance with law and in view of Section 6-A, quoted above, for determination of the ceiling area and separation of surplus area and to take steps accordingly against those tenure holders, who were recorded at the time of determination of lease or their successors in interest. 30. So far as the petitioners in Writ Petition No. 1001 of 2005 (MS) and Writ Petition No. 1002 of 2005 (MS) are concerned, since they are sub-lessees, in view of Section 4(b), they cannot acquire any hereditary right in the land. The proceedings would be initiated against the successors in interest of the lessees in view of Section 6-A of the amended Act. Therefore, the sub-lessees have no right to continue over the land in dispute. Since the land is separated, their rights from the lease land automatically ceased. Besides this, it is also relevant to mention here that admittedly the sub-leases had been granted by the lessees in favour of these petitioners after the determination of the earlier leases. Therefore, the lessees were not having any right to execute the sub-leases. Therefore, it is directed that the names of these petitioners, if any, recorded in the revenue records on the basis of the sub-lessees be expunged from the revenue records. The notices, which have been issued by the Collector to these petitioners, were not at all required. Therefore, on that count, the impugned notices are set aside. The Collector shall take steps accordingly in accordance with law to correct the revenue records and for taking over possession. The notices, which have been issued by the Collector to these petitioners, were not at all required. Therefore, on that count, the impugned notices are set aside. The Collector shall take steps accordingly in accordance with law to correct the revenue records and for taking over possession. Since this land is handed over by the lessees to the sub-lessees and it is not in possession of the lessees, therefore, there is no need for the Collector to issue any fresh notice to the lessees in respect of this land as it is already separated by the lessees themselves by hading over possession to the sub-lessees and it also exceeds the ceiling area. Writ Petition No. 1001 of 2005 (MS) and Writ Petition No. 1002 of 2005 (MS) stand disposed of.