# SHRI SAURAV JAIN & ANR v. M/S A. B. P. DESIGN & ANR

- **Citation:** [2021] 8 S.C.R. 1020
- **Court:** Supreme Court of India
- **Decided:** 2021-08-05
- **Case number:** Civil Appeal No. 4448 of 2021
- **Bench:** Dr Dhananjaya Y Chandrachud, M R Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shri-saurav-jain-anr-v-m-s-a-b-p-design-anr-35157
- **Pages:** 41

## Headnote

Urban Land (Ceiling and Regulation) Act 1976:
ss. 5(3), 10(1), 27 - Transfer of vacant land - Validity of -
On facts, first respondent claiming to be a transferable owner and
cultivator of certain lands filed a suit for declaration that the auction
of said lands by the Development Authority was illegal and void;
that the first respondent is the exclusive owner and occupier of the
suit lands; and sought permanent injunction from dispossessing the
first respondent - Trial court dismissed the suit holding that the
Development Authority was lawful owner of the land and the auction
was valid - Trial court held that the suit land was of the erstwhile
owner, which was declared surplus and was handed over to the
Development Authority, and whereas the erstwhile owner had
allegedly sold the land to the first respondent - In appeal, the High
Court set aside the order of the trial court holding that the auction
conducted by the Development Authority in respect of the suit land
is null and void, wherein the appellant was the auction purchaser
of the suit land from the Development Authority; restrained the
appellant and the Development Authority from interfering with the
possession of the first respondent over the land - On appeal, held:
Purported transfer of the suit land by erstwhile owner to the first
respondent was before the Repeal Act was enacted - Dual conditions
stipulated u/s. 5(3) were not fulfilled before the transfer was made
since the statement u/s. 6 had not been submitted and the Competent
Authority had not issued a notification u/s. 10(1) - Thus, even if the
erstwhile owner had the title to the suit land, the transfer to the first
respondent was null and void u/s. 5(3) - Furthermore, when the
erstwhile owner had filed a declaration seeking permission for
transfer of the suit land, the permission u/s. 27 was not granted
since there was a pending suit concerning the said land - He then
[2021] 8 S.C.R. 1020
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filed another application seeking permission to transfer half of his
'retainable' land - Permission that was granted u/s. 27 by the Office
of the Competent Authority was for the transfer of lands from his
'retainable' property and not the suit land - Thus, the order of the
High Court is set aside - Suit instituted by the first respondent
dismissed.
Matter pertaining to ceiling proceedings - Jurisdiction of civil
court to entertain the suit - Exclusion of - On facts, first respondent
sought a declaration in regard to the legality of the auction conducted
by the Development Authority and the injunction - Plea that the
purpose of the suit was to impugn the validity of proceedings under
ULCRA - Held: ULCRA impliedly excludes the jurisdiction of the
civil court on matters arising out of the ceiling proceedings - First
respondent artfully drafted the plaint to challenge the validity of
the auction and sought an injunction and declaration, when the
substantive cause of action of the suit arises out of the land ceiling
proceedings - Real object and purpose of the suit, in the guise or
pretext of challenging the auction notice by the Development
Authority was to affirm the title of the first respondent on the basis
of an alleged permission obtained for the sale of the property - By
a process of engineered drafting, the first respondent sought no
reliefs in regard to the proceedings under the ULCRA (to obviate a
bar to the maintainability of the suit) and did not implead either the
State or the Competent Authority who would have been in a position
to answer the challenge - Courts below failed to correctly assess
the issue regarding the jurisdiction of the civil court to try a suit,
which in its essence, arises out of matters pertaining to the ULCRA
- This Court, has warned against drafting of this nature which seeks
to distract attention away from the real cause of action - Thus, the
jurisdiction of the trial court to entertain the suit instituted by the
first respondent was barred - Judicial deprecation.
C

## Text

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SUPREME COURT REPORTS
[2021] 8 S.C.R.
SHRI SAURAV JAIN & ANR.
v.
M/S A. B. P. DESIGN & ANR.
(Civil Appeal No. 4448 of 2021)
AUGUST 5, 2021
[DR DHANANJAYA Y CHANDRACHUD AND
M R SHAH, JJ.]
Urban Land (Ceiling and Regulation) Act 1976:
ss. 5(3), 10(1), 27 - Transfer of vacant land - Validity of -
On facts, first respondent claiming to be a transferable owner and
cultivator of certain lands filed a suit for declaration that the auction
of said lands by the Development Authority was illegal and void;
that the first respondent is the exclusive owner and occupier of the
suit lands; and sought permanent injunction from dispossessing the
first respondent - Trial court dismissed the suit holding that the
Development Authority was lawful owner of the land and the auction
was valid - Trial court held that the suit land was of the erstwhile
owner, which was declared surplus and was handed over to the
Development Authority, and whereas the erstwhile owner had
allegedly sold the land to the first respondent - In appeal, the High
Court set aside the order of the trial court holding that the auction
conducted by the Development Authority in respect of the suit land
is null and void, wherein the appellant was the auction purchaser
of the suit land from the Development Authority; restrained the
appellant and the Development Authority from interfering with the
possession of the first respondent over the land - On appeal, held:
Purported transfer of the suit land by erstwhile owner to the first
respondent was before the Repeal Act was enacted - Dual conditions
stipulated u/s. 5(3) were not fulfilled before the transfer was made
since the statement u/s. 6 had not been submitted and the Competent
Authority had not issued a notification u/s. 10(1) - Thus, even if the
erstwhile owner had the title to the suit land, the transfer to the first
respondent was null and void u/s. 5(3) - Furthermore, when the
erstwhile owner had filed a declaration seeking permission for
transfer of the suit land, the permission u/s. 27 was not granted
since there was a pending suit concerning the said land - He then
[2021] 8 S.C.R. 1020
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filed another application seeking permission to transfer half of his
'retainable' land - Permission that was granted u/s. 27 by the Office
of the Competent Authority was for the transfer of lands from his
'retainable' property and not the suit land - Thus, the order of the
High Court is set aside - Suit instituted by the first respondent
dismissed.
Matter pertaining to ceiling proceedings - Jurisdiction of civil
court to entertain the suit - Exclusion of - On facts, first respondent
sought a declaration in regard to the legality of the auction conducted
by the Development Authority and the injunction - Plea that the
purpose of the suit was to impugn the validity of proceedings under
ULCRA - Held: ULCRA impliedly excludes the jurisdiction of the
civil court on matters arising out of the ceiling proceedings - First
respondent artfully drafted the plaint to challenge the validity of
the auction and sought an injunction and declaration, when the
substantive cause of action of the suit arises out of the land ceiling
proceedings - Real object and purpose of the suit, in the guise or
pretext of challenging the auction notice by the Development
Authority was to affirm the title of the first respondent on the basis
of an alleged permission obtained for the sale of the property - By
a process of engineered drafting, the first respondent sought no
reliefs in regard to the proceedings under the ULCRA (to obviate a
bar to the maintainability of the suit) and did not implead either the
State or the Competent Authority who would have been in a position
to answer the challenge - Courts below failed to correctly assess
the issue regarding the jurisdiction of the civil court to try a suit,
which in its essence, arises out of matters pertaining to the ULCRA
- This Court, has warned against drafting of this nature which seeks
to distract attention away from the real cause of action - Thus, the
jurisdiction of the trial court to entertain the suit instituted by the
first respondent was barred - Judicial deprecation.
Code of Civil Procedure, 1908:
Ord. XLI r. 22 - Filing of cross-objections - Explained.
Ord. XLI r. 22 - Plea that a party, in whose favour the civil
court has decreed a suit, can raise arguments against findings
without having to file a cross-objection, in the appeal - Held: Only
when a part of the decree has been assailed by the respondent,
SHRI SAURAV JAIN & ANR. v. M/S A. B. P. DESIGN & ANR.
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SUPREME COURT REPORTS
[2021] 8 S.C.R.
should a memorandum of cross-objection be filed, otherwise, it is
sufficient to raise a challenge to an adverse finding of the court of
first instance before the appellate court without a cross objection -
It is not necessary that a challenge to the adverse findings of the
lower court needs to be made in the form of a memorandum of
cross-objection.
Constitution of India: Art. 136 - Raising of new ground before
Supreme Court in special leave petition - Permissibility of - Held:
Under Ord. 21 r. 3(c) of the 2013 Rules, SLPs are to be confined to
the pleadings before the court whose order is challenged - However,
with the leave of the Court, additional grounds can be urged at the
time of the hearing - Though the appellant did not assail the finding
of the trial court on the issue of jurisdiction before the High Court
u/Ord. XLI r. 22 CPC either by filing a memorandum of crossobjection or otherwise, he is not precluded from raising the argument
before this Court - This Court in view of its plenary jurisdiction u/
Art. 136 read with Art. 142 can entertain new grounds raised for
the first time if it involves a question of law which does not require
adducing additional evidence, specifically one concerning
jurisdiction of the court which goes to the root of the matter -
Supreme Court Rules 2013 - Ord. 21 r. 3(c) - Code of Civil
Procedure, 1908 - Ord. XLI r. 22.
Allowing the appeal, the Court
HELD: 1. The judgment of the trial judge dismissing the
suit was correct, but for the following reasons:
(i) The purported transfer of the suit land by ZH to the first
respondent was before the Repeal Act was enacted. The dual
conditions stipulated under Section 5(3) of the Urban Land
(Ceiling and Regulation) Act 1976-ULCRA were not fulfilled
before the transfer was made since the statement under Section
6 had not been submitted and the Competent Authority had not
issued a notification under Section 10(1) of the ULCRA (which
was in operation at the time). Therefore, even if the ZH had the
title to the suit land, the transfer to the first respondent was null
and void under section 5(3) of ULCRA.
(ii) When ZH had filed a declaration seeking permission
for transfer of the suit land, the permission under Section 27 of
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ULCRA was not granted since there was a pending suit
concerning the said land. He then filed another application seeking
permission for transfer of land admeasuring 1295 sq. mt of his
'retainable' 2000 sq. mt. of land. The permission that was granted
under Section 27 of ULCRA by the Office of the Competent
Authority on 5 May 1993 was for the transfer of lands from his
'retainable' property and not the suit land.
(iii) The plaintiff- first respondent has artfully drafted the
plaint to challenge the validity of the auction and sought an
injunction and declaration, when the substantive cause of action
of the suit arises out of the land ceiling proceedings.
(iv) The ULCRA impliedly excludes the jurisdiction of the
civil court on matters arising out of the ceiling proceedings.
(v) Though the appellant did not assail the finding of the
trial court on the issue of jurisdiction before the High Court under
Order XLI Rule 22 CPC either by filing a memorandum of crossobjection or otherwise, he is not precluded from raising the
argument before this Court. This Court in view of its plenary
jurisdiction under Article 136 of the Constitution read with its
power to do complete justice under Article 142, can entertain
new grounds raised for the first time if it involves a question of
law which does not require adducing additional evidence,
specifically one concerning jurisdiction of the court which goes
to the root of the matter.
Thus, the impugned judgment of the High Court is set aside.
The suit instituted by the first respondent is dismissed. [Para 39,
40][1059-D-H; 1060-A-D]
2.1 Section 5(3) of the ULCRA states that a person holding
land in excess of the ceiling limit before the commencement of
the Act shall not transfer the land until the land owner has
furnished a statement under Section 6 and the Competent
Authority has published the notification pertaining to the excess
land under Section 10(1). The purported transfer by ZH in favour
of the first respondent is in the teeth of and contrary to the
prohibition contained in sub section (3) of Section 5. Pursuant to
the initial order dated 16 March 1988 under Section 8(4) of the
ULCRA, a notification was published under Section 10(1) of the
SHRI SAURAV JAIN & ANR. v. M/S A. B. P. DESIGN & ANR.
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ULCRA on 27 September 1988. However, once the order was
set aside by the District Judge and the case was remanded back
to the Competent Authority, no further order was passed under
Section 8(4) and consequently, no notification was published under
Section 10(1). Thus, at the relevant time, that is between the
order dated 6 January 1993 remanding the matter to the
Competent Authority and when the sale deed was executed on
22 June 1993, there was no notification under Section 10(1) of
the ULCRA. Thus, the dual requirement for a valid transfer under
Section 5(3) was not fulfilled. Any transfer in contravention of the
provisions of Section 5(3) would be null and void. The suit
instituted by the first respondent was founded on his alleged claim
of title based on the transfer by ZH and was liable to fail on this
ground alone. [Para 19][1042-G; 1043-A-D]
2.2 There is a specific finding of fact in the judgment of the
trial court that the permission which was issued on 5 May 1993
to ZH for the transfer of 1295.04 sq mt of land was in modification
of an earlier order dated 29 March 1993. The permission was in
respect of the 2000 sq. mt of land which was retained by ZH. The
High Court has not adverted to this finding of fact at all nor has it
found any substantive basis to displace the finding. That apart, it
is evident, that the order of the Competent Authority dated 16
March 1988 was set aside in appeal by the District Judge on 6
January 1993 and the case was remanded for fresh adjudication
of the excess land in view of the amended Master Plan. In such
an instance, when the case was remanded, ZH could not have
transferred the suit property, having regard to the clear bar which
is contained in the provisions of Section 5(3). No transfer of the
land could have been lawfully made and any such transfer in
contravention with the provision would be null and void. [Para
20][1043-D-E; 1044-A-B]
2.3 Apart from the above findings which negate the basis
and foundation of the suit, the appellant-defendant has also raised
an objection to the jurisdiction of the trial court to entertain the
instant suit, given the bar on jurisdiction under the ULCRA. The
appellant submitted that the first respondent, through an artful
drafting of the plaint in the course of the pleadings in the suit
placed in issue the entire gamut of proceedings under the
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ULCRA, without impleading either the State of Uttar Pradesh or
the Competent Authority under the ULCRA. At the outset, it is
noted that the ground of lack of jurisdiction of the trial court over
the suit was raised in the proceedings before the court of first
instance. The trial court rejected the objection raised by the
appellant-defendant on the exercise of its jurisdiction, holding
that the suit for declaratory relief against the auction sale and for
an injunction could be entertained. In the appeal against the
judgment of the trial court filed by the first respondent before
the High Court, the appellant did not file a cross-objection against
this finding of the trial court on the exercise of its jurisdiction.
The appellant has urged before this Court that the jurisdiction of
the civil court is impliedly excluded under the provisions of the
ULCRA. Reliance has been placed by the appellant on Order
XLI Rule 22 of the CPC to argue that a party, in whose favour the
civil court has decreed a suit, can raise arguments against findings
without having to file a cross- objection, in the appeal. [Para
21][1044-C-F]
2.4 Order XLI Rule 22(2) of the CPC states that a "crossobjection shall be filed in the form of a memorandum, and the
provisions of Rule 1, so far as they relate to the form and contents
of the memorandum of appeal, shall apply thereto."It is apparent
from the amended provisions of Order XLI Rule 22 CPC that
there are two changes that were brought by the 1976 amendment.
First, the scope of filing of a cross-objection was enhanced
substantively to include objections against 'findings' of the lower
court; second, different forms of raising cross-objections were
recognised. The amendment sought to introduce different forms
of cross-objection for assailing the findings and decrees since
the amendment separates the phrase "but may also state that
the finding against him in the Court below in respect of any issue
ought to have been in his favour" from "may also take any crossobjection to the decree" with a semi colon. Therefore, the two
parts of the sentence must be read disjunctively. Only when a
part of the decree has been assailed by the respondent, should a
memorandum of cross-objection be filed. Otherwise, it is sufficient
to raise a challenge to an adverse finding of the court of first
instance before the appellate court without a cross objection. [Para
24, 25][1047-A-B; 1048-C-E]
SHRI SAURAV JAIN & ANR. v. M/S A. B. P. DESIGN & ANR.
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SUPREME COURT REPORTS
[2021] 8 S.C.R.
Banarsi & Ors. v. Ram Phal (2003) 9 SCC 606 : [2003]
2 SCR 22; S. Nazeer Ahmed v. State Bank of Mysore
(2007) 11 SCC 75 : [2007] 1 SCR 843 - referred to.
2.5 It is evident that the principle stipulated in Order XLI
Rule 22 CPC can be applied to petitions under Article 136 of the
Constitution because of this Court's wide powers to do justice
under Article 142 of the Constitution. Since the principle in Order
XLI Rule 22 of the CPC furthers the cause of justice by providing
the party other than the 'aggrieved party' to raise any adverse
findings against them, this Court can draw colour from Order
XLI Rule 22 CPC and permit objections to findings. [Para
27][1051-A-B]
Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji
AIR 1965 SC 669 : [1965] 1 SCR 712; Vashist Narain
Sharma v. Dev Chandra [1955] 1 SCR 509; Jamshed
Hormusji Wadia v. Port of Mumbai (2004) 3 SCC 214 :
[2004] 1 SCR 483 - referred to.
2.6 From the above it has been established that it not
necessary that a challenge to the adverse findings of the lower
court needs to be made in the form of a memorandum of crossobjection. In the instant case, it is noted that the appellant had
raised an objection to the jurisdiction of the trial court for
entertaining the suit on the ground that an injunction and
declaratory relief could not have been given. Although the trial
court passed a decree in favour of the appellant, it had decided
against the appellant on the question of jurisdiction. This finding
was not challenged by the appellant before the High Court in the
form of a memorandum of cross-objection. The judgment of the
High Court makes no mention that a plea of lack of jurisdiction
was taken by either the appellant or the MDA. Before this Court,
the appellant has not filed the counter-affidavit it had filed before
the High Court. Thus, the conclusion that emanates from the
record before this Court is that the ground of jurisdiction was
only raised by the appellant before the trial court and not before
the High Court. In effect then, this Court would have to adjudicate
on a plea, which did not form a part of the decision of the High
Court in challenge before this Court. [Para 28][1051-B-F]
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2.7 With regard to new grounds being raised before this
Court in a special leave petition under Article 136, it is noted
that under Order 21 Rule 3(c) of the Supreme Court Rules 2013,
SLPs are to be confined to the pleadings before the court whose
order is challenged. However, with the leave of the Court,
additional grounds can be urged at the time of the hearing. It is
just to allow the appellant to raise the ground of jurisdiction before
this Court. Allowing the ground to be raised would not require
the submission of additional evidence since it is a pure question
of law and strikes at the heart of the matter. [Para 29, 34][1051F-G; 1054-B-C]
Bharat Kala Bhandar (P) Ltd. v. Municipal Committee
AIR 1966 SC 249 : [1965] 3 SCR 499; Vasant Kumar
Radhakisan Vora v. Board of Trustees of the Port of
Bombay (1991) 1 SCC 761 : [1990] 3 SCR 825;
Chandrika Misir v. Bhaiya Lal (1973) 2 SCC 474 :
[1974] 1 SCR 290; Most Rev. P.M.A. Metropolitan v.
Moran Mar Marthoma (1995) 4 Suppl. SCC 286 :
[1995] 1 Suppl. SCR 542; Masalti v. State of Uttar
Pradesh AIR 1965 SC 202 : [1964] 8 SCR 133 - relied
on.
2.8 The pleadings in the suit indicate that the case of the
first respondent was that ZH had obtained the permission of the
Competent Authority on 5 May 1993 before transferring the lands
in favour of the first respondent on 22 June 1993; that the ceiling
proceedings under the ULCRA had resulted in an order of the
Competent Authority dated 16 March 1988 declaring 1295.04
sq. mt as surplus but the order of the Competent Authority had
been set aside in appeal on 6 January 1993 and the proceedings
had been remanded; that as a result of the Repeal Act, proceedings
under ULCRA stood abated; and that the first respondent
continued to be the owner of 1295.04 sq. mt of Gata No. 200/1,
while MDA was the owner of only 200 sq. mt. of lands in Gata No.
200/2. In other words, the basis on which the first respondent
sought a declaration in regard to the legality of the auction
conducted by MDA and the injunction was the abatement of the
proceedings under the ULCRA. [Para 35][1054-C-G]
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SUPREME COURT REPORTS
[2021] 8 S.C.R.
Competent Authority, Calcutta, Under the Urban Land
(Ceiling and Regulation) Act, 1976 v. David Mantosh
(2020) 12 SCC 542 : [2019] 4 SCR 331; Dhulabhai v.
State of M.P AIR 1969 SC 78 : [1968] 3 SCR 662 -
referred to.
2.9 The real object and purpose of the suit, in the guise or
pretext of challenging the auction notice by MDA was to affirm
the title of the first respondent on the basis of an alleged
permission obtained on 5 May 1993 for the sale of the property,
the deed of transfer executed by ZH and the abatement of
proceedings under the ULCRA. The High Court held that the
document dated 31 July 1992 on the basis of which possession
was transferred to MDA does not evidence actual physical
possession but is only a paper transaction. The High Court held
that no material was forthcoming on whether actual and physical
possession was taken by the Competent Authority from the land
owner and it held that in the absence thereof, the first respondent,
as the purchaser from ZH, would continue to have a valid title.
The High Court entered these findings despite the fact that by a
process of engineered drafting, the first respondent sought no
reliefs in regard to the proceedings under the ULCRA (to obviate
a bar to the maintainability of the suit) and did not implead either
the State or the Competent Authority who would have been in a
position to answer the challenge. [Para 36][1057-D-G]
2.10 Both the High Court and trial court failed to correctly
assess the issue regarding the jurisdiction of the civil court to
try a suit, which in its essence, arises out of matters pertaining to
the ULCRA. The first respondent has made efforts to artfully
draft the plaint in a manner that would make it appear as if the
issue only pertains to the auction notice issued by MDA. This
Court, has time and again, warned against drafting of this nature
which seeks to distract attention away from the real cause of action.
Therefore, the jurisdiction of the trial court to entertain the suit
instituted by the first respondent was barred. [Para 37][1057-GH; 1058-A-B, G]
T. Arivandandam v. T.V Satyapal (1977) 4 SCC 467 :
[1978] 1 SCR 742; Madanuri Sri Rama Chandra
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Murthy v. Syed Jala (2017) 13 SCC 174 : [2017] 5
SCR 294; Sopan Sukhdeo Sable v. Assistant Charity
Commissioner (2004) 3 SCC 137 : [2004] 1 SCR 1004;
Raghwendra Sharan Singh v. Ram Prasanna Singh
(Dead) by LRs AIR 2019 SC 1430 : [2019] 4 SCR 1069;
Canara Bank v. P. Selathal & Ors. (2020) 13 SCC 143
- relied on.
2.11 The High Court allowed the appeal against the
judgment of the trial court on the ground that after the district
judge allowed the appeal and set aside the order passed by the
Competent Authority under Section 8(4) of ULCRA, all further
proceedings pursuant to the order under section 8(4) of ULCRAincluding the taking of possession by the State would be null and
void. It was held that even otherwise, only 'paper possession'
and not 'actual possession' of the suit land was taken, and thus in
these circumstances ZH would have both the title and possession
of the suit land. The findings of the High Court are a non-sequitur
since even if ZH had title and possession of the suit land at the
time of transfer, the purported transfer to the first respondent is
null and void. The High Court ought to have upheld the dismissal
of the suit on this ground. A plaintiff has to stand on their own
legs and the respondent - plaintiff had no valid title or interest in
law on the basis of which the suit could have been founded. The
respondent-plaintiff had no cause of action to challenge the auction
by MDA in favour of the appellant, once the purported transfer
was invalid. [Para 38][1058-G; 1059-A-D]
Ritesh Tiwari & Ors. v. State of U.P & Ors. 2011 (84)
A.L.R. 292 (SC) - referred to.
Case Law Reference
2011 (84) A.L.R. 292 (SC)
referred to
Para 11 (ix)
[2003] 2 SCR 22
referred to
Para 23
[2007] 1 SCR 843
referred to
Para 24
[1965] 1 SCR 712
referred to
Para 26
[1955] 1 SCR 509
referred to
Para 26
[2004] 1 SCR 483
referred to
Para 26
SHRI SAURAV JAIN & ANR. v. M/S A. B. P. DESIGN & ANR.
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[2021] 8 S.C.R.
[1965] 3 SCR 499
relied on
Para 30
[1990] 3 SCR 825
relied on
Para 30
[1974] 1 SCR 290
relied on
Para 31
[1995] 1 Suppl. SCR 542
relied on
Para 32
[1964] 8 SCR 133
relied on
Para 33
[2019] 4 SCR 331
referred to
Para 35
[1968] 3 SCR 662
referred to
Para 35
[1978] 1 SCR 742
relied on
Para 37
[2017] 5 SCR 294
relied on
Para 37
[2004] 1 SCR 1004
relied on
Para 37
[2019] 4 SCR 1069
relied on
Para 37
(2020) 13 SCC 143
relied on
Para 37
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4448
of 2021.
From the Judgment and Order dated 22.02.2018 of the High Court
of Judicature at Allahabad in First Appeal No.411 of 2011.
Venkita Subramoniam T.R., Arvind Mohan, Rahat Bansal, Likhi
Chand Bonsle, Advs. for the Appellants.
Manoj Swarup, Sr. Adv., Jawad Tarikh, Mrigank Prabhakar,
Rakesh Uttamchandra Upadhyay, Advs. for the Respondents.
The Judgment of the Court was delivered by
DR JUSTICE DHANANJAYA Y CHANDRACHUD, J.
1. This appeal arises from a judgment dated 22 February 2018 of
the High Court of Judicature at Allahabad in a first appeal1 under Section
96 of the Code of Civil Procedure 1908 ("CPC"). On 18 October 2011,
the Additional District and Sessions Judge, Moradabad dismissed a suit2
instituted by the first respondent. The High Court allowed the appeal by
the first respondent and reversed the judgment of the Trial Court,holding
that the auction conducted by Moradabad Development Authority
1 First Appeal No. 411 of 2011.
2 Original Suit No.602 of 2008.
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("MDA") in respect of the land in dispute is null and void. The appellant
is an auction purchaser who purchased the suit land from the MDA.
MDA has been impleaded as the second respondent to these proceedings.
Both the appellant and the second respondent have been restrained from
interfering with the possession of the first respondent over the land.
Facts
2. The first respondent instituted a suit in the Court of the Civil
Judge (Senior Division), Moradabad claiming to be a "transferable owner
and cultivator" of lands comprising of Gata No.200/1 admeasuring 0.1300
hectares equivalent to 1295.04 sq. mts. situated in village Sonakpur, in
the city and district of Moradabad. MDA wasimpleaded as the first
defendant while the appellant was the second defendant to the suit. The
averments in the plaint need to be adverted to at this stage.A person by
the name of Zahid Hussainhad title over vacant land admeasuring 6960.84
sq. mts in Moradabad. Ceiling case no. 437/5325 (titled State vs. Zahid
Hussain) was instituted against him in the Court of the Competent
Authority, Urban Land Ceiling, Moradabad in respect of his lands including
the lands comprised in Gata No.200 admeasuring 1295.04 sq. mts. By
an order dated 16 March 1988, the land comprised in Gata No. 200,among
other pieces of land, was declared as "surplus" by the Competent
Authority under the Urban Land (Ceiling and Regulation) Act 1976
("ULCRA"). Pursuant to the orderof the Competent Authority,
possession of the land in Gata No. 200 was allegedly handed over by the
State of Uttar Pradesh to the MDA. Meanwhile,Zahid Hussain filed a
revenue appeal3 before the District Judge, Moradabad against the order
dated 16 March 1988. By an order dated 6 January 1993, the District
Judge allowed the appeal and remanded the proceedings for reconsideration to the Competent Authority on the basis of an amended
Master Plan.
3. It is the case of the plaintiff that Zahid Hussain was the erstwhile
owner and occupier of lands comprised in Gata No.200 admeasuring
0.32 acres. Out of the above holding, land admeasuring 0.05 acres
(equivalent to 0.0200 hectares or 200 sq. mt.) was acquired by MDA on
30 January 1986 under the provisions of the Land Acquisition Act, 1894.
After the acquisition, Gata No.200 was divided into two plots:
3 Revenue Appeal No. 23 of 1988.
SHRI SAURAV JAIN & ANR. v. M/S A. B. P. DESIGN & ANR.
[DR JUSTICE DHANANJAYA Y CHANDRACHUD, J.]
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• Gata No.200/1 measuring 0.1300 hectares (1300 sq. mt.)
• Gata No.200/2 measuring 0.2000 hectares (200 sq. mt.)
Zahid Hussain is stated to have become the owner of Gata No.200/
1, while MDA became the owner of Gata No.200/2. The case of the
plaintiff in the suit is that after the ceiling case was remanded to the
Competent Authority and during its pendency, Zahid Hussain obtained
permission to sell the lands situated in Gata No. 200/1 to the first
respondent from the Office of the Prescribed Authority, Urban Land
Ceiling, Moradabad on 5 May 1993. The first respondent claims to have
purchased Gata No. 200/1 admeasuring 1295.04 sq. mt. from Zahid
Hussain by a registered sale deed dated 22 June 1993. During the
pendency of the ceiling case before the Competent Authority, ULCRA
was repealed by Act 15 of 1999 ("Repeal Act"). The Competent
Authority (City Land Boundary), Moradabad passed an order dated 15
June 2001 dismissing CaseNo. 437/5325 in view of Section 4 of the
Repeal Act which states that proceedings pending before any court,
tribunal, or authority shall stand abated.
4. In this manner, it was alleged that the eclipse of ceiling over
Gata No.200/1 measuring 1295.04 sq. mt. was lifted. The plaintiff - first
respondent claimed to be the owner of the entire areaof 1295.04 sq.
mt., while MDA was entitled to ownership rights over Gata No. 200/2 in
respect of 200 sq. mt. of land.
5. MDA published a notice on 31 August 2008 for auction and
sale of 600 sq. mt. of land in Gata No.200. The first respondent claims
to have submitted representations on 2 September 2008 and 4 September
2008 against the auction. The first respondent instituted a writ
petitionagainst the State of Uttar Pradesh and MDA before the High
Courtchallenging the auction. By an order dated 11 September 2008, the
High Court disposed of the petition with liberty to the first respondent to
seek reliefs in a civil suit. The auction sale in favour of the appellant is
stated to have been approved on 12 September 2008, and a sale deed
was executed between the MDA and the appellant on 20 March 2009
for a consideration of Rs. 65,75,000.
6. The first respondent challenged the auction proceedings in the
suit on the ground that MDA had title only over the land measuring 200
sq. mt (that is, Gata No.200/2) of the auctioned land, and thus the sale of
the remaining land measuring 400 sq. mt. was null and void in view of
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the sale deed executed by Zahid Hussain in favour of the first respondent
on 22 June 1993.In the suit, as it was originally instituted, the reliefs
sought were:
(i) A declaration that the auction of land to the extent of 400 sq.
mt.by MDA is illegal and void;
(ii) A permanent injunction restraining MDA from alienating the
suit land in favour of the appellant and from dispossessing the
first respondent. The particulars of the suit land as indicated
in the plaint were as follows:
"PARTICULARS OF SUIT LANDS
Lands measuring 400 Sq. Mt. of Gata no.200/1 a part of
erstwhile integrated Gata no.200 situated in VillageSonakpur,
City and District Moradabad."
The plaint was amended to seek:
(i) A declaration that the auction of lands measuring 660.32 sq.
mt. by MDA was illegal and void;
(ii) A declaration that the first respondent isthe exclusive owner
and occupier of the suit lands detailed in schedule (B) including
the suit lands in schedule A; and
(iii) A permanent injunction from dispossessing the first
respondent.
7. Shri Sai Siddhi Developers was impleaded as the third defendant
to the suit. The amended plaint set up the pleathat before the lands were
transferred in favour of the first respondent by Zahid Hussain, the latter
had obtained permission of the Competent Authority, Moradabad on 5
May 1993. Schedule (A) and Schedule (B) of the amended plaint are
extracted below:
"SCHEDULE 'A' OF SUIT LANDS
Lands measuring 660.32 Sq. Mt. of Gata no.200/1 apart of
erstwhile integrated Gata no.200 situated inVillage Sonakpur, City
and District Moradabad which isshown in the enclosed site plan
with alphabets BCDE.
The boundaries of the above gata are as under -
SHRI SAURAV JAIN & ANR. v. M/S A. B. P. DESIGN & ANR.
[DR JUSTICE DHANANJAYA Y CHANDRACHUD, J.]
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[2021] 8 S.C.R.
East: Police Post
West: 12 Mt. wide road.
North: Kaanth Road.
South: Commercial Plot no.7 (Property of the Plaintiff).
SCHEDULE 'B' OF THE SUIT LANDS
Lands measuring 1295.04 Sq. Mt. of Gata no.200/1 a part of
erstwhile integrated Gata no.200 situated inVillage Sonakpur, City
and District Moradabad which isshown in enclosed site plan with
alphabets ABCDEF.
The boundaries of the above gata are as under -
East: Police Post and thereafter plot ofHaji Qayum
West: 12 Mt. wide road.
North: Kaanth Road.
South: Plot and lands of Praan Singh."
8. MDA filed a written statement stating that:
(i)
Possession of the suit land in Gata No. 200/1 was taken
over by the State Government after the land was declared
to be surplus, and was transferred by the Naib Tehsildar,
Sadar, Moradabad and Collector, Moradabad to theMDA
on 31 July 1992. MDA has been in possession of the suit
land in Gata No. 200/1since then till it was sold through
auction;
(ii)
A registered sale deed of 660.32 sq. mt. was executed on
20 March 2009;
(iii)
The ceiling proceedings against Zahid Hussain
wereconcluded and thus, he is not entitled to avail of the
benefit under the Repeal Act;
(iv)
No permission had been granted by the Competent
Authority, Urban Ceiling, Moradabad to Zahid Hussain for
the transfer of the suit lands of Gata No. 200/1;
(v)
The sale deed executed between Zahid Hussain and the
first respondent after possession had been taken over by
MDA on 31 July 1992 is invalid; and
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(vi)
The State of Uttar Pradesh and the Ceiling Authority were
necessary parties but were not impleaded in the suit.
9. The appellant (defendant no. 2 before the Trial Court) filed a
written statement stating that:
(i)
The entire suit land had vested in the State Government
under Section 10(3) of the ULCRA;
(ii)
The sale deed dated 22 June 1993 by Zahid Hussain in
favour of the first respondent was void since he could not
have entered into any transaction when the land was under
adjudication by the Competent Authority, Urban Land
Ceiling;
(iii)
The land was alleged to have been transferred on 31 July
1992 to MDA and any sale deed executed allegedly to the
first respondent-plaintiff on 22 June 1993 would confer no
title on the purchaser;
(iv)
Therevenue appeal before the District Judge against the
order of the Competent Authority could not have been
disposed of without impleading MDA;
(v)
Since MDA was in possession of the land before the
enforcement of the Repeal Act(pursuant to the
communication dated 31 July 1992 of the Competent
Authority, Urban Land Ceiling),the repeal would be of no
consequence; and
(vi)
The plaintiff - first respondent had no concern with the
auction of the land admeasuring 660.32 sq. mt. by MDA
for which a consideration of Rs.65.75 lacs hadbeen paid in
auction.
10. The following issues were framed in the suit:
"1. Whether Plaintiff is the owner and occupierof the Suit lands?
2. Whether auction proceedings initiated bydefendant no.1 in
favour of defendant no.2 on 12.9.2008 to the extent of disputed
schedule admeasuring 660.32 Sq. Mt., are illegal and void?
3. Whether Suit has been undervalued?
4. Whether deficit court-fee has been paid?
SHRI SAURAV JAIN & ANR. v. M/S A. B. P. DESIGN & ANR.
[DR JUSTICE DHANANJAYA Y CHANDRACHUD, J.]
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[2021] 8 S.C.R.
5. Whether Suit of plaintiff is bad formisjoinder of necessary
parties?
6. Whether this Court doesn't have anyjurisdiction to hear this
Suit?
7. Whether any cause of action has arisen infavour of Plaintiff?
8. Relief."
11. By its judgment dated 18 October 2011, the Trial Court held
that it had the jurisdiction to grant declaratory and injunctive relief and
that the suit was therefore maintainable.The Trial Court dismissed the
suit holding that the MDA was the lawful owner of the land and the
auction held on 12 September 2008 was valid. The Trial Judge made the
following findings:
(i)
Zahid Hussain was the erstwhile owner of Gata No.200
admeasuring 1295.04 sq. mt. situated in village Sonakpur,
District Moradabad;
(ii)
By an order dated 16 March 1988 passed by the Competent
Authority in Ceiling Case No. 437/5325 under the ULCRA,
a total holding of 2,000 sq. mt. out of 6960.84 sq. mt. land
was declared to be retainable while the balance admeasuring
4960.84 sq. mt. was declared surplus;
(iii)
The lands admeasuring 1295.04 sq. mt. in Gata No.200 were
found to be 'excess vacant land';
(iv)
Possession of 1295.04 sq. mt out of Gata No.200 in village
Sonakpur was handed over by the Naib Tahsildar Urban
Land Ceiling, Moradabad to the Naib Tahsildar of MDA on
31 July 1992 on behalf of the District Collector. When an
appeal was filed before the District Judge, Moradabad
against the order dated 16 March 1988,the fact that
possession of the suit landhad been handed over to the
MDAwas not brought to the notice of the court.In any event,
the case wasremanded to the Competent Authority in order
to take into consideration the amended Master Plan. In the
meantime, prior to the order of the District Judge, possession
of 1295.04 sq. mt of Gata No.200 was handed over to MDA
on 31 July 1992 pursuant to which it was the legal owner of
the aforesaid land in Gata No.200;
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(v)
Zahid Hussain who is alleged to have sold the land to the
first respondent - plaintiff had not come forth before the
court nor was the original sale deed dated 22 June 1993
alleged to be executed by him filed in court. Only a certified
copy of the sale deed was filed;
(vi)
MDA to whom the lands were handed over on 31 July 1992
was not a party to the revenue appeal before the District
Judge nor had the Competent Authority in its order dated
15 June 2001, abating the proceedings in the ceiling case,
directed that 'possession' should be restored to Zahid
Hussain;
(vii)
Possession had already been transferred to MDA on 31
July 1992 and the acquisition would not be affected by the
Repeal Act since the land had vested under Section 10(3)
of the ULCRA, and possession had been taken over by a
person duly authorised by the State Government (Section
3(1)(a) of the Repeal Act);
(viii) According to the first respondent, Zahid Hussain had
obtained permission on 5 May 1993 to sell the lands
admeasuring 1295.04 sq. mt. of Gata No. 200/1. The entire
proceedings appear to be fabricated because Zahid Hussain
was no longer the owner of 1295.04 sq. mt of Gata No.
200/1.The possession of Gata No.200had been transferred
to MDA on 31 July 1992. Moreover, the permission which
was granted to Zahid Hussain on 5 May 1993 to sell the
lands was not in respect of land which had been declared
as surplus but only in respect of his own retainable lands
admeasuring 2000 sq. mt., which did not include the land in
Gata No. 200/1; and
(ix)
Since an order had already been passed under Section 8(4)
of the ULCRA with respect to the suit lands, Zahid Hussain
did not have any right to transfer the land (in accordance
with the law laid down by this Court in Ritesh Tiwari &
Ors. v. State of U.P & Ors.4).
4 2011 (84) A.L.R. 292 (SC).
SHRI SAURAV JAIN & ANR. v. M/S A. B. P. DESIGN & ANR.
[DR JUSTICE DHANANJAYA Y CHANDRACHUD, J.]
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[2021] 8 S.C.R.
12. The High Court by its judgment dated 22 February 2018
reversed the judgment and decree of the Trial Court. The Division Bench
of the High Court while allowing the appeal observed that:
(i)
Against the order of the Competent Authority dated 16
March 1988, the District Judge, Moradabad allowed the
appeal on 6 January 1993 and the Competent Authority was
directed to decide the matter afresh after taking into
consideration the amended Master Plan;
(ii)
In the meantime, a notification had been issued on 27
September 1988 under Section 10(1) of ULCLRAvesting
surplus land in the State including Gata No.200 admeasuring
1295.04 sq. mt.;
(iii)
No material had been forthcoming on record on whether
any subsequent proceedings were undertaken;
(iv)
It was not clear as to when possession was taken by the
Competent Authority from the landowner under ULCRA;
(v)
The letter dated 31 July 1992 which is addressed to the
Competent Authority, Urban Land Ceiling, Moradabad
stating that possession had been handed over by the Naib
Tahsildar, Urban Land Ceiling, MDA is only to show a
"paper possession" and not "actual physical possession"
under Section 10(5)5 or 10(6) of the ULCRA6. For "actual
possession" to have been taken, possession should have
been taken by drawing a panchnama;
5 "10(5). Where any vacant land is vested in the State Government
under sub-section (3), the competent authority may, by notice in writing,
order any person who may be in possession of it to surrender or deliver
possession thereof to the State Government or to any person duly
authorised by the State Government in this behalf within thirty days of
the service of the notice".
6 "10(6).