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TMI Blog2010 (9) TMI 1064X X X X Extracts X X X X X X X X Extracts X X X X ..... village Kakratha, Tehsil and District Agra, had two sons, namely, Sukha and Shyama. Shyama has only one son namely, Rammo. Descendents of Sukha have been Ballo, Radhe Ram, Babu and Sohan Singh. They were having certain land in Gata Nos. 870, 258, 192, 258/2 and 258/5 measuring 9 Bighas 14 Biswas situate in the revenue estate of Village Kakratha Pragana, Tehsil and District Agra. The Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter called `the Act 1976') came into force in the State of Uttar Pradesh with effect from 17th of February, 1976. The aforesaid tenure holders were subjected to the provisions of the aforesaid Act 1976. They had filed their respective declaration as required under the Act 1976, however, the record reveals that ex-parte assessment orders had been passed against all of them under Section 8(4) of the Act 1976 on 30th January, 1981, 31st January, 1981, 30th March, 1981, 8th May, 1981 and 25th May, 1981, declaring an area of land as surplus. 4. The original tenure holders did not challenge the said assessment orders in appeal or writ jurisdiction, thus they attained finality. It is stated that the said tenure holders transferred the major part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation the locus-standi of the appellants and holding that the transfer in favour of the appellants was consequential to the void transaction in favour of Mayur Sahkari Awas Samiti. Hence, the appeal deserves to be allowed. 8. On the contrary, Shri S.R. Singh, learned senior counsel appearing for the respondents, has vehemently opposed the appeal contending that once the assessment had been made under Section 8(4) of the Act 1976, against the original tenure holders, the sale in favour of Mayur Sahkari Awas Samiti was void. Further, the transfer in favour of M/s Savy Homes (P) Ltd. and the subsequent transfer in favour of the appellants being consequential remained inexecutable and unenforceable, thus, a nullity. Once an order in inception is bad, it cannot have sanctity at a subsequent stage by other subsequent orders/developments. The original tenure holders are nowhere involved and none of them has been impleaded in these proceedings. No evidence has been placed on record to show that the sale deed in favour of Mayur Sahkari Awas Samiti was genuine. More so, the writ petition was filed for quashing the inter-departmental communications, thus, the writ petition itself was not m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court for the aforesaid relief sought by them. The writ petition was certainly not maintainable. 12. Be that as it may, in view of the fact that the High Court has decided the case on merit and we have also heard the case on merit, the issue of the maintainability of writ petition remains merely academic. Shri Jayant Bhushan, learned senior counsel appearing for the appellants has submitted that as the State Government had not taken possession of the land in exercise of its powers under Section 10(6) of the Act 1976, on commencement of the Act 1999 into force, the proceedings stood abated and the respondents have no business to interfere with the peaceful possession and enjoyment of the property. 13. We find full force in the submissions so made by Shri Jayant Bhushan to a certain extent, and hold that all proceedings pending before any court/authority under the Act 1976, stood abated automatically on com- mencement of the Act 1999 in force, provided the possession of the land in- volved in a particular case had not been taken by the State. Such a view is in consonance with the law laid down by this court in Pt. Madan Swaroop Shrotiya Public Charitable Trust Vs. State o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing limit subsequent to the commencement of Act of 1976 by way of sale, mortgage or lease until he had furnished a statement under Section 6, and a Notification under Section 10(1) has been published would be deemed to be null and void. 16. Section 10 (4) of the Act 1976 reads as follows: 10. Acquisition of vacant land in excess of ceiling limit. (4) During the period commencing on the date of publication of the Notification under sub-section (1) and ending with the date specified in the declaration made under sub-section (3). (i) no person shall transfer by way of sale, mortgage, gift, lease or otherwise any excess vacant land (including any part thereof) specified in the Notification aforesaid and any such transfer made in contravention of this provision shall be deemed to be null and void; and (ii) no person shall after or cause to be altered the use of such excess vacant land. (Emphasis added) 17. The High Court after considering the said statutory provisions and taking note of the fact that the appellants did not disclose the date of notification under Section 10(1) of the Act 1976, nor annexed the copy of the same and further presuming that the said notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annexed to the writ petition or the counter-affidavit, as the case may be, the Court will not entertain the point. There is a distinction between a hearing under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, i.e. a plaint or written statement, the facts and not the evidence are required to be pleaded. In a writ petition or in the counter affidavit, not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. (Emphasis added) (See also Vithal N. Shetti Anr. Vs. Prakash N. Rudrakar Ors., (2003) 1 SCC 18; Devasahayam (Dead) by LRs. Vs. P. Savithramma Ors., (2005) 7 SCC 653; Sait Nagjee Purushotham Co. Ltd. Vs. Vimalabai Prabhulal Ors., (2005) 8 SCC 252; and Rajasthan Pradesh V.S. Sardarshahar Anr. Vs. Union of India Ors., AIR 2010 SC 2221). The present appeal definitely does not contain pleadings required for proper adjudication of the case. A party is bound to plead and prove the facts properly. In absence of the same, the court should not entertain the point. 20. The power under Article 226 of the Constitution is discretionary and supervisory in nature. It is not issued mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to consider whether, in the exercise of its undoubted discretionary jurisdiction, it should decline relief to such petitioner if the grant of relief would defeat the interests of justice. The Court always has power to refuse relief where the petitioner seeks to invoke its writ jurisdiction in order to secure a dishonest advantage or perpetrate an unjust gain. 24. This Court in State of Maharashtra Ors. v. Prabhu, (1994) 2 SCC 481 considered the scope of equity jurisdiction of the High Court under Article 226 of the Constitution and pointed out as follows: It is the responsibility of the High Court as custodian of the Constitution to maintain the social balance by interfering where necessary for sake of justice and refusing to interfere where it is against the social interest and public good. 25. The present appeal does not present any special feature warranting exercise of equitable discretionary jurisdiction in favour of the appellants. The equity jurisdiction is exercised to promote honesty and not to frustrate the legitimate rights of the other parties. 26. It is settled legal proposition that if an order is bad in its inception, it does not get sanctified ..... X X X X Extracts X X X X X X X X Extracts X X X X
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