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TMI Blog2010 (9) TMI 1169X X X X Extracts X X X X X X X X Extracts X X X X ..... ct 1976. Secondly, the State authorities, the respondent herein, failed miserably to perform their statutory duties and it appears that they could not muster the courage to take the actual physical possession of the land in dispute in spite of issuance of notice under Section 10(5) of the Act 1976 in the year 1993. More so, the so-called authorities could issue notices under Section 10 of the Act 1976 after a lapse of twelve years as the assessment of surplus land became final in 1981 itself. Such an indifferent attitude on the part of the authorities is not commendable rather it is condemnable, but that does not mean that court should decide only the effect of repealing Act 1999 in these proceedings at the behest of the appellants in absence of the original tenure holders and subsequent transferees inasmuch as in the fact-situation of this case where the appellants, for the reasons best known to them, did not consider it proper to place either of the sale deeds on record. Examination of the correctness of the aforesaid finding at the behest of the appellants is not desirable for the reasons that they did not disclose even the date of notification issued under Section 10(1) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the judgment and order dated 20th January, 2009, passed by the High Court of judicature at Allahabad in Civil Misc. Writ Petition No. 45169 of 2008 by which the prayer of the appellants to quash certain inter-departmental communications has been rejected. Facts: 3. One Mawasi, resident of Saraivega Hemlet of 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, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercised the power under Section 10(6) of the Act 1976 and, thus, possession of the land in dispute had never been taken by the State and after commencement of the Act 1999, the proceedings stood abated. Therefore, the question of interference with the land in dispute does not arise. The High Court erred in taking into consideration 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 ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , (A), Prescribed Authority, Urban Land, Agra to Secretary, Agra Development Authority dated 18th July, 2008. We fail to understand as to how the contents of such a communication between two officers of the departments of the government can be the subject matter of the writ petition. The appellants could not have approached the High 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 cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Act, by way of sale, mortgage gift, lease or otherwise, the extent of the land so transferred shall also be taken into account in calculating the extent of vacant land held by such person. Section 5(3) provided that transfer of vacant land or part thereof effected by a recorded tenure holder having land in excess of the ceiling 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oint of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not 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 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial Corporation v. M/s. GAR Re- Rolling Mills Anr., AIR 1994 SC 2151, this Court observed:- Equity is always known to defend the law from clefty evasions and new subtelities invented to evade law. 23. In M.P. Mittal v. State of Haryana Ors., AIR 1984 SC, 1888, this Court held: .......it is open to the High Court 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h have been duly proved. A court in any case cannot admit illegal or inadmissible evidence for basing its decision. It is an extraordinary power conferred upon the court to elicit the truth and to act in the interest of justice. A wide discretion has been conferred on the court to act as the exigencies of justice require. Thus, in order to discover or obtain proper proof of the relevant facts, the court can ask the question to the parties concerned at any time and in any form. Every trial is voyage of discovery in which truth is the quest . Therefore, power is to be exercised with an object to subserve the cause of justice and public interest, and forgetting the evidence in aid of a just decision and to uphold the truth. The purpose being to secure justice by full discovery of truth and an accurate knowledge of facts, the court can put questions to the parties, except those which fall within exceptions contained in the said provision itself. (Vide : Jamatraj Kewalji Govani Vs. State of Maharashtra, AIR 1968 SC 178; and Zahira Habibulla H. Sheikh Anr. Vs. State of Gujarat Ors. (2004) 4 SCC 158. 31. In the instant case, in spite of all our sincere efforts, we could not succee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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