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TMI Blog2021 (9) TMI 1112X X X X Extracts X X X X X X X X Extracts X X X X ..... as remanded for fresh adjudication of the excess land in view of the amended Master Plan. In such an instance, when the case was remanded, Zahid Hussain 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. The effect of the amendment was considered in Banarsi Ors. v. Ram Phal [ 2003 (2) TMI 493 - SUPREME COURT] , where this Court held that after the 1976 amendment, the respondent could file cross-objections against the findings of the lower court, while previously cross-objections could only be filed when the decree of the lower court was partly against the respondent. On a perusal of the above authorities, it is evident that the principle stipulated in Order XLI Rule 22 of 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 par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 Zahid Hussain had the title to the suit land, the transfer to the first respondent was null and void under section 5(3) of ULCRA - the suit is dismissed. Appeal allowed. - Civil Appeal No. 4448 of 2021 (Arising out of SLP (C) No. 29868 of 2018) - - - Dated:- 5-8-2021 - DR DHANANJAYA Y CHANDRACHUD AND M R SHAH, JJ. For the Appellant : Mr. Venkita Subramoniam T.R, AOR, Mr. Rahat Bansal, Adv., Mr. Arvind Mohan, Adv., Mr. Varun Mudgal, Adv. For the Respondent : Mr. Manoj Swarup, Sr. Adv., Mr. Jawad Tarikh, Adv., Mr. Mrigank Prabhakar, AOR JUDGMENT DR JUSTICE DHANANJAYA Y CHANDRACHUD 1 This appeal arises from a judgment dated 22 February 2018 of the High Court of Judicature at Allahabad in a first appeal First Appeal No. 411 of 2011 under Section 96 of the Code of Civil Procedure 1908 ( CPC ). On 18 October 2011, the Additional District and Sessions Judge, Moradabad dismissed a suit Original Suit No. 602 of 2008 instituted by the first respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 1986 under the provisions of the Land Acquisition Act, 1894. After the acquisition, Gata No. 200 was divided into two plots: 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 Case No. 437/5325 in view of Section 4 of the Repeal Act which states that proceedings pending before any court, tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 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 plea that 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 a part of erstwhile integrated Gata no.200 situated in Village Sonakpur, City and District Moradabad which is shown in the enclosed site plan with alphabets BCDE. The boundaries of the above gata are as under 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 in Village Sonakpur, City and District Moradabad which is shown in enclosed site plan with alphabets ABCDEF. The boundaries of the above gata are as under - East: Police Post and thereafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cs had been paid in auction. 10 The following issues were framed in the suit: 1. Whether Plaintiff is the owner and occupier of the Suit lands? 2. Whether auction proceedings initiated by defendant 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? 5. Whether Suit of plaintiff is bad for misjoinder of necessary parties? 6. Whether this Court doesn't have any jurisdiction to hear this Suit? 7. Whether any cause of action has arisen in favour 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; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had 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. 2011 (84) A.L.R. 292 (SC)). 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 ULCLRA vesti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tten statement filed by MDA, there was no reference to actual possession being taken apart from the letter of possession dated 31 July 1992, which was only a paper transaction. Even this letter is not a memo of possession transferring possession to MDA; (ix) In the absence of physical taking over of possession and of the handing over of possession to MDA on the enforcement of the Repeal Act, the land comprised in Gata No. 200 admeasuring 1295.04 sq. mt. remained the property of Zahid Hussain; and (x) The fact that proceedings for possession under Section 10(5) had not been undertaken was adverted to in the order of Competent Authority dated 15 June 2001. Submissions 13 Mr Venkita Subramoniam T.R., learned Counsel appearing on behalf of the appellant submitted that the judgment of the High Court is erroneous for the following reasons: (i) The jurisdiction of the civil court to entertain the suit was barred since a fair reading of the plaint would make it evident that the object and purpose of the suit was to impugn the validity of the proceedings under the ULCRA without impleading either the State of Uttar Pradesh or the Competent Authority under the ULCRA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Repeal Act came into force. Analysis 15 The rival submissions shall now be considered. 16 At the outset, it needs to be noted that the first respondent claims title on the basis of a registered sale deed dated 22 June 1993 under which Zahid Hussain purportedly conveyed an area admeasuring 1295.04 sq. mt. in Gata No. 200/1 for a consideration of ₹ 5 lacs. The sale deed refers to the permission sought for the sale of the property under Section 27 of the ULCRA on 29 March 1993, which was allegedly granted by an order dated 5 May 1993. 17 The declaration filed by Zahid Hussain before the Office of the Prescribed Authority, Urban Land Ceiling, Moradabad adverts to the total extent of the land as 1295.04 sq. mt. However, there is no reference to the survey number (or gata number) of the lands in respect of which permission was sought. Further, the order dated 5 May 1993, which allegedly grants permission for sale of the land to the first respondent, notes that a declaration dated 29 March 1993 was made for transfer of the land situated at Sonakpur, bearing Gata No. 200, with an area of 1295.04 sq. mts. However, the permission for transfer of that land was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land until (a) the land owner has furnished a statement under Section 6; 6. (1) Every person holding vacant land in excess of the ceiling limit at the commencement of this Act shall, within such period as may be prescribed, file a statement before the competent authority having jurisdiction specifying the location, extent, value and such other particulars as may be prescribed of all vacant lands and of any other land on which there is a building, whether or not with a dwelling unit therein, held by him (including the nature of his right, title or interest therein) and also specifying the vacant lands within the ceiling limit which he desires to retain[..] (2)[ ] (a)[ ] (b) in any State which adopts this Act under clause (1) of article 252 of the Constitution, any person holds at the commencement of this Act, vacant land in excess of the ceiling limit, then, notwithstanding anything contained in sub-section (1), it may serve a notice upon such person requiring him to file, within such period as may be specified in the notice, the statement referred to in sub-section (1) . and (b) the Competent Authority has published the notification pertaining to the exce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity 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, Zahid Hussain 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. 21 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 present suit, given the bar on jurisdiction under the ULCRA. The appellant has 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 ULCRA, without impleading either the State of Uttar Pradesh or the Competent Authority under the ULCRA. At the outset, we note that the ground of lack of jurisdiction of the Trial Court over the suit was raised in the proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate appeal- (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow. R.22. Upon hearing, respondent way object to decree as If he had preferred a separate appeal- (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree [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; and may also take any cross-objection] to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellant Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection to a finding recorded against him either while answering an issue or while dealing with an issue. The advantage of preferring such cross-objection is spelled out by sub-rule (4). In spite of the original appeal having been withdrawn or dismissed for default the cross-objection taken to any finding by the respondent shall still be available to be adjudicated upon on merits which remedy was not available to the respondent under the unamended CPC. In the pre-amendment era, the withdrawal or dismissal for default of the original appeal disabled the respondent to question the correctness or otherwise of any finding recorded against the respondent. (emphasis supplied) 24 Order XLI Rule 22(2) of the CPC states that a cross-objection 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. This Court in S. Nazeer Ahmed v. State Bank of Mysore (2007) 11 SCC 75 elaborated on the form of objections made under Order XLI Rule 22 CPC. In Nazeer Ahmed (supra), the respondent had filed a suit for enforcement of an equitable mortgage. In deciding the suit, the Trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of Order XLI Rule 22 CPC and the above authorities 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 cross-objection 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. 26 The applicability of the principle in Order XLI Rule 22 CPC to proceedings before this Court under Article 136 of the Constitution was considered by a Constitution Bench in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ashabhai Patel v. Dabhi Ajitkumar Fulsinji, AIR 1965 SC 669] , Northern Railway Coop. Credit Society Ltd. [Northern Railway Coop. Credit Society Ltd. v. Industrial Tribunal, AIR 1967 SC 1182] and Bharat Kala Bhandar (P) Ltd. [Bharat Kala Bhandar (P) Ltd. v. Municipal Committee, Dhamangaon, AIR 1966 SC 249] The learned Additional Solicitor General is right. But we would like to clarify that this is done not because Order 41 Rule 22 CPC is applicable to appeals preferred under Article 136 of the Constitution; it is because of a basic principle of justice applicable to courts of superior jurisdiction. A person who has entirely succeeded before a court or tribunal below cannot file an appeal solely for the sake of clearing himself from the effect of an adverse finding or an adverse decision on one of the issues as he would not be a person falling within the meaning of the words person aggrieved . In an appeal or revision, as a matter of general principle, the party who has an order in his favour, is entitled to show that even if the order was liable to be set aside on the grounds decided in his favour, yet the order could be sustained by reversing the finding on some other ground whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ining 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 us 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 us. 29 With regard to new grounds being raised before this Court in a special leave petition under Article 136, we note 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, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the defendant in the trial court but where the court is inherently lacking in jurisdiction the plea may be raised at any stage, and, it is conceded by Mr Yogeshwar Prasad, even in execution proceedings on the ground that the decree was a nullity. If one reads Sections 209 and 331 of the U.P. Act 1 of 1951 together one finds that a suit like the one before us has to be filed before a Special Court created under the Act within a period of limitation specially prescribed under the rules made under the Act and the jurisdiction of the ordinary civil court is absolutely barred. (emphasis supplied) 32 In Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma 1995 Supp (4) SCC 286 as well, a three Judge bench of this Court entertained an objection as to maintainability of the suit under Section 9 of the CPC, despite the plea not having been raised before the courts below. The Court observed that the plea of a bar or lack of jurisdiction can be entertained at any stage, since an order or decree passed without jurisdiction is non-est in law. 33 The position of law has been consistently applied even in criminal proceedings under Article 136 of the Constitution. In Masalti v. Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity had been set aside in appeal on 6 January 1993 and the proceedings had been remanded; (iii) As a result of the Repeal Act, proceedings under ULCRA stood abated; and (iv) 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. The maintainability of such a suit has been considered in a judgment of two learned Judges of this Court in Competent Authority, Calcutta, Under the Urban Land (Ceiling and Regulation) Act, 1976 v. David Mantosh (2020) 12 SCC 542. In David Montosh, the Bench consisting of Justice Abhay Manohar Sapre and Justice Indu Malhotra considered whether the jurisdiction of the civil court was expressly or impliedly excluded by the ULCRA in relation to matters arising out of the Act. The Bench referred to the tests laid down in the Constitution Bench decision of Dhulabhai v. State of M.P. AIR 1969 SC 78 and held: 45. Hidayatullah, J., the then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case, the scheme of the particular Act must be examined because it is a relevant enquiry. (7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply. [ ] 47. Having examined the issue, we are clearly of the opinion that the present case falls under clause (1) of para 32 of Dhulabhai [Dhulabhai v. State of M.P., AIR 1969 SC 78] and satisfies the test laid down therein. Hence, the jurisdiction of the civil court is held to be excluded by implication to try the civil suit in question. This we say for the following reasons: 47.1. First, the Act in question gives finality to the orders passed by the appellate authority [refer to Section 33(3)]. 47.2. Second, the Act provides adequate remedies in the nature of appeals, such as first appeal to the Tribunal and second appeal to the High Court [refer to Sections 12(4), 13 and 33(1)]. 47.3. Third, the Act is a complete code in itself and gives overri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en in a position to answer the challenge. 37 Both the High Court and Trial Court have 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. In T. Arivandandam v. T.V Satyapal(1977) 4 SCC 467, Justice V.R. Krishna Iyer, speaking for a two Judge bench, observed: 5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful - not formal - reading of the plaint it is manif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that the suit instituted by the first respondent had to be dismissed. 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 Zahid Hussain to the first respondent was before the Repeal Act was enacted. The dual conditions stipulated under Section 5(3) of 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 Zahid Hussain 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 Zahid Hussain had filed a declaration seeking permission for transfer of the suit land, the permission under Section 27 of 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 Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X
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