Ensuring Legal Services

  About Us >>  
  Areas of Practice >>  
  Legal Updates >>  
  Judgments >>  
  Bare Acts >>  
  Court Websites >>  
  Cause Lists >>  
  Formats >>  
  Contact us >>  
  Blog >>  
  Disclaimer >>  
Ritesh Tewari & Anr. vs. State of U.P. & Ors dated 2010-09-21







                    CIVIL APPEAL NO.8178/2010

                (Arising out of S.L.P.(C) NO. 2786/2009)


Ritesh Tewari & Anr.                                     .. Appellants


State of U.P. & Ors.                                   ...Respondents



1.   Leave granted.

2.    This appeal has been preferred against 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


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, 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 land so declared as


surplus with them on 20th April, 1982 in favour of Mayur Sahkari Awas


Samiti. The authorities under the Act 1976 proceeded against those tenure


holders under Section 10 (3) publishing a Notification dated 6.7.1993 which


effectuated the deemed vesting of such land in the State. Notices under

Section 10(5) were issued on 31st March, 1993; 13th September, 1993; and

18th February, 1994, directing the said tenure holders to hand over the



possession to the statutory authority, however, there is nothing on record to


show that actual physical possession was taken by the statutory authorities in


exercise of their power under Section 10(6) of the Act of 1976.


5.    The pleadings in this appeal reveal that certain members of Mayur


Sahkari Awas Samiti had sold their land to M/s Savy Homes (P) Ltd. who in


turn further sold the land to the present appellants vide sale deed dated 15th


June, 2006. Appellants further claim to have applied for sanction of plan for


construction of buildings and the same was accorded by the statutory


authorities under the Municipal Law. Appellants also claim to have

developed the land.

6.    The Act 1976 was repealed with effect from 18th March, 1999 vide


Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter called


the Act 1999). The appellants apprehended that they could be dispossessed


by the authorities in view of certain inter-departmental communications

contained in letters dated 30th June, 2008 and 18th July, 2008, and thus,

preferred Civil Miscellaneous Writ Petition No. 45169 of 2008 before the


High Court of Judicature at Allahabad for quashing of the same and for a


direction   restraining the respondents to interfere with the actual and


physical possession of the land of the appellants. The said writ petition has


been dismissed by the impugned judgment and order dated 20th January,

2009. Hence, this appeal.


Rival claims of the Parties:

7.    Shri Jayant Bhushan, learned senior counsel appearing for the


appellants, has submitted that the authorities under the Act 1976 have never


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 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 maintainable. The appellants had never received any


show cause notice from the statutory authorities. No proceedings have ever


been initiated against them or their predecessors-in- interest. The appeal

lacks merit and is liable to be dismissed.

9.    We have considered the rival submissions made by the learned

counsel for the parties and perused the record.
Case on merits:

10.   The appellants had not approached the High Court for quashing an


order passed by the authority under the Act 1976. The relevant reliefs


claimed by the appellants-writ petitioners have been as under :


      "(i)   to issue a suitable writ, order or direction in the nature of

      mandamus directing the respondents not to interfere in the

      actual physical peaceful possession and construction of the

      petitioners' multi storied building known as `Ganpat Green

      Apartment' situated at Khasra Plot No. 258, Village Kakraitha,

      Tehsil Sadar, District Agra.

      (ii)   To issue a suitable writ, order or direction in the nature of

      certiorari and to quash the directions contained in the letters

      dated 30th June, 2008 and 18th July, 2008 (Annexures 19 & 20

      to the writ petition).



      (iii)   To issue suitable writ, order or direction constituting an

      enquiry committee to enquire into the role of and to fix

      responsibility on the erring respondents for the illegal and

      undue harassment of the petitioners in respect of the

      construction in question as also for the publication of the press

      reports dated 26.08.2008 (Annexure 21 to the writ petition)

      damaging irredeemably the business, reputation as well as

      goodwill of the petitioners and to direct such authority found

      responsible for the said illegal acts to compensate the

      petitioners for the aforesaid damage caused to their business,

      reputation and goodwill."


11.   The letters referred to hereinabove are part of the record. The said


letters are communications from the Deputy Collector (Sadar), Agra to


Additional District Collector, (A), Prescribed Authority, Urban Land, Agra


dated 30th June, 2008; and from Additional District Collector, (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 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 of U.P. & Ors., (2000) 6 SCC


325; Ghasitey Lal Sahu & Anr. Vs. Competent Authority, (2004) 13 SCC


452; Mukarram Ali Khan Vs. State of Uttar Pradesh & Ors., (2007) 11


SCC 90; and Smt. Sulochana Chandrakant Galande Vs. Pune Municipal

Transport & Ors., JT (2010)C 298.

14.   The aforesaid conclusion leads us further to the question as to whether


the appellants have any justifiable cause to approach the court. Firstly, no


proceedings had ever been initiated against the appellants by the authorities


under the Act 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 worth 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


15.   The ex-parte orders of assessment of surplus land against the original


tenure holders have been placed on record. Admittedly, the said assessment


orders had not been challenged by them and attained finality. In view of


provisions of Sections 5 and 10 of the Act of 1976, transfer of such land by



them in favour of anyone was not only prohibited but null and void. Section


5 (1) of the Act 1976 provided that transfer of vacant land in excess of the


ceiling limit at any time during the period commencing on the appointed day


and ending with the commencement of 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


            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 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 notice must have preceded the


notice under Section 10(3) of the Act 1976, reached the conclusion that the


transfer which had been effected by the recorded tenure holders in favour of

Mayur Sahkari Awas Samiti on 20th April, 1982 was deemed to be null and

void by operation of law under Sections 5(3) and 10(4) of the Act 1976. We


do not see any cogent reason to take a contrary view. More so, a further


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 the Act 1976. More so, the


user of the land could not be changed in view of the provisions of Section


10(4) of the Act 1976. The alleged transfer by the recorded tenure holders in


favour of Mayur Sahkari Awas Samiti for the purpose of construction of

residential houses was totally illegal.

18.   The sale deed in favour of Mayur Sahkari Awas Samiti dated 20th


April, 1982 is not on record. There is nothing to establish whether the sale

deed was a genuine, forged or fabricated document.          Merely making a

statement that it was a registered sale deed and, therefore, it was genuine,


cannot be accepted. There is no such presumption in law. There is nothing


to ascertain who had been the transferors and who were the transferees


therein. None of the subsequent sale deeds is on record. Therefore, the


genuineness of either of the alleged sale deeds can be tested. There are no


pleadings as under what circumstances the sale deeds have been executed


and as to whether the original tenure holders have received any


19.   It is a settled proposition of law that a party has to plead the case


and produce/adduce     sufficient evidence to substantiate his submissions


made in the petition and in case the pleadings are not complete, the Court is


under no obligation to entertain the pleas. In Bharat Singh & Ors. Vs.


State of Haryana & Ors., AIR 1988 SC 2181, this Court has observed as


                   "In our opinion, when a point, which is

            ostensibly a point 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


         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


20.      The power under Article 226 of the Constitution is discretionary and


supervisory in nature. It is not issued merely because it is lawful to do so.


The extraordinary power in writ jurisdiction does not exist to set right mere


errors of law which do not occasion any substantial injustice. A writ can be


issued only in case of a grave miscarriage of justice or where there has been


a flagrant violation of law. The writ court has not only to protect a person


from being subjected to a violation of law but also to advance justice and not


to thwart it. The Constitution does not place any fetter on the power of the


extraordinary jurisdiction but leaves it to the discretion of the court.



However, being that the power is discretionary, the court has to balance


competing interests, keeping in mind that the interests of justice and public

interest are coalesce generally.   A court of equity, when exercising its

equitable jurisdiction must act so as to prevent perpetration of a legal fraud

and promote good faith and equity.       An order in equity is one which is

equitable to all the parties concerned. Petition can be entertained only after


being fully satisfied about the factual statements and not in a casual and


cavalier manner. (Vide Champalal Binani Vs. The Commissioner of


Income Tax, West Bengal & Ors., AIR 1970 SC 645; Chimajirao


Kanhojirao Shrike & Anr. v. Oriental Fire and General Insurance Co.


Ltd., AIR 2000 SC 2532; LIC of India v. Smt. Asha Goel & Anr., AIR


2001 SC 549; The State Financial Corporation & Anr. v. M/s. Jagdamba


Oil Mills & Anr., AIR 2002 SC 834; Chandra Singh v. State of


Rajasthan & Anr., AIR 2003 SC 2889; and Punjab Roadways, Moga


through its General Manager v. Punja Sahib Bus and Transport Co. &

Ors, (2010) 5 SCC 235).

21.   Where a party's claim is not founded on valid grounds, the party


cannot claim equity. A party that claims equity must come before the court


with clean hands as equities have to be properly worked out between parties


to ensure that no one is allowed to have their pound of flesh vis-`-vis the


others unjustly. (vide: Sikkim Subba Associates v. State of Sikkim (2001)

5 SCC 629).


22.   In Andhra Pradesh State Financial 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:

             " 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 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 at a later stage. A subsequent action/development


cannot validate an action which was not lawful at its inception, for the


reason that the illegality strikes at the root of the order. It would be beyond


the competence of any authority to validate such an order. It would be


ironical to permit a person to rely upon a law, in violation of which he has


obtained the benefits. (Vide Upen Chandra Gogoi Vs. State of Assam &


Ors., (1998) 3 SCC 381; Satchidananda Misra Vs. State of Orissa &


Ors., (2004) 8 SCC 599; and Regional Manager, SBI Vs. Rakesh Kumar

Tewari, (2006) 1 SCC 530).

27.    In C. Albert Morris Vs. K. Chandrasekaran & Ors., (2006) 1 SCC


228, this Court held that a right in law exists only and only when it has a

lawful origin.

28.    In Mangal Prasad Tamoli (dead) by LRs. Vs. Narvadeshwar


Mishra (dead) by LRs. & Ors., (2005) 3 SCC 422, this Court held that if an


order at the initial stage is bad in law, then all further proceedings


consequent thereto will be non-est and have to be necessarily set aside.


29.   In the instant case, as we have observed that the alleged sale deed


dated 20th April, 1982 in favour of Mayur Sahkari Avas Samiti has been a



void transaction, all subsequent transactions have merely to be ignored.


30.   While hearing this appeal, we made a futile exercise to ascertain the


true facts and find out the bona fides of the appellants. For that purpose, we


put certain questions to the learned counsel for the appellants. Shri Jayant


Bhushan, learned Senior counsel persistently answered that the facts, the

court wanted to ascertain were not in issue.

             Section 165 of the Evidence Act, 1872 empowers the Court to


ask questions relevant, irrelevant, related or unrelated to the case to the party


to ascertain the true facts. The party may not answer the question but it is not


permitted to tell the Court that the question put to him is irrelevant or the


facts the court wants to ascertain are not in issue. Exercise of such a power


is necessary for the reason that the judgment of the court is to be based on


relevant facts which 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 for



getting 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

succeed in eliciting the true facts.

32.   In view of above, we do not find any force in the appeal on merit and

it is, accordingly, dismissed. No order as to costs.


                                                       (P. SATHASIVAM)


New Delhi,                                    (Dr. B.S. CHAUHAN)

September 21, 2010


© 2008-2014 Legal Approach