TaxTMI 
TaxTMI 
2021 (9) TMI 1112
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....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 was impleaded 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 Hussain had 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 ....
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....er of the entire area of 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 petition against the State of Uttar Pradesh and MDA before the High Court challenging 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 the sale deed executed by Zahid Hussain in ....
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.... 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 the MDA on 31 July 1992. MDA has been in possession of the suit land in Gata No. 200/1 since 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 were concluded 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 (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....
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....hority 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 land had been handed over to the MDA was not brought to the notice of the court. In any event, the case was remanded 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; (v) Zahid Hussain who is alleged to have sold the land to the first respo....
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....luding 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) "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" or 10(6) of the ULCRA "10(6). If any person refuses or fails to comply with an order made under sub-section (5), the competent authority may take possession of the vacant land or cause it to be given to the concerned State Government or....
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.... (ii) The purchase of the lands by the first respondent from Zahid Hussain in 1993 is hit by the provisions of Section 5(3) and Section 27 of ULCRA; (iii) The sale deed in favour of the first respondent was void, and hence the basis and foundation on which the first respondent instituted the suit stands nullified; (iv) As a matter of fact, possession was taken and handed over to MDA on 31 July 1992; and (v) The original claim in the suit was subsequently expanded through an amendment to set up a plea over a larger area of land. 14 On the other hand, Mr Manoj Swarup, learned Senior Counsel appearing on behalf of the first respondent submitted that: (i) Originally in 1986, an acquisition took place under the provisions of the Land Acquisition Act 1894 of an area admeasuring 200 sq. mt. in Gata No. 200. As a consequence, the remaining portion of the land was divided into Gata No.200/1 admeasuring 1295.04 and Gata No.200/2 admeasuring 200 sq. mt; (ii) Though an order was passed by the Competent Authority in 1988, by the order of the District Judge dated 6 January 1993, the case was remanded back to the Competent Authority for reco....
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....sfer of that land was not granted as there was a pending suit pertaining to it. The order further notes that another application dated 30 March 1993 was submitted by Zahid Hussain. After conducting an enquiry, it was found that the permission to "transfer the land area 1295.04 sq mt. ha[d] now been sought from his [Zahid Hussain's] property of admeasuring 2000 sq mt". Based on this, the Competent Authority by its order dated 5 May 1993 granted permission for transfer of land measuring 1295.05 sq. mt from land measuring 2000 sq. mt. Thus the order dated 5 May 1993 indicates that the Competent Authority had categorically denied permission for transfer of lands situated in Gata No. 200/1 since there was a pending suit, and the permission was only granted for 1295.05 sq. mt. of land out of the 2000 sq. mt. of land owned by Zahid Hussain, which was not the subject of the ceiling proceedings. 18 Section 5(3) of the ULCRA is in the following terms: "In any State to which this Act applies in the first instance and in any State which adopts this Act under clause (1) of article 252 of the Constitution, no person holding vacant land in excess of the ceiling limit immediately befor....
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....blished the notification pertaining to the excess land under Section 10(1). "10. (1) As soon as may be after the service of the statement under section 9 on the person concerned, the competent authority shall cause a notification giving the particulars of the vacant land held by such person in excess of the ceiling limit and stating that- (i) such vacant land is to be acquired by the concerned State Government; and (ii) the claims of all persons interested in such vacant land may be made by them personally or by their agents giving particulars of the nature of their interests in such land, to be published for the information of the general public in the Official Gazette of the State concerned and in such other manner as may be prescribed". The purported transfer by Zahid Hussain 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 ULCRA on 27 September 1988. However, once the order was set aside by the District Judge and the case was remanded back to the Compe....
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....l 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. 22 Order XLI Rule 22(1) reads in the following terms: "(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 oug....
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.... [Explanation. - A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.] (emphasis supplied) 23 The effect of the amendment was considered in Banarsi & Ors. v. Ram Phal (2003) 9 SCC 606, 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. Justice R.C Lahoti (as the learned Chief Justice then was), speaking for the two judge bench observed: "10-. [...] There may be three situations: (i) The impugned decree is partly in favour of the appellant and partly in favour of the respondent. (ii) The decree is entirely in favour of the respondent though an issue has been decided against the respond....
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....endant and held that the suit was not barred by Order II Rule 2 of the CPC. However, the court dismissed the suit on grounds of limitation. On an appeal filed by the respondent before the High Court, the High Court observed that although the suit was barred by Order II Rule 2 of the CPC, the appellant had not challenged this finding of the Trial Court by filing a memorandum of cross-objection. Thus, the High Court granted the respondent a decree against the appellant. When this finding of the High Court was assailed before this Court, Justice P.K Balasubramanyam held that a memorandum of cross-objection needs to be filed while taking recourse to Order XLI Rule 22 only when the respondent claims a relief that had been rejected by the trial court or seeks an additional relief apart from that provided by the trial court. The court held that a memorandum of objection need not be filed when the appellant only assailed a 'finding' of the lower court: "7. The High Court, in our view, was clearly in error in holding that the appellant not having filed a memorandum of cross-objections in terms of Order 41 Rule 22 of the Code, could not challenge the finding of the trial court that ....
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....jitkumar Fulsinji AIR 1965 SC 669. Justice JR Mudholkar overruled the judgment of the three judge bench in Vashist Narain Sharma v. Dev Chandra (1955) 1 SCR 509 which had rejected the argument of the respondent that a party could raise arguments on the 'findings' that were against him, while supporting the judgment. It was held that Order XLI Rule 22 of the CPC does not have application to an appeal under Article 136. In Ramanbhai Ashabhai Patel (supra), this Court held that the provisions of Order XLI Rule 22 of the CPC are not applicable to the Supreme Court and the rules of the Supreme Court do not provide for any analogous provisions. However, it was held that this deficiency must be supplemented by drawing from CPC: "18. [...] Apart from that we think that while dealing with the appeal before it this Court has the power to decide all the points arising from the judgment appealed against and even in the absence of an express provision like Order [4]1 Rule 22 of the Code of Civil Procedure it can devise the appropriate procedure to be adopted at the hearing. There could be no better way of supplying the deficiency than by drawing upon the provisions of a general law lik....
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....ow. This position of law is supportable on general principles without having recourse to Order 41 Rule 22 of the Code of Civil Procedure. Reference may be had to a recent decision of this Court in Nalakath Sainuddin v. Koorikadan Sulaiman [(2002) 6 SCC 1] and also Banarsi v. Ram Phal [(2003) 9 SCC 606] . This Court being a court of plenary jurisdiction, once the matter has come to it in appeal, shall have power to pass any decree and make any order which ought to have been passed or made as the facts of the case and law applicable thereto call for. Such a power is exercised by this Court by virtue of its own jurisdiction and not by having recourse to Order 41 Rule 33 CPC though in some of the cases observations are available to the effect that this Court can act on the principles deducible from Order 41 Rule 33 CPC. It may be added that this Court has jurisdiction to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. Such jurisdiction is conferred on this Court by Article 142 of the Constitution and this Court is not required to have recourse to any provision of the Code of Civil Procedure or any principle deduci....
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.... be urged at the time of the hearing. 30 This Court in Bharat Kala Bhandar (P) Ltd. v. Municipal Committee AIR 1966 SC 249 dealt with a civil appeal where a contention had not been raised in the suit or in the grounds of appeal before the High Court, and was advanced before this Court for the first time. Although the Court noted that the scope of the appeal cannot be broadened at the instance of the parties, if a plea raises a question of considerable importance, it can be entertained by this Court. In a similar vein, this Court in Vasant Kumar Radhakisan Vora v. Board of Trustees of the Port of Bombay(1991) 1 SCC 761, noted that pure questions of law which go to the root of the jurisdiction in a case can be raised for the first time in an appeal under Article 136 of the Constitution. 31 In Chandrika Misir v. Bhaiya Lal (1973) 2 SCC 474, this Court was hearing a special leave petition concerning the possession of parties over the suit property which was the subject of the U.P. Zamindari Abolition and Land Reforms Act (Act 1 of 1951). While adjudicating on whether the suit was barred by limitation, Justice DG Palekar, speaking for a two Judge bench, observed that the civil cou....
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....the death sentence of a number of accused persons by the High Court was under challenge before this Court. Chief Justice Gajendragadkar, speaking for a four judge Bench of this Court, observed that: "11. We are not prepared to accept Mr Sawhney's argument that even if this point was not raised by the appellants before the High Court, they are entitled to ask us to consider that point having regard to the fact that 10 persons have been ordered to be hanged. It may be conceded that if a point of fact which plainly arises on the record, or a point of law which is relevant and material and can be argued without any further evidence being taken, was urged before the trial court and after it was rejected by it was not repeated before the High Court, it may, in a proper case, be permissible to the appellants to ask this Court to consider that point in an appeal under Article 136 of the Constitution; after all in criminal proceedings of this character where sentences of death are imposed on the appellants, it may not be appropriate to refuse to consider relevant and material pleas of fact and law only on the ground that they were not urged before the High Court. If it is shown....
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.... Bench in his inimitable style, laid down 7 tests for examining the aforementioned question. These tests read as under: (Dhulabhai case [Dhulabhai v. State of M.P., AIR 1969 SC 78] , AIR pp. 89-90, para 32) "(1) Where the statute gives a finality to the orders of the special tribunals the civil courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the ....
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....ves overriding powers on other laws (refer to Section 42). 47.4. Fourth, the Act expressly excludes the jurisdiction of the civil court in relation to the cases falling under Sections 30 and 40 [refer to Section 30(5) and Section 40]. 48. In light of the aforesaid five reasons - a fortiori, the jurisdiction of the civil court in relation to all the issues arising under the Act is held impliedly excluded thereby satisfying all the conditions set out in clause (1) of para 32 of Dhulabhai [Dhulabhai v. State of M.P., AIR 1969 SC 78]." (emphasis supplied) Thus, the Court summarised the conclusions as below: "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 overriding powers on other laws (refer to Section 42). 47.4. Fourth, the Act expressly excludes the jurisdiction of the civil court in relation to the cases ....
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....ding of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7, Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10, CPC. An activist Judge is the answer to irresponsible law suits. The trial courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. [...]" (emphasis supplied) This dictum of the Court has since then been followed consistently in Madanuri Sri Rama Chandra Murthy v. Syed Jala (2017) 13 SCC 174, Sopan Sukhdeo Sable v. Assistant Charity Commissioner (2004) 3 SCC 137, and most recently by one of us (Justice MR Shah) in Raghwendra Sharan Singh v. Ram Prasanna Singh (Dead) by LRs AIR 2019 SC 1430 and Canara Bank v. P. Selathal & Ors. (2020) 13 SCC 143. Therefore, the jurisdiction of the civil court to entertain the suit instituted by the first respondent was barred. 38 The High Court allowed the appeal ag....