Supreme Court of India
RITESH TEWARI & ANR.versusSTATE OF U.P. & ORS.
- Citation
- 2010 INSC 629
- Decided
- 21 September 2010
- Disposal
- Dismissed
- Bench
- P SATHASIVAM
Holding
The writ petition is not maintainable and the transfer of surplus land under the 1976 Act is void, rendering all subsequent transactions null, so the appeal is dismissed.
Summary
The original landholders, whose holdings exceeded the ceiling under the Urban Land (Ceiling and Regulation) Act, 1976, were assessed as surplus and transferred a major portion of the land to Mayur Sahkari Awas Samiti in 1982. The Act deemed such surplus land vested in the State, but the authorities never took physical possession. The Samiti later sold the land to Savy Homes, which in turn sold it to the appellants, Ritesh Tewari and others. After the 1999 repeal of the 1976 Act, the appellants sought a writ to quash inter‑departmental letters of 2008 and to restrain the State from interfering with their possession. The Supreme Court held that the writ petition was not maintainable because internal communications cannot be the subject of a writ, and that the original transfer under the 1976 Act was void under Sections 5 and 10, rendering all subsequent transfers null. Consequently, the appeal was dismissed.
Issues considered
- The writ petition seeking to quash inter‑departmental communications is maintainable under Article 226.
- Whether the transfer of surplus land by the original tenure‑holders to Mayur Sahkari Awas Samiti and subsequent transfers are void under the Urban Land (Ceiling and Regulation) Act, 1976.
- The effect of the repeal of the 1976 Act by the Urban Land (Ceiling and Regulation) Repeal Act, 1999 on pending proceedings.
- Whether the appellants have any enforceable right to possession of the land.
- The scope of the court's equitable jurisdiction in refusing relief.
Legislation cited
- Constitution of Indias. Article 226
- Indian Evidence Act, 1872s. 165
- Urban Land (Ceiling and Regulation) Act, 1976s. 10(1), s. 10(3), s. 10(4), s. 10(5), s. 10(6), s. 5, s. 8(4)
- Urban Land (Ceiling and Regulation) Repeal Act, 1999
Subjects
Urban Land Ceiling Actsurplus landvoid transferwrit petitionmaintainabilityequitable jurisdictionrepeal actArticle 226Evidence Act 165inter‑departmental communication
Judgment
[2010] 11 S.C.R. 589
RITESH TEWARI & ANR.
v.
STATE OF U.P. & ORS.
(Civil Appeal No. 8178 of 2010)
SEPTEMBER 21,2010
B
[P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]
Urban Land (Ceiling and Regulation) Act, 1976- s. 10(4)
- Acquisition of vacant land in excess of ceiling limit -
Assessment orders of surplus land attaining finality- Transfer C
of surplus land by original tenure holders in favour of Samiti.
- Subsequent transfer of surplus land in favour of appellants
.- Meanwhile, proceedings by Authorities to effectuate
deemed vesting of land in the State - Inter-departmental
communications between two officers of the Department - Writ D
petition by appellants for quashing the communications and .
direction to restrain the Authorities to interfere with their
possession - Maintainability of - Held: Not maintainable -
Contents of inter-departmental communication cannot be said ·
to be subject matter of writ petition - If an order is bad in its E
inception, it does not get sanctified at a later stage - In view
of ss. 5 and 10, transfer of such land by tenure holders in
favour of Samiti, null and void - Failure of appellants in
disclosing the date of Notification issued uls. 10(1) - Transfer
of land in favour of Samiti for construction of residential
F
houses illegal - Alleged sale deed in favour of Samiti being
a void transaction, all subsequent transactions merely to be.
ignored - No pleadings present for proper adjudication of the·
case - Also no special feature present warranting exercise of'
equitable discretionary jurisdiction in favour of appellants - · G
True facts not elicited - Urban Land (Ceiling and Regulation)
Repeal Act, 1999 - Plea - Equity- Constitution of India, 1950 ·
- Article 226 - Evidence Act, 1872 - s. 165.
The original tenure holders transferred•a major-part'.
589 H'
590 SUPREME COURT REPORTS [2010] 11 S.C.R.
A of land declared surplus under the Urban Land (Ceiling
and Regulation) Act, 1976 with them in favour of Sahkari
Awas Samiti on 20th April 1982, even though assessment
orders were passed against the original tenure holders.
The Authorities under the Act, published a Notification
B which effectuated the deemed vesting of such land in the
State. They directed the tenure holders to handover the
possession. However, the Authorities did not take over
the actual physical possession. Certain members of the
Samiti sold the land to 'S' who further sold it to the
c appellants by sale deed dated 15th June 2006. In the
mean while, the stood 1976 Act repealed. Certain inter-
departmental communications took place between the
two officers of the Government Department. They wrote
letter dated 30th June, 2008 and letter dated 18th July,
2008. The appellants filed writ petition seeking quashing
0
of the inter-departmental communications and direction
to restrain the respondents from interfering with the
actual and physical possession of the lands. The High
Court dismissed the writ petition. Therefore, the
E appellants filed the instant appeal.
Dismissing the appeal, the Court
HELD: 1.1. The appellants had not approached the
High Court for quashing an order passed by the authority
F under the 1976 Act. The letters dated 30th June, 2008 and
18th July, 2008 are part of the record. The contents of
such a communication between two officers of the
departments of the Government could not be the subject
matter of the writ petition. The appellants could not have
approached the High Court for the relief sought by them.
G The writ petition was certainly not maintainable. [Paras
10 and 11] [600-8; 601-8]
1.2. The ex-parte orders of assessment of surplus
land against the original tenure holders have been placed
H
RITESH TEWARI & ANR. v. STATE OF U.P. & ORS. 591
on record. The said assessment orders were not A·
challenged by them and attained finality. In view of the
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. [Para 15] [602-e-t]
B
1.3. The High Court after considering the provisions
of Sections 5 (3) and 10 (4) of the 1976 Act and taking note
of the fact that the appellants did not disclose the date
of notification under Section 10(1) of the Act nor annexed
the copy of the same and further presuming that the said
c.
notice must have preceded the notice under Section
10(3) of the Act reached the conclusion that the transfer
which had been effected by the recorded tenure holders
in favour of the 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. There is no reason to take a D
contrary view. More so, a further examination of the
correctness of the said 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. The user of the land could not E
be changed in view of the provisions of Section 10(4) of
the Act. The alleged transfer by the recorded tenure
holders in favour of the Samiti for the purpose of
construction of residential houses was totally illegal.
[Para 17] [603-E-H] F
1.4. The sale-deed in favour of the 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 G
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. None of the
subsequent sale deeds is on record. Therefore, the
H
592 SUPREME COURT REPORTS [2010] 11 S.C.R.
A genuineness of either of the alleged. sale deeds cannot
be tested. There are no pleadings as to under what
circumstances the sale deeds have been executed and
as to whether the original tenure holders have received
any consideration. [Para 18] [604-A-C]
B
1.5. 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
C obligation to entertain the pleas. The instant 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. [Para 19] [604-D; 605-B-
C]
D
Bharat Singh and Ors. vs. State of Haryana and Ors. AIR
1988 SC 2181; Vithal N. Shetti and Anr. vs. Prakash N.
Rudrakar and Ors. (2003) 1 SCC 18; Devasahayam (Dead)
by Lrs. vs. P. Savithramma and Ors. (2005) 7 SCC 653; Sait
E Nagjee Purushotham and Co.Ltd. vs. Vimalabai Prabhu/al
and Ors. (2005) 8 SCC 252; Rajasthan Pradesh V. C.
Sardarshahar and Anr. vs. Union of India and Ors. AIR 2010
SC 2221, relied on.
1.6. The power under Article 226 of the Constitution
F is discretionary and supervisory in nature. It is not
exercised merely because it is lawful to do so. The extra-
ordinary power in writ jurisdiction does not exist to setr
right mere errors of law which do not occasion any
substantial injustice. A writ can be issued only in case of
G 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
H extra-ordinary jurisdiction but leaves it to the discretion
RITESH TEWARI & ANR. v. STATE OF U.P. & ORS. 593
of the court. However, as the power is discretionary, the A
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 excising its
equitable jurisdiction must act so as to prevent
perpetration of a legal fraud and promote good faith and B
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. [Para 20] [605-
D-G] C
Champa/al Binani vs. the Commission of Income Tax,
West Bengal and Ors. AIR 1970 SC 645; Chimajirao
Kanhojirao Shrike & Anr. v. Orienta/ Fire and General
Insurance Co. Ltd. AIR 2000 SC 2532; UC of India v. Smt.
Asha Goel and Anr. AIR 2001 SC 549; The State Financial D
Corporation and Anr. v. Mis. Jagdamba Oil Mills and Anr. AIR
2002 SC 834; Chandra Singh v. State of Rajasthan and Anr.
AIR 2003 SC 2889; Punjab Roadways, Moga through its
General Manager v. Punja Sahib Bus and Transport Co. and
Ors. (2010) 5 sec 235, relied on. E
1. 7. 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 F
between parties to ensure that no one is allowed to have
their pound of flesh vis-a-vis the others unjustly. The
equity jurisdiction is exercised to promote honesty and
not to frustrate the legitimate rights of the other parties.
The instant appeal does not present any special feature G
warranting exercise of equitable discretionary jurisdiction
in favour of the appellants. [Paras 21 and 25] [606-B; 607-
A]
Sikkim Subba Associates v. State of Sikkim (2001) 5
SCC 629, relied on. H
594 SUPREME COURT REPORTS (2010] 11 S.C.R.
A Andhra Pradesh State Financial Corporation v. Mis. Gar
Re-Rolling Mills and Anr. AIR 1994 SC 2151; M. P. Mittal v.
State of Haryana and Ors. AIR 1984 SC 1888; State of
Maharashtra and Ors. v. Prabhu (1994) 2 SCC 481, referred
to.
B
1.8. 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
leveled at the inception, for the reason that the illegality
strikes at the root of the order. It would be beyond the
C competence of any authority to validate such an order. It
. would be ironical to permit a person to retry upon a law,
in violation of which he has obtained the benefits. In the
instant case, the alleged sale deed dated 20th April, 1982
in favour of the Samiti was a void transaction, all
D subsequent transactions have merely to be ignored.
[Paras 26 and 29) [607-B-C; F-G]
Upen Chandra Gogoi vs. State of Assam and Ors.
(1998)3 SCC 381; Satchidananda Misra vs. State of Orissa
E and Ors. (2004) 8 SCC 599; Regional Manager SB/ vs.
Rakesh Kumar Tewari (2006) 1 SCC 530, relied on.
CAibert Morris vs. K. Chandrasekaran and Ors. (2006)
1 SCC 228; Mangal Prasad Tamoli(dead) by Lrs. vs.
F Narvadeshwar Mishra (dead) by Lrs.and Ors. (2005) 3 SCC
422, referred to.
1.9. 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
G 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
H relevant facts which have been duly proved. A court in
RITESH TEWARI & ANR. v. STATE OF U.P. & ORS. 595
any case cannot admit illegal or inadmissible evidence for A
basing its decision. It is an extra-ordinary 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 B
of the relevant facts, the court can ask the question to the
parties concerned at any time and in any form. The 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 c
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. In the
instant case, in spite of all efforts, true facts could not be
0
elicited. [Para 30, 31] [608-A-G]
Jamatraj Kewalji Govani vs. State of Maharashtra AIR
1968 SC 178; Zahira Habibulla H. Sheikh and Anr. vs. State
of Gujarat and Ors. (2004) 4 sec 158, relied on.
E
Pt. Madan Swaroop Shrotiya Public Charitable Trust vs.
State of U. P. and Ors. (2000) 6 SCC 325; Ghasitey Lal Sahu
and Anr. vs. Competent Authority (2004) 13 SCC 452;
Mukarram Ali Khan vs. State of Uttar Pradesh and Ors. (2007)
11 SCC 90; Sulochana Chandrakant Galande vs. Pune F
Municipal Transport and Ors. JT (2010) C 298, referred to.
Case Law Reference:
(2000) 6 sec 325 referred to. Para 13
(2004) 13 sec 452 referred to. Para 13 G
(2001) 11 sec 90 referred to. Para 13.
JT (2010) C 298 referred to. Para 13
AIR 1988 SC 2181 relied on. Para 19 H
596 SUPREME COURT REPORTS (2010] 11 S.C.R.
A (2003) 1 sec 18 relied on. Para 19
(2005) 1 sec 653 relied on. Para 19
(2005) 8 sec 252 relied on. Para 19
AIR 2010 SC 2221 relied on. Para 19
B
AIR 1970 SC 64 relied on. Para 20
AIR 2000 SC 2532 relied on. Para 20
AIR 2001 SC 549 relied on. Para 20
c
AIR 2002 SC 834 relied on. Para 20
AIR 2003 SC 2889 relied on. Para 20
(201 O) 5 sec 235 relied on. Para 20
D (2001) 5 sec 629 relied on. Para 21
AIR 1994 SC 2151 referred to. Para 22
AIR 1984 SC 1888 referred to. Para 23
E (1994) 2 sec 481 referred to. Para 24
(1998) 3 sec 381 relied on. Para 26
(2004) 8 sec 599 relied on. Para 26
(2006) 1 sec 530 relied on. Para 26
F
(2006) 1 sec 228 referred to. Para 27
(2005) 3 sec 422 referred to. Para 28
AIR 1968 SC 178 relied on. Para 30
G
(2004) 4 sec 158 relied on. Para 30
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
8178 of 2010.
H From the Judgment & Order dated 21.1.2009 of the High
RITESH TEWARI & ANR. v. STATE OF U.P. & ORS. 597
Court of Judicature at Allahabad in Civil Misc. Writ Petition No. A
45169 of 2008.
Jayant Bhushan, Nikunj Dayal, Ritesh Tiwari, Pramod
Dayal for the Appellants.
S.R. Singh, Manoj Kumar Dwivedi, Ashutosh Sharma, B
Gunnam Venkateswara Rao, Ashok K. Srivastava, Shaiwal
Srivastava for the Respondents.
The Judgment of the Court was delivered by
DR. B.S. CHAUHAN, J. 1. Leave granted.
c
2. This appeal has been preferred against the judgment
and order dated 20tt<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 <;:ertain D
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
E
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, F
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 G
respective declaration as required under the Act ·1976,
however, the record reveals that ex-parte assessment OJ'd~s
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, 1981and25th May, 1981, declaring an H
598 SUPREME COURT REPORTS (201 OJ 11 S.C.R.
A 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
8
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
C 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
D 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
E 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.
F 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
G 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
H of the land of the appellants. The said writ petition has been
RITESH TEWARI & ANR. v. STATE OF U.P. & ORS. 599
[DR. B.S. CHAUHAN, J.)
dismissed by the impugned judgment and order dated 20th A
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 B
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. C
The High Court erred in taking into consideration the locus-
standi of the appellants and holding that the transfer iii favour
of the appellants was consequential to the void transaction in
favour of Mayur Sahkari Awas Samiti. Hence, the appeal
deserves to be allowed.
D
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 E
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/
F
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 G
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 a.nd is liable to be
dismissed. H
600 SUPREME COURT REPORTS [2010] 11 S.C.R.
A 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
B 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
c of mandamus directing .the respondents not to interfere in
the actual physical peaceful possession and construction
of the petitioners' multi storied building known as 'Gan pat
Green Apartment' situated at Khasra Plot No. 258, Village
Kakraitha, Tehsil Sadar, District Agra.
D (ii) To issue a suitable writ, order or direction in the nature
of certiorari and to quash the directions contained in the
le.tters dated 30th June, 2008 and 18th July, 2008
(Annexures 19 & 20 to thewrit petition).
E (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
F 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
G 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;
H and from Additional District Collector, (A), Prescribed Authority,
RITESH TEWARI & ANR. v. STATE OF U.P. & ORS. 601
[DR. S.S. CHAUHAN, J.]
Urban Land, Agra to Secretary, Agra Development Authority A
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
B
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. c
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 D
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.
E
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 commencement of the Act
1999 in force, provided the possession of the land involved in
F
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; G
and Smt. Sulochana Chandrakant Galande Vs. Pune
Municipal Transport & Ors., JT (201 O)C 298.
14. The aforesaid conclusion leads us further to the
question as to whether the appellants have any justifiable cause H
602 SUPREME COURT REPORTS [201 OJ 11 S.C.R.
A 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
B 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
c 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)!) absence
of the original tenure holders and subsequent transferees
inasmuch as in the fact-situation of this case where the
0
appellants, for the reasons best known to them, did not
consider. it proper to place either of the sale deeds on record.
15. The ex-parte orders of assessment of surplus land
against the original tenure holders have been placed on record.
E 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
F 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
G 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
H furnished a statement under Section 6, and a Notification under
RITESH TEWARI & ANR. v. STATE OF U.P. & ORS. 603
[DR. B.S. CHAUHAN, J.]
Section 10(1) has been published would be deemed to be null A
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 8
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, c
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 D
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 E
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 F
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 ,~ G
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. H
604 SUPREME COURT REPORTS [2010] 11 S.C.R.
A 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
B 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
c circumstances the sale deeds have been executed and as to
whether the original tenure holders have received any
consideration.
19. It is a settled proposition of law that a party has to plead
the case and produce/adduce sufficient evidence to
D 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 under:-
E "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,
F 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
G 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)
RITESH TEWARI & ANR. v. STATE OF U.P. & ORS. 605
[DR. B.S. CHAUHAN, J.]
(See also Vithal N. Shetti & Anr. Vs. Prakash N. Rudrakar & A
Ors., (2003) 1 SCC 18; Oevasahayam (Dead) by LRs. Vs. P.
Savithramma & Ors., (2005) 7 SCC 653; Sait Nagjee
Purushotham & Co. Ltd. Vs. Vimalabai Prabhu/al & Ors.,
(2005) 8 SCC 252; and Rajasthan Pradesh V. S.
Sardarshahar & Anr. Vs. Union of India & Ors., AIR 2010 SC B
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, C
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 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 0
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
E
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
F
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 Champa/a/ Binani Vs. The G
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; UC of
India v. Smt. Asha Goel & Anr., AIR 2001 SC 549; The State
Financial Corporation & Anr. v. Mis. Jagdamba Oil Mills & H
606 SUPREME COURT REPORTS [2010] 11 S.C.R.
A 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,
8 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 partie~ to ensure that no one is
allowed to have their pound of flesh vis-a-vis the others unjustly.
(vide: Sikkim Subba Associates v. State of Sikkim (2001) 5
c sec 629).
22. l:i Andhra Pradesh State Financial Corporation v. Ml
s. GAR Re-Rolling Mills & Anr., AIR 1994 SC 2151, this Court
observed:-
D "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:
E " ....... 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
F 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 sec 481 considered the scope of equity jurisdiction
of the High Court under Article 226 of the Constitution and
G 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
H and puelic good."
RITESH TEWARI & ANR. v. STATE OF U.P. & ORS. 607
[DR. B.S. CHAUHAN, J.]
25. The present appeal does not present any special A
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 B
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 c
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, SB/ Vs. Rakesh Kumar 0
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.
E
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. F
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.
G
30. While hearing this appeal, we made a futile exercise
to ascertain the true facts and find out the bona tides of the
appellants. Foi 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
H
608 SUPREME COURT REPORTS [2010) 11 S.C.R.
/\"'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 ·
B 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
C 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
~iscover or obtain proper proof of the relevant facts, the court
D "
can askJhe 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
E 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
F SC 178; and Zahira Habibul/a 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.
G 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.
N.J. Appeal dismissed.
H
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