Shri Saurav Jain & Anr. vs M/s A. B. P. Design & Anr.

Matter pertaining to ceiling proceedings – Jurisdiction of civil court to entertain the suit – Exclusion of – On facts, first respondent sought a declaration in regard to the legality of the auction conducted by the Development Authority and the injunction – Plea that the purpose of the suit was to impugn the validity of proceedings under ULCRA – Held: ULCRA impliedly excludes the jurisdiction of the civil court on matters arising out of the ceiling proceedings – First respondent artfully drafted the plaint to challenge the validity of the auction and sought an injunction and declaration, when the substantive cause of action of the suit arises out of the land ceiling proceedings – Real object and purpose of the suit, in the guise or pretext of challenging the auction notice by the Development Authority was to affirm the title of the first respondent on the basis of an alleged permission obtained for the sale of the property – By a process of engineered drafting, the first respondent sought no reliefs in regard to the proceedings under the ULCRA (to obviate a bar to the maintainability of the suit) and did not implead either the State or the Competent Authority who would have been in a position to answer the challenge – Courts below 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 – This Court, has warned against drafting of this nature which seeks to distract attention away from the real cause of action – Thus, the jurisdiction of the trial court to entertain the suit instituted by the first respondent was barred – Judicial deprecation.

Code of Civil Procedure, 1908:

Ord. XLI r. 22 – Filing of cross-objections – Explained.

Ord. XLI r. 22 – Plea 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 – Held: 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 – It is not necessary that a challenge to the adverse findings of the lower court needs to be made in the form of a memorandum of cross-objection.

Constitution of India: Art. 136 – Raising of new ground before Supreme Court in special leave petition – Permissibility of – Held: Under Ord. 21 r. 3(c) of the 2013 Rules, SLPs are to be confined to the pleadings before the court whose order is challenged – However, with the leave of the Court, additional grounds can be urged at the time of the hearing – Though the appellant did not assail the finding of the trial court on the issue of jurisdiction before the High Court u/Ord. XLI r. 22 CPC either by filing a memorandum of crossobjection or otherwise, he is not precluded from raising the argument before this Court – This Court in view of its plenary jurisdiction u/Art. 136 read with Art. 142 can entertain new grounds raised for the first time if it involves a question of law which does not require adducing additional evidence, specifically one concerning jurisdiction of the court which goes to the root of the matter – Supreme Court Rules 2013 – Ord. 21 r. 3(c) – Code of Civil Procedure, 1908 – Ord. XLI r. 22.

Allowing the appeal, the Court

HELD: 1. 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 ZH to the first respondent was before the Repeal Act was enacted. The dual conditions stipulated under Section 5(3) of the Urban Land (Ceiling and Regulation) Act 1976-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 ZH 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 ZH 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 Authority on 5 May 1993 was for the transfer of lands from his ‘retainable’ property and not the suit land.

(iii) The plaintiff- first respondent has artfully drafted the plaint to challenge the validity of the auction and sought an injunction and declaration, when the substantive cause of action of the suit arises out of the land ceiling proceedings.

(iv) The ULCRA impliedly excludes the jurisdiction of the civil court on matters arising out of the ceiling proceedings.

(v) Though the appellant did not assail the finding of the trial court on the issue of jurisdiction before the High Court under Order XLI Rule 22 CPC either by filing a memorandum of crossobjection or otherwise, he is not precluded from raising the argument before this Court. This Court in view of its plenary jurisdiction under Article 136 of the Constitution read with its power to do complete justice under Article 142, can entertain new grounds raised for the first time if it involves a question of law which does not require adducing additional evidence, specifically one concerning jurisdiction of the court which goes to the root of the matter.

Thus, the impugned judgment of the High Court is set aside. The suit instituted by the first respondent is dismissed. [Para 39, 40][1059-D-H; 1060-A-D]

2.1 Section 5(3) of the ULCRA states that a person holding land in excess of the ceiling limit before the commencement of the Act shall not transfer the land until the land owner has furnished a statement under Section 6 and the Competent Authority has published the notification pertaining to the excess land under Section 10(1). The purported transfer by ZH 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 Competent Authority, no further order was passed under Section 8(4) and consequently, no notification was published under Section 10(1). Thus, at the relevant time, that is between the order dated 6 January 1993 remanding the matter to the Competent Authority and when the sale deed was executed on

22 June 1993, there was no notification under Section 10(1) of the ULCRA. Thus, the dual requirement for a valid transfer under Section 5(3) was not fulfilled. Any transfer in contravention of the provisions of Section 5(3) would be null and void. The suit instituted by the first respondent was founded on his alleged claim of title based on the transfer by ZH and was liable to fail on this ground alone. [Para 19][1042-G; 1043-A-D]

2.2 There is a specific finding of fact in the judgment of the trial court that the permission which was issued on 5 May 1993 to ZH for the transfer of 1295.04 sq mt of land was in modification of an earlier order dated 29 March 1993. The permission was in respect of the 2000 sq. mt of land which was retained by ZH. The High Court has not adverted to this finding of fact at all nor has it found any substantive basis to displace the finding. That apart, it is evident, that the order of the Competent Authority 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, ZH 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. [Para 20][1043-D-E; 1044-A-B]

2.3 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 instant suit, given the bar on jurisdiction under the ULCRA. The appellant 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, it is noted that the ground of lack of jurisdiction of the trial 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. [Para 21][1044-C-F]

2.4 Order XLI Rule 22(2) of the CPC states that a “crossobjection 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.”It is apparent from the amended provisions of Order XLI Rule 22 CPC 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 crossobjection 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. [Para 24, 25][1047-A-B; 1048-C-E]

Banarsi & Ors. v. Ram Phal (2003) 9 SCC 606 : [2003]

2 SCR 22; S. Nazeer Ahmed v. State Bank of Mysore (2007) 11 SCC 75 : [2007] 1 SCR 843 – referred to.

2.5 It is evident that the principle stipulated in Order XLI Rule 22 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 party’ to raise any adverse findings against them, this Court can draw colour from Order XLI Rule 22 CPC and permit objections to findings. [Para 27][1051-A-B]

Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji AIR 1965 SC 669 : [1965] 1 SCR 712; Vashist Narain Sharma v. Dev Chandra [1955] 1 SCR 509; Jamshed Hormusji Wadia v. Port of Mumbai (2004) 3 SCC 214 : [2004] 1 SCR 483 – referred to.

2.6 From the above it has been established that it not necessary that a challenge to the adverse findings of the lower court needs to be made in the form of a memorandum of crossobjection. In the instant case, it is noted that the appellant had raised an objection to the jurisdiction of the trial court for entertaining 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 this Court 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 this Court. [Para 28][1051-B-F]

2.7 With regard to new grounds being raised before this Court in a special leave petition under Article 136, it is noted 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, with the leave of the Court, additional grounds can be urged at the time of the hearing. It is just to allow the appellant to raise the ground of jurisdiction before this Court. Allowing the ground to be raised would not require the submission of additional evidence since it is a pure question of law and strikes at the heart of the matter. [Para 29, 34][1051F-G; 1054-B-C]

Bharat Kala Bhandar (P) Ltd. v. Municipal Committee AIR 1966 SC 249 : [1965] 3 SCR 499; Vasant Kumar Radhakisan Vora v. Board of Trustees of the Port of Bombay (1991) 1 SCC 761 : [1990] 3 SCR 825;

Chandrika Misir v. Bhaiya Lal (1973) 2 SCC 474 : [1974] 1 SCR 290; Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma (1995) 4 Suppl. SCC 286 :

[1995] 1 Suppl. SCR 542; Masalti v. State of Uttar Pradesh AIR 1965 SC 202 : [1964] 8 SCR 133 – relied on.

2.8 The pleadings in the suit indicate that the case of the first respondent was that ZH had obtained the permission of the Competent Authority on 5 May 1993 before transferring the lands in favour of the first respondent on 22 June 1993; that the ceiling proceedings under the ULCRA had resulted in an order of the Competent Authority dated 16 March 1988 declaring 1295.04 sq. mt as surplus but the order of the Competent Authority had been set aside in appeal on 6 January 1993 and the proceedings had been remanded; that as a result of the Repeal Act, proceedings under ULCRA stood abated; and that 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. [Para 35][1054-C-G] Competent Authority, Calcutta, Under the Urban Land (Ceiling and Regulation) Act, 1976 v. David Mantosh (2020) 12 SCC 542 : [2019] 4 SCR 331; Dhulabhai v. State of M.P AIR 1969 SC 78 : [1968] 3 SCR 662 – referred to.

2.9 The real object and purpose of the suit, in the guise or pretext of challenging the auction notice by MDA was to affirm the title of the first respondent on the basis of an alleged permission obtained on 5 May 1993 for the sale of the property, the deed of transfer executed by ZH and the abatement of proceedings under the ULCRA. The High Court held that the document dated 31 July 1992 on the basis of which possession was transferred to MDA does not evidence actual physical possession but is only a paper transaction. The High Court held that no material was forthcoming on whether actual and physical possession was taken by the Competent Authority from the land owner and it held that in the absence thereof, the first respondent, as the purchaser from ZH, would continue to have a valid title. The High Court entered these findings despite the fact that by a process of engineered drafting, the first respondent sought no reliefs in regard to the proceedings under the ULCRA (to obviate a bar to the maintainability of the suit) and did not implead either the State or the Competent Authority who would have been in a position to answer the challenge. [Para 36][1057-D-G]

2.10 Both the High Court and trial court 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. Therefore, the jurisdiction of the trial court to entertain the suit instituted by the first respondent was barred. [Para 37][1057-GH; 1058-A-B, G] T. Arivandandam v. T.V Satyapal (1977) 4 SCC 467 : [1978] 1 SCR 742; Madanuri Sri Rama Chandra

Murthy v. Syed Jala (2017) 13 SCC 174 : [2017] 5 SCR 294; Sopan Sukhdeo Sable v. Assistant Charity Commissioner (2004) 3 SCC 137 : [2004] 1 SCR 1004; Raghwendra Sharan Singh v. Ram Prasanna Singh

(Dead) by LRs AIR 2019 SC 1430 : [2019] 4 SCR 1069; Canara Bank v. P. Selathal & Ors. (2020) 13 SCC 143 – relied on.

2.11 The High Court allowed the appeal against the judgment of the trial court on the ground that after the district judge allowed the appeal and set aside the order passed by the Competent Authority under Section 8(4) of ULCRA, all further proceedings pursuant to the order under section 8(4) of ULCRAincluding the taking of possession by the State would be null and void. It was held that even otherwise, only ‘paper possession’ and not ‘actual possession’ of the suit land was taken, and thus in these circumstances ZH would have both the title and possession of the suit land. The findings of the High Court are a non-sequitur since even if ZH had title and possession of the suit land at the time of transfer, the purported transfer to the first respondent is null and void. The High Court ought to have upheld the dismissal of the suit on this ground. A plaintiff has to stand on their own legs and the respondent – plaintiff had no valid title or interest in law on the basis of which the suit could have been founded. The respondent-plaintiff had no cause of action to challenge the auction by MDA in favour of the appellant, once the purported transfer was invalid. [Para 38][1058-G; 1059-A-D]

Ritesh Tiwari & Ors. v. State of U.P & Ors. 2011 (84) A.L.R. 292 (SC) – referred to.