2021 Supreme(SC) 429

SUPREME COURT OF INDIA
Dhananjaya Y Chandrachud, M.R. Shah, JJ.
Shri Saurav Jain & Anr. – Appellants
Versus
M/s A. B. P. Design & Anr – Respondents
Civil Appeal No. 4448 of 2021 (Arising out of SLP (C) No. 29868 of 2018)
Decided On : 05-08-2021

IMPORTANT POINTS
(1) Any transfer in contravention of provisions of Section 5(3) of Urban Land (Ceiling and Regulation) Act, 1976 would be null and void.
(2) Cross-objection – It is not necessary that challenge to adverse findings of lower court needs to be made in form of a memorandum of cross-objection – Only when a part of decree has been assailed by respondent, should a memorandum of cross-objection be filed.
(3) Principle stipulated in Order XLI Rule 22 of CPC can be applied to petitions under Article 136 of Constitution because of this Court’s wide powers to do justice under Article 142 of Constitution.

Headnote:

(A) Urban Land (Ceiling and Regulation) Act, 1976 – Section 5 – Claim based on title of land – Any transfer in contravention of provisions of Section 5(3) would be null and void – When case was remanded, transferor could not have transferred suit property, having regard to clear bar which is contained in provisions of Section 5(3) – No transfer of land could have been lawfully made and any such transfer in contravention with provision would be null and void. (Paras 19 and 20)

(B) Civil Procedure Code, 1908 – Order XLI Rule 22(1) – Constitution of India – Article 136 – Cross-objection – It is not necessary that challenge to adverse findings of lower court needs to be made in form of a memorandum of cross-objection – Only when a part of decree has been assailed by respondent, should a memorandum of cross-objection be filed – Otherwise, it is sufficient to raise a challenge to an adverse finding of court of first instance before appellate court without a cross objection – Principle stipulated in Order XLI Rule 22 of CPC can be applied to petitions under Article 136 of Constitution because of this Court’s wide powers to do justice under Article 142 of Constitution – Since principle in Order XLI Rule 22 of CPC furthers cause of justice by providing party other than ‘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. (Paras 25, 27 and 28)

(C) Supreme Court Rules 2013 – Order 21 Rule 3(c) – Special Leave Petition – Scope and ambit – Under Order 21 Rule 3(c) of Supreme Court Rules 2013, SLPs are to be confined to pleadings before court whose order is challenged – However, with leave of Court, additional grounds can be urged at the time of hearing. (Para 29)

(D) Constitution of India – Articles 142 and 136 – Power to do complete justice – Apex Court in view of its plenary jurisdiction under Article 136 of Constitution read with its power to do complete justice under Article 142, can entertain new grounds raised for first time if it involves a question of law which does not require adducing additional evidence, specifically one concerning jurisdiction of court which goes to root of matter. (Para 39(v))

Facts of the case:

Present appeal arises from a judgment dated 22nd February 2018 of the High Court of Judicature at Allahabad in a first appeal1 under Section 96 of the Code of Civil Procedure 1908. On 18 October 2011, the Additional District and Sessions Judge, Moradabad dismissed a suit2 instituted by the first respondent. The High Court allowed the appeal by the first respondent and reversed the judgment of Trial Court, holding that the auction conducted by Moradabad Development Authority (MDA) in respect of the land 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.

Findings of Court:

High Court has 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 Zahid Hussain, would continue to have a valid title. The High Court has 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.

Result : Appeal allowed.