REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8178/2010 (Arising out of S.L.P.(C) NO. 2786/2009)

 Ritesh Tewari & Anr.                                                       .. Appellants  

Versus

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

J U D G M E N T  

Dr. B.S. CHAUHAN, J.

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  

rejected.  

Facts:

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  

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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.  

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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  

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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).

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(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.

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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.

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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  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  

record.  

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  

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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  

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 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  

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(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  

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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  

consideration.   

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  

under:-  

"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   

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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  

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, 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 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.  

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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-à-vis the  

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

5 SCC 629).

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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:

“…….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  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  

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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  

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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  

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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.   

…………………………….J. (P. SATHASIVAM)

……………………..……..J. New Delhi, (Dr. B.S. CHAUHAN) September 21, 2010

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