Holding

The transfer of the suit land was null and void under Section 5(3) of the ULCRA and the civil court lacks jurisdiction to entertain the suit, so the appeal is allowed and the suit dismissed.

Summary

The first respondent claimed to be the transferable owner of a parcel of land and sued to declare the Moradabad Development Authority's (MDA) auction of that land illegal and to restrain dispossession. The trial court dismissed the suit, holding MDA was the lawful owner; the High Court reversed, declaring the auction void and restraining interference. The Supreme Court examined whether the transfer of the land by the erstwhile owner, Zahid Hussain, complied with the Urban Land (Ceiling and Regulation) Act, 1976 (ULCRA) and whether the civil court had jurisdiction to entertain a suit arising from ULCRA proceedings. It held that the transfer violated Section 5(3) of ULCRA because the required statement under Section 6 and notification under Section 10(1) were not made, rendering the transfer null and void, and that ULCRA impliedly excludes civil court jurisdiction over such matters. The Court also clarified that a party may raise a jurisdictional objection before the Supreme Court even if not raised in lower courts, drawing on Order XLI Rule 22 CPC and its plenary powers under Articles 136 and 142. Consequently, the High Court’s judgment was set aside and the suit dismissed.

Issues considered

The validity of the transfer of the suit land by Zahid Hussain under ULCRA provisions, particularly Section 5(3).
Whether the permission granted under Section 27 of ULCRA applied to the suit land or only to retainable land.
The jurisdiction of civil courts to entertain suits arising out of ULCRA ceiling proceedings.
The applicability of Order XLI Rule 22 CPC to raise jurisdictional objections in a Special Leave Petition before the Supreme Court.

Legislation cited

Code of Civil Procedure, 1908s. Order 21 Rule 3(c), s. Order XLI Rule 22
Land Acquisition Act, 1894
Repeal Act, 1999 (Act 15 of 1999)
Urban Land (Ceiling and Regulation) Act, 1976s. 10(1), s. 27, s. 5(3), s. 6, s. 8(4)

Subjects

Urban Land CeilingTransfer of Vacant LandULCRACivil Court JurisdictionOrder XLI Rule 22 CPCSpecial Leave PetitionNull and Void TransferAuction ValidityDeclaratory ReliefInjunction

Judgment

1020 [2021]REPORTS
SUPREME COURT 8 S.C.R. 1020 [2021] 8 S.C.R.

A SHRI SAURAV JAIN & ANR.
v.
M/S A. B. P. DESIGN & ANR.
(Civil Appeal No. 4448 of 2021)
B AUGUST 5, 2021
[DR DHANANJAYA Y CHANDRACHUD AND
M R SHAH, JJ.]
Urban Land (Ceiling and Regulation) Act 1976:
C ss. 5(3), 10(1), 27 – Transfer of vacant land – Validity of –
On facts, first respondent claiming to be a transferable owner and
cultivator of certain lands filed a suit for declaration that the auction
of said lands by the Development Authority was illegal and void;
that the first respondent is the exclusive owner and occupier of the
suit lands; and sought permanent injunction from dispossessing the
D
first respondent – Trial court dismissed the suit holding that the
Development Authority was lawful owner of the land and the auction
was valid – Trial court held that the suit land was of the erstwhile
owner, which was declared surplus and was handed over to the
Development Authority, and whereas the erstwhile owner had
E allegedly sold the land to the first respondent – In appeal, the High
Court set aside the order of the trial court holding that the auction
conducted by the Development Authority in respect of the suit land
is null and void, wherein the appellant was the auction purchaser
of the suit land from the Development Authority; restrained the
appellant and the Development Authority from interfering with the
F
possession of the first respondent over the land – On appeal, held:
Purported transfer of the suit land by erstwhile owner to the first
respondent was before the Repeal Act was enacted – Dual conditions
stipulated u/s. 5(3) were not fulfilled before the transfer was made
since the statement u/s. 6 had not been submitted and the Competent
G Authority had not issued a notification u/s. 10(1) – Thus, even if the
erstwhile owner had the title to the suit land, the transfer to the first
respondent was null and void u/s. 5(3) – Furthermore, when the
erstwhile owner had filed a declaration seeking permission for
transfer of the suit land, the permission u/s. 27 was not granted
since there was a pending suit concerning the said land – He then
H
1020
SHRI SAURAV JAIN & ANR. v. M/S A. B. P. DESIGN & ANR. 1021

filed another application seeking permission to transfer half of his A
‘retainable’ land – Permission that was granted u/s. 27 by the Office
of the Competent Authority was for the transfer of lands from his
‘retainable’ property and not the suit land – Thus, the order of the
High Court is set aside – Suit instituted by the first respondent
dismissed.
B
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 C
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 D
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 E
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 F
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. G
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,
H
1022 SUPREME COURT REPORTS [2021] 8 S.C.R.

A 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.
B
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
C 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 cross-
objection or otherwise, he is not precluded from raising the argument
before this Court – This Court in view of its plenary jurisdiction u/
D 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.
E
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
F 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
G 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
H
SHRI SAURAV JAIN & ANR. v. M/S A. B. P. DESIGN & ANR. 1023

ULCRA was not granted since there was a pending suit A
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
B
‘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.
C
(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 cross- D
objection 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, E
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] F
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 G
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
H
1024 SUPREME COURT REPORTS [2021] 8 S.C.R.

A 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
B
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
C 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
D 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
E 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
F 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
G 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
H
SHRI SAURAV JAIN & ANR. v. M/S A. B. P. DESIGN & ANR. 1025

ULCRA, without impleading either the State of Uttar Pradesh or A
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
B
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 C
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
D
21][1044-C-F]
2.4 Order XLI Rule 22(2) of the CPC states that a “cross-
objection 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 E
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 F
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 cross-
objection to the decree” with a semi colon. Therefore, the two
parts of the sentence must be read disjunctively. Only when a G
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] H
1026 SUPREME COURT REPORTS [2021] 8 S.C.R.

A 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
B 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
C 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 :
D [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 cross-
objection. In the instant case, it is noted that the appellant had
E 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
F 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
G 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]
H
SHRI SAURAV JAIN & ANR. v. M/S A. B. P. DESIGN & ANR. 1027

2.7 With regard to new grounds being raised before this A
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
B
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][1051-
F-G; 1054-B-C]
Bharat Kala Bhandar (P) Ltd. v. Municipal Committee C
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. D
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 E
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 F
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. G
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]

H
1028 SUPREME COURT REPORTS [2021] 8 S.C.R.

A 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.
B 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
C 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
D 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
E 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
F 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.
G Therefore, the jurisdiction of the trial court to entertain the suit
instituted by the first respondent was barred. [Para 37][1057-G-
H; 1058-A-B, G]
T. Arivandandam v. T.V Satyapal (1977) 4 SCC 467 :
[1978] 1 SCR 742; Madanuri Sri Rama Chandra
H
SHRI SAURAV JAIN & ANR. v. M/S A. B. P. DESIGN & ANR. 1029

Murthy v. Syed Jala (2017) 13 SCC 174 : [2017] 5 A
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
B
– 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 ULCRA- C
including 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 D
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 E
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. F

Case Law Reference
2011 (84) A.L.R. 292 (SC) referred to Para 11 (ix)
[2003] 2 SCR 22 referred to Para 23
G
[2007] 1 SCR 843 referred to Para 24
[1965] 1 SCR 712 referred to Para 26
[1955] 1 SCR 509 referred to Para 26
[2004] 1 SCR 483 referred to Para 26
H
1030 SUPREME COURT REPORTS [2021] 8 S.C.R.

A [1965] 3 SCR 499 relied on Para 30
[1990] 3 SCR 825 relied on Para 30
[1974] 1 SCR 290 relied on Para 31
[1995] 1 Suppl. SCR 542 relied on Para 32
B [1964] 8 SCR 133 relied on Para 33
[2019] 4 SCR 331 referred to Para 35
[1968] 3 SCR 662 referred to Para 35
[1978] 1 SCR 742 relied on Para 37
C
[2017] 5 SCR 294 relied on Para 37
[2004] 1 SCR 1004 relied on Para 37
[2019] 4 SCR 1069 relied on Para 37
(2020) 13 SCC 143 relied on Para 37
D
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4448
of 2021.
From the Judgment and Order dated 22.02.2018 of the High Court
of Judicature at Allahabad in First Appeal No.411 of 2011.
E Venkita Subramoniam T.R., Arvind Mohan, Rahat Bansal, Likhi
Chand Bonsle, Advs. for the Appellants.
Manoj Swarup, Sr. Adv., Jawad Tarikh, Mrigank Prabhakar,
Rakesh Uttamchandra Upadhyay, Advs. for the Respondents.
The Judgment of the Court was delivered by
F
DR JUSTICE DHANANJAYA Y CHANDRACHUD, J.
1. This appeal arises from a judgment dated 22 February 2018 of
the High Court of Judicature at Allahabad in a first appeal 1 under Section
96 of the Code of Civil Procedure 1908 (“CPC”). On 18 October 2011,
G the Additional District and Sessions Judge, Moradabad dismissed a suit 2
instituted by the first respondent. The High Court allowed the appeal by
the first respondent and reversed the judgment of the Trial Court,holding
that the auction conducted by Moradabad Development Authority
1
First Appeal No. 411 of 2011.
2
H Original Suit No.602 of 2008.
SHRI SAURAV JAIN & ANR. v. M/S A. B. P. DESIGN & ANR. 1031
[DR JUSTICE DHANANJAYA Y CHANDRACHUD, J.]

(“MDA”) in respect of the land in dispute is null and void. The appellant A
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 B
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 wasimpleaded as the first C
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 Hussainhad 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 D
the lands comprised in Gata No.200 admeasuring 1295.04 sq. mts. By
an order dated 16 March 1988, the land comprised in Gata No. 200,among
other pieces of land, was declared as “surplus” by the Competent
Authority under the Urban Land (Ceiling and Regulation) Act 1976
(“ULCRA”). Pursuant to the orderof the Competent Authority, E
possession of the land in Gata No. 200 was allegedly handed over by the
State of Uttar Pradesh to the MDA. Meanwhile,Zahid Hussain filed a
revenue appeal3 before the District Judge, Moradabad against the order
dated 16 March 1988. By an order dated 6 January 1993, the District
Judge allowed the appeal and remanded the proceedings for re-
consideration to the Competent Authority on the basis of an amended F
Master Plan.
3. It is the case of the plaintiff that Zahid Hussain was the erstwhile
owner and occupier of lands comprised in Gata No.200 admeasuring
0.32 acres. Out of the above holding, land admeasuring 0.05 acres
(equivalent to 0.0200 hectares or 200 sq. mt.) was acquired by MDA on G
30 January 1986 under the provisions of the Land Acquisition Act, 1894.
After the acquisition, Gata No.200 was divided into two plots:

3
Revenue Appeal No. 23 of 1988.
H
1032 SUPREME COURT REPORTS [2021] 8 S.C.R.

A • Gata No.200/1 measuring 0.1300 hectares (1300 sq. mt.)
• Gata No.200/2 measuring 0.2000 hectares (200 sq. mt.)
Zahid Hussain is stated to have become the owner of Gata No.200/
1, while MDA became the owner of Gata No.200/2. The case of the
plaintiff in the suit is that after the ceiling case was remanded to the
B Competent Authority and during its pendency, Zahid Hussain obtained
permission to sell the lands situated in Gata No. 200/1 to the first
respondent from the Office of the Prescribed Authority, Urban Land
Ceiling, Moradabad on 5 May 1993. The first respondent claims to have
purchased Gata No. 200/1 admeasuring 1295.04 sq. mt. from Zahid
C Hussain by a registered sale deed dated 22 June 1993. During the
pendency of the ceiling case before the Competent Authority, ULCRA
was repealed by Act 15 of 1999 (“Repeal Act”). The Competent
Authority (City Land Boundary), Moradabad passed an order dated 15
June 2001 dismissing CaseNo. 437/5325 in view of Section 4 of the
Repeal Act which states that proceedings pending before any court,
D tribunal, or authority shall stand abated.
4. In this manner, it was alleged that the eclipse of ceiling over
Gata No.200/1 measuring 1295.04 sq. mt. was lifted. The plaintiff – first
respondent claimed to be the owner of the entire areaof 1295.04 sq.
mt., while MDA was entitled to ownership rights over Gata No. 200/2 in
E 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
F petitionagainst the State of Uttar Pradesh and MDA before the High
Courtchallenging 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
G 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
H
SHRI SAURAV JAIN & ANR. v. M/S A. B. P. DESIGN & ANR. 1033
[DR JUSTICE DHANANJAYA Y CHANDRACHUD, J.]

the sale deed executed by Zahid Hussain in favour of the first respondent A
on 22 June 1993.In the suit, as it was originally instituted, the reliefs
sought were:
(i) A declaration that the auction of land to the extent of 400 sq.
mt.by MDA is illegal and void;
(ii) A permanent injunction restraining MDA from alienating the B
suit land in favour of the appellant and from dispossessing the
first respondent. The particulars of the suit land as indicated
in the plaint were as follows:
“PARTICULARS OF SUIT LANDS
C
Lands measuring 400 Sq. Mt. of Gata no.200/1 a part of
erstwhile integrated Gata no.200 situated in VillageSonakpur,
City and District Moradabad.”
The plaint was amended to seek:
(i) A declaration that the auction of lands measuring 660.32 sq. D
mt. by MDA was illegal and void;
(ii) A declaration that the first respondent isthe exclusive owner
and occupier of the suit lands detailed in schedule (B) including
the suit lands in schedule A; and
(iii) A permanent injunction from dispossessing the first E
respondent.
7. Shri Sai Siddhi Developers was impleaded as the third defendant
to the suit. The amended plaint set up the pleathat before the lands were
transferred in favour of the first respondent by Zahid Hussain, the latter
had obtained permission of the Competent Authority, Moradabad on 5 F
May 1993. Schedule (A) and Schedule (B) of the amended plaint are
extracted below:
“SCHEDULE ‘A’ OF SUIT LANDS
Lands measuring 660.32 Sq. Mt. of Gata no.200/1 apart of G
erstwhile integrated Gata no.200 situated inVillage Sonakpur, City
and District Moradabad which isshown in the enclosed site plan
with alphabets BCDE.
The boundaries of the above gata are as under –
H
1034 SUPREME COURT REPORTS [2021] 8 S.C.R.

A East: Police Post
West: 12 Mt. wide road.
North: Kaanth Road.
South: Commercial Plot no.7 (Property of the Plaintiff).
B SCHEDULE ‘B’ OF THE SUIT LANDS
Lands measuring 1295.04 Sq. Mt. of Gata no.200/1 a part of
erstwhile integrated Gata no.200 situated inVillage Sonakpur, City
and District Moradabad which isshown in enclosed site plan with
alphabets ABCDEF.
C
The boundaries of the above gata are as under -
East: Police Post and thereafter plot ofHaji Qayum
West: 12 Mt. wide road.
North: Kaanth Road.
D
South: Plot and lands of Praan Singh.”
8. MDA filed a written 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
E to be surplus, and was transferred by the Naib Tehsildar,
Sadar, Moradabad and Collector, Moradabad to theMDA
on 31 July 1992. MDA has been in possession of the suit
land in Gata No. 200/1since then till it was sold through
auction;
F (ii) A registered sale deed of 660.32 sq. mt. was executed on
20 March 2009;
(iii) The ceiling proceedings against Zahid Hussain
wereconcluded and thus, he is not entitled to avail of the
benefit under the Repeal Act;
G (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
H MDA on 31 July 1992 is invalid; and
SHRI SAURAV JAIN & ANR. v. M/S A. B. P. DESIGN & ANR. 1035
[DR JUSTICE DHANANJAYA Y CHANDRACHUD, J.]

(vi) The State of Uttar Pradesh and the Ceiling Authority were A
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 suit land had vested in the State Government
under Section 10(3) of the ULCRA; B

(ii) The sale deed dated 22 June 1993 by Zahid Hussain in
favour of the first respondent was void since he could not
have entered into any transaction when the land was under
adjudication by the Competent Authority, Urban Land
Ceiling; C

(iii) The land was alleged to have been transferred on 31 July
1992 to MDA and any sale deed executed allegedly to the
first respondent-plaintiff on 22 June 1993 would confer no
title on the purchaser;
D
(iv) Therevenue appeal before the District Judge against the
order of the Competent Authority could not have been
disposed of without impleading MDA;
(v) Since MDA was in possession of the land before the
enforcement of the Repeal Act(pursuant to the
E
communication dated 31 July 1992 of the Competent
Authority, Urban Land Ceiling),the repeal would be of no
consequence; and
(vi) The plaintiff – first respondent had no concern with the
auction of the land admeasuring 660.32 sq. mt. by MDA
F
for which a consideration of Rs.65.75 lacs hadbeen paid in
auction.
10. The following issues were framed in the suit:
“1. Whether Plaintiff is the owner and occupierof the Suit lands?
2. Whether auction proceedings initiated bydefendant no.1 in G
favour of defendant no.2 on 12.9.2008 to the extent of disputed
schedule admeasuring 660.32 Sq. Mt., are illegal and void?
3. Whether Suit has been undervalued?
4. Whether deficit court-fee has been paid?
H
1036 SUPREME COURT REPORTS [2021] 8 S.C.R.

A 5. Whether Suit of plaintiff is bad formisjoinder of necessary
parties?
6. Whether this Court doesn’t have anyjurisdiction to hear this
Suit?
7. Whether any cause of action has arisen infavour of Plaintiff?
B
8. Relief.”
11. By its judgment dated 18 October 2011, the Trial Court held
that it had the jurisdiction to grant declaratory and injunctive relief and
that the suit was therefore maintainable.The Trial Court dismissed the
C suit holding that the MDA was the lawful owner of the land and the
auction held on 12 September 2008 was valid. The Trial Judge made the
following findings:
(i) Zahid Hussain was the erstwhile owner of Gata No.200
admeasuring 1295.04 sq. mt. situated in village Sonakpur,
D District Moradabad;
(ii) By an order dated 16 March 1988 passed by the Competent
Authority 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;
E
(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
F 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 landhad been handed over to the
MDAwas not brought to the notice of the court.In any event,
G the case wasremanded 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
H the aforesaid land in Gata No.200;
SHRI SAURAV JAIN & ANR. v. M/S A. B. P. DESIGN & ANR. 1037
[DR JUSTICE DHANANJAYA Y CHANDRACHUD, J.]

(v) Zahid Hussain who is alleged to have sold the land to the A
first respondent – plaintiff had not come forth before the
court nor was the original sale deed dated 22 June 1993
alleged to be executed by him filed in court. Only a certified
copy of the sale deed was filed;
(vi) MDA to whom the lands were handed over on 31 July 1992 B
was not a party to the revenue appeal before the District
Judge nor had the Competent Authority in its order dated
15 June 2001, abating the proceedings in the ceiling case,
directed that ‘possession’ should be restored to Zahid
Hussain;
C
(vii) Possession had already been transferred to MDA on 31
July 1992 and the acquisition would not be affected by the
Repeal Act since the land had vested under Section 10(3)
of the ULCRA, and possession had been taken over by a
person duly authorised by the State Government (Section
3(1)(a) of the Repeal Act); D

(viii) According to the first respondent, Zahid Hussain had
obtained permission on 5 May 1993 to sell the lands
admeasuring 1295.04 sq. mt. of Gata No. 200/1. The entire
proceedings appear to be fabricated because Zahid Hussain
was no longer the owner of 1295.04 sq. mt of Gata No. E
200/1.The possession of Gata No.200had been transferred
to MDA on 31 July 1992. Moreover, the permission which
was granted to Zahid Hussain on 5 May 1993 to sell the
lands was not in respect of land which had been declared
as surplus but only in respect of his own retainable lands F
admeasuring 2000 sq. mt., which did not include the land in
Gata No. 200/1; and
(ix) Since an order had already been passed under Section 8(4)
of the ULCRA with respect to the suit lands, Zahid Hussain
did not have any right to transfer the land (in accordance G
with the law laid down by this Court in Ritesh Tiwari &
Ors. v. State of U.P & Ors.4).

4
2011 (84) A.L.R. 292 (SC). H
1038 SUPREME COURT REPORTS [2021] 8 S.C.R.

A 12. The High Court by its judgment dated 22 February 2018
reversed the judgment and decree of the Trial Court. The Division Bench
of the High Court while allowing the appeal observed that:
(i) Against the order of the Competent Authority dated 16
March 1988, the District Judge, Moradabad allowed the
B appeal on 6 January 1993 and the Competent Authority was
directed to decide the matter afresh after taking into
consideration the amended Master Plan;
(ii) In the meantime, a notification had been issued on 27
September 1988 under Section 10(1) of ULCLRAvesting
C surplus land in the State including 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
D 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
E “paper possession” and not “actual physical possession”
under Section 10(5)5 or 10(6) of the ULCRA6. For “actual
possession” to have been taken, possession should have
been taken by drawing a panchnama;

F 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
G the service of the notice”.
6
“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 to any person duly authorised by such State Government in this behalf
H and may for that purpose use such force as may be necessary”.
SHRI SAURAV JAIN & ANR. v. M/S A. B. P. DESIGN & ANR. 1039
[DR JUSTICE DHANANJAYA Y CHANDRACHUD, J.]

(vi) Since an appeal against the order dated 6 March 1988 was A
allowed on 6 January 1993 remanding the case to the
Competent Authority, the order declaring the land as surplus
would not remain in existence. Thus, no question of a valid
vesting of title in the State or of it taking possession would
arise. The subsequent proceedings would become nulland
B
void and the land would continue to belong to Zahid Hussain;
(vii) After the issuance of a notification under Section 10(1) on
27 September 1988, no other notification was published
under Section 10(3) of the ULCRA. Hence, the issue
ofdeemed physical possession of the land and its vesting in
the State Government would not arise. Even otherwise, the C
Repeal Act only saves those proceedings where actual
possession under Section 10(5)(peaceful or voluntary) or
Section 10(6) (forcible possession) has been taken, and it
does not apply to deemed possession;
(viii) In the written statement filed by MDA, there was no D
reference to actual possession being taken apart from the
letter of possession dated 31 July 1992, which was only a
paper transaction. Even this letter is not a memo of
possession transferring possession to MDA;
(ix) In the absence of physical taking over of possession and of E
the handing overof possession to MDA on the enforcement
of the Repeal Act, the land comprised in Gata No.200
admeasuring 1295.04 sq. mt. remained the property of Zahid
Hussain; and
(x) The fact that proceedings for possession under Section 10(5) F
had not been undertaken was adverted to in the order of
Competent Authority dated 15 June 2001.
Submissions
13. Mr Venkita Subramoniam T.R., learned Counsel appearing on
G
behalf of the appellant submitted that the judgment of the High Court is
erroneous for the following reasons:
(i) The jurisdiction of the civil court to entertain the suit was
barred since a fair reading of the plaint would make it
evident that the object and purpose of the suit was to impugn
H
1040 SUPREME COURT REPORTS [2021] 8 S.C.R.

A the validity of the proceedings under the ULCRA without
impleading either the State of Uttar Pradesh or the
Competent Authority under the ULCRA;
(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
B 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
C 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.

D 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
E
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
F
Authority for reconsideration of the matter on the basis of
the amended Master Plan, and there is no evidence in regard
to any further proceedings prior to the enactment of the
Repeal Act;
(iii) The frame of the suit was proper because the cause of
G action arose due to the advertisement which was issued
on31 August 2008 by MDA for the auction of 660 sq. mt of
land, which included a portion of the suit land in Gata No.
200/1. The suit in other words had nothing to do with the
ceiling proceedings;
H
SHRI SAURAV JAIN & ANR. v. M/S A. B. P. DESIGN & ANR. 1041
[DR JUSTICE DHANANJAYA Y CHANDRACHUD, J.]

(iv) The cornerstone of the case of the appellant is the A
possession letter dated 31 July 1992 which is in the nature
of an inter-departmental communication. In the absence of
a panchnama with independent witnesses, it is not possible
to hold that actual physical possession was taken over;
(v) Even if the document evidencing possession dated 31 July B
1992 is considered to be valid, subsequently in 1993 there
was a remand by the District Judge as a consequence of
which there would be no vesting in the State prior to the
date of the repeal; and
(vi) After the issuance of a notification under Section 10(1) on C
27 September 1988, there is no evidence of any further
steps having been taken to take possession before the
Repeal Act came into force.
Analysis
15. The rival submissions shall now be considered. D
16. At the outset, it needs to be noted that the first respondent
claims title on the basis of a registered sale deed dated 22 June 1993
under which Zahid Hussain purportedly conveyed an area admeasuring
1295.04 sq. mt. in Gata No.200/1 for a consideration of Rs. 5 lacs. The
sale deed refers to the permission sought for the sale of the property E
under Section 27 of the ULCRA on 29 March 1993, which was allegedly
granted by an order dated 5 May 1993.
17. The declaration filed by Zahid Hussain before the Office of
the Prescribed Authority, Urban Land Ceiling, Moradabad adverts to
the total extent of the land as 1295.04 sq. mt. However, there is no F
reference to the survey number (or gata number) of the lands in respect
of which permission was sought. Further, the order dated 5 May 1993,
which allegedly grants permission for sale of the land to the first
respondent, notes that a declaration dated 29 March 1993 was made for
transfer of the land situated at Sonakpur, bearing Gata No. 200, with an
G
area of 1295.04 sq. mts. However, the permission for transfer 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 H
1042 SUPREME COURT REPORTS [2021] 8 S.C.R.

A 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
B
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
C 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 before the commencement of this Act
shall transfer any such land or part thereof by way of sale,
mortgage, gift, lease or otherwise until he has furnished a statement
under section 6 and a notification regarding the excess vacant
D land held by him has been published under sub-section (1) of section
10; and any such transfer made in contravention of this provision
shall be deemed to be null and void”.
Section 27(1) further provides:

E “(1) Notwithstanding anything contained in any other law for the
time being in force, but subject to the provisions of sub-section (3)
of section 5 and sub-section (4) of section 10, no person shall
transfer by way of sale, mortgage, gift, lease for a period exceeding
ten years, or otherwise, any urban or urbanisable land with a building
(whether constructed before or after the commencement of this
F Act) or a portion only of such building for a period of ten years of
such commencement or from the date on which the building is
constructed, whichever is later, except with the previous
permission in writing of the competent authority.”
19. Section 5(3) states that a person holding land in excess of the
G ceiling limit before the commencement of the Act shall not transfer the
land until (a) the land owner has furnished a statement under Section 6 7;
7
“6. (1) Every person holding vacant land in excess of the ceiling limit at the
commencement of this Act shall, within such period as may be prescribed, file a statement
before the competent authority having jurisdiction specifying the location, extent,
value and such other particulars as may be prescribed of all vacant lands and of any
H
SHRI SAURAV JAIN & ANR. v. M/S A. B. P. DESIGN & ANR. 1043
[DR JUSTICE DHANANJAYA Y CHANDRACHUD, J.]

and (b) the Competent Authority has published the notification pertaining A
to the excess land under Section 10(1)8. 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
B
September 1988. However, once the order was set aside by the District
Judge and the case wasremanded 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 C
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
D
by Zahid Hussain and was liable to fail on this ground alone.
20. 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 Zahid
Hussain 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 Zahid Hussain. The High E
Court has not adverted to this finding of fact at all nor has itfound any
other land on which there is a building, whether or not with a dwelling unit therein, held
by him (including the nature of his right, title or interest therein) and also specifying the
vacant lands within the ceiling limit which he desires to retain[..]
(2)[…]
(a)[…]
F
(b) in any State which adopts this Act under clause (1) of article 252 of the Constitution,
any person holds at the commencement of this Act, vacant land in excess of the ceiling
limit, then, notwithstanding anything contained in sub-section (1), it may serve a notice
upon such person requiring him to file, within such period as may be specified in the
notice, the statement referred to in sub-section (1)”.
8 “10. (1) As soon as may be after the service of the statement under section 9 on the
G
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”. H
1044 SUPREME COURT REPORTS [2021] 8 S.C.R.

A substantive basis to displace the finding. That apart, it is evident, that the
order of the Competent Authority dated 16 March 1988 was set asidein
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, Zahid Hussain
could not have transferred the suit property, having regard to the clear
B
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.
21. Apart from the above findings which negate the basis and
foundation of the suit, the appellant-defendant has also raised an objection
C to the jurisdiction of the Trial Court to entertain the present suit, given
the bar on jurisdiction under the ULCRA. The appellant has 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
D Uttar Pradesh or the Competent Authority under the ULCRA. At the
outset, we note 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
E 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
F 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:
G “(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 ought to have been in his favour; and may also take any
cross-objection] to the decree which he could have taken by way
H of appeal provided he has filed such objection in the Appellant
SHRI SAURAV JAIN & ANR. v. M/S A. B. P. DESIGN & ANR. 1045
[DR JUSTICE DHANANJAYA Y CHANDRACHUD, J.]

Court within one month from the date of service on him or his A
pleader of notice of the day fixed for hearing the appeal, or within
such further time as the Appellate Court may see fit to allow.
[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 B
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.]”
Order XLI Rule 22 CPC was amended by the CPC Amendment C
(Act 104 of 1976), with effect from 1 February 1977. The text of the
pre-amendment and post-amendment provision is reproduced below:
Order XLI Rule 22 prior to its amendment Order XLI Rule 22 as amended by Act 104 of
1976
R.22. Upon hearing, respondent may object to R.22. Upon hearing, respondent way object to
decree as if he had preferred a separate appeal- decree as If he had preferred a separate appeal-
D
(1) Any respondent, though he may not have
appealed from any part of the decree, may not (1) Any respondent, though he may not have
only support the decree on any of the grounds appealed from any part of the decree, may not only
decided against him in the Court below, but take support the decree [but may also state that the
any cross-objection to the decree which he could finding against him in the Court below in respect
have taken by way of appeal, provided he has of any issue ought to have been in his favour;
filed such objection in the Appellate Court and may also take any cross-objection] to the
within one month from the date of service on decree which he could have taken by way of appeal
him or his pleader of notice of the day fixed for provi ded he has filed such objection in the E
hearing the appeal, or within such further time Appellant Court within one month from the date of
as the Appellate Court may see fit to allow. service on hi m or his pleader of notice of the day
fixed for hearing the appeal, or within such further
time as the Appellate Court may see fit to allow.

[Explanation. – A respondent aggrieved by a
finding of the Court in the judgment on which the
decree appealed against is based may, under this
rul e, fil e cross-objection in respect of the decree in F
so far as it is based on t hat 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 & G
Ors. v. Ram Phal9, 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
9
(2003) 9 SCC 606. H
1046 SUPREME COURT REPORTS [2021] 8 S.C.R.

A 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.
B (ii) The decree is entirely in favour of the respondent though
an issue has been decided against the respondent.
(iii) The decree is entirely in favour of the respondent and all
the issues have also been answered in favour of the respondent
but there is a finding in the judgment which goes against the
C respondent.
11. In the type of case (i) it was necessary for the respondent to
file an appeal or take cross-objection against that part of the decree
which is against him if he seeks to get rid of the same though that
part of the decree which is in his favour he is entitled to support
without taking any cross-objection. The law remains so post-
D
amendment too. In the type of cases (ii) and (iii) pre-amendment
CPC did not entitle nor permit the respondent to take any cross-
objection as he was not the person aggrieved by the decree. Under
the amended CPC, read in the light of the explanation,
though it is still not necessary for the respondent to take
E any cross-objection laying challenge to any finding adverse
to him as the decree is entirely in his favour and he may
support the decree without cross-objection; the amendment
made in the text of sub-rule (1), read with the explanation
newly inserted, gives him a right to take cross-objection to
a finding recorded against him either while answering an
F
issue or while dealing with an issue. The advantage of
preferring such cross-objection is spelled out by sub-rule (4). In
spite of the original appeal having been withdrawn or dismissed
for default the cross-objection taken to any finding by the
respondent shall still be available to be adjudicated upon on merits
G which remedy was not available to the respondent under the
unamended CPC. In the pre-amendment era, the withdrawal or
dismissal for default of the original appeal disabled the respondent
to question the correctness or otherwise of any finding recorded
against the respondent.”
H (emphasis supplied)
SHRI SAURAV JAIN & ANR. v. M/S A. B. P. DESIGN & ANR. 1047
[DR JUSTICE DHANANJAYA Y CHANDRACHUD, J.]

24. Order XLI Rule 22(2) of the CPC states that a “cross-objection A
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.” This Court in S. Nazeer Ahmed v. State
Bank of Mysore10 elaborated on the form of objections made under
Order XLI Rule 22 CPC. In Nazeer Ahmed (supra), the respondent
B
had filed a suit for enforcement of an equitable mortgage. In deciding
the suit, the Trial Court rejected the argument of the appellant-defendant
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 C
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
D
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 E
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 the suit was not barred
by Order 2 Rule 2 of the Code. The respondent in an appeal is
entitled to support the decree of the trial court even by F
challenging any of the findings that might have been
rendered by the trial court against himself. For supporting
the decree passed by the trial court, it is not necessary for
a respondent in the appeal, to file a memorandum of cross-
objections challenging a particular finding that is rendered
by the trial court against him when the ultimate decree itself G
is in his favour. A memorandum of cross-objections is
needed only if the respondent claims any relief which had
been negatived to him by the trial court and in addition to

10
(2007) 11 SCC 75. H
1048 SUPREME COURT REPORTS [2021] 8 S.C.R.

A what he has already been given by the decree under
challenge. We have therefore no hesitation in accepting the
submission of the learned counsel for the appellant that
the High Court was in error in proceeding on the basis that
the appellant not having filed a memorandum of cross-
objections, was not entitled to canvas the correctness of
B
the finding on the bar of Order 2 Rule 2 rendered by the
trial court.”
(emphasis supplied)
25. It is apparent from the amended provisions of Order XLI
C Rule 22 CPC and the above authorities 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
D 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 cross-objection 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
E 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.
26. The applicability of the principle in Order XLI Rule 22 CPC to
F proceedings before this Court under Article 136 of the Constitution was
considered by a Constitution Bench in the decision in Ramanbhai
Ashabhai Patel v. Dabhi Ajitkumar Fulsinji11. Justice JR Mudholkar
overruled the judgment of the three judge bench in Vashist Narain
Sharma v. Dev Chandra12 which had rejected the argument of the
respondent that a party could raise arguments on the ‘findings’ that were
G 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
11
AIR 1965 SC 669.
H 12
(1955) 1 SCR 509.
SHRI SAURAV JAIN & ANR. v. M/S A. B. P. DESIGN & ANR. 1049
[DR JUSTICE DHANANJAYA Y CHANDRACHUD, J.]

Supreme Court and the rules of the Supreme Court do not provide for A
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 B
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 like the Code of Civil Procedure
and adopting such of those provisions as are suitable.We C
cannot lose sight of the fact that normally a party in whose
favour the judgment appealed from has been given will not
be granted special leave to appeal from it. Considerations
of justice, therefore, require that this Court should in
appropriate cases permit a party placed in such a position D
to support the judgment in his favour even upon grounds
which were negatived in that judgment. […]”
(emphasis supplied)
Expanding on this further, a two judge Bench (Justice R.C Lahoti
speaking for himself and Justice Brijesh Kumar) of this Court in Jamshed E
Hormusji Wadia v. Port of Mumbai13, observed:
“35. A few decisions were brought to the notice of this Court by
the learned Additional Solicitor General wherein this Court has
made a reference to Order 41 Rule 22 CPC and permitted the
respondent to support the decree or decision under appeal by laying F
challenge to a finding recorded or issue decided against him though
the order, judgment or decree was in the end in his favour.
Illustratively, see Ramanbhai Ashabhai Patel [Ramanbhai
Ashabhai Patel v. Dabhi Ajitkumar Fulsinji, AIR 1965 SC 669]
, Northern Railway Coop. Credit Society Ltd. [Northern G
Railway Coop. Credit Society Ltd. v. Industrial Tribunal, AIR
1967 SC 1182] and Bharat Kala Bhandar (P) Ltd. [Bharat Kala
Bhandar (P) Ltd. v. Municipal Committee, Dhamangaon, AIR
1966 SC 249] The learned Additional Solicitor General is right.
13
(2004) 3 SCC 214. H
1050 SUPREME COURT REPORTS [2021] 8 S.C.R.

A But we would like to clarify that this is done not because Order
41 Rule 22 CPC is applicable to appeals preferred under Article
136 of the Constitution; it is because of a basic principle of justice
applicable to courts of superior jurisdiction. A person who has
entirely succeeded before a court or tribunal below cannot file an
appeal solely for the sake of clearing himself from the effect of
B
an adverse finding or an adverse decision on one of the issues as
he would not be a person falling within the meaning of the words
‘person aggrieved’. In an appeal or revision, as a matter of general
principle, the party who has an order in his favour, is entitled to
show that even if the order was liable to be set aside on the grounds
C decided in his favour, yet the order could be sustained by reversing
the finding on some other ground which was decided against him
in the court below. 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
D
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
E 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
F
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
G deducible therefrom. However, still, in spite of the wide
jurisdiction being available, this Court would not ordinarily make
an order, direction or decree placing the party appealing to it in a
position more disadvantageous than in what it would have been
had it not appealed.”
H (emphasis supplied)
SHRI SAURAV JAIN & ANR. v. M/S A. B. P. DESIGN & ANR. 1051
[DR JUSTICE DHANANJAYA Y CHANDRACHUD, J.]

27. On a perusal of the above authorities, it is evident that the A
principle stipulated in Order XLI Rule 22 of 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
B
any adverse findings against them, this Court can draw colour from
Order XLI Rule 22 CPC and permit objections to findings.
28. 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 cross-objection. In the present
case, we note that the appellant had raised an objection to the jurisdiction C
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 D
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 us is that the ground of jurisdiction was only
raised by the appellant before the Trial Court and not before the High E
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 us.
29. With regard to new grounds being raised before this Court in
a special leave petition under Article 136, we note that under Order 21 F
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.
30. This Court in Bharat Kala Bhandar (P) Ltd. v. Municipal G
Committee14 dealt with a civil appeal where a contention had not been
raised in the suit or in the grounds of appealbefore the High Court, and
was advanced before this Court for the first time. Although the Court

14
AIR 1966 SC 249. H
1052 SUPREME COURT REPORTS [2021] 8 S.C.R.

A 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
Bombay15, 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
B
Article 136 of the Constitution.
31. In Chandrika Misir v. Bhaiya Lal16, 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
C suit was barred by limitation, Justice DG Palekar, speaking for a two
Judge bench, observed that the civil court did not have jurisdiction to
entertain the suit at all. Although the plea of bar on jurisdiction had not
been raised in the courts below, the Court held that:
“6. It is from this order that the present appeal has been filed by
D special leave. It is to be noticed that the suit had been filed in a
civil court for possession and the Limitation Act will be the Act
which will govern such a suit. It is not the case that U.P. Act 1 of
1951 authorises the filing of the suit in a civil court and prescribes
a period of limitation for granting the relief of possession
E superseding the one prescribed by the Limitation Act. It was,
therefore, perfectly arguable that if the suit is one properly
entertainable by the civil court the period of limitation must be
governed by the provisions of the Limitation Act and no other. In
that case there would have been no alternative but to pass a decree
for possession in favour of the plaintiffs. But the unfortunate
F part of the whole case is that the civil court had no
jurisdiction at all to entertain the suit. It is true that such a
contention with regard to the jurisdiction had not been
raised by the defendant in the trial court but where the court
is inherently lacking in jurisdiction the plea may be raised
G at any stage, and, it is conceded by Mr Yogeshwar Prasad,
even in execution proceedings on the ground that the
decree was a nullity. If one reads Sections 209 and 331 of the
U.P. Act 1 of 1951 together one finds that a suit like the one
15
(1991) 1 SCC 761.
16
H (1973) 2 SCC 474.
SHRI SAURAV JAIN & ANR. v. M/S A. B. P. DESIGN & ANR. 1053
[DR JUSTICE DHANANJAYA Y CHANDRACHUD, J.]

before us has to be filed before a Special Court created under the A
Act within a period of limitation specially prescribed under the
rules made under the Act and the jurisdiction of the ordinary civil
court is absolutely barred.”
(emphasis supplied)
32. In Most Rev. P.M.A. Metropolitan v. Moran Mar B
Marthoma17 as well, a three Judge bench of this Court entertained an
objection as to maintainability of the suit under Section 9 of the CPC,
despite the plea not having been raised before the courts below. The
Court observed that the plea of a bar or lack of jurisdiction can be
entertained at any stage, since an order or decree passed without C
jurisdiction is non-est in law.
33. The position of law has been consistently applied even in
criminal proceedings under Article 136 of the Constitution. In Masalti
v. State of Uttar Pradesh18, the confirmation of the death sentence of
a number of accused persons by the High Court was under challenge D
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 E
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 F
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 G
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 that the pleas were actually urged

17
1995 Supp (4) SCC 286
18
AIR 1965 SC 202 H
1054 SUPREME COURT REPORTS [2021] 8 S.C.R.

A before the High Court and had not been considered by it, then, of
course, the party is entitled as a matter of right to obtain a decision
on those pleas from this Court. But even otherwise no hard and
fast rule can be laid down prohibiting such pleas being raised in
appeals under Article 136.”
B (emphasis supplied)
34. Based on the position of law, we find it just to allow the appellant
to raise the ground of jurisdiction before us. 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. We shall
C now turn to the merits of this argument.
35. The pleadings in the suit indicate that the case of the first
respondent was that:
(i) Zahid Hussain had obtained the permission of the Competent
Authority on 5 May 1993 before transferring the lands in
D favour of the first respondent on 22 June 1993;
(ii) 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
E 1993 and the proceedings had been remanded;
(iii) As a result of the Repeal Act, proceedings under ULCRA
stood abated; and
(iv) 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
F
200sq. 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.The maintainability of such a suit has been considered in a
G judgment of two learned Judges of this Court in Competent Authority,
Calcutta, Under the Urban Land (Ceiling and Regulation) Act,
1976 v. David Mantosh19. In David Montosh, the Bench consisting
of Justice Abhay Manohar Sapre and Justice Indu Malhotra considered

19
H (2020) 12 SCC 542.
SHRI SAURAV JAIN & ANR. v. M/S A. B. P. DESIGN & ANR. 1055
[DR JUSTICE DHANANJAYA Y CHANDRACHUD, J.]

whether the jurisdiction of the civil court was expressly or impliedly A
excluded by the ULCRA in relation to matters arising out of the Act.
The Bench referred to the tests laid down in the Constitution Bench
decision of Dhulabhai v. State of M.P 20 and held:
“45. Hidayatullah, J., the then learned Chief Justice, speaking for
the Bench in his inimitable style, laid down 7 tests for examining B
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 C
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.
D
(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 E
intendment becomes necessary and the result of the inquiry may
be decisive. In the latter case it is necessary to see if the statute
creates a special right or a liability and provides for the
determination of the right or liability and further lays down that all
questions about the said right and liability shall be determined by F
the tribunals so constituted, and whether remedies normally
associated with actions in civil courts are prescribed by the said
statute or not.
(3) Challenge to the provisions of the particular Act as ultra vires
cannot be brought before Tribunals constituted under that Act. G
Even the High Court cannot go into that question on a revision or
reference from the decision of the Tribunals.
(4) When a provision is already declared unconstitutional or the
constitutionality of any provision is to be challenged, a suit is open.
20
AIR 1969 SC 78. H
1056 SUPREME COURT REPORTS [2021] 8 S.C.R.

A A writ of certiorari may include a direction for refund if the claim
is clearly within the time prescribed by the Limitation Act but it is
not a compulsory remedy to replace a suit.
(5) Where the particular Act contains no machinery for refund of
tax collected in excess of constitutional limits or illegally collected,
B a suit lies.
(6) Questions of the correctness of the assessment apart from its
constitutionality are for the decision of the authorities and a civil
suit does not lie if the orders of the authorities are declared to be
final or there is an express prohibition in the particular Act. In
C either case, the scheme of the particular Act must be examined
because it is a relevant enquiry.
(7) An exclusion of the jurisdiction of the civil court is not readily
to be inferred unless the conditions above set down apply.”
[…]
D
47. Having examined the issue, we are clearly of the opinion
that the present case falls under clause (1) of para 32
of Dhulabhai [Dhulabhai v. State of M.P., AIR 1969 SC 78]
and satisfies the test laid down therein. Hence, the
jurisdiction of the civil court is held to be excluded by
E implication to try the civil suit in question. This we say for
the following reasons:
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
F
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).
G
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
H jurisdiction of the civil court in relation to all the issues
SHRI SAURAV JAIN & ANR. v. M/S A. B. P. DESIGN & ANR. 1057
[DR JUSTICE DHANANJAYA Y CHANDRACHUD, J.]

arising under the Act is held impliedly excluded thereby A
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:
B
“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)]. C
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 falling under Sections 30 and 40
[refer to Section 30(5) and Section 40].” D
36. 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 Zahid
Hussain and the abatement of proceedings under the ULCRA. The High E
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
F
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 G
who would have been in a position to answer the challenge.
37. Both the High Court and Trial Court have 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 H
1058 SUPREME COURT REPORTS [2021] 8 S.C.R.

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. In T. Arivandandam v. T.V Satyapal21,
Justice V.R. Krishna Iyer, speaking for a two Judge bench, observed:
B “5. We have not the slightest hesitation in condemning the petitioner
for the gross abuse of the process of the court repeatedly and
unrepentantly resorted to. From the statement of the facts found
in the judgment of the High Court, it is perfectly plain that the suit
now pending before the First Munsif’s Court, Bangalore, is a
flagrant misuse of the mercies of the law in receiving plaints.
C The learned Munsif must remember that if on a meaningful
— not formal — reading 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
D 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
E 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 Jala22, Sopan
F Sukhdeo Sable v. Assistant Charity Commissioner23, and most
recently by one of us (Justice MR Shah) in Raghwendra Sharan Singh
v. Ram Prasanna Singh (Dead) by LRs24 and Canara Bank v. P.
Selathal & Ors.25.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 against the judgment of
G
the Trial Court on the groundthat after the District Judge allowed the
21
(1977) 4 SCC 467.
22
(2017) 13 SCC 174.
23
(2004) 3 SCC 137.
24
AIR 2019 SC 1430.
25
H (2020) 13 SCC 143.
SHRI SAURAV JAIN & ANR. v. M/S A. B. P. DESIGN & ANR. 1059
[DR JUSTICE DHANANJAYA Y CHANDRACHUD, J.]

appeal and set aside the order dated 16 March 1988 passed by the A
Competent Authority under Section 8(4) of ULCRA, all further
proceedings pursuant to the order under section 8(4) of ULCRA –
including the taking of possession by the State – would be null and void.
The bench then held then even otherwise, only ‘paper possession’ and
not ‘actual possession’ of the suit landwas taken, and thus in these
B
circumstances Zahid Hussain would have both the title and possession
of the suit land. The findings of the High Court area non-sequitur since
even if Zahid Hussain had title and possession of the suit land at the time
of transfer, the purported transfer to the first respondentis 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 – C
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.
39. We have come to the conclusion that the suit instituted by the D
first respondent had to be dismissed. 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 Zahid Hussain to
the first respondent was before the Repeal Act was enacted.
The dual conditions stipulated under Section 5(3) of ULCRA
were not fulfilled before the transfer was made since the E
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 Zahid Hussain had the title to
the suit land, the transfer to the first respondent was null and F
void under section 5(3) of ULCRA;
(ii) When Zahid Hussain 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
G
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; H
1060 SUPREME COURT REPORTS [2021] 8 S.C.R.

A (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
B court on matters arising out of the ceiling proceedings;and
(v) Though the appellant did not assail the finding of the Trial
Court on the issue of jurisdiction before the High Courtunder
Order XLI Rule 22 CPC either by filing a memorandum of
cross-objection or otherwise, he is not precluded from raising
C 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
D which goes to the root of the matter.
40. We accordingly allow the appeal and set aside the impugned
judgment of the High Court dated 22 February 2018.The suit instituted
by the first respondent shall stand dismissed. The first respondent shall
pay costs to the appellant quantified at Rupees fifty thousand.
E

Nidhi Jain Appeal allowed.

F

G

H