Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4494 OF 2015
(ARISING OUT OF SLP (CIVIL) NO.34115 OF 2013)
Maharaji Educational Trust ... APPELLANT
VERSUS
SGS Construction & Dev. P. Ltd. & Ors. ...RESPONDENTS
WITH
CIVIL APPEAL NO.4495 OF 2015
(ARISING OUT OF SLP (CIVIL) NO.36569 OF 2013)
U.P. Avas Evam Vikas Parishad ...APPELLANT
VERSUS
SGS Construction & Dev. P. Ltd. & Ors. ...RESPONDENTS
WITH
CIVIL APPEAL NO.4496 OF 2015
(ARISING OUT OF SLP (CIVIL) NO.1510 OF 2014)
Housing & Urban Development Corpn. Ltd. ... APPELLANT
VERSUS
SGS Construction & Dev. P. Ltd. & Ors. ...RESPONDENTS
J U D G M E N T
Arun Mishra, J.
1. Leave granted in all the special leave petitions.
2. In the appeals the judgment and order dated 25.9.2013 passed by the
High Court of Allahabad, Bench at Lucknow, has been questioned by Maharaji
Educational Trust (for short ‘the Trust’), U.P. Avas Evam Vikas Parishad
(for short ‘Avas Evam Vikas Parishad’) and Housing and Urban Development
Corporation (hereinafter referred to as ‘HUDCO’) whereby the High Court has
directed the Avas Evam Vikas Parishad to demarcate 42.45 acres of the
mortgaged land and 21 acres as unencumbered land out of total area of 63.45
acres in writ petition filed by SGS Construction & Development (P) Ltd.
(for short ‘Builder’).
3. The factual matrix indicate that the Trust has taken a loan from
HUDCO. The outstanding figure at present is stated to be approximately
Rs.433 crores. There was default in making the payment. The Trust had
mortgaged the immovable properties mentioned from serial Nos.1 to 5 and
also the property at serial No.6 which is in question in the present matter
in an area of 63.45 acres of vacant land situated at village Akbarpur,
village Behrampur and village Mirzapur, Pargana-Loni, Tehsil and District
Ghaziabad. Out of the property mentioned at serial No.6 which was mortgaged
with HUDCO, the Trust had exchanged the land in area 21 acres from Avas
Evam Vikas Parishad vide Exchange Deed dated 4.5.2007. Thereafter, the
Trust had also deposited the deed of exchange of the said land with HUDCO
on 27.7.2011.
4. As the loan was not repaid by the Trust, HUDCO had started
proceedings before the Debt Recovery Tribunal at Delhi. The recovery
proceedings are pending before the Recovery Officer, in which the builder
has filed objections which are stated to be pending. The objections have
been filed by the Builder in respect of property No.6 against the action
initiated by HUDCO for sale of mortgaged property under Securitisation and
Reconstruction of Financial Assets and Enforcement of Security Interest
Act, 2002 (hereinafter referred to as ‘the SARFAESI Act’).
5. The Builder has filed objections on the strength of an agreement to
sell dated 26.8.2010 entered with Trust which was initially unregistered
for purchase of 63.45 acres of land comprised in property No.6, which
includes the 21 acres of land which was exchanged by the Trust with the
Avas Evam Vikas Parishad. The agreement was executed between the Builder
and the Trust for consideration of Rs.154 crores. Out of the same, it is
submitted that sum of Rs.9 crores has been paid by the Builder to the
Trust. The agreement had been registered subsequently, which has been
questioned by the Trust and writ petition is pending in High Court at
Allahabad. A civil suit is also stated to be pending.
6. Notwithstanding the pendency of the aforesaid proceedings, the
Builder preferred writ petition in question before the High Court of
Allahabad, Bench at Lucknow claiming following reliefs :
“i) Issue a writ in the nature of mandamus commanding the
Respondent/Opposite Party No.1 i.e. U.P. Awas Evam Vikas Parishad to
demarcate lands measuring 42.45 acres out of 63.45 acres, which are
mortgaged so that if at a later date the properties at Sl. No.6 as
mentioned in Annexure P/1 were to be sold by the Respondent No.3, there
would be no ambiguity in identifying the mortgaged property.
ii) Issue a writ, order or direction commanding the Respondent No.2 to
implement its order dated 6th September, 2011 in a time bound manner
preferably with a period of 3 months in order to sell properties at Sl.
No.1 to 5 as mentioned in Annexure P/1 and further restrain the Respondent
No.2 to proceed with the application filed by the Respondent No.3 dated
20.10.2011 (Annexure P/7) till the properties at Sl. No.1 to 5 are not
sold.
iii) Issue any writ, direction or orders as may be deemed fit and proper in
the facts and circumstances of the case.”
Second prayer had been abandoned at the time of final hearing of the writ
petition.
7. On behalf of the appellants, it was submitted that it is not
the function of Avas Evam Vikas Parishad to demarcate the land on the basis
of an agreement entered into inter se between the Trust and the Builder.
Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 (in short referred
to as Adhiniyam of 1965) has been enacted so as to further various kinds of
housing schemes and development projects. The powers under Section 15 of
the Adhiniyam of 1965 cannot be exercised out of context of the Act. It
was also submitted that Lucknow Bench had no jurisdiction to entertain the
writ petition. The High Court could not have treated the property exchanged
by Avas Evam Vikas Parishad with the Trust as unencumbered one. It was
further submitted that on the strength of unregistered agreement to sell,
no right, title or interest passes to the Builder. The registration of
agreement to sale which had been obtained subsequently, has been stayed by
the High Court in the pending writ application. The writ petition was a
misconceived venture. By virtue of section 70 of the Transfer of Property
Act (for short ‘the TP Act’), HUDCO was having a right over the property of
Trust obtained in exchange with mortgaged property. The Deed of Exchange
has also been deposited by the Trust with HUDCO. No application was ever
filed by the Builder with the Avas Evam Vikas Parishad for demarcation of
land. There was no housing scheme framed by Avas Evam Vikas Parishad with
respect to the land which had been given in exchange to the Trust. Thus,
provision of section 15 of the Adhiniyam of 1965 is not attracted. It was
also submitted on behalf of the appellants that the Builder is dilly
dallying the recovery proceedings by filing frivolous litigation.
8. Per contra, on behalf of the Builder, it was submitted that the
agreement to sell has been executed in favour of the Builder by the Trust
with respect to 63.45 acres of land which includes 21 acres of the land
given by Avas Evam Vikas Parishad to the Trust in exchange. Recovery
proceedings against the Trust are pending before the Debt Recovery
Tribunal, New Delhi, in which objections have been preferred by the Builder
which are pending consideration. The Builder having entered into an
agreement, had the right to apply to Avas Evam Vikas Parishad to demarcate
the land it had exchanged with the Trust. The direction for demarcation is
beneficial to all concerned. No case for interference is made out. The
Builder has submitted a proposal under section 56 of the T.P. Act to the
Chairman of HUDCO. The land given by the Avas Evam Vikas Parishad to the
Trust was unencumbered. The 21 acres of land obtained in exchange was not
mortgaged with HUDCO. Indubitably, Lucknow Bench had the jurisdiction as
the Head Office of Avas Evam Vikas Parishad is situated at Lucknow. The
Avas Evam Vikas Parishad had the onus to demarcate the land as provided
under section 15(1) (e), (k) (m) and (o). The Builder had the right to
know/identify the property i.e. 21 acres of land which was unencumbered.
The land received by the Avas Evam Vikas Parishad from the Trust has been
utilised for a housing scheme. Thus, the impugned order calls for no
interference.
9. After hearing learned counsel for the parties at length, we are
of the considered opinion that it was a misadventure on the part of the
Builder to file a writ petition for the kind of reliefs prayed for and that
too could not have been entertained by the Bench at Lucknow.
10. It is not in dispute that property Nos.1 to 6 had been mortgaged with
HUDCO by the Trust. Property No.6 which is in dispute comprised of 63.45
acres of land which was initially mortgaged by the Trust with HUDCO.
Proceedings for recovery of debt which seems to have presently amassed to
more than Rs. 433 crores under the SARFAESI Act, are stated to be pending
before the Debt Recovery Tribunal, Delhi. The property is admittedly
situated in the district of Ghaziabad, State of U.P. and Ghaziabad falls
within the territorial limits of the main seat of the High Court of
Allahabad. Undisputedly, objections had been preferred by the Builder
before the Recovery Officer, Debt Recovery Tribunal, Delhi. Admittedly, 21
acres of land, out of the total of 63.45 acres which was mortgaged to HUDCO
as item No.6, had been exchanged by the Trust with Avas Evam Vikas
Parishad. Thus, the exchange was with the property which was under
mortgage with HUDCO and the exchange deed had been deposited by the Trust
with HUDCO on 11.7.2011. Before the Debt Recovery Officer, New Delhi,
prayer has been made by the Builder to sell property Nos.1 to 5 and not to
sell property No.6 with respect to which he has entered into an agreement
with the Trust.
11. The writ petition filed for the aforesaid twin reliefs, was not
maintainable before the writ court; firstly, it is not within ken of the
High Court in writ jurisdiction to declare any property as unencumbered
one. Such rights between private parties cannot be made subject-matter of
writ jurisdiction as has been ordered in the impugned judgment and order
that out of a total of 63.45 acres of land, 21 acres be demarcated as an
unencumbered property and to maintain status quo. Following is the
operative portion of the order passed by the Division Bench at Lucknow :
“In the premises discussed hereinabove, we are of the considered view that
the relief as sought in prayer no.1 can be granted by directing respondent
no.1 to demarcate 42.45 acres, said to be mortgaged, and 21 acres as
unencumbered, out of the total area of 63.45 acres, as mentioned at serial
no.6, in the list of properties as detailed in the foregoing paragraphs.
Thus, we allow this petition and direct respondent no. 1 to carry out the
aforesaid exercise of demarcation either itself or being an instrumentality
of the State, and having statutory duties as extracted and reproduced
hereinabove, with the help of revenue authorities concerned. Moreover, in
view of the chequered background of the litigation in respect of the
lands/properties in question, and the conduct of respondent no.3, as
noticed above, we also deem it expedient in the interest of justice to
direct and thus it is ordered that the parties shall maintain status quo
qua the lands, namely, 21 acres out of the total area of 63.45 acres as
mentioned at serial no.6. We also direct that the said area of 21 acres of
the land at serial no. 6 shall not be alienated and/or transferred in any
manner till the exercise of demarcation is fully carried out in accordance
with law. Additionally, it is further directed that the area of 42.45
acres, said to be encumbered and 21 acres, as unencumbered shall be clearly
identified and segregated in the presence of the parties.”
12. Though, there is serious dispute between the parties to the lis
whether the said land is unencumbered, finding has been given by the High
Court that 21 acres of land is unencumbered. The High Court could not have
treated 21 acres of land as unencumbered one out of 63.45 acres. It was not
open to the High Court to enter into the aforesaid arena, which of the
property is encumbered and to be sold in realization of debt is the outlook
of the Recovery Officer, DRT, Delhi, where the recovery proceedings are
pending, including the objections preferred by the Builder.
13. In our opinion, it was not open to the Builder to file a writ
application for the aforesaid reliefs. Though the second relief had been
abandoned at the time of final arguments but the first relief could not
have been granted without going into the said question. The High Court in
writ jurisdiction has made a declaration that the property 21 acres of land
is unencumbered. The High Court could not have adjudicated on the property
rights under the guise of directing Avas Evam Vikas Parishad to demarcate
the land and give finding that it was unencumbered land. The High Court has
erred in law in giving a finding on merits on effect of exchange and that
section 70 of TP Act is not applicable. It was not the function of the High
Court to decide these questions under writ jurisdiction. Section 70 of the
TP Act is extracted hereunder :
“70. Accession to mortgaged property.—If, after the date of a mortgage, any
accession is made to the mortgaged property, the mortgagee, in the absence
of a contract to the contrary, shall, for the purposes of the security, be
entitled to such accession.”
14. We could have decided the aforesaid question finally. However, we
refrain from doing so as, in our opinion, it was not open to the High Court
to take up these questions under writ jurisdiction and to declare the
properties as unencumbered. It was for the parties to agitate the questions
before the DRT where the recovery proceedings are pending at the instance
of HUDCO with whom the property had been mortgaged by the Trust.
15. Prima facie, we are of the view that on the strength of the agreement
to sell, particularly when possession had not been handed over to the
Builder, it was not open to him to file a writ application for demarcation
of the property as unencumbered property or otherwise. What was sought to
be achieved by filing a writ petition, was to get rid of the proceedings
pending before the Recovery Officer, DRT at Delhi, and to save land at
serial No.6 from being sold which includes 21 acres of land, and an attempt
was made to get the 21 acres of land declared as unencumbered one. As a
matter of fact, such disputed questions with respect to the properties
inter se between the Builder and the Trust as to demarcation, writ petition
could not be said to be appropriate remedy, particularly when the order
passed by the Recovery Officer, DRT, was not in question and the order
passed by the DRT, Delhi, could not have been questioned before the Lucknow
Bench of High Court of Allahabad.
16. It was submitted on behalf of the Builder that the writ petition was
filed before the Lucknow Bench of the High Court of Allahabad as the Head
Office of Avas Evam Vikas Parishad is located at Lucknow and part of the
cause of action has arisen at Lucknow. In view of the fact that the Avas
Evam Vikas Parishad had exchanged the 21 acres of land with the Trust and
it had a statutory duty enjoined under section 15 of the Adhiniyam of 1965
so as to conduct survey and demarcate the land. In our considered opinion,
no part of the cause of action to the Builder has arisen at Lucknow where
the Head Office of Avas Evam Vikas Parishad is situated. Avas Evam Vikas
Parishad was not at all answerable to the Builder. As way-back in the year
2007, much before agreement to sell was entered into, it had exchanged its
21 acres of land with the Trust. Moreover, no application was ever filed by
the Builder to Avas Evam Vikas Parishad for seeking demarcation of the
land. Thus, in case of dispute inter se between the Builder and the Trust
based upon subsequent agreement to sale entered into in 2010, there was no
right available to the Builder to ask Avas Evam Vikas Parishad to demarcate
the land which it had already given to the Trust. After the 21 acres of
land had been given to the Trust, Avas Evam Vikas Parishad had nothing to
do with that land. This, it was a wholly misconceived venture on the part
of the Builder to ask Avas Evam Vikas Parishad to demarcate the land given
to the Trust, particularly when the Parishad was not having any housing
scheme with respect to the land which had been given to the Trust.
Thus, filing of the writ petition at Lucknow Bench was totally uncalled
for and the propriety required that it should not have been entertained at
Lucknow Bench. Merely because the transfer petition filed in this court for
transfer of case was withdrawn and the direction was issued by the Chief
Justice of High Court to decide at an early date, would not confer
jurisdiction on Bench at Lucknow, all the questions had been left open to
be agitated at the time of hearing. In our opinion, Bench at Lucknow ought
not to have entertained the petition as it lacked the jurisdiction.
17. With respect to the jurisdiction of the Lucknow Bench, the Builder
has relied upon the decision of this Court in Sri Nasiruddin etc. v. State
Transport Appellate Tribunal etc. [1975 (2) SCC 671]. Reliance has been
placed upon paras 37 and 38 and the same are reproduced hereunder:
“37. The conclusion as well as the reasoning of the High Court is
incorrect. It is unsound because the expression "cause of action" in an
application under Article 226 would be as the expression is understood and
if the cause of action arose because of the appellate order or the
revisional order which came to be passed at Lucknow then Lucknow would have
jurisdiction though the original order was passed at a place outside the
areas in Oudh. It may be that the original order was in favour of the
person applying for a writ. In such case an adverse appellate order might
be the cause of action. The expression "cause of action" is well- known. If
the cause of action arises wholly or in part at a place within the
specified Oudh areas, the Lucknow Bench will have jurisdiction. If the
cause of action arises wholly within the specified Oudh areas, it is
indisputable that the Lucknow Bench would have exclusive jurisdiction in
such a matter. If the cause of action arises in part within the specified
areas in Oudh it would be open to the litigant who is the dominus litis to
have his forum conveniens. The litigant has the right to go to a Court
where part of his cause of action arises. In such cases, it is incorrect to
say that the litigant chooses any particular Court. The choice is by reason
of the jurisdiction of the Court being attracted by part of cause of action
arising within the jurisdiction of the Court. Similarly, if the cause of
action can be said to have arisen partly within specified areas in Oudh and
partly outside the specified Oudh areas, the litigant will have the choice
to institute proceedings either at Allahabad or Lucknow. The Court will
find out in each case whether the jurisdiction of the Court is rightly
attracted by the alleged cause of action.
38. To sum up, our conclusions are as follows. First, there is no
permanent seat of the High Court at Allahabad. The seats at Allahabad and
at Lucknow may be changed in accordance with the provisions of the Order.
Second, the Chief Justice of the High Court has no power to increase or
decrease the areas in Oudh from time to time. The areas in Oudh have been
determined once by the Chief Justice and, therefore, there is no scope for
changing the areas. Third, the Chief Justice has power under the second
proviso to paragraph 14 of the Order to direct in his discretion that any
case or class of cases arising in Oudh areas shall be heard at Allahabad.
Any case or class of cases are those which are instituted at Lucknow. The
interpretation given by the High Court that the word "heard" confers powers
on the Chief Justice to order that any case or class of cases arising in
Oudh areas shall be instituted or filed at Allahabad instead of Lucknow is
wrong. The word "heard" means that cases which have already been instituted
or filed at Lucknow may in the discretion of the Chief Justice under the
second proviso to paragraph 14 of the Order be directed to be heard at
Allahabad. Fourth, the expression "cause of action" with regard to a civil
matter means that it should be left to the litigant to institute cases at
Lucknow Bench or at Allahabad Bench according to the cause of action
arising wholly or in part within either of the areas. If the cause of
action arises wholly within Oudh areas then the Lucknow Bench will have
jurisdiction. Similarly, if the cause of action arises wholly outside the
specified areas in Oudh then Allahabad will have jurisdiction. If the cause
of action in part arises in the specified Oudh areas and part of the cause
of action arises outside the specified areas, it will be open to the
litigant to frame the case appropriately to attract the jurisdiction either
at Lucknow or at Allahabad. Fifth, a criminal case arises where the offence
has been committed or otherwise as provided in the Criminal Procedure Code.
That will attract the jurisdiction of the Court at Allahabad or Lucknow. In
some cases depending on the facts and the provision regarding jurisdiction,
it may arise in either place.”
18. Learned counsel for the appellants has strongly relied upon the
decision of this Court in Oil and Natural Gas Commission v. Utpal Kumar
Basu & Ors. [1994 (4) SCC 711} as follows :
“12. Pointing out that after the issuance of the notification by the State
Government under Section 52(1) of the Act, the notified land became vested
in the State Government free from all encumbrances and hence it was not
necessary for the respondents to plead the service of notice under Section
52(2) for the grant of an appropriate direction or order under Article 226
for quashing the notification acquiring the land. This Court, therefore,
held that no part of the cause of action arose within the jurisdiction of
the Calcutta High Court. This Court deeply regretted and deprecated the
practice prevalent in the High Court of exercising jurisdiction and passing
interlocutory orders in matters where it lacked territorial jurisdiction.
Notwithstanding the strong observations made by this Court in the aforesaid
decision and in the earlier decisions referred to therein, we are
distressed that the High Court of Calcutta persists in exercising
jurisdiction even in cases where no part of the cause of action arose
within its territorial jurisdiction. It is indeed a great pity that one of
the premier High Courts of the country should appear to have developed a
tendency to assume jurisdiction on the sole ground that the petitioner
before it resides in or carries on business from a registered office in the
State of West Bengal. We feel all the more pained that notwithstanding the
observations of this Court made time and again, some of the learned Judges
continue to betray that tendency. Only recently while disposing of appeals
arising out of SLP Nos. 10065-66 of 1993, Aligarh Muslim University and
Anr. v. Vinay Engineering Enterprises (P) Ltd. and Anr., [1994 (4) SCC 710]
this Court observed:
“We are surprised, not a little, that the High Court of Calcutta should
have exercised jurisdiction in a case where it had absolutely no
jurisdiction.”
In that case, the contract in question was executed at Aligarh, the
construction work was to be carried out at Aligarh, the contracts provided
that in the event of dispute the Aligarh Court alone will have
jurisdiction, the Arbitrator was appointed at Aligarh and was to function
at Aligarh and yet merely because the respondent was a Calcutta based firm,
it instituted proceedings in the Calcutta High Court and the High Court
exercised jurisdiction where it had none whatsoever. It must be remembered
that the image and prestige of a Court depends on how the members of that
institution conduct themselves. If an impression gains ground that even in
cases which fall outside the territorial jurisdiction of the Court, certain
members of the Court would be willing to exercise jurisdiction on the plea
that some event, however trivial and unconnected with the cause of action
had occurred within the jurisdiction of the said Court, litigants would
seek to abuse the process by carrying the cause before such members giving
rise to avoidable suspicion. That would lower the dignity of the
institution and put the entire system to ridicule. We are greatly pained to
say so but if we do not strongly deprecate the growing tendency we will, we
are afraid, be failing in our duty to the institution and the system of
administration of justice. We do hope that we will not have another
occasion to deal with such a situation.”
19. Reliance has also been placed on National Textile Corporation Ltd. &
Ors. v. Haribox Swalram & Ors. [2004 (9) SCC 786] as follows :
“10. Under clause (2) of Article 226 of the Constitution, the High Court is
empowered to issue writs, orders or directions to any Government, authority
or person exercising jurisdiction in relation to the territories within
which the cause of action, wholly or in part, arises for the exercise of
such power, notwithstanding that the seat of such Government or authority
or the residence of such person is not within those territories. Cause of
action as understood in the civil proceedings means every fact which, if
traversed, would be necessary for the plaintiff to prove in order to
support his right to a judgment of the court. To put it in a different way,
it is the bundle of facts which taken with the law applicable to them,
gives the plaintiff a right to relief against the defendant. In Union of
India v. Adani Exports Ltd. [2002 (1) SCC 567] in the context of clause (2)
of Article 226 of the Constitution, it has been explained that each and
every fact pleaded in the writ petition does not ipso facto lead to the
conclusion that those facts give rise to a cause of action within the
court’s territorial jurisdiction unless those facts pleaded are such which
have a nexus or relevance with the lis that is involved in the case. Facts
which have no bearing with the lis or dispute involved in the case, do not
give rise to a cause of action so as to confer territorial jurisdiction on
the court concerned. A similar question was examined in State of Rajasthan
v. Swaika Properties [1985 (3) SCC 217]. Here certain properties belonging
to a company which had its registered office in Calcutta were sought to be
acquired in Jaipur and a notice under Section 52 of the Rajasthan Urban
Improvement Act was served upon the company at Calcutta. The question which
arose for consideration was whether the service of notice at the head
office of the company at Calcutta could give rise to a cause of action
within the State of West Bengal to enable the Calcutta High Court to
exercise jurisdiction in a matter where challenge to acquisition
proceedings conducted in Jaipur was made. It was held that the entire cause
of action culminating in the acquisition of the land under Section 152 of
the Rajasthan Act arose within the territorial jurisdiction of the
Rajasthan High Court and it was not necessary for the company to plead the
service of notice upon them at Calcutta for grant of appropriate writ,
order or direction under Article 226 of the Constitution for quashing the
notice issued by the Rajasthan Government under Section 52 of the Act. It
was thus held that the Calcutta High Court had no jurisdiction to entertain
the writ petition.
x x x x x
12.1. As discussed earlier, the mere fact that the writ petitioner carries
on business at Calcutta or that the reply to the correspondence made by it
was received at Calcutta is not an integral part of the cause of action
and, therefore, the Calcutta High Court had no jurisdiction to entertain
the writ petition and the view to the contrary taken by the Division Bench
cannot be sustained. In view of the above finding, the writ petition is
liable to be dismissed. However, in order to avoid any further harassment
to the parties [pic]and to put an end to the litigation, we would examine
the matter on merits as well.”
20. Reliance has also been placed with respect to jurisdiction of the
High Court in the decision of this Court in Alchemist Ltd. & Anr. v. State
Bank of Sikkim & Ors. [2007 (11) SCC 335] as follows :
“20. It may be stated that the expression “cause of action” has neither
been defined in the Constitution nor in the Code of Civil Procedure, 1908.
It may, however, be described as a bundle of essential facts necessary for
the plaintiff to prove before he can succeed. Failure to prove such facts
would give the defendant a right to judgment in his favour. Cause of action
thus gives occasion for and forms the foundation of the suit.
x x x x x
22. For every action, there has to be a cause of action. If there is no
cause of action, the plaint or petition has to be dismissed.
x x x x x
25. The learned counsel for the respondents referred to several decisions
of this Court and submitted that whether a particular fact constitutes a
cause of action or not must be decided on the basis of the facts and
circumstances of each case. In our judgment, the test is whether a
particular fact(s) is (are) of substance and can be said to be material,
integral or essential part of the lis between the parties. If it is, it
forms a part of cause of action. If it is not, it does not form a part of
cause of action. It is also well settled that in determining the question,
the substance of the matter and not the form thereof has to be considered.
x x x x x
38. In the present case, the facts which have been pleaded by the appellant
Company, in our judgment, cannot be said to be essential, integral or
material facts so as to constitute a part of “cause of action” within the
meaning of Article 226(2) of the Constitution. The High Court, in our
opinion, therefore, was not wrong in dismissing the petition.”
21. Reliance was also placed on the decision of this Court in Eastern
Coalfields Ltd. & Ors. v. Kalyan Banerjee [2008 (3) SCC 456] to the
following effect :
“13. In view of the decision of the Division Bench of the Calcutta High
Court that the entire cause of action arose in Mugma area within the State
of [pic]Jharkhand, we are of the opinion that only because the head office
of the appellant Company was situated in the State of West Bengal, the same
by itself will not confer any jurisdiction upon the Calcutta High Court,
particularly when the head office had nothing to do with the order of
punishment passed against the respondent.”
22. We have held that no part of the cause of action has arisen at
Lucknow, and it was not the function of Avas Evam Vikas Parishad to
demarcate the property in case of dispute between private party or for the
purpose of proceeding before the DRT and that the property was situated in
the district of Ghaziabad which is not under territorial jurisdiction of
Bench at Lucknow. Thus, the writ petition was not maintainable at Lucknow
Bench.
23. Apart from that, we find that there is no merit in the submission
that the Housing Board could have demarcated the land in exercise of powers
within the purview of section 15 of the Act of 1965. The objective of the
Act of 1965 is to tackle the housing and development problems of urban
areas. The objective of the Act is extracted hereunder :
“Migration of people from rural to urban area, influx of displaced persons,
increasing impact of the development activity generated by the Five Year
Plans and several other factors have resulted in rapid increase of
population in towns of this State. Construction of new houses and the
planned development of towns has, however, not kept pace with this rapid
increase of urban population. The efforts in this direction made by the
State Government, Nagar Mahapalikas, Nagar Palikas, Improvement Trusts,
Development Board and other Smaller Local Bodies have, for want of
effective co-ordination and control, not met with the desired success. The
said local bodies with their limited resources and know-how and due to
other factors have not been able to relieve the housing shortage and to
undertake the requisite development of land. There are areas in this State
with immense potentialities of development, but they still remain as they
were a decade or so back. It is now considered absolutely essential for
tackling the housing and development problems of practically all the fast
growing urban areas, and areas with potentialities of development, that an
autonomous central body to be known as Housing and Development Board be
created for the whole State. A Comprehensive Bill, called the Uttar Pradesh
Avas Evam Vikas Parishad Vidheyak has accordingly been prepared to provide
for the establishment, incorporation and functioning of a Housing and
Development Board in this State. This bill is being introduced
accordingly.”
24. The provisions of section 15 of Adhiniyam of 1965 have been relied
upon. Same are extracted below :
“15. Functions of the Board.—(1) Subject to the provisions of this Act and
the rules and regulations, the functions of the Board shall be—
To frame and execute housing and improvement schemes and other projects;
To plan and co-ordinate various housing activities in the State and to
ensure expeditious and efficient implementation of housing and improvement
schemes in the State;
To provide technical advice for and scrutinise various projects under
housing and improvement schemes sponsored or assisted by Central Government
or the State Government;
To assume management of such immovable properties belonging to the State
Government as may be transferred or entrusted to it for this purpose;
To maintain, use, allot, lease, or otherwise transfer plots, buildings and
other properties of the Board or of the State Government placed under the
control and management of the Board;
To organise and run workshops and stores for the manufacture and
stockpiling of building materials;
On such terms and conditions as may be agreed upon between the Board and
the State Government, to declare houses constructed by it in execution of
any scheme to be houses subject to the U.P. Industrial Housing Act, 1955
(U.P. Act XXIII of 1955);
To regulate building operations;
To improve and clear slums;
To provide roads, electricity, sanitation, water supply and other
civic amenities and essential services in areas developed by it;
To acquire movable and immovable properties for any of the purposes before
mentioned;
To raise loans from the market, to obtain grants and loans from
the State Government, the Central Government, local authorities and other
public corporations, and to give grants and loans to local authorities,
other public corporations, housing co-operative societies and other persons
for any of the purposes before mentioned;
To make investigation, examination or survey of any property or contribute
towards the cost of any such investigation, examination or survey made by
any local authority or the State Government;
To levy betterment fees;
To fulfil any other obligation imposed by or under this Act or any other
law for the time being in force; and
To do all such other acts and things as may be necessary for the discharge
of the functions before mentioned.
(2) Subject to the provisions of this Act and the rules and regulations,
the Board may undertake, where it deems necessary, any of the following
functions, namely –
To promote research for the purpose of expediting the construction of and
reducing the cost of buildings;
To execute works in the State on behalf of public institutions, local
authorities and other public corporations, and departments of the Central
Government and the State Government;
To supply and sell building materials;
To co-ordinate, simplify and standardise the production of building
materials and to encourage and organise the prefabrication and mass
production of structural components;
With a view to facilitating the movement of the population in and around
any city, municipality, town area or notified area, to establish, maintain
and operate any transport service, to construct widen, strengthen or
otherwise improve roads and bridges and to give financial help to others
for such purposes;
To do all such other acts and things as may be necessary for the
discharge of the functions before mentioned.”
25. Chapter III of Adhiniyam of 1965 deals with the powers and functions
of the Board constituted under section 3. Section 15 deals with the
functioning of the Board and the provisions of the Act. It is crystal clear
from the provisions of section 15 that the power to make investigation,
examination or survey of any property is to be exercised by the Board in
connection with its functions enjoined in the Act. The power is not general
in nature. Section 18 deals with types of housing schemes. Sections 19 to
27 deal in details with the schemes provided in section 18(1)(a) to (i).
Other sections 28 to 49 deal with acquisitions, framing of schemes, its
execution, transfer of property to Board, streets, square etc.
26. It is apparent from the scheme of the Adhiniyam of 1965 that the
provisions contained in section 15(1)(m) are not to be read in isolation
but with reference to the objectives of the Adhiniyam of 1965 and its
functions relating to housing and development issues.
27. The principle of noscitur a socii will be applicable in construing
Section 15 of the Act and the words “to make investigation, examination or
survey of any property” in section 15(1)(m) will take their meaning and
colour from the other phrases employed in section 15(1). As held by this
Court in Rohit Pulp & Paper Mills Ltd. v. Collector of Central Excise,
Baroda [1990 (3) SCC 447] :
“12. The principle of statutory interpretation by which a generic
word receives a limited interpretation by reason of its context is well
established. In the context with which we are concerned, we can
legitimately draw upon the “noscitur a sociis” principle. This expression
simply means that “the meaning of a word is to be judged by the company it
keeps.” Gajendragadkar, J. explained the scope of the rule in State of
Bombay v. Hospital Mazdoor Sabha [1960 (2) SCR 866] in the following words
: (SCR pp. 873-74)
“This rule, according to Maxwell, means that, when two or more words
which are susceptible of analogous meaning are coupled together they are
understood to be used in their cognate sense. They take as it were their
colour from each other, that is, the more general is restricted to a sense
analogous to a less general. The same rule is thus interpreted in “Words
and Phrases” (Vol. XIV, p. 207). “Associated words take their meaning from
one another under the doctrine of noscitur a sociis, the philosophy of
which is that the meaning of a doubtful word may be ascertained by
reference to the meaning of words associated with it; such doctrine is
broader than the maxim ejusdem generis” In fact the latter maxim “is only
an illustration or specific application of the broader maxim noscitur a
sociis”. The argument is that certain essential features of attributes are
invariably associated with the words “business and trade” as understood in
the popular and conventional sense, and it is the colour of these
attributes which is taken by the other words used in the definition though
their normal import may be much wider. We are not impressed by this
argument. It must be borne in mind that noscitur a sociis is merely a rule
of construction and it cannot prevail in cases where it is clear that the
wider words have been deliberately used in order to make the scope of the
defined word correspondingly wider. It is only where the intention of the
legislature in associating wider words with words of narrower significance
is doubtful, or otherwise not clear that the present rule of construction
can be usefully applied. It can also be applied where the meaning of the
words of wider import is doubtful, but, where the object of the legislature
in using wider words is clear and free of ambiguity, the rule of
construction in question cannot be pressed into service.”
This principle has been applied in a number of contexts in judicial
decisions where the court is clear in its mind that the larger meaning of
the word in question could not have been intended in the context in which
it has been used.”
28. The Trust has submitted an application for limited purpose of
approval of site plan of housing society to Avas Evam Vikas Parishad which
was not pressed by it. The said application was not for the purpose of
demarcation and would not enure to the benefit of the Builder. The
objective of builder in writ petition was to get land demarcated as
unencumbered.
29. For the purpose of demarcation the remedy is available before the
concerned authority under section 24 of the Uttar Pradesh Revenue Code,
2006. Section 24 of the Code is extracted below :
“24. Disputes regarding boundaries.- (1) The Sub-Divisional Officer may, on
his own motion or on an application made in this behalf by a person
interested, decide, by summary inquiry, any dispute regarding boundaries on
the basis of existing survey map or, where the same is not possible, in
accordance with the provisions of the Uttar Pradesh Consolidation of
Holdings Act, 1953, on the basis of such map.
(2) If in the course of an inquiry into a dispute under sub-section (1),
the Sub-Divisional Officer is unable to satisfy himself as to which party
is in possession or if it is shown that possession has been obtained by
wrongful dispossession of the lawful occupant, within a period of three
months preceding the commencement of the inquiry, the Sub-Divisional
Officer shall-
(a) in the first case, ascertain by summary inquiry who is the person best
entitled to the property, and shall put such person in possession.
(b) in the second case, put the person so dispossessed in possession, and
for that purpose use or cause to be used such force as may be necessary an
shall then fix the boundary accordingly.
(3) Every proceeding under this section shall, as far as possible, be
concluded by the Sub-Divisional Officer within six months from the date of
the application.
(4) Any person aggrieved by the order of the Sub-Divisional Officer may
prefer an appeal before the Commissioner within 30 days of the date of such
order. The order of the Commissioner shall be final.”
The corresponding provision in the U.P. Land Revenue Act, 1901 was section
41. The recourse to provision of the Adhiniyam of 1965 in such cases was
not available.
30. It was also submitted on behalf of the appellants that the agreement
which was entered into between the Trust and the Builder was required to be
registered under the provisions of the Registration Act as per Section 17
read with section 49 of the Registration Act as applicable in U.P. and
section 3 read with section 54 of the TP Act. We decline to entertain and
examine the submissions as it would not be proper to do so in the present
proceedings and as effect of non-registration and validity of registration
made subsequently has been questioned in Writ Petition [C] No.38596/2013
pending consideration before the High Court of Allahabad. Thus, it is for
the High Court to adjudicate upon the aforesaid questions.
31. In view of the afore discussion, we allow the appeals, set aside the
judgment and order passed by the Lucknow Bench of the High Court of
Allahabad, and dismiss the writ petition filed by the Builder – respondent
No.1 – with costs quantified at Rs.5 lakhs to be paid to the Supreme Court
Legal Services Committee, within a period of six weeks from today.
....................................CJI
(H.L. Dattu)
....................................J.
(S.A. Bobde)
New Delhi;
....................................J.
May 15, 2015. (Arun Mishra)