# Mangleshwar Prasad v. State of U.P. & Ors

- **Citation:** (2023) 10 ILRA 1166
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-03
- **Case number:** Writ-C No. 24877 of 2023
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mangleshwar-prasad-v-state-of-u-p-ors-49311
- **Pages:** 12

## Headnote

Civil Law - U.P. Revenue Code, 2006 -
Sections 94, 95, 116 & 210 - Uttar
Pradesh Solar Energy Policy, 2022 -
Article 226 of the Constitution of India -
Lease
Deed
-
Co-sharer
Dispute
-
Partition
Suit
-
Writ
Jurisdiction
-
Alternative Remedy
The petitioner, Mangleshwar Prasad, challenged
the lease deed executed and registered on
19.10.2022 by respondent no. 7 in favor of
respondent no. 6 for a Solar Energy Project,
alleging that respondent no. 7 misrepresented
his share as 1/8 instead of 1/64 in the disputed
plots. The petitioner, a co-sharer with a 1/8
10 All. Mangleshwar Prasad Vs.. State of U.P. & Ors.
1167
share, also filed a partition suit under Section
116 of the U.P. Revenue Code, 2006, which is
pending. Held: (1) The writ petition was
dismissed as not maintainable under Article 226
of the Constitution of India due to disputed
questions of fact regarding the quantum of
shares. (2) The controversy was not purely
legal, as it involved factual disputes about the
shares
of
co-sharers,
which
required
adjudication in the pending partition suit before
the revenue court. (3) The validity of the lease
deed, executed under Sections 94 and 95 of the
U.P. Revenue Code, 2006, and compliant with
the Uttar Pradesh Solar Energy Policy, 2022,
could not be examined in writ jurisdiction, as
per M/s Godrej Sara Lee Ltd. Vs Excise and
Taxation Officer and Satya Pal Anand Vs St. of
Madhya Pradesh. (4) Clause 18 of the lease
deed provided a dispute resolution mechanism
before the District Magistrate for disputes
between lessor and lessee, but the petitioner, a
third party, could not invoke it. (5) The
petitioner was directed to pursue the pending
partition suit and any other permissible legal
remedies to challenge the lease deed. (6) The
182-day delay in filing the writ petition was
noted but not decisive, given the dismissal on
maintainability grounds.

Case Law Cited:

## Text

1166 INDIAN LAW REPORTS ALLAHABAD SERIES
therefore, no modification or alteration or
substitution of such written document is
permissible by parol evidence and it is
only by another written document the
terms of earlier written document can be
altered, rescinded or substituted. There is
another
reason
why
the
defendant/appellant cannot be permitted
to let in parol evidence to substantiate the
subsequent oral arrangement. The reason
being that the settlement deed is a
registered document. The second part of
proviso (4) to Section 92 does not permit
leading of parol evidence for proving a
subsequent oral agreement modifying or
rescinding the registered instrument. The
terms of registered document can be
altered, rescinded or varied only by
subsequent registered document and not
otherwise. If the oral arrangement as
pleaded by the appellant if allowed to be
substantiated by parol evidence it would
mean re- writing of Ex.A/1 and, therefore,
no parol evidence is permissible."

13. It is also material that petitioner
has already filed a civil suit for declaration
in respect to the will deed executed on
24.12.1992 in favour of respondent no.4-
Usha Singh which is pending before the
Civil Court, as such, it will be proper for
the petitioner to press his pending civil suit
in accordance with law.

14. The case law of Hon'ble Apex
Court in Jitendra Singh (Supra) as cited
by learned Counsel for the petitioner also
held that mutation order passed on the basis
of the will deed shall be subject to the
adjudication of the dispute by regular
Court.

15. Considering the entire facts and
circumstances as well as the ratio of law
laid down by Apex Court in S. Saktivel
(Supra), no interference is required against
the impugned orders passed in the
summary proceeding under Section 34 of
the U.P. Land Revenue Act 1901.

16. Writ petition is accordingly
dismissed. Needless to say that orders
passed in the mutation proceeding will not
come in the way of the petitioner to
establish his claim before the Civil Court in
accordance with law.
----------
(2023) 10 ILRA 1166
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.10.2023

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ-C No. 24877 of 2023

Mangleshwar Prasad ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Om Prakash Pandey, Sri Dinesh Kumar
Tripathi

Counsel for the Respondents:
C.S.C., Sri Sudhanshu Srivastava, Sri Vimal
Chandra Mishra

Civil Law - U.P. Revenue Code, 2006 -
Sections 94, 95, 116 & 210 - Uttar
Pradesh Solar Energy Policy, 2022 -
Article 226 of the Constitution of India -
Lease
Deed
-
Co-sharer
Dispute
-
Partition
Suit
-
Writ
Jurisdiction
-
Alternative Remedy
The petitioner, Mangleshwar Prasad, challenged
the lease deed executed and registered on
19.10.2022 by respondent no. 7 in favor of
respondent no. 6 for a Solar Energy Project,
alleging that respondent no. 7 misrepresented
his share as 1/8 instead of 1/64 in the disputed
plots. The petitioner, a co-sharer with a 1/8
10 All. Mangleshwar Prasad Vs.. State of U.P. & Ors.
1167
share, also filed a partition suit under Section
116 of the U.P. Revenue Code, 2006, which is
pending. Held: (1) The writ petition was
dismissed as not maintainable under Article 226
of the Constitution of India due to disputed
questions of fact regarding the quantum of
shares. (2) The controversy was not purely
legal, as it involved factual disputes about the
shares
of
co-sharers,
which
required
adjudication in the pending partition suit before
the revenue court. (3) The validity of the lease
deed, executed under Sections 94 and 95 of the
U.P. Revenue Code, 2006, and compliant with
the Uttar Pradesh Solar Energy Policy, 2022,
could not be examined in writ jurisdiction, as
per M/s Godrej Sara Lee Ltd. Vs Excise and
Taxation Officer and Satya Pal Anand Vs St. of
Madhya Pradesh. (4) Clause 18 of the lease
deed provided a dispute resolution mechanism
before the District Magistrate for disputes
between lessor and lessee, but the petitioner, a
third party, could not invoke it. (5) The
petitioner was directed to pursue the pending
partition suit and any other permissible legal
remedies to challenge the lease deed. (6) The
182-day delay in filing the writ petition was
noted but not decisive, given the dismissal on
maintainability grounds.

Case Law Cited:

1. M/s Godrej Sara Lee Ltd. Vs Excise and
Taxation Officer, AIR 2023 SC 781;

2. Satya Pal Anand Vs St. of Madhya Pradesh,
(2016) 10 SCC 767;

3. St. of Uttar Pradesh Vs Mohd. Nooh, 1958
SCR 595;

4. Whirlpool Corporation Vs Registrar of Trade
Marks, (1998) 8 SCC 1;

5. Assistant Commissioner of St. Tax Vs M/s
Commercial Steel Limited, 2021 SCC OnLine SC
884;

(Delivered by Hon'ble Chandra Kumar
Rai, J.)

1. Heard Mr. Om Prakash Pandey,
learned counsel for the petitioner, Mr.
Sudhanshu Srivastava, learned counsel
appearing on behalf of respondent nos. 3 to
5, Mr. Abhishek Shukla, learned Additional
Chief Standing Counsel for the Staterespondents and Mr. Vimal Chandra
Mishra, learned counsel for respondent
no.7.

2. Brief facts of the case are that plot
no. 72 along with other plots as mentioned
in the khatauni of 1429-1434 fasli (1st July
2021 to 30th June 2027) annexed as
Annexure No.2 to the writ petition situated
in Village- Gahur (Mau), Tehsil- Mau,
District- Chitrakoot belong to petitioner
and respondent no.7 along with other cosharer. Petitioner alleged in the writpetition that respondent no.7 has 1/64 share
in the disputed plots while the petitioner
has 1/8 share in the disputed plots.
Respondent No.7 executed a lease deed on
19.10.2022 in favour of respondent no.6 in
respect to plot in dispute for Solar Energy
Project as provided under Uttar Pradesh
Solar Energy Project, 2022. Petitioner
alleged in the writ petition that respondent
no.7 has only 1/64 share in the disputed
plots but he wrongly shown himself to be
share holder of 1/8 share in the disputed
plots. Petitioner along with others has
already
filed
a
Suit
No.T202300190201682/2023
for
partition in respect to the plot in
dispute, under section 116 of U.P.
revenue Code, 2006, which is stated to
be
pending
before
trial
court
as
mentioned in Paragraph No.12 of the
writ petition.

3- The instant petition on behalf of
the
petitioner
has
been
filed
for
quashing / cancelling the impugned
lease deed executed and registered on
19.10.2022 in respect to the Plot No. 72
and others.
1168 INDIAN LAW REPORTS ALLAHABAD SERIES

4- Stamp reporter has reported laches
of 182 days in filing the instant writ
petition, which has been explained in
Paragraph Nos. 17, 18 & 19 of the writ
petition.

5-

Counsel
for the
petitioner
submitted
that
lease
executed
and
registered
on
19.10.2022
between
respondent 7 and respondent 5 is void abinitio as respondent no.7 declared his share
as 1/8 though he has only 1/64 share in the
disputed plots. He further placed the C.H.
Form Nos. 11, 41 and 45 in order to
demonstrate the share of the parties which
has been annexed as Annexure Nos. S.A.1,
S.A.2 and S.A.3 to the supplementary
affidavit dated 27.7.2023. He further
submitted that every tenure holder of the
plot in dispute are having share in the plots,
as such, unless the share is divided among
the tenure holder lease can not be executed
in respect to the plot in dispute. He further
submitted that suit for partition filed by the
petitioner along with others in respect to
the plot in dispute is pending before trial
court.
He
further
submitted
that
respondents have violated the Paragraph
12.1(c) of Uttar Pradesh Solar Energy
Policy, 2022, which is as under:-

12.1 Solar Power Projects on
Private Land:

"12.1 (c) Private land will be
allowed to
be
given
on lease for
development of solar Power Projects for a
period of thirty years. Ownership of this
land will be non-transferable and will
remain with the shareholder. The District
Collector will facilitate in leasing of land
from the land owners by the Project
developer."

6. Learned Counsel for the petitioner
further submitted that petitioner is third
party to the lease deed, as such, petitioner
has no remedy against the lease deed in
question except writ petition under Article226 of the Constitution of India. He further
placed Clause-18 of the lease deed, which
provides remedy in case of dispute between
lessor and lessee before District Magistrate.
Clause-18 of the lease deed dated
19.10.2022 is as follows:-

"पट्टेदार एवं पट्टादाता के मध्य ककसी
कववाद की स्तिकि में किस्तित रूप कववाद सम्बंकित
कििे के कििाकिकारी के सन्दकभित ककया िायेगा।
कििाकिकारी की मध्यस्िा एवं किर्िय दोिों पक्ों पर
बाध्यकारी होंगे।"

7. Learned counsel for the petitioner
further placed Section 94 & 95 of U.P.
Revenue
Code,
2006
in
order
to
demonstrate
that
lease
executed
by
respondent no.7 is illegal. Section 94 & 95
of U.P. Revenue Code, 2006 is as follows:

"[94. Lease by a Bhumidhar. -
(1) A Bhumidhar may lease out his holding
or any part thereof to any person, firm,
company,
partnership
firm,
limited
liability partnership firm, trust, society or
any other legal entity for agriculture or
for setting up a solar energy plant. Such
lease shall be known as the private lease
by a bhumidhar.

(2????). Private lease by a
Bhumidhar means a contract based on an
agreement, with mutually agreed terms
and conditions, between Lessor, who may
be a Bhumidhar and the Lessee who
wishes
to
undertake
agricultural
activities or set up a solar energy plant,
by which the Lessor grants permission to
the Lessee to use the land or holding or
any part thereof for agricultural purpose
or for establishment of solar energy
plant, against a consideration in cash or
10 All. Mangleshwar Prasad Vs.. State of U.P. & Ors.
1169
kind or a share of produce, payable to the
Lessor as per the lease agreement.

(3). ????Period of private lease
by a bhumidhar - maximum period of the
private lease by a bhumidhar shall not
exceed fifteen year at a time:

Provided
that,
after
the
expiration of the first lease period, the
duration of lease period may be further
extended by mutual consent of the Lessor
and the Lessee:

Provided further that for purpose
of establishing a solar energy plant, the
maximum period may be upto 30 years.

(4) Conditions of the private
lease by a bhumidhar - The terms and
conditions of the private lease by a
bhumidhar shall be as mutually agreed
between the Lessor and Lessee. The
general conditions of the lease shall be in
such manner as may be prescribed.]

[95.
Lease-how
made,
its
termination and any dispute arising
thereto. -

Private lease by a bhumidhar
may be oral or in writing or Registered-(1)
Private Lease by a bhumidhar for a single
crop or for period upto one year may be
either oral or in writing. Lease agreement
for period exceeding one year shall be
made by a registered instrument only.

(2) Private Lease by a bhumidhar
to be recorded in remarks column of
Record of Rights- In case of written or
registered lease agreement, a copy of the
agreement or deed shall be made available
to Revenue Inspector concerned, who shall
pass order for recording the details of the
private lease by a bhumidhar lease
agreement (names and other details of
Lessor and Lessee; date of agreement;
period of lease; proposed use of land; and
annual lease rent) in the Remarks column
of Record of Rights (khatauni).

(3) Private Lease by a bhumidhar
shall not create any type of Tenancy Right-
An agreement of private lease by a
Bhumidhar either registered under the
Registration Act 1908 or countersigned by
a Revenue Officer or Gram Pradhan or
notarized by a Notary or oral, shall not
create or confer any rights or interest in
favour of the Lessee over the leased land,
including protected tenancy or occupancy
right or any other right against eviction or
lease
termination,
other
than
those
contained in this Act or Rules, the lease
agreement shall not be used by the Lessee
to establish and permanent right over the
leased land in any Court of Law.

(4) Resumption of Land- After
expiration of the private lease by a
bhumidhar period of or termination of such
private lease, the instrument of private
lease by a bhumidhar shall be a nullify and
if the period of such private lease is not
extended,
the
leased
land
shall
automatically revert to the Lessor and the
Lessee shall hand over peaceful possession
of the land, free from all encumbrances, to
the Lessor and shall cease to have any
right, title or interest in the land so leased
out.

Explanation.?Regardless of any
dispute, arising out of private lease made
under Section-94, pending before any
Court of Law, the Lessor shall be entitled
to get peaceful possession of the leased
land after the expiration of the private
lease period and the Lessee shall have no
1170 INDIAN LAW REPORTS ALLAHABAD SERIES
right to retain possession over the leased
land

(5) Effect of Private Lease by a
bhumidhar- The provisions contained in the
Code regarding private lease by a
bhumidhar shall not have retrospective
effect.

(6) Termination of the private
lease by a bhumidhar?

(a) Unless extended by mutual
consent between the Lessor and Lessee, the
private lease agreement would terminate
on expiry of the private lease period
mentioned in the agreement,

(b) In case of non-payment of
consideration amount or annual lease rent
by the Lessee by the due date, or if any of
the terms and conditions of the private
lease are violated by him, the private lease
by a bhumidhar agreement may be
terminated by the Lessor, prior to expiry of
the lease period, after giving due notice to
the Lessee in writing.

(c) In case the private lease
agreement is proposed to be terminated
prematurely by the Lessor, then the Lessee
shall be entitled to remove such structures,
machinery etc. that were created or
installed by the Lessee on the leased land.
The Lessee would also be entitled to
recover such damages and compensation
from the Lessor, as agreed upon and laid
down in the private lease agreement.

(d) In case the Lessee wishes to
terminate the lease agreement prematurely
or surrenders the land during the private
lease by a bhumidhar period, then he shall
have to give at least six months' notice to
the Lessor and shall also be liable to pay
the annual rent for the remaining part of
the year to the Lessor, in addition to such
other compensation, as agreed upon and
laid down in the private lease by a
bhumidhar agreement or as prescribed.

(e) In case after expiration of the
private lease by a bhumidhar period or
termination of the lease agreement, the
Lessee
fails
to
handover
peaceful
possession of the leased land to the Lessor,
the Lessee shall be treated as unauthorised
occupant and shall be liable to be ejected
from the leased land. The Lessee shall also
be liable to pay such penal rent or damages
to the Lessor for the period of unauthorised
occupation, as provided in the private lease
by a bhumidhar agreement, in addition to
the cost of such ejection.

(f) The Lessor and Lessee may
terminate the private, lease by a bhumidhar
on mutually agreed terms at any time.

(7) Disputes arising out of the
private lease by a bhumidhar?

(a) In an event of a dispute
arising out of the private lease agreement
by a bhumidhar, or any terms and
conditions thereof; the Lessee and the
Lessor shall make all efforts to amicably
resolve and settle the dispute amongst
themselves or if mutually agreed, by using
mediation by a third party arbitrator or
Gram Panchayat or Village Revenue
Committee.

(b) If the dispute is not settled
through the mechanism mentioned in
clause (a) either party may file a petition
before the Sub-Divisional Officer.

(c) The Sub-Divisional Officer
shall adjudicate the dispute using the
10 All. Mangleshwar Prasad Vs.. State of U.P. & Ors.
1171
summary procedure within a period of
thirty days of its institution.

(d) An appeal against the order,
other than an interim order, passed by a
Sub-Divisional Officer, shall lie before the
Commissioner.
The
decision
of
Commissioner shall subject to the provision
of Section 210, be final."

8. Learned Counsel for the petitioner
further placed reliance upon the judgement
of Hon?ble Apex Court reported in AIR
2023 Supreme Court 781, M/s Godrej
Sara Lee Ltd vs. Excise and Taxation
Officer cum Assessing Officer and others
in order to demonstrate the writ petition
under Article 226 of the Constitution of
India before High Court should not be
dismissed on the ground of alternative
remedy if controversy is purely legal.
Learned counsel for the petitioner finally
submitted that writ petition be allowed and
impugned
lease
deed
be
cancelled
accordingly.

9. On the other hand, Mr. Sudhansu
Srivastava, learned counsel for respondent
Nos. 3 to 5 submitted that the writ petition
filed by petitioner challenging the lease
deed in question is not maintainable before
this Court under Article 226 of the
Constitution of India as disputed question
of facts are involved in the matter. He
further submitted that respondent no.7 has
1/8 share in the disputed plots. He further
placed the Khatauni of 1400-1405 fasli in
respect to the plot in dispute which contains
the recital of the order of Consolidation
Officer dated 8.5.1999 in Case No. 321 in
which
share
of
respondent
no.7
is
mentioned as 1/8. He further placed the
share certificate issued by Tehsildar in
which share of respondent No.7 is
mentioned as 1/8. He further submitted that
partition suit under section 116 of U.P.
Revenue Code, 2006 filed by petitioner
along with others is pending before revenue
Court. He further placed reliance upon the
judgment of Hon?ble Apex Court passed in
Satya Pal Anand vs. State of Madhya
Pradesh and others reported in (2016) 10
SCC 767 (Paragraph Nos. 13 to 19 and 23
in particular) in order to demonstrate that
writ-petition
under
Article
226
of
Constitution of India is not maintainable in
view of alternative remedy available to the
petitioner. He finally submitted that writpetition
filed
by
petitioner
is
not
maintainable and liable to be dismissed.

10. Mr. Vimal Chandra Mishra,
learned counsel for the respondent no.7
submitted that lease deed was executed and
registered on 19.10.2022 in accordance
with law. He further submitted that
respondent no.7 is having 1/8 share in the
plots in dispute. He further submitted that
documents relied upon by learned counsel
for respondent nos.3 to 5 with respect to
share of respondent no. 7 and others are
correct one. He further submitted that no
interference is required in the matter
and writ petition is liable to be
dismissed .

11. Mr. Abhishek Shukla learned
Additional Chief Standing Counsel for
the State respondents submitted that
disputed question of facts are involved,
as such, writ petition under Article 226
of the Constitution of India against the
lease
deed
in
question
is
not
maintainable. He further submitted that
in any case if execution of lease deed is
treated to be proceeding under U.P.
Revenue Code, 2006 then, petitioner
can file revision under section 210 of
U.P. Revenue Code, 2006 in respect to
the lease deed question.
1172 INDIAN LAW REPORTS ALLAHABAD SERIES

12. I have considered the argument
advanced by learned counsel for the parties
and perused the records.

13. There is no dispute about the fact
that petitioner as well as respondent no.7
are co-sharer of the plots in dispute but the
parties are disputing the quantum of share
of the parties in respect to plots in dispute.
There is also no dispute about the fact that
lease
deed
has
been
registered
on
19.10.2022 in respect to the plots in dispute
between respondent no.7 & respondent
no.6. There is also no dispute about the fact
that suit for partition under section 116 of
U.P. Revenue Code, 2006 in respect to
plots in dispute filed by petitioner along
with others is pending before revenue
Court.

14. In order to appreciate the
controversy involved in the matter, the
perusal of Clause 3 & 8 of lease deed dated
19.10.2022 will be relevant, which are as
follows:

"Clause 3. पट्टे की अवकि, उसका
कविार एवं प्रत्यावति

3.1 कविार

इस पट्टा कविेि के अिुसार प्रदाि ककया
गया पट्टा प्रभावी कतकि 01.11.2022 ("अवकि") से
आरम्भ होकर 29 वर्षों 02 माह की अवकि कदिांक
31.12.2051 तक के किए वैि और प्रवतिीय होगा।
परन्तु यह कक, प्रिम पट्टा अवकि कक समास्ति के
पश्चात, पट्टा अवकि कक समय सीमा में पट्टाकताि व
पट्टेदार कक पारस्पररक सहमकत से अग्रेतर वृस्ति कक
िा सकती है।

यह की उपरोक्त पट्टा कविेि की अवकि
उत्तर प्रदेश रािस्व संकहता (संर्षोिि) अकिकियम,
2019 (उत्तर प्रदेश अकिकियम संख्या 2 सि 2019)
के तहत िारा 94 (3) के परन्तुक में उस्तिस्तित
ककसी भूकमिर द्वारा कििी पट्टे की अवकि सौर ऊिाि
संयंत्र स्िाकपत ककये िािे के प्रयोििािि अकिकतम
अवकि 30 वर्षि हो सकती है। उपरोक्त प्राविाि का
उपयोग करके पट्टा कविेि के पक्कारों द्वारा अपिे
अन्तकिकहित शस्तक्तयों को प्रयोग करके किष्पाकदत
ककया िा सकता/रहा है।

3.2 प्रत्यावति

अवकि की समास्ति पर उसके ककसी भी
कविार के अिीि या पट्टा कविेि में उस्तिस्तित ककसी
भी कारर् से इस पट्टा कविेि की कियतसमय से पूवि
समास्ति पर, पट्टेदार द्वारा पट्टादाता को भूकम के उस
समय मौिूद सभी या ककसी भी अकिकारों,
स्वतंत्रताओं, कवशेर्षाकिकारों, भोगाकिकारों और साि
- समाि के साि भूकम सौंप दी िायेगी। एतद द्वारा यह
स्पष्ट ककया िाता है कक ककसी भी उपकरर्, सामग्री,
पररसंपकत्त, भवि, िोड़े गए उपकरर् पर पट्टेदार का
स्वाकमत्व िारी रहेगा और पट्टादाता पररयोििा को
कवघकित करिे एवं उसके उपकरर्, संयंत्र, मर्षीिरी
की अकभरक्ा और कब्ज़े पर अपिा अकिकार िहीं
करेगा एवं पट्टेदार को भूकम को िािी करिे के किए
6 (छः) माह की समयावकि देगा। यह सहमकत व्यक्त
की िाती है कक पट्टेदार कब्जे कक अवकि तक पट्टा
ककराये का भुगताि करेगा।

Clause 8. पट्टादाता द्वारा अिुबन्ध में दी
िा रही भूकम पर यकद ककसी प्रकार की कोई बािा
उत्पन्न होती है तो उसका समि दाकयत्व पूर्ितया
पट्टादाता/भूकमिर की होगी और उसके ि होिे पर
उिके उत्तराकिकारी पर होगा।"

15. Petitioner is disputing the share
of respondent no.7 and admittedly suit for
partition of share in respect to the plot in
dispute filed by petitioner along with
others is pending before Sub-Divisional
Officer, as such, petitioner should press
his suit for partition for division of their
holding in accordance with law and seek
interim relief in the pending suit for
partition in respect to the plot in dispute.

16. So far as, execution and
registration
of
the
lease
deed
is
concerned, Clause 18 of the lease deed
provide forum for redressal of dispute, if
any, between lessor and lessee. Clause 3
provides time period of lease, extension
and reversion of lease and Clause 8
10 All. Mangleshwar Prasad Vs.. State of U.P. & Ors.
1173
provides the liability of the lessor in respect
of the lease deed .

17. Petitioner who is not party to the
lease deed cannot challenge the lease deed
as provided under Clause 18 of the lease
deed, as such, it is to be examined as to
whether the writ petition under Article 226
of the Constitution of India is the proper
remedy for the petitioner or petitioner
should avail appropriate remedy before
appropriate forum?

18. The case law of Hon'ble Apex
Court in M/s Godrej Sara Lee Ltd (supra)
as cited by learned counsel for the
petitioner
laid
down
the
ratio
that
alternative remedy will not be bar to
entertain the writ petition under Article 226
of the Constitution of India if there is no
factual dispute in the matter. Paragraph
nos.4 to 9 of the judgment rendered in M/s
Godrej Sara Lee Ltd (supra) are relevant
for perusal, which are as under:

"4.
Before
answering
the
questions, we feel the urge to say a few
words on the exercise of writ powers
conferred by Article 226 of the Constitution
having come across certain orders passed
by the high courts holding writ petitions as
?not maintainable? merely because the
alternative remedy provided by the relevant
statutes has not been pursued by the parties
desirous
of
invocation
of
the
writ
jurisdiction. The power to issue prerogative
writs under Article 226 is plenary in
nature. Any limitation on the exercise of
such power must be traceable in the
Constitution itself. Profitable reference in
this regard may be made to Article 329 and
ordainments of other similarly worded
articles in the Constitution. Article 226
does not, in terms, impose any limitation or
restraint on the exercise of power to issue
writs. While it is true that exercise of writ
powers despite availability of a remedy
under the very statute which has been
invoked and has given rise to the action
impugned in the writ petition ought not to
be made in a routine manner, yet, the mere
fact that the petitioner before the high
court, in a given case, has not pursued the
alternative remedy available to him/it
cannot mechanically be construed as a
ground for its dismissal. It is axiomatic that
the high courts (bearing in mind the facts
of each particular case) have a discretion
whether to entertain a writ petition or not.
One of the self-imposed restrictions on the
exercise of power under Article 226 that
has evolved through judicial precedents is
that the high courts should normally not
entertain a writ petition, where an effective
and efficacious alternative remedy is
available. At the same time, it must be
remembered that mere availability of an
alternative remedy of appeal or revision,
which the party invoking the jurisdiction of
the high court under Article 226 has not
pursued, would not oust the jurisdiction of
the high court and render a writ petition
?not maintainable?. In a long line of
decisions, this Court has made it clear that
availability of an alternative remedy does
not operate as an absolute bar to the
?maintainability? of a writ petition and
that the rule, which requires a party to
pursue the alternative remedy provided by
a statute, is a rule of policy, convenience
and discretion rather than a rule of law.
Though elementary, it needs to be restated
that
?entertainability?
and
?maintainability? of a writ petition are
distinct concepts. The fine but real
distinction between the two ought not to be
lost sight of. The objection as to
?maintainability? goes to the root of the
matter and if such objection were found to
be of substance, the courts would be
1174 INDIAN LAW REPORTS ALLAHABAD SERIES
rendered incapable of even receiving the lis
for adjudication. On the other hand, the
question of ?entertainability? is entirely
within the realm of discretion of the high
courts, writ remedy being discretionary. A
writ petition despite being maintainable
may not be entertained by a high court for
very many reasons or relief could even be
refused to the petitioner, despite setting up
a sound legal point, if grant of the claimed
relief would not further public interest.
Hence, dismissal of a writ petition by a
high court on the ground that the petitioner
has not availed the alternative remedy
without, however, examining whether an
exceptional case has been made out for
such entertainment would not be proper.

5. A little after the dawn of the
Constitution, a Constitution Bench of this
Court in its decision reported in 1958 SCR
595 (State of Uttar Pradesh vs. Mohd.
Nooh) had the occasion to observe as
follows:

?10. In the next place it must be
borne in mind that there is no rule, with
regard to certiorari as there is with
mandamus, that it will lie only where there
is no other equally effective remedy. It is
well established that, provided the requisite
grounds exist, certiorari will lie although a
right of appeal has been conferred by
statute, (Halsbury?s Laws of England, 3rd
Edn., Vol. 11, p. 130 and the cases cited
there). The fact that the aggrieved party
has another and adequate remedy may be
taken into consideration by the superior
court in arriving at a conclusion as to
whether it should, in exercise of its
discretion, issue a writ of certiorari to
quash the proceedings and decisions of
inferior courts subordinate to it and
ordinarily the superior court will decline to
interfere until the aggrieved party has
exhausted his other statutory remedies, if
any. But this rule requiring the exhaustion
of statutory remedies before the writ will be
granted is a rule of policy, convenience and
discretion rather than a rule of law and
instances are numerous where a writ of
certiorari has been issued in spite of the
fact that the aggrieved party had other
adequate legal remedies.

6. At the end of the last century,
this Court in paragraph 15 of the its
decision reported in (1998) 8 SCC 1
(Whirlpool Corporation vs. Registrar of
Trade Marks, Mumbai and Others) carved
out the exceptions on the existence whereof
a Writ Court would be justified in
entertaining a writ petition despite the
party approaching it not having availed the
alternative remedy provided by the statute.
The same read as under: (i) where the writ
petition seeks enforcement of any of the
fundamental rights; (ii) where there is
violation of principles of natural justice;
(iii) where the order or the proceedings are
wholly without jurisdiction; or (iv) where
the vires of an Act is challenged.

7. Not too long ago, this Court in
its decision reported in 2021 SCC OnLine
SC 884 (Assistant Commissioner of State
Tax vs. M/s. Commercial Steel Limited) has
reiterated the same principles in paragraph
11.

8. That apart, we may also
usefully refer to the decisions of this Court
reported in (1977) 2 SCC 724 (State of
Uttar Pradesh & ors. vs. Indian Hume Pipe
Co. Ltd.) and (2000) 10 SCC 482 (Union of
India vs. State of Haryana). What appears
on a plain reading of the former decision is
that whether a certain item falls within an
entry in a sales tax statute, raises a pure
question of law and if investigation into
10 All. Mangleshwar Prasad Vs.. State of U.P. & Ors.
1175
facts is unnecessary, the high court could
entertain a writ petition in its discretion
even though the alternative remedy was not
availed of; and, unless exercise of
discretion is shown to be unreasonable or
perverse, this Court would not interfere. In
the latter decision, this Court found the
issue raised by the appellant to be
pristinely legal requiring determination by
the high court without putting the appellant
through the mill of statutory appeals in the
hierarchy. What follows from the said
decisions is that where the controversy is a
purely legal one and it does not involve
disputed questions of fact but only
questions of law, then it should be decided
by the high court instead of dismissing the
writ petition on the ground of an
alternative remedy being available.

9. Now, reverting to the facts of
this appeal, we find that the appellant had
claimed before the High Court that the suo
motu revisional power could not have been
exercised by the Revisional Authority in view
of the existing facts and circumstances
leading to the only conclusion that the
assessment orders were legally correct and
that the final orders impugned in the writ
petition were passed upon assuming a
jurisdiction which the Revisional Authority
did not possess. In fine, the orders impugned
were passed wholly without jurisdiction.
Since a jurisdictional issue was raised by the
appellant in the writ petition questioning the
very competence of the Revisional Authority
to exercise suo motu power, being a pure
question of law, we are of the considered
view that the plea raised in the writ petition
did deserve a consideration on merits and the
appellant?s writ petition ought not to have
been thrown out at the threshold."

19. The case law of Hon'ble Apex
Court delivered in Satya Pal Anand
(supra) as cited by learned counsel for
respondent nos.3 to 5 has laid down the
ratio that validity of any document / deed
can be examined in the Court of competent
jurisdiction rather in exercise of writ
jurisdiction under Article 226 of the
Constitution of India. Paragraph Nos.13,
19, 23, 33 & 34 are relevant for perusal,
which are as under:

"13. Having considered the rival
submissions, including keeping in mind the
view taken by the two learned Judges of
this Court on the matters in issue, in our
opinion, the questions to be answered by us
in the fact situation of the present case, can
be formulated as under:

?(a) Whether in the fact situation
of the present case, the High Court was
justified in dismissing the Writ Petition?

(b) Whether the High Court in
exercise of writ jurisdiction under Article
226 of the Constitution of India is duty
bound to declare the registered Deeds
(between the private parties) as void ab
initio and to cancel the same, especially
when the aggrieved party (appellant)
has already resorted to an alternative
efficacious remedy under Section 64 of
the Act of 1960 before the competent
Forum whilst questioning the action of
the Society in cancelling the allotment
of the subject plot in favour of the
original
allottee
and
unilateral
execution of an Extinguishment Deed
for that purpose?

(c) Even if the High Court is
endowed with a wide power including
to examine the validity of the registered
Extinguishment
Deed
and
the
subsequent registered deeds, should it
foreclose the issues which involve
1176 INDIAN LAW REPORTS ALLAHABAD SERIES
disputed questions of fact and germane for
adjudication by the competent Forum
under the Act of 1960?

(d) Whether the Sub-Registrar
(Registration) has authority to cancel the
registration of any document including an
Extinguishment Deed after it is registered?
Similarly, whether the Inspector General
(Registration) can cancel the registration
of Extinguishment Deed in exercise of
powers under Section 69 of the Act of
1908?

(e) Whether the Sub-Registrar
(Registration) had no authority to register
the Extinguishment Deed dated 9th August
2001,
unilaterally
presented
by
the
Respondent Society for registration?

(f) Whether the dictum in the case
of Thota Ganga Laxmi (supra) is with
reference to the express statutory Rule
framed by the State of Andhra Pradesh or
is a general proposition of law applicable
even to the State of Madhya Pradesh, in
absence of an express provision in that
regard??

Regarding Issue Nos. (a) to (c):

19. Reference made to the other
decisions of this Court with regard to the
scope of Article 136 of the Constitution of
India in the case of Arunachalam vs. P.S.R.
Sadhanantham and Anr. and Ganga K.
Shrivastav vs. State of Bihar (supra) will be
of no avail in the fact situation of the
present case. Similarly, The other decisions
adverted to in the dissenting opinion under
consideration in the case of CAG vs. K.S.
Jagannathan and Andi Mukta Sadguru
Shree Muktajee Vandas Swami Suvarna
Jayanti Mahotsav Smarak Trust vs. V.R.
Rudani (supra), Hari Vishnu Mamath
(supra) will be of no avail in the fact
situation of the present case. Suffice it to
observe that the High Court had, in our
opinion, justly, summarily dismissed the
writ petition with liberty to the appellant to
pursue
statutory
remedy
under
the
provisions of the Act of 1960 or by way of
a civil suit. Thus understood, it may not be
necessary or appropriate to dwelve upon
the other issues regarding the merits of
the controversy which may have to be
adjudicated by the competent Forum.

Regarding issue Nos. (d) to (f)

23. If the document is required to
be compulsorily registered, but while doing
so some irregularity creeps in, that, by
itself, cannot result in a fraudulent action
of the State Authority. Non-presence of the
other party to the Extinguishment Deed
presented by the Society before the
Registering Officer by no standard can be
said to be a fraudulent action per se. The
fact whether that was done deceitly to
cause loss and harm to the other party to
the Deed, is a question of fact which must
be pleaded and proved by the party making
such allegation. That fact cannot be
presumed. Suffice it to observe that since
the provisions in the Act of 1908 enables
the Registering Officer to register the
documents presented for registration by
one party and execution thereof to be
admitted or denied by the other party
thereafter, it is unfathomable as to how the
registration of the document by following
procedure specified in the Act of 1908 can
be
said
to
be
fraudulent.
As
aforementioned, some irregularity in the
procedure
committed
during
the
registration process would not lead to a
fraudulent execution and registration of the
document, but a case of mere irregularity.
In either case, the party aggrieved by such
10 All. Pooja Sharma Vs. State of U.P. & Ors.
1177
registration of document is free to
challenge its validity before the Civil
Court.

33. Taking any view of the matter,
therefore, we are of the considered opinion
that, the High Court has justly dismissed
the writ petition filed by the appellant with
liberty to the appellant to pursue statutory
remedy resorted to by him under the Act of
1960 or by resorting to any other remedy
as may be advised and permissible in law.
All questions to be considered in those
proceedings will have to be decided on its
own merits.

34. Accordingly, we dismiss this
appeal in the above terms with no order as
to costs."

20. In the instant matter admittedly
there is dispute about the share which is
pending before revenue Court under
Section 116 of U.P. Revenue Code, 2006
at the instance of the petitioner along
with others, as such, it cannot be said
that controversy is purely legal one and
it does not involve disputed question of
fact.

21. The validity of lease deed
executed / registered on 19.10.2022 in
view of the provisions contained under
Section 94 & 95 of U.P. Revenue Code,
2006 as well as the Uttar Pradesh Solar
Energy
Policy,
2022
cannot
be
examined
in
exercise
of
writ
jurisdiction
under
Article
226
of
Constitution
of
India
rather
in
appropriate forum in view of the ratio
of law laid down by Hon'ble Apex
Court in M/s Godrej Sara Lee Ltd
(supra) as well as Satya Pal Anand
(supra). The question as mentioned in
paragraph no.17 of the judgment is
answered accordingly.

22 . Considering the entire facts and
circumstances of the case, no interference
is required in the matter. Writ petition is
dismissed with liberty to the petitioner to
pursue the remedy which has already been
availed by way of suit for partition as well
as any other remedy permissible under law
in respect to registered lease deed in
question.
----------
(2023) 10 ILRA 1177
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.10.2023

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE PRASHANT KUMAR, J.

Writ-C No. 26406 of 2023

Pooja Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vishal Pandey, Sri Ashvanee Kumar
Srivastav, Sri Anupam Kulshreshtha (A.C.)

Counsel for the Respondents:
C.S.C., Sri Paras Nath Rai (Sr. Standing
Counsel), Sri S.P. Singh (A.S.G.I.)

A. Constitution of India - Article 226 -
Writ - Scope - Rights of Persons with
Disabilities Act, 2016 - Mental Healthcare
Act, 2017 - Entitlement of the patient,
lying in coma, to get treatment - Wife
sought mandamus to sell the property of
disable person - Permissibility - Doctrine
of 'Parens Patriae' - Applicability - In the
absence of efficient provision, how far
High Court can exercise writ power -
Held,
both
the
Acts
provide
for