# Smt. Sheela Srivastava v. Housing Commissioner U.P. Housing & Dev. Board & Ors

- **Citation:** (2022) 9 ILRA 522
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-21
- **Case number:** Writ-C No. 279 of 2002
- **Bench:** Rajan Roy, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sheela-srivastava-v-housing-commissioner-u-p-housing-dev-board-ors-49081
- **Pages:** 10

## Headnote

A. Constitution of India - Article 226 -
Writ - Maintainability - Title of property -
Question of fact - Scope of interference -
Held, adjudication of disputed question of
fact is a matter of discretion and not a bar
to the exercise of jurisdiction under Article
226, but it is well known that one of the
grounds
against
the
exercise
of
discretionary power vested in the High
Court under Article 226 is where disputed
facts have to be investigated - When such
dispute exists between the parties, the
right claimed by the petitioner is not
capable of being adjudicated in the
summary proceedings under Article 226 of
the Constitution, because, it requires a
detailed examination of evidence as may
be had in a suit. (Para 18)
9 All. Smt. Sheela Srivastava Vs. Housing Commissioner U.P. Housing Board & Dev. Board &
 Ors.
523
B. Constitution of India - Article 226 -
Writ - Object - Primary object of Article
226 is enforcement of an established right
and not the establishment of a right or
title
itself
-
This
Court
cannot
be
converted into a trial court in exercising
its power under Article 226 of the
Constitution of India. (Para 19)
Writ petition dismissed. (E-1)
List of Cases cited:-

## Text

522 INDIAN LAW REPORTS ALLAHABAD SERIES
of fact howsoever gross or even errors of
law unless the errors have relation to the
jurisdiction of the- court to try the
dispute itself.

13. Since the order passed by revisional
court, was of 24.9.1980 when revisional
court was having limited jurisdiction under
Section 48 of the U.P. C.H. Act as quoted
above, as such, impugned revisional order
is
without
jurisdiction.
Consolidation
Officer after considering each and every
oral as well as documentary evidence on
record as well as provisions of Hindu
Minority
and
Guardianship
Act
has
recorded finding of fact that adoption deed
dated 13.6.1973 set up by respondent no.2
is not proved and cannot be believed but
Deputy Director of Consolidation has
arbitrarily held without considering the oral
evidence as well as documentary evidences
adduced by the parties that adoption deed is
proved and respondent no.2 is to be
recorded over disputed plot in place of
petitioner
which
is
wholly
without
jurisdiction, order as Deputy Director of
Consolidation while exercising revisional
power on 24.9.1980 was having limited
jurisdiction.
Deputy
Director
of
Consolidation further failed to consider the
reasoning and findings recorded by the
Consolidation
Officer
and
Settlement
Officer (Consolidation) on the question
who is heir of Mathuri and whether
Sukhram is adopted son of Mathuri, as
such, impugned revisional order cannot be
sustained.

14. In view of the facts and
circumstances mentioned above as well as
ratio of law laid down in Sher Singh
(supra), the impugned revisional order
dated 24.9.1980 passed by Deputy Director
of Consolidation, Jalaun, Urai in Revision
No.258, under Section 48 of the U.P. C.H.
Act is liable to be quashed and the same is
hereby quashed.

15. Writ petition is allowed. Order
passed by the Consolidation Officer dated
30.4.1974
and
Settlement
Officer
(Consolidation)
dated
20.11.1974
are
hereby maintained. No order as to costs.
----------
(2022) 9 ILRA 522
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.09.2022

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ-C No. 279 of 2002

Smt. Sheela Srivastava ...Petitioner
Versus
Housing Commissioner U.P. Housing &
Dev. Board & Ors. ...Respondents

Counsel for the Petitioner:
B R Singh, Ishan Baghel, Mukesh Kumar

Counsel for the Respondents:
Mahesh Chandra, Km. Vishwa Mohini, Ratnesh
Chandra, Vimal Kumar

A. Constitution of India - Article 226 -
Writ - Maintainability - Title of property -
Question of fact - Scope of interference -
Held, adjudication of disputed question of
fact is a matter of discretion and not a bar
to the exercise of jurisdiction under Article
226, but it is well known that one of the
grounds
against
the
exercise
of
discretionary power vested in the High
Court under Article 226 is where disputed
facts have to be investigated - When such
dispute exists between the parties, the
right claimed by the petitioner is not
capable of being adjudicated in the
summary proceedings under Article 226 of
the Constitution, because, it requires a
detailed examination of evidence as may
be had in a suit. (Para 18)
9 All. Smt. Sheela Srivastava Vs. Housing Commissioner U.P. Housing Board & Dev. Board &
 Ors.
523
B. Constitution of India - Article 226 -
Writ - Object - Primary object of Article
226 is enforcement of an established right
and not the establishment of a right or
title
itself
-
This
Court
cannot
be
converted into a trial court in exercising
its power under Article 226 of the
Constitution of India. (Para 19)
Writ petition dismissed. (E-1)
List of Cases cited:-
1. Sohan Lal Vs U.O.I.; (1957) SCR 738
2. New Satgram Engineering Works Vs U.O.I.;
(1980) 4 SCC 570
3. Parvatibai Subhanaro Nalwade (Smt.) Vs
Anawarli Hasanali Makani; (1992) 1 SCC 414
4. Mohan Pandey & anr. Vs Usharani Rajgaria
(Smt.) & ors.; (1992) 4 SCC 61
5. St. of Rajasthan Vs Bhawani Singh; 1193
(Suppl.) 1 SCC 306
6.
P.R.
Murlidharan
&
ors.
Vs
Swami
Dharamananda Theertha Padar & ors.; (2006) 4
SC 501
(Delivered by Hon'ble Om Prakash Shukla, J.)

1. Heard Sri I.B. Singh, learned Senior
Advocate assisted by Sri Avinash Singh
Baghel, learned counsel for the petitioner and
Sri Ratnesh Chandra, learned counsel for
respondent no.1. None appeared on behalf of
respondent no.2 and 3.

2. Before, this Court embarks into the
narration of the facts of the present case, it is
implicit to enunciate that this writ petition
raises an interesting aspect, wherein the old
adage "a stitch in time saves nine", is
squarely applicable to all the four corners of
the present case. Essentially a dispute of
demarcation between the U.P. Housing &
Development Board and Navneet Sahkari
Grih
Nirman
Samiti
Limited
has
metamorphosed into a never ending dispute
of right, title, entitlement and possession over
a piece of land/plot between two warring
private individuals. Alas!, even during
pendency of the present issue before this
Court for nearly two decades, neither the
private individuals nor the public authority
and not to speak of the Navneet Sahkari Grih
Nirman Samiti Limited have taken any steps
which would have resolved the issue of
demarcation and made the disputed land/plot
readily identifiable with the ownership right
of either of the parties.

3. Briefly stating, the petitioner as being
aggrieved against alleged inaction on the part
of the U.P. Housing and Development Board
for selling/allotting her Plot No.-17, Sector12, Indira Nagar, Lucknow falling in khasra
No.131 to private respondent no.2 and 3, has
filed the present petition under Article 226 of
the Constitution of India for the following
reliefs:-

"(a) to issue a writ order or direction in
the nature of mandamus commanding the
Opp. Parties not to interfere in the peaceful
possession of the Plot in question of the
petitioner situated at Khasra 131 Sector 12
Indiranagar Lucknow.

(b) to issue a writ order or direction in
the nature of mandamus commanding the
Opp. Party No. 2 & 3 not to takeover
possession of the piece of land of Plot No.17
of the petitioner/

(c) to issue a writ order or direction in
the nature of mandamus commanding the
Opp. Party No.1 not to allot the plot of
petitioner in question without being acquired
to anyone else and to pay compensation
thereof of mental agony and loss incurred to
the petitioner.

4. It is the case of the petitioner that
one Navneet Sahkari Grih Nirman Samiti
Limited, a society registered under the
provisions of the Society Registration Act
524 INDIAN LAW REPORTS ALLAHABAD SERIES
(hereinafter to be referred as "Samiti") had
purchased two plots of land, including
khasra No.131, Sector-12 Indiranagar admeasuring about 2 bighas, which was
demarcated by the society into 18 plots.
The petitioner claims to have purchased
one such plot being Plot No.17, admeasuring about 2275 sq. feet vide a sale
deed dated 19.05.1980. The petitioner has
averred in her writ petition that the
respondent no.1 permitted constructions on
these plots in the year 1982 subject to
deposit of development charges with
respect to the said khasra by the persons
who
had
been
allotted
these
plots.
Admittedly, construction had been made in
all the aforesaid 18 plots, except for Plot
No.17 belonging to petitioner, which could
not be constructed due to bona fide reasons
and as such the plot was lying vacant.

5. It is the contention of the petitioner
that Plot No.17 allotted to her by the Samiti
in the year 1980 was again allotted/sold by
respondent no.1 to the private respondents
no.2 and 3 without any notice either to her
or the Samiti. She alleges that the
respondent no.1 has allotted her plot to
respondents no.2 and 3 under some wrong
perception and she came to knowledge of
the same, when respondent no.2 and 3 tried
to take possession and construct over the
said plot. Thus, the fulcrum of the argument
of the petitioner is three-fold:-

(i) Plot No.17 (new number-12/678)
was allotted to her by Nanveet Sahkari Grih
Nirman Samiti in the year 1980 and ever
since then the plot had been lying vacant
under her possession;

(ii) Plot No.17 was never acquired by
respondent no.1 under the scheme known
as Grihsthan Yozna and it was left as it
belonged to the housing society and it is for
this reason that even the lay out plan of
Sector-12 of Indiranagar does not include
the plot of the petitioner;

(iii) In any case, there was no notice of
acquiring the said plot given by the
respondent no.1 to her or to the housing
society from whom she has purchased the
said plot.

6. Notice were issued by this Court to
respondents on 16.01.2002 and a direction
was issued to maintain status-quo with
regard to the plot in question.

7. The respondent no.2 and 3 have filed a
joint counter affidavit on 08.04.2002 and
have stated that khasra no.131 is about 2
bighas, which translates into about 54450
sq. feet, however, the Samiti has occupied
an area more than 2 bighas in an
unauthorized and illegal manner, as it has
submitted a lay out plan for an area of
55309 sq. feet land. It is their case that the
Samiti has illegally occupied the excess
area of 859 sq. feet, which actually belongs
to the respondent no.1. Thus, it is their case
that the sale deed dated 29.05.1980
executed in favour of the petitioner is a
void document and does not confer any
right or title on the petitioner. They went on
to dispute the total area in possession of the
petitioner and claimed that the respondent
no.1 has prepared the lay out plan for the
land acquired. It was pursuant to the said
acquisition that auction for allotment was
held on 01.04.2001 as advertised in Daily
Dainik Jagran. It is the case of the
respondent
no.2
and
3,
they
have
participated in the said auction and as such
Plot No.12/678 ad-measuring about 152.23
sq. meter (1621.24 sq. feet) was allotted
and registered in their favour vide sale deed
dated 22.11.2001 and armed with the said
sale deed they have taken possession of the
said land and started construction. They say
that the four walls of the house have
9 All. Smt. Sheela Srivastava Vs. Housing Commissioner U.P. Housing Board & Dev. Board &
 Ors.
525
already
been
constructed
as
per
photographs filed by them and only the
roof was to be constructed and the same
was within the knowledge of the Samiti.
According to them khasra no.131 adjacent
to khasra no.127 is situated in VillageIsmailganj, District-Lucknow and the said
Plot No.17 has been illegally carved out in
the lay out plan of khasra no.131, which is
actually not on the land purchased by the
Samiti. They say that in fact the said Plot
No.17 is situated on the land of khasra
no.127 which had been acquired by the
U.P. Awas Evam Vikas Parishad, Lucknow
under Section 28 of the U.P. Awas Evam
Vikas Parishad Act. The sum and substance
of their argument is:-

(i) The Samiti has got no right to illegally
occupy and to submit the lay out plan on the
land of the area more than what has been
purchased by them from agriculturists;

(ii) The said Samiti has got no right to sell
said Plot No.17 of its own scheme, which does
not belong to it and which is a part of land of
khasra no.127;

(iii) The land of Plot No.17 is not situated
on khasra no.131 of Village-Ismailganj,
District-Lucknow, rather it is situated on khasra
no.127 of Village-Ismailganj, District-Lucknow
which has been acquired by Awas Evam Vikas
Parishad;

(iv) U.P. Awas Evam Vikas Parishad had
developed Sector-12 in Village-Ismailganj,
District-Lucknow after acquisition of the said
land as aforesaid;

(v) The entire khasra no. 127 was allotted
to respected allottees but some of the plots
carved out were left vacant as such auction of
Plot Nos.714, 677, 678 of Sector-12 was
conducted by the Parishad, wherein respondent
no. 2 and 3 were allotted Plot No.678 in Sector12, Indiranagar, Lucknow;

(vi) The respondent no.2 and 3 are rightful
owners of Plot No.12/678 purchased from U.P.
Awas Evam Vikas Parishad and in total they
have spent Rs. 9 lakhs on the said plot;

(vii) They further say that the plot in
question was never in actual possession of the
petitioner, whereas they have been in actual
physical possession of the plot and had started
constructing their house on the plot;

(viii) The respondent no.1 was functusofficio after the sale of the said land to them as
they are main affected parties who are holding
title of the plot in question;

(ix) Thus, according to them the matter is
a purely civil dispute involving ascertaining of
boundaries of the property in dispute as well as
for possession for which only civil court is
competent and writ was not maintainable.

8. The respondent no.1 filed their
counter affidavit on 12.01.2011 primarily
premised on the ground that the petitioner
has to establish the rights of the society as
well as her rights over the ownership of the
plot in question. The petitioner was called
upon to show the sanctioned or approved
lay out plan of the plots of the Samiti as it
was stated by respondent no.1 that the lay
out plan of the Samiti was not sanctioned
by the Parishad and in any case the
petitioner ought to have impleaded the
Samiti in the present writ petition. It is their
submission that the issue relating to
possession of the petitioner should be taken
up with the Samiti and non-joinder of
Samiti in the present petition is fatal. The
respondent no.1 has further stated that the
petitioner cannot take advantage of the
illegal acts of the Samiti and the Parishad is
the owner of the plot in question from
much before and as such their cannot be
two numbers of the same plot in same
scheme. As per their averments in the
counter affidavit, Plot No.12/678 was
allotted in favour of respondent no.2 and 3
and if according to the petitioner any
dispute relating to plot in question arose
526 INDIAN LAW REPORTS ALLAHABAD SERIES
she should have raised the dispute before
the proper forum, against the co-operative
society
from
whom
possession
was
allegedly taken by her. According to them
the illegal plot had been sold to the
petitioner by the Samiti and not by them
and as such there is no cause against them
for filing the present writ petition.

9. In rejoinder affidavit filed on
11.10.2004, the petitioner has stated that the
contention of respondent no. 2 and 3 are
based on surmises & conjectures. They
reiterate that they are owner of the plot in
question and the claim that the plot had been
sold illegally to the respondent no.2 and 3 by
respondent no.1 without acquiring the same.
No records have been filed by respondent
no.1 to show that the plot in question is
falling in khasra no.127. She says that the
Samiti has taken possession of the land which
was left by the Awas Evam Vikas Parishad
and not included while the land was acquired.
They reiterate that the plot falls in khasra
no.131 for which sale deed had been
executed in her favour by the Samiti by total
area of 2275 sq. feet. As regards filing of the
lay out plan of the plot in question, she says
that she is owner of the plot by virtue of a
registered sale deed and filing of the lay out
plan is not her duty. She also reiterates that
till 21.04.2001 the land in question was
vacant and it was not developed by Awas
Evam Vikas Parishad, which says that the
land was in possession of the petitioner and it
belongs to khasra no.131 as land belonged to
Sector-12 of Awas Evam Vikas Parishad,
Indiranagar was sold during the decade of
1980. They say that the respondents are not
rightful owner of Plot No.12/678 to the extent
to which they have illegally taken the
possession of the petitioner's land.

10. The respondent no.2 and 3 have
filed supplementary counter affidavit
dated 09.11.2004, in response to the
rejoinder affidavit of the petitioner.
Besides reiteration of earlier stand taken
by them in their counter affidavit, they
have also stated that the disputed land
was developed by the Awas Evam Vikas
Parishad much earlier in 1985 before the
execution of the sale deed in favour of
respondent no.2 & 3 and 9 meters wide
road has been developed by the Awas
Evam Vikas Parishad. They state that the
plots developed by the Samiti having
narrow road about 25 sq. feet wide is a
stark difference and there is no confusion
between the plot of the respondent no.2
and 3 which is existing near Nandini
Montessori School and park on the other
hand is situated on 9 meters wide road of
Awas Evam Vikas Parishad from two
sides of the plot and there is no question
as to how can the disputed plot be termed
to belong to the Samiti.

11. In the interregnum, the petitioner
left for her heavenly abode on 04.11.2013
and as per the application preferred she was
survived by five legal heirs namely:- (i)
Ravindra Nath Srivastava, (ii) Anurag
Srivastava ,(iii) Nishi Srivastava, (iv) Richa
Srivastava, (v) Shikha Srivastava. It was on
12.08.2017 the legal heirs of petitioner
chose to file a rejoinder affidavit to the
counter affidavit filed by respondent no.1.
The petitioners denied the contention of
respondent no.1 as made out by them in the
counter affidavit and also submitted that
they have collected information through
R.T.I. and other sources, wherein it is
invariably available that:-

(i) respondent no.1 and his officers
created far higher number of plots in the
extension of Parishad's housing colony in
Indiranagar, Lucknow than 656 plots of
different sizes envisaged in relevant control
9 All. Smt. Sheela Srivastava Vs. Housing Commissioner U.P. Housing Board & Dev. Board &
 Ors.
527
and development plan of the Parishad in the
year 1985;

(ii) Respondent no.1 did not exercise
due
diligence
for
demarcation
of
boundaries and table survey;

(iii) The process of allotment of plots
in the Parishad's housing colony continued
for about two decades and was piecemeal
etc.

12.
 Armed
with
the
aforesaid
information provided under the provisions of
R.T.I., the petitioner vehemently argued that
the plot in question is a part of samayojan
housing scheme, which was never acquired
by
respondent
no.1
and
demand
of
development charges from the Samiti for
development of Samiti's samayojit housing
colony on khasra no.131 of VillageIsmailganj is of no relevance to acquisition or
non-acquisition. According to them the
officers of respondent no.1 have acted in a
high handed and illegal manner in creating
and auctioning Plot No.12/677 and 12/678 in
the year 2001, i.e. after 19 years of
samayojan.

13. The petitioner has also disputed the
lay out of the housing colony of the Samiti
filed by the respondents as allegedly they are
fabricated/tampered to support the illegal
actions of the respondent no.1. The petitioner
has filed certified copy of part map of khasra
plots of Village-Ismailganj, Pargana, Tehsil
and District-Lucknow showing khasra plot
no.131 along with other contiguous plots,
extract map of the housing colony of the
Samiti. The petitioner categorically contends
that plot no.12/674, 12/675 and 12/676 could
not be seen in the record of the Sampatti
Prabandhak or the concerned executive
engineer, which obviously means that no
such plots existed in the Parishad's housing
scheme of Sector-12, Indira Nagar, Lucknow.
There are too many insertions in the extract,
unlike part site plan signed by Awas Ayukt.
Further, there are many inaccuracies like
school, shop figuring in the site plan included
in the extract lay out plan, which were never
provided in the housing scheme in Sector-12,
Indiranagar, Lucknow. Thus, they say that the
site plan filed by the respondents is totally
unreliable. The petitioners have also filed
various documents relating to seeking
information and reply thereto under the
provisions of R.T.I. from the authority and/or
the appellate authority relating to the plot in
question.

14. This Court has taken pain to pen
down the facts in extenso, in order to satisfy
itself about the real controversy between the
parties. Essentially the crux of the dispute
between the parties lies in the representation
dated 31.12.2001 (annexure no.6 to the writ
petition) sent by the petitioner to the
respondent no.1, which is being extracted
herein below:-

"Dear Sir.

Sub:
Representation
against
acquisition of Plot of residential land
belonging to me adjoining Sector 12 of
Indra Nagar, Lucknow.

As a member of Navneet Sahkari Grih
Nirman Samiti Ltd, L-10/2, Badshahnagar
Colony, Lucknow was allotted Plot No. 17
in the Housing Scheme of the above society
for my residential purposes. The above plot
of land measuring about 2275 sq.ft was
sold to me by the Society on 19th May
1980. The Plot was part of a piece of land
purchased by the Society in Village
Munshipurwa
Mazra
ismailganj,
Post
Ghazipur, Tahsil & District Lucknow
situated on Kukrail Manoranjan Ban Road
Khasra No 131 (Khatauni No 193).

Since my husband has been moving on
transfer from place to place, it could not be
possible so far to construct residential
528 INDIAN LAW REPORTS ALLAHABAD SERIES
premises on the above Plot. One of my
relatives has been looking after the
property and only last week to our utter
surprise he found that someone has dug up
foundation of a building including nearly
half of my Plot. On enquiry we learn that
the person claims that adjoining land
including part of my land has been
allotted and sold by your good offices.
There has been no notice of any acquisition
proceeding either to me or to the above
named Housing Society.

I register my strong protest and objection
against this kind of illegal action and request
that the same may be rescinded and the total
area of the Plot be restored to me forthwith

Thanking you in anticipation,

Yours faithfully

(SHEELA SRIVASTAVA )

N.O.O.

CC: The Secretary

Navneet Sahkari Grih Nirman Samd: Lto
L-102 Badshahnagar Colony, Lucknow

Secretary,

Navneet Sahakan Grih Nirman Samiti 12
Nandini Vihar,

Nandini
Montessan
School
Fendra
Nagar Lucknow (UP)

Ref enquiries made by my brother S Vay
Kumar Sivastava with your Sri Bimal
Chandra Stivastava." (emphasis supplied by
underlying)

15. From the representation it is clear
that the petitioner is aggrieved because nearly
half of her plot being Plot No.17 has been
dug up by respondent no. 2 & 3 for
construction and apparently on enquiry it was
learnt by her that the respondent no. 2 and 3
claims that the adjoining land including part of
her land has been allotted and sold by
respondent no.1.

16. Thus, the issue according to this
Court primarily revolves around some
over-lapping area between the plot owned
by the petitioner on the one hand, which
has been allotted as Plot No.17 by
"Nanveet Sahkari Grih Nirman Samiti Ltd."
in khasra no. 131, Village-Ismailganj,
Pargana, Tehsil and District-Lucknow and
the plot owned as Plot No.12/678 allotted
by "U.P. Awas Evam Vikas Parishad" in
khasra no.127, Village-Ismailganj, Pargana,
Tehsil and District-Lucknow.

17. There is no denial of the fact that
both khasra no.127 and khasra no.131 are
adjoining khasra of the same village. There is
also no denial of the fact that the plot of the
petitioner, which was allotted vide sale deed
in the year 1980 remained unconstructed
through the year 2001. There is also no denial
of the fact that respondent no.1 developed
khasra no. 127 into Sector-12, Indiranagar,
Lucknow in the year 1985, however, the plot
no. 12/678 came to be auctioned and
subsequently occupied by respondent no. 2
and 3 in the year 2001 only. There is nothing
on record to suggest as to how and in what
manner the plot no.17 or plot no.12/678 can
be identifiable as independent to each other
or for that matter co-exist without causing
any violation to the territory/ boundary of the
other. The lay out plan of the respondents also
does not clearly signifies anything and if the
Court may say it makes the matter worse and
complex. It is not a case wherein the same
plot has been allotted to different individuals
and each of them are claiming their right over
the same plot, rather the issue is that a plot
which is supposed to be belonging to the
Samiti is allotted to the petitioner and the
same plot is again supposed to be that of the
respondent no.1 is now being allotted to
respondent no.2 and 3.

18. The present case essentially is for
title as possession and the consequential
relief would follow the title of the property.
9 All. Smt. Sheela Srivastava Vs. Housing Commissioner U.P. Housing Board & Dev. Board &
 Ors.
529
It is no gain saying that the adjudication of
disputed question of fact is a matter of
discretion and not a bar to the exercise of
jurisdiction under Article 226 of the
Constitution of India, but it is well known
that one of the grounds against the exercise
of discretionary power vested in the High
Court under Article 226 of the Constitution
of India is where disputed facts have to be
investigated. The reason is that when such
dispute exists between the parties, the right
claimed by the petitioner is not capable of
being
adjudicated
in
the
summary
proceedings under Article 226 of the
Constitution, because, it requires a detailed
examination of evidence as may be had in a
suit.

19. The primary object of Article 226
is enforcement of an established right and
not the establishment of a right or title
itself. The petition under Article 226 of the
Constitution of India cannot be converted
into a suit to resolve factual controversies
as the proceedings are summary in nature.
Intricate and complex questions of title to a
property, its boundaries or possession, they
cannot be ordinarily gone into by a writ
court. After perusing pleadings of the
parties, it is not possible for this Court to
conclusively record findings on factual
pleadings urged by the parties. It requires
investigation
of
disputed
facts
by
permitting the parties to lead evidences and
it also involves appreciation of evidences
that may be so led by the parties. This
Court cannot be converted into a trial court
in exercising its power under Article 226 of
the Constitution of India, particularly, when
the party which has approached this Court
under Article 226 can work out his/its
remedy by approaching the competent
jurisdictional civil court. Indisputably, there
is no dispute that khasra no.131 and khasra
no.127 (later developed as Sector-12,
Indiranagar) are situated in the same
Village-Ismailganj, Pargana, Tehsil and
District-Lucknow and both are adjoining to
each other. It is quite possible that there
must be some land over-lapping each other
as
admittedly
there
had
been
no
demarcation and the dispute also exists
relating to demarcation. As a matter of fact
none of the parties have sought for
demarcation of the disputed plots either
before filing the present case or even after
filing the same and each of them have been
holding their ground in claiming that they
are actual owners of the disputed plots. In
any case, this Court cannot lose sight of the
fact that it is only after proper demarcation
that the rights of both the petitioners and
respondents no.2 and 3 would flow from
their respective sellers which can only be
determined by leading evidences in a
competent
court
of
revenue/civil
jurisdiction as advisable to the parties.

20. In any case, disputed question that
arise for decision in the instant case cannot
be resolved on the basis of pleadings and
documents produced by the parties, and in
fact it requires further investigation into the
disputed facts. It is well settled by a catena
of judgments that the disputed question of
facts or a title to a property or a right to
possession are not, normally, examined in
proceedings under Article 226 of the
Constitution of India. Suffice, if some of
these judgments are taken note of:-

(i) In ''Sohan Lal Vs. Union of India';
(1957) SCR 738, the Supreme Court held,
thus:-

".................We do not propose to
enquire into the merits of the rival claims of
title to the property in dispute set up by the
appellant and Jagan Nath. If we were to do
so, we would be entering into a field of
investigation which is more appropriate for
530 INDIAN LAW REPORTS ALLAHABAD SERIES
a Civil Court in a properly constituted suit
to do rather than for a Court exercising the
prerogative of issuing writs. There are
questions of fact and law which are in
dispute requiring determination before the
respective claims of the parties to this
appeal can be decided. Before the property
in dispute can be restored to Jagan Nath it
will be necessary to declare that he had
title in that property and was entitled to
recover possession of it. This would in
effect amount to passing a decree in his
favour.
In
the
circumstances
to
be
mentioned hereafter, it is a matter for
serious
consideration
whether
in
proceedings
under
Art.
226
of
the
Constitution such a declaration ought to be
made and restoration of the property to
Jagan
Nath
be
ordered................."
(emphasis supplied)

(ii) In ''New Satgram Engineering
Works Vs. Union of India'; (1980) 4 SCC
570, the Supreme Court held thus:-

".............Where there is a dispute as
to whether a particular property vests or
not, the dispute undoubtedly is a civil
dispute and must, therefore, be resolved by
a suit. ..........."(emphasis supplied)

(iii)
In
''Parvatibai
Subhanaro
Nalwade (Smt.) Vs. Anawarli Hasanali
Makani'; (1992) 1 SCC 414, the Supreme
Court held thus:-

"...............Before closing this judgment
we would like to emphasise that in cases
relating to immovable properties which are
governed by the ordinary civil law the High
Court should not exercise its special
jurisdiction under the Constitution unless
the
circumstances
are
exceptional..........."(emphasis supplied)

(iv) In ''Mohan Pandey and Another
Vs. Usharani Rajgaria (Smt.) and Others';
(1992) 4 SCC 61, the Supreme Court held
thus:-

"..............It has repeatedly been held
by this court as also by various High
Courts
that
a
regular
suit
is
the
appropriate remedy for settlement of
disputes
relating
to
property
rights
between private persons and that the
remedy
under
Article
226
of
the
constitution shall not be available except
where violation of some statutory duty on
the part of a statutory authority is alleged.
And in such a case, the court will issue
appropriate direction to the authority
concerned. If the real grievance of the
respondent is against the initiation of
criminal proceedings, and the orders
passed and steps taken thereon, she must
avail of the remedy under the general law
including the criminal procedure code, the
High
Court
allow
the
constitutional
jurisdiction to be used for deciding
disputes, for which remedies, under the
general
law,
civil
or
criminal,
are
available. It is not intended to replace the
ordinary remedies by way of a suit or
application available to a litigant. The
jurisdiction is special and extra-ordinary
and should not be exercised casually or
lightly.........." (emphasis supplied)

(v) In ''State of Rajasthan Vs.
Bhawani Singh'; 1193 (Suppl.) 1 SCC
306, the Supreme Court held thus:-

"..............Having heard the counsel for
the parties, we are of the opinion, that the
writ petition was misconceived insofar as it
asked for, in effect, a declaration of writ
petitioner's title to the said plot. It is
evident from the facts stated hereinabove
that the title of the writ petitioner in very
much in dispute. Disputed question
relating to title cannot be satisfactorily
gone into or adjudicated in a writ
petition..........." (emphasis added)
9 All. C/M Seth M.R. Jaipuria School, Lko Vs. State of U.P. & Ors.
531

21. Having narrated the aforesaid
facts in extenso, this Court is of the view
that the dispute between the parties is a
property dispute which could be well
resolved by filing a suit before the
appropriate Court. Although, the petitioner
has sought for possession of the plot in
question but this Court is of the view that in
the facts of this case such a relief cannot be
given, especially when the possession has
to be established first. The Hon'ble
Supreme
Court
in
case
of
"P.R.
Murlidharan and Others Vs. Swami
Dharamananda Theertha Padar and
others", reported in (2006) 4 SC 501 held:-

"It would be an abuse of process for a
writ petitioner to approach the High Court
under Article 226 of the Constitution seeking
a writ of mandamus directing the police
authorities to protect his claimed possession
of a property without first establishing his
possession in an appropriate civil court. The
temptation to grant relief in cases of this
nature should be resisted by the High Court.
The wide jurisdiction under Article 226 of the
Constitution would remain effective and
meaningful only when it is exercised
prudently and in appropriate situations."

22. It needs no restatements at our
hands that where there is a dispute as to
whether a particular property vests or not, in
the State or in any private individual the
dispute undoubtedly is a civil dispute and
must, therefore, be resolved by a suit and not
in a proceedings under Article 226 of the
Constitution of India. It is well recognized
principle of law that a regular suit is the
proper remedy for settlement of disputes
relating to property rights between parties.

23. The upshot of the above
discussion is that writ petition deserves to
be dismissed, leaving it open to the
petitioner to agitate her grievance in a suit
before the civil court of competent
jurisdiction. Since the writ petition is
dismissed not on merits but on the ground
that this Court, in proceedings under Article
226 of the Constitution of India, would not,
normally, adjudicate disputed questions of
title, it is wholly unnecessary for this Court
to examine the respondents contention and
same
are
therefore,
left
open
for
adjudication, if need be, in appropriate
proceedings.

24. The writ petition fails and is
accordingly dismissed. However, in the
circumstances without cost.

25. Interim order, if any, stands
vacated.
----------
(2022) 9 ILRA 531
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.09.2022

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ-C No. 522 of 2022

C/M Seth M.R. Jaipuria School, Lko
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Salil Srivastava, Som Kartik Shukla

Counsel for the Respondents:
C.S.C.

A. Educational institution - CBSE Manual -
Clause 2.3.4 and 2.3.5 - Affiliation with
CBSE - Power of St.Government to issue
NOC, how can be exercised - Held, scope
of powers for grant of no objection
certificate for affiliation is only confined to
the powers of the St.for objecting only to