Mangleshwar Prasad vs State Of U.P. And 6 Others
2023 Latest Caselaw 26712 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?AFR
 
Reserved On:20.9.2023
 
Delivered On:3.10.2023
 
Neutral Citation No. - 2023:AHC:188716
 
Court No. - 51
 

 
Case :- WRIT - C No. - 24877 of 2023
 
Petitioner :- Mangleshwar Prasad
 
Respondent :- State Of U.P. And 6 Others
 
Counsel for Petitioner :- Om Prakash Pandey,Dinesh Kumar Tripathi
 
Counsel for Respondent :- C.S.C.,Sudhanshu Srivastava,Vimal Chandra Mishra
 

 
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 State-respondents 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 co-sharer. Petitioner alleged in the writ-petition 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.

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 ab-initio 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 Article-226 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:-

"???????? ??? ??????????? ?? ???? ???? ????? ?? ?????? ??? ????? ??? ????? ???????? ???? ?? ?????????? ?? ????????? ???? ??????| ?????????? ?? ??????? ??? ?????? ????? ?????? ?? ????????? ?????|"

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 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 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 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 writ-petition 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.

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. ????? ?? ????, ???? ??????? ??? ????????????

3.1 ???????

?? ????? ????? ?? ?????? ?????? ???? ??? ????? ??????? ???? 01.11.2022 ("?????) ?? ????? ???? 29 ?????? 02 ??? ?? ???? ?????? 31.12.2051 ?? ?? ??? ??? ?? ?????????? ????? ?????? ?? ??, ????? ????? ???? ?? ??????? ?? ??????, ????? ???? ?? ??? ???? ??? ?????????? ? ???????? ?? ????????? ????? ?? ??????? ?????? ?? ?? ???? ???

?? ?? ??????? ????? ????? ?? ???? ????? ?????? ?????? ?????? (??????) ???????, 2019 (????? ?????? ??????? ?????? 2 ?? 2019) ?? ??? ???? 94 (3) ?? ??????? ??? ???????? ???? ?????? ?????? ???? ????? ?? ???? ??? ????? ??????? ??????? ??? ???? ?? ??????????? ?????? ???? 30 ???? ?? ???? ??? ??????? ???????? ?? ????? ???? ????? ????? ?? ????????? ?????? ???? ?????????? ???????? ?? ?????? ???? ????????? ???? ?? ????/ ??? ???

3.2 ????????????

???? ?? ??????? ?? ???? ???? ?? ??????? ?? ???? ?? ????? ????? ??? ???????? ???? ?? ???? ?? ?? ????? ????? ?? ??????? ?? ????? ??????? ??, ???????? ?????? ????????? ?? ???? ?? ?? ??? ????? ??? ?? ???? ?? ????????, ????????????, ????????????, ??????????? ?? ??? ? ???? ?? ??? ???? ???? ?? ??????? ??? ?????? ?? ?????? ???? ???? ?? ?? ???? ?? ?????, ???????, ??????????, ???, ???? ?? ????? ?? ???????? ?? ????????? ???? ????? ?? ????????? ???????? ?? ?????? ???? ??? ???? ?????, ??????, ?????? ?? ???????? ?? ????? ?? ???? ?????? ??? ????? ??? ???????? ?? ???? ?? ???? ???? ?? ??? 6 (??) ??? ?? ??????? ????? ?? ????? ?????? ?? ???? ?? ?? ???????? ????? ?? ???? ?? ????? ?????? ?? ?????? ??????

Clause 8. ????????? ?????? ??????? ??? ?? ?? ??? ???? ?? ??? ???? ?????? ?? ??? ???? ??????? ???? ?? ?? ???? ????? ??????? ???????? ?????????/ ?????? ?? ???? ?? ???? ? ???? ?? ???? ???????????? ?? ?????"

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 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 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 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 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 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.

Order Date :- 3.10.2023

Rameez