Patna High Court
CHANDRA MOHAN PASWANversusTHE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, DEPARTMENT OF HOME, BIHAR, PATNA.
- Decided
- Disposal
- DISPOSED
- Bench
- JITENDRA KUMAR
Holding
The writ petition is dismissed as the matter is a civil dispute of title and possession and the petitioners have an alternative efficacious remedy.
Summary
The petitioners, Chandra Mohan Paswan and Bishwa Mohan Paswan, claimed ownership of a house in Baunsi village and alleged that private respondent Raj Kumar Paswan had illegally encroached and threatened them. They sought a writ of mandamus to vacate the house and a fair police investigation of the related FIR. The respondent asserted a sale agreement giving him possession, while the State indicated that charge‑sheets had already been filed and that any grievance could be raised via a protest petition. The Court observed that the dispute centered on title and possession – matters of fact best decided by a civil court – and that the petitioners had an alternative efficacious remedy. Citing Supreme Court precedents on the discretionary nature of Article 226 and the rule against entertaining writs where an effective alternative remedy exists, the Court dismissed the writ petition, directing the petitioners to approach the appropriate civil forum.
Issues considered
- Whether a writ petition under Article 226 is maintainable when the dispute involves civil questions of title and possession and an alternative civil remedy is available.
- Whether the High Court can entertain a mandamus petition for eviction in a civil property dispute.
- Whether the petitioners have any remedy regarding the alleged inadequacy of police investigation.
Subjects
- Article 226
- writ of mandamus
- civil dispute
- property title
- alternative remedy
- jurisdiction
- eviction
- police investigation
- fundamental rights
- natural justice
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.104 of 2022
Arising Out of PS. Case No.-5 Year-2021 Thana- BABUBARHI District- Madhubani
======================================================
1. Chandra Mohan Paswan S/o- Late Gulab Paswan R/o Village- Baunsi, P.S.-
Babubarhi, District- Madhubani.
2. Bishwa Mohan Paswan S/o- Late Gulab Paswan R/o Village- Baunsi, P.S.-
Babubarhi, District- Madhubani.
... ... Petitioner/s
Versus
1. The State Of Bihar Through The Principal Secretary, Department Of Home,
Bihar, Patna.
2. The Principal Secretary, Deptt. of Home, Bihar, Patna.
3. The Director General of Police, Bihar, Patna.
4. The District- Magistrate, Madhubani.
5. The Superintendent of Police, Madhubani.
6. The Sub-Divisional Magistrate, Madhubani.
7. The Circle Officer, Babubarhi, District- Madhubani.
8. The Officer In Charge of Police Station, Babubarhi, District- Madhubani.
9. Raj Kumar Paswan S/o- Late Jatan Paswan R/o Village- Baunsi, P.S.-
Babubarhi, District- Madhubani.
... ... Respondent/s
======================================================
Appearance :
FFor the Petitioner/s : Mr. Brij Bihari Tiwary, Advocate
For the State : Mr. Iqbal Asif Niazi, AC to GP-5
For the Pvt. Respondent : Mr. Dharmendra Kumar Paswan, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR
ORAL JUDGMENT
Date : 11-03-2026
The present writ petition has been preferred by the
petitioners seeking writ of mandamus directing the respondent
authorities to get the house of the petitioners vacated which is
situated at village – Baunsi, P.S. - Babubarhi, District –
Madhubani bearing Khata No. 30 (old)/53(new), Khesra No.
364(old)/467(new), Khata No. 30(old)/94(new) and Khesra No.
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364(old)/466(new) and vested with right and title in favour of
the petitioners which has been illegally encroached upon by
private Respondent No. 9/Raj Kumar Paswan. The petitioners
are also seeking direction to the respondent authorities,
particularly the officer-in-charge of Babubarhi Police Station to
investigate the P.S. Case No. 05 of 2021 in a fair and impartial
manner as respondent No. 9 has not only encroached the house
of the petitioners, but has been even threatening them of dire
consequences and police is not taking proper steps to ensure the
safety of the petitioners.
2. In counter affidavit, filed by private respondent No.
9/Raj Kumar Paswan, it has been claimed that the possession of
the house in question has been got by Private Respondent No. 9
from one Mithilesh Kumar Singh in pursuance of agreement for
sale. But as per the claim of the petitioners, they have got the
sale deed in regard to the house in question subsequently in the
year, 2016 and 2019 and accordingly, they are claiming title to
the property. Hence, this is a case of civil dispute regarding right
and title in regard to the property in question. Therefore, this
writ petition is not maintainable because only the Civil Court of
competent jurisdiction can adjudicate the dispute between the
parties.
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3. Learned counsel for the State has also filed counter
affidavit and submits that after proper investigation in
Babubarhi P.S. Case No. 05 of 2021, lodged by the petitioners,
charge-sheet has been submitted and even in counter FIR
bearing Babubarhi P.S. Case No. 06 of 2021, charge-sheet has
been submitted after proper investigation, filed by the wife of
respondent No. 9 and if the petitioners have any grievance, they
have liberty to file protest petition against the charge-sheet and
closure of the case against some accused persons.
4. Heard learned counsel for the petitioners, learned
counsel for the State and learned counsel for the private
respondent No. 9.
5. Learned counsel for the petitioners submits that the
petitioners have purchased the land in question from Jyoti
Kumar Singh, Ashok Kumar Singh and Mithilesh Kumar Singh
in the year, 2016 and 2019 and they got the possession of the
land. However, subsequently, when the petitioners were away
from the home, because petitioner No. 1 was a Block
Development Officer in Naubatpur at Samastipur district and
petitioner No. 2 was working as Station Superintendent at
Samastipur district, private respondent No. 9 had taken
advantage of their absence and they entered into the house of
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the petitioners in the year, 2019 itself. Hence, the present writ
petition has been filed for eviction of private respondent No. 9
from the house of the petitioners.
6. Learned counsel for the petitioners further submits
that to get the house back, they have filed one application before
the concerned Circle Officer, but respondent No. 9 did not
appear. Hence, the petitioners were constrained to move this
Court and they have also filed one criminal case bearing
Babubarhi P.S. Case No. 05 of 2021.
7. I considered the submissions advanced by both the
parties and perused the materials on record.
8. It clearly transpires that there is a disputed claim by
both the parties regarding right and title to the house in question.
There is also dispute regarding possession of the property. As
per the petitioners, they have got this house in question by way
of sale deed with possession in the year, 2016 and 2019.
However, in the year, 2019, private respondent No. 9 has
forcibly entered into the house of the petitioners. As per claim of
Respondent No 9, he has got the possession of the house in
question in pursuance of agreement for sale in the year, 2014
from one Mithileshwar Prasad Singh and it is false to say that
the petitioners have ever got possession of the house in
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question.
9. As such, it is a disputed question of facts regarding
right and title and possession and hence, only the Civil Court is
competent to adjudicate the civil dispute between the parties and
the writ Court cannot decide the disputed question of facts. It is
only Civil Court who can decide the right, title and possession
of the parties in regard to the property in question.
10. Hence, the petitioners have alternative efficacious
remedy by way of filing appropriate Civil Suit before the
competent Civil Court.
11. As far as proper investigation in Babubarhi P.S.
Case No. 05 of 2021 is concerned, as per learned counsel for the
State charge-sheet has been submitted in this case. Hence, if the
petitioners have still any grievance regarding investigation done
by the police, they have remedy to file protest petition before
the concerned Magistrate. As such, here again there is
alternative efficacious remedy to the petitioners in regard to the
grievance of improper investigation, if any, in the FIR bearing
Babubarhi P.S. Case No. 05 of 2021.
Availability of Efficacious Alternative Remedy And
Entertainaibility/Maintainability of Writ Petition Under
Article 226 Of The Constitution.
12. Now question arises, whether the writ petition is
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maintainable in view of the availability of the efficacious
alternative remedy to the Petitioners. Here, it may be pointed
out that maintainability and entertainability of a writ petition are
distinct concepts. The objection as to maintainability goes to the
root of the matter and if such objection is found to be of
substance, the Court is rendered incapable of even receiving the
lis for adjudication. However, the question of entertainability is
entirely within the realm of discretion of the High Court, as writ
remedy is discretionary. Writ Petition, despite being
maintainable may be not entertained by a High Court for many
reasons or relief could even be refused to the Petitioners, despite
setting up a sound legal point, if grant of the claimed relief
would not further public interest. It may be further pointed out
that availability of efficacious alternative remedy is not an
absolute bar to maintainability of a writ petition. However, the
Court can still refuse to entertain the writ petition, if the
Petitioner has efficacious alternative remedy as held by Hon’ble
Supreme Court in Godrej Sara Lee Ltd. Vs. Excise and
Taxation Officer-cum-Assessing Authority and Others as
reported in (2023) SCC OnLine SC 95. Relevant paragraph of
the judgment reads as follows:
“4. Before answering the questions, we feel the urge
to say a few words on the exercise of writ powers
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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
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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.
(Emphasis supplied)
13. It has been also held by Hon’ble Supreme Court in
Whirlpool Corporation Vs. Registrar of Trade Marks,
Mumbai and Ors. as reported in (1998) 8 SCC 1 that power to
issue prerogative writs under Article 226 of the Constitution is
plenary in nature and is not limited by any other provision of the
Constitution. The High Court has discretion to entertain or not
to entertain a writ petition and the High Court has imposed upon
itself certain restrictions, one of which is that if an effective and
efficacious alternative remedy is available to the Petitioner, the
High Court would not normally exercise its jurisdiction.
However, this restriction is not an absolute bar to
maintainability of the writ petition. The High Court can
entertain the writ petition in the following three contingencies,
namely the writ petition has been filed for enforcement of any
of the Fundamental Rights or where there has been any violation
of Principle of Natural Justice or where the order or proceedings
are wholly without jurisdiction or the vires of an Act is
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challenged. The relevant paragraph of the judgments reads as
follows:
“14. The power to issue prerogative writs under
Article 226 of the Constitution is plenary in nature and is
not limited by any other provision of the Constitution.
This power can be exercised by the High Court not only
for issuing writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari for
the enforcement of any of the Fundamental Rights
contained in Part III of the Constitution but also for “any
other purpose”.
15. Under Article 226 of the Constitution, the High
Court, having regard to the facts of the case, has a
discretion to entertain or not to entertain a writ petition.
But the High Court has imposed upon itself certain
restrictions one of which is that if an effective and
efficacious remedy is available, the High Court would not
normally exercise its jurisdiction. But the alternative
remedy has been consistently held by this Court not to
operate as a bar in at least three contingencies, namely,
where the writ petition has been filed for the enforcement
of any of the Fundamental Rights or where there has been
a violation of the principle of natural justice or where the
order or proceedings are wholly without jurisdiction or the
vires of an Act is challenged. There is a plethora of case-
law on this point but to cut down this circle of forensic
whirlpool, we would rely on some old decisions of the
evolutionary era of the constitutional law as they still hold
the field.”
(Emphasis supplied)
14. In Radha Krishan Industries vs. State of
Himachal Pradesh and Others as reported in (2021) 6 SCC
771 Hon’ble Supreme Court has further held as follows after
referring to relevant Judicial precedents:
“27. The principles of law which emerge are that:
27.1. The power under Article 226 of the Constitution
to issue writs can be exercised not only for the
enforcement of fundamental rights, but for any other
purpose as well.
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27.2. The High Court has the discretion not to
entertain a writ petition. One of the restrictions placed on
the power of the High Court is where an effective alternate
remedy is available to the aggrieved person.
27.3. Exceptions to the rule of alternate remedy arise
where : (a) the writ petition has been filed for the
enforcement of a fundamental right protected by Part III
of the Constitution; (b) there has been a violation of the
principles of natural justice; (c) the order or proceedings
are wholly without jurisdiction; or (d) the vires of a
legislation is challenged.
27.4. An alternate remedy by itself does not divest
the High Court of its powers under Article 226 of the
Constitution in an appropriate case though ordinarily, a
writ petition should not be entertained when an efficacious
alternate remedy is provided by law.
27.5. When a right is created by a statute, which itself
prescribes the remedy or procedure for enforcing the right
or liability, resort must be had to that particular statutory
remedy before invoking the discretionary remedy under
Article 226 of the Constitution. This rule of exhaustion of
statutory remedies is a rule of policy, convenience and
discretion.
27.6. In cases where there are disputed questions of
fact, the High Court may decide to decline jurisdiction in a
writ petition. However, if the High Court is objectively of
the view that the nature of the controversy requires the
exercise of its writ jurisdiction, such a view would not
readily be interfered with.
28. These principles have been consistently upheld
by this Court in Chand Ratan v. Durga Prasad, (2003) 5
SCC 399, Babubhai Muljibhai Patel v. Nandlal Khodidas
Barot, (1974) 2 SCC 706] and Rajasthan SEB v. Union of
India, (2008) 5 SCC 632] among other decisions.”
Present Case
15. Coming to the case on hand, I find that the
petitioners have alternative efficacious remedy as discussed
above and there is no exceptional circumstances pleaded in writ
petition which may warrant any interference by this Court.
16. Under such facts and circumstances, the present
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petition is dismissed with liberty to the petitioners to move
competent Civil Court in regard to Civil matter. They can also
move the concerned Jurisdictional Magistrate by way of filing
protest petition against improper investigation, if any, done by
the police in the subject FIR or the petitioners are at liberty to
pursue any other remedy as per advice.
(Jitendra Kumar, J)
shoaib/-
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 12.03.2026.
Transmission Date 12.03.2026.
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