Patna High Court
Meena DeviversusThe State of Bihar through Superintendent of Police.
- Decided
- Disposal
- DISPOSED
- Bench
- JITENDRA KUMAR
Holding
The writ petition is dismissed as the dispute is civil in nature and an efficacious alternative remedy exists, with no exception to the rule against entertaining such petitions.
Summary
The petitioners, members of the Bhagat family, sought a writ of mandamus directing the private respondents to restore a 1.5 decimal ancestral land that they allege was forcibly taken with the police officer's connivance. The private respondents countered that they hold title by purchase under a sale deed. The State and private respondents argued that the matter is a civil dispute and that the petitioners have an efficacious alternative remedy in a civil suit. The Court examined the distinction between maintainability and entertainability of writ petitions under Article 226, citing Supreme Court precedents on the availability of alternative remedies and the limited exceptions to the rule. Finding a genuine dispute over title and no applicable exception, the Court held that the writ petition is not entertainable and dismissed it, allowing the petitioners to pursue a civil suit.
Issues considered
- The writ petition's maintainability and entertainability under Article 226 when an alternative civil remedy is available.
- Whether the dispute over land title is a civil matter falling outside the scope of writ jurisdiction.
- Whether any of the recognized exceptions (fundamental rights, violation of natural justice, jurisdictional defect, or challenge to vires of a statute) apply to justify entertaining the writ.
Subjects
- Article 226
- writ jurisdiction
- alternative remedy
- civil dispute
- mandamus
- maintainability
- entertainability
- property dispute
- high court
- constitutional law
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.209 of 2022
Arising Out of PS. Case No.-5 Year-2021 Thana- SIKANDRA District- Jamui
======================================================
1. Meena Devi, W/o Late Ganga Bhagat, Resident of Village - Sikandra Bazar,
Mali Tola, P.S.- Sikandra, Distt.- Jamui.
2. Kanchan Kumari, D/o Late Ganga Bhagat, Resident of Village - Sikandra
Bazar, Mali Tola, P.S.- Sikandra, Distt.- Jamui.
3. Pinki Kumari, D/o Late Ganga Bhagat, Resident of Village - Sikandra Bazar,
Mali Tola, P.S.- Sikandra, Distt.- Jamui.
4. Rajesh Kumar, S/o Late Ganga Bhagat, Resident of Village - Sikandra
Bazar, Mali Tola, P.S.- Sikandra, Distt.- Jamui.
5. Umesh Kumar Bhagat, S/o Late Ganga Bhagat, Resident of Village -
Sikandra Bazar, Mali Tola, P.S.- Sikandra, Distt.- Jamui.
... ... Petitioners
Versus
1. The State of Bihar through Superintendent of Police. Bihar
2. Director General of Bihar, Patna. Bihar
3. District Magistrate, Jamui, Distt.- Jamui. Bihar
4. S.P. Jamui, Distt. Jamui. Bihar
5. Officer in charge, Sikandra P.S, Distt.- Jamui. Bihar
6. Gayetri Devi, W/o Late Rajendra Prasad Keshri, Resident of Village -
Sikandara, Ward no.03, P.S.- Sikandra, Distt.- Jamui.
7. Vikash Keshari, Son of Rajendra Prasad Keshri, Resident of Village -
Sikandara, Ward no.03, P.S.- Sikandra, Distt.- Jamui.
8. Navin Keshari, Son of Rajendra Prasad Keshri, Resident of Village -
Sikandara, Ward no.03, P.S.- Sikandra, Distt.- Jamui.
9. Praveen Keshari, Son of Rajendra Prasad Keshri, Resident of Village -
Sikandara, Ward no.03, P.S.- Sikandra, Distt.- Jamui.
... ... Respondents
======================================================
Appearance :
For the Petitioners : Mr. Prabhat Ranjan Singh, Advocate
For the Respondent No.6 to 9 : Dr. Anjani Prasad Singh, Advocate
Mr. Sunny Kumar, Advocate
For the State : Mr. Ajay Kumar, AC to GP-4
======================================================
CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR
ORAL JUDGMENT
Date : 26-03-2026
The present Criminal Writ Petition has been preferred by
the Petitioners seeking direction to the Official and Private
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Respondents to restore their ancestral landed property
measuring 1.5 decimal, bearing Khata No. 485, Khesra
No.1855, alleging that the Private Respondent Nos. 6 to 9 have
forcibly dispossessed them with the connivance of Respondent
No.5 herein.
2. The private respondents have appeared after
notice and they have filed counter affidavit submitting that they
have title to the landed property in question as they have
purchased it byway of sale deed, executed by one Chameli Devi
in their favour.
3. I heard learned counsel for the Petitioners, learned
A.C. to G.P-4 for the State and learned counsel for the private
Respondent Nos. 6 to 9.
4. Learned counsel for the Petitioners submits that the
Private Respondents have illegally dispossessed them from the
land in question with connivance of the Respondent No.5, who
is in-charge of the police station, Sikandra, Jamui. Hence, this
Court may issue writ of mandamus, directing the private
respondents to restore the property to them.
5. However, learned counsel for the State and learned
counsel for the private Respondents vehemently oppose the
prayer of the Petitioners submitting that the writ petition is
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liable to be dismissed in view of the fact that the alleged facts
and circumstances constitute a dispute of civil nature, for which
the Petitioner have alternative remedy by way of filing
appropriate civil suit before the competent Civil Court.
6. I considered the submission advanced by both the
parties and perused the material on record.
Availability of Efficacious Alternative Remedy And
Entertainaibility/Maintainability of Writ Petition Under
Article 226 Of The Constitution.
7. The question arises, whether the writ petition is
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
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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
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
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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.
(Emphasis supplied)
8. 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
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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
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
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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)
9. 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.
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
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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
10. I find that there is dispute between the Petitioners
and the Private Respondents in regard to the title to the landed
property in question. As per the Petitioners, the land in question
is their ancestral property and they have been forcibly
dispossessed by the private respondents. The Private
Respondents are, however, claiming that the land in question
has been acquired by them by way of purchase. As such, there is
a civil dispute between the parties and the Petitioners have
efficacious alternative remedy by way of filing of appropriate
civil suit before Competent Civil Court.
11. Accordingly, the present petition is dismissed with
the liberty to the Petitioners to file appropriate Civil Suit before
Competent Civil Court, if so advised.
(Jitendra Kumar, J.)
Chandan/-
AFR/NAFR A.F.R.
CAV DATE N.A
Uploading Date 30.03.2026
Transmission Date 30.03.2023
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