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Patna High Court

Meena DeviversusThe State of Bihar through Superintendent of Police.

Decided
Disposal
DISPOSED

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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