Patna High Court
Kishore MahtoversusThe State of Bihar
- Decided
- Disposal
- DISPOSED
- Bench
- PURNENDU SINGH
Holding
The Court held that it is premature to interfere with the cancellation proceeding and disposed of the writ petition, directing verification of the heirs' status and the scheme's hereditary provisions.
Summary
The petitioners, four brothers, claimed that a parcel of land allotted to their deceased father under a welfare scheme had been occupied by them and a house was constructed. The Additional Collector initiated a Jamabandi cancellation proceeding (Case No. 28/2025-26) without impleading the heirs, prompting the petitioners to seek quashing of the order, a stay of the proceeding, and restraint on demolition of their house. The State argued that the earlier judgment in Ramowtar Lakhotia was not applicable and that the petitioners should seek remedy before the Collector, citing the ultra‑vires nature of Section 9(1) of the Bihar Land Mutation Act, 2011. The Court examined the statutory provisions, noting that land allotted under the welfare scheme is heritable but not transferable under Section 27(3) of the Bihar Land Reforms Act, 1961, and found that it was premature to determine whether the petitioners' possessory right had crystallized. Consequently, the Court disposed of the writ petition, directing the District Magistrate/Collector to verify the heirs' status and the scheme’s hereditary provisions, and did not grant any interim relief.
Issues considered
- Whether the order of Jamabandi cancellation under Section 9(1) of the Bihar Land Mutation Act, 2011 is ultra vires and can be quashed.
- Whether the petitioners have a vested/heritable right to the land allotted under the welfare scheme to challenge the cancellation.
- Whether the Court can grant a stay of the cancellation proceeding and restrain demolition of the house.
- Whether the earlier judgment in Ramowtar Lakhotia is applicable to the present facts.
Legislation cited
Subjects
- Jamabandi
- Land Mutation
- Welfare Scheme
- Heritable Right
- Land Reforms
- Quashing Order
- Stay of Proceedings
- Demolition
- Dakhal Dehani
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.1397 of 2026
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1. Kishore Mahto Son of Late Biranchi Nuniya @ Biranchi Mahto,, Resident
of Village Kudhaili, P.S. Dighal Bank, District Kishanganj.
2. Krishna Mahto @ Vershan Mahto, Son of Late Biranchi Nuniya, Resident of
Village Kudhaili, P.S. Dighal Bank, District Kishanganj.
3. Vijay Mahto, Son of Late Biranchi Nuniya, Resident of Village Kudhaili,
P.S. Dighal Bank, District Kishanganj.
4. Bharat Mahto, Son of Late Biranchi Nuniya, Resident of Village Kudhaili,
P.S. Dighal Bank, District Kishanganj.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Department of
Revenue/Land Reforms, Bihar, Patna.
2. The District Magistrate, Kishanganj.
3. The Additional Collector, Kishanganj.
4. The Deputy Collector of Land Reforms, Kishanganj.
5. The Superintendent of Police, Kishanganj.
6. The S.H.O., Kodhobari Police Station, Kishanganj.
7. The Circle Officer, Dighal Bank, Kishanganj.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Abdul Mannan Khan, Advocate.
Mr. Nihal Beg, Advocate.
Mr. Shive Kumar, Advocate.
For the Respondent/s : Mr. Tripurari Nath Ambastha, AC to SC-26.
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL ORDER
2 31-01-2026 Heard learned counsel appearing on behalf of the
petitioners and learned counsel for the State.
2. The petitioners in paragraph no. 1 of the present
writ petition have sought, inter alia, following relief(s), which is
reproduced hereinafter:-
“(i) For issuance of an appropriate writ, order
or direction for quashing the order dated 25.09.2025 in
Patna High Court CWJC No.1397 of 2026(2) dt.31-01-2026
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Cancellation Case No. 28/2025-26 by the respondent
Additional Collector, Kishanganj against one Biranchi
Nuniya (A Dead Person) initiating a Jamabandi
cancellation proceeding without impleading his legal heirs
in the Jamabandi Cancellation Case and also for quashing
the entire consequential proceeding of the aforesaid case.
(ii) For issuance of an appropriate writ, order
on direction for grant of ad-interim stay of the entire
proceeding of Jamabandi Cancellation Case No. 28 of
2025-26 pending before the respondent Additional
Collector, during pendency of this writ petition.
(iii) For issuance of an appropriate writ, order
or direction restraining the respondent authorities from
interfering in the peaceful possession and occupation of the
petitioners and others legal heirs of settlee by initiating a
quite vexatious cancellation proceeding in garb of a regular
title suit through a summary proceeding.
(iv) For issuance of an appropriate writ, order
or direction restraining the respondent authorities from
demolishing the petitioners' house and the house of other
legal representatives of the deceased settlee in the name of
operation Dakhal Dehani during the pendency of this writ
petition.
(v) For issuance of an appropriate writ, order
or direction for grant of any other relief or relief which may
deem fit and proper in the facts and circumstances of the
case.”
3. Learned counsel appearing on behalf of the
petitioners submitted that the father of the petitioners was
allotted a piece of land over which they have constructed a
Pakka house and now the Additional Collector on the basis of
the report of the Circle Officer, Dighalbank, Kishanganj has
initiated a Jamabandi cancellation proceeding being Case No.
28/2025-2026 after death of the father of the petitioners in
respect of the land settled in the name of the father of the
petitioners who was a landless person. Learned counsel further
submitted that in due course of time, the petitioners’ right has
crystallized and their right over the property over which they
have a residential house. Learned counsel submitted that if the
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Jamabandi is cancelled, the petitioners who are residing in the
house, they will be forced to vacate it and to protect their right,
interference of this Court is required. Learned counsel has also
relied upon the judgment passed by this Court in C.W.J.C. No.
16494 of 2018 (Ramowtar Lakhotia Vs. The State of Bihar &
Ors.).
4. Per contra, learned counsel appearing on behalf of
the State submitted that the judgment dated 10.04.2024 passed
in C.W.J.C. No. 16494 of 2018 is not of any benefit to the
petitioners as the said case is related to Jamabandi over which
the petitioner / appellant of the said case had claimed their right
and title on the basis of the Khatiyani Raiyat. The Division
Bench had striked down the impugned Section 9(1) of the Bihar
Land Mutation Act, 2011 to the extent it confers power upon the
Additional Collector “to dispossess the person whose
Jamabandi has been cancelled and to put in possession the
legitimate owner/custodian of such land on such terms as may
appear to be fair and equitable”. Learned counsel further
submitted that corresponding Rules 13(11) and 13(12) of the
Bihar Land Mutation Rules, 2012 has also been held ultra vires
Article 300A of the Constitution of India, apart from that being
beyond the scope & ambit of Entry 45 of List II of Schedule
VII. Learned counsel having distinguished the case of the
petitioners in light of the judgment dated 10.04.2024 submitted
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that the petitioners have remedy before the Collector for
claiming their right and relief as sought for.
5. Heard the parties.
6. Having heard the rival submissions, the petitioners
have based their argument on the Division Bench judgment of
this Court in the case of Ramowtar Lakhotia (supra). The
provision of Section 9(1) of the Bihar Land Mutation Act, 2011
has been held to be ultra vires. Section 26 of the Act defines
Jamabandi. This clarified that the procedure for cancellation of
jamabandi can only be adopted in such cases where a person is
aggrieved in respect of any land over which he has a title. In the
present case, it cannot be said that the Circle Officer has
committed error in referring the case in respect of the land over
which the petitioner has constructed a house for cancellation of
Jamabandi.
7. The petitioners have claimed and admitted that the
said land was allotted to their father under a welfare scheme
providing land to the landless person and at the time of
allotment, their father was a landless person. There is no
information in respect of the fact that subsequent to the death of
the petitioners’ father, they are still landless so that they can
continue to be in possession over the land allotted as per welfare
scheme.
8. Section 27(3) of the Bihar Land Reforms (Fixation
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of Ceiling Area and Acquisition of Surplus Land) Act, 1961
provides that “the land settled by the Collector under sub-
section (1) shall be heritable but shall not be transferable”.
9. I find that it is pre-mature for this Court to enter
into the question, as to whether, the petitioners have crystallized
their possessory right in view of the admitted position that the
father of the petitioners was landless and under the welfare
scheme, he was allotted a piece of land over which a dwelling
house is existing. The District Magistrate cum Collector is
required to verify, as to whether, the petitioners who are the son
of late Biranchi Nuniya have any land and he is a landless
person and also verify whether the scheme provides for any
hereditary right to the heirs of the landless person in whose
name the land was allotted for dwelling purpose.
10. The writ application, accordingly, stands disposed
of.
(Purnendu Singh, J)
mantreshwar/-
U
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