Md. Sadir Kohinoor vs The State of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.5410 of 2024
CNR No. BRHC010263652024
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1. Md. Sadir Kohinoor, Son of Abdul Gafoor, resident of Mohalla- Ganga
Sagar, Allalpatti, P.S. - Laheriasarai, District- Darbhanga.
2. Nudrat Jahan, Wife of Md. Gulam Waris, resident of Mohalla - Ganga Sagar,
Allalpatti, P.S. - Laheriasarai, District- Darbhanga.
... ... Petitioner/s
Versus
1. The State of Bihar through the Commissioner, Darbhanga Division,
Darbhanga.
2. The Commissioner Darbhanga Division, Darbhanga.
3. The District Magistrate-cum-Collector, Darbhanga.
4. The Additional Collector, Darbhanga.
5. The Circle Officer, Sadar, Darbhanga.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Iqbal Asif Niazi, Advocate
For the Respondent/s : Mr. Government Pleader 22
Mr. Uday Prasad, AC to GP 22
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CORAM: HONOURABLE MR. JUSTICE ALOK KUMAR
CAV JUDGMENT
Date : 05-11-2026
Heard learned counsel for the petitioners and learned
counsel for the State.
2. That the instant writ application is being filed for
the following relief/reliefs :-
“(i) For issuance of a writ in the nature of
Certiorari for quashing the notice dated 08.12.2023 issued
by the Circle Office, Sadar, Darbhanga by which the
petitioner has been directed to remove the encroachment
over Khesra No.865, Area-325 sq.ft. situated at Ganga
Sagar Pokhar pursuant to order dated 23.12.2014 passed
in Encroachment Case No.3/2014-15 inspite of the fact that
the petitioner has brought to the knowledge of Circle

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Officer, Sadar, Darbhanga that they have not encroached
over the aforesaid land and they have constructed their
residential house on Khata No.54 (old) Khesra No.838
(old)/ 1478 (new) purchased by sale deeds dated
31.08.2005 and Jamabandi No.1761 and 1762 are running
and the petitioners are residing in their residential house.
(ii) For further to hold that the
Encroachment Case No.3/2014-15 which has been initiated
has nothing to do with the residential house of the
petitioners and the petitioners have not encroached over
the government land.
(iii) For further to restrain the concerned
authorities from proceeding pursuant to notice dated
08.12.2023 and not to demolish the residential house of the
petitioners.
(iv) For any other relief or reliefs for which
the petitioners may found entitled.”
3. The case of the petitioners is that they purchased
one Katha of land by two sale deeds, bearing Deed Nos. 14460
and 14461 dated 31.08.2005, of ten Dhur each, pertaining to
Khata No. 54, Khesra No. 838 (old)/1478 (new), situated at
Mohalla Ganga Sagar, Allalpatti, Darbhanga. Jamabandi Nos.
1761 and 1762 were created in their names, they pay rent
receipts, and the Land Possession Certificate has been issued by
the Circle Officer. They have constructed their residential house,
and are residing there with their family and are paying holding
tax. There is a big tank known as "Gangasagar Tank" in Mohalla
Gangasagar, and between the tank and the road there are several
plots of raiyati land in possession of recorded tenants. Due to
long erosion of the vacant land adjoining the plots of the

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petitioners and other occupants, the raiyati land looks like part
of the tank. When the State authorities, without properly
measuring the area of the tank and the raiyati land, started
disturbing the residents and instituted an encroachment case,
one Sangeeta Devi and two others approached this Court in
CWJC No. 24638 of 2018, after which by order dated
16.08.2019, this Court directed the State respondents to make a
fresh measurement of the tank and the land over which the
construction stands, and directed that status quo be maintained.
The petitioners state that the matter is still pending and the
status quo order continues. The Circle Officer, Sadar,
Darbhanga then issued the notice dated 08.12.2023, directing
the petitioners to remove the encroachment over Khesra No.
865, area 325 sq. ft., at Ganga Sagar Pokhar. The petitioners are
aggrieved by this notice, as they say they have not encroached
on that land.
4. Learned counsel for the petitioners submitted
that the State respondents, without complying with the order
dated 16.08.2019 and without properly measuring the pond and
the land on which the construction stands, proceeded to disturb
the peaceful possession of the petitioners and others and that the
petitioners therefore filed this writ application, in which status

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quo was granted on 29.03.2024. During its pendency, on legal
advice, the petitioners filed Title Suit No. 676 of 2026. In which
they seek a declaration of their right and title over the house,
purchased by registered sale deed dated 31.08.2005, and
confirmation of possession. They also seek a declaration that no
part of C.S. Plot No. 838, is under encroachment or,
alternatively, that they have acquired title by adverse possession
over more than 25 years. They further seek a permanent
injunction. An application under Order 39 Rules 1 and 2 and
Section 151 CPC was filed in that suit. It was further submitted
that in Title Suit No. 445 of 2019, filed by one Bhartendra Jha
on 17.11.2019, the State defendant stated in paras 8, 9 and 10 of
its show cause that the Amin's report had been submitted and
was under consideration of this Court, that the stay of this Court
was continuing, and that, as the stay was in existence, there was
no need for a parallel hearing. Because of this, the civil court
passed no order. It was also submitted that despite this stand, the
respondents issued the notice dated 08.12.2023 to remove the
encroachment, failing which action would be taken under
Section 188 of the IPC and as such, this notice compelled the
petitioners to approach this Court and is contrary to the State’s
own statement before the civil court.

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5. Learned counsel for the petitioners further
submitted that the Jamabandi is still running in the names of the
petitioners and has not been cancelled by any competent
authority. It was also submitted that the legal position is well
settled that no encroachment case can proceed unless and until
the Jamabandi is running in the name of the parties, and that
since it is operative here, the encroachment proceeding cannot
be sustained. Reliance was placed on this Court’s decision in
CWJC No. 720 of 2017, which set aside an order passed under
the Bihar Public Land Encroachment Act and held that the State
can take possession only if it succeeds in a title suit. Reliance
was also placed on CWJC No. 236 of 1994 reported in PLJR
2011 (1) 532, affirmed by the Division Bench as reported in
PLJR 2016 (4) 122 and in LPA No. 1155 of 2010 reported in
PLJR 2016 (3) 972. According to the Learned counsel for the
petitioners, those decisions hold that summary proceedings
under the encroachment law cannot proceed where there are
serious disputes of right, title, interest or possession. It was
lastly submitted that the State’s contradictory stand in the title
suit and in the notice is not sustainable in law. The notice is
therefore said to be illegal, arbitrary and without jurisdiction,
and Encroachment Case No. 03/2014-15 has nothing to do with

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the petitioners' residential house.
6. Learned counsel for the State/Respondent Nos. 3
to 5 submitted, that after this Court's order dated 29.03.2024, the
Circle Officer by letter No. 1018(MU) dated 29.03.2024 stayed
the operation of the encroachment proceeding. It was also
submitted that, for the proper development of three ponds
(Gangasagar, Harahi and Dighi Pokhar) in Darbhanga town,
instructions were given by the authority concerned and on the
report of the Revenue Clerk and Anchal Amin, the land of
Gangasagar Pokhar, C.S. Plot No. 865, was found encroached
upon by 48 encroachers. After due process, the Circle Officer
passed an order on 23.12.2014 declaring the encroachers,
including petitioner No. 1, to be one of the encroachers whereas,
Petitioner No. 2 was not declared an encroacher. It was also
submitted that Jamabandi No. 1761 (petitioner No. 2) and
Jamabandi No. 1762 (petitioner No. 1) do not bear C.S. Plot No.
865, and that the other C.S. plots are not the subject matter of
Encroachment Case No. 03/2014-15 and that Petitioner No. 1
was declared an encroacher on the basis of the Anchal Amin's
report, as he produced no document relating to C.S. Plot No.
865.
7. Learned counsel for the State/Respondent Nos. 3

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to 5 further submitted that Sangita Devi and others filed
Encroachment Appeal No. 50/2015 before the District
Magistrate, Darbhanga, which was decided on 20.06.2018. They
then filed CWJC No. 24638 of 2018, which was disposed of by
order dated 18.06.2019, with status quo being maintained. In
accordance with that order, the land of Gangasagar Pokhar was
re-measured in the presence of the encroachers, including
petitioner No. 1, and a field note was prepared and signed by
them. A joint report dated 03.07.2019 shows petitioner No. 1 at
Serial No. 22 among 36 encroachers, and does not show
petitioner No. 2 as an encroacher. A counter affidavit (Oath No.
2386 dated 08.07.2019) was filed in CWJC No. 24638 of 2018.
8. Learned counsel for the State/Respondent Nos. 3
to 5 also submitted that, pursuant to the order dated 21.07.2023
and other orders in CWJC No. 9692 of 2015 (Ram Punit
Chaudhary v. State of Bihar and others), the Additional Chief
Secretary, Revenue and Land Reforms Department, by memo
No. 1359 dated 25.11.2021, directed that public land, including
water bodies like pokhar and talab, be freed from encroachment.
In compliance, the then Circle Officer passed an order on
08.12.2023 in Encroachment Case No. 03/2014-15, directing
notice-II to be issued to the encroachers other than Sangita Devi

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and the other writ petitioners of CWJC No. 24638 of 2018. No
notice-II was issued in the name of petitioner No. 2. It was lastly
submitted that if the petitioners have any grievance against the
order dated 23.12.2014 and the notice-II, they must file an
encroachment appeal before the District Magistrate, Darbhanga
under Section 11 of the Bihar Public Land Encroachment Act,
1956.
9. Having heard the parties and perused the record,
it is evident that the petitioners have filed Title Suit No. 676 of
2026 during the pendency of this writ application. In which they
seek a declaration of their right and title over the house situated
over the land purchased by registered sale deed dated
31.08.2005, a declaration that no part of C.S. Plot No. 838 is
under encroachment and, in the alternative, a declaration of title
by adverse possession, along with a permanent injunction.
Given the pendency of the Title Suit, it is relevant to discuss
whether proceedings for removal of encroachment can be
initiated under the Bihar Public Land Encroachment Act, 1956
(hereinafter “the Act”) while the title suit is pending.
10. This Court in Smt. Uma Devi Sinha v. State of
Bihar, reported in 2001 (2) PLJR 587 , held that where a serious
question of title is involved, it cannot be decided under the Act.

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The proper remedy is to get the right declared by a competent
civil court, and until the right is declared in favour of the State,
the person in occupation cannot be evicted by summary
proceedings under the Act.
11. The same view has been reiterated by a
coordinate Bench of this Court in Shaila Devi & Ors. v. State of
Bihar & Ors. (Misc. Appeal No. 318/2014) , whereby it has
been held that, where the occupant raises a bona fide dispute of
title, the State cannot take recourse to summary proceedings
under the Act and must first get its right declared by a
competent civil court.
12. From the above, it is quite clear that the Act
provides a summary procedure for quick removal of
unauthorised occupants from public land. It is not meant to
resolve complicated title disputes or ownership claims, which
ought to be adjudicated by a competent civil court.
13. Consequently, the encroachment notice dated
08.12.2023 issued by the Circle Officer, Sadar, Darbhanga, in
Encroachment Case No. 03/2014-15 is hereby quashed. It is
further directed that the petitioners shall not be dispossessed or
evicted from the land in question until Title Suit No. 676 of

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2026 is decided by the competent civil court. The respondents
shall be at liberty to proceed in accordance with law after the
disposal of the pending title suit.
14. With the aforesaid directions, this writ petition
stands allowed.

(Alok Kumar, J)
khushbu/-
AFR/NAFR A.F.R.
CAV DATE 01.09.2026
Uploading Date 05.11.2026
Transmission Date