Shyam Kishore Sharma @ Shyam Kishore Hazari vs The State of Bihar
- Court
- Patna High Court
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.228 of 2021
======================================================
1. Shyam Kishore Sharma @ Shyam Kishore Hazari, Son of Late Ram Ratan
Sharma @ Bambholi Hazari, Resident of Village- Tetari, P.S.- Dandari,
District- Begusarai, Presently residing at Ward No. 36, Pokharia, Begusarai,
P.S. and District- Begusarai.
2. Krishn Murari Kumar, Son of Sri Kamal Nayan Sharma, Resident of
Village- Tetari, P.S.- Dandari, District- Begusarai.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Minor Water Resources
Department, Government of Bihar, Patna.
2. The Principal Secretary, Minor Water Resources Department, Government
of Bihar, Patna.
3. The Chief Engineer (Planning, Monitoring and Underground), Minor Water
Resources Department, Bihar, Patna.
4. The Superintending Engineer, Minor Water Resources Circle, Begusarai.
5. The Executive Engineer, Minor Water Resources Division, Begusarai.
6. The Collector, Begusarai.
7. The Circle Officer, Dandari, District- Begusarai.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Vaidehi Raman Prasad Singh, Advocate
Mr. Uday Kumar, Advocate
For the Respondent/s : Mr. Nadim Seraj, GP-5
Mr. Nalin Vilochan Tiwary, AC to GA-9
======================================================
CORAM: HONOURABLE MR. JUSTICE SOURENDRA PANDEY
C.A.V. JUDGMENT
Date :14-05-2026
Heard the learned counsels for the parties.
2. The petitioners have prayed for the following
relief:-
“ a) For grant of an appropriate writ for a
direction to the respondents to pay to the petitioners
Patna High Court CWJC No.228 of 2021 dt.14-05-2026
2/24
the cost for filling earth in the excavated portion of the
private lands of the petitioners (plot no. 1702 under
khata No. 113 situate in village Tetari, PS- Dandari,
Dist. Begusaral) illegally dug by the respondents in the
name of 'Ground Water Recharge/ Irrigation Scheme'
and renovation of dilapidated traditional source of
water under "Jal Jeevan Hariyali Abhiyan" of the State
of Bihar.
b) For grant of an appropriate writ for a
direction to the respondents to pay to the petitioners
and others whose lands have been illegally excavated
the compensation for the damages caused to the land
and crop.
c) For grant of an appropriate writ for a
direction to the respondents to desists from treating the
private agricultural land of the petitioners as 'sairat'
and to desists from settling the same with any person
for fisheries or other purposes.”
3. The petitioners have also prayed for quashing the
order dated 10.01.2026 passed by the Additional Collector,
Begusarai, in Jamabandi Cancellation Case No.44/2021-22 (off
line)/Case No.55/2022-23 (on line), whereby the different
Jamabandies created with respect to Khesra No.1702 measuring
40.34 acres under Khata No.113 situated in village Tetari,
Anchal Dandari, District Begusarai, were cancelled. The said
prayer was made through I.A. No.1 of 2026, as the aforesaid
order was passed during the pendency of the present writ
Patna High Court CWJC No.228 of 2021 dt.14-05-2026
3/24
application.
4. The present writ application, under Article 226
of the Constitution of India, has been preferred by the
petitioners for a direction to the respondents to pay them the
cost for filling Earth in the excavated portion of the private
lands of the petitioners, bearing Plot No. 1702 under Khata No.
113, situate in Village-Tetari, P.S.-Dandari, District-Begusarai,
which was illegally dugged by the respondents in the name of
“Ground Water Recharge/Irrigation Scheme” and renovation of
dilapidated traditional source of water under “Jal Jeevan
Hariyali Abhiyan” of the State of Bihar.
5. The facts giving rise to the present writ
application is to the effect that the land, bearing Khesra/Plot No.
1702 under Khata No. 113, situate at Village-Tetari, P.S.-
Dandari, District-Begusarai, measuring 40.34 acres (49 Bighas,
18 Kathas and 14 Dhurs), as per the Khatiyan , was recorded as
“Gairmazarua Khas” land of the Ex-Zamindar under Old Tauzi
No. 629. In the year 1912, Bibi Aisha, descendant of the Ex-
Zamindar, transferred her interest in the said Tauzi Nos. 7790
and 7792 (old Tauzi No. 629) of Village-Tetari, measuring 49
Bighas, 18 Katthas and 14 Dhurs, to Bhadri Hazari through a
registered sale-deed, who, thereafter, came into possession over
Patna High Court CWJC No.228 of 2021 dt.14-05-2026
4/24
the same. However, in the year 2020, the Circle Officer,
Dandari issued a notice alleging that the nature of the lands in
question, having Khesra No. 1702, was “Gairmazarua Khas”
(‘Sairat’) and initiated proceedings for cancellation of
Jamabandis , claiming that such lands cannot be settled with
individuals. Despite objections having been filed by the
petitioners, asserting private ownership and possession, the
authorities proceeded to treat the lands in question as
Government lands. Under the “Jal Jeevan Hariyali Abhiyan” ,
the respondents-State undertook excavation work over more
than 20 acres of the disputed land for the purposes of water
conservation while ignoring the objections and pending
grievances. The petitioners contended that the lands are neither
river, nala, pond, nor recorded as ‘Sairat’ , but are their private
Raiyati lands. The petitioners, thus, claimed that the
respondents-State have illegally excavated their private lands
and are liable for their restoration.
6. The learned counsel appearing on behalf of the
petitioners submits that in the year 1912, Bibi Aisha, descendant
of the Ex-Zamindar, transferred her interest in the said Tauzi
including Khesra No. 1702, to Bhadri Hazari through a
registered sale-deed, who, thereafter, came into possession over
Patna High Court CWJC No.228 of 2021 dt.14-05-2026
5/24
the same. In the year 1944, said Bhadri Hazari settled portions
of the lands in favour of several persons for which Jamabandis
were created and rent was regularly paid to the State. It has
been submitted that subsequently through registered sale-deeds
and relinquishment (Ladavi) deeds, different portions of the
lands were transferred among successors and transferees
including the petitioners or their predecessors and since then,
the Jamabandis continued in their names and they remained in
cultivating possession, growing crops and paying rent regularly
to the State of Bihar.
7. The learned counsel for the petitioners submits
that a portion of Khesra No. 1702 was acquired in 1954-55 for
the construction of Gandak River Bandh and compensation was
paid to the recorded Raiyats . Further, in the year 2019, GAIL
(India) Ltd. acquired part of the lands under the Petroleum and
Minerals Pipelines Act, recognizing the Raiyati nature of the
lands. It has been submitted that Khesra No. 1702 is cultivable
land and both Kharif and Rabi crops are grown therein and the
different transferees of Khesra No. 1702 including the
petitioners or their ancestors are/were in possession of their
respective shares in the transferred lands and are paying rent
regularly to the State of Bihar.
Patna High Court CWJC No.228 of 2021 dt.14-05-2026
6/24
8. It has been submitted on behalf of the petitioners
that the Chief Engineer (Planning, Monitoring and
Underground), Minor Water Resource Department, Govt. of
Bihar, Patna, on 14.09.2019, issued notice inviting Tender No.
6/2019-20 for ground water recharge/irrigation scheme under
“Jal Jeewan Hariyali Abhiyan” for excavation/renovation of
ponds, ‘Aahar’, ‘Pain’, etc. in the State of Bihar, which included
“Tetari Moin” within Dandari Block at Serial No. 170 and then
the Circle Officer, Dandari, after about 70 years of creation of
Jamabandis in favour of the ancestors of the petitioners, issued
a notice dated 04.03.2020 to the heirs and descendants of
Ambika Hazari, Harihar Hazari, Ram Kripal Hazari, Chhotu
Hazari, Bambholi Hazari, Bhadri Hazari, and Rameshwar
Singh, regarding cancellation of Jamabandis created in favour
of the transferees of Bhadri Hazari and their subsequent
transferees. The notice stated that Khesra No. 1702 is recorded
as “Gairmazarua Khas Man” , identified as ‘Sairat’ lands under
Dandari, Begusarai.
9. It has next been submitted that an objection was
filed with respect to the said notice stating that the lands were
private lands of Ambika Hazari and others. It has been
submitted that the authorities failed to consider the objections
Patna High Court CWJC No.228 of 2021 dt.14-05-2026
7/24
filed by the petitioners and started excavating a portion of the
lands of Khesra No. 1702 belonging to the petitioners and
others. It has further been submitted that the lands in question
are neither river, nor nala, nor pond, nor road and it was never
recorded as ‘Sairat’ in the ‘Sairat’ Register. It has been
submitted that the lands in question are the private lands of the
petitioners and it was used for cultivation and Jamabandis with
respect to the same have been rightly created in favour of the
petitioners.
10. The learned counsel for the respondents-State,
referring to the counter affidavit filed on behalf of respondent
No. 2 to 5, submits that the lands in question, bearing Khesra
No. 1702 under Khata No. 113 situate in Village-Tetri, P.S.-
Dandari, District-Begusarai is recorded as “Gairmazaura
Khas” land of Ex-Zamindar under old Tauzi No. 629. It has
been submitted that the Circle Officer, Dandari (Begusarai) sent
a notice to several persons on 04.03.2020, as mentioned in the
letter to cancel their rent receipts and informed them that the
land under Mouza-Tetri, Khata No. 113, Khesra No. 1702
defines nature of land being “Gairmazura Khas” lands and the
lands in question was marked as a ‘Sairat’ land. Thus, the rent
receipts (Jamabandis) taken by them and others upon the lands
Patna High Court CWJC No.228 of 2021 dt.14-05-2026
8/24
in question are not legal and justified according to the Revenue
Department.
11. The learned counsel for the respondent-state
submits that in order to issue a writ, the petitioner himself has to
make a clear demand as to enforcement of legal right to the
officer having the requisite authority to perform the said demand
and furthermore, the authority against whom mandamus is
sought must have rejected the earlier demand. The learned
counsel for the respondent-state relies on “Juman Lal Dewangan
v. State of Chattisgarh” WP(S) no.599 of 2107, paragraphs '3'
and '4'.
12. The Learned counsel for the respondents-State
submits that letter issued under the signature of the Circle
Officer, Dandari on 04-03-2020 shows that upon such lands, the
Animal Husbandry and the Department of Fisheries, Govt. of
Bihar, continuously issued a Bid in favour of Jalkar .
13. The learned counsel for the respondents-State,
referring to the counter affidavit filed on behalf of respondent
Nos. 6 & 7, submits that the lands in question were vested with
the State of Bihar after vesting of Jamindari rights, as ex-land
lord has not submitted return with regard to the lands in
question in the name of any person. The Circle Officer, Ballia
Patna High Court CWJC No.228 of 2021 dt.14-05-2026
9/24
on behalf of the State of Bihar used to settle the land for fishery
purposes, which is fortified from the Sairat Register. It has next
been submitted by the respondents stating that the petitioner has
not stated as to what area of Khesra No. 1702 was transferred by
Bhadri Hazari and how the Jamabandi was created with regard
to this land.
14. The learned GA relies upon an order rendered
by Hon'ble Apex Court in the case of Vinod Gandhi v. The
District collector, Madurai & Ors., the relevant paragraph of
the said order has been reproduced for ready reference:
“ 5. Learned counsel for the
respondent no.1 submitted that the land in
the records of the State was never settled in
favour of the original person in the year
1950, as no records are available. However,
it was contended that there were subsequent
revenue entries to show the entry of the
names of the predecessor-in-interest of the
vendor of the petitioner. It was contended
that because the matter could not be dealt
with in the manner it was required and the
land being State land, that too, a water body,
it is in the general interest of the State and
the public that one opportunity be given to
finally thrash out the issue.”
15. Thus, the learned GP-5 has summarized his
Patna High Court CWJC No.228 of 2021 dt.14-05-2026
10/24
arguments to the extent that the petitioners did not approach any
of the Authorities by filing any representation and therefore, any
direction for issuance of mandamus cannot be granted. It has
next been submitted that the petitioners have an alternate
remedy of appeal and they had also preferred the same against
the order cancelling their jamabandi, which is pending,
therefore, interference in such proceedings is not warranted.
Thirdly, the disputed question of fact is involved in the present
case and therefore, the only remedy which lies before the
petitioners is to approach a competent Civil Court for getting the
same resolved. It has also been submitted that in view of the
judgment in the case of Vinod Gandhi (Supra) since the land in
question is a jalkar and therefore, the same could not have been
transferred in favour of the ancestors of the petitioners and on
such account also, the writ petition is fit to be dismissed.
16. The learned counsel of the petitioners, in reply
to the counter affidavits filed on behalf of respondent Nos. 2 to
5 and respondent Nos. 6 and 7, submits with regard to
Annexure-A to the counter affidavit filed on behalf of
respondent Nos. 2 to 5 that the subject matter of the dispute in
the instant case is Khesra No. 1702 in Village-Tetari, the total
area whereof is 40.3 acre (equivalent to 49 Bighas, 18 Katthas
Patna High Court CWJC No.228 of 2021 dt.14-05-2026
11/24
and 14 Dhurs), whereas Annexure-A shows that “Tetari Moin” ,
which according to the respondents-State is the subject matter of
the dispute in the instant case is in Khesra No. 761, measuring
5.83 acres only, which is definitely not the subject matter of the
instant case which is the ‘Raiyati’ lands of the petitioners and
others. “Tetari Moin” , which is said to be settled by the
respondents-State authorities is apparently some other land and
not the lands of the petitioners and others, which have been
illegally excavated under “Jal Jeevan Hariyali Scheme” by the
respondents-State authorities by illegally treating it as
Government lands.
17. The learned counsel for the petitioners submits
that in Annexure-3 of the writ petition, it is stated that the Circle
Officer, Dandari, without any basis, stated that the land
(‘Sairat’) had been continuously auctioned by the Fisheries
Department. From the said Annexure, it would further appear
that Jamabandis of Khesra No. 1702 are running in the names
of different persons, who are transferees from Bhadri Hazari and
their subsequent transferees.
18. It has further been submitted on behalf of the
petitioners that the statements made in Paragraph 8 of the
counter affidavit filed on behalf of respondent Nos. 2 to 5, it is
Patna High Court CWJC No.228 of 2021 dt.14-05-2026
12/24
stated that the settlement of ‘Jalkars’ for financial years 2018-
19, 2019-20 and 2020-21 are with respect to some other
‘Jalkars’ and are not the lands in question. Thus, the amount
for ‘Jalkar’ , which has been settled for Rs. 26,000/- per year
also shows that it is not with respect to the lands in dispute, as
the total area of the land in dispute is 40.34 acres and such land
cannot be settled for such meager amount.
19. The learned counsel for the petitioners by
referring to the supplementary affidavit filed on behalf of the
petitioners submitted that the respondents-State, after filing
counter affidavits in the present writ petition, have constructed a
culvert on the lands of the petitioners and are planning to sink a
tube-well for filling water in the excavated portion of the lands
in question. It has next been submitted that the respondents-
State are, thus, bent upon to change the topography of the
subject lands and to make it un-arable. It has further been
submitted that in the aforesaid circumstances, the respondents-
State are liable to further compensate the petitioners for the
losses caused to them by constructing culvert on the lands of the
petitioners and for other damages caused to the arable lands of
the petitioners and others.
20. This Court has heard the learned counsel for
Patna High Court CWJC No.228 of 2021 dt.14-05-2026
13/24
the parties at length and from the averments made in the writ
petition as well as the counter affidavits filed by the
respondents, one question which has emerged is as to whether
the land in question of the petitioners was being used by the
State under the Sairat settlement. The petitioner has harped
upon the fact that the land in dispute, i.e., Khesra No. 1702
falling under Khata No. 113, is a huge piece of plot as per the
Khatiyan, measuring 40.34 acres, which is equivalent to 49
bigha, 18 katha and 14 dhur.
21. The State, on the other hand, has contended
two facts disputing the claim of the petitioner. One being the
nature of land is entered as gairmajarua khas land and was
marked as a sairat land. Subsequently, the said land was being
settled by the Animal Husbandry and Fishery Resource
Department, Government of Bihar, Patna, by issuing a bid in
favour of the Jalkars . It has, thus, been contended by the State
that in view of such facts the land could not belong to the
petitioners and therefore, the contentions of the petitioners are
false, concocted and baseless.
22. This Court, from perusal of the records, found
that in the list of the jalkars , which was brought on record by
the State through its counter affidavit, marked as Annexure-A,
Patna High Court CWJC No.228 of 2021 dt.14-05-2026
14/24
the reference of the jalkar , namely, Tetari Moin is listed at serial
No.12 and the area of the land is mentioned as 5.83 acres. On
fine perusal, it was also noticed that though the khata number is
113, however, the khesra (plot) number is 761, while the land in
question is Khesra No.1702. The petitioners in their rejoinder
have contended that the land in question was transferred by the
ex-zamindar in the year 1912 through a registered sale deed,
while the said purchaser from the ex-landlord had subsequently
transferred the portions of Plot No.1702 to different persons,
including the ancestors of the petitioners and their specific
contention is that the land might have been recorded as “Moin”
in the cadastral survey land, however, in due course the nature
of the land changed and it began to be cultivatable.
23. This Court has noticed that it was only during
the pendency of the present writ application that the State
found/discovered the fact that the Khesra No.761 as given in the
jalkar list was wrongly entered in place of Khesra No.1702. The
contention of the State about the reference of Khesra No. 1702,
which actually measures 40.43 acres, being settled for a meager
amount of Rs.20 for the year 1973-74 and Rs.26,000/- in the
year 2021 cannot be accepted. Moreover, as already noticed, the
area mentioned in the jalkar list of “Tetari Moin” is stated as
Patna High Court CWJC No.228 of 2021 dt.14-05-2026
15/24
around 5 acres. These discrepancies raises a doubt over the
manner in which the State has acted.
24. From perusal of Annexure-6, which has been
brought on record by the petitioners, refers to the report by the
Karamchari given to the Circle Officer, Dandari, wherein he has
categorically mentioned that Keshra No.1702 though is entered
in the khatiyan as “Moin”, however, the said keshra was never
settled. From the perusal of Annexure-6, one more fact had
emerged that while marking the inspection, the Halka
Karamchari was told by the persons in whose favour jalkar
were settled that they had been fishing from the land falling
under Khesra No.1702, however, the petitioners had
categorically said that the said fishermen were allowed to fish
from the said land after taking compensation, as the said land is
inundated for almost four to five months in a year and once the
water dries, the raiyats, including the petitioners, use the said
land for agricultural purposes.
25. Thus, from the readings of the various
documents as also from the pleadings made therein, this
question as to whether the said land was being settled for the
past many years for jalkars is not substantiated, from the perusal
of the sairat register, especially for the fact that the khesra
Patna High Court CWJC No.228 of 2021 dt.14-05-2026
16/24
number was admitted to being referred as 761.
26. The other aspect with regard to the entries in
the khatiyan with respect to the nature of the land in question,
which has been referred to as “Man ( eu )”, again, two meanings
can be derived from such entries. As per the definition of “Man
( )” it refers to low-lying areas, typically perennial or seasonal
eu
wetlands or shallow tanks or ponds used for storing water.
27. In the present case, admittedly, the khatiyan
suggests that the entry was gairmajarua khas with the name of
Chaudhary Babu Nurool Hoda and other. This denotes that the
said land can be raiyati land owned by an individual, thus, from
the above, it is clear that the entries referred to in the khatiyan
and subsequent alienation of the land by the zamindar and
ultimately to the petitioners and others goes on to show that the
land in question was being used initially by the ex-zamindar and
thereafter by the persons, who had purchased from the ex-
zamindar and others and was subsequently transferred to the
petitioners and others.
28. The contention, thus, of the petitioners that the
land was not a jalkar in the true sense seems to be reasonable
and if the jamabandi created in favour of the petitioners and
others have been cancelled by the authorities, it thereby cancels
Patna High Court CWJC No.228 of 2021 dt.14-05-2026
17/24
also the sale deed executed in their favour. It also nullifies the
settlement made by the ex-zamindar in favour of the vendors of
the petitioners.
29. It is a settled law that long-standing jamabandi
cannot be set aside by a Revenue Authority in the name of
wrong creation of jamabandi and moreover they have not come
out with a clear stand as to how the Khesra number was changed
during the pendency of the present application.
30. At this juncture, this Court is of the view that
the judgment rendered by this Court in the case of “Maya Devi
& Ors. Vs. The State of Bihar & Ors. , reported in (2014) 3
PLJR, 584” is relevant in the present facts and circumstances of
the case.
31. This Court has taken note of the fact that while
the present writ application was pending and the State was being
asked to file counter affidavits and supplementary affidavits and
during the pendency and despite this Court being in seisin of the
matter, passing of the impugned order dated 10.01.2026 does
not only amount to overreach of judicial propriety but would
also suggest that the authorities were trying to influence the
result of the present case.
32. One paragraph of the aforesaid judgment
Patna High Court CWJC No.228 of 2021 dt.14-05-2026
18/24
passed in the case of Maya Devi (Supra) is to be taken note of :-
“The result of these three
progressive stages is that if the State wants the
petitioners’ lands or the lands on which the
petitioners have been residing for last 50 years,
they must pay due compensation and take action
in accordance with the provisions of the new
Land Acquisition Act. If they intend to cancel
the Jamabandi then it is for them to move the
Civil Court for a declaration that the alleged
settlement and/or Jamabandi is illegal and
cannot be accepted and let the title of the State
be so declared but till such time the dispute is
resolved, the petitioners cannot be evicted by
the State in any manner nor can just
compensation for acquisition be denied.”
33. One of the submissions made by the learned
State counsel with regard to the maintainability of the present
writ application stating that there is an alternate statutory
remedy available to the writ petitioners, it is a well-settled law
that merely there being an alternate statutory remedy does not
preclude the writ petitioners from filing a writ petition
entertaining such prayers of the writ petitioners wherein they
have challenged the lack of jurisdiction of the Authorities in
cancelling the longstanding jamabandi in favour of the writ
petitioners. It is a well-settled law that merely there being an
alternative statutory remedy does not oust the jurisdiction of a
Patna High Court CWJC No.228 of 2021 dt.14-05-2026
19/24
Writ Court.
34. At this juncture, the case of Rikhab Chand
jain v. Union of India & ors. reported in 2025 SCC OnLine
2510 can be looked into, in which the Hon’ble Supreme Court
has observed in paragraphs ‘7’ and ‘10’ which is a follows:
“ 7. Decisions of this Court are legion
from which guidance can aptly be drawn as to
when a writ petition ought to be entertained
despite the party approaching the high court not
exhausting the alternative statutory remedy
available to him/her/it. Insistence by the courts
– both this Court and the high courts – of
exhaustion of a statutory remedy provided by an
enactment before invoking the writ jurisdiction
of a high court under Article 226 of the
Constitution can be traced to one of several self-
imposed restrictions, laid down by judicial
precedents of this Court. Unless, of course, any
of the exceptions [challenge to an act/order
grounded on (i) breach of a Fundamental Right;
(ii) violation of natural justice principles; (iii)
lack of jurisdiction; and (iv) unconstitutionality
of a statute] is satisfied, that a writ court may
refuse to entertain a writ petition does not admit
of any doubt. This Court relying on a host of
decisions including State of Uttar Pradesh v.
Md. Nooh8 and Titaghur Paper Mills v. State of
Orissa9 has, in Godrej Sarah Lee v. Excise and
Taxation Officer-cum-Assessing Authority10,
reiterated that availability of an alternative
Patna High Court CWJC No.228 of 2021 dt.14-05-2026
20/24
statutory remedy does not oust the jurisdiction
of a writ court. It was also explained how
“entertainability of a writ petition” is a concept
distinct from the concept of “maintainability of
a writ petition”.
10. We may profitably refer, in the
context, to the Constitution Bench decision in
Thansingh Nathmal v. Superintendent of Taxes.
In Thansingh Nathmal v. Superintendent of
Taxes, this court had the occasion to lay down a
principle of law which is salutary and not to be
found in any other previous decision rendered
by it. The principle, plainly, is that, if a remedy
is available to a party before the High Court in
another jurisdiction, the writ jurisdiction should
not normally be exercised on a petition under
article 226, for, that would allow the machinery
set up by the concerned statute to be bye-
passed. The relevant passage from the decision
reads as follows (page 474 in 15 STC):
“…. The jurisdiction of the High
Court under article 226 of the
Constitution is couched in wide terms
and the exercise thereof is not subject to
any restrictions except the territorial
restrictions which are expressly provided
in the article. But the exercise of the
jurisdiction is discretionary; it is not
exercised merely because it is lawful to
do so. The very amplitude of the
jurisdiction demands that it will
ordinarily be exercised subject to certain
Patna High Court CWJC No.228 of 2021 dt.14-05-2026
21/24
self-imposed limitations. Resort to that
jurisdiction is not intended as an
alternative remedy for relief which may
be obtained in a suit or other mode
prescribed by statute. Ordinarily the
court will not entertain a petition for a
writ under article 226, where the
petitioner has an alternative remedy,
which, without being unduly onerous,
provides an equally efficacious remedy.
Again the High Court does not generally
enter upon a determination of questions
which demand an elaborate examination
of evidence to establish the right to
enforce which the writ is claimed. The
High Court does not therefore act as a
court of appeal against the decision of a
court or Tribunal, to correct errors of
fact, and does not by assuming
jurisdiction under article 226 trench
upon an alternative remedy provided by
statute for obtaining relief. Where it is
open to the aggrieved petitioner to move
another Tribunal, or even itself in
another jurisdiction for obtaining redress
in the manner provided by a statute, the
High Court normally will not permit, by
entertaining a petition under article 226
of the Constitution, the machinery
created under the statute to be by-passed,
and will leave the party applying to it to
seek resort to the machinery so set up."
Patna High Court CWJC No.228 of 2021 dt.14-05-2026
22/24
(emphasis Ours)
35. In the present case the petitioners had
approached this Court for a direction to the respondents to pay
the petitioners the cost for filling the earth in excavating the
portion of the private lands of the petitioners and also for
payment of compensation for the damages caused to the land
and crop and further for treating the private land of the
petitioners as agricultural lands and desisting from settling the
same for fisheries. Such prayers, to the understanding of this
Court, can only be granted by a Writ Court if the writ petition is
going to be allowed and moreover, as far as the cancellation of
jamabandi is concerned, the same was done overreaching the
Authority of the officer concerned, as he was well aware of the
fact that the present writ application was pending and even
counter affidavits were filed, still the jamabandi was cancelled.
36. From perusal of the record, this Court finds
that the writ application was entertained initially by this Court
and directions were issued for filing counter affidavit and since
more than five years have passed since the filing of the present
writ application, therefore, relegating the petitioner before the
authorities would serve no purpose and moreover, the
Authorities despite being aware of the pendency of the
Patna High Court CWJC No.228 of 2021 dt.14-05-2026
23/24
application as having cancelled the jamabandi standing in the
name of the petitioners unilaterally goes on to show that the
Authorities were bent upon to prove that the land in question
belongs to the State of Bihar, which was being settled for
fishing.
37. It is a well-settled law that when a dispute is
pending before a Court of Justice no action should be taken by
an Authority which would disturb the Court of Justice. It would
be apt to refer to the Full Bench judgment of this Hon'ble Court
passed in the case of The King vs. Parmanand and Others,
reported in AIR (36) 1949 Patna 222 , paragraph '23' of the said
judgment observes as under:-
"........It is a cardinal principle that
when a matter is pending for decision before
a Court of justice nothing should be done
which might disturb the free course of justice
and this Court will discountenance any
attempt on the part of any executive official,
however high he may be, to prejudge the
merits of a case and to usurp the functions of
the Court which has got seisin of the
case....."
38. In view of the aforesaid, the passing of the
impugned order dated 10.01.2026 is held to be truculent and
amounts to overreaching the authority and also, in view of the
aforesaid judgment, is held to be illegal and therefore is set
Patna High Court CWJC No.228 of 2021 dt.14-05-2026
24/24
aside.
39. I.A. No.1 of 2026 is allowed.
40. The State is directed to replace the earth which
has been excavated from the portion of the private lands of the
petitioner and any boundary constructed out of from the said
soil shall be refilled on the lands of the petitioners.
41. The State, if aggrieved by the creation of the
jamabandi in favour of the petitioners, can move a Court of
Civil jurisdiction for setting aside the sale deed executed in
favour of the petitioners and the previous land owners.
42. The writ application is allowed.
(Sourendra Pandey, J)
manoj/-
AFR/NAFR NAFR
CAV DATE 10.04.2026
Uploading Date 15.05.2026
Transmission Date N/A