Patna High Court
Sabiha Khanam vs Mahtab Aziz Alam Khan on 1 October, 2024
Bench: Chief Justice, Partha Sarthy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1469 of 2023
In
Miscellaneous Jurisdiction Case No.1960 of 2023
======================================================
1. Sabiha Khanam Wife of Late Md. Allam Ahmed Khan Resident of Mohalla-
Benta, Ward No.- 43, P.S.- Laheriasarai, District- Darbhanga.
2. Aamir Aziz Alam Khan, Son of Late Allam Ahmed Khan Resident of
Mohalla- Benta, Ward No.- 43, P.S.- Laheriasarai, District- Darbhanga.
3. Shah Sujah Aziz Alam Khan @ Shah Shujah Aziz Alam Khan, Son of Late
Allam Ahmed Khan Resident of Mohalla- Benta, Ward No.- 43, P.S.-
Laheriasarai, District- Darbhanga.
... ... Appellants/Respondents
Versus
1. Mahtab Aziz Alam Khan Son of Late Md. Noman Ahmed Khan, Resident of
Mohalla- Shahganj Benta, P.S.- Laheriasarai, District Darbhanga Presently
Residing at Flat No. 2021, A1 Reem Plaza Mafaz-1, Buhaira Carniche
Sharjah UAE through the Special Power of Attorney executed in favour of
Md. Ali Kha, Male, aged about 49 years, Son of Late Md. Noman Ahmed
Khan, Resident of Mohalla- Shahganj Benta, P.S. Laheriasarai, District-
Darbhanga.
....Opposite Parties 1st set/Petitioner
2. Sri Brijesh Mehrotra, the Principal Secretary, Revenue and Land Reforms,
Government of Bihar, Patna.
3. Sri Rajiv Raushan, the District Magistrate, Darbhanga.
4. Sri Chadrima Atri, the Sub-Divisional, Darbhanga.
5. Sri Anshu Prashu, the Circle Officer, Bahadurpur, Darbhanga.
6. Sri Awkash Kumar, the Senior Superintendent of Police, Darbhanga.
7. Sri Kirti Kumar, the Station House Officer, Laheriasarai, Darbhanga.
8. Sri Gaurav Kumar, the Municipal Commissioner, Darbhanga.
9. Sri Gaurav Kumar, the Chief Executive Officer, Municipal Corporation,
Darbhanga.
....Opposite Parties 2nd set/Respondents
10. Mukhtar Ahmed Khan, Son of Asfaque Ahmed Khan Resident of Mohalla-
Benta, P.S.- Laheriasarai, District- Darbhanga.
11. Sabbir Ahmed Khan, Son of Asfaque Ahmed Khan Resident of Mohalla-
Benta, P.S.- Laheriasarai, District- Darbhanga.
12. Abrar Ahmed Khan, Son of Asfaque Ahmed Khan Resident of Mohalla-
Benta, P.S.- Laheriasarai, District- Darbhanga.
... ... Opposite parties 3rd set/ Respondents
======================================================
with
Patna High Court L.P.A No.1469 of 2023 dt.01-10-2024
2/6
Civil Writ Jurisdiction Case No. 17164 of 2022
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Mahtab Aziz Alam Khan Son of Late Md. Noman Ahmad Khan, R/o Moha-
Shahganj Benta, P.S. Laheriasarai, Distt. Darbhanga, presently residing at Flat
No. 2021, Al Reem Plaza Mafaz-1, Buhaira Carniche executed UAE, through
the Special Power of Attorney executed in favour of Mohammad Ali Khan,
Male, aged about 49 years, son of Late Mohammad Noman Ahmad Khan,
resident of Mohalla-Shahganj Benta, Ward No. 35, Police Station-Benta O.P.
Laheraisarai, District-Darbhanga.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Revenue and Land
Reforms, Government of Bihar, Patna.
2. The District Magistrate, Darbhanga.
3. The Sub-Divisional Officer, Darbhanga.
4. The Circle Officer, Darbhanga.
5. The Senior Superintendent of Police, Darbhanga.
6. S.H.O. (Station House Officer), Laheria Sarai, Darbhanga.
7. The Municipal Commissioner, Darbhanga.
8. The Chief Executive Officer, Municipal Corporation, Darbhanga.
9. Miss Sabiha Khanam, Wife of Late Mohammad Alam Ahmad Khan, resident
of Mohalla-Shahganj Benta, Ward No. 35, P.S. Laheriasarai, District-
Darbhanga.
10. Aamir Aziz Alam Khan, resident of Mohalla-Shahganj Benta, Ward No. 35,
P.S. Laheriasarai, District-Darbhanga.
11. Shah Suga Aziz Alam Khan, s/o Late. Allam Ahmad Khan resident of
Mohalla-Shahganj Benta, Ward No. 35, P.S. Laheriasarai, District-
Darbhanga.
12. Mukhtar Ahmad Khan, son of Late Asfaque Ahmad Khan, resident of
Mohalla Benta, Police Station-Laheraisarai, District-Darbhanga.
13. Sabbir Ahmad Khan, son of Late Asfaque Ahmad Khan, resident of Mohalla
Benta, Police Station-Laheraisarai, District-Darbhanga.
14. Abrar Ahmad Khan, son of Late Asfaque Ahmad Khan, resident of Mohalla
Benta, Police Station-Laheraisarai, District-Darbhanga.
... ... Respondent/s
======================================================
Appearance :
(In Letters Patent Appeal No. 1469 of 2023)
For the Appellant/s : Mr. Kumar Kaushik, Advocate
Mr.Ujjawal Bhushan, Advocate
For the DMC : Mr. Bindhyachal Rai, Advocate
For the Respondent/s : Mr. P.N. Sahi, AAG-12
Mr. Arun Kumar Bhaghat, AC to AAG-9
Patna High Court L.P.A No.1469 of 2023 dt.01-10-2024
3/6
(In Civil Writ Jurisdiction Case No. 17164 of 2022)
For the Petitioner/s : Mr.Najeeb Ahmad, Advocate
For the Respondent/s : Mr.Sajid Salim Khan (SC-25)
For the DMC : Mr. Bindhyachal Rai, Advocate
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE PARTHA SARTHY
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 01-10-2024
The matter which rightly has to be agitated before the
civil forum has been taken up in a proceeding under Article 226
of the Constitution of India. We called for the writ petition only
finding the order impugned in the appeal to be in excess of the
jurisdiction conferred under Article 226 of the Constitution of
India or rather not a matter which could be agitated under
Article 226 of the Constitution of India.
2. The Impugned order in the appeal indicates that the
learned Single Judge had issued directions to the Municipal
Commissioner, Darbhanga to give a report as to any
construction made after the interim order of the Court. The
interim order of the Court, as we see from the writ petition, was
on 21.12.2022, wherein no further construction was to be made
over the land in question.
3. The averments from the writ petition also indicate
that there is a dispute between the writ petitioner and the 9th
Patna High Court L.P.A No.1469 of 2023 dt.01-10-2024
respondent; the 9th respondent being the wife of the brother of
the writ petitioner. Admittedly, the brother of the writ petitioner
who is now deceased, had purchased two kathas of land and he
also constructed a house and a shop in one katha of land. The
balance one katha of land is said to have been gifted to the writ
petitioner. The writ petitioner has also purchased some land on
the boundary of the gifted property on which construction is
carried out. The claim in the writ petition was that the 9 th
respondent has been carrying on constructions in the property
thus blocking the way into the gifted property and the adjacent
self acquired property.
4. The petitioner, in the writ petition has prayed for
restraining the private respondents from encroaching or
interferring upon the property of the petitioner, removal of
unlawful and illegal construction carried out by the respondents
and removal of blockage of the common pathway used by the
writ petitioner and a further direction to the official respondents
to remove the unlawful and illegal construction.
5. We are of the opinion that all these prayers are best
agitated and properly too, in a civil suit filed before the
appropriate Civil Forum. The learned Counsel for the
appellants, who was the 9th respondent, also submits that they
Patna High Court L.P.A No.1469 of 2023 dt.01-10-2024
have serious contentions against the gift asserted by the writ
petitioner. The directions issued by the learned Single Judge
according to us could not have been issued under Article 226 of
the Constitution of India, especially since disputes on title along
with identification of the properties on which conflicting claims
are made, has to be adjudicated on a forum where evidence can
be led and controverted; substantively.
6. The Municipal Commissioner, Darbhanga according
to the learned Senior Counsel appearing for the writ petitioner
has passed an order directing removal of encroachment on
which the Tribunal has been approached by the 9 th respondent.
We make it clear that if removal of encroachment ordered by the
Municipal Commissioner, Darbhanga is after adjudicating the
dispute on title, necessarily the efficacy of such finding would
also have to be considered by the Tribunal.
7. We are of the opinion that the appeal has to be
allowed, setting aside the order impugned and since we have
called for the writ petition also, we deem it appropriate to reject
the writ petition, leaving the parties to agitate their respective
causes before the appropriate civil forum. We make it clear that
what we have recorded hereinabove is only the submissions
made with respect to the conflicting claims of the parties and it
Patna High Court L.P.A No.1469 of 2023 dt.01-10-2024
need not be taken as an observation on merits; which has to be
considered by the appropriate civil forum, which is approached.
8. Learned Counsel for the appellants submit that four
vehicles have been seized by the SHO, Laheriasarai Police
Station on the ground that it was parked on the pathway thus
violating the interim order of the learned Single Judge.
9. Since we have interfered with the interim order, the
SHO, Laheriasarai Police Station is directed to immediately
release the seized vehicles to its owners.
10. The appeal is allowed and the writ petition stands
dismissed.
11. Interlocutory application(s), if any, shall stand
disposed of.
(K. Vinod Chandran, CJ)
(Partha Sarthy, J)
ranjan/-
AFR/NAFR
CAV DATE NA
Uploading Date 04.10.2024
Transmission Date NA
