Case Background
The dispute relates to land in village Kudarbadha, P.S. Garkha, District Saran, where the petitioner’s residential house stands. The Circle Officer, Garkha, treated part of this land, on Plot Nos. 1020, 1022 and 1023, as public land and passed an order on 17.05.2017 under Section 6(1) of the Bihar Public Land Encroachment Act, 1956 directing removal of alleged encroachment.
The petitioner claims that his grandfather had received this land by way of a settlement/patta from the erstwhile landlord in 1924. According to him, the family has been in continuous possession for nearly 100 years and has built a residential house on the land.
Aggrieved by the Circle Officer’s order, the petitioner filed Civil Writ Jurisdiction Case No. 8247 of 2017 before the Patna High Court. He did not, however, file a statutory appeal under Section 11 of the Bihar Public Land Encroachment Act, 1956. He also initially did not make the neighbouring villager, respondent no. 5, a party, although that person had moved earlier proceedings.
Respondent no. 5 (the intervenor) had previously filed CWJC No. 18164 of 2015 complaining of encroachment on the village road. In that case, by order dated 22.03.2017, the High Court had already directed the Circle Officer to conclude Encroachment Case No. 115 of 2014–15 under the Bihar Public Land Encroachment Act, 1956. The present petitioner was respondent no. 5 in that earlier writ case.
Following the earlier order, the Circle Officer completed the encroachment proceedings and passed the final order dated 17.05.2017 under Section 6(1). It is this order that is challenged in CWJC No. 8247 of 2017.
What the Court Examined and Decided
The Patna High Court heard the learned counsel for the petitioner, the learned Senior Counsel for respondent no. 5 (intervenor), and the learned counsel for the State.
The petitioner’s counsel argued that his family’s title and long possession over the land were ignored. He submitted that the land had been settled in favour of the petitioner’s grandfather by patta in 1924 and a residential house had been constructed. He contended that no valid notice was served on the petitioner before the impugned order. According to him, the measurement of land by the authorities was done without informing him, and the order was passed in violation of the principles of natural justice.
He acknowledged that there is a remedy of appeal under the Bihar Public Land Encroachment Act, 1956, but argued that since the order was passed without jurisdiction and without hearing him, he was directly approaching the High Court under writ jurisdiction.
On behalf of the State, it was submitted that due notice had been given and sufficient opportunity of hearing was provided to the petitioner. The State’s stand was that the land in question is public land and therefore squarely governed by the Bihar Public Land Encroachment Act, 1956. The State pointed out that a final order had been passed under Section 6(1) and that an appeal lay under Section 11 of the Act, which the petitioner had not availed.
The intervenor (respondent no. 5) gave a detailed history of how the encroachment proceedings started. On his complaint, the Circle Officer had deputed the Halka Karamchari for a spot enquiry. The Halka Karamchari submitted his report on 13.12.2014, recommending measurement of the land by the Anchal Amin.
On 16.02.2015, after measurement, the Anchal Amin found encroachment on a portion of the public village road on Plot Nos. 1020 and 1023. On this basis, Encroachment Case No. 115 of 2014–15 was initiated. Notices were issued to all concerned parties, including the present petitioner.
When the earlier writ petition (CWJC No. 18164 of 2015) filed by respondent no. 5 was heard on 22.03.2017, the present petitioner was already a party as respondent no. 5 in that case. The High Court had directed the Circle Officer to conclude the encroachment case pending before him. In compliance, the Circle Officer passed the final order dated 17.05.2017 under Section 6(1) of the Act.
The intervenor contended that the present writ was filed only after the petitioner realised that an adverse order had been passed. It was also stressed that the petitioner had not impleaded respondent no. 5 in this new writ case, and obtained an interim stay order on 08.06.2017 during summer vacation without hearing the intervenor. This, according to the intervenor, showed suppression of facts and lack of clean hands.
The intervenor also highlighted that the counter affidavit for the State had been sworn by the Deputy Collector, Land Reforms and the Circle Officer themselves. Therefore, even if an appeal was filed, the Collector, who had already found encroachment of public land, would be the authority, and remanding the matter in such circumstances would, in their view, serve no useful purpose.
In support of these submissions, the intervenor relied on three Supreme Court decisions. First, Forward Construction Co. v. Prabhat Mandal (Regd.), 1986 1 SCC 100 was cited to argue that once an issue has already been decided, Section 11 (res judicata) applies and the matter cannot be reopened. The quoted part of para 20 stated that a decision is conclusive not only on issues actually decided but also on matters which could or ought to have been raised as part of the same dispute.
Second, K.D. Sharma v. SAIL, 2008 12 SCC 48 was relied upon, particularly para 34, which stresses that writ jurisdiction under Articles 32 and 226 is extraordinary and discretionary and must be invoked with clean hands. A litigant must disclose all material facts and not mislead the court; failing this, the petition may be dismissed at the threshold.
Third, Bharat Singh v. State of Haryana, 1988 4 SCC 534 was cited. Para 13, quoted in the judgment, explains that even points of law which depend on facts must be supported by proper pleadings and documents in the writ petition or counter affidavit; otherwise, the court will not entertain them.
In reply, the petitioner’s counsel denied the allegation of fraud. He maintained that the petitioner was in lawful possession because of the 1924 settlement/patta given by the erstwhile landlord, and that he and his family had been living peacefully there for more than 100 years. According to him, no material had been placed on record by the intervenor to prove any fraud in obtaining the settlement.
The petitioner further argued that the question of title over the land is complex and has to be examined by a competent forum. He pointed to Section 11 of the Bihar Public Land Encroachment Act, 1956, which provides a statutory appeal, and contended that his right to have title decided in such proceedings cannot be taken away.
He also argued that the intervenor had not rebutted the claim regarding the 1924 patta in favour of his grandfather. Because of this, he said, the stand of settlement remained unrebutted and should be treated as admitted, relying on Order VIII Rules 3, 4 and 5 of the Code of Civil Procedure, 1908, and Section 58 of the Evidence Act regarding admitted facts not requiring proof.
After considering all materials, the High Court reached a balanced conclusion. On the one hand, it found some force in the intervenor’s grievance but held it to be only partly true. The Court noted that the petitioner had, in fact, enclosed the earlier order passed in CWJC No. 18164 of 2015 as Annexure P/1 and had referred to it in paragraph 6 of his writ petition. Thus, the allegation that he had completely hidden the earlier case was not fully acceptable.
The Court also observed that the State itself had treated the settlement in favour of the petitioner as not in order and allegedly obtained fraudulently. In such circumstances, it was even more necessary for the authorities to initiate proper proceedings to cancel that settlement, which they had not done.
Importantly, the Court held that the plea of long possession on the basis of a 1924 patta and the existence of a residential house are serious issues that “cannot be bypassed and overlooked” and “have to be adjudicated.” At the same time, the Court chose not to disturb the Circle Officer’s order under Section 6(1).
Instead, the Patna High Court granted liberty to the petitioner to file an appeal under Section 11 of the Bihar Public Land Encroachment Act, 1956 before the Commissioner (the appellate authority) within four weeks. The appellate authority has been directed to consider the petitioner’s claim of title in accordance with paragraphs 28 to 30 of the Court’s earlier judgment in Asharfi Yadav v. State of Bihar, reported in 2026 (5) PLJR 211.
The appellate authority has further been directed to look specifically into three aspects: (i) the patta/settlement, if any, in favour of the petitioner or his ancestors; (ii) rent receipts and other possession-related documents; and (iii) actual possession of the petitioner in the residential house.
The entire appellate exercise must be completed within three months from the date of filing of the appeal, after hearing all concerned parties, including respondent no. 5, Panchanand Singh. Any delay in filing the appeal within this time frame stands condoned.
The Court clarified that if the petitioner’s documents do not inspire confidence, the onus will be on him to obtain a declaration from a competent civil court. But if he is found to be in possession on the basis of a valid settlement, the State will have to take steps to exclude that land from the purview of the Bihar Public Land Encroachment Act, 1956, in line with the directions in Asharfi Yadav’s case.
The interim stay earlier granted by the High Court will not continue, mainly because the petitioner had initially not impleaded the intervenor as party. However, to protect the family’s shelter, the Court directed that the appellate authority shall not dispossess the petitioner and his family from their residential house until final adjudication. The authority can take a final decision regarding dispossession only after conclusion of the appellate proceedings.
With these directions, the writ application was disposed of.
Why This Judgment Matters
This judgment is important for villagers and small landholders who face allegations of encroaching on public land while living on property claimed through old pattas or settlements.
The Patna High Court has shown that even when authorities treat land as public, long-standing private claims cannot be brushed aside. The Court did not straightaway accept the petitioner’s title, but it insisted that his patta, rent receipts and possession be properly examined by the appellate authority.
At the same time, the Court respected the procedure under the Bihar Public Land Encroachment Act, 1956. Instead of cancelling the Circle Officer’s order, it pushed the petitioner to the statutory appeal, but with clear safeguards: time-bound hearing, consideration of title, and protection against dispossession from the house till the case is finally decided.
For people in Bihar who live on land inherited from ancestors but do not have clear government papers, this decision highlights the importance of preserving old documents like pattas and rent receipts. It also shows that even when encroachment proceedings start, there are legal remedies, including appeal and, if necessary, a civil suit for declaration of title.
Legal Issues and Answers
- Issue: Can the High Court, in writ jurisdiction, quash the Circle Officer’s order under Section 6(1) of the Bihar Public Land Encroachment Act, 1956 when a statutory appeal under Section 11 is available and questions of title are involved?
Answer: The Court declined to disturb the Section 6(1) order and instead directed the petitioner to file an appeal under Section 11 before the Commissioner, who must examine the title and possession in detail. - Issue: How should long-standing possession based on an old patta be treated when land is alleged to be public land under the Public Land Encroachment Act?
Answer: The Court held that such claims of settlement and long possession cannot be ignored and must be adjudicated by the appellate authority, which must consider the patta, rent receipts and residential possession and, if the settlement is valid, the State must exclude the land from the operation of the Act. - Issue: What protection does a person get during pendency of such appellate proceedings?
Answer: While vacating the earlier stay, the Court directed that the appellate authority shall not dispossess the petitioner and his family from their residential house until final adjudication and can take final steps only after concluding the proceedings.
Cases Cited by the Court
- Forward Construction Co. v. Prabhat Mandal (Regd.), 1986 1 SCC 100
- K.D. Sharma v. SAIL, 2008 12 SCC 48
- Bharat Singh v. State of Haryana, 1988 4 SCC 534
- Asharfi Yadav v. State of Bihar, 2026 (5) PLJR 211
Case Details
Case Number: Civil Writ Jurisdiction Case No. 8247 of 2017
Case Title: Nagendra Rai v. The State of Bihar & Ors.
Coram: Hon’ble Mr. Justice Raj Kumar
Date of Judgment: 08.09.2026
Citation: 2026 (6) PLJR 148
Advocates:
- For the petitioner: Mr. Arun Kumar Singh, Advocate; Mr. Uma Shankar, Advocate
- For the State respondents: Mr. Raj Kishore Roy, G.P.-18
- For the intervenor/respondent no. 5: Mr. Anand Kumar Ojha, Senior Advocate; Mr. Ram Kishor Singh, Advocate; Mr. Kamlakant Tiwary, Advocate; Mr. Soumya Poddar, Advocate
Nature of the Case: Writ petition under Article 226 of the Constitution challenging an order under Section 6(1) of the Bihar Public Land Encroachment Act, 1956
Impugned Order: Order dated 17.05.2017 passed by the Circle Officer, Garkha, Saran, in Encroachment Case No. 115 of 2014–15 directing removal of alleged encroachment from Plot Nos. 1020, 1022 and 1023
Link to Judgment: https://patnahighcourt.gov.in/viewjudgment/MTUjODI0NyMyMDE3IzEjTg==—ak1–PczGGaNtZk=
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