Md. Rasul And Ors vs The State Of Bihar And Ors
2021 Latest Caselaw 841 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No.10351 of 2013
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1. Ranjan Kumar Sinha, S/O Shri Ratneshwar Prasad Sinha Allottee Shopkeepers of Motihari Nagar Parishad, P.O. Motihari, P.S. Town Motihari, District - East Champaran

2. Kundan Kumar Shukla S/O Shri Roop Narayan Shukla Allottee Shopkeepers of Motihari Nagar Parishad, P.O. Motihari, P.S. Town Motihari, District - East Champaran

3. Subodh Kumar S/O Shri Hardeo Prasad Srivastava Allottee Shopkeepers of Motihari Nagar Parishad, P.O. Motihari, P.S. Town Motihari, District - East Champaran

4. Pradeep Kumar Gupta S/O Shri Jagarnath Prasad Allottee Shopkeepers of Motihari Nagar Parishad, P.O. Motihari, P.S. Town Motihari, District - East Champaran

5. Vinda Prasad Gupta S/O Shri Saryu Sah Allottee Shopkeepers of Motihari Nagar Parishad, P.O. Motihari, P.S. Town Motihari, District - East Champaran

6. Kashi Thakur S/O Shri Ramdhari Thakur Allottee Shopkeepers of Motihari Nagar Parishad, P.O. Motihari, P.S. Town Motihari, District - East Champaran

7. Ahmad Hussain S/O Md. Jahangir Allottee Shopkeepers Of Motihari Nagar Parishad, P.O. Motihari, P.S. Town Motihari, District - East Champaran

8. Gajla Pravin W/O Late Abid Hussain Allottee Shopkeepers of Motihari Nagar Parishad, P.O. Motihari, P.S. Town Motihari, District - East Champaran

9. Anil Thakur S/O Late Sant Thakur Shri Bhushan Prasad Allottee Shopkeepers of Motihari Nagar Parishad, P.O. Motihari, P.S. Town Motihari, District - East Champaran

10. Madan Raut S/O Shri Ramdeo Raut Allottee Shopkeepers of Motihari Nagar Parishad, P.O. Motihari, P.S. Town Motihari, District - East Champaran

11. Shankar Kapoor S/O Shri Parmeshwar Kapoor Allottee Shopkeepers of Motihari Nagar Parishad, P.O. Motihari, P.S. Town Motihari, District - East Champaran

12. Aatish Anand S/O Shri Bhushan Prasad Allottee Shopkeepers of Motihari Nagar Parishad, P.O. Motihari, P.S. Town Motihari, District - East Champaran

13. Mankeshwar Prasad S/O Shri Sitaram Prasad Allottee Shopkeepers of Motihari Nagar Parishad, P.O. Motihari, P.S. Town Motihari, District - East Champaran ... ... Petitioner/s Versus

1. The State of Bihar

2. The District Magistrate, East Champaran, Motihari

3. The Special Officer, Motihari, Municipality, P.S. and P.O. - Motihari, Patna High Court CWJC No.10351 of 2013 dt.11-02-2021

District - Motihari

4. The S.D.O. Sadar, Motihari, District - Motihari

5. The Circle Officer, Motihari Sadar, Motihari

6. Motihari Nagar Parishad, Represented through its Executive Officer Motihari Nagar Parishad, Motihari

7. The Executive Officer, Motihari Nagar Parishad

8. The Chairman, Motihari Nagar Parishad, Motihari

9. The Empowered Standing Committee of Motihari Nagar Parishad Motihari, Headed By The Chairman, Motihari Nagar Parishad Motihari.

... ... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No. 10209 of 2013 ======================================================

1. Md. Rasul, S/O Late Sukhari Miyan, Allottee Shopkeepers of Motihari Nagar Parishad, P.O.- Motihari, P.S.- Town Motihari, District- East Champaran

2. Sachin Kumar, S/O Sri Harish Tiwary, Allottee Shopkeepers of Motihari Nagar Parishad, P.O.- Motihari, P.S.- Town Motihari, District- East Champaran

3. Kumar Amit Singh, S/O Sri Ram Janam Kumar, Allottee Shopkeepers of Motihari Nagar Parishad, P.O.- Motihari, P.S.- Town Motihari, District- East Champaran

4. Arvind Kumar @ Kumar Arbind Singh, S/O Sri Ram Janam Kumar, Allottee Shopkeepers of Motihari Nagar Parishad, P.O.- Motihari, P.S.- Town Motihari, District- East Champaran

5. Ravi Kumar, S/O Sri Ramayan Thakur, Allottee Shopkeepers of Motihari Nagar Parishad, P.O.- Motihari, P.S.- Town Motihari, District- East Champaran

6. Nakcheed Baitha, S/O Sri Bhannu Baitha, Allottee Shopkeepers of Motihari Nagar Parishad, P.O.- Motihari, P.S.- Town Motihari, District- East Champaran

7. Madiha Khatoon, W/O Md. Anwar, Allottee Shopkeepers of Motihari Nagar Parishad, P.O.- Motihari, P.S.- Town Motihari, District- East Champaran

8. Mohan Prasad, S/O Sri Narayan Prasad, Allottee Shopkeepers of Motihari Nagar Parishad, P.O.- Motihari, P.S.- Town Motihari, District- East Champaran

9. Ratnesh Kumar Asthana, S/O Late Rameshwar Prasad Asthana, Allottee Shopkeepers of Motihari Nagar Parishad, P.O.- Motihari, P.S.- Town Motihari, District- East Champaran

10. Abdul Ajij, S/O Late Abdul Rashid ,Allottee Shopkeepers of Motihari Nagar Parishad, P.O.- Motihari, P.S.- Town Motihari, District- East Champaran

11. Prem Shankar Gupta, S/O Late Madan Lal Gupta, Allottee Shopkeepers of Motihari Nagar Parishad, P.O.- Motihari, P.S.- Town Motihari, District- East Champaran Patna High Court CWJC No.10351 of 2013 dt.11-02-2021

12. Dinesh Prasad, S/O Sri Bhikhari Sah, Allottee Shopkeepers of Motihari Nagar Parishad, P.O.- Motihari, P.S.- Town Motihari, District- East Champaran

13. Md. Haroon, S/O Late Amin Miyan, Allottee Shopkeepers of Motihari Nagar Parishad, P.O.- Motihari, P.S.- Town Motihari, District- East Champaran ... ... Petitioner/s Versus

1. The State of Bihar

2. The District Magistrate, East Champaran, Motihari

3. The Executive Officer, Motihari Nagar Parishad, Motihari

4. S.D.O. Sadar Motihari, East Champaran ... ... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No. 19662 of 2013 ======================================================

1. Arun Kumar, Son of Ram Janam Kumar, Resident of Mohalla - Mathia Zirat, P.S. - Chhatauni, District - East Champaran

2. Ram Janam Kumar, Son of Late Rajeshwar Kumar, Resident of Mohalla -

Mathia Zirat, P.S. - Chhatauni, District - East Champaran ... ... Petitioner/s Versus

1. The State of Bihar

2. The District Magistrate, East Champaran, Motihari

3. The Sub-Divisional Officer, Sadar, Motihari, East Champaran

4. Land Reforms Deputy Collector, Motihari, East Champaran

5. Anchaladhikari, Motihari, East Champaran

6. The Chairman, Motihari Municipality, Motihari, East Champaran ... ... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No. 5087 of 2020 ======================================================

1. Annapoorna, Devi W/o Bharatabhushan Prasad, Allottee Shopkeeper of Motihari Nagar Parishad, resident of Thakurbari, P.O.- Motihari,

2. Motilal Prasad, S/o Kamala Sah, Shopkeeper of Motihari Nagar Parishad, resident of Panch Mandir Road, Pakari Bazar, Motihari, P.O.- Motihari, P.S.- Town Motihari, District- East Champaran at Motihari.

... ... Petitioner/s Versus

1. The State of Bihar.

2. The District Magistrate, East Champaran, Motihari.

3. The Special Officer, Motihari, Municipality, P.S. and P.O.- Motihari, Patna High Court CWJC No.10351 of 2013 dt.11-02-2021

District- East Champaran, Motihari through Executive Officer, Motihari, Nagar parishad, Motihari

4. The S.D.O., Sadar, Motihari, District- East Champaran, Motihari.

5. The D.C.L.R., Sadar, Motihari, District- East Champaran.

6. The Circle Officer, Motihari Sadar, Motihari.

7. The Motihari Nagar Parishad, Represent through its Executive Officer, Motihari Nagar Parishad, Motihari.

8. The Executive Officer, Motihari Nagar Parishad, Motihari.

9. The Chairman, Motihari Nagar Parishad, Motihari.

10. The Empowered Standing Committee of Motihari Nagar Parishad, Motihari, Headed by the Chairman, Motihari Nagar Parishad, Motihari.

... ... Respondent/s ====================================================== Appearance :

(In Civil Writ Jurisdiction Case No. 10351 of 2013) For the Petitioner/s : Mr.Satyendra Rai, Advocate For the Respondent/s : Mr. (In Civil Writ Jurisdiction Case No. 10209 of 2013) For the Petitioner/s : Mr. Binod Kumar Mishra, Advocate For the Respondent/s : Mr. Santosh Kumar Mishra, AC to SC-26 Mr. Ratnakar Pandey, Advocate (In Civil Writ Jurisdiction Case No. 19662 of 2013) For the Petitioner/s : Mr. Uma Shankar Verma, Advocate Mr. Binod Kumar Mishra, Advocate For the Respondent/s : Mr. Vinay Kriti Singh, GA-2 Mr. Sumant Kr. Singh, AC to GA-2 (In Civil Writ Jurisdiction Case No. 5087 of 2020) For the Petitioner/s : Mr. Shekhar Singh, Advocate Mr. Satyendra Rai, Advocate For the Respondent/s : Mr. Rakesh Kumar Shrivastava, AC GP-15 ====================================================== CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY ORAL JUDGMENT

Date : 11-02-2021 Heard learned counsel for the petitioners, State and other

respondents.

2. Since all the writ applications involve common

question of facts and law and with the consent of the parties, all

the writ applications are being disposed of by this common oral

judgment.

Patna High Court CWJC No.10351 of 2013 dt.11-02-2021

3. This batch of writ applications have chequered

history. Earlier, the petitioners have approached this Court against

the decision of the respondent Special Officer, Motihari

Municipality. The order was interfered by the Writ Court in

C.W.J.C. No. 7345 of 1999 on the ground that the order was

passed without giving opportunity of hearing. After the order was

passed in favour of the petitioners, the matter was examined by the

Special Officer, Motihari Municipality and on consideration of the

entire materials, the respondent Special Officer came to the

conclusion that there is no need to cancel settlement in favour of

the petitioners. However, another proceeding with regard to the

encroachment over public land was drawn against the petitioners.

The Circle Officer, Sadar in encroachment proceeding has come to

a conclusion that the petitioners are encroachers. Against the order

of the Circle Officer, the petitioners approached this Court in

C.W.J.C. No. 5922 of 2010. The writ petition was disposed of with

liberty to the petitioners to approach the appropriate authority. The

Court granted indulgence to the petitioners to the extent that the

delay in filing appeal shall be condoned. After the order of this

Court in C.W.J.C. No. 5922 of 2010, the matter was examined by

the Collector, East Champaran, Motihari in Encroachment Appeal Patna High Court CWJC No.10351 of 2013 dt.11-02-2021

No. 56 of 2011-12. The Collector dismissed the Encroachment

Appeal by detailed order.

4. Learned counsel for the petitioners submits that the

petitioners are displaced persons and their shop/land have been

settled by the competent authority and in fact they were running

shop for their livelihood. Learned counsel further submits that the

land, in question, is Gair Mazarua Malik and, as such, the

respondent Motihari Municipality has every jurisdiction to settle

the land to the displaced persons so that they may earn their

livelihood.

5. In a proceeding under Article 226 of the Constitution

of India, the Court is not in a position to enter into the controversy

whether the land is a public land or not. The competent authority

under the Public Land Encroachment Act have already determined

the issue and held out that the petitioners are encroachers over the

public land and the order passed by the Circle Officer, who is the

competent authority under the Act was approved by the Collector,

Motihari in Encroachment Appeal, bearing Encroachment Appeal

No. 56 of 2011-12.

6. The only issue before this Court which require to be

decided is the right of livelihood of the petitioners, as they claimed

that they are displaced persons and as a Welfare State, it is the Patna High Court CWJC No.10351 of 2013 dt.11-02-2021

responsibility of the State to provide opportunity to earn bread and

butter.

7. The Apex Court has occasion to examine the right of

Street Hawkers in Saudan Singh and Ors. vs N.D.M.C. and

Ors., reported in AIR 1992 SC 1153, where the Apex Court had

noted the right of squatting as integral part of Article 21 of the

Constitution of India. Though this Court is not inclined to interfere

with the order passed by the Collector in the Encroachment

Appeal, but at the same time, the Court is of the considered view

that the Welfare State has to adopt welfare measures so that the

petitioners, who claims to be the displaced persons and they were

allotted land for running shops with a view to earn bread and

butter from such shops be extended some protection. The

respondent District Magistrate, Motihari is required to explore

possibility of alternative arrangement so that the petitioners and

their family members may not be rendered jobless and suffer

penury on account of decision to remove encroachment without

providing alternative arrangement for their livelihood.

8. The Court hope and trust that the District Magistrate,

Motihari shall explore the possibility of allotment of suitable place

to the petitioners so that the petitioners and their family may not be

affected adversely. Necessary decision in this regard may be taken Patna High Court CWJC No.10351 of 2013 dt.11-02-2021

by the respondent District Magistrate within a period of six months

from the date of receipt/production of a copy of this order.

9. With the aforesaid, all the writ applications stand

disposed of.

(Anil Kumar Upadhyay, J) uday/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          18.02.2021
Transmission Date       NA