IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6858 of 2011 RAM KRISHNA MAHTO . Versus THE STATE OF BIHAR & ORS . ----------- 2/ 02/05/2011 Heard learned counsel for the petitioner and learned counsel for the State as also for the Nagar Parishad, Samastipur. The petitioner is aggrieved by the impugned orders dated 25.11.2010 and 28.3.2011 issued by the Circle Officer, Samastipur alleging that he had encroached on the lands of the State Homeopathic Dispensary, Samastipur and was illegally running a business thereupon requiring him to vacate the same within 15 days failing which he shall be removed by use of force. The order further stated that action was being taken in pursuance of an order of this Court in C.W.J.C. No.10155/10 (Yogendra Prasad Singh vs. State of Bihar) dated 10.8.2010. The facts reveal that an Aayurvedic dispensary was set up by the Samastipur Municipality. It decided to set up a a Homeopathic dispensary also. The State Government under the Provincialization of Roads and Hospitals Act, 1947 vide a notification dated 6.6.1955 took over the Aayurvedic dispensary along with its lands, building, fixtures etc. Both the dispensaries were located side by side with separate entrances. 2 The petitioner was not an encroacher on the lands of the Homeopathic Dispensary, but was a lawful settlee by the Nagar Parishad, Samastipur on payment of rent. Strenuous reliance is placed on the orders of this Court in C.W.J.C. No.3099/93 dated 4.5.1994 which more than adequately notices that the petitioner was the allottee of shop No.1,a private respondent in the writ petition. Formal orders for his allotment in pursuance of certain orders of this Court in C.W.J.C. No.2469/92 had been issued by the Municipality on 1.3.1993 by letter No.222. A public interest litigation was filed, C.W.J.C. No.10155/10 in which it was urged that lands of the Homeopathic dispensary had been encroached by certain persons and the authorities were unmindful of the encroachment. The order of the Division Bench dated 10.8.2010 notices the stand of the State itself that certain shops had been constructed by the Samastipur Municipality allotted to private persons. The State itself contended that an enquiry was required to be made whether that portion of the land which forms part of the Dispensary could have been settled by the Municipality and an enquiry had been ordered by the District Magistrate, Samastipur to be conducted through the Circle Officer. The Division Bench therefore ordered no more than to complete the enquiry. It is submitted that the impugned orders do not 3 talk of any enquiry and what findings were arrived at in such enquiry. Learned counsel for the Municipality contends that the lands upon which the shops constructed by it stand have not vested in the Government and therefore the petitioner is in lawful occupation of areas settled to him. Learned counsel for the State makes the usual submission for time to seek instruction. The admitted facts emerging from the records as they stand are:- (a) The petitioner is a settlee from the Samastipur Municipality confirmed by the recitals in proceedings before this Court; (b) The Aayurvedic dispensary appears to have been built by the Municipality is alleged to have vested in the State; (c) The Municipality disputes the correctness of the vesting of the lands upon which the shops are located in the State Government; (d) A Division Bench of this Court had directed an enquiry; (e) the impugned order does not discuss any enquiry report, but simply proceeds on the misguided assumption that this Court had directed the petitioner to be removed as an encroacher when the Court had given no such directions; and (f) the impugned orders calls the petitioner an encroacher when there is a judicial finding in C.W.J.C. No.3099/93 that he was an allottee and the allotment order came to be issued on 1.3.1993 in 4 pursuance of C.W.J.C. No.2469/92. If he was an allottee, the question of calling him an encroacher does not arise. Nothing in this order shall be construed or interpreted with regard to a relationship between the Municipality and the petitioner insofar as whether the settlement was a lease or a licence, whether there has been renewal of the same and whether rent has been paid up to date etc. which are all matters to be agitated separately by the aggrieved. The impugned orders dated 25.11.2010 and 28.3.2011 being in teeth of the orders of this Court in C.W.J.C. No.10155/10 are therefore not sustainable and they are accordingly set aside. Nothing in this order precludes the State respondents from acting in accordance with the directions of the Division Bench in C.W.J.C. No.10155/10 and during which enquiry both the petitioner and the Samastipur Municipality shall necessarily have to be heard and only then can a reasoned and speaking order of the findings in such enquiry be passed. The application stands allowed. KC ( Navin Sinha, J.)