IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5558 of 2007 1. PATNA NAGAR FOOTPATH DUKANDAR AND THELA HAWKER UNION, A REGISTERED SOCIETY HAVING ITS REGISTRATION NO 2810 AND ITS OFFICE AT LOWER ROAD NEW MARKET, PATNA LTHROUGH ITS GENRAL SECRETARY. 2. MD SHAHAJADE ALAM, S/O MD SAMI ALAM, RESIDENT OF BEHIND PALACE HOTEL, P.O-G.P.O, P.S.-KOTWALI, NEW MARKET, PATNA-1, GENERAL SECRETARY, PATNA NAGAR FOOTPATH DUKANDAR AND THELA HAWKER UNION. .. PETITIONER. Versus 1. THE STATE OF BIHAR THROUGH THE COMMISSIONER- CUM-SECRETARY, URBAN DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 2. THE PATNA MUNICIPAL CORPORATION THROUGH THE COMMISSIONER-CUM-CHIEF EXECUTIVE OFFICER, PATNA. 3. THE COMMISSIONER-CUM-CHIEF EXECUTIVE OFFICER, PATNA MUNICIPAL CORPORATION, PATNA. 4. THE DEPUTY CHIEF EXECUTIVE OFFICER, PATNA MUNICIPAL CORPORATION, PATNA. 5. THE CHIEF ENGINEER, PATNA MUNICIPAL CORPORATION. … RESPONDENTS. with CWJC No.16203 of 2007 PATNA MUNICIPAL CORPORATION, THROUGH ITS MUNICIPAL COMMISSIONER, SRI RANA AWADHESH KUMAR HAVING HIS OFFICE AT BUDHA MARG, P.O.- G.P.O., PATNA, P.S.- KOTWALI, DISTRICT-PATNA. … PETITIONER. Versus 1. PATNA NAGAR FOOTPATH DUKANDAR AND THELA HAWKER UNION, A REGISTERED UNION, BEARING REGISTRATION NO. 2810, HAVING ITS OFFICE AT LOWER ROAD NEW MARKET, PATNA THROUGH ITS GENERAL SECRETARY MD. SHAHZADE ALAM. 2. THE STATE OF BIHAR THROUGH ITS CHIEF SECRETARY, OLD SECRETARIATE BUILDING, PATNA. 3. THE APPELLATE TRIBUNAL, P.R.D.A., PATNA-1. … RESPONDENTS. with CWJC No.16529 of 2007 PATNA MUNICIPAL CORPORATION, THROUGH ITS MUNICIPAL COMMISSIONER, SRI RANA AWADHESH KUMAR 2 HAVING HIS OFFICE AT BUDHA MARG, P.O.-G.P.O., PATNA, P.S.-KOTWALI, DISTRICT- PATNA. … PETITIONER. Versus 1. SHIV BALLABH SHASTRI, CAMP.OFFICE-DR. LOHIA THELA FOOTPATH DUKANDAR SANGH, BAKRI MARKET, NEAR TEMPO STAND, PATNA JUNCTION, PATNA. 2. THE STATE OF BIHAR THROUGH ITS CHIEF SECRETARY, OLD SECRETARIATE BUILDING, PATNA. 3. THE APPELLATE TRIBUNAL, P.R.D.A., PATNA. … RESPONDENTS. In C.W.J.C. No. 5558/2007 For the petitioner: Mr. Mahendra Prasad Gupta, For the State : Mr. Indrajeet Bhushan, A.C. to G.P.22. For the P.M.C : M/s. Vinay Kirti Singh, Bishwa Bibhuti Kumar Singh, Advocates. In C.W.J.C. Nos.16203 of 2007 & 16529 of 2007 For the petitioner(P.M.C.) : M/s. Vinay Kirti Singh, Bishwa Bibhuti Kumar Singh, Advocates. For the State : Mr. Gyan Shankar, A.C. to SC- 17. For the private respondent : Mr. M.P. Gupta, Advocate. ----------- 5. 30.11.2010. Heard counsel for Patna Nagar Footpath Dukandar and Thela Hawker Union as also the counsel for Patna Municipal Corporation (hereinafter referred to as the P.M.C.). 2. The Union is espousing the cause of its members who are transacting business on the land of the P.M.C. which is situate behind the Pearl Cinema and is known as Bakri Bazar. It is submitted by the counsel for the P.M.C. that by encroaching its aforesaid land 36+168 shops (36 with roof and 168 without roof) have been raised by those who 3 encroached the P.M.C. land. P.M.C. thereafter, requested the Vice Chairman, P.R.D.A. to take steps for removal of the encroachment in terms of the provisions contained in the Bihar Regional Development Authority Act, the Vice Chairman of the P.R.D.A. having considered the request of the P.M.C. passed orders dated 12.5.2006, directing the encroachers to vacate the lands of the petitioner as also published notice in the newspaper dated 16.5.2006 giving details of the order dated 12.5.2006 asking the encroachers to remove themselves from the land of the P.M.C. The encroachers resisted the attempt of the authorities for their removal by approaching the Appellate Tribunal under petition dated 9.6.2006, Annexure-2, which was entertained as Appeal No.28,29 of 2006 in which interim order dated 14.6.2006 and 7.7.2006 was passed granting status quo in favour of the encroachers. P.M.C. has challenged the interim order passed by the Appellate Tribunal by filing C.W.J.C. No.16203 of 2007 and 16529 of 2007. 3. Counsel for the Patna Nagar Footpath Dukandar and Thela Hawker Union submit that the members of the Union are earning their livelihood by organizing their small business over the lands of the 4 P.M.C. and before they are evicted from the lands of the P.M.C. for raising shopping complex or for beautification of the city, they must be provided with alternative space for conducting their business and earning their livelihood otherwise the action of the authorities may tantamount to infract Article 21 of the Constitution. 4. In reply, counsel for the P.M.C. has submitted that the land of the P.M.C. has been encroached upon by the petitioners and the encroachers have no right to continue over the land and in appreciation of the fact that petitioners are encroachers this Court should dismiss the writ petition filed by the Union after setting aside the interim order passed by the Appellate Tribunal dated 14.6.2006 and 7.7.2006. In this connection, counsel also submitted that Bihar Regional Development Authority Act has since been repealed under the Bihar Municipal Corporation Act, 2007 and after repeal of the Act the Tribunal has ceased to function. In appreciation of the fact that Tribunal is not in existence, this Court should vacate the interim order passed by the Tribunal earlier. 5. Having heard counsel for the parties, I am of the view that the land behind the Pearl 5 Cinema which was earlier known as Bakri Bazar belongs to the P.M.C. as the Union has not annexed any document with the writ petition to suggest that the same has been settled with the Union or its member. From the order dated 12.5.2006 passed by the Vice Chairman of the P.R.D.A., however, it appears that 36+168 shops have been raised over the aforesaid land. The shops may not have been raised overnight as such I am satisfied that those who have raised the aforesaid 36+168 shops over the lands of the P.M.C. conducted their business over the lands, may be, without settlement of those lands in their favour. The presence of the members of the Union over the lands of the P.M.C. cannot be disputed together with their assertion that they been earning their livelihood over the lands in question. In the circumstance, I direct the authorities of the P.M.C. to make a survey of the area and to short list those who have been conducting their business by encroaching the land in the Bakri Bazar including those who have raised 36+168 shops over the lands in question so that after the area is taken over by the P.M.C. and the structures demolished the members of the Union who have either raised those shops or have been conducting their business in the vicinity 6 of the area are provided alternative space so that they may survive and earn their livelihood. 6. In the light of my observation and direction above, I set aside the interim order dated 14.6.2006 and 7.7.2006 passed by the Appellate Tribunal in Appeal case no. 28 and 29 of 2006. It is, however, made clear that before proceeding with the demolition, the list of the persons found in the vicinity of the area who have been conducting their business or have raised the shops must be published on the Notice Board of the P.M.C. as also in the two Hindi Newspapers, Patna edition. Petitioner-Union is also directed to furnish the list of its members to the Municipal Commissioner within one week from today. 7. The writ applications are, accordingly, disposed of. Ibrar/- ( V. N. Sinha, J.)