IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7412 of 2006 1. SUKHDEO RAI, SON OF LATE PARICHAN RAI, RESIDENT OF VILLAGE HARPUR MUKUND ZUNEDA, P.S. MOTIPUR, DISTRICT MUZAFFARPUR. 2. ACHAY LAL RAI, SON OF LATE VISHNU RAI, RESIDENT OF VILLAGE SUNDAR SARAI, P.S. MOTIPUR, DISTRICT MUZAFFARPUR. 3. DINESH RAI, SON OF JAI NARAIN RAI, RESIDENT OF VILLAGE SHADE DAMBER, P.S. MOTIPUR, DISTRICT MUZAFFARPUR. Versus 1. THE STATE OF BIHAR 2. THE DISTRICT DEPUTY DEVELOPMENT COMMISSIONER CUM CHIEF EXECUTIVE OFFICER, ZILA PARISHAD, MUZAFFARPUR. 3. CHAIRMAN, ZILA PARISHAD, BANK ROAD, MUZAFFARPUR. 4. DISTRICT ENGINEER, ZILA PARISHAD, BANK ROAD, MUZAFFARPUR. For the petitioner : Mr. Binod Kumar Mishra, Advocate. For Zila Parishad : Mr. Sanjeev Shankar, Advocate. For private respondents : Mr. Sanjeev Ranjan, Advocate. ----------- 06. 10.05.2011 Heard learned counsel for the petitioner, Zila Parishad, Muzaffarpur(hereinafter referred to as the Zila Parishad) and the counsel for allotee of shop nos.1, 10 and 12 of notice dated 10.3.2003, Annexure-2 who have not filed counter affidavit in spite of indulgence granted to them under orders dated 5.5.2011. 2. This writ petition has been field against the order bearing Memo No.64 dated 4.2.2006 passed by the Deputy Development Commissioner cum Chief Executive Officer of Zila Parishad, Annexure-10 in compliance of the orders of the High Court dated 2 28.9.2005 passed in C.W.J.C. No.14468 of 2003, Annexure-7 whereunder allotment made in favour of petitioners under allotment notice dated 10.3.2003 Annexure-2 has been maintained contrary to the direction contained in order dated 28.9.2005 passed in C.W.J.C. No.14468 of 2003, Annexure-7. This Court disposed of the said writ petition observing as follows :- In such view of the matter, I have no other option but to hold that in fact, the petitioners were not called upon by the Zila Parishad to pay the next installment and accordingly, the question of the petitioners failing to pay the next installment did not arise and as such the impugned order is set aside and the original allotments made in favour of the petitioners are restored and the petitioners shall be entitled to enjoy such allotment in the same manner as they are enjoying before the impugned order was issued and shall continue to do so, but the same will not prevent the Zila Parishad from requiring the petitioners to comply with other terms including payment terms. The Zila Pariashad shall inform the petitioners in writing as to what further things the petitioners are required to do in relation thereto and within what time. 3. It is evident from operative portion of the aforesaid order quoted above that the impugned 3 allotment order i.e. the notice dated 10.3.2003, Annexure-2 herein was set aside and the original allotment made in favour of petitioners was restored. It appears earlier petitioner nos.1 and 2 were allotted land for raising make shift construction over a piece of land measuring 12 x 9 feet under letter no.434 dated 27.8.1977, Annexure-1 in the earlier writ petition bearing C.W.J.C. No.14468 of 2003 by the Secretary, Agriculture Produce Market Committee, Motipur. The settlement made under Annexure-1 continued till petitioner nos.1 and 2 was displaced by the Zila Parishad for raising market complex over the lands bearing plot nos.62, 64 as would appear from the general notice published in the newspaper, copy whereof is annexed as Annexure-A to the counter affidavit of the Zila Parishad. After the marketing complex was raised petitioners and others were allotted different shops in the marketing complex under notice dated 10.3.2003, Annexure-2, whereunder petitioner nos.1 and 2 who were the displaced allottees on the basis of the earlier allotment dated 27.8.1977 were not given the shop of their choice contrary to the 4 representation made at the time of their displacement and they were provided shop in the rear portion of the marketing complex, although in the allotment notice a separate category was made for the shopkeepers who were displaced earlier and the name of the two petitioners along with other displaced allottees was found mentioned in the category of displaced including Sri Shivjee Sah who is the allottee of shop no.1. The allotment of shop made under notice dated 10.3.2003 was challenged by the petitioner before this court by filing C.W.J.C. No.9159 of 2003 which was disposed of under orders dated 2.9.2003, Annexure-3 directing the chairman of Zila Parishad, respondent no.3 to dispose of the petition filed by the petitioners. After receipt of order dated 2.9.2003, Annexure-3 the Chairman considered the request of the petitioner for allotment of the shop in the front portion of the marketing complex and rejected the same under orders dated 9.9.2004, which is enclosed as Annexure-D to the counter affidavit of Zila Parishad. Before the request of the petitioners for allotment of shop could be considered and disposed of rejecting the same under 5 order dated 9.9.2004 petitioners had already filed C.W.J.C. No.14468 of 2003 impugning the original allotment notice dated 10.3.2003, Annexure-2. Later when the order disposing of the representation dated 9.9.2004 was brought to the notice of the petitioners they also placed the same in C.W.J.C. No.14468 of 2003 as Annexure-13 to the said writ petition by filing supplementary affidavit. In spite of notice to the authorities of the Zila Parishad of the proceedings taken pursuant to C.W.J.C. No.14468 of 2003 the authorities of the Zila Parisahd did not chose to contest the prayer made in the writ petition. 4. This Court speaking through Barin Ghosh, J considered C.W.J.C. No.14468 of 2003 and disposed of the same passing the order dated 28.9.2005, operative portion whereof has already been quoted above. In the light of the said order the authorities of the Zila Parishad have passed the impugned order dated 4.2.2006, Annexure-10 in which the same allotment which was made under notice dated 10.3.2003 has again been made for the petitioners. It is thus quite evident that the authorities of the Zila Parishad have 6 chosen to ignore the direction of this Court to restore the original allotment made in favour of the petitioners. 5. Learned counsel for the Zila Parishad and the allottees of shop nos.1, 10 and 12 have defended the order dated 4.2.2006, Annexure-10 stating that earlier allotment of land made under letter dated 27.8.1977 Annexure-1 in C.W.J.C. No.14468 of 2003 could not be the basis for granting preference to the petitioners herein as the said allotment was not allotment for shop but only space to raise make shift construction and such make shift construction will not grant any preference to the allottees. Aforesaid submission was required to have been made either before Mr. Justice Barin Ghosh or by challenging the order passed by his lordship but not in these proceedings as I am not competent to go behind the order passed by another Single Judge of this Court. 6. Under earlier orders of the High Court dated 28.9.2005, Annexure-7 the settlement made under notice dated 10.3.2003 having already been set aside and the original allotment made in favour of petitioners having been restored, this Court has no 7 option but to direct the authorities of the Zila Parishad to provide the earlier allottees of allotment letter dated 27.8.1977 Annexure-1 in C.W.J.C. No.14468 of 2003 with opportunity to choose their shops in the front portion of the marketing complex. In this connection, I may mention that even the authorities of the Zila Parisahd under notice dated 10.3.2003 have treated the earlier displaced persons as a class but few of those displaced persons instead of being provided shop in the front portion of the marketing complex have been provided shop in the rear portion of the marketing complex, which was set aside so far petitioner nos.1 and 2 of the present writ petition are concerned. Accordingly, I direct that petitioner nos.1 and 2 of the present writ petition be provided with shop in the front portion of the marketing complex as was directed by this court under orders dated 28.9.2005, Annexure-7. 7. Before parting with this order this court will take notice of the submission of the counsel for the Zila Parishad that during the pendency of present writ petition as also the earlier writ petition, petitioners of the present case have been occupying the shop in the 8 rear portion of the marketing complex bearing shop nos.3 6 and 7, for which they have neither paid the construction cost nor any rent. If that be so then petitioner nos.1 and 2 who are to be provided shop in the front portion of the marketing complex should pay the construction cost of the shop which shall be provided to them in the front portion of the marketing complex and the rent for occupation of the shop in the rear portion. Payment due from the petitioners be made by them, as early as possible, in any case within two months from the date of giving possession of the shop in the front portion of the marketing complex. 8. With the observation aforesaid, the writ application is disposed of. Rajesh/ ( V.N. Sinha, J.)