IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7771 of 2002 RAM CHARITAR RAJAK Versus 1. THE STATE OF BIHAR 2. THE DISTRICT MAGISTRATE, KHAGARIA 3. KHAGARIA MUNICIPALITY THROUGH ITS SPECIAL OFFICER, KHAGARIA 4. THE SPECIAL ADDL.OFFICER, KHAGARIA & 5. ARJUN MAHTO, MURGIACHAK, KHAGARIA. -------- 5. 11.02.2010. Heard learned counsel for the petitioner and the State. No one appears for respondent no.5 in spite of valid service of notice to him. The petitioner is aggrieved by order dated 26.3.2002, passed by respondent no.2 as contained in annexure 9. He has further prayed for direction to respondents to vacate the municipality shop/stall no. 17 and hand over the vacant possession of the same to him. The petitioner submits that he along with his elder brother namely Late Lalji Rajak shifted to Khagaria in 1970 and since then they jointly did business of washer man in the name and style of ‘Ashok Dry Cleaners’, Station Road, Khagaria. On 19.1.1987, respondent no.3, the Municipality removed all the shops situated by the side of road and subsequently allotted the land in question in the year 1989 to the persons whose shop were removed and accordingly stall no. 5/8 was allotted through lottery to elder brother of petitioner on deposit of Rs.2500/- which was subsequently numbered as D/17 and is paying the rent of the plot regularly. He further states that one Arjun Mahto, respondent no.5 also came in possession of Stall no. D/95 through same lottery process. In the meantime, petitioner’s elder brother fell ill and died, - 2 - whereafter respondent no.5 forcefully entered into and occupied petitioner’s shop. Petitioner filed an application pursuant to which the S.D.O. Khagaria by letter dated 1.7.2000, annexure 3 directed the petitioner to bring all the documents in support of his claim. Respondent no.3, the Special officer, Municipality by letter dated 5.7.2000 also directed the petitioner to bring his documents and to appear on 21.7.2000. The respondent no.3 after hearing the petitioner and examining his papers as well as papers of respondent no.5 disposed of the application of petitioner vide order dated 16.8.2000, annexure 5. The petitioner states that it would appear from the documents that Stall no. D/17 was allowed to his elder brother and both of them worked in jointness. Even one Ashok Rajak, s/o Lalji Rajak sworn an affidavit that he is living in joint ness with the petitioner and after death of his father, the petitioner is Karta of family and successor of stall in question. A copy of the affidavit of Ashok Rajak has been annexed as annexure- 7 to this application. In the meantime, respondent no.5 preferred Misc.case no. 26/2000 before the District Magistrate, Khagaria against order dated 16.8.2000, passed by the SDO, Khagaria. Learned counsel for the petitioner submits that respondent no.2, the District Magistrate, Khagaria vide ordered dated 26.3.2002 set aside order dated 16.8.2000, passed by Special officer, Municipality and directed him to change the allotment of Stall no. B/17 in the name of Arjun Mahto by canceling his allotment bearing lincence no. D/1985. The petitioner - 3 - submits that no Misc. petition would lie before the Collector against order of Special officer, Municipality. He further submits that the allotment made in favour of the petitioner by Special officer ought not to have been cancelled as he happens to be the full brother of the allottee. He submits that in any view of the matter, the allotment could have been made by process of auction or the prevailing law. This Court, taking into consideration the submission of petitioner, affidavit of allottee’s son that the shop ought to have been given to them in preference to respondent no.5, remit the matter to the District Magistrate, Khagaria to decide the matter afresh after giving opportunity to both the parties i.e. the petitioner and respondent no.5. The writ petition stands disposed of with aforesaid directions. Shashi. (Samarendra Pratap Singh,J).