IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11323 of 2004 KSHITISH CHANDRA GHOSE son of Late Chinta Haran Ghose, Resident of Ghosh Para Colony No.2, P.S.- Katihar, District- Katihar. . . . . . . Petitioner. Versus 1. THE STATE OF BIHAR 2. The Deputy Development Commissioner-cum-Chief Executive Officer, District Board, Katihar. 3. The District Engineer, District Board, Katihar. 4. The Chairman, District Board (Zila Parishad), Katihar. . . . . . Respondents. with CWJC No.4283 of 2004 RANJEET PRASAD SINGH @ RANJEET KUMAR SINGH Son of Late Lal Bahadur Singh, Resident of Mohalla Colony no.1, P.S + P.O.-Katihar, District- Katihar (Bihar). . . . . . Petitioner. Versus 1. THE STATE OF BIHAR 2. The District Magistrate, Katihar. 3. The Chairman, Zila Parishad, Katihar. 4. The Deputy Development Commissioner-cum-Secretary, Zila Parishad, Katihar. 5. Kshitish Chandra Ghos, Son of Late Chinta Haran Ghos, Resident of Ghosh Para Colony No.2, P.S.- Katihar, District- Katihar. . . . . . Respondents. (in C.W.J.C. No. 11323 of 2004) For the Petitioner : Dr. Krishna Nandan Singh, Sr. Advocate Mr. Komal Deo Sharma, Advocate For the Respondents : M/s Shyam Bihari Singh, Brajendra Nath, Advocates For the State : Mr. Manisha Singh, AC to G.A.I. (in C.W.J.C. No. 4283 of 2004) For the Petitioner For the State : Mr. Md. Arif, AC to SC IV For Resp. no. 5 : Dr. Krishna Nandan Singh, Sr. Advocate : Mr. Dhaneshwar Pd. Gupta, Advocate For Resp. nos. 3 & 4 : Mr. Shyam Bihari Singh, Mr. Brajendra Nath, Advocates ----------- 8/ 15.02.2010 Heard learned counsel for the petitioners as well as learned counsel for the respondents. Both C.W.J.C. No. 11323 of 2004 and C.W.J.C. No. 4283 of 2004 are taken up together for disposal. In C.W.J.C. No. 11323 of 2004, the petitioner prays for - 2 - restraining the respondents from ousting him from the space lawfully provided by them in the Bazar. He further prays for direction to the respondents to construct a Pucca shop as per Annexures-3 and 4 and allotted the same to them at their cost. On 25.04.1991, the petitioner of C.W.J.C. No. 11323 of 2004 was provided small space vide letter no. C 49 dated 25.04.1991 of Zila Parishad, Katihar, as contained in Annexure-1, at the rate of Rs. 3/- per sqr feet. The petitioner established a small Gumti on it for doing clothe business. On 29.01.1999, he received a communication from the Deputy Development Commissioner-cum-Chief Executive Officer, Zila Parishad, Katihar asking him to vacate the premises in question. He regularly paid rent thereof. As the petitioner faced threatened dispossession, he filed a Title Suit bearing no. 17 of 1999 before Court of Munsif, Katihar on 24.06.1999. Learned Munsif restrained the District Board from removing his Gumti or closing his clothe business. The District Board filed an appeal. However, during the pendency of the appeal, the title suit got dismissed for default. The petitioner filed Misc. case no. 12 of 2000 for restoration of the same. In the mean time, the Executive Engineer, District Board, issued a letter dated 26.04.2001 communicating the decision of the Deputy Development Commissioner-cum-Chief Executive Officer, Zila Parishad, Katihar dated 24.04.2001 wherein approval was granted for construction of shops. One of such shops was to be constructed at the cost of the petitioner. It was further stated in the letter that both the - 3 - petitioner and District Board would withdraw their respective cases. Pursuant to the said letter no. 28 dated 26.04.2001 of the District Engineer, Zila Parishad, Katihar, the petitioner withdrew his case pending in the District Court. On 20.06.2001, the Deputy Development Commissioner-cum-Chief Executive Officer, Zila Parishad, Katihar also issued a letter bearing no. 73 addressed to the lawyer of the District Board stating therein that an assurance has been given to shop owners that on construction of shops, the same would be allotted to them. The lawyer as such was advised to withdraw the appeal filed on behalf of Zila Parishad before the District Judge, Katihar, which was ultimately withdrawn. Learned counsel submits that map plan was also prepared by the Zila Parishad, which has been annexed as Annexure-6 to the 3rd Supplementary affidavit filed on behalf of the petitioner. The Gumti of the petitioner allotted vide Annexure-1 on 20.09.2004 was demolished. The petitioner submits that he was always ready to pay the cost of construction of new shop as contained in letter dated 26.04.2001 (Annexure-3) of the District Engineer, communicating the decision of the Deputy Development Commissioner-cum-Chief Executive Officer, Zila Parishad, Katihar dated 24.04.2001. However, no cheque or money was accepted from him. The petitioner states that though respondents demolished his Gumti, still they did not follow their own commitment to construct new shops for allotment to petitioner Another writ bearing C.W.J.C. No. 4283 of 2004 was filed by one Ranjeet Prasad Singh @ Ranjeet Kumar Singh for removal of - 4 - Gumti allegedly encroached on public land by petitioner. However no one appeared on behalf of respondent no. 5 to press the application. On the other hand, petitioner submits that he established Gumti pursuant to the space duly provided to him vide Annexure-1. The petitioner continuously ran the same till its demolition in the year, 2004. Further more, the Gumti was demolished even prior to order dated 22.11.2004 passed in C.W.J.C. No. 4283 of 2004 filed by Ranjeet Kumar Singh. Learned counsel for petitioner contended that even as per the aforesaid order dated 22.11.2004 passed in C.W.J.C. No. 4283 of 2004, the respondents were required to look into the matter of encroachment. Moreover, in any view of the matter, they could have removed the petitioner’s Gumti only by following procedure in accordance with law. In support of his submission learned counsel for the petitioner has relied upon a decision of the Hon’ble Apex Court in the case of Lallu Yeshwant Singh (dead) Vs. Jagdish Singh & Ors, reported in AIR 1868 SC 620 and a decision of this Court in the case of Sahid Hadi Vs. The State of Bihar & Ors reported in 2009 (3) PLJR 289. Mr. Jyotendra Nath, learned counsel for the District Board, submits that the space in question on which the petitioner opened his Gumti was temporarily allotted to him. He further submits that subsequently, it appeared that the Gumti is blocking the passages of other shopkeepers. He submits that Annexure-3 would not have a binding effect on the District Board, so as to make allotment of a shop in favour of the petitioner. - 5 - Heard counsel for the parties. Annexure-1 to the writ application leaves no room of doubt that a specified space was allotted to the petitioner at the rate of Rs. 3/- per sqr feet vide Memo no. 49 dated 25.04.1991. It would further appear that on 29.01.1999, the Deputy Development Commissioner-cum-Chief Executive Officer, Zila Parishad, Katihar directed the petitioner to remove the Gumti from the allotted space. The direction of the Deputy Development Commissioner-cum-Chief Executive Officer, Zila Parishad, Katihar led to filing of Title Suit before the Munsif, Katihar by the petitioner, in which the respondents were restrained from interfering with his possession. Annexure-3 is a decision of the Deputy Development Commissioner-cum-Chief Executive Officer, Zila Parishad, Katihar after detailed talk with the shopkeepers to construct shops in the said Bazar and to allot the same to the petitioner and others at their cost. The said letter dated 26.04.2001 also required the petitioner to withdraw his civil suit. Consequently, the petitioner withdrew his case. It would also appear from the letter no. 73 dated 20.06.2001, that Deputy Development Commissioner-cum-Chief Executive Officer, Zila Parishad, Katihar even directed his advocate to withdraw the case in view of the decisions contained in Annexure-3. The petitioner altered his position to his disadvantage pursuant to communication made to him, as contained in Annexure-3. It appears that petitioner was always willing to deposit the necessary cost of construction. The respondents now cannot go back on their decisions communicated vide Annexure-3 and deny the allotment of shop to be - 6 - constructed at his cost. It is well settled that no person, who is in settled possession can be dispossessed, save and except by following procedure in accordance with law. The decision in the case of Lallu Yeshwant Singh (dead) and Sahid Hadi (Supra) would support the contention of the petitioner. In the backdrop of the aforesaid discussions, this Court directs the respondent Zila Parishad, Katihar to honour their own commitment, as contained in Annexure-3, by which the Executive Engineer, Zila Parishad, Katihar communicated the decision of the Deputy Development Commissioner-cum-Chief Executive Officer, Zila Parishad, Katihar to allot a shop in the Bazar at the constructed cost of the petitioner. Accordingly, the respondents are directed to make such allotment and petitioner on their part would have to pay the cost of such construction. It is made clear that petitioner will not have a right to any particular shop in the locality. The right will be only to a shop. The order should be complied within seven months from the date of receipt of a copy of this order. In the facts and circumstances of the case, C.W.J.C. No. 4283 of 2004 is dismissed as infructuous. Uday/ (Samarendra Pratap Singh, J.)