IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.17537 of 2008 Dilip Kumar Singh, son of Sri Awadhesh Kumar Singh, resident of village- Karhara, P.O. Jaipur, P.S. Mali (Nabinagar), District- Aurangabad Versus 1. The State of Bihar 2. The District Magistrate, Aurangabad, District-Aurangabad 3. The Sub-Divisional Officer, Aurangabad, District-Aurangabad ----------- For the petitioner:- M/S Rajendra Pd. Singh, Sr. Advocate, Rajeev Kumar Singh and Onkar kumar, Advocates. For the State:- A.C. to SC 13. ------------ 4. 13.02.2009 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner seeks quashing of the order contained in memo No. 3 dated 24.10.2008 issued by the Sub-Divisional Officer, Aurangabad, by which he has cancelled the allotment made in favour of the petitioner and further to quash the notice dated 10.11.2008 issued by him directing eviction of the petitioner from the premises occupied by him. The petitioner was allotted a shop measuring 10` x 12` by order dated 8.12.2006 of the Sub-Divisional Officer, Aurangabad on the basis of his application. The settlement was of a totally temporary nature and it was subject to certain terms and conditions, including only for carrying on the business of stationery and photo copy, etc. It was stipulated that the settlement could be cancelled without any prior notice by the Sub-Divisional Officer. Subsequently the impugned order dated 24.10.2008 was issued by the Sub-Divisional Officer in which the petitioner was directed to remove his shop from the Sub-Divisional office premises by 30.10.2008 failing which it would be forcibly - 2 - removed. Three grounds were mentioned in the said order, namely, that the settlement amount of Rs. 2400/- was not deposited for the year 2008- 09 till then. The other reason was that the petitioner had sublet his shop which was contrary to the conditions laid down in the temporary settlement order. Lastly, it was stated that adjacent to the premises of the Sub-Divisional Office, the Divisional Jail is situated where many maoist/extremists prisoners are kept which is extremely sensitive for that reason and several times the local police officials and Special Branch officials have requested for the removal of the shops near the Divisional Jail since presence of those shops lead to collection of a crowd consisting of unwanted elements affecting security of the Divisional Jail. Thus, for the said three reasons the settlement was cancelled and the order for removal of the shop was passed. The said order was followed by another order dated 10.11.2008 by which the petitioner was directed to remove the shop positively by 15.11.2008. Learned counsel for the petitioner submits that the removal of the shop has been ordered for non-est reasons, without any prior notice to the petitioner and without giving him any opportunity of hearing. It is submitted that the petitioner has not sublet the shop to any other person and that subsequently the settlement amount for 2008-09 has also been deposited. It is also submitted by learned counsel that various letters from the Superintendent of Divisional Jail that have been brought on the record refer essentially to the various betel shops adjoining the Divisional Jail compound whereas the shop of the petitioner is located at the other end adjacent to the treasury office which - 3 - is at a substantial distance from the Jail compound as compared to the betel shops which are quite close to it. Learned counsel for the State, on the basis of the statements made in the counter affidavit has sought to assert the same reasons including the security concern and the various incidents that had taken place with respect to the prisoners of the Divisional Jail including the escape of certain convicts on 7.10.2008 and the fact that the said jail is a high risk prison where approximately 176 hard core maoist Naxalites have been imprisoned. It is also stated in the counter affidavit that the petitioner had sublet the shop to one Arvind Yadav, Mukhiya of Pokhraha Gram Panchayat under Aurangabad Block who had started a Photostat shop therein by constructing a Pucca structure with asbestos roof in violation of the terms and conditions of the temporary settlement. It is further stated that the said Arvind Yadav being President of Mukhiya Association, started office from that very place where several unscrupulous persons gather and loiter during the day and evening time causing immense problem to the Sub-divisional Office, Registry office and District Treasury Office situated nearby and also the District Jail, Aurangabad. It is also stated in the counter affidavit that the pucca structures have already been removed on 9.12.2008 before the interim order of stay was passed by this Court on 12.12.2008. On a consideration of the aforesaid facts and circumstances, this Court finds that although it was clearly stated in the temporary settlement order that the settlement can be cancelled at any time without assigning any reason, yet it is evident that the authorities of - 4 - the State cannot act in an arbitrary and unreasonable manner while doing so. Even though such a power cannot be denied to the State authorities to cancel any temporary settlement but such power cannot be used to satisfy the whims of the concerned officials, for example, to remove one person and make settlement in favour of another person over the same place. If the same is exercised for sufficient reasons then of course this Court would not like to interfere with such an order. It is evident from the impugned order that the same has been passed not only for security reasons but also for two other reasons assigned in the order dated 24.10.2008 with respect to which two reasons it was incumbent upon the respondent-authorities to have issued a notice to the petitioner and pass an order in that regard only after giving him an opportunity in the matter; that would have satisfied the principle of fairness in executive action. That not having been done, the order dated 24.10.2005 will have to be held to be contrary to law and violative of Article 14 of the Constitution which provides for the principle of non- arbitrariness and fairness. In the above circumstances, the impugned order dated 24.10.2008 is quashed and the writ application is allowed. It would be open to the respondent no.3, Sub-Divisional Officer, Aurangabad to proceed afresh in the matter in accordance with law. S.Pandey (Ramesh Kumar Datta, J.)