DBSAW465/2010 // 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN 1. D.B. Special Appeal (Writ) No.465/2010 In S.B. Civil Writ Petition No.10133/2010 The Commissioner, Nagar Parishad, Sikar Vs. Shiv Dham (Dharmana) Jan Kalyan Charitable Trust Sikar and Another 2. S.B. Civil Writ Petition No.10133/2010 Shiv Dham (Dharmana) Jan Kalyan Charitable Trust Sikar and Another Vs. State of Rajasthan and The Commissioner, Nagar Parishad, Sikar Date of Order ::: 04.10.2010 Present Hon'ble the Chief Justice Mr. Jagdish Bhalla Hon'ble Mr. Justice Mohammad Rafiq Shri Madan Kumar Sharma, Officer-in-charge for the Commissioner, Nagar Parishad, Sikar, present-in-person Shri Kailash Tiwari with Shri Shiv Ram, representative of Shiv Dham (Dharmana) Jan Kalyan Charitable Trust, present- in-person #### By the Court:- Shiv Dham (Dharmana) Jan Kalyan Charitable Trust, Sikar filed Writ Petition No.10133/2010 with following prayer:- “(i) Issue an appropriate Writ, Order or direction and thereby the impugned orders dated 23.07.2010 (Annexure- 12 & 13) be quashed and st aside and the petitioner may be allowed to provide meals to the poor persons through Akshay Kaleva Kendra, Surajpole Gate, Sikar; DBSAW465/2010 // 2 // (ii) Issue an appropriate Writ, Order or direction and thereby the respondent no.2 may be directed to release the amount due and as prayed vide application dated 21.07.2010 and the respondents no.2 may be further directed to release the amount at the end of every months. (iii) Issue an appropriate Writ, Order or direction and thereby any action taken/order passed by respondents against petitioner during pendency of writ petition may also be taken on record and the same may also be quashed and set aside; (iv) Any other relief as may be deemed just and proper in the facts and circumstances of the case be also awarded in favour of the petitioners; (v) The cost of the writ petition may also be awarded in favour of the petitioner.” On 28.07.2010 learned Single Judge issued notice of writ petition as well as stay application and stayed operation of orders dated 23.07.2010 (Annexure 12 & 13) with direction to respondents to allow the petitioner to operate Akshay Kaleva Kendra, Surajpole Gate, Sikar. The respondent No.2 (appellant herein) was further directed to release the contribution amount @ Rs.2/- per person on month to month basis regularly along-with the amount due. Being aggrieved with aforesaid interim order, the Commissioner, Nagar Parishad, Sikar, has preferred present appeal. Decision in present special appeal will also decide the point involved in writ petition, DBSAW465/2010 // 3 // therefore, we deemed it appropriate to direct the registry to place the writ petition on board and that is why the writ petition is before us and we decide both, special appeal and writ petition, together. By orders dated 23.07.2010 (Annexure-12 and 13), impugned in writ petition, Akshay Kaleva Kendra, Surajpole Gate, Sikar, that was being run by writ petitioner/respondent no.1 herein, with permission of the Commissioner Nagar Parishad, Sikar, appellant herein, was directed to be closed down. The appellant has argued that writ petitioner/respondent No.1 filed contempt petition and, as per direction of learned Single Judge, two places were offered to him to run Akshay Kaleva Kendra near bus stand and railway station. Choice was ultimately zeroed down on old Chungi Naka which is situated only 50 meters away from railway station and which was best suited for poor and needy for whom Akshay Kaleva Scheme was meant. The writ petitioner/respondent No.1, however, does not want to leave originally allotted premise where from he was removed because of reason that he was found misusing the area allotted to him to run Akshay Kaleva Kendra and made encroachment by fixing tin-shed on public way and was selling juice, cold drink, DBSAW465/2010 // 4 // sweets, chat, tea etc. There was also complaint against writ petitioner/respondent No.1 of carrying gambling activities at the allotted place. The Commissioner has produced a site plan and photographs of places at Chungi Naka, which consists of a room measuring 20'x 9' and a veranda measuring 20' x 7', which have opening in front thereof. Representatives of writ petitioner/ respondent no.1, who are present-in-person, have argued that places that are being offered by the appellant are not suitable to run Akshay Kaleva Kendra and instead they have sought some other alternative place from the appellant nearer to originally allotted place. In this connection, they have suggested certain sites to the appellant. It is then argued that the writ petitioner/respondent no.1 has not made encroachment from or around originally allotted place. All the article lying there have been seized by the appellant and have not been returned so far and that their existed 'pucca' construction of water tank etc. They may be, therefore, allowed to run Akshay Kaleva Kendra at the originally allotted site. It is also argued that site of old Chungi Naka is not suitable because the same is being used to run a 'rain basera'. DBSAW465/2010 // 5 // Representative of appellant submitted that now originally allotted site is not available with them inasmuch as the originally allotted site is not sufficient to serve the poorer and needy persons and in case petitioner/respondent No.1 is allowed to run Akshay Kaleva Kendra there, this would enable petitioner/respondent no.1 to again encroach upon the public land and run a commercial venture. Upon hearing representatives of both parties and perusing impugned order dated 28.07.2010, we find that nature of complaint against writ petitioner/respondent no.1 was such which compelled the appellant herein to order for closure of Akshay Kaleva Kendra from the old site, cannot be said to be totally without reason. The learned Single Judge has virtually granted final relief to writ petitioner/respondent no.1 while granting interim relief. In the facts of present case, we are satisfied that ends of justice will be met if writ petitioner/respondent no.1 is allowed to run Akshay Kaleva Kendra at the site of old Chungi Naka, the place offered by the appellant situated near railway station as 'rain basera' has now been shifted to Rani Sati Road and the respondent no.1 would not be now able to run the DBSAW465/2010 // 6 // Akshay Kaleva Kendra at this premise. Writ petitioner/respondent no.1 is allowed for time being to run the Akshay Kaleva Kendra at the site of old Chungi Naka, Sikar. The appellant is directed to return to writ petitioner/respondent no.1 all the seized articles within a period of two weeks and the writ petitioner/respondent no.1 would be entitled to shift/start running Akshay Kaleva Kendra from the said premise within a period of one month and run the same in terms of the Circular dated 11.05.2006 of the State Government. If he fails to start the Akshay Kaleva Kendra from the aforesaid alternative premise, the appellant herein shall be entitled to issue license for running the Akshay Kaleva Kendra to any other person in accordance with law. The special appeal is accordingly disposed of. Since controversy that is involved in main writ petition is decided in the light of this order, therefore the writ petition also stands disposed of. (Mohammad Rafiq) J. (Jagdish Bhalla) CJ. //Jaiman//