1 IN THE HIGH COURT OF JUDICATURE FOR RAJALSTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. Civil Writ Petition No.12000/2009 State of Rajasthan & Ors. vs. Smt.Bindu Bhardwaj WITH S.B. Civil Writ Petition No.10984/2009 Manjit Singh Khurana vs. State of Raj. & Ors. DATE OF ORDER ::: NOVEMBER 21, 2009 P R E S E N T HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN WRIT PETITION NO.12000/2009 Mr.R.B.Mathur,for the petitioners Mr.Champeshwar on behalf of Mr.Mahesh Sharma, for respondent No.1 WRIT PETITION NO.10984/2009 Mr.Sharad Purohit, for the petitioner Mr.R.B.Mathur, for respondents No.1,2 & 3 Mr.Champeshwar on behalf of Mr.Mahesh Sharma, for respondent No.4 1. The learned counsel for the parties contended that both the writ petitions are identical, therefore, they may be heard together. At the request of the parties, final arguments were heard in these writ petitions and they are being disposed of finally. 2. The country liquor shops for Ward No.16 & Ward No.23 in Ramganj Mandi were 2 earlier allotted to Smt.Sunder Devi and Smt.Bindu Bhardwaj respectively, but the same were cancelled vide order dated 19th August, 2009 by Excise Department, Kota. Being aggrieved with the same, Smt.Bindu Bhardwaj filed a civil suit in the trial court for permanent injunction as well as injunction in mandatory form along with an application for temporary injunction in respect of her shop of Ward No.23 against defendant- department. The Civil Judge (Jr.Div.), Kota (South) vide its order dated 27th August, 2009 dismissed the application for temporary injunction. Being aggrieved with the same, she preferred an appeal along with stay application before District Judge, Kota on 31st August, 2009. The learned District Judge, Kota on the same day i.e. 31st August, 2009 stayed the operation of the order of Excise Department dated 19th August, 2009 in respect of both the shops situated in Ward No.23 & Ward No.16 on the basis of concession given by Government Advocate Shri Ramswaroop Sharma. Being aggrieved with the same, the State Government has preferred Writ Petition No.12000/2009. 3. It is relevant to mention that shop situated in Ward No.16 has been shifted to Ward No.15 and the same has been allotted to 3 Mahaveer Singh Gurjar. Similarly, after dismissal of application for temporary injunction in respect of shop situated in Ward No.23 vide order dated 27th August, 2009, the same was allotted by the Excise Department on 28th August, 2009 to one Manjit Singh Khurana. However, he could not run his business because of stay order dated 31.8.2009. Since Manjit Singh Khurana was not impleaded as party in the appeal filed by Smt.Bindu Bhardwaj before District Judge, Kota, therefore, instead of filing an application before the said court for impleading him as party and for vacating the stay order, he preferred Writ Petition No.10984/2009 directly before this Court under Article 226/227 of the Constitution. 4. So far as shop situated in Ward No.16, which has now been shifted to Ward No.15 and allotted to Mahavir Singh Gurjar, the learned counsel for the parties agree that it was not the subject matter of the suit or appeal and the learned District Judge could not have passed order in this regard or due to inadvertent the stay order has also been passed in respect of the said shop also, therefore, the order passed by the District Judge dated 31st August, 2009 in civil misc. application No.279/2009 be set aside to that extent. 4 5. So far as another shop situated in Ward No.23 in Ramganj Mandi is concerned, the learned counsel for State/Excise Department contended that Department did not receive any notice of appeal and it had not authorised Shri Ramswaroop Sharma, Government Advocate to appear and argue the case on behalf of the Department but he appeared and without any instructions and any authority, gave concession to the effect that the order dated 19th August, 2009 passed by Excise Department is not in accordance with law, whereas the order dated 19th August, 2009 was absolutely legal one, the trial court rightly rejected the application for temporary injunction filed by Smt.Bindu Bhardwaj, therefore, order dated 31.8.2009 is liable to be set aside. 6. The submission of learned counsel for petitioner-Manjit Singh Khurana in Civil Writ Petition No.10984/2009 is that he was alloted shop in Ward No.23(now shifted to Ward No.20) on 28th August, 2009 and he deposited the entire proportionate requisite licence fee with the department, but he is not being allowed to run the shop because of the stay order dated 31st August, 2009 passed by District Judge, Kota, whereas he is not even party in the appeal and stay order is not binding on him. He submits 5 that he challenged the stay order directly before this court as the same is without jurisdiction and violative of principles of natural justice. He further submits that he will move necessary application in the suit as well as in appeal to implead him as a party and will also move an application for vacation of the stay order dated 31st August, 2009 and for the same necessary directions may be issued or the appellate court be directed to decide the appeal itself at the earliest. 7. The learned counsel for Smt.Bindu Bhardwaj contended that Shri Manjit Singh Khurana was not impleaded as a party in the suit as he was not an interested or necessary party till the date of filing of suit, but his right accrued only by order dated 28th August, 2009. 8. Be that as it may, from the above narration of facts and circumstances of the case and after considering the submissions of learned counsel for the parties, I find that dispute remains only in respect of country liquor shop situated in Ward No.23 alone. 9. The impugned order dated 31st August, 2009 is only an interim order till the disposal of the appeal pending before the District Judge. In these circumstances, instead of 6 deciding the writ petition on merits, I think it fit and proper to direct the learned District Judge to decide the appeal itself on merits within time to be fixed by this Court, after hearing the parties. 10. The petitioner Manjit Singh Khurana will move necessary application before the trial court as well as the appellate court to implead him as party defendant/respondent in the suit as well as appeal and both the courts below will allow to implead him as a party. The needful should be done within a period of two weeks. The learned District Judge will decide the appeal within a period of one month from today. 11. Consequently, both the writ petitions are disposed of as under and with the following directions:- (i) the order dated 31st August, 2009 passed by District Judge in Civil Misc. Application No.279/2009 is partly set aside so far it relates to country liquor shop situated in Ward No.16 (which has now been shifted to Ward No.15) and has been allotted to Mahavir Singh Gujar. (ii) The appeal pending before District Judge, Kota against the impugned order 7 dated 27.8.2009 passed by Civil Judge (Jr.Div.), Kota(South) in Civil Misc. Application No.226/2009 shall be decided finally, after hearing the parties, within a period of one month from today. (iii) The parties are directed to appear before the District Judge, Kota on 30th November, 2009. (iv) The parties are directed to bear their own cost. Since two writ petitions have been disposed of by this common order, therefore, the Registry is directed to place a copy of this order in another file. The Registry is also directed to send a copy of this order to the learned District Judge, Kota for compliance. (Narendra Kumar Jain) J. BKS/-