Gujarat High Court
Rajaram vs State on 12 August, 2010
Author: H.K. Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/9287/2010 6/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9287 of
2010
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RAJARAM
SONARAM DAVE - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
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Appearance
:
MR
RJ GOSWAMI for
Petitioner(s) : 1,MRJVVAGHELA for Petitioner(s) : 1,
Mr. AL
Sharma, AGP for State Authority.
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 12/08/2010
ORAL
ORDER
Heard learned Advocate Mr. RJ Goswami for petitioner and Mr. AL Sharma, learned AGP for respondent State Authority.
Brief facts of present petition, as per list of events submitted by petitioner, are to the effect that petitioner purchased property on 29.6.2005. On 24.2.2009, petitioner obtained license for starting a business of restaurant namely Mahakali Lodge and Dinning Hall vide certificate No.2/2009. Petitioner filed an application for revised permission before TDO on 16.2.2009. On 25.5.2009, petitioner prayed for time to submit revised permission before the Sub Divisional Magistrate, Gandhinagar. On 25.6.2009, Sub Divisional Magistrate has cancelled license of restaurant of petitioner. On 1.10.2009, TDO issued notice to concerned authority for getting no objection. On 7.10.2009, health department, District Panchayat Office, Gandhinagar had given no objection certificate. On 14.12.2009, Collector, Gandhinagar dismissed appeal of petitioner and, therefore, present petition is filed by petitioner challenging order dated 25.6.2009 passed by Sub Divisional Magistrate,Gandhinagar and order dated 14.12.2009 passed by District Magistrate, Gandhinagar.
Question is that the petitioner has obtained license for starting business of restaurant namely Mahakali Lodge and Dinning Hall vide certificate No.2 of 2009. Application for revised permission was filed by petitioner before Taluka Development Officer. Sub Divisional Magistrate Gandhinagar has considered case of petitioner on the ground that the license was issued in favour of petitioner on condition that on or before 24.3.2009, petitioner shall have to produce commercial permission from respective authority before the Sub Divisional Magistrate, Gandhinagar. After completion of aforesaid period 24.3.2009, again one application was filed by petitioner for extension of further period by application dated 24th May, 2009 and yet two months' time was given by Sub Divisional Magistrate, Gandhinagar and yet, unfortunately petitioner has not produced any documents or evidence whether such commercial use permission has been obtained by petitioner or not and, therefore, in absence of such permission, license cannot remain continue because it was granted subject to that condition. Land on which Mahakali Lodge and Dinning Hall are situated was agricultural land and NA Permission was granted in respect of said land for residential purpose but it requires further revised permission and petitioner is not able to get such further revised NA Permission from respective authorities, therefore, only on that ground, license issued by Sub Divisional Magistrate, Gandhinagar has been cancelled by order dated 25.6.2009 and thereafter, appeal was preferred by petitioner before Divisional Magistrate, Gandhinagar under Rule 10 of the Rules. Before District Magistrate also, same request was made by petitioner and according to petitioner, he is resident of village Mandali and running his hotel in village Mandali itself. In village, this is the only facility of Dinning Hall and NA permission in respect of said land has been granted for residential purpose and proceedings for change of user, for the purpose of hotel are going on and it was submitted that if two months time is granted, then, proceedings can be completed. After considering such submissions made by petitioner, District Magistrate Gandhinagar considered that after issuance of registration certificate on 24.2.2009, till this date, evidence/basis in respect of order of permission for change of user has not been produced and, therefore, District Magistrate rejected appeal by confirming order of Sub Divisional Magistrate, Gandhinagar dated 25.6.2009.
Learned Advocate Mr. Goswami for petitioner has relied upon decision of this Court in case of Yusufbhai Noormohmad Mukhi Vs. District Magistrate and Ors., reported in 2003(1) GLH 52.
I have considered submissions made by both learned advocate. I have also considered decision of this court which has been relied upon. According to my opinion, once when license has been issued on such condition, then, such condition must have to be fulfilled, otherwise, conditional license cannot be further extended and same is required to be cancelled.
In similar circumstances, this court has considered very decision as referred above in Special Civil Application No. 8727 of 2010 on 30th July, 2010. Relevant discussion made by this court from para 4 to 7 is quoted as under:
4.Learned advocate Mr. Thakkar raised contention that authority has committed gross error in demanding Commercial N. A. from petitioner, which is not required under provision of Bombay Police Act under section 33 of Bombay Police Act, 1951 Sub-clause W (i)(ii)(iii). He also relied upon one decision of this Court in case of Yusufbhai Noormohmad Mukhi Vs. District Magistrate and Ors reported in 2003 (1) GLH 52.
5. I have considered submission made by learned advocate Mr. Thakkar and also considered order passed by Sub Divisional Magistrate as well as Additional District Magistrate. Apparently, undisputedly such contentions are not raised by petitioner before Sub Divisional Magistrate and Additional District Magistrate. This contention has been raised before this Court first time for challenging aforesaid two order by petitioner.
6. The decision of this Court as referred above relied by learned advocate Mr. Thakkar, against which, decision of Division Bench of this Court in case of Jamnadas Jethanand Vs. Ram Aiyar reported in 1963 GLR 897, where certain observation has been made by Division Bench of this Court in respect to power under section 33 of Commissioner to refuse renewal of license under Rules of section 33 of Bombay Police Act, 1951. The following observations are relevant, therefore, quoted as under:
We have therefore, to consider the question in the light of these principles whether the act of the Commissioner in resulting the renewal of the license is an administrative or a quasi judicial act. As we have said, the validity of these rules has not been challenged in this petition. Therefore, the competence of the licensing authority in passing the impugned order on the ground of want of jurisdiction, can not be disputed. It is also clear that there is no lis inter partes in this case and therefore, the test that has to be applied is whether there is anything in the statute or the rules which requires the licensing authority to act judicially. It is admitted by Mr. Shah that neither the Act nor the rules expressly law down that the authority has to act judicially and that the rules do not provide for a hearing. It is also not as if the competent authority has to have two parties before him or that it is as a third party that he has to act on the evidence and materials placed before him upon which he has to arrive at his determination. The rules are made by the Commissioner of Police under the powers reserved to him by sec. 33 of the Act. As we have already pointed out, rule No.1 provides in clear terms that a license is to be given to a person who, on the subjective satisfaction of the Commissioner, is a suitable person to hold the license. The act or the determination of the licensing authority has thus clearly to be founded on his satisfaction and is not dependent upon materials or facts placed before him. The nature of the function entrusted to him by the Act and the method of its disposal would also appear to be sure guides that the act is administrative rather than judicial, or quasi judicial. The nature of the function entrusted to the licensing authority is to see that a license is given to a suitable person and not to an unsuitable person. The question whether a person is suitable or not is left to the satisfaction of the licensing authority and the method of disposal of that function is again made dependant on his satisfaction as contrasted with an objection process of sifting and analyzing evidence and a conclusion based on findings arrived at as a result of such sifting, analyzing and assessing evidence. The act or the determination in these circumstances can not be anything else than an administrative act and therefore, the doctrine of natural justice can not apply to such a case.
7. In light of this back ground, let petitioner may approach to Additional District Magistrate, Sabarkantha at Himmatnagar by filing necessary application, wherein petitioner can raise such contention which has been raised before this Court. After receiving such application from petitioner, it is directed to Additional District Magistrate, Sabarkantha at Himmatnagar to reconsider decision in light of contention raised by petitioner in the application and examine it and decide it in accordance with law within a period of two months from date of receiving copy of application from petitioner. Then communicate decision immediately to petitioner.
In view of the aforesaid back ground, contentions raised by learned Advocate Mr. Goswami for petitioner cannot be accepted. However, let petitioner may approach District Magistrate, Gandhinagar by filing necessary application, wherein petitioner can raise such contention which has been raised before this Court. After receiving such application from petitioner, it is directed to District Magistrate, Gandhinagar reconsider decision in light of contention raised by petitioner in the application and examine it and decide it in accordance with law within a period of two months from date of receiving such application from petitioner. Then communicate decision immediately to petitioner.
In view of these observations and directions, this petition is disposed of by this court without expressing any opinion on merits.
(H.K. Rathod,J.) Vyas Top