Gujarat High Court
Mahendrabhai Arunbhai Bhaiya vs State Of Gujarat & 3 on 13 April, 2016
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/9431/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9431 of 2014
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MAHENDRABHAI ARUNBHAI BHAIYA....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR. SHAKTI JADEJA FOR MR SP MAJMUDAR, ADVOCATE for the
Petitioner(s) No. 1
MR. TIRTHRAJ PANDYA, AGP for the Respondent(s) No. 1-4
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 13/04/2016
ORAL ORDER
In the facts and circumstances of the case and with request and consent of learned advocates appearing for the parties, the petition was taken up for final consideration.
1.1 Rule returnable forthwith. Learned advocate Mr. Tirthraj Pandya waives service of Rule on behalf of the respondents.
2. Heard learned advocate Mr. Shakti Jadeja for learned advocate Mr. S. P. Majmudar for the petitioner and learned Assistant Government Pleader Mr. Tirthraj Pandya for the respondent authorities.
3. Sub-Divisional Magistrate, Rajpipla, exercising powers under the Bombay Police Act, 1951, refused the application of the petitioner for Page 1 of 4 HC-NIC Page 1 of 4 Created On Sun Apr 17 02:05:04 IST 2016 C/SCA/9431/2014 ORDER getting licence to run guest house-cum-restaurant. The said decision reflected in the communication dated 21.11.2013 is the principal grievance and the subject matter of the prayer in the present petition.
3.1 It appears on going through the said communication that it was on more than one grounds weighed with the said authority, that the application of the petitioner came to be rejected. The first mentioned ground was that the place at which the petitioner proposed to start the guest house-cum-restaurant was a disputed property. The second ground was that the place in question was owned by one Shri Gumandev Mandir Trust and that the petitioner has not got registered the lease agreement executed by the said owner. The third ground was that the petitioner had not got converted the place for commercial purpose from the competent authority. The fourth reason mentioned was that for constructing the building at the place, permission of the Charity Commissioner was not obtained.
4. The petition was contested by the respondent authorities. In the affidavit-in-reply, in addition to reiterating the aforesaid grounds, it was further stated that the petitioner had already started hotel-cum-guest house, which fact came to the knowledge upon a surprised check conducted by the authorities. It was, therefore, submitted that the guest house cum restaurant was started without permission. It was also mentioned that the administrator of the trust had given land to the petitioner on lease, however, no permission under section 36 of the Bombay Public Trust Act, 1950 was obtained.
4.1 Learned advocate for the petitioner with reference to all the aforesaid grounds submitted that they are not germane to exercise the Page 2 of 4 HC-NIC Page 2 of 4 Created On Sun Apr 17 02:05:04 IST 2016 C/SCA/9431/2014 ORDER powers under the Bombay Police Act. He submitted that the authority has proceed on extraneous grounds to pass the order to refuse the petitioner's application to issue the licence to run the guest house-cum- restaurant. It was further submitted that the impugned decision was taken without affording any opportunity of hearing to the petitioner.
5. Since the last ground namely that the petitioner was not afforded opportunity of hearing before passing the impugned order, could not be controverted by learned AGP, a position emerges that the impugned decision is in breach of natural justice. The impugned order is undeniably an order entailing civil consequences for the petitioner. Non- hearing resulted into clear prejudice to him. The impugned orders deserves to be set aside as illegal on the ground of non-observance of principles of natural justice, which is sine quo non in the facts and circumstances of the case.
6. In the aforesaid view, while finding it not necessary to advert to any of the grounds or contentions raised by the petitioner, and while not expressing any opinion thereon, only for the reason that the petitioner is shown to have been not heard by the authority concerned before passing the impugned order, the impugned decision reflected in the communication dated 21.11.2013 as well as consequential communications dated 25.11.2013 and 29.01.2014 deserve to be set aside and they are hereby set aside.
7. The case is remanded to the Sub-Division Magistrate, Rajpipla, competent authority under section 33 of the Bombay Police Act to decide the application of the petitioner after giving due opportunity of hearing to the petitioner and permitting him to produce all the relevant material in Page 3 of 4 HC-NIC Page 3 of 4 Created On Sun Apr 17 02:05:04 IST 2016 C/SCA/9431/2014 ORDER support of his case, and thereafter pass a fresh order. This exercise may be completed by the said authority expeditiously and preferably within a period of ten weeks from today.
8. It is clarified that this court has not gone into merits, nor has expressed any opinion on the merits of the case of the petitioner. The said Sub-Divisional Magistrate shall decide the application of the petitioner on its own merits, strictly in accordance with law and rules.
9. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(N.V.ANJARIA, J.) cmjoshi Page 4 of 4 HC-NIC Page 4 of 4 Created On Sun Apr 17 02:05:04 IST 2016