Gujarat High Court
Ganpatlal vs Additional on 30 July, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/8727/2010 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8727 of 2010
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GANPATLAL
ISHWARLAL BAROT - Petitioner(s)
Versus
ADDITIONAL
DISTRICT MAGISTRATE & 1 - Respondent(s)
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Appearance
:
MR
DEVDIP BRAHMBHATT for
Petitioner(s) : 1,
None for Respondent(s) : 1 -
2.
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 30/07/2010
ORAL
ORDER
Heard learned advocate Mr. Nirav C Thakkar for learned advocate Mr. Devdip Brahmbhatt on behalf of petitioner.
The petitioner is having license of Hotel Apsara from respondent state authority w.e.f. 7/12/1991, which was renewed upto 31/12/2009. In last renewal, a condition was incorporated that this renewal is subject to produce Commercial N.A. by petitioner. Therefore, subsequent renewal has not been granted only on the ground that petitioner is not able to produce Commercial N. A. in respect to land in question for running hotel at village Hajipur, Taluka Himmatnagar Block 284 Plot no. 5 paiki 7, Hector 0-0-03-45 non agriculture.
The petitioner has approached to Additional District Magistrate against order passed by Sub Divisional Magistrate, Himmatnagar dated 26/2/2010. The Sub Divisional Magistrate has cancelled license no. 98/91 because petitioner was not able to produce Commercial N. A. of land, where Hotel Apsara is running by petitioner.
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.
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.
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.
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 above observation and direction, present petition is disposed of by this Court without expressing any opinion on merits.
(H.K.RATHOD, J) asma Top