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SCA/1085920/2008 3/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10859 of 2008
=========================================================
PATEL
MANOJKUMAR RAMABHAI THROUGH HIS POWER OF ATTORNEY - Petitioner(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance :
MR
PS CHAUDHARY for Petitioner(s) : 1,
MR APURVA
DAVE, AGP for Respondent(s) : 1,
None for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 01/09/2008
ORAL
ORDER
Notice.
Mr.Dave, learned AGP waives service of notice for the respondents.
With
the consent of the learned advocates appearing for both the sides,
the matter is further heard.
The
petitioner by this petition has approached to this Court for
challenging the order dated 14.08.2008 passed by the District
Magistrate cancelling the licence of the petitioner for running
video cinema.
Heard
Mr.Chaudhary for the petitioner and Mr.Dave, learned AGP for the
State Authorities.
Upon
hearing the learned advocates appearing for both the sides, it
appears that as per the petitioner, against the order dated
14.08.2008, he has preferred appeal/revision before the State
Government, but he was communicated by the Secretary of the State
Government that the letter shall be sent in post and the proper
consideration shall be given.
The
grievance on the part of the petitioner is that in the meantime,
running of cinema will have to be discontinued since the licence has
come to an end. It has also been submitted that so far as the
illegal construction is concerned, the District Collector has passed
the order on 13.08.2008 for removal of illegal construction in the
margin area. However, in the very order, one month time has been
given to the petitioner to remove the same failing which the City
Survey Superintendent, Vijapur, is ordered to remove the
construction and therefore, it was required for the District
Collector to wait till the period of one month is over. It is also
submitted that against the said order passed by the District
Collector for non-regularisation of the illegal construction and
removal of the said construction, the petitioner has preferred the
matter before the State Government and the same is pending.
Therefore, as the cinema is to be discontinued pursuant to the
impugned order for cancellation of licence, the present petition.
It
appears that the District Collector on 13.08.2008 has passed the
order (Annexure-D), whereby the construction is not regularised.
However, he has granted one months time to remove the construction.
Therefore, it was required for him to wait till the period of one
month is over if he was to act on the basis of alleged illegal
construction made by the petitioner for cancellation of the licence.
It
appears that he has passed the impugned order dated 14.08.2008 with
immediate effect.
Further,
the fact remains that against the order dated 13.08.2008, the
petitioner has preferred revision before the State Government and
against the order dated 14.08.2008, which is impugned in the present
petition, the petitioner has also to prefer appeal/revision before
the State Government.
Under
these circumstances, in case if the illegal construction is not
removed by the petitioner or any stay order is not granted by the
higher authority known to law, so far as removal of the illegal
construction is concerned, it would be required for the petitioner
to remove the same upon expiry of the period of one month and the
petitioner cannot claim the right beyond the same so far as
cancellation of licence to run the cinema is concerned. However,
the same may not preclude the State Government in
revisional/appellate jurisdiction to stay the order for cancellation
of the licence, if such a case is made out.
Hence
the following order shall meet with the ends of justice:
The
order of the District Magistrate dated 14.08.2008 (Annexure-A) shall
remain suspended till 13.09.2008.
In
the event the order dated 13.08.2008 is not stayed by the State
Government in revisional jurisdiction, which pertains to
non-regularisation of the illegal construction, it would be required
for the petitioner to remove the same as per the Order dated
13.08.2008 of the District Collector or in any case, the order dated
14.08.2008 passed by the District Collector for cancellation of the
licence may start running in operation from 14.09.2008 onwards,
unless the very order for cancellation of the license dated
14.08.2008 is stayed by the higher authority known to law viz. the
State Government in revisional/appellate jurisdiction.
It
is made clear that the State Government in revisional jurisdiction
against the order dated 13.08.2008 of the District Collector for
non-regularisation of the construction or the State Government in
revisional/appellate jurisdiction against the order dated
14.08.2008, shall be in a position to independently exercise the
power without being in any manner influenced by any observations
made by this Court in the present order.
The
petition is disposed of in terms of the aforesaid direction. No
order as to costs. The present order shall not operate as a bar to
the petitioner to move the State Government for earlier hearing of
the revision and/or interim relief, in any case. D.S.
(JAYANT PATEL, J.)
*bjoy
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