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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
=========================================================
RAJARAM
SONARAM DAVE - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
RJ GOSWAMI for
Petitioner(s) : 1,MRJVVAGHELA for Petitioner(s) : 1,
Mr. AL
Sharma, AGP for State Authority.
=========================================================
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
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