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SCA/11189/2009 3/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 11189 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.A.PUJ
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
MAHENDRAKUMAR
HARJIVANDAS THAKKAR
Versus
STATE
OF GUJARAT & 1
=========================================
Appearance
:
MR CL SONI for Petitioner
MS
MANISHA NARSINGHANI AGP for Respondent No.1
RULE SERVED for
Respondent No.2
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 23/04/2010
ORAL
JUDGMENT
[1] The
petitioner has filed this petition under Articles 226 and 227 of the
Constitution of India praying for quashing and setting aside the
order dated 5th October, 2009 passed by the respondent
No.2 i.e. Joint Police Commissioner (Traffic), Ahmedabad City,
Ahmedabad cancelling the licence of the petitioner to possess and
sell fireworks as also the order dated 13th October, 2009
passed by the respondent No.1 i.e. The Secretary, Gujarat State, Home
Department, Gandhinagar in Appeal No.12 of 2009 by issuing suitable
writ, order or direction under Article 226 of the Constitution of
India. The petitioner has also prayed for direction to the
respondents to permit the petitioner to possess and sell fireworks as
per the licence issued to the petitioner by the Deputy Controller of
Explosives which has been renewed upto March, 2010 by issuing
suitable, writ, order or direction under Article 226 of the
Constitution of India.
[2] This
Court has passed a detailed order on 30th October, 2009
and admitted this petition and issued rule. While issuing rule, this
Court has observed that granting interim relief at this stage shall
amount to allowing the petition. Therefore, it would not be
appropriate at this stage to grant interim relief. This Court has
further observed that in view of the concurrent findings of both the
authorities, this Court is of the view that it is subject to the
satisfaction of the authority concerned to consider whether the
business undertaken by the petitioner proves to be a hindrance to the
public at large or not and thereby whether to grant or cancel the
licence. The jurisdictional error which has been contested by the
petitioner can be decided only at the final stage and not admission
stage.
[3] In
view of the above order, Mr.C. L. Soni, learned advocate appearing
for the petitioner has submitted that before going into the merits of
the matter, the jurisdictional issue is required to be decided. He
has, however, submitted that the respondent No.1 has recently decided
Appeal Nos.15 of 2009 and 17 of 2009 filed by Ambika Trading Company
and Ambika Trade Link Private Limited wherein the Additional
Secretary, Home Department has observed that the Joint Police
Commissioner (Traffic) has no jurisdiction to cancel the licence. At
the most, he can decide as to whether No Objection Certificate
issued or not. After above observation, the Additional Secretary has
remanded the matter to the Joint Commissioner (Traffic) for
reconsideration. Mr.Soni, relying on this appellate decision has
requested the Court that earlier decision which is under challenge in
the present petition is contrary to the subsequent decision of the
Secretary, Home Department. He has, therefore, submitted that the
matter may be remanded to the Secretary to decide the case afresh in
light of the decision taken by him.
[4] Ms.Manisha
Narsinghani, learned AGP appearing for the respondent No.1, on the
other hand, has submitted that she has no objection if the matter is
remanded to the Additional Secretary, Home Department for deciding
afresh.
[5] In
above view of the matter and without going into merits of the matter,
since the matter is to be remanded to the Secretary, Home Department,
impugned order passed by him earlier is quashed and set aside with a
direction to decide afresh in light of the order passed by him in
Appeal Nos.15 of 2009 and 17 of 2009. It is open for the petitioner
to make request and if such request is made, the same shall be
considered and appropriate decision shall be taken in the matter so
remanded by this Court and the same shall decide as expeditiously as
possible. Direct service is permitted.
[6.] With
these directions and observations, this petition is, accordingly,
disposed of. Rule is made absolute to the aforesaid extent. No order
as to costs.
[
K. A. PUJ, J. ]
(vijay)
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