MAHENDRAKUMAR HARJIVANDAS THAKKAR Vs. STATE OF GUJARAT

JUDGEMENT

(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.