WP 438/13 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 438/2013
M/s Ajay Bhagwat & Partners,
through its Partner - Ajay son of
Rameshrao Bhagwat,
aged about 41 years, occupation - business,
resident of 22, "Parijat" Ramayannagari,
Bhandara, Tq. & Distt. Bhandara. PETITIONER
.....VERSUS.....
1. State of Maharashtra,
through Police Station Officer,
Police Station Bhandara,
Tq. & Distt. Bhandara.
2. Additional District Magistrate,
Bhandara,
Tq. & Distt. Bhandara. RESPONDE
NTS
Mr. M.P. Khajanchi, counsel for the petitioner.
Mr. Shyam Bissa, A.P.P. for the respondents.
CORAM : REVATI MOHITE DERE, J.
DATE : 31 ST OCTOBER, 2017.
ORAL JUDGMENT By this petition the petitioner has impugned the order dated 18th March, 2013 (Annex.P-3) passed by the respondent no.2-Additional District Magistrate, Bhandara.
2. Mr. M.P.Khajanchi, learned counsel for the petitioner submitted that the impugned order dated 18.03.2013 passed by the respondent no.2-Additional District Magistrate, Bhandara is unsustainable in law. According to the learned counsel, the Eating House license registration no.3 of 2004 was cancelled by the Additional District ::: Uploaded on - 03/11/2017 ::: Downloaded on - 04/11/2017 01:27:58 ::: WP 438/13 2 Judgment Magistrate, Bhandara, without issuing show cause notice to the petitioner-Firm and without hearing the partners of the petitioner-Firm. He further submitted that during the pendency of this petition, in the interregnum, the learned Judicial Magistrate First Class, Bhandara vide judgment and order dated 17.11.2014, was pleased to acquit all the accused including the partners of the petitioner-Firm of the offences punishable under Sections 4 and 5 of the Bombay Prevention of Gambling Act, 1887 (hereinafter referred to as 'the Gambling Act'). He submitted that the petitioner had a valid license to run the Eating House at the relevant time. In support of the said submission, learned counsel relied on the receipt which is on Page 51 of the petition. He submitted that there was absolutely no justification for the Additional District Magistrate, Bhandara, to cancel the Eating House license of the petitioner-firm after the registration of the F.I.R., alleging offences under Sections 4 and 5 of the Gambling Act, as against the partners of the petitioner-firm and others. Learned counsel relied on several judgments i.e., 1996(3) All MR 84 (Kanu Nagu Mhatre Versus The Assistant Commissioner of Police & Others), 2001(1) Bom.C.R. 448 (Dilip J.Bhatia Versus The Commissioner of Police, Thane & Another), 1997 (1) All MR 256 (Girija Timappa Shetty Versus The Assistant Commissioner of Police, Wagle Estate Div., Dist.Thane & Others), (1982) 3 SCC 338 (M/s Raj Restaurant & Another Versus Municipal Corporation of Delhi), to substantiate his submission. ::: Uploaded on - 03/11/2017 ::: Downloaded on - 04/11/2017 01:27:58 :::
WP 438/13 3 Judgment
3. Mr.Shyam Bissa, Learned Additional Public Prosecutor opposed the petition. He does not dispute the fact, that in the interregnum, during the pendency of this petition, the partners of the petitioner-Firm and all other accused were acquitted of the offences punishable under Sections 4 and 5 of the Gambling Act. He, however submitted, that the petitioner-Firm did not have a valid license to run an eating house, from 2006, much less at the relevant time.
4. Perused the papers. The aforesaid petition was admitted by this Court vide order dated 27.11.2013 and the effect, operation and implementation of the impugned order was stayed and the petitioner was permitted to to continue running the eating house during the pendency of this appeal. On a perusal of the papers, it appears that an agreement dated 24.10.2003 was entered into between the Officers Club, Bhandara and the petitioner-Firm, through its partner. It appears from Clause 27 of the said agreement, that the said club was given to the petitioner-Firm on lease for a period of fifteen years. In the year 2011, an F.I.R. dated 09.07.2011 was lodged as against the partners of the petitioner-Firm and others alleging offences punishable under Sections 4 and 5 of the Gambling Act. After investigation, charge-sheet was filed in the Court of learned ::: Uploaded on - 03/11/2017 ::: Downloaded on - 04/11/2017 01:27:58 ::: WP 438/13 4 Judgment Judicial Magistrate First Class, Bhandara. The impugned order dated 18.03.2013 issued by the Additional District Magistrate, Bhandara, by which the petitioner-Firm's eating house license was cancelled, was admittedly passed without issuing any show cause notice to the petitioner-Firm or without affording any opportunity of hearing to the partners of the petitioner-Firm. Although, according to the A.P.P., the petitioner-Firm did not have a valid eating house license since 2006, the record is to the contrary. It appears from the challans filed by the petitioner-Firm, that regular fees for renewal of license of Eating House under the Bombay Police Act, was being paid by the petitioner-Firm since 2004 and that the said amounts were being accepted by the State Treasury. All the challans are identical. It also appears that an amount towards renewal of license of the eating house under the Bombay Police Act, was paid during the period from 2011-12, i.e. during the period when the F.I.R. was registered. A perusal of one of the challan (for 2011-12) shows that an amount of Rs.2,300/- was paid towards renewal of Eating House license fee, and that the same was accepted by the State Treasury. In the right hand side column of the said challan (2011-12), filled in by the Departmental Officer of the treasury, it is mentioned as under:-
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WP 438/13 5 Judgment
CHALLAN NO.
Treasury/Sub-Treasury
B.X.6 (See Rule 112)
Challan of Cash Paid into the State/Reserve Bank of India at Bhandara State.
To be filled in by the remitter To be filled in by the
Departmental Officer
of the Treasury
By Whom tendered Officer Club & Rest. &
Head of Account -
(Name) Name (or Bar, Bhandara. 0055-Police
designation) and Prop. Ajay Bhagwat &
Receipt Licence Fee
address of the person Partner. for Eating House
on whose behalf under Bombay Police
money is paid Act, 1951
Full particulars of the remittance Order to the Bank
and the authority (if any) Amt. Correct Receive and
grant receipt.
Renewal Fees for Hotel 2000/- Date: 29/3/2012.
Licence Under Bombay
Police Act for 3/2004
2011 to 2012 L.No. 300/-
And Late Fees for Sd/-
Additional District
Total 2300/- Magistrate, Bhandara
Sd/-Date 29/3/2012
Signature
5. A perusal of the documents on record show, that the Certificate of Registration of the Eating House was issued by the Additional District Magistrate in 2004 and the registration number given to the Eating House was 3/2004. Thereafter, from time to time, from 2004, the petitioner-Firm deposited the license fee for Eating House, under the Bombay Police Act. As noted above, the said license fee was being ::: Uploaded on - 03/11/2017 ::: Downloaded on - 04/11/2017 01:27:58 ::: WP 438/13 6 Judgment deposited regularly every year with the State Treasury and the same was being accepted. Learned A.P.P. is unable to show, if not as license fee for running an eating house, any other purpose for accepting the fees. It is only when the F.I.R. was lodged, under Sections 4 and 5 of the Gambling Act, as against the partners of the petitioner-Firm and others, pursuant to which, the impugned order was passed in 2013. Admittedly, no show cause notice was issued to the petitioner-Firm nor any hearing was given to the partners of the petitioner-Firm before the license for running the Eating House was cancelled. Needless to state, that mere registration of an F.I.R. is not a ground for cancelling the license, unless the licensee is convicted for the said offence. This Court in a catena of cases has held, that pendency of a prosecution, cannot be a ground, for either cancelling the license or refusing to grant license to carry on business. Unless a person is tried and held guilty, he should be treated as innocent. Admittedly, during the pendency of this petition, all the accused, including the partners of the petitioner-Firm, have been acquitted by the trial Court.
6. In the facts of the case, for the reasons stated hereinabove, the criminal writ petition is allowed. Accordingly, the impugned order dated 18.03.2013 passed by the Additional District Magistrate, Bhandara is quashed and set aside. Rule is made absolute in the aforesaid terms. There shall be no order as to costs.
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WP 438/13 7 Judgment
7. All parties to act on the authenticated copy of this order.
JUDGE APTE ::: Uploaded on - 03/11/2017 ::: Downloaded on - 04/11/2017 01:27:58 :::