Ramnath Vishnu Waringe Prop. Of ... vs The District Collector Of Pune, ...
2003 Latest Caselaw 144 Bom

JUDGMENT

C.K. Thakker, C.J.

1. Admitted, Mr. Y.D. Mulani, learned Assistant Government Pleader, appears and waives service of notice of admission on behalf of respondents.

2. In the facts and circumstances, the appeals are taken up for hearing today.

3. In these two appeals, the orders passed by the learned Single Judge on September 18, 2002 in writ petitions have been challenged. In the petitions, the orders passed by the District Collector, Pune, on July 6, 2002 and confirmed by the State Government on September 11, 2002 had been challenged.

4. It appears that mainly three grounds weighed with the District Collector in cancelling Dance Floor Licence. Firstly, it was stated that the dance floor was functioning up to 2 a.m., and thus, timing restriction, which ought to have been observed by the appellant-petitioner, had not been observed. Secondly, fire-fighting equipments were insufficient in the building. Thirdly, when the Entertainment Tax Officer went to serve an order of suspension of licence on April 15, 2002, girls in the dance bar were making obscene and vulgar gestures and were dancing on the dance floor wearing extremely scanty clothes.

5. Being aggrieved by the said order, the appellants preferred appeals. The State Government in paragraph 6 observed that upon perusal of the papers submitted by the appellants at the time of hearing as well as the papers placed before it, the Appellate Authority was satisfied that the Entertainment Officer visited the premises on April 9, 2002, which was the first day of inspection on receipt of the complaint, and illegal acts specified in paragraph 2 of the order had been committed. Since the appellants had violated the terms and conditions of the licence, the Appellate Authority was of the view that the action of cancellation of Dance Floor Licence by order dated July 6, 2002 passed by the Collector, Pune, was legal "in order to maintain law and order situation and public peace".

6. The appellants challenged both the orders by filing Writ Petition Nos. 5281 and 5282 of 2002 in this Court. The learned Single Judge dismissed both the petitions observing that disputed questions of facts were involved in the petitions, which could not be decided in exercise of jurisdiction of the Court under Article 227 of the Constitution of India.

7. The learned counsel for the appellants contended that the grounds which weighed with the learned Single Judge were not legal and valid. The petitions could not be said to be under Article 227 of the Constitution inasmuch as the High Court was not exercising supervisory jurisdiction over a Court or Tribunal subordinate to the High Court. It was submitted that from the cause-title also, it was clear that the petitions were under Article 226 of the Constitution simpliciter. Moreover, in the prayer clause, a writ was sought. Such a writ could be sought only under Article 226, and not under Article 227 of the Constitution.

8. It was also submitted by the learned counsel for the appellants that no disputed questions of fact were involved. On documentary evidence and materials placed on record, the appellants were and are in a position to convince the Court that the orders passed by the authorities below were illegal, unlawful and contrary to law. It was, therefore, submitted that the Letters Patent Appals are maintainable.

9. In our opinion, Letters Patent Appeals are maintainable. It was rightly submitted by the learned counsel for the appellants that the learned Single Judge was exercising extra-ordinary jurisdiction of this Court under Article 226 of the Constitution against na order passed by the State Government. The petitioners were p[raying for an appropriate writ, direction or order for setting aside the orders passed by the Collector as well as by the State Government. Hence, Letters Patent Appeals would be competent.

10. Regarding disputed questions of fact also, in our opinion, learned counsel is right in contending that from the materials placed on record, the contentions raised in the petitions were required to be gone into by passing appropriate orders.

11. On merits, the orders passed by the authorities below cannot be sustained. So far as the first ground is concerned, it was observed that time restriction had not been observed by the appellants. Even if it is conceded that time restriction had been violated, in the facts and circumstances, and considering various orders passed by this Court, which have been placed on record, particularly Writ Petition No. 658 of 1999 decided on February 15, 1999, Writ Petition No. 655 of 1999 decided on the same day, Writ Petition No. 7106 of 1999 decided on February 23, 1999 and Writ Petition No. 1013 of 1999 decided on February 24, 1999, the action of cancellation of licence can be held to be (SIC) grossly excessive and disproportionate to the allegations levelled and proved and deserves interference.

12. Regarding second allegation of fire-fighting equipments being insufficient, what weighed with the authorities below was that the same were not affixed. On that basis, an action was taken. In the impugned order passed by the Collector, it was stated that although the receipt for purchase of fire-fighting equipments was produced, it could not be said that such equipments had been purchased as "no proof has been produced regarding fire fighting equipments being fitted in the dance bar".

13. The learned counsel for the appellants placed reliance on the Panchanama at Exhibit 'K' ('K-1' English translation), wherein, at two places, it was expressly stated that fire-fighting machines were installed, but were insufficient. Thus, the authorities have proceeded on incorrect basis. The said ground, therefore, could not have been relied upon by the authorities.

14. Regarding third ground, the Collector proceeded to pass the orders on two statements, one by Shantaram Mahadev Bhosekar and the other by Prabhakar Rajaram Kadbane. It as submitted that there was subjective element in those statement. It was also asserted that from the records of respective village panchayats, the names of the two persons were not found. In any case, the Appellate Authority did not even refer to the said incident while upholding the order passed by the Collector. In the order dated September 11, 2002, the Appellate Authority observed that on the basis of the inspection carried out on April 9, 2002, illegal acts" mentioned in paragraph 2 were found. Thus, what was observed by the Appellate Authority was that they were the illegal acts in respect of which inspection was carried out on April 9, 2002. Obviously, therefore, the Appellate Authority neither referred to nor relied upon the allegations and illegal acts said to have been committed on April 15, 2002, though in paragraph 8, the order dated April 15, 2002 had been referred to. To that extent, therefore, the orders passed by the Appellate Authority must be set aside.

15. For the foregoing reasons, the appeals deserve to be allowed and are accordingly allowed. The orders of cancellation of licence are hereby set aside. The orders of suspension of licence, however, will continue to operate. The matters are remitted to the Appellate Authority for re-consideration and decide them keeping in view the grounds raised in the appeals as also put forward at the time of hearing of the appeals. The Appellate Authority will pass appropriate orders in accordance with law. Since the orders of suspension will continue to operate, it is directed that the State Government will take appropriate decisions as expeditiously as possible, preferably within four weeks from today. All contentions of the appellants are left open.

16. Parties be given copies of this judgment duly authenticated by the Sheristedar/Private Secretary.