Ajit Chandrakant Satka(Sic), ... vs The District Collector Of Pune, ...
2003 Latest Caselaw 702 Bom

JUDGMENT

C.K. Thakker, C.J.

1. Writ Petition No. 3645 of 2003 not on Board. At the request of the learned counsel for the parties, it is taken on Board and heard finally with an identical matter, being Writ Petition No. 3643 of 2003, which is already on Board today.

2. The petitions are filed against orders passed by the Appellate Authority on May 2, 2003. Exhibits 'O' and 'P'.

3. It may be stated that dance floor licences of the petitioners were cancelled by the Collector against which appeals were filed. They were dismissed by the Appellate Authority. Being aggrieved by the said orders, two Writ Petitions were instituted, which were dismissed summarily.

Against those orders, two Letters Patent Appeals, being Letters Patent Appeal Nos. 344 of 2002 and 346 of 2002, were instituted. By a common judgment and order dated February 3, 2003, the appeals were allowed, and the orders passed by the Appellate Authority were set aside. The matters were remanded to the Appellate Authority to decide the same in accordance with law, which were dismissed by the Appellate Authority and, hence, the petitioners have approached this Court.

4. At the time of hearing of the Letters Patent Appeals earlier, three contentions were raised on behalf of the appellants by the learned counsel. Firstly, it was submitted that what was alleged against the appellants was that they had not observed 'time restriction'. The Division Bench observed that even if it was conceded that time restriction had been violated, keeping in view several decisions of this Court to which reference was made, an action of cancellation of licences must be held to be "grossly excessive and disproportionate to the allegations levelled and proved" and, hence, it was liable to be set aside.

5. The second ground, which weighed with the authorities related to allegation as to fire-fighting equipments being insufficient. This Court observed that at one stage, it was alleged by the authorities that there were no fire-fighting equipments at all, and at a later stage, it was averred that the fire-fighting equipments were insufficient. It was also stated that the panchnama showed that fire-fighting machines were installed, but they were not sufficient. It was, therefore, held that cancellation of licences was not called for in the circumstances, and contradictory findings were recorded by the authorities.

6. The third ground, which persuaded the Collector to pass an order of cancellation of licences, was statements of two customers (i) Shantaram Mahadev Bhosekar and (ii) Prabhakar Rajaram Karbane. It was submitted on behalf of the appellants that apart from the fact that there was subjective element in those statements, even from the record of respective panchayats, the names of the two persons said to be residing in that village were not found, and, hence, their statements could not have been relied upon. Moreover, the Appellate Authority neither referred to nor relied upon those allegations and illegal acts alleged to have been committed by the appellants on April 15, 2002. In the circumstances, the Division Bench remanded the matters to the Appellate Authority, so that an appropriate order could be passed by considering the arguments of the appellants.

7. Keeping in view the allegations leveled against the appellants, though this Court set aside the order of cancellation of licence, it continued the order of suspension, which was passed earlier. The matters were remitted to the Appellate Authority and the proprietors of the hotels filed affidavits stating that Shantaram Mahadev Bhosekar and Prabhakar Rajaram Kadbane, said to be residing at Kanhe Phata or Kanhe Village, were not residents of that village and their names did not appear in the voters list of the said village. An attempt on the part of the petitioners was that in the circumstances, their statements were not true and could not have been relied upon as they did not inspire confidence.

8. The Appellate Authority, by the orders impugned in the present petitioners, observed that several complaints were filed and illegal activities have been committed by the petitioners and continued with such activities. He was, therefore, of the firm opinion that the action taken by the Collector vide his order dated July 6, 2002 of canceling dance floor licences was proper. It was also observed by the Appellate Authority that from the point of view of maintaining "law and order" and "public peace", the action was required to be taken. He has stated that after the order of the High Court, once again, hearing was afforded to the appellants, but "no satisfactory or supportive proof was produced on behalf of the Appellant or his Lawyer". He, therefore, held that there was no difference in the circumstances between the time when he passed the order earlier and at a subsequent stage when he heard the appellants. Accordingly, the appeals were dismissed.

9. The learned counsel for the petitioners submitted, and in our opinion rightly, that so far as the first two grounds of the order passed by the Collector and confirmed by the Appellate Authority are concerned, final order was passed by this Court holding that no order of cancellation of licences could have been made. It was in view of the fact that there was no discussion regarding the statements of two witnesses that the matters were remanded, and the Appellate Authority was directed to re-consider the mattes. Now, the Appellate Authority has not considered the affidavits filed by the proprietors nor stated anything whether the statements could be relied upon. Not only that but a grievance was made that a totally new ground was put forward by the Appellate Authority observing therein that an action was necessary with a view to maintain "law and order" and "public peace". Neither in the show cause notice, nor in the earlier order, any such ground was made out. It was, therefore, totally on a new allegation put forward on which the petitioners were never informed or called upon nor explanation was sought. The grievance of the petitioners is that the Appellate Authority was under misconception that if there was some difference in the circumstances, then only he was required to re-consider the matters; not otherwise. It was submitted that when this Court remitted the matters to the Appellate Authority by quashing and setting aside the orders, and directing the Appellate Authority to re-consider them, it was incumbent on him to pass fresh orders, which was not done. It was, therefore, submitted that in the facts and circumstances, the matters be finally disposed of by this Court, without remanding them to the Appellate Court.

10. In that connection, our attention was invited by the learned counsel to the following decisions:-

(a) Badrinath v. Government of Tamil Nadu and Ors., ,

(b) Lalbavta Hotel & Bakery Mazdoor Union and Anr. v. Bharat Petroleum Corporation Ltd. and Ors., (1993) 2 BomCR 111,

(c) Deepak Sadashiv Nikalje v. Union of India and Ors., (2003) 2 AIIMR 187.

11. Mrs. J.S. Pawar, learned Additional Government Pleader, submitted that as per the order passed by this Court, the Appellate Authority re-considered the matters and passed orders.

12. Having heard the learned counsel for the parties, in our opinion, both the petitioners deserve to be allowed, and are accordingly allowed. Ordinarily, in the circumstances, we would have remanded the matters by directing the Appellate Authority to re-consider them; but we are not doing so in the peculiar facts and circumstances. As already noted hereinabove, three grounds were pressed in service by the learned counsel for the appellants in the previous Letters Patent Appeals. So far as the first two grounds were concerned, it was unequivocally held by the Division Bench of this Court that the action of cancellation of licences could not have been taken by the Appellate Authority. Regarding third ground, the orders were liable to be set aside and in fact, they were set aside, and the matters were remanded to the Appellate authority with a direction to reconsider the statements keeping in view the contention of the appellants. The Appellate Authority did not consider the affidavits filed by the proprietors of the petitioners and once again, confirmed the orders of the Collector.

13. Moreover, the Appellate Authority pressed into service additional circumstances such as "law and order" and "public peace" for which the petitioners were never informed, not their explanation sought. In the circumstances, in our considered opinion, no purpose now will be served in sending the matters to the Appellate Authority for re-consideration.

14. The petitioners are, hence, allowed. The orders passed by the Appellate Authority are hereby quashed and set aside. The respondents are directed to renew the petitioners dance floor licences in accordance with law. It is needless to state that if any illegality will be committed by the petitioners in future, this judgment will not come in the way of the Authorities in taking action in accordance with law. No costs.

15. Parties be given copies of this order duly authenticated by the Sheristedar/Private Secretary.