Allahbaksh Ismail Ebrahim vs Commissioner Of Police And Ors.
2003 Latest Caselaw 1139 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Heard the learned Advocates for the parties. Perused the records.

2. The petitioner challenges the orders dated 1-9-2003 and 19-8-2002, passed by the authorities below under the provisions of the Bombay Police Act, 1951, hereinafter called as "the said Act". The first order was passed by the appellate authority while the latter by the Deputy Commissioner of Police. By the impugned orders, the licence issued to the petitioner for having amusement programmes at his hotel premises, namely M/s Hotel Topsy, situated at Rizvi Chambers, Hill Road, Bandra (W), Mumbai, has been suspended for a period of 30 continuous days. During the pendency of the hearing and disposal of this petition, pursuant to the issuance of rule, the execution of the said order was stayed.

3. The challenge to the impugned orders is on four grounds. Firstly, that the orders are contrary to the provisions of law applicable to the facts of the case and reveal total non-application of mind to the facts and the law applicable thereto by both the authorities. Secondly, that there has been discrimination in the matter of imposition of penalty, inasmuch as that some of the similarly situated licence holders were pardoned for similar instances while the petitioner has been subjected to penalty of suspension of licence for 30 days. Thirdly, the appellate authority while confirming the order of the lower authority has sought to justify the same on the grounds which were neither disclosed to the petitioner at any time nor the respondents had any time relied upon the same for the purpose of action of suspension of the licence of the petitioner. Fourthly, the authorities below erred in ignoring the well-established principles of law that once the renewal of licence was granted irrespective of certain incidents which had occurred during the previous year and which would have perhaps justified refusal of renewal of licence, then subsequently the very instances could not have been made the basis for suspension of licence.

4. The impugned orders are sought to be justified on behalf of the respondents by contending that the conviction of the petitioner in one of the cases apparently disclosed that the petitioner was involved in illegal activities and therefore the action of suspension of the licence for 30 days was perfectly justified. It was further contended on behalf of the respondents that it is a mere suspension of the performance licence without in any manner disturbing the business of the petitioner in the hotel premises. As regards renewal of licence, it was contended that the renewal was with the reservation of right to take action even on the ground of violation, if any, of the condition of licence during the previous year.

5. The petitioner is a holder of the licence for running a restaurant and permit room, including an eating house under the provisions of the said Act. The petitioner was granted premises licence in the year 1995 for having orchestra and Indian classical dance on recorded music in his restaurant and accordingly had been providing the said entertainment to his customers in the said premises. The premises licence was renewed on 18-2-2002 for the period from 1-1-2001 to 31-12-2001. The petitioner's restaurant premises were raided by the police authorities on two occasions; firstly on 11-10-2001 and secondly on 20-11-2001, and action was taken in terms of the provisions of the said Act and the petitioner was fined in relation to the incident of 11-10-2001. As regards the second incident, on account of failure on the part of the petitioner to attend the proceedings before the Magistrate, the bail bond furnished by the petitioner was forfeited. By the Notice dated 31-5-2002, the petitioner was called upon to show cause as to why his premises licence should not be suspended for 60 days on the ground that the same was found open beyond the prescribed time limit on two occasions and cases had been registered by the police against the establishment of the petitioner. The said Notice was replied to by the petitioner on 11-7-2002 denying the allegations against the petitioner and the petitioner was called for personal hearing on 21-6-2002. However, by order dated 19-8-2002 the contention of the petitioner was rejected and the premises licence, issued in favour of the petitioner, was suspended for a period of 30 days. Being aggrieved, the petitioner preferred appeal under the Section 33 of the said Act, which came to be dismissed on 1-9-2003 by the appellate authority. It is the case of the petitioner that the petitioner has been carrying on the business in accordance with the provisions of law and has not committed any breach of the Rules for Licensing and Controlling Places of Public Amusements (other than Cinemas) and Performances for Public Amusement, including Melas and Tamashas, 1960, hereinafter called as "the said Rules".

6. Undoubtedly, the petitioner was convicted under the provisions of the said Act for the incidence which had occurred on 11-10-2001. As regards the second incident which had allegedly occurred on 20-11-2001, the case is still pending in view of the fact that only the bail bond of the petitioner has been forfeited, while neither the inquiry has been held before the Magistrate nor the Magistrate has passed any final order on the charges levelled against the petitioner under the said Act in relation to the incidence. At the same time, it is also an undisputed fact that the performance licence which was granted to the petitioner for orchestra and Indian classical dance on recorded music only was renewed on 18-2-2002. There appears to be some controversy as to whether the renewal was granted on 18-1-2001 or 18-2-2002. Indeed, the date incorporated in the round seal of the office appearing on the renewal sheet is "18-1-2002". However, the date below the signature of the Commissioner of Police against the entry of renewal discloses the date as "18-2-2002". The authority to renew being the Commissioner of Police and his signature is followed by the date as "18-2-'2002", for all legal purposes the same will have to be taken as the date of renewal of the licence. In any case, it is a matter of record that the incidents of 11-10-2001 and 20-11-2001 had occurred prior to the renewal of the licence on 18-2-2002.

7. The impugned order dated 19-8-2002 was preceded by a show cause notice dated 31-5-2002 and hearing of the petitioner. The order apparently discloses reference to two cases under the Section 33(w)-22-51 and two cases under the Section 110(IB) of the said Act in the year 2001 and to the fact that in one case, the Court had levied punishment of fine and the other one was pending in the Court consequent to forfeiture of the bail amount. The authority had imposed punishment of suspension of the licence for 30 days. Bare perusal of the impugned order dated 19-8-2002 discloses that the authority had taken into consideration three factors for the purpose of ordering the suspension of the licence. Firstly, that there were cases registered against the establishment of the petitioner, secondly the history of the establishment of the petitioner and thirdly, that it was the first mistake on the part of the petitioner. The appellate authority, on the other hand, confirmed the said order passed by the lower authority, also on consideration of three factors: firstly, that there were several offences registered under the Section 33(w)-22-51 and the Section 110(IB) of the said Act during the year 2001 against the petitioner, secondly, the petitioner had failed to appear before the appellate authority in spite of sufficient opportunity being given and thirdly, that the impugned order was necessary from the point of view of maintenance of law and order.

8. Bare reading of the Section 162 of the said Act discloses that the licensing authority is empowered to suspend a licence if the conditions and restrictions imposed upon the licensee under the licence are violated or infringed. At the same time, the Rule 238 of the said Rules disclose that action for suspension of a licence can also be taken in cases where the same is necessary to maintain the public safety and prevention of disturbances in a premises, as also to prevent any obstruction, inconvenience, annoyance, risk, danger or damage to the residents or passers-by in the vicinity of the premises in relation to which the licence has been issued. In other words, the maintenance of public safety, prevention of disturbance in the premises, or inconvenience, or annoyance, or risk, or danger or damage to the passers-by in the vicinity of the premises and violation of the conditions of the licence can all taken together as well as any one of them be the grounds/ground for suspension of a licence. However, mere non-compliance of the conditions of the licence cannot by itself be a ground for suspension of a licence and non-compliance of the conditions of licence has to be accompanied by one of the possibilities which are contemplated under the Rule 238 to enable the authorities to suspend a licence granted to a licensee.

9. While the Section 162 gives power to the authorities to suspend a licence, the various reasons for which a licence can be suspended have been enumerated under the Rule 238 which gives a clear indication that an action of suspension of a licence, which is essentially a harsh action, and therefore, should be sparingly resorted to particularly when there is the possibility either of causing obstruction, inconvenience, annoyance, risk, danger or damage to the residents or passers-by in the vicinity of the premises. For example, if the licence granted to a licensee specifies that the premises are required to be closed at a particular time at night, mere delay of few minutes to close the premises can, by no stretch of imagination, be said to be violation of the condition of licence empowering the authorities to suspend the licence. It is to be noted that the licences are issued with the intention of allowing the licensees to conduct their business. In the process of business, and particularly in case of a restaurant, it is not unusual or uncommon to see that a customer entering the restaurant few minutes earlier to the closing hours, and such a customer having been entertained and served with food, it may cause some delay in closing of the premises so as to enable such customer to leave the premises. It may be necessary for the licence holder to open the doors of the premises to allow the customer to leave the premises. Of course, for that purpose it may not be necessary to keep the entire premises open and accessible for new customers to enter the same even after the closing hours.

However, if the rule regarding the licence condition regarding the closure timing is applied mechanically, even mere opening of the door of the premises to enable the customers to leave may amount to violation of the conditions of the licence. It cannot be presumed that the Legislature has framed the rules to cause harassment to the licence holder. In fact, they are essentially from the point of view of maintenance of law and order and at the same time providing proper assistance to the licence holder to perform their business by enjoying the benefit which they are entitled to enjoy under the licence granted to them. Viewed from this angle, the said rules cannot be enforced without proper application of mind and without considering the facts of each case.

10. Perusal of the impugned orders discloses that the lower authority, merely because the petitioner had committed mistake of non-compliance of a condition of the licence, has sought to suspend the licence for a period of 30 days. Undoubtedly, while considering the said case, the lower authority has also taken into consideration the two facts, namely, the fact of pendency of cases registered against the petitioner's establishment and secondly, the history of the establishment of the petitioner. As regards the history of the establishment of the petitioner, the order nowhere discloses any observation adverse to the interest of the petitioner in that regard. As regard the registered cases, as rightly submitted by the learned Advocate for the petitioner, the same has to be considered bearing in mind two aspects, firstly, the renewal of the licence granted on 18-2-2002 and secondly, the decisions of the learned single Judge of this Court in Kana Nagu Mhatre v. Assistant Commissioner of Police, Navi Mumbai and Anr., reported in 1996 (2) Mh.L.J. 1052, and Girija Timappa Shetty v. The Assistant Commissioner of Police, Wagle Estate Div., Dist. Thane and Ors., reported in 1997(1) All M.R. 256. As regards the first aspect, i.e., the renewal of the licence, the decision of another learned single Judge of this Court in Shri K.V. Acharya and Anr., v. The State of Maharashtra and Ors., reported in 2000(3) Mh.L.J. 90 - 2000(2) All MR 283 is also relevant.

11. As already observed above, the records disclose the renewal of the license for the year 2001 by the order dated 18-2-2002. In this regard, the Rule 113 of the said Rules provide that "The Licensing Authority may on application being made to him in that behalf, renew the Premises Licence for the requisite period subject to rule 108 above, provided that the applicant proves to the satisfaction of the Licensing Authority that the premises in question had not been kept open for any performances after the expiry of the period of the license......."

In other words, before the grant of renewal of licence the applicant has to satisfy the licensing authority that "the premises in question had not been kept open for any performances after the expiry of the period of the licence". In the case in hand, as already observed above, the license for the year 2001 was renewed as late as on 18-2-2002. The order of renewal of the license nowhere discloses any remark regarding non-compliance of the conditions or any adverse remark against the petitioner, it is true that there is an endorsement in the renewal order to the effect that "Subject to the condition that if any violation is undecided the same is not considered and obtain clearance from Rangbhumi Pruyog Parinirikshan Mandal, Mumbai". It is to be noted that the remark is totally vague. The statement that "if any violation is undecided the same is not considered" is neither here nor there. The licensing authority is required to consider the various aspects of the matter before granting or renewing the license. First of all the expression "if any violation is undecided" does not disclose whether the authority has considered as to whether there was any violation of any of the conditions of the license by the petitioner or not before granting the renewal of the license. On the contrary, it gives an indication of the fact that the authorities were not able to ascertain and identify any of the violations of the conditions by the petitioner which could be made a ground for rejection of the renewal. The learned single Judge of this Court while dealing with a similar issue in Shri K.V. Achatya and Anr. v. The State of Maharashtra and Ors., (supra), reiterating his earlier decision in Hotel K.K. Sansar v. Dy. Commissioner of Police and Ors., to the effect that "If the alleged offences as set out in the statement (Annexure-A) were serious, there was no occasion for the Competent Authority to renew the licence from time to time thereafter," held that "Once the licensing authority renews the license despite the omissions, offences and breaches committed by the licensee earlier thereto, it would mean that such licensee has been found to be suitable person for renewal despite the said offences, breaches or incidents and, therefore, the said offences, breaches or incidents could not be considered as ground for suspension of licence when such offences, incidents or breaches were not found sufficient for refusal of renewal of licence." I am in respectful agreement with the said decision of the learned single Judge of this Court.

12. It is sought to be contended that the said ruling cannot be applied to cases where there had been no consideration of such omissions or offences while granting renewal and the ruling would apply only in cases where such omissions or offences were considered while granting renewal. The contention is devoid of substance. Besides as already observed above, the order of renewal nowhere discloses that the violations which are referred to in the impugned orders were not considered at the time of renewal of the license. On the contrary, the note made below the order of renewal gives all the indications of the fact that the authority was fully aware of the alleged violations, but the same were not sufficient to justify refusal of renewal of licence. Besides, the authority granting the renewal was no other than the Commissioner of Police. The provisions of the said Act and the said Rules clearly requires the said authority to take into consideration the various aspects while granting a licence. The same provisions are applicable in case of renewal of a licence. Undisputedly, there is no case of fraud by the petitioner, or suppression of facts by the petitioner, or a justifiable occasion for the authorities not to take note of the violations while passing the order of renewal. The authorities cannot be heard to contend that the observations in the judgment in the matter of Shri K. V. Acharya would apply only in the case where the violations were considered and ignored while granting renewal and would not apply to the cases where those violations were not taken note of. Besides, it is nobody's case that those violations were not taken note of.

13. It was sought to be contended that the fact that the authorities had not taken note of those violations has been clearly stated in para 6 of the affidavit in reply. It is to be noted that the order cannot be sought to be justified on extraneous grounds. Besides, the para 6 nowhere discloses that the violations in Question were not taken note of by the authority who had granted the renewal.

The said affidavit has been filed by one Jayant Ramachandra Welling, Senior Inspector of Police, Theatre Branch, Mumbai. The deponent has nowhere disclosed that he was the signatory on behalf of the Commissioner of Police to the order of renewal of the licence. Apparently, he has no personal knowledge of the order of renewal in the matter. All the contentions in para 6 are based merely on records. In fact the very first sentence of the affidavit discloses that the affidavit was made on the basis of the records with the respondent. Being so, the veracity of the statement "the same was not considered at the time of renewal" has to be tested with reference to the records placed before this Court in support of the said statement. Apart from the typed copy of the renewal order annexed to the petition, in the course of the arguments, the learned Advocate for the petitioner has made available a zerox copy of the original order of renewal issued to the petitioner. The said order nowhere discloses the condition that violation were reserved to be considered in future. In fact, the renewal order is in handwriting whereas the so called condition is by way of ink-stamp affixed below the said order. When was this stamp affixed is not known. But it appears that the authority had affixed the said stamp after the renewal order was passed. The contentions raised in para 6 of the affidavit in reply regarding the alleged condition are neither borne out from the records, nor disclose to be forming part of the order of renewal and even if it is assumed as forming part of the renewal, the same does not disclose non-consideration of the alleged violations while granting the renewal. There is no affidavit filed by the authority who had passed the order, nor the records on the face of it disclose non-consideration of the alleged violations.

14. Another point to be considered is relating to the alleged discrimination. Referring to various other cases, namely, Smt. Sudarshan Kedarnath Shetty, Dayal Kimatrai Tilwani and Shyam T. Sachhanandani it was sought to be contended on behalf of the petitioner that in those cases, in spite of irregularities being established and of more serious nature, the penalty imposed was the minimum whereas the petitioner has been compelled to face the penalty of 30 days' suspension of the licence. In the matter of Smt. Sudarshan Kedarnath Shetty, on account of various illegalities, the Commissioner had sought to impose suspension for 90 days and the appellate authority, while directing the condonation of the illegal acts on the part of the licensee therein, had quashed the order of suspension for 90 days. In Dayal Kimatrai Tilwani's case, though the Commissioner of Police had imposed the penalty of cancellation of the licence, the same was set aside by the appellate authority, more particularly bearing in mind that the Magistrate had already imposed penalty in the criminal proceedings. Likewise, in Shyam T. Sachhanandani's case the suspension of licence, on account of various offences, as many as 10 in number, out of which in 9 cases, the party had to pay fine in criminal proceedings pursuant to the order of the Magistrate and had set aside the order of suspension. As already observed above, considering the facts of the case in hand, the same apparently disclose that there is only one instance of illegality which has been subjected to criminal proceedings and wherein fine has been imposed, while the other is still pending and it is the observation of the lower appellate authority itself that it was the first mistake on the part of the petitioner and in spite of the said observation that it was a mistake on the part of the petitioner and, not an intentional act, so as to violate the provisions of law, the Commissioner proceeded to impose the penalty of 30 days' suspension of licence and the "appellate authority without considering whether there are justifiable reason for imposing the penalty of 30 days or not, which penalty apparently discloses totally disproportionate punishment compared to the incident in question, even assuming the same is held to have been done intentionally, and appears to be totally arbitrary once the authority itself finds the act to be a mistake, in other words an unintentional act. The findings arrived at by the authority nowhere discloses that the said mistake was committed intentionally or that on account of the said mistake there had been any inconvenience caused to any other person in the neighbourhood or in the premises or in any manner it had led to a law and order problem in the locality.

15. As rightly submitted by the learned Advocate for the petitioner, the appellate authority, rather than applying its mind to the materials on record, ventured to justify the order passed by the lower authority on a totally extraneous ground. It has been observed by the lower appellate authority that 30 days' suspension is proper from the point of view of maintenance of law and order. Once the lower authority had nowhere referred to the said ground to be the basis for imposition of the penalty of 30 days' suspension and unless the records could have revealed materials in support of such a ground, there was no occasion for the lower appellate authority to hold that the 30 days' suspension was justifiable from the point of view of maintenance of law and order. The finding is totally arbitrary.

16. For the reasons stated above, therefore, the impugned orders cannot be sustained and are liable to be set aside and accordingly are hereby set aside. The rule is made absolute accordingly.

17. At this stage, the learned Advocate for the respondents has prayed for stay of the order passed today. Undisputedly, throughout the proceedings the order of suspension was stayed. In other words, granting stay of the order passed today would virtually amount to giving sanction to the order of suspension of the licence, which apparently is illegal. Hence the request for stay of the order passed today is rejected.

18. All concerned to act on the ordinary copy of this order duly authenticated by the Associate/P. S. of this Court as a true copy.