Bombay High Court
Mrs. Kalyani A. Shetty Of Hotel ... vs State Of Maharashtra & Ors on 14 November, 2011
Bench: G. S. Godbole
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ata IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7433 OF 2011
Mrs. Kalyani A. Shetty of Hotel Anand Punjab .. Petitioner
V/s.
State of Maharashtra & Ors. .. Respondents.
Mr. P .C. Kansara for Petitioner.
Ms. P. S. Cardozo, AGP for Respondent State.
CORAM : G. S. GODBOLE, J.
ig DATE : NOVEMBER 14, 2011
P.C.:-
Heard Mr. Kansara, learned Advocate for the Petitioner and Ms.
Cardozo, learned AGP for the Respondent.
2 Rule. Rule made returnable forthwith.
3 Heard by consent of the parties. Ms. Cardozo, waives service of rule
on behalf of the Respondent.
4 By this Writ Petition, filed under Articles 226 and 227 of the
Constitution of India, the Petitioner has challenged the judgment and order
dated 16.03.2011 passed by the Deputy Commissioner of Police(HQ-1)
from the office of the Commissioner of Police, Greater Mumbai in exercise
of the powers conferred by Rule 27 of the "Rules for Keeping Places of Public
Entertainments in Greater Bombay" Rules. By the said order, the License No.
43/Colaba granted to the Petitioner to keep a place for public
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entertainment has been suspended for a period of 30 continuous days.
The Petitioner is also challenging the judgment and order dated 18th
August, 2011 passed by the Hon'ble Minister(Home Affairs) Government
of Maharashtra in the Appeal filed by the Petitioner, whereby the Appeal
has been dismissed and the order of suspension has been upheld.
5 Mr.Kansara, submitted that the impugned action is completely
without jurisdiction. According to Mr. Kansara, the power to cancel
license is conferred only by Section 162 of the Bombay Police Act,
1951( hereinafter referred to as "1951 Act). According to Mr. Kansara,
the license can be suspended by the competent authority only if any of it's
conditions or restriction is infringed or violated by the person to whom it
has been granted or such person is convicted of such offense with respect
to any matter to which such license or permission relates. The actual
license which has been granted in this case has not been produced.
However, Mr. Kansara, has made statement at bar, which is not disputed,
that the licensee is one for keeping a place of public entertainment. The
proforma of the license filed in another Petition namely Writ Petition No.
7430 of 2011, has been relied upon and it is stated that the license given
to the Petitioner is also similar. According to Mr. Kansara, no conditions
whatsoever have been mentioned in the license and hence, there is no
question of breach of any conditions. According to Mr. Kansara, since
there is no breach of any conditions, the power under Section 162 could
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not have been invoked. Mr. Kansara, submitted that two things must be
fulfilled before the Commissioner exercises powers or jurisdiction under
Section 162 namely 1) either that person is not fit to hold the license or
2) in order to prevent any obstruction, inconvenience, annoyance, risk,
danger or damage to the residents or passengers( or passers by) in for
vicinity or prevent nuisance in such place, the license can be suspended.
6 Mr. Kansara, relied upon several judgments in support of his
submissions, and contended that the mere pendency of criminal cases
cannot be considered to be a ground for suspension of license. It was
further submitted that for breach of Rules Section 131 of the 1951 Act, is
applicable and, if, the licensee or other persons are being prosecuted for
the alleged offense under the Act, on the basis of the same set of the facts,
the licensing authority cannot initiate action for revocation or suspension.
It was submitted by Mr. Kansara that for contravention of Rules Section
131 alone applies and, hence, it is only for the Magistrate to decide
whether Rules have been contravened or not and even if the Magistrate
convicts the person the maximum punishment is of fine of Rs.500/-
7 It is submitted that show cause notice can be therefore issued only if a
person is not found to be suitable and since there are no recitals in the
show cause notice about such satisfaction of the authority that Petitioner
is not suitable to run the business being carried out in the establishment,
there is no justification either for issuance of show cause notice or for
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passing the impugned order of suspension. In so far as the question of
violation of Rule 8(1) and 8(2), Mr. Kansara, fairly made a statement that
on 21.08.2009 when the premises were inspected by the Police, the
Petitioner was not present. According to Mr.Kansara, because the
Petitioner is lady and because her husband was present, though the
husband may not have been given any authority to run the business, there
was no violation. It was alternatively submitted that in any case mere
absence of the Petitioner on that day does not constitute a serious breach
of the Rules.
8 The next submission advanced by Mr. Kansara was to the effect that
only on the ground of pending criminal cases no action can be taken. In
this regard, Mr. Kansara relied upon several judgments some of which are
as under:-
a) Judgment of Justice A. M. Khanwilkar, in Writ Petition No.
7271 of 1999 in the case of Dilip J. Bhatia V/s The Commissioner of
Police,Thane.
b) Division Bench Judgment( H. S. Bedi,C.J. and V. M. Kanade,
J), in Writ Petition No.5675 of 2006 in the case of Maruti Vithal Gopale
V/s The State of Maharashtra and Anr.
Regarding the allegation about violation of Rule 6, it was contended
by Mr.Kansara that the lady waitresses, who were found in the
establishment were not the employees. Relying on the reported judgment
of Justice R. M. S. Khandeparker, in the case of Allahbaksh Ismail
Ebrahim Vs Commissioner of Police and Ors reported in 2004(1) ALL MR
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677 and particularly, paragraph Nos.8 to 10 thereof, it was submitted by
Mr. Kansara that licensing authority is empowered to suspend the licenses
if the conditions and restrictions imposed upon the licensee are violated
or infringed and action for suspension of a license 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 license has been issued. According to Mr. Kansara, the provisions of
Rule 238 of the Rules for Licensing and Controlling Places of Public
Amusement( Other Than Cinemas) and Performances for Public
Amusement including Melas and Tamashas Rules (1960) framed by the
Commissioner of Police, Mumbai under section 33(1) (w) (wa),(x) and
(y) of the 1951 Act, are parimateria provisions of Rule 277 of the Rules
for keeping places of public entertainment in Greater Bombay and, hence,
ratio of the said judgment delivered by Justice R. M. S. Khandeparker is
squarely applicable. By referring to the two conditions under Rule 27, it
is submitted that none of the conditions were fulfilled in the present case.
9 It is submitted that in the impugned order passed by licensing
authority, the conclusion has been reached that acts of indecency were
reflected but no opportunity was given to deal with such contentions.
10 It is next submitted that on the basis of same facts which
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constituted the action, the prosecution had been initiated under Section
110 and 170 of the 1951 Act, which has resulted in acquittal and, hence,
only on the basis of the report of the incident which took place on the
relevant date, the authority was not justified in passing an order of
suspension. It was submitted by relying on the judgment of Justice R. M.
S. Khandeparker(supra) that by mere commission of an offense there can
be no justification for invoking Rule 27.
11 The judgment of Justice Dr. D. Y. Chandrachud in Writ Petition No.
1181 of 2004 in the case of Padma N. Kokarne( M/s Pooja Bar and
Restaurant) V/s The Commissioner of Police, Mumbai and Anr was also
relied upon and it was contended that the Petitioner is having a valid
license under the Rules framed under Bombay Prohibition Act, 1949 and
if the impugned order is not set aside, the Petitioner is not in a position to
serve liquor even though license under the 1949 Act and Rules framed
thereunder had not been suspended.
12 Ms. Cardozo in reply submitted that Rule 27, consists of two
distinct parts. There is power to revoke and power to suspend. It is
submitted that Rule is very widely worded and depending upon the facts
of each case, the licensing authority is granted powers to revoke license in
case of serious breach and to suspend license in case the breaches are of a
lesser degree or seriousness.
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13 It was submitted that the argument about applicability of Section
131, was fallacious since the Petitioner who has got the license under the
Rules cannot argue that only part of the Rules are applicable. The Rules
apply in their entirety. In the present case Rule 6 has clearly been
breached as the women employees were allowed to remain in the
premises beyond the period prescribed by the Bombay Shops and
Establishment Act, 1948. It was submitted that Rule 27 operates in a
entirely different field and has nothing to do with pending prosecution or
criminal cases which are already disposed of. The judgment delivered by
Justice R. M. S. Khandeparker was sought to be distinguished by
contending that the said judgment deals with an entirely different set of
Rules. It was alternatively submitted that in any case, in the present case
since violation of Rules 6, 8 and 21 has been established, the authority
was justified in passing the impugned order of suspension. The judgment
of Justice Dr. D. Y. Chandrachud, it is submitted, is clearly distinguishable
and in fact it is submitted that even if there is only one ground of breach
that is sufficient to justify the action of suspension.
14 It was submitted neither the show cause notice nor the final order
of the authority relied upon the pending cases. It is alternatively
submitted that in any case even if the order can be supported on one of
the grounds, this Court cannot interferes in it's extra ordinary jurisdiction.
It was submitted that the fact that the first case resulted into an acquittal
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has also been taken into due consideration and coupled with the fact that
in the interregnum period after issuance of show cause notice one more
case was registered and that has resulted in prosecution which fact is
accepted by the Petitioner was sufficient to support the impugned order.
Relying on the judgment of the Division Bench of this Court ( Coram:
Swatanter Kumar, C. J. and V. M. Kanade, J) in the case of Mr. Vittal K.
Shetty v/s The State of Maharashtra and Ors in Letters Patent Appeal No.
76 of 2008 in Writ Petition No.1679 of 2008, it was submitted that
present case is squarely covered by that judgment. Further reliance was
placed on the judgment of Justice A. M. Khanwilkar, in the case of
Kucchuputen Parampil Skarya James V/s State of Maharashtra and Ors in
Writ Petition No. 182 of 2008 and it was submitted that the arguments
which are in the nature of an after thought cannot be permitted to be
advanced and impugned orders cannot be interferred with on that basis.
In rejoinder, Mr.Kansara, submitted that the first case has resulted in an
acquittal and though the second case has resulted in conviction and
imposition of fine; they are not the subject matter of show cause notice
and, hence, according to Mr. Kansara, the conviction in second case could
not have been relied upon.
15 I have carefully considered the rival submissions. Before dealing
with the said submissions, the relevant provisions of law are required to
be noted. The facts lie in very narrow compass. (a) the Petitioner is the
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owner of eating house/restaurant known as Hotel Anand Punjab and is
conducting her business there from. The Petitioner has been given a
license under the provisions of Rules for keeping places of public
entertainment in Greater Mumbai bearing No. 43/Colaba. The provisions
of Bombay Shops and Establishment Act,1948 are undoubtedly
applicable. The license issued to the Petitioner is a license on account of
the fact that the Petitioner is also having license to serve liquor and other
alcoholic substances under the provisions of the Rules framed under the
Bombay Prohibition Act, 1949.
(b) On 21.08.2009, the Senior Inspector of Police,Traffic Cell, Social
Service Branch of Mumbai inspected the premises and on that occasion
on the ground floor hall in the premises, 11 girls were found to be in close
physical contact with the customers and were found to be behaving in
disorderly manner, by making obscene gestures and customers were found
to be showering Indian Currency Notes. At that time, the Petitioner was
not found in the premises. In fact this aspect of the matter is admitted by
Mr. Kansara, who has fairly made statement during the course of
argument that the Petitioner was not present on that day in the premises.
Instead of Petitioner, one Shama Sinha Shetty was found to be running
the establishment through a person named as Manager Pravin G. Shetty
and Cashier Chandra Narayan Mogvira was also found. In view of this,
apart from registering an offense against various persons, including Petitioner,
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the said conducting Manager, cashier and the 11 lady waitresses under
Section 110 and 170 of 1951 Act, a report was also submitted to the
licensing authority. Based on this report, the licensing authority issued
show cause notice dated 13.01.2010 and the Petitioner was called for
hearing thereafter by issuing another notice.
(c) The Petitioner has not placed on record a copy of the reply and,
hence, one will have to go on the basis of narration in the impugned
order. As stated above, Mr. Kansara, has expressly admitted the absence
of the Petitioner at the time of inspection of the premises.
(d) It is seen that during the course of hearing, the factum of inspection
was not disputed nor was the fact that 11 women were present at 22.50
beyond the period prescribed under Bombay Shops and Establishments
Act, 1948 was disputed.
16 The petitioner however, brought it to the notice of the authority
that in respect of the incident which occurred on 21.08.2009, for the
offense under Section 110 of the 1951 Act read with Section 33(w), the
Petitioner had been acquitted. It was submitted by the Petitioner that the
time at which inspection was carried out was falsely shown and it was
also brought to the notice of the authority that in respect of the
subsequent incident dated 28.11.2010, it had resulted in conviction and
fine had been imposed.
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17 Based on these facts, the Deputy Commissioner of Police passed an
order in exercise of the powers conferred by Rule 27 after recording a
finding that the Petitioner had committed a breach of Rules 8(1), 8(2),6
and 21(A) of the Rules.
18 Aggrieved by this order, Petitioner filed an appeal under Rule 28A
of the Rules which has been dismissed by the Hon'ble Minister(Home
Affairs) leading to the filing of this Petition.
19 It is necessary to note the relevant provisions of law. The word
"eating house" has been defined under Section 2(5) of the Act. The
words "place of public amusement" and "place of public entertainment"
are defined under Section 2(9) and 2(10) respectively. Chapter IV
contains Police Regulations and Section 33 provides for power to make
Rules for Regulation of traffic and for preservation of orders in public
place etc. we are concerned with clause (w), (xa) and (y) which reads
thus:
Clause(w),(xa,)and(y):
33. Power to make rules or regulation of traffic and for
presentation of order in public place, etc. [The
Commissioner with respect to any of the matters specified in
this sub-section, the District Magistrate with respect to any of
the said matters (except those falling under Cls. 4 [(a), (b),
(d), (db), (e), (g), (r), (t) and (u)]) thereof and the
Superintendent of Police with respect to the matters falling
under the clauses aforementioned read with CI. (y) to this
sub-section], in areas under their respective charges or any
part thereof, may make, alter or rescind rules or orders not
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inconsistent with this Act for-
(w) (i) licensing or controlling places of public amusement or
entertainment;
(ii) prohibiting the keeping. of places of public amusement
or entertainment or assembly, in order to prevent obstruction,
inconvenience, annoyance, risk, danger or damage to the
residents or passengers in the vicinity;
(iii) regu1ating the means of entrance and exit at places of
public amusement or entertainment or assembly, and
providing for the
[(xa) registration of eating- hoses, included granting a
certificate of registration in each case, which shall be deemed
to be written permission required and obtained under this Act
for keeping the eating-house, and annual renewal of such
registration within prescribed period;
(y) prescribing the procedure in accordance with which any
license or permission sought to be obtained or required
under this Act should be applied for and fixing the fees to be
charged for any such license or permission:
20 Section 131 falls in Chapter VII which deals with offenses and
punishment and provides for various punishments for contravening the
Rules. Section 162 reads thus:
162: Licences and written permissions to specify conditions,
etc., and to be signed. (1) Any licence or written permission
granted under the provisions of this Act shall specify the
period and locality for which and the conditions and
restrictions subject to which, the same is granted, and shall be
given under the signature of the competent authority and such
fee than be charged therefor as is prescribed by any rule under
this Act in that behalf.
Revocation of licences, etc. (2) Any licence or written
permission granted under this Act may at any time be
suspended or revoked by the competent authority, if any of it
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conditions or restrictions is infringed or evaded by the person
to whom it has been granted, or if such person is
convicted of any offence in any matter to which such licence
or permission relates.
When licence revoked, etc., grantee to be deemed without
licence. When any such licence or written permission is
suspended or revoked, or when the period for which the same
was granted has expired, the person to whom the same was
granted shall for all purposes of this Act, be deemed to be
without a licence or written permission until the order for
suspending or revoking the same is cancelled, or until the
same is renewed, as the case may be.
Grantee to produce licence, etc., when required.(4) Every
person to whom any such licence or written permission has
been granted, shall, while the same remains in force, at all
reasonable time, produce the same, if so required by a Police
officer.
Explanation- For the purpose of this section any such
infringement or evasion by, or conviction of, a servant or other
agent acting on behalf of the person to whom the licence or
written permission has been granted shall be deemed to be
infringement or evasion by, or as the case may be, conviction
of the person to whom such license or written permission has
been granted. "
It is necessary to quote the relevant Rules framed by the
Commissioner of Police namely Rules for Keeping Places of Public
Entertainment in Greater Bombay. Rules (6), (8) and 21(A), (27) which
read thus:
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6: No license under these rules shall be issued unless
the person keeping the place of public entertainment
satisfies the Commissioner of Police that he shall
comply with the provisions of the Bombay Shops and
Establishments Act, 1948, and the rules made
thereunder"
8: 1) Unless a person permitted to act under Sub
Rule (2) ( in this rule referred to as 'the agent') is
present no person keeping a place of public
entertainment shall absent himself therefrom during
the time it is open without obtaining the previous
permission of the licensing authority, to be endorsed
on the license.
2) No person keeping a place of public
Entertainment at any time permit an agent to
act for him in the management of such place
without the like permission similarly endorsed.
Provided that permission to act as agent shall
not ordinarily be refused if the person is a
member of the licenses family or his paid
servant.
Provided that no such permission shall be
endorsed on the license unless, the agent
affixes hi signature or if he is illiterate, his
left thumb impressing on the license in the
presence of the commissioner of Police duly
countersigned by the Commissioner and
furnishes to the Commissioner three
additional specimen signatures or as the
case may be, three left thumb impressions
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duly countersigned by the Commissioner of
Police.
Provided further that in case of licenses issued
before the date of t his notification, the agent
shall comply with the provisions of the
preceding proviso within two months from that
date"
21-A : Without prrejudice to the provisions of
rule 21, no person keeping a place of public
entertainment shall permit during any
performance or exhibition of any programme of
entertainment at such place.
(a) any profanity or any obscene or indecent
language; or
(b) any indecency of dress, dance or
gesture"
27:The Commissioner of Police shall have
the power in his discretion at any time to
cancel a license granted under these rules or
to suspend it for such period as he may
specifying to direct the keeper of any place
of public entertainment to close such place
either permanently or temporarily or
otherwise act with reference thereto, if the
Commissioner of Police is satisfied after such
enquiry as he deems fit that the Licensee is
not a suitable person for continuing to h old
the licence or in order to prevent any
obstruction, inconvenience, annoyance, risk,
danger or damage to residents or passengers
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in the vicinity or to prevent nuisance in such
place and every person keeping a place of
public entertainment shall forthwith comply
with such direction."
21 In the facts of the present case, submission of Mr. Kansara, that the
licensing authority has relied upon the pending criminal cases is not liable
to be accepted since the show cause notice is not issued on the basis of
pending criminal case, but the same has been issued on the basis of the
detailed report of the inspection submitted by the concerned Police
Officer. The said report prima facie indicates a clear violation of Rule (6),
(8) and (21). In so far as violation of Rule(6) is concerned, the existence
of the lady waitresses in the premises at 22.50 is not shown to be factually
incorrect. Though a vague attempt is made to contend that they were not
the employees of the Petitioner, it is also not brought on record by any
independent material that they were either customers, who had come to
the establishment or that the time of inspection was wrongly written.
Thus, breach of Rule (6) is duly established.
22 In so far as breach of Rule (8) is concerned, as stated above
Mr. Kansara specifically accepted that the Petitioner was not personally
present. The Rules and particularly Rule (3) contemplate that if it is not
possible for the licensee to remain present personally in the
establishment, a licensee can submit application to the Commissioner of
Police and in respect of Class (A) licensee of public entertainment
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is permitted to serve liquor under Bombay Prohibition Act, 1949 is
granted and the licensee can request the Police Commissioner of Police for
making endorsement in favour of such other person who will conduct the
business on behalf of licensee. Admittedly, this was not done. What is
sought to be contended is that according to the Petitioner her husband
was present. The names of the persons who were found to be present do
not support this contention of the Petitioner and even otherwise there is
absolutely no factual foundation laid down in support of such
contentions. Therefore, violation of Rule(8) is also duly established. As
far as violation of Rule (21) is concerned, Ms.Cardozo is justified in
relying on the judgment of the Division Bench in Letters Patent Appeal
No.76 of 2008. The Petitioner may have been acquitted in a criminal trial
which requires a much higher and stricter degree of proof. However, in
the absence of any malafides being alleged against the Police Officer who
made report, and, in view of the fact that 11 waitresses were found to be
present in the licensed premises, there was sufficient material available
with the licensing authority to reach a conclusion that there was violation
of Rule(21).
23 The submission of Mr. Kansara, that the factum of acquittal was not
taken into consideration can also not be accepted. The show cause notice
did not refer to this though subsequent acquittal would certainly be a
relevant factor but for the fact that in the present case conviction has been
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recorded in respect of subsequent breach. Even otherwise, there was
sufficient material for supporting finding regarding breaches. In so far as
judgments relied upon by Mr.Kansara are concerned, the judgment of
learned Single Judge ( Coram: A. M. Khanwilkar,J) in Writ Petition No.
7271 of 1999 and the Division Bench Judgment of (Coram: H. S. Bedi,
C.J. And V. M. Kanade,J) in Writ Petition No. 5675 of 2006 are concerned,
they are clearly distinguishable and are rendered in the facts of those
cases. In those cases, there was no prosecution against the licensee and
except one criminal case, there was no other material to show breaches.
In the present case, breaches of the provisions of Rules (6), (8) and (21)
have been clearly established. Similarly, judgment of learned Single
Judge R. M. S. Khandeparker,(Alabaksha) (supra) is also clearly
distinguishable on the facts of that case. It is now necessary to deal with
one last submission of Mr. Kansara, that no conditions have been
mentioned on the license and hence authority could not have been
referred to these Rules at all. This submission is completely without
merit. Proforma of license specifically contains the words " subject to the
complying Rules made". The license is issued under the Rules. Beneficiary
of such license cannot be permitted to advance such an extreme
submission. The licensee is made aware that the license is issued under
the relevant Rules and breach thereof can constitute a foundation for
action of suspension/revocation.
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24 I am therefore, of the opinion that this is a case where authorities
have acted within the jurisdiction conferred on them and have not
committed any error of law. The impugned order does not take away the
right of the Petitioner to conduct the eating house for which a separate
license under sub-clause(xa) of sub-section(1) of Section 33 is issued and
all that has been done is to suspend the license for public entertainment
for a period of 30 days. If the authority had itself reduced the period of
suspension, by less than 30 days that discretion of the authority could not
have been interferred with. So also the discretion of the authority where
the licensing authority has suspended the license for a period of 30 days
can also not be interferred with. Hence, there is no merit in the Writ
Petition, the same is dismissed. The Rule is discharged with no order as
to costs.
25 At this stage on the oral prayer of Mr.Kansara, interim order
operating in the Petition is continued for a period of four weeks.
( G. S. GODBOLE, J. )
