Bombay High Court
Permit Room) Situated At Plot vs State Of Maharashtra on 16 November, 2011
Bench: G. S. Godbole
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ast
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8426 OF 2011
Shri Appu M. Shetty.
Age 70 years, Proprietor Hotel Sona
(Permit Room) situated at Plot
No. 19, Jawahar Nagar, S.V. Road,
Goregaon (W), Mumbai. ....Petitioner
Vs.
1. State of Maharashtra
2. Deputy Commissioner of Police,
Crawford Market, Mumbai
3. The Commissioner of Police,
Crawford Market, Mumbai.
4. Hon'ble Minister,
Home Department, Mantralaya,
Mumbai.
5. Senior Inspector of Police,
Goregaon Police Station,
Mumbai. ....Respondents
Ms. Bobby Malhotra Paul, Advocate for Petitioner.
Ms. P. S. Cardozo, AGP for Respondents.
CORAM:- GIRISH GODBOLE, J
DATED:- NOVEMBER 16, 2011
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ORAL ORDER :
1. Rule. By consent, Rule made returnable forthwith and heard
finally. I have extensively heard Ms. Bobby Malhotra, Advocate
appearing for the Petitioner and Ms. Cardozo, learned AGP for
Respondents.
2. The facts lie in a narrow compass. The Petitioner is running
an eating house. Name is Hotel Sona. The Petitioner is aged 70 years.
The hotel is situated at Goregaon. The Licencing Authority namely
Assistant Commissioner of Police, Goregaon Division, Mumbai has
issued a licence to keep a place of public entertainment bearing No.
37/Goregaon in favour of the Petitioner. The said licence empowers him
to serve liquor in his eating house for which a special licence under
section 33(xa) is issued. The concerned police officer namely Senior
Inspector of Police, Prevention of Immoral Business Desk, Social Service
Branch, Mumbai inspected the establishment of Petitioner at 00.35 on
6/12/2009 and during the course of inspection, it was found that on the
ground floor hall, with the beats of music being played on Orchestra, 5
lady waitresses were making obscene gestures and were found to be in
close contact with the customers and the customers were found to be
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showering Indian Currency notes on the said lady waitresses. The
Petitioner was admittedly not present in the establishment. It is not the
case of the Petitioner that the said lady waitresses were not employees of
the Petitioner. One Rajesh Vishwanath Shetty was a person who was
found to be conducting the entire business and one Dinesh Loku Poojari
was found to be a person working as Manager in the establishment. In
terms of Rule 8 of the Rules For Keeping The Places of Public
Entertainment in Greater Bombay, 1953 framed by Commissioner of
Police, Mumbai under Section 33 of the Bombay Police Act, 1951, the
Petitioner had not obtained any prior permission of the Licencing
Authority either to appoint the said Shri Shetty or said Shri Poojari as his
agents. In view of this incident, a report was submitted to the Licencing
Authority and, independent of this report, offences under section 33(w)
r/w section 131 bearing C.R. Nos. 2088/2009 and 2089/2009 were
registered against the conductor Rajesh Shetty and the Manager Dinesh
Loku Poojari. Similarly, offences bearing C.R. Nos. 2090/2009 to
2094/2009 were registered against 5 waitresses under Section 110 of the
Bombay Police At, 1951. The Petitioner is not an accused in any of these
officenes.
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3. Since criminal prosecution and administrative action under
Rule 27 of the 1953 Rules are two different things and operate in different
fields, the first being a penal action and second being an administrative
action, the Licencing Authority issued a show cause notice to the
Petitioner on 4/2/2010. There is no dispute about receipt of the show
cause notice. Show cause notice clearly indicated violation of Rule 8(1),
8(2), 6, 21A and 24. Paragraph-7 of the show cause notice clearly shows
that pending criminal cases were not the basis or foundation of the show
cause notice and the proposed action of cancellation of licence. In
paragraph-8, past history of the various administrative actions against the
Petitioner were indicated which show that in 1997 police licence was
suspended for 7 days, for 15 days in the year 2001, for 30 days in the year
2002, for 7 days in the year 2004, for 20 days in the year 2006, for 10
days and 15 days in the year 2007 and warning was issued in the year
2009. Thus the fact that the Petitioner is habitually violating provisions
of the Rules was clearly indicated in the show cause notice which is at
Exh. B to the Petition. The reply virtually admits that police had visited
the establishment and also admits that lady waitresses who were
employees of the Petitioner were found working in the establishment. The
only dispute is about the timing of the visit of the police. The Petitioner
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has not indicated as to what is the time when the police visited the
premises. A bald statement was made in the reply that the police came to
the hotel before prescribed time limit and when the lady waitresses were
returning from the work and were going to home. No time is indicated in
the reply. Even in the appeal memo filed before the State Government no
time has been indicated. There was mere denial of violation of rule 6 and
21. Reliance is placed on certain Judgments. Paragraphs 4 and 5 of the
reply reads thus :
"4) The person alleged as manager in the cases registered; is one
of the staff members and he was doing supervision work in my
absence. Till date I have not appointed any one as a manager in
my hotel. I always remain present in the hotel in the business
hours except lunch time and at the time of some other important
work. In my absence I told to one of the worker to handle the hotel
business for the time being. Therefore, in respect of violation of
rule 8(1) as well as 8(2) is not taken place.
5) I hereby submitting that as compared to the cases, the
proposed punishment is so harsh. Therefore, kindly take lenient
view in this matter."
Thus, the allegations in the show cause notice were not seriously
disputed. The fact that Mr. Shetty was found to be conducting the
business and Dinesh Poojari was found to be kept as Manager was also
not disputed. It is not the case of the Petitioner that there is any authority
in favour of these 2 persons as contemplated by Rule 8 of the 1953 Rules.
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4. Hearing was fixed. At the time of hearing, the Petitioner did not
remain personally present. No application for adjournment was submitted
and in fact a person named Harish Shetty appeared before the Licensing
Authority at the time of hearing and contended that he has been
conducting the entire business. When he was asked about his authority, he
replied to the Licensing Authority that the Petitioner had gone to
Manglore and that the Petitioner was not well and therefore could not
attend the hearing in Mumbai and that he requested that the hearing
should be proceeded and that he was entirely responsible. This is a
statement of fact appearing in the order passed by the Licensing Authority
and neither in the memo of Appeal filed before the State Government nor
in the Memo of Writ Petition this statement of fact is assailed. It is well
established that if the statement of fact appears in the impugned Judgment
and Order of any judicial or quasi judicial authority, in the absence of
any specific challenge to the said statement, the Superior forum will
proceed on the basis that such a statement of fact recorded by the
Authority concerned is factually correct. In view of the past history
where the licence of the Petitioner had been suspended on several
occasions, from year 1997 onwards, the Licensing Authority came to the
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conclusion that the violation of rules 6, 8, 21 and 24 has been established.
This conclusion was reached by the Authority dehorse of the pending
criminal cases in which the Petitioner is admittedly not an accused.
Licensing Authority thereafter passed the impugned Order dated 4/3/2011
and the Police Licence No. 37/Goregaon issued in favour of the Petitioner
has been cancelled.
5. Aggrieved by this Order of cancellation of licence, Appeal
under Rule 28 of the 1953 Rules is filed before the State Government.
By the impugned Judgment and Order dated 6/9/2011, the Principal
Secretary of the Home Department of Government of Maharashtra has
dismissed the Appeal by giving cogent reasons. The Appellate Authority
and Licensing Authority seem to be conscious of the fact that mere
pendency of criminal complaints cannot be made foundation of any such
action. With this consciousness, the facts of the case have been
considered independently which will have no bearing on the criminal
cases which are pending. In fact violation of the rule 8(1), 8(2) had been
independently established and this finding has been reached by the
Licencing Authority, as also by the Appellate Authority.
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6. I have carefully perused the photocopy of the licence. The Photo
copy of the licence clearly shows that the licence which has been
cancelled is only of licence to keep place of public entertainment and
there is nothing to indicate that there is composite licence to keep place of
public entertainment and licence to run eating house. An eating house is
defined under section 2(5A) of the 1951 Act whereas the place of public
entertainment has been defined under section 2(10) of the said Act. If
the owner of the establishment does not wish to serve liquor or any other
intoxicating substance containing alcohol, he does not need licence to
keep a place of public entertainment. These are two different licences and
eating house licence is referable to section 33(xa) whereas a licence to
keep a place of public entertainment is referable to section 33 (w) of the
1951 Act.
7. Smt. Malhotra has taken me through the various provisions of
1953 Act. It will be advantageous to reproduce the said provisions before
dealing with the submissions of Smt. Malhotra. Section 2(5A) defines the
term "eating house". Section 2(10) defines the term "Place of public
entertainment" and Section 2(13) defines the term "public place". Section
33 (w), (xa) and (y) read thus :
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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
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 maintenance of public safety and the
prevention of disturbance thereat;
[(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:
Section 110 reads thus :-
"110. Behaving indecently in public. - No person shall willfully
and indecently expose his person in any street or public place or
within sight of, and in such manner as to be seen from any street or
public place, whether from within any house or building or not, or
use indecent language or behave indecently or riotously, or in a
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disorderly manner in a street or place of public resort or in any
office , station or station house. "
Section 131 provides for penalty for contravention of rules under section
33 and the relevant section 131(b)(v) reads thus :
"131. Penalty for contravening rules. etc., under Sec. 33.- 6 [ 7
[Save as provided in Sec. 131-A, whoever]-
(a) contravenes any rules or order made under Section 33 or any of
the conditions of a licence issued under such rule or order, or
(b) abets the commission of any offence under Cl. (a) shall, on
conviction be punished]-
.....
(v) if the rule or order contravened or the rule or order under
which the said licence was issued 8[was made under any clause of
sub-section (1) of Sec. 33 and for the contravention of which no
penalty is provided under this section], with fine which may extend
to five hundred rupees. "
Section 151, 151A read thus :
"151. Prosecution for certain offences against the Act to be in
the discretion of the Police. It will not except in obedience to a
rule or order made by the State Government or by the competent
authority, be incumbent on the Police to prosecute for an offence
punishable under Sec. 117, 119, 131, 134, 137, 139, 140 or 144
when such offence bas not occasioned serious mischief and has
been promptly desisted from on warning given.
[151-A. Summary disposal of certain cases. (1) [A Court taking
cognizance of an offence punishable under Sec. 117, or under [sub-
clauses] (iii), (iv) or (v) of Sec. 131, may state upon the summons to
be served on the accused person that he may, by a specified date
prior to the hearing of the charge plead guilty to the charge by
registered letter and remit to the Court such sum, not exceeding
twenty-five rupees, as the Court may specify.
(2) Where an accused person pleads guilty and remits the sum
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specified no further proceeding in respect of to offence shall be
taken against him). "
Section 117 reads thus :
117. Penalties for offenders under Secs. 99 to 116. Any person
who contravenes any of the provisions of Sections 99 to 116 (both
inclusive) shall, on conviction, be punished with fine which may
extend to [twelve hundred rupees]
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 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.
(3) 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.
Guarantee 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
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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. "
8. In exercise of powers conferred by section 33 of the 1951 Act
the Commissioner of Police Greater Mumbai has framed rules known as
"Rules For Keeping Place Of Public Entertainment In Greater Bombay,
1953 (referred to as 1953 Rules). Rule 6 reads thus :
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."
Rule 8 reads thus :
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
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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 his 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
duly countersigned by the Commissioner of
Police.
Provided further that in case of licenses issued before the date of
this notification, the agent shall comply with the provisions of the
preceding proviso within two months from that date"
Rule 21 reads thus :
21-A : Without prejudice 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"
Rule 27 reads thus
"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
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residents or passengers 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."
9. Mrs. Malhotra submitted that though the incident of
inspection is not denied, incident did not take place at the time which is
indicated. She submitted that the Petitioner is not an accused in any of
the criminal cases. Relying on the Section 33 of the Act, it was submitted
that the power is to make rules for regulation of Traffic and for
preservation of order in public places and hence, every action under the
rules must be construed by keeping in mind the purpose of making rules.
It was further submitted that the relevant words were to be found in sub-
clause (w) and only in case where there was any obstruction,
inconvenience, annoyance, risk, danger or damages to the residents or
passengers in the vicinity it could be construed that there is violation of
the rules. It was next submitted that since sections 110 and 117 were
penal sections, these sections must be read together with section 131 and
with section 162 and only in case where the Magistrate tries the particular
offender in summary proceedings and imposes fine which cannot exceed
Rs. 1200 and Rs. 500/- for different offences, can the Licencing Authority
proceed to take action. In other words, it was submitted that unless and
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until prosecution has ended in conviction, no action whatsoever can be
taken by the Licencing authority either for suspension or for revocation of
the licence.
10. Relying on Section 162 it was submitted that the revocation
of licence can be done by the Competent Authority and can be done only
if the licencee is convicted by any offence in any matter to which such
licence or permission relates.
11. Relying on section 151A it was submitted that the case under
Section 9 can be tried in a summary manner and, hence, when the
maximum punishment is fine of Rs.2000/- under section 151A even if the
accused admitted guilt, action of cancellation of licence is completely
without jurisdiction and without authority of law.
10. It was alternatively submitted that Licencing Authority has
discriminated against the Petitioner only on the ground of one solitary
incident. A very harsh punishment of cancellation of licence has been
imposed and it was therefore submitted that the punishment is shockingly
disproportionate and shocks conscience of the a common man.
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13. Smt. Malhotra relied upon the following Judgments in support of
her submissions.
(1) Judgment of B.N. Shrikrishna, J W.P. No. 1639 of 1996 in
Kana Nagu Mhatre (Gopika) v/s. State of Maharashtra and relied
on paragraph-6 of the said Judgment which reads thus :
"6. A reference to the Show cause Notice dated 16th January,
1996 shows that the petitoner is alleged to be committing serious
breaches of the terms of the licence granted to him and of the
provisions of the Bombay Police Act and the Rules made
thereunder. Unfortunately, in the Order of the A.C.P. Panvel
Division, Panvel, dated 29th January, 1996, there is no mention of
the material on the basis of which he was satisfied that the
petitioner was guilty of the breaches of the law alleged against him.
The mere fact that on previous occasions there were some
employees of his restaurant convicted does not bring home the crux
of the charges. At least in 16 out of 11 cases, the cases were sub
judice and criminal court is yet to try the complaints and decide the
guilt or otherwise. So far as allegations connected with the "raid"
by the Minister on 15th January, 1996 is concerned, even that is the
subject matter of a case pending in the criminal court. The
impugned Order of the A.C.P. Seems to have proceeded on the
assumption thjat all charges pending against the petitioner in the
criminal court, including the list in the series, have been proved.
There does not appear to be any attempt on the part of the A.C.P. To
take on record any material from which he could have been satisfied
that the licence of the petitioner deserved to be cancelled. The
Order of the A.C.P., Panvel Division, Panvel, is, therefore, wholly
erroneous and deserves to be quashed and set aside."
And further referred to observation in paragraph-7 of the said Judgment
which reads thus :
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"7. .......... It is time that the Authorities below become alive to
the fact that any order which takes away the livelihood of a citizen
infringes his fundamental rights guaranteed under Articles 19(1)(g)
and 21 of the Constitution of India. Such an order could only be
upheld if it imposes reasonable restrictions on such fundamental
rights. Such orders have to be passed with the utmost sense of
responsibility. The orders of the two Authorities below are wholly
perfunctory and not based on any material to support the
conclusions drawn."
14. Reliance was also placed on the Judgment of Justice B.N.
Shrikrishna in the case of Girija Timappa Shetty v/s. The Assistant
Commissioner of Police & anr. in Writ Petition No. 2291 of 1996 dated
10th April, 1996 and the observations in paragraphs - 5 and 6 thereof were
pressed into service which read thus :
"5. Both the authorities below have missed one vital factor,
namely, that an accused is presumed to be innocent till found guilty
by a competent Court. Merely because an offence has been
registered or a complaint is pending before the Court, it is not
possible to say that the accused would necessarily be found guilty.
Perhaps, that may be the view point of the Police Department, but
that is not the law. The manner in which the previous 15 cases and
the present 56 cases have been launched against the Petitioner is
also strange. The police raided the establishment on a particular
day, picked up 56 different employees and charged them separately
under the same Sections for the same incident and chalk up 56
separate offences. Unless statistics was being used for an oblique
purpose, I see no point in the manner in which the prosecutions
were launched. To call them separate offences registered against
the establishment, is nothing but a face.
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6. The reasoning adopted by both the authorities below for
concluding that the Petitioner's Eating House was liable to be
cancelled, is wholly erroneous and untenable. The authorities
below must take into consideration that the Petitioner has a
guaranteed fundamental right under Article 19(1)(g) and Article 21
of the Constitution of India which permits her to carry on any
trade, business or vocation in life for the purpose of livelihood.
Any restriction on or interference therewith is permissible only to
the extent it is reasonable."
15. The Judgment of Division Bench (H.S.Bedi, C.J. & V.M.
Kanade, J) in the case of Maruti Vitthal Gopale v/s. The State of
Maharashtra & Anr. was also relied in support of the submission that
pending criminal case cannot form the basis of an action for cancellation
or suspension of licence.
16. The Judgment of R.M.S. Khandeparker, J in Allahbaksh Ismail
Ebrahim v/s. Commissioner of Police & ors.2004(1) All M.R. 677 was
also relied upon with particular reference to paragraph-8 which reads
thus:
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 restriction imposed upon the licensee under the
license are violated or infringed. At the same time, the Rule 238 of
the said Rules discloses that action for suspension of a licence can
also be taken in cases where the same is necessary to maintain the
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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
of damage to the passers-by in the vicinity of the premises and
violation of the conditions of the licence can all be taken together
as well as any one of them be the ground/grounds 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 Rules
238 to enable the authorities to suspend a licence granted to a
licensee."
It was submitted that Rule 238 referred therein is pari materia Rule 27 of
the 1953 Rules.
17. Judgment of V.C. Daga, J in the case of Shri Sayad Kadir
Amir Jan v/s. The State of Maharashtra & ors.(W.P. No. 6133 of 2008
dated 28th August, 2008) was also relied upon by pointing out the
observations made in paragraph-7 of the said Judgment. Certain other
judgments have also been annexed in the compilation but they were not
relied upon.
18. On the other hand Ms. Cardozo, learned AGP submitted that
the incident of inspection by police on 6/12/2009 is admitted, the presence
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of Rajesh Shetty and Dinesh Poojari in the licence premises at the relevant
time is admitted, presence of 5 waitresses in the premises is admitted and
the Petitioner has also admitted that he was absent at the time of
inspection. Ms. Cardozo further submitted that considering the past
history of repeated suspensions of the licence, licensing authority on the
conscious consideration of the entire track record of the Petitioner was
justified in coming to the conclusion that the Petitioner was not a suitable
person for conducting a place of public entertainment and hence, the
authority has taken a possible view. It was submitted that the impugned
order of the Authority is within the jurisdiction conferred on the authority
and the authority has not even remotely considered the pending criminal
cases.
19. I have considered the submissions. The first submission to
the effect that unless and until there is conviction for an offence under
section110 read with section 117 r/w section 33 and section 131 of the
1951 Act, is merely required to be stated to be rejected. If the 1953 Rules
have been framed in exercise of powers conferred by section 33 of the
1951 Act, these Rules are statutory rules and have a statutory flavour.
Validity of rules is not under challenge. Section 162 clearly provides that
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any licence or written permission granted under the 1951 Act may at any
time be suspended or revoked by the competent authority, if any of its
conditions or restrictions are 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. It is therefore clear
that conviction of the licensee is not a prerequisite condition for an action
for suspension or cancellation of licence. Even if a person is not
convicted or even if a person is not even prosecuted, the Competent
Authority is empowered to cancel or suspend the licence if it is satisfied
that any of its condition or restrictions are breached or infringed or evaded
by the licencee. In view of this, the first submission of Smt. Malhotra that
only conviction can be made the foundation of cancellation of licence
does not have any merit and the same is rejected. In this regard, Ms.
Cardozo is justified in relying upon the observations in the Judgment of
the learned Single Judge (K.U. Chandiwal, J) in Criminal Writ Petition
No. 72 of 2008(Aurangabad Bench) in the case of Sanjay s/o Jugallal
Jaiswal v/s. State of Maharashtra & ors. Paragraphs 2 and 3 of the said
Judgment read thus :
"2. Learned Counsel for the petitioner repeatedly
harped that, 16 cases, under the Bombay Police Act, 1951, to
which basically reference is given, for cancellation of the
licence, revolved not around him but, around his employees, who
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were working at the hotel, at the Dance Bar, at the material time
and, according to the learned Counsel, in view of Rule 10
promulgated under the Bombay Police Act, 1951, by notification
dt.30th May, 1996, the prosecution should have been necessarily
against owner or the licencee and then only the authorities
should have invoked their jurisdiction for taking action.
According to the learned Counsel, the employees are not
authorised persons to work in the hotel and, consequently,
the prosecution, by itself, will not be detrimental to the business
activities or, to the terms of the licence issued in favour of the
petitioner.
3. The petitioner/applicant cannot dispute that
he is governed by the procedure as prescribed under the
Bombay Police Act and Rules framed thereunder, he is bound
to comply the terms of the licence,
ig of conducting the business
of eating house or conducting a hotel. The 16 cases, to which
he gave reference and the Department also referred, though I
find, are under the provisions of Section 33(W), 131, 110, 117
of Bombay Police Act and, they are mostly revolving around
the employees of the petitioner, however, the fact
remains that the applicant cannot dispute or deny as,
whatsoever prosecution has been initiated against the employees
is, in relation to infraction and violations of the prescribed
rules; that too, in the hotel premises owned by the accused
and, the hotel premises, being a "public place" within the
definition of the said Act, it was the vicarious liability of the
petitioner to meet the consequences thereof. The petitioner
cannot be said to be oblivious to whatever activities his
employees were undertaking in the hotel at the
relevant time, when the hotel is and was under his exclusive
control and domain. The authorities, in exercise of the powers
conferred upon respondent no.2, under Section 33 of the
Bombay Police Act and the Rules framed thereunder, have
framed the rules named as Public Entertainment Places
( Aurangabad) Rules, 1995, which were made applicable to all
the permit rooms, beer bars, country liquor shops, toddy shops in
the jurisdiction of Police Commissionerate at Aurangabad
and, have followed the said procedure and sufficient opportunity
was given to the petitioner before taking any action
23 905.wp8426.11
against him. The authorities, apparently, have invoked
provisions of Section 33, Section 10(2) of the Bombay Police
Act which authorise them, in the capacity as licencing
authority, to take action, if there is any contravention of
the statutory provisions. "
20. In view of the provisions of section 162 and the fact that Rule
27 of the 1953 Rules does not provide for the conviction of a licencee in
criminal trial as an essential prerequisite for an action for cancellation or
suspension of the licence, it is clear that the Licencing Authority was
conscious of the fact that pending prosecution cannot be made foundation
of an action for cancellation which is a punitive action. The reading of the
Order passed by the Licencing Authority as also the Appellate Authority
clearly shows an appropriate application of mind, and rules of natural
justice have been duly complied with. The show cause notice is elaborate
and exhaustive and also indicates appropriate reasons as to why the
licence should not be cancelled. The past conduct of the Petitioner is
relevant factor and as indicated by me herein above at on numerous
occasions in recent past the licence of the Petitioner had been suspended
and, in such situation, the licencing authority was justified in coming to
the conclusion that no purpose would be served by suspending licence
again. Considering the past conduct of the Petitioner, it was not a case for
taking any lenient view or taking moderate action of suspension of
24 905.wp8426.11
licence.
21. I have already observed above that the fact that the Petitioner
was not in the establishment is admitted, visit of the police officer is
admitted, presence of Shri Shetty and Shri Poojari is admitted. The fact
that none of these persons were authorised agent of the Petitioner in terms
of the Rule 8 of the 1953 Rules is admitted. Thus, this was a case where
all the allegations in the show cause notice had been completely admitted.
With such a background of facts, the Licencing Authority had the power
and jurisdiction either to cancel the licence or to suspend the licence. Due
to the reasons as borne out from the record, it is clear as to why only
suspension could not have served any purpose. Thus, after valid exercise
of discretion the licencing authority has reached the conclusion that the
licence was required to be cancelled. The Petitioner did not appear for
personal hearing though an opportunity to that effect was given. Even
there, a person named Harish Shetty appeared before the Authority on
25/2/2011. Smt. Malhotra contended that the Petitioner was unwell and
an application for adjournment was sought to be given which adjournment
is not granted. However, there is no factual foundation in support of this
submission either in the memo of appeal or Writ Petition. Therefore, this
25 905.wp8426.11
argument is after thought and cannot be sustained. The Authority has
exercised its discretion and the order impugned does not suffer from
perversity.
22. In the end it is necessary to consider the submissions of Smt.
Malhotra that the punishment is disproportionate. Rules provide for two
types of punishment. One is suspension and the other is cancellation of
licence. Rule 27 does not provide for any particular period of suspension.
Suspension of licence is obviously a temporary phenomenon whereas
cancellation of licence is a permanent phenomenon. In the facts of this
case, in view of the past history of the Petitioner, where on several
occasions licence was required to be suspended, if the licencing Authority
has reached a conscious conclusion that the Petitioner was not a person fit
to carry on business of running place of public entertainment ( which is to
be distinguished from running an eating house as is clear from the
respective definitions referred above) it cannot be held that there is any
perversity in the discretion exercised by the licencing authority or that the
punishment is shockingly disproportionate. Reliance placed by Smt.
Malhotra on various orders of the learned Single Judges of this Court
wherein lineancy has been shown by the learned Single Judges by
26 905.wp8426.11
curtailing the punishment is of no avail since every case turns on the fact
of the case and none of these judgments can be held to be a binding
precedent which I must follow as a Single Judge. If the Licencing
Authority had used its discretion and had merely imposed a punishment
of suspension of licence for specified period; some discretion could have
been used by this court by reducing the period of suspension. However,
since, the Licencing Authority has consciously decided to cancel the
licence that discretion of the licencing authority cannot be interfered with
by this Court in its extra ordinary jurisdiction under Article 226 and 227
of the Constitution of India.
23. As a result of the aforesaid reasoning it is clear that no case
for interference is made out. Rule is discharged.
24. At this stage, Smt. Malhotra makes an oral prayer for
continuation of the ad-interim relief granted in terms of prayer clause (b).
It is seen from the prayer clause (b) that stay of operation of the Orders
dated 4/3/11 and 6/9/2011 is prayed, whereas prayer clause (c) seeks an
injunction against the Respondent not to prosecute and prevent the
Petitioner from carrying on the hotel business of Hotel Sona.
27 905.wp8426.11
Interestingly, the relief in terms of the prayer clause (c) has not been
granted to the Petitioner. I have perused the photo copy of the licence
which shows that the licence is valid till 31st March, 2010. Since there is
no valid licence in existence to keep a place of public entertainment, in the
facts of this case by an interim order Petitioner cannot be permitted to run
place of public entertainment. It is clear that the Petitioner would be free
to run an eating house if the Petitioner has a valid licence which is
operating in favour of the Petitioner. Hence prayer for continuation of
interim order is rejected.
(GIRISH GODBOLE, J)
