Bombay High Court

Shri Ramesh K. Shetty vs State Of Maharashtra on 18 November, 2011

Bench: G. S. Godbole

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                             
                       CIVIL APPELLATE JURISDICTION




                                                     
                     WRIT PETITION NO.          8754 OF 2011


      Shri Ramesh K. Shetty                                         ... Petitioner.




                                                    
      Proprietor of Ramesh Bar and Restaurant situated at
      Plot No.105/25 Sector 23, Turbhe, Navi Mumbai.

                        V/s.




                                         
      1. State of Maharashtra
                           
         through the Office of Government Pleader,
         Writ Cell High Court, A.S.Bombay.
      2. Commissioner of Police, Navi Mumbai.
                          
      3. Sr. Inspector of Police, APMC Police Station,
         Turbhe, Navi Mumbai.
      4. The Hon'ble Principal Secretary (Home), Govt.
          of Maharashtra, Mantralaya Mumbai.                        ... Respondents.
            


                                           ---
         



      Mr. P.S. Kansara i/by M/s. Kansara & Thanekar for the Petitioner.

      Ms. P.S. Cardozo, AGP for Respondent Nos. 1 to 4.
                                         ---





                                    CORAM:- G.S. GODBOLE, J.

DATED :- 18TH NOVEMBER, 2011.

ORAL JUDGMENT :

1 Rule. Rule is made returnable forthwith by consent of the parties.

Ms. Cardozo, learned AGP waives service on behalf of the Respondents.

Heard Mr. Kansara for the Petitioner and Ms. Cardozo, AGP for the

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Respondents at length. By consent, the Writ Petition is take up for hearing

forthwith.

2 By the impugned order passed by the Licensing Authority, the

eating house license given to the Petitioner under Section 33 (xa) and the

license for public entertainment issued under Section 33 (w) & (y) of the

Bombay Police Act, 1951 has been cancelled by the Commissioner of

Police, Navi Mumbai by order dated 30th June, 2011 and the Appeal filed

by the Petitioner has been dismissed. The facts of this case lie in a very

narrow compass and are as under.

3 The Petitioner has been given a license to open/keep the place of

public entertainment bearing license No. "CP/NM/LB-1/4/2004" in his

eating house known as "Ramesh Bar And Restaurant" situated at Plot No.

105/25, Sector 23, Janta Market, Turbhe, Navi Mumbai. A separate license

for eating house has also been granted to the Petitioner bearing No.

81/83(1)) under the provisions of Section 33 (xa) of the BP Act, 1951.

4 Establishment of the Petitioner was inspected on 04.11.2010 by the

local police at 12.15 in the night when it was found that 10 lady waitress

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were making obscene gestures and were in close physical contacts with

customers and hence, two actions were taken. First was filing a criminal

complaint vide N.C. No. 366 to 375 under Sections 110 and 117 of the

Bombay Police Act, 1951. Second action was to make a report to the

Licensing Authority and on the basis of this report a show cause notice

was issued by the Licensing Authority on 7.4.2011, which was duly

served on the Petitioner. The Petitioner submitted a reply on 25.4.2011

and accepted the guilt by stating that henceforth only the lady waitresses in

whose favour proper Nokarnama is executed would be allowed to

remain present in the establishment and he will ensure that henceforth

lady waitress will not indulge in any obscene gestures and will not be

allowed to come in close physical contact with the customers and that he

will scrupulously follow all the terms and conditions of the

entertainment license.

5 In the say to the show cause notice both the licenses, namely, eating

house license and public entertainment license are mentioned but text

of the show cause notice essentially deals with the license for public

entertainment. In the reply filed by the Petitioner, the same fact is

mentioned.

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6 Thereafter, the Petitioner was given an opportunity of personal

hearing on 13.06.2011 and even during the course of the personal

hearing, he admitted his guilt and assured that in future he will take proper

care and will ensure that a similar mistake is not committed in future.

Thereupon the Commissioner of Police, Navi Mumbai passed first

impugned order dated 30th June, 2011 (Exh. F pages 72 - 74) and cancelled

both the license

namely, eating house License No. 81/83(10)/ 2010

and public entertainment license bearing no. "CP/NM/LB-1/4/2004"

though there is a typing error in respect of the number of the said license

in the impugned order.

7 Aggrieved by this order, the Petitioner filed an Appeal under Rule 35

of the Places of Public Entertainment Rules, 1971 framed by the

Commissioner of Police, Navi Mumbai under section 33 of the BP Act,

1951. The Principal Secretary (Appeal and Security) of the Home

Department of the Government of Maharashtra thereafter passed impugned

Judgment and Order dated 3.10.2011, Exh. J pages 133 to 135, and the

Appeal was dismissed on the ground that there was a breach of conditions

of license. Aggrieved by this orders, the present Writ Petition has been

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filed.

8 Mr. Kansara for the Petitioner advanced following submissions :

(a) that the impugned order of cancellation of the eating

house license is completely without jurisdiction since there was no

effective show cause notice for cancellation of the eating house

license and merely because the said show cause notice and the

reply referred the eating house license, it can not be construed that

the eating house license was also proposed to be cancelled and

hence the Petitioner did not deal with that aspect in the reply at all.

In other words, according to Mr. Kansara the impugned order of

the licensing Authority in so far as it cancels the eating house

license is entirely without jurisdiction as the same is passed in

breach of the Rules of natural justice.

(b) In respect of the cancellation of license for Public

Entertainment, it is submitted that this was the first ever breach of

the condition of the license which was honestly admitted and the

Petitioner has given honest assurance that henceforth only those lady

waitresses who had valid prescribed Nokarnama would be allowed

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to remain present in the establishment and the Petitioner would

ensure they did not indulge in any obscene or illegal activities.

(c) Once this assurance was given and in the absence of

any past history of the breaches by the Petitioner the punishment

of cancellation of the entertainment license was disproportionately

harsh.

9 Mr. Kansara had tendered an Affidavit of Balkrishna Shetty, duly

constituted attorney of the Petitioner wherein he has given undertaking

that he is ready to have license suspended till 31st March, 2012.

10 On the other hand Ms. Cardozo, AGP, submitted that since there

was an express admission of the Petitioner regarding events which took

place on 4.11.2010, the licensing Authority was justified in cancelling

both the licenses and was also justified in imposing punishment of

cancellation as on his own showing, the Petitioner misused the eating

house or a place of public entertainment. In so far as the submission of

Mr. Kansara, regarding proportionality of the punishment, she submitted

that the licensing Authority has discretion either to cancel the license

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or suspend and that there is valid exercise of discretion done by the

Licensing Authority. She further submitted that in fact there is past

history of suspension of the license for public entertainment for a period

of 5 days in September, 2009 which is reflected from the office file

available with her. She further fairly accepted that neither in the show

cause notice nor in the order of the licensing Authority there is any

reference to the past history of the Petitioner. In so far as the argument

regarding lack of notice in respect of the eating house license it was

submitted by Ms. Cardozo that the notice was a composite notice and in

that both the licenses were mentioned and the Petitioner had also

understood the contents of the notice to mean that it was for both the

licenses.

11 I have carefully considered the rival submissions and following

points are required to be decided :

(i) Whether show cause notice can be construed to be

sufficient notice to call for the Petitioner to show cause for

cancellation of even the eating house license under section 33 (xa)

of the Act ?.

(ii) Whether there was justification for cancellation of the

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eating house license?.

(iii) Whether there was justification for cancellation of the

license to keep of place of public entertainment and whether that

punishment is disproportionately harsh /severe.

12 In so far as Point No.(i) is concerned, Mr. Kansara is right in his

submission that though in the subject of the show cause notice both

licenses were mentioned but in the order of the show cause notice there is

no whisper about the eating house license and the show cause notice is

thus essentially a show cause notice for the purpose of cancellation of

the license to keep a place of public entertainment. Even otherwise there

is virtually no reason given by the licensing Authority or the Appellate

Authority as to why it was found necessary to cancel even the eating

house license when the eating house license under section 33 (xa) of the

Act is distinct and different than the license to keep public entertainment

which is issued under section 33(w) of the said Act. The license for

public entertainment is issued to run a eating house which is allowed to

serve liquor and other alcoholic drinks to its customers pursuant to the

license under the Rules framed under the Bombay Prohibition Act, 1949 .

These two licenses are, therefore, operating in different fields. There was

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thus no effective notice in respect of the action of the cancellation of the

eating house license and on that ground alone, I am satisfied that the

impugned order of the licensing Authority cancelling the eating house

license deserves to be quashed and set aside.

13 Thus Point Nos. 1 and 2 framed above will have to be answered in

favour of the Petitioner.

In so far as Point No.3 is concerned, though Ms. Cardozo submits

that there was past history of suspension of 5 days in the year September,

2009 neither the show cause notice nor the order of licensing Authority

reflects this. It is thus clear that this material was not considered by the

Licensing Authority itself nor has been considered by the Appellate

Authority. Hence, though I do not doubt the correctness of the statement

of the learned AGP Ms. Cardozo that cannot be made a ground for

supporting the order of cancellation of the license. The grounds for

judicial review of the administrative omission are well established and

proportionality is one of the grounds for judicial review. If the Licensing

Authority did not consider the earlier incident of September, 2009 as a

ground for proposed cancellation, that aspect will have to be ignored from

consideration. Once so ignored, it is clear that the licensing Authority

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had only one incident of breaches committed by the licensee. It is no

doubt true that the licensee had admitted the guilt and therefore, the

licensing Authority was justified in coming to the conclusion that some

coercive and punitive action needs to be taken against the licensee.

However, action of permanent cancellation of the license is too harsh

and that would permanently debar the Petitioner from serving alcoholic

drinks in his establishment. It is no doubt true that some punitive action

was required

to be taken but on the touch stone of doctrine of

proportionality the action of Licensing Authority does not pass a test of

reasonableness. The Petitioner has filed Affidavit-cum-undertaking

through his constituted attorney and Mr. Kansara states that a similar

Affidavit personally sworn by the Petitioner would also be filed within 10

days from today. The Petitioner has shown his willingness to have his

license suspended till 31.3.2012. In the absence of any past history, I

could have accepted this request of the Petitioner. However, since I do

not doubt the statement of Ms. Cardozo made at the Bar, though I am of

the opinion that the punishment of the cancellation of the license is

unduly and excessively harsh and disproportionate; in my opinion

interests of justice would be served if instead of cancellation of the license

of keeping place of public entertainment, the license is suspended for a

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period ending 15th May, 2012.

    15    Hence, I pass following order.




                                                      
          i)      Rule is made partly absolute.

          ii)       The impugned Judgment and order dated 30th June, 2010

passed by the Respondent No.2 Commissioner of Police, Navi

Mumbai in so far as it cancels the eating house license of the

Petitioner bearing No. 81/83(10) is quashed and set aside in its

entirety.

(iii) The said order dated 30th June, 2010 in so far as it cancels the

license to open/keep a place of public entertainment bearing

CP/NM/LB-1/4/2004 is also quashed and set aside and it is directed

that instead of cancellation, the said license to open /keep place of

public entertainment shall remain suspended till 15th May, 2011

subject to the condition that within a period of 10 days from today

the Petitioner files written undertaking of the Petitioner himself in

this court and also before the Commissioner of Police, Navi