Bombay High Court
Ramarai Rammilan Rai vs State Of Maharashtra on 23 November, 2011
Bench: G. S. Godbole
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7901 OF 2011
Ramarai Rammilan Rai ... Petitioner.
Owner of Missile Restaurant & Bar, situated at
Gate No.2, Bhagat Singh Road,
Goregaon (W), Mumbai- 400 104.
V/s.
1. State of Maharashtra
through the Office of Government Pleader,
Writ Cell High Court, A.S.Bombay.
2. Commissioner of Police, Gr. Mumbai,
Hotel Branch Mumbai.
3 Deputy Commissioner of Police,
H.Q.I (Licensing Authority), Hotel Branch,
Mumbai.
4. The Hon'ble Home Minister (State), Govt.
of Maharashtra, Mantralaya, Mumbai. ... Respondents.
5. Senior Inspector of Police,
Bangur Nagar Police Station,
---
Mr. P.S. Kansara i/by M/s. Kansara & Thanekar for the Petitioner.
Ms. P.S. Cardozo, AGP for Respondent Nos. 1 to 5.
---
CORAM:- G.S. GODBOLE, J.
DATED :- 23rd NOVEMBER, 2011.
ORAL JUDGMENT :
1 Rule. Rule is made returnable forthwith and heard finally by
consent of the parties. Ms. Cardozo, learned AGP waives service on behalf
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of the Respondents.
2 Heard Mr. Kansara for the Petitioner and Ms. Cardozo, AGP for the
Respondents.
3 The Petitioner claims to be one of the partners of the establishment
of an eating house known as "Missile Restaurant and Bar", Goregaon (W),
Mumbai. A license to keep a place of public entertainment has been
given to the Petitioner and one Yar Mohammad Kallan under Section 33(1)
(w) & (y) of the Bombay Police Act, 1951 subject to the Rules framed
under the said Act. In exercise of powers conferred by Section 33, the
Commissioner of Police, Mumbai has framed "Rules For Keeping Places
Of Public Entertainment in Greater Bombay, 1953" (hereinafter referred
to as the "said Rules" for short).
4 The place of eating house of the Petitioner was inspected at 23.05
hours on 12.11.2009 by the Senior Inspector of Police, Social Service
Branch, Mumbai and at that time it was found that in a hall situated on the
first floor, 13 lady waitresses were found making obscene gestures and
were in close physical contacts with customers. It was also found that the
customers were spraying and throwing Indian currency notes on the said
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lady waitresses. It was also found that neither the Petitioner nor his co-
licensee -Yar Mohammad Kallan were present in the establishment and
that the establishment was being run through the persons named -Ganesh
Bhoja Shetty, styled as a Manager and Sudarshan Vasant Hegde, working
as Cashier. In view of this two actions were taken. Vide C.R.No.
2337/2009 and 2349/2009 the Local Act Offences were registered under
Sections 110 and 117 of the Bombay Police Act, 1951; whereas Local Act
Offence
No. 2350/2009 and 2352/2009 was registered against the
Manager Ganesh Bhoja Shetty under Section 33(w) read with Section 131
of BP Act,1951 and CR No. 2351/2009 and 2353/2009 were registered
under Section 33(w) read with Section 131 of the BP Act, 1951 against
Cashier- Sudarshan Vasant Hegde.
5 It is pertinent to note that since the Petitioner and his co-licensee Yar
Mohammad Kallan were not present at the eating house, no offence of
whatsoever nature was registered against them. It is an undisputed
position that the said prosecution is still pending.
6 The second action which was taken was to submit a report to the
Licensing Authority. A detailed panchanama was prepared and the same
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has been signed by Sandesh Rajaram Desai and Abddul Majjid Abddul
Jabbar Siddiqui. A copy of the panchanama was immediately handed over
to Ganesh Bhoja Shetty (Manager) and Sudarshan Vasant Hegde (Cashier).
7 Since the prosecution registered under the BP Act,1951 and actions
for breach of license conditions are two independent actions, a show
cause notice was issued to the Petitioner and his co-licensee - Yar
Mohammad Kallan on 3.02.2010. The show cause notice gave complete
description of the inspection and called upon the Petitioner and his co-
licensee to show cause as to why punitive action should not be taken
against the Petitioner and his co-licensee by suspending the license for a
period of 90 days. The show cause notice specifically refers to the
violation of Rules 8(1), 8(2), 6, 21(a) and 24.
8 The Petitioner and his co-licensee sent a reply to the show cause
notice through Advocate. Paragraphs 2,3 and 4 of the said reply are of
some relevance. It was contended in paragraph 3 that the show cause
notice is premature and is in violation of undertaking given by the
Licensing Authority in this court in the case of Hotel Priya Restaurant
and Bar vs. State of Maharashtra. The relevant portion reads thus :
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"In the said undertaking you have undertaken that you will
not take any action on the ground of pending cases and as
seen from the said show cause notice you have based the
said show cause notice on the ground of pending case and
you have alleged against our client having committed
breach of the Entertainment Rules, 1953."
Other judgment of this court in the case of Dilip J. Bhatia was also relied
upon. In paragraph 3, it was stated that the copy of the FIR, Panchanama
and other relevant material has not been furnished alongwith the show
cause notice. It was further stated that since the criminal cases were
pending, no action for suspension of the license can be taken. In para -4
it was stated thus :
"4. As regards breach of Rule 8(1) and 8(2) our client
states and submits that the person who is named as Manager
is the employee working in the establishment of our client
and he is holding the valid naukarnama and h is name also
appears in the wage cum muster roll. Our client also sttes
that on 12.11.2009 our client being the licensee was
personally present on the said date, but for the reasons best
known to the Officer, he has not taken any action against out
client and has registered the case against one Shri Ganesh
Shetty who was sitting at the cash counter. Our client
therefore submits that there is no breach of Rule 8(1) as our
client was personally present on the said date. As regards
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breach of Rule 8(2) our client states that he has not
appointed any person as Manager and therefore, he is not
supposed to furnish the specimen signature of the said
person. In view thereof, there is no breach of Rule 8(1) and
8(2)."
9 It is an admitted position that the copy of the Panchanama and the
copy of the Local Act Crimes Register was furnished to the Petitioner by
covering letter dated 01.01.2011 received by the Petitioner on 04.01.2011.
In fact Mr. Kansara has handed over the photocopies of the said
documents during the course of the argument. When these documents
were furnished, no grievance of whatsoever nature was made by the
Petitioner that all the requisite documents have not been furnished. No
further reply was filed by the Petitioner. A personal hearing was fixed
by the Licensing Authority and on 07.03.2011, the Petitioner was heard
in-person. Thereafter, the Licensing Authority passed the impugned
Order (Exh.D, pages 57-62) dated 10.03.2011 and the license was
suspended for a period of 60 days. Aggrieved by this order, the
Petitioner filed an Appeal under Rule 28 of the said Rules. By the
impugned Judgment and Order dated 02.09.2011, the Hon'ble Minister for
Home Affairs, Government of Maharashtra has dismissed the said Appeal.
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10 Mr. Kansara for the Petitioner advanced following submissions :
(a) The Petitioner or his co-licensee have not been
prosecuted and they have not committed any offence and that the
criminal prosecution under Section 110,117 and 33 of the Bombay
Police Act, 1951 is pending and hence, facts or the incidents which
led to the filing of such criminal proceedings cannot be made
foundation for action of suspension of license.
(b) A strong reliance was placed on the Judgment of the
learned single Judge (S.C.Dharmadhikari, J.) in the case of Abdul
Rashid Mohammed (M/s. Hotel Star Night) Vs. The
Commissioner of Police Greater Mumbai & Anr. in Writ
Petition No. 9341 of 2010 delivered on 9th June, 2011 and it was
contended that the ratio of the said Judgment is applicable to the
facts of this case. A very strong reliance was also placed on the
Judgment of V.C.Daga, J. in Writ Petition No. 6178 of 2008 in the
case of Sadanand A. Shetty vs. State of Maharashtra & Ors.
delivered on 26th September, 2008 and the undertaking filed by the
Deputy Commissioner of Police (H.Q-1), Mumbai in the said Writ
Petition. It was contended that the passing of the impugned order
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was clearly violative of the said undertaking.
(c) It was submitted that though the Petitioner was
factually present in the establishment on 12.11.2009 his presence
was deliberately not noted in the Panchanama. Based on this, it was
submitted that there was no violation of Rules 8(1) and 8(2).
(d) It was alternatively submitted that in any case since
the Petitioner had duly appointed Mr. Ganesh Shetty as Manager
by executing the Nokarnama, which was endorsed by the
Authorities under the Bombay Prohibition Act, 1949, there was no
need to have a separate endorsement from the police authorities and
hence, Rules 8(1) & 8(2) were not violated at all. Rule 6 and Rule
21-A were also not violated and unless pending criminal cases
were decided, these Rules could not have been relied upon.
(e) It was also submitted that unless and until the
establishment of eating house was having license for the liquior or
other intoxicating substances under the provisions of the Bombay
Prohibition Act, 1949 or the Rules framed thereunder, no license
either for Class 'A' or Class 'B' can be issued under the 1953 Rules
framed by the Commissioner of Police. It was further submitted
that hence, once Nokarnama was duly endorsed by the Authorities
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under the Bombay Prohibition Act, there was no requirement of
having the Nokarnama endorsed under Rule 8 from the Police
Authorities.
11 On the other hand, Ms. Cardozo, learned AGP advanced the
submissions that as the Petitioner or his co-licensee were absent at the
time of inspection, the action of suspension of license is not taken and the
criminal cases may be pending but it is an independent action since
neither the Petitioner nor a co-licensee are accused in any of the criminal
cases. Mere Nokarnama endorsed by the Authorities under the Bombay
Prohibition Act, 1949 cannot be a substitution for an appropriate
proceedings being followed as contemplated by Rule 8. Rule 8
contemplates for endorsement. That endorsement shall be made on the
licensee from the concerned Licensing Authority and since admittedly
there is no such endorsement made in the present case, violation of
Rules 8 (1) & 8(2) is duly established. It was the Petitioner and his co-
licensee who were not present and a false reply has been given,
contending that the Petitioner was present but he was not shown present
in the Panchanama. She submitted that if the Petitioner had really been
present and if his name had really not been shown in the Panchanama,
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nothing prevented the Petitioner from sending a representation to the
concerned Police Officer or to the Licensing Authority that though he was
present, he was deliberately shown absent.
12 She further submitted that the criminal prosecution and the action
for breach of Rule are two independent and different actions, that there is
no breach of the undertaking filed in W.P. 6178 of 2008 and that the
undertaking has been duly complied since the show cause notice clearly
reflects that the action proposed to be taken is for breach of Rules and
the terms and conditions of the license and that is independent of the
criminal prosecution. It was submitted that since no prosecution is
pending against the Petitioner there is no breach of para 5 of the
undertaking. Dealing with the Judgment of S.C.Dharmadhikari, J. in the
case of Abdul Rashid Mohammed (supra) it was submitted that the ratio
of that Judgment is not applicable to the facts of this case since from a
reading of the said Judgment, it is clear that the show cause notice did not
clearly refer to the violation of Rules 8(1) and 8(2).
13 I have considered the rival submissions. It is necessary to note down
the relevant provisions of the Bombay Police Act, 1951 and 1953 Rules
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framed by the Commissioner of Police, Mumbai. The relevant provisions
are Sections 2(5A): Eating House, 2(10) : "Place of public entertainment" ,
Section 33(1)(w),(y),(xa) and Sections 110, 117, 131 and 162 of the BP
Act, 1951 and Rules 1,2,3,6,8,21, 21-A, 24 and 27 of the Rules framed by
the Commissioner of Police under Section 33 of the Bombay Police Act,
1951. The same read as under :
(a)
"2(5A) "eating- house" means any place to which the
public are admitted, and where any kind of food or drink is supplied
for consumption on the premises by any person owning or having an
interest in or managing such place, and includes a refreshment-
room, boarding-house, coffee- house or a shop where any kind of
food or drink is supplied to the public for consumption in or near
such shop but does not inc1ude "a place of public
entertainment."]
(b) 2(10) "place of public entertainment" means a lodging-
house. boarding and lodging- house or residential hotel, and
includes any eating- house in which any kind of liquor or
intoxicating drug is supplied (such as a tavern, a wine shop, a beer
shop or spirit, arrack, toddy, ganja, bhang or opium shop) to the
public for consumption in or near such place ;]
(c) Chapter IV contains Police Regulations and Section 33
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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:
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 Clauses [(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, including granting a
certificate of registration in each case, which shall be deemed to
be a written permission required and obtained under this Act for
keeping the eating-house, and annual renewal of such
registration within a prescribed period;
(y) prescribing the procedure in accordance with which any
license or permission sought to be obtained or required under
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this Act should be applied for and fixing the fees to be charged for
any such license or permission:
(d) "S. 110. Behaving indecently in public. No person
shall willfully and indecently expose his person ill 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 disorderly manner in a street or
place of public resort or in any office station or station house.
(e) S.117. Penalties for offenders under Secs. 99 to 116.
Any person who contravenes any of the provisions of Secs. 99 to
116 (both inclusive) shall, on conviction, be punished with fine
which may extend to [twelve hundred rupees].
(f) S. 131. Penalty for contravening rules, etc., under
Sec. 33.
[Save as provided in Sec. 131-A, whoever]-
(a) contravenes any rules or order made under Sec. 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]-
(i) if the rule or order under which the said licence
was issued was made under Cls. (b), (g), (h), (i), sub-
clauses (i) and (ii) of Cl. (r) or C1. (u) of sub-section (1) of
Sec. 33, with imprisonment for a term, which may
extend to eight days or with fine which may extend to [ one
thousand two hundred fifty rupees] or with both;
[(ia) if the rule or order under which the said licence
was issued was made under sub-clause (iii) of clause (r) of
section 33, with imprisonment for a term, which may
extend to three months or with fine which may extend to two
thousand rupees or with both.]
(ii) if the rule or order contravened was made under
Cl. [(wb) or wx] of sub-section (1) of Sec. 33, with
imprisonment for a term which may extend to three months
or with fine which may extend to [twelve thousand five
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hundred rupees] or with both;
(iii) if the rule or order contravened or the rule or
order under which the said licence was issued was made
under Cls. (n) and (o) of sub-section (1) of Sec. 33 with fine
which may extend to [five thousand rupees;
(iv) if the rule or order contravened was made under
Cl. (b) of sub-section (1) of Sec. 33 and prohibits the sale or
exposure for sale of any goods on any street or portion thereof
so as to cause obstruction to traffic or inconvenience to the
public-
(a) for the first offence with imprisonment for
a term which may extend to one month or
with fine which may extend to two thousand five
hundred rupees] or with both, and
(b) for a subsequent offence with imprisonment
for a term which may extend to six months and with
fine which may extend to five hundred rupees; and
(v) if the rule or order contravened or the rule or order
under which the said licence was issued [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 fifty hundred
rupees].
(g) 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
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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.
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. "
(h) Rules framed by the Commissioner of Police
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namely Rules for Keeping Places of Public Entertainment in
Greater Bombay. Rules 1,2,3, 6, 8 and 21(A), 24 and 27
which read thus:
"1. Places of public entertainment shall, for the purpose of
regulation under the Bombay Police Act, 1951, be classified
under class 'A' and Class 'B'
Class 'A' shall comprise every place of public entertainment
in which is sold liquor, today, or any intoxication as is defined
in the Bombay Prohibition Act, 1949.
Class 'B' shall comprise every place of public
entertainment not comprised in Class 'A'..
2. No person shall open or keep a place of public
entertainment of class 'A' or class 'B' without having previously
obtained a licence from the Commissioner of Police.
3. No licence to keep a place of public entertainment of
class 'A' shall be granted by the Commissioner of Police unless
the applicant has previously obtained and produced to the
Commissioner of Police, a licence granted for the same under
the Bombay Prohibition Act, 1949 for the time being in force
in Greater Bombay.
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
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Establishments Act, 1948, and the rules made
thereunder"
8. (1) Change in old Rules vide Notification No.
24688/123-F/58 dated 18.12.58. 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 licence unless, the agent
affixes his signature or if he is illiterate, his left
thumb impressing on the licence 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.
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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"
21-A. Addition vide Notification No. 640/23-E
dated 16.3.1992. 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"
24. Every person keeping a place of public
entertainment shall conduct his or her
occupation or business in such place in an
orderly manner.
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
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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 hold the licence or in order to
prevent any obstruction, inconvenience,
annoyance, risk, danger or damage to
residents or passer by 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."
14 It is necessary to deal with submissions of Mr. Kansara that the
impugned order is in breach of the undertaking given to this Court. This
submission has no substance. The order dated 26th September, 2008
passed by V.C.Daga,J. in Writ Petition No. 6178/2008 in the case of
Sadanand A. Shetty (Supra) reads thus :
"P.C.: . The undertaking given by Shri
Vijaysinh Jadhav, Deputy Commissioner of Police
(H.Q.-1), Mumbai vide his affidavit dated 26th September,
2008 is taken on record. He is put on notice that failure
on his part to comply with the orders of this Court in
future would entail action for contempt of court.
2. At this stage, learned counsel for the
petitioner makes a statement that the petitioner would not
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make any grievance with respect to the closure
suffered by him for a period of 45 days.
3. In view of the above, after hearing both
parties, by consent of parties without recording
reasons both impugned orders are quashed and set
aside. Petition is allowed. No order as to costs.
(V.C.DAGA, J.) "
The relevant portion of paragraph 3 to 5 of the undertaking read thus :
"3.
I say that from the show cause notice at Exhibit-B one
gets an impression and rightly so, that the action against the
Petitioner in this matter was initiated just because prosecution
is pending against him.
4. I most respectfully submit that the Police Authorities can
take action for suspension or cancellation of licences for
breach of conditions of licences or the rules applicable. This
action is independent of the Criminal Prosecution. I
respectfully agree that the show cause notice must reflect that
the action proposed to be taken is for breach of rules and
terms and conditions of licences and that is independent of the
Criminal Prosecution.
5. I undertake not to initiate any action against any licence
holder only because Criminal Prosecution is pending against
him. Henceforth, the show cause notice shall specifically
reflect that the action proposed to be taken is for alleged
violation of licensing conditions and rules. The documents
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constituting the record of the Criminal Prosecution shall be
relied upon only as a material for the purpose of establishing
the alleged breach. The show cause notices issued henceforth
would specify that the action is proposed to be taken against
the licence holder on the basis of material available with the
department (including the record of Criminal Prosecution) for
breach of the Rules and the terms and conditions of licences."
Once this undertaking is considered in juxtaposition with the facts of
the present case it is clear that the Licensing Authority has clearly followed
the order passed by the Justice V.C. Daga and the statement made in the
undertaking. In the present case, the show cause notice is not at all based
on the criminal prosecution, since there was no prosecution pending against
the Petitioner or his co-licensee. The show cause notice clearly reflects
that the action proposed to be taken is for breach of the Rules and the
Terms and Conditions of the license and pending the criminal prosecution.
In the present case, no criminal prosecution is pending against the
Petitioner or his co-licensee and hence, there is no question of breach of
any undertaking. This submission of Mr. Kansara has to be therefore, and
is hereby rejected.
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16 The next submission of Mr. Kansara that the impugned order
is contrary to the ratio in the case of Abdul Rashid Mohammed, (supra)
decided by S.C.Dharmadhikari, J. is also devoid of any substance. This
will be clear from the reading of paragraphs 3 and 4 of the Judgment
which reads thus :
"3. The contention raised before me by Ms.Thadani in
support of her submissions is that the law has been
making a distinction inasmuch as the cancellation and
suspension for breach of violation of terms and
conditions of the licences is permissible, but, when such
breach and violation is interlinked with an act which is
the subject matter of a pending criminal case, then, the
licence cannot be suspended or cancelled. In other
words, if the incident is made subject matter of a show-
cause notice to cancel or suspend the licence and at the
same time a criminal case is also filed then till the
pendency of the criminal case that incident cannot be
made a foundation of the impugned action. That apart,
she submits that assuming this is permissible in law, yet,
in this case what has been held is that the ladies, nine in
number, were working as women waitresses.
However, these ladies were not employees of the
petitioner establishment. If these ladies are found at the
establishment beyond stipulated hours and which act or
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incident is subject matter of a pending criminal case
then that would not have in any event be made a ground
for suspension of the licence.
4. With the assistance of the learned Counsel
appearing for the petitioner and the learned AGP, I have
carefully perused the order which suspends the
petitioner's licence for 15 days. That order passed by the
licensing authority and confirmed by the appellate
authority specifically holds that the suspension is
effected for violation of rule 8(1) and 8(2) of the
applicable rules. The licensing authority has not
adverted to the aspects that have been highlighted
before me by Ms.Cardozo and which are also pointed
out on the affidavit filed in this petition in Court. If
indeed the suspension was permissible for violation of
the terms and conditions of the licence which mandates
strict adherence to the provisions of Bombay Shops and
Establishments Act, 1948 and also require maintainance
of law and order so also avoiding indecent and vulgar
acts by anybody concerned with the establishment, then,
that should have been properly spelt out and cogent
reasons ought to have been assigned to support such
conclusion. If the allegations in the show cause notice
are perused in the light of the conclusions drawn, then,
the suspension is effected not on this ground but for
violation of Rule 8(1) and (2) of the Rules. Now, the
action is supported on other grounds. Therefore there is
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no alternative but to quash and set aside both the orders
which are impugned in this petition."
17 The ratio of the said Judgment has no application to the facts of the
present case. In the present case, the provisions of Rule 8(1) have been
clearly relied upon in the show cause notice. Only defence of the
Petitioner is that there is endorsement on the Nokarnama by the
Authorities under the Bombay Prohibition Act. Mr. Kansara fairly
admitted that the Nokarnama has no endorsement of the Licensing
Authority as contemplated by Rule 8 of the 1953 Rules framed under the
Bombay Police Act, 1951. The ratio of the Judgment in the case of
Abdul Rashid Mohammed (supra) has, therefore, no application to this
case.
18 The next submission of Mr.Kansara that unless and until the Eating
House has a license issued for serving of liquor and other intoxicating
substances under the provisions of the Bombay Prohibition Act, 1949,
the said Eating House cannot be given a license for public entertainment
under section 33 (x) of the 1951 Act is also devoid of substance. I have
also extracted Rules 1 to 3 of the 1953 Rules. In fact the definition of "a
place of public entertainment" under section 2(10) clearly shows that even
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lodging-house, a boarding and lodging house or residential hotel is also
included within the definition of "place of public entertainment". The
said definition includes "eating house" in which any kind of liquor or
intoxicating drug is supplied to the public for consumption in or near such
place. If a place of public entertainment holds a license under the
Bombay Prohibition Act, 1949, such an establishment is given Class 'A'
license; whereas an establishment which is not having license under the
Bombay Prohibition Act, 1949, is given Class 'B' license but it is not a
necessary pre-requisite that for getting a license to keep a place of public
entertainment as defined in section 2(10) of the 1951 Act, the owner of
the establishment must necessarily have a license to serve liquor and
other intoxicating substances under the Bombay Prohibition Act, 1949.
19 The next submission of Mr. Kansara that the Petitioner was in fact
present in the establishment but was deliberately not shown to be
present is also devoid of any substance. If the Petitioner had really been
present and if his name was not shown in the Panchanama nothing
prevented the Petitioner from immediately informing the Licensing
Authority or the concerned Police Officer who had prepared the
Panchanama in writing after the inspection on the next date or soon
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thereafter that his presence was deliberately not shown. Apart from this
Ganesh Shetty and Hegde who are working as Manager and Cashier
respectively of the Petitioner, as can be seen from the reply to the show
cause notice, have also been given copies of the Panchanama and they
have singed in token of the receipt of such copies. They could have made
an endorsement on the Panchanama that the Petitioner was present but
was deliberately not shown present. From all these facts, it is clear that
contention of the Petitioner in paragraph 4 of the reply to the show cause
notice, whereby the Petitioner has claimed that he was present but was
deliberately shown absent is completely wrong, false and is an after
thought and has been rightly ignored by the Licensing Authority and the
Appellate Authority. Even this submission of Mr. Kansara has no merit.
Violation of Rule 8(1) and 8(2) is thus clearly established.
20 It was further submitted that all the documents relied upon by the
Licensing Authority were not furnished to the Petitioner. Reliance is
placed in this regard on the Judgment of the learned single Judge (Coram:
F.I.Rebello, J.) in Writ Petition No. 3207 of 2004 in the case of Dilip
Vasant Shinde vs. State of Maharashtra & Ors. The reliance placed on
the ratio of the said case is of no assistance to the Petitioner in the present
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case.
21 It is contended that another undertaking given in the case of Hotel
Uma Palace vs. State of Maharasthra in Writ Petition No. 1819 of 2010
has also been breached.
22 I have considered these submissions. In so far as the present case is
concerned, the Petitioner had demanded the documents by making the
averments in his reply, as noted above, alongwith the covering letter dated
1.1.2011. The requisite documents were furnished. No grievance was
made by the Petitioner thereafter till passing of the impugned order. No
written communication is sent to the Licensing Authority. In fact, the fact
that Manager -Shri Shetty and Cashier- Shri Hegde were present in the
premises is admitted by the Petitioner which is clear on a minute reading
of his reply to the show cause notice. The Licensing Authority has relied
on the Panchanama, copy of which has been admittedly furnished to the
Petitioner. Hence, facts of this case are clearly distinguishable from the
facts in Writ Petition No. 3207/ 2004. Further the contention regarding
breach of the undertaking given to the court in the case of Hotel Uma
Palace is also not proper. In that case, the Petitioner had sought
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documents which were not given. The panchanama and other documents
which were available in that case were not given and in fact on
account of non-production of the Panchanama, the criminal proceedings
had resulted in acquittal. It is thus clear that the Judgment of the learned
singe Judge of this Court (Coram : S.J.Kathawala, J.) in the case of M/s.
Hotel Uma Palace has no application to the facts of this case.
The last submission of Mr. Kansara that the impugned action is based
on the criminal prosecution is also devoid of any substance. In the first
place, neither the Petitioner nor his co-licensee are prosecuted. The
persons who are prosecuted are the Manager and the Cashier of the
Petitioner and the waitress who were found to be making obscene gestures
and being in close physical contact with the customers. The Licensing
Authority is conscious of the fact that the prosecution for criminal action
and punitive action of suspension of licence are two different things and
pendency of the criminal proceedings have not been relied upon by the
Licensing Authority as a ground for punitive action for suspension of
licence for 60 days. It fact it is necessary to make note that in the show
cause notice the Licensing Authority had proposed suspension of licence
for 90 days but in the impugned order the licence is suspended only for 60
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days which exhibits a conscious application of mind on the part of the
Licensing Authority. Hence, there is no merit in any of the submissions
advanced by Mr. Kansara. No other submission was advanced before me.
The Licensing Authority acted within its jurisdiction under Rule 27 of the
1953 Rules read with Section 162 of the Act. The discretion conferred on
the Licensing Authority is validly exercised. The Appellate Authority has
independently considered the entire case including the facts of the case
and has concurred with the decision of the Licensing Authority. Rules of
natural justice have been fully followed. There is no perversity in the
finding recorded by the Licensing Authority and confirmed by the
Appellate Authority.
24 For all these reasons, in my opinion, no case is made out for
interference in the extra-ordinary jurisdiction of this Court under Articles
226 and 227 of the Constitution of India. There is no merit in the Writ
Petition and the same deserves to be dismissed. It is accordingly
dismissed. Rule is discharged with no order as to costs. The earlier ad-
interim orders stand vacated.
25 As this stage Mr. Kansara makes an oral request for staying this
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order i.e. for staying the order of suspension for a period of four weeks.
Since I have come to the conclusion that there is a clear breach of Rule
8(1) and 8(2) as also there is a breach of Rule 6 and 21-A and in view of
the fact that the Licensing Authority and the Appellate Authority have
concurrently passed orders against the Petitioner and since the impugned
order does not cancel the License of the Petitioner, the prayer for stay is
rejected.
ig (G.S.GODBOLE,J.)
