Kiran Eknath Bhoir vs The Commissioner Of Police Navi ...
2016 Latest Caselaw 240 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          CIVIL APPELLATE  JURISDICTION




                                                                                     
                          WRIT PETITION NO. 4300 OF 2015
                                           
            Mr. Kiran E. Bhoir                             .. Petitioner                          




                                                             
                  vs.
            The Commissioner of Police, 
            Navi Mumbai & anr.                             .. Respondents
                   




                                                            
            Ms Veena Thadhani for the Petitioner.
            Ms Vaishali Nimbalkar, AGP for Respondents.   

                             CORAM :  M. S. SONAK, J.

Date of Reserving the Judgment : 17 February 2016 Date of Pronouncing the Judgment :

                                    ig                                02 March 2016

            JUDGMENT :- 
             
                                  

1] Rule. With the consent of and at the request of learned

counsel for the parties, Rule is made returnable forthwith.

2] The challenge in this petition is to the orders dated 21 August

2014 and 1 April 2015 made by the Respondents cancelling the

Eating House Registration Certificate as well as Public Entertainment

Licence held by the Petitioner in relation to Hotel Kishore Bar and

Restaurant, Nerul, Navi Mumbai Thane .

3] The Petitioner, in paragraph '3' of the petition has averred that

the Petitioner possesses Eating House Registration Certificate No. 27

dated 13 December 1989 and Public Entertainment License dated 8

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April 2008 on the basis of which the Petitioner was conducting

business under the name and style of M/s. Hotel Kishore Bar and

Restaurant. The Petitioner has pleaded that Eating House

Registration Certificate and the Public Entertainment Licence has

been renewed upto 31 December 2013 and renewal applications for

further years are pending consideration before the Respondents.

The learned counsel for the Petitioner submits that there are

provisions under the said Act and the Rules made thereunder,

providing for deemed licence during the pendency of application for

renewal of licence term.

4] By the show cause notice dated 5 April 2014, the Petitioner

was called upon to show cause as to why the Petitioner's Public

Entertainment License should not be cancelled as, the Petitioner was,

prima-facie, found to have breached the provisions contained in Rule

33(3)(b) and Rule 33 (1) of the Public Entertainment Rules (Rules).

It was alleged in the show cause notice that the Petitioner has

breached the terms and conditions subject to which, the licensed had

been issued. In the show cause notice, it was alleged that the

Petitioner, employs bar girls, who indulged into indecent activities,

in breach of terms of the license. Further, it was alleged that on

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account of indecent activities taking place in the bar and restaurant,

the people in the neighbourhood suffer obstruction, inconvenience,

danger as well as fear. There was reference made to several non-

cognizable cases lodged against the Petitioner, on account of the

indecent behaviour and indecent dances, taking place in the

premises.

5] The Petitioner filed reply to the show cause notice denying the

charges leveled. The Petitioner pointed out that pendency of cases is

no ground to take action for cancellation of licence.

6] The Respondent No.1, after afford of opportunity of personal

hearing to the Petitioner, made order dated 21 August 2014

cancelling the Petitioner's Eating House Certificate Registration as

well as Public Entertainment Licence. In the order dated 21 August

2014 (incorrectly mentioned date as 21/8/2013). It is recorded that

the Petitioner, in the course of personal hearing, admitted charges

referred to in the show cause notice.

7] The Petitioner, instituted appeal to the Respondent No.2. In

the appeal, denied having admitted the charges referred to in the

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show cause notice, submitted that personal hearing before

Respondent No.1 was a mere formality and farce. Respondent No.2,

after afford of opportunity of hearing to the Petitioner, dismissed the

Petitioner's appeal by order dated 1 April 2015.

8] Ms Veena Thadhani, learned counsel for the Petitioner, at the

outset, has submitted that the petitioner had never admitted the

charges levelled in the show cause notice and therefore, the

impugned order made on the said basis is clearly ultra vires, illegal,

null and void. She submitted that it is settled position in law that the

licence cannot be cancelled merely on the ground of pendency of

some criminal cases against the Licencee. She relied upon several

judgments in support of this proposition, as also, Circular dated 23

January 2009 issued by the State Government, making it clear that

the licenses cannot be suspended or cancelled merely on the grounds

of pendency of criminal cases. Ms Thadhani further submitted that

in the present case, there was no independent or cogent evidence

with regard to breach of terms and conditions of the licence. She

pointed out that in the present case, there was no breach whatsoever

of Rules 33(1) and 33(3)(b) of the Rules and in absence thereof, the

Respondents were not entitled to exercise the powers conferred

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upon under Section 162 of the Bombay Police Act, 1951 (said Act).

She also pointed out that penalty imposed upon the Petitioner by

way of cancellation of licence was gross and disproportionate,

particularly since, in virtually similar situation, much lighter action

has been taken by the Respondents. She submitted that there was no

proper enquiry as contemplated by Rule 34(2) ever undertaken in

the matter. For all these reasons, she submitted that the impugned

orders are in breach of principles of natural justice and fair play,

based upon no legal, valid material and in any case unreasonable

and grossly disproportionate. She relied upon certain decisions to

which reference will be made in the course of this judgment and

order.

9] Ms Nimbalkar, learned AGP for the Respondents, defended the

impugned orders, by submitting that it is not open to a party to

challenge the statement in the order made by a quasi judicial

authority either before the Appeal Court or this Court without first

approaching the very authority to correct its recording. She

submitted that the statement in the impugned orders that the

Petitioner had admitted the charges levelled in the show cause

notice, has to be accepted as correct. Ms Nimbalkar further

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submitted that this is not a case where action has been taken on the

basis of pending cases. The reference to pending cases is merely

incidental and there is otherwise independent material on record to

establish the breaches. She submitted that the action taken is quite

proportionate to the charges established, particularly because the

indecent activities, which were going in the Petitioner's bar and

restaurant were a source of annoyance, inconvenience and even

danger to the residents of neighbourhood. For all these reasons, Ms

Nimbalkar submits that this petition be dismissed and the interim

reliefs be vacated.

10] Upon due consideration of the submissions made by the

learned counsel for the parties and perusing the material on record,

it is quite clear that action in the present case is not based upon the

mere pendency of complaints or cases against the Petitioner or the

Petitioner's establishment. No doubt, number of cases are quite

plenty, however, as has been held by this Court, mere pendency of

the cases cannot be the ground for cancellation of licence. Although,

reference was made by Ms Thadhani, number of decisions, including

the decisions in case of Kana N. Mhatre Vs. Assistant

Commissioner of Police, Navi Mumbai - 1996 (2) Mh.L.J. 1052,

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Girija T. Shetty Vs. The A.C.P. Wagle Estate, Div. Dist. Thane and

ors. - 1997(1) ALL MR 256, and Dilip J. Bhatia Vs. The

Commissioner of Police, Thane - 2001(1) Bom.C.R. 448, it will

suffice if reference is made to the decision in case of Padma N.

Kokarne (M/s. Pooja Bar & Restaurant) V/s. The Commissioner of

Police, Mumbai & anr. - Writ Petition No. 1181 of 2004 decided

on 17 June 2014.

11]

In case of Padma Kokarne (supra), the learned Single Judge of

this Court has clarified that the authorities are not justified in relying

upon the mere pendency of a criminal case to hold that there has

been a breach of the license conditions. However, in the same

decision, it has been clarified that even during the pendency of

criminal cases, the authorities are not foreclosed from proceeding

against the license holder for breach of the license conditions. The

action for breach of the license conditions under the Bombay Police

Act stands on a completely different footing from a criminal

prosecution for an offence against the penal law of the land. But

while it is open to the authorities to proceed against the licence

holder if there is a breach of the conditions governing the licence,

that breach must be established by cogent material. Mere allegations

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in the show cause notice does not constitute a breach.

12] As noted earlier, if the impugned orders are perused, it cannot

be said that the action is on the basis of mere pendency of criminal

cases against the Petitioner or the Petitioner's establishment. Apart

from the aspect of pendency, there is reference to other material,

which establishes that the Petitioner had engaged female employees,

who were behaving indecently or indulging into indecent dances,

thereby, not only breaching the provisions contained in Rule 33(1) of

the said Rules, but also occasioning obstruction, inconvenience,

annoyance, risk, danger or damage to the residents of the area in the

vicinity, thereby, breaching the provisions contained in Rule 33(3)

(b) of the said Rules. In such circumstances, there is no reason to

fault the findings of fact recorded by the two authorities

concurrently.

13] In the impugned order dated 21 August 2014, Respondent

No.1 has recorded that the Petitioner, in the course of personal

hearing virtually admitted the charges levelled in the show cause

notice. The record of quasi judicial authority, cannot, ordinarily be

questioned by instituting an appeal before the Appellate Authority. If

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at all, there is any mistake or inaccuracy in the record, the party

concerned is required to make appropriate application before the

very same authority and urge that such record be corrected. In this

case, the Petitioner has made no application before the Respondent

No.1 for correction of the record particularly to the extent, the

record indicates that the Petitioner accepted the charges levelled

against him in the show cause notice.

14]

The Hon'ble Supreme Court in the case of Ram Bali vs.

State of U.P. (2004) 10 SCC 598 has held that the statement of, as

to what transpired at the hearing, the record in the judgment of the

court is conclusive of the facts so stated and no one can contradict

such statement on affidavit or by other evidence. If a party thinks

that the happening in court has been erroneously recorded in a

judgment, it is incumbent upon the party, while the matter is still

afresh in the minds of the judges who have made the record, to

make necessary rectification. That is the only way to have the record

corrected.

15] In the case of State of Maharashtra vs. Ramdas Shrinivas

Nayak 1982 (2) SCC 463, the Hon'ble Supreme Court refused to

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launch an enquiry as to what transpired before the Court by

observing : 'It is simply not done. Public policy bars us. Judicial

decorum restrains us. Matters of judicial record are unquestionable.

They are not open to doubt. Judges cannot be dragged into the arena.

Judgments cannot be treated as mere counters in the game of

litigation. We are bound to accept the statement of the judges recorded

in their judgment, as to what transpired in courts. We cannot allow the

statement of the judges to be contradicted by statements at the Bar or

by affidavit and other evidence. If the judges say in their judgment that

something was done, said or before admitted before them, that has to

be the last word on the subject. The principle is well settled that

statements of fact as to what transpired at the hearing, recorded in the

judgment of the Court, are conclusive of the facts so stated and no one

can contradict such statements by affidavit or other evidence. If a party

thinks that the happenings in the court have been wrongly recorded in

the judgment, it is incumbent upon the party, while the matter is fresh

in the minds of the judges, to call the attention of the very judges who

have made the record to the fact that the statement made with regard

to his conduct was a statement that had been made in error. That is the

only method to have the record corrected. If no such step is taken, the

matter must necessarily end there. Of course, a party may resile and

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the appellate court may permit him in rare and appropriate cases to

resile from a concession on the ground that the concession was made

on a wrong appreciation of the law and had led to gross injustice; but,

he may not call in question the very fact of making concession as

recorded in the judgment.'

16] In this case, the impugned orders have been made upon due

compliance with principles of natural justice and fair play. In the

impugned orders, there is reference to the history, which is in the

facts and circumstances of the present case, are not altogether

irrelevant. In the reply filed, it is stated that total 59 cases were

registered against the Petitioner's establishment and further, even the

Eating Housing Registration had been suspended from 26 April 2002

to 25 May 2002, 28 September 2004 to 4 October 2004. Once again,

it is clarified that the action in the present case is not on the grounds

of mere pendency of cases against the Petitioner or Petitioner's

establishment. The reference to history is only for purposes of

emphasizing that even in the past, action has been taken against the

Petitioner, which is not altogether is an irrelevant circumstance. In

the year 1999, only one case was registered against the Petitioner.

The number however, increased to six in the year 2000, twelve in

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the year 2010 and finally twenty four in the year 2012. The fact that

repeated complaints came to be made against the Petitioner and

Petitioner's establishment, is sufficient to establish that there were

indeed indecent activities taking place in the Petitioner's bar and

restaurant, thereby occasioning inconvenience, annoyance and

danger to the residents of the vicinity. There is no case made out to

interfere with the impugned order upon such grounds.

17]

On the aspect of proportionality, however, there is some merit

in the contentions of Ms Thadhani, the learned counsel for the

Petitioner. There is some material brought on record to indicate that

in circumstances, which at least broadly appear to be similar,

licences were not cancelled but were suspended and in some cases,

even warnings issued. The material on record is however not

sufficient on the aspect of antecedents of such parties or the

mitigating circumstances, if any, that may have obtained in the said

cases. As noted earlier, the applications for renewal of licences are

pending before the Respondent no. 1. The Respondent no. 1 is

accordingly directed to take some suitable decision, both in the

matter of renewal, as also imposition of some penalty, now that it is

established that the Petitioner had indeed breached the terms and

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conditions of the licence as also, the provisions contained in Rules

33(3)(b) and 33(1) of the Rules. For this purpose, the Petitioner is

granted liberty to make representation to the Respondent no. 1

within a period of two weeks from today. In the representation, the

Petitioner is at liberty to make reference to cases and decisions, in

the context of proportionality of penalty. The representation as also

the application for renewal of licence to be disposed of within 12

weeks from today. During this period of 12 weeks or until necessary

decision is taken in the matter of renewal and imposition of penalty,

the interim order granted in this petition, to operate.

18] Rule is disposed of in the aforesaid terms. There shall be no

order as to costs.

(M. S. SONAK, J.)