Meena Satyakumar Gehi vs The Deputy Commissioner Of Police ...
2016 Latest Caselaw 568 Bom

    DSS                                                                           j-wp-3042-15 (OS)



                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      ORDINARY ORIGINAL CIVIL JURISDICTION




                                                                                     
                        WRIT PETITION NO. 3042 OF 2015  
                                           
            Meena Satyakumar Gehi                        .. Petitioner                             




                                                             
                  vs.
            The Deputy Commissioner of Police
            and anr.                                     .. Respondents
                   




                                                            
            Ms Veena Thadhani for the Petitioner.
            Mr. Shekhar Ingavale, AGP for Respondents. 

                             CORAM :  M. S. SONAK, J.

Date of Reserving the Judgment : 24 February 2016 Date of Pronouncing the Judgment :

                                    ig                                 14 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 5 March

2015 and 16 October 2015 made by the respondents suspending the

Premises Licence for having orchestra performance for a period of

thirty days in respect of 'M/s. Bulbul Bar and Restaurant' operated by

the petitioner.

3] Ms Thadhani, learned counsel for the petitioner, has submitted

that the first respondent, by impugned order dated 5 March 2015,

had suspended the Premises Licences for a period of sixty days. The

DSS j-wp-3042-15 (OS)

order dated 5 March 2015 was appealed by the petitioner to the

respondent No.2. The respondent No.2 by impugned order dated 16

October 2015 scaled down the suspension period to 30 thirty days,

but, proceeded to suspend the petitioner's Public Entertainment

Licence as well for a period of thirty days. Ms Thadhani submitted

that the appellate authority, clearly exceeded jurisdiction in

suspending the Public Entertainment Licence in the appeal instituted

against the order dated 5 March 2015, when in fact, the order dated

5 March 2015 had not even suspended the Public Entertainment

License for any period.

4] Since, there was prima-facie merit in the contention of

Ms Thadhani, the matter was adjourned from time to time to enable

the respondents to seek instructions on the aforesaid aspect. Finally,

on 23 February 2016, the respondents have issued a Corrigendum

and clarified that suspension of thirty days shall operate only to the

Premises License and not the Public Entertainment Licence.

Although, Ms Thadhani questioned the power of the respondents to

review its own orders, at least in the facts and circumstances of the

present case, there is neither any merit in such contention, nor has

the issuance of Corrigendum dated 23 February 2016, prejudiced the

DSS j-wp-3042-15 (OS)

petitioner. In fact, the main contention raised by the petitioner has

been upheld and the error which had crept into the order of the

appellate authority has been corrected. Strictly speaking, this is not

exercise of any review jurisdiction, but mere correction of a possibly

inadvertent error, which had crept into the impugned order dated 6

October 2015. Accordingly, the grievance with regard to suspension

of Public Entertainment Licence no longer survives, in view of

Corrigendum dated 23 February 2016 produced on record by the

respondents.

5] Ms Thadhani, learned counsel for the petitioner, has then

contended that the impugned orders to the extent they suspend the

Premises Licence for a period of thirty days are vitiated on several

counts. She submitted that in the impugned orders, reference has

been made to some additional material, which did not form a part of

the show cause notice issued to the petitioner. This according to Ms

Thadhani constitutes violation of principles of natural justice and

fair play. Further she submitted that the impugned orders have taken

into consideration the antecedents, not of the petitioner but of her

late husband and further, made reference to pending cases, which is

quite impermissible in the light of several decisions of this Court as

DSS j-wp-3042-15 (OS)

well as Circular dated 23 January 2009 issued by the State

Government, making it clear that the licences cannot be suspended

or cancelled merely on the ground of pendency of criminal cases.

Relying upon the decision in case of Allahbaksh Ismail Ebrahim Vs.

Commissioner of Police & ors. 1, Ms Thadhani submitted that in the

present case that there was no allegation of breach of public safety,

disturbance in the premises, obstruction, inconvenience, annoyance,

risk, danger of damage and in the absence of all these, the impugned

order which suspends the petitioner's Premises Licence for a period

of thirty days, is invalid and in any case, harsh and disproportionate.

6] Mr. Ingavale, learned AGP for the Respondents, has defended

the impugned orders, by submitting that there was no violation of

principles of natural justice and fair play in the making of the

impugned orders. Further, Mr. Ingavale submitted that reference to

pending cases is merely incidental and the impugned orders are on

the basis of independent material on record, which establishes

breaches. Mr. Ingavale submitted that the activities undertaken in

the Bar and Restaurant were indeed a source of annoyance,

inconvenience, risk and danger to the residents in the

neighbourhood. For all these reasons, he submitted that the 1 2004(1)ALLMR 677

DSS j-wp-3042-15 (OS)

impugned orders, by which only a minor penalty of suspension of

licence for a period of thirty days has been imposed, are legal, valid

and justified, in the facts and circumstances of the present case.

7] Upon due consideration of the submissions made by the

learned counsel for the parties and perusal of the material on record,

there is no case made out to interfere with the impugned orders. The

impugned orders have recorded concurrent findings of fact with

regard to breaches and there is no perversity demonstrated in the

record of such findings of fact.

8] There is no violation of principles of natural justice and fair

play. Both at the original as well as appellate stage, the petitioner

was afforded full opportunity to show cause, which opportunity, the

petitioner has duly availed. Mere circumstance that there was no

reference to the incident of 5 May 2013 in the show cause notice

dated 12 December 2014 issued to the petitioner, is not sufficient to

hold that some material, which did not form the subject matter of

notice has been taken into consideration by the respondents, without

afford of opportunity to the petitioner to explain such material. If

the order dated 5 March 2015, by which, the penalty of suspension

DSS j-wp-3042-15 (OS)

of sixty days was imposed on the petitioner, is perused, it is quite

clear that the petitioner was not only made aware that the effect of

the incident dated 5 May 2013 will be taken into consideration, but

further, the order records that the petitioner herself requested that

the effect of such incident be taken into consideration at the stage of

hearing. A clear statement to this effect has been recorded in the

impugned order dated 5 March 2015. There is no reason to

disbelieve such statement, particularly since any statement, as to

what transpired at the hearing, as recorded in the judgment of the

Court the conclusive of the fact so stated and it is impermissible for a

party to contradict the same by affidavit or other evidence. This is

clearly not a case where some additional material not reflected in

the initial show cause notice has been taken into consideration

whilst making the final order, without afford of opportunity to the

petitioner to submit her say in that regard. Such opportunity was

granted and has been availed by the petitioner. Therefore, there is

no merit in the challenge based upon violation of principles of

natural justice and fair play.

9] On perusal of the impugned order, it is quite clear that the

action in the present case is not based upon the mere pendency of

DSS j-wp-3042-15 (OS)

complaints or cases against the petitioner establishment. Therefore,

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

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

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, relied

upon by Ms Thadani are distinguishable.

10]

In fact, 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, 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

DSS j-wp-3042-15 (OS)

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

that breach must be established by cogent material. Mere allegations

in the show cause notice do not constitute a breach.

11] In this case, the two authorities, have concurrently recorded

findings of fact with regard to breaches committed by the petitioner

and as noted earlier, there is no perversity in the record of such

findings of fact, which warrant interference under Articles 226 and

227 of the Constitution of India.

12] In this case, the two authorities have recorded the findings of

fact that the petitioner was not even present at the establishment

and the establishment was being operated by some unauthorised

person. The two authorities have recorded the findings of fact that

the female employees were behaving indecently and were indulging

into indecent acts. There are findings of fact recorded that even the

entertainment programmes were not being undertaken in the space

demarcated for the purpose as per terms and conditions of the

licence. For all these reasons coupled with repeated breaches, the

two authorities have recorded the findings that the activities in the

establishment of the petitioner are occasioning inconvenience,

DSS j-wp-3042-15 (OS)

annoyance, risk and danger to the residents of the area or vicinity.

The predicates referred to in case of Allahbaksh Ismail Ebrahim

(supra), therefore, stand complied with.

13] The penalty imposed, is in fact, mild and there is nothing

disproportionate about the same.

14] For all the aforesaid reasons, there is no merit in this petition

and same is hereby dismissed. The interim order, if any, stands

vacated. There shall however, be no order as to costs.

(M. S. SONAK, J.)

15] At this stage, the learned counsel for the petitioner,

seeks for continuation of interim relief, which was already granted

for a period of eight weeks from today. Considering that the interim

relief was already in operation, same is extended by a period of eight

weeks from today, so as to enable the petitioner to seek redressal

against this judgment and order before the Hon'ble Supreme Court.

(M. S. SONAK, J.)