Sanjaykumar Kashinath Jaiswal vs Stata Of Mah & Ors
2016 Latest Caselaw 5875 Bom

                                       1               CRI WP 251.2005.odt

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD




                                                                          
                 CRIMINAL WRIT PETITION NO. 251 OF 2005




                                                  
         Sanjaykumar S/o Kashinath Jaiswal,
         Age. 41 years, Occu. Business,




                                                 
         R/o. Sy. No. 54/2, Plot No. 2, 
         Datta Mandir Chowk, Agra Road,
         Deopur, Dhule, Tq. & Dist. Dhule.    ... Petitioner...

                 VERSUS




                                      
         1.      The State of Maharashtra
                             
         2.      Divisional Commissioner, Nashik
                 Division, Nashik
                            
         3.  District Magistrate, Dhule,
             Tq. & Dist. Dhule.                 ...Respondents...
                                    ...
      

              Advocate for Petitioner : Mr C R Deshpande 
                 APP for Respondents: Mr P G Borade
   



                                    ...
                       CORAM : V.K. JADHAV, J.

Dated: October 06, 2016 ...

ORAL JUDGMENT :-

1. Being aggrieved by the order dated 31.7.2004

passed by the Additional District Magistrate, Dhule and

order dated 24.5.2005 passed by the Divisional

Commissioner, Nashik Division, Nashik thereby

confirming the order passed by the Additional District

Magistrate, the petitioner preferred this Writ Petition.

2 CRI WP 251.2005.odt

2. Brief facts, giving rise to the present writ petition

are as follows :-

The petitioner is running one restaurant/eating

house at Dhule named and styled as 'Sneha Restaurant

and Eating house'. The petitioner has been issued

license for the said restaurant by the licensing authority

from the Department of food and drug Administration,

Dhule and the same has been renewed from time to time

till 31.12.2006. On the basis of the said license, the

petitioner has started his business of eating house on

plot No.2, Datta Mandir Chowk, Dhule. Said eating

house has been registered with the District Magistrate,

Dhule as required by the provisions of the Bombay

Police Act. Certificate of registration dated 29.9.2001

has been issued by the Additional District Magistrate,

Dhule and said certificate has been renewed up to

1.1.2002. Though, the petitioner had applied for

renewal of the license, but it was not renewed. On

13.6.2002 respondent no.3 had issued one notice to the

petitioner contending therein that, in Azad Nagar police

station Crime no.181/1987 has been registered against

the petitioner for the offence punishable under section

3 CRI WP 251.2005.odt

341, 448 of the Indian Penal Code and a criminal case

is still pending. Thus, the petitioner was called upon to

show cause as to why his certificate of registration

should not be cancelled. The petitioner had submitted

his reply to the said notice. By order dated 16.8.2002

respondent No.3, the District Magistrate Dhule

cancelled the licence bearing No.13/2001 issued in

favour of the petitioner. Being aggrieved by the same,

the petitioner had preferred an appeal No.17/2002 and

by order dated 29.7.2003 the learned Divisional

Commissioner, Nashik Division, Nashik pleased to allow

the said appeal partly and the case has been remitted

back to the District Magistrate, Dhule for making a

fresh inquiry and to pass appropriate order. After

remand of the case, the Additional District Magistrate by

order dated 31.7.2004 confirmed the order dated

16.8.2002 passed earlier. Being aggrieved by the same,

the petitioner again approached to the Divisional

commissioner, Nashik by filing an appeal No.19/2004.

By order dated 24.5.2005 the learned Divisional

Commissioner, Nashik Division, Nashik dismissed the

said appeal. Hence, this Criminal Writ Petition.

4 CRI WP 251.2005.odt

3. The learned counsel for the petitioner submits

that, the Superintendent of Police, Dhule by his report

dated 24.1.2001 and 12.3.2001 has given no objection

for issuance of the license for eating house and as such

on 29.9.2001 registration certificate has been issued to

the petitioner. The detail inquiry about feasibility of

said eating house and maintenance of the law and order

was considered at that time. As regards to crime

no.181/1987 numbered as STCC No.5692/1987 is

concerned, same has been disposed of as compounded

and accordingly, the accused therein came to be

acquitted. The learned counsel submits that in a show

cause notice dated 13.6.2002, crime no.181/1987 and

crime No.38/1997 were only referred. So far as crime

No.181/1987 is concerned, as stated earlier, same came

to be disposed off on 17.2.1997 i.e. much prior to the

eating licence granted in favour of the petitioner. So far

as crime No.38/1997 which was numbered before the

Judicial Magistrate First Class, Dhule as RCC

No.51/1997, present petitioner was not an accused in

the said case and said case also disposed off in the

December, 1998 and the learned Magistrate has

5 CRI WP 251.2005.odt

acquitted all the accused persons named in the said

case. Learned counsel submits that, after remand, the

learned District Magistrate has considered crime

No.18/2003 and one another crime no.23/2004

allegedly registered against the present petitioner.

Learned counsel submits that, those crimes were not

referred in earlier show cause notice or there is no

question of referring those crimes in the earlier show

cause notice and for the first time, while passing the

impugned order dated 31.7.2004 the learned Magistrate

has considered the said registration of the crime.

Learned counsel submits that, even the learned District

Magistrate has not bothered to give an opportunity to

the petitioner to explain about those registration of the

crime. The approach of the learned District Magistrate,

Dhule is incorrect, improper and illegal and the learned

Additional Commissioner has also committed an error of

law while confirming the said order. The learned

counsel submits that, at present, said area is

surrounded by eating houses, other hotels and business

place and the conditions as exists at the time of

issuance of the show cause notice has now been

6 CRI WP 251.2005.odt

considerably changed.

4. The learned APP submits that, after remand the

learned District Magistrate has considered the

registration of crime against the present petitioners and

observed that, said eating house is situated in the

crowdy area within a distance of 30 meters from the

traffic signal. It has also observed in the report that

petitioner is having a criminal tendency and, if, such a

person is permitted to run a eating house in the said

sensitive area, that would create law and order problem.

Learned APP submits that, in view of the above the

learned District Magistrate had rightly cancelled the

license issued in favour of the petitioner in respect of his

"Sneha Restaurant and eating house" and said order is

accordingly confirmed in the appeal.

5. In response to the query made by this Court, one

Shri Dattatraya Eknath Shejul Tahsildar, (Revenue), in

the office of the Collector, Dhule has filed his affidavit-in

-reply on behalf of respondent no.3 and pointed out that

the Home department had issued a letter dated

7 CRI WP 251.2005.odt

22.12.2015 whereby license required for conducting the

business of eating house, Eating House Registration

Certificate alongwith other license had been repealed.

He has further pointed out that District Magistrate,

Dhule issued a notification dated 22.3.2016 in

consonance with a letter issued by the Jt. Secretary

Home Department. It is thus stated in the affidavit that

the issue regarding license of Eating House of Sneha

Restaurant of the petitioner was terminated on

16.8.2002 and as per the recent development in District

Dhule, the District Magistrate, Dhule has no right to

issue any license at any place in the premises of Dhule

for such type of Eating House.

6. On careful perusal of the order passed by the

learned District Magistrate, Dhule after remand, it

appears that, the learned Magistrate has considered the

Crime no.181/1987 and further Crime No.38/1997. It is

also mentioned in the impugned order that said crime

No.181/1987 which subsequently registered as Criminal

Case No.5692/1987 before the Magistrate, came to be

compounded and accordingly the petitioner was

8 CRI WP 251.2005.odt

acquitted way back in the year 1997 in terms of the

said compounding of an offence. Furthermore, so far as

crime No.38/1997 which is numbered as RCC

No.51/1997 before the Magistrate Dhule is concerned,

on perusal of the copy of the judgment delivered on

21.12.1998 in the said case, I find that present petitioner

was not impleaded as an accused. Even he is not

named as a witness in that case. Even in the said case

also learned Magistrate has acquitted the accused nos.

1 to 5, by judgment and order dated 21.12.1998. Thus,

in any way those two cases were not helpful for the

authorities even to think about the cancellation of the

license granted in favour of the petitioner. There is no

question of maintenance of any law and order problem

since those cases were disposed off in the year 1997 and

1998 respectively. In the show cause notice dated

13.6.2002 the reference has been given to only those

two cases. After remand of the matter, if the authorities

found registration of some other crimes against the

present petitioner, then it would have been appropriate

on the part of the authorities to issue a fresh notice to

the petitioner by referring the said crime nos.18/2003

9 CRI WP 251.2005.odt

and 23/2004. It thus appears that the learned District

Magistrate, Dhule after remand for the first time

considered registration of the said two crimes and

without giving an opportunity to the petitioner to

explain about the said registration of the crime passed

the impugned order. Even, the learned Divisional

Commissioner has also not applied his mind to the said

aspect.

7. Furthermore, by filing the additional affidavit, in

paragraph No.10 it is stated that, the District

Magistrate, Dhule now issued a notification dated

22.3.2016 which runs as under :-

"In accordance with the directions issued by the Government of Maharashtra through

Home Department vide letter dated 22/12/2015 it is hereby notifies that the Rules for keeping Places of Public

entertainment [Eating House, Mess and Restaurant, Lodging and Boarding] in Dhule District are hereby stand repealed w.e.f. the date of the publication of this notification in the official gazette."

10 CRI WP 251.2005.odt

8. In view of the above discussion, the order of

cancellation of registration on the basis of show cause

notice dated 13.6.2002 is not sustainable and further if

at all the authority wants to issue a fresh notice on the

basis of subsequent registration of the crime against the

petitioner, the authorities i.e. learned District

Magistrate, Dhule at present has no right to issue any

license at any place in the premises of Dhule.

9. In view of the above, writ petition is hereby allowed

in terms of prayer clause "B" & "C". Rule is made

absolute in the above terms. Criminal Writ Petition

accordingly disposed of.

sd/-

( V.K. JADHAV )

JUDGE ...

aaa/-