M/S Ajay Bhagwat And Partners, ... vs State Of Maharashtra, Through ...
2017 Latest Caselaw 8268 Bom

WP  438/13                                               1                          Judgment

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                    NAGPUR BENCH, NAGPUR.

                 CRIMINAL WRIT PETITION NO. 438/2013

M/s Ajay Bhagwat & Partners,
through its Partner - Ajay son of
Rameshrao Bhagwat,
aged about 41 years, occupation - business,
resident of 22, "Parijat" Ramayannagari,
Bhandara, Tq. & Distt. Bhandara.                                                     PETITIONER
                                       .....VERSUS.....
1.    State of Maharashtra,
      through Police Station Officer,
      Police Station Bhandara,
      Tq. & Distt. Bhandara.
2.    Additional District Magistrate,
      Bhandara,
      Tq. & Distt. Bhandara.                                                     RESPONDE
                                                                                          NTS

                      Mr. M.P. Khajanchi, counsel for the petitioner.
                      Mr. Shyam Bissa, A.P.P. for the respondents.

                                              CORAM : REVATI MOHITE DERE, J.

DATE : 31 ST OCTOBER, 2017.

ORAL JUDGMENT

By this petition the petitioner has impugned the order dated

18th March, 2013 (Annex.P-3) passed by the respondent no.2-Additional

District Magistrate, Bhandara.

2. Mr. M.P.Khajanchi, learned counsel for the petitioner

submitted that the impugned order dated 18.03.2013 passed by the

respondent no.2-Additional District Magistrate, Bhandara is unsustainable

in law. According to the learned counsel, the Eating House license

registration no.3 of 2004 was cancelled by the Additional District

WP 438/13 2 Judgment

Magistrate, Bhandara, without issuing show cause notice to the

petitioner-Firm and without hearing the partners of the petitioner-Firm.

He further submitted that during the pendency of this petition, in the

interregnum, the learned Judicial Magistrate First Class, Bhandara vide

judgment and order dated 17.11.2014, was pleased to acquit all the

accused including the partners of the petitioner-Firm of the offences

punishable under Sections 4 and 5 of the Bombay Prevention of Gambling

Act, 1887 (hereinafter referred to as 'the Gambling Act'). He submitted

that the petitioner had a valid license to run the Eating House at the

relevant time. In support of the said submission, learned counsel relied

on the receipt which is on Page 51 of the petition. He submitted that

there was absolutely no justification for the Additional District Magistrate,

Bhandara, to cancel the Eating House license of the petitioner-firm after

the registration of the F.I.R., alleging offences under Sections 4 and 5 of

the Gambling Act, as against the partners of the petitioner-firm and

others. Learned counsel relied on several judgments i.e., 1996(3) All MR

84 (Kanu Nagu Mhatre Versus The Assistant Commissioner of Police &

Others), 2001(1) Bom.C.R. 448 (Dilip J.Bhatia Versus The Commissioner

of Police, Thane & Another), 1997 (1) All MR 256 (Girija Timappa Shetty

Versus The Assistant Commissioner of Police, Wagle Estate Div., Dist.Thane

& Others), (1982) 3 SCC 338 (M/s Raj Restaurant & Another Versus

Municipal Corporation of Delhi), to substantiate his submission.

WP 438/13 3 Judgment

3. Mr.Shyam Bissa, Learned Additional Public Prosecutor

opposed the petition. He does not dispute the fact, that in the

interregnum, during the pendency of this petition, the partners

of the petitioner-Firm and all other accused were acquitted of

the offences punishable under Sections 4 and 5 of the Gambling

Act. He, however submitted, that the petitioner-Firm did not have a

valid license to run an eating house, from 2006, much less at the relevant

time.

4. Perused the papers. The aforesaid petition was admitted

by this Court vide order dated 27.11.2013 and the effect, operation

and implementation of the impugned order was stayed and the

petitioner was permitted to to continue running the eating house

during the pendency of this appeal. On a perusal of the papers, it

appears that an agreement dated 24.10.2003 was entered into

between the Officers Club, Bhandara and the petitioner-Firm, through

its partner. It appears from Clause 27 of the said agreement, that the

said club was given to the petitioner-Firm on lease for a period of

fifteen years. In the year 2011, an F.I.R. dated 09.07.2011 was lodged

as against the partners of the petitioner-Firm and others alleging

offences punishable under Sections 4 and 5 of the Gambling Act.

After investigation, charge-sheet was filed in the Court of learned

WP 438/13 4 Judgment

Judicial Magistrate First Class, Bhandara. The impugned order

dated 18.03.2013 issued by the Additional District Magistrate,

Bhandara, by which the petitioner-Firm's eating house license was

cancelled, was admittedly passed without issuing any show cause

notice to the petitioner-Firm or without affording any opportunity of

hearing to the partners of the petitioner-Firm. Although, according to

the A.P.P., the petitioner-Firm did not have a valid eating house license

since 2006, the record is to the contrary. It appears from the challans

filed by the petitioner-Firm, that regular fees for renewal of license of

Eating House under the Bombay Police Act, was being paid by the

petitioner-Firm since 2004 and that the said amounts were being

accepted by the State Treasury. All the challans are identical. It also

appears that an amount towards renewal of license of the eating

house under the Bombay Police Act, was paid during the period

from 2011-12, i.e. during the period when the F.I.R. was registered.

A perusal of one of the challan (for 2011-12) shows that an

amount of Rs.2,300/- was paid towards renewal of Eating House

license fee, and that the same was accepted by the State Treasury.

In the right hand side column of the said challan (2011-12), filled

in by the Departmental Officer of the treasury, it is mentioned as

under:-

 WP  438/13                                             5                            Judgment

                                       CHALLAN NO.
                                   Treasury/Sub-Treasury
B.X.6 (See Rule 112)

Challan of Cash Paid into the State/Reserve Bank of India at Bhandara State.

To be filled in by the remitter                                 To be filled in by the
                                                                Departmental   Officer
                                                                of the Treasury
By   Whom   tendered               Officer Club & Rest. &
                                                       Head   of   Account   -
(Name)   Name   (or                Bar, Bhandara.      0055-Police
designation)   and                 Prop.   Ajay   Bhagwat   &
                                                       Receipt   Licence   Fee
address   of   the   person        Partner.            for   Eating   House
on   whose   behalf                                    under   Bombay   Police
money is paid                                          Act, 1951
Full particulars of the remittance                     Order to the Bank
and the authority (if any)                   Amt.      Correct   Receive   and
                                                       grant receipt.
Renewal Fees for Hotel                          2000/- Date: 29/3/2012.
Licence Under Bombay
Police Act for 3/2004

2011 to 2012 L.No.                                    300/-
And Late Fees for                                                           Sd/-
                                                              Additional District
                           Total                     2300/- Magistrate, Bhandara
Sd/-Date 29/3/2012
Signature

5. A perusal of the documents on record show, that the Certificate

of Registration of the Eating House was issued by the Additional District

Magistrate in 2004 and the registration number given to the Eating

House was 3/2004. Thereafter, from time to time, from 2004, the

petitioner-Firm deposited the license fee for Eating House, under the

Bombay Police Act. As noted above, the said license fee was being

WP 438/13 6 Judgment

deposited regularly every year with the State Treasury and the same was

being accepted. Learned A.P.P. is unable to show, if not as license fee for

running an eating house, any other purpose for accepting the fees. It is

only when the F.I.R. was lodged, under Sections 4 and 5 of the Gambling

Act, as against the partners of the petitioner-Firm and others, pursuant to

which, the impugned order was passed in 2013. Admittedly, no show

cause notice was issued to the petitioner-Firm nor any hearing was given

to the partners of the petitioner-Firm before the license for running the

Eating House was cancelled. Needless to state, that mere registration of

an F.I.R. is not a ground for cancelling the license, unless the licensee is

convicted for the said offence. This Court in a catena of cases has held,

that pendency of a prosecution, cannot be a ground, for either cancelling

the license or refusing to grant license to carry on business. Unless a

person is tried and held guilty, he should be treated as innocent.

Admittedly, during the pendency of this petition, all the accused,

including the partners of the petitioner-Firm, have been acquitted by the

trial Court.

6. In the facts of the case, for the reasons stated hereinabove,

the criminal writ petition is allowed. Accordingly, the impugned order

dated 18.03.2013 passed by the Additional District Magistrate, Bhandara

is quashed and set aside. Rule is made absolute in the aforesaid terms.

There shall be no order as to costs.

WP 438/13 7 Judgment

7. All parties to act on the authenticated copy of this order.

JUDGE

APTE