Renuka Sanskritik Kala Kendra ... vs The State Of Maharashtra And ...
2021 Latest Caselaw 2585 Bom

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


          CRIMINAL WRIT PETITION NO.2029 of 2019


           Renuka Sanskritik Kala Kendra,
           Through Its Proprietor
           Jyoti Motambai Pawar,
           Age 36 years, Occupation Business,
           R/o Moha Tal. Jamkhed Dist.
           Ahmednagar.                                       ...Petitioner

           VERSUS

   1)      The State of Maharashtra,
           Through The Additional District
           Magistrate, Dist. Ahmednagar.

   2)      The Collector,
           Ahmednagar Dist. Ahmednagar.

   3)      The Superintendent of Police,
           Ahmednagar.

   4)      The Tahsildar & Executive Magistrate,
           Jamkhed Dist. Ahmednagar.

   5)      Grampanchayat Moha,
           Through Its Sarpanch
           Tal. Jamkhed Dist. Ahmednagar.                    ...Respondents

                                       .....

           Advocate for Petitioner            :     Mr. J. V. Patil

           APP for Respondent-State           :     Ms. V. S. Choudhary

           Advocate for Respondent No.5 :           Mr. S. S. Thombre.

                                       .....




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                                      2                       WP 2029-2019, 102-2020




                                 WITH

           CRIMINAL WRIT PETITION NO.102 OF 2020

             Natraj Sanskrutik Kala Kendra,
             Through Its Proprietor,
             Smt. Mangal Popat Jadhav,
             Age 40 years, Occupation Business,
             R/o Moha Tal. Jamkhed Dist.
             Ahmednagar.                                  ...Petitioner

             VERSUS

    1)       The State of Maharashtra,
             Through Its Secretary,
             Home Department, Maharashtra
             State, Mantralaya, Mumbai.

    2)       The Collector, Ahmednagar
             Dist. Ahmednagar.

    3)       The Additional District Magistrate,
             Ahmednagar Dist. Ahmednagar.

    4)       Grampanchayat Moha,
             Through Its Sarpanch,
             Tal. Jamkhed Dist. Ahmednagar.               ...Respondents

                                  .....
             Advocate for Petitioner          : Mr.P.R.Katneshwarkar

             APP for Respondent-State         : Ms. V. S. Choudhary

             Advocate for Respondent No.4      : Mr. S. S. Thombre.
                                .....

                               CORAM : SMT.VIBHA KANKANWADI, J.

                               Date of Reserving The Judgement                :
                               05-01-2021.

                               Date of Pronouncing The Judgment :
                               09-02-2021.




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                                                  3                       WP 2029-2019, 102-2020




JUDGMENT :

1. The petitioners in both the writ petitions are challenging the

order passed by the respondent No.2 District Magistrate / Collector,

Ahmednagar bearing Outward No.D.C./Karya-9D/1076/2019, dated

29-11-2019 and D.C./Karya-9D/1075/2019 of the same date,

thereby cancelling the performance licences granted to the

petitioners under the Rules For Licensing And Controlling Places of

Public Amusements (Other Than Cinemas) And Performances For

Public Amusement, Including Cabaret Performances, Discotheque,

Games, Pol Game Parlours, Amusement Parlours Providing Computer

Games, Virtual Reality Games, Cyber Cafes, Games With net

Connectivity, Bowling Alleys, Card Rooms, Social Clubs, Sports

Clubs, Melas And Tamashas Rules, 1960 (Hereinafter referred to as

"Rules").

2. FACTS IN CRIMINAL WRIT PETITION NO.2029 of 2019 :-

The petitioner contend that the said Kala Kendra was initially

started in 2013 under the licence dated 19-06-2012 issued by

Taluka Executive Magistrate, Jamkhed. The said licence has been

renewed from time to time. The last renewal was on 11-02-2019.

The Kala Kendra is situated in Gut No.68/1 and 69/2 in village Moha

Taluka Jamkhed District Ahmednagar. The petitioner has taken

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huge loan for construction of the Kala Kendra. It is the only earning

source for the performers who are performing in the said Kala

Kendra. At the time of grant of licence as well as at the time of

subsequent renewals thereto, all the procedure as contemplated

under the Act and the Rules have been followed. There are about 39

female and 19 male performers, out of them 10 are the permanent

employees. The popularity of the Kala Kendra got increased, and

therefore, the villagers from Moha with the political influence,

started creating pressure on the State authorities. A proposal was

submitted on 26-11-2018 to the District Magistrate, Ahmednagar to

cancel the licence granted to the petitioner. Show cause notice was

issued on 26-02-2019 and reply was solicited from the petitioner

within 24 hours. It was also stated in the show cause notice that if

the petitioner failed to give reply within the said period then it would

be presumed that the petitioner does not want to respond.

However, the petitioner made request to the respondent No.1 to

grant time to file reply, but that was rejected. Under the said

circumstance, she was constrained to file the reply on the same day

i.e. 27-02-2019 on the basis of the record available before the

petitioner. The respondent No.1- State hurriedly, hastily and

without application of mind passed order on 01-03-2019 suspending

the licence of the petitioner. Therefore, the petitioner approached

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this Court by filing Criminal Writ Petition No.442 of 2019. After

considering the affidavit-in-reply in which there was mention of

report by District Superintendent of Police; the petitioner has

withdrawn the said writ petition with liberty to prosecute the

proceedings pending before respondent No.1. Directions were given

to the respondent No.1 to decide the matter in time bound manner.

Thereafter, the respondent No.1 passed the impugned order dated

29-11-2019 thereby cancelling the licence granted to the petitioner.

It has been wrongly stated by the learned Additional District

Magistrate while passing the said order that the petitioner has

committed breach of conditions of licence. In fact, the petitioner has

not violated any terms. First Information Reports were considered

by the State/ Additional District Magistrate bearing No.94 of 2015,

122 of 2016, 121 of 2016 and 43 of 2009, however they are against

some other person and not in respect of the petitioner. When the

petitioner is not involved in any crime or in any way the premises of

the petitioner is not involved in those crimes, merely because some

incident had taken place at a different place, it cannot be the ground

for cancellation of the duly issued licence in favour of the petitioner.

Therefore, the said order passed by the Additional District Magistrate

is illegal and deserves to be quashed and set aside.

6 WP 2029-2019, 102-2020

3. FACTS IN CRIMINAL WRIT PETITION NO.102 of 2020 : -

Respondent No.1 has issued licence in favour of the petitioner

since 1986 and it has been renewed from time to time under either

the old Act or the new Rules. The petitioner Kala Kendra is situated

in Gut No.48 in village Moha Tal Jamkhed Dist. Ahmednagar. The

petitioner has also taken huge loan to the tune of Rs.7 lakh from

Bank in 2018. Taluka Executive Magistrate, Jamkhed issued licence

to the Kala Kendra on 07-05-2018 under its name but prior to that

since 1986 it was as per Rule 138 (1) under the Public Amusement

Act. At the time of issuance of licence in 2018, all the formalities

and mandatory things were considered. No objection certificate was

issued by the police authorities. The last renewal was on 11-02-

2019 and it is up to 31-03-2022. Due to the political pressure from

the villagers in Moha, show cause notice was issued to the petitioner

on 26-02-2019. The petitioner was also directed to file reply within

24 hours. Her application for extension of time to file reply was also

rejected, and therefore, she has also filed the reply under

constrained circumstance. Her licence was also suspended on 01-

03-2019. She had also approached this Court thereafter by filing

Criminal Writ Petition No.419 of 2019 and then she has also got it

withdrawn with liberty to prosecute proceedings before the

respondent No.2. Thereafter, the learned Collector cancelled the

7 WP 2029-2019, 102-2020

licence by passing order dated 29-11-2019. She is also saying that

the said order is illegal on the same line of the another petitioner

and prays for setting aside the said order.

4. Heard learned Advocate Mr. J. V. Patil and Mr. P. R.

Katneshwarkar for respective petitioners, Ms. V. S. Chaudhary for

respondents-State and learned Advocate Mr. S. S. Thombre

representing respondent Grampanchayat Moha.

5. It has been vehemently submitted on behalf of both the

petitioners after reiterating the facts as narrated above that licences

were issued after taking into consideration all the legal provisions

and when it is issued by adopting the procedure, it can be cancelled

only as per the procedure that has been laid down under the Act or

Rules. In the impugned order it is absolutely not stated that there is

any breach of condition by the petitioner. After the licence has been

renewed when people from the village i. e. those who have been

represented through respondent Grampanchayat Moha, took

objection. The further procedure has been taken, however when at

the time of renewing the licence even the District Superintendent of

Police had recommended for issuance of such licence then the

Grampanchayat or people residing in the village cannot take any

objection. In the affidavit-in-reply filed by Vijaykumar Eknath

8 WP 2029-2019, 102-2020

Bhandari, at the time of earlier round of litigation before this Court

i.e. previous writ petitions, the then Residential Naib Tahsildar Tal.

Jamkhed Dist. Ahmednagar had reiterated those facts which were

before the Additional District Magistrate. Subsequent alleged fear or

feelings of the Grampanchayat ought not to be considered. The

petitioners have the fundamental right of carrying business of their

choice. No doubt, the said restriction is not unfettered and it

requires observance of terms and conditions, obtaining of licence

after making application to various authorities and taking no

objections from those authorities. Yet, when it comes to cancellation

of such duly sanctioned/ issued licence, then it should be as per the

procedure laid down under the Act only. For the subsequent events

i.e. subsequent to the extension of the renewal of licence, the

cancellation cannot be the legal remedy. Reliance has been placed

on Rule 238 of the Rules 1960 would show that the cancellation of

licence can only be under the said rule, which stipulates the facts

constituting breach of conditions. Those facts never existed in

present case. The said affidavit-in-reply did not point that the

present petitioners have in any way breached any condition that was

imposed while renewing their licence. The learned Advocates,

therefore, prayed for allowing the writ petition by setting aside the

impugned orders.

9 WP 2029-2019, 102-2020

6. Learned Advocate for the petitioners has relied on the decision

of this Court in Babasaheb s/o Kisanrao Goje v. The State of

Maharashtra and Another, (Criminal Writ Petition No.341 of 2006,

decided on 12-12-2006), and Babasaheb s/o Kisanrao Goje v. The

State of Maharashtra, (Criminal Writ Petition No.330 of 2017,

decided on 07-11-2017). In both these cases it has been held that

the licence cannot be cancelled for any such ground which is beyond

the violation of conditions of licence. Reliance was placed in both

the matters on the decisions of this Court earlier passed, especially

the decision in Dilip J. Bhatia v. The Commissioner of Police, thane

and Another, reported in 2001(1) Bom.C.R. 448, wherein it has been

held that,

"The licence cannot be cancelled on the ground of pendency of proceedings under the provisions of the Prevention of Immoral Traffic Act, 1956.

Cancellation of licence can be ordered only for violation of any conditions of licence by licence holder or by his agent."

Further the reliance was placed on the decision in Shri K. V. Acharya

and Another v. The State of Maharashtra and others, reported in

2000 (3) Bom.C.R. 372, wherein it has been held that,

" When the competent authority renewed the licence in favour of the petitioner after such offences were

10 WP 2029-2019, 102-2020

committed by the petitioner, the licence authority had no power, competence or jurisdiction to take such offences into consideration for cancellation or suspension of licence."

In this case though the offences were registered against the

petitioner, yet the licences were renewed, and therefore, this Court

was of the view that after renewal it cannot be cancelled for those

events which had taken place prior to the renewal.

7. Learned Additional Public Prosecutor strongly opposed the

petitions and submitted that though the licences were renewed, yet

the events those had taken place after the renewal are required to

be considered. Those incidence have been narrated in the affidavit-

in-reply by the Naib Tahsildar Vijaykumar Eknath Bhandari, which

was filed in the earlier round of litigation. The villagers from village

Moha had submitted a representation on 14-02-2019 to Tahsildar,

Jamkhed raising objections by pointing out the illegal activities

carried out under the pretext of running Sanskrutik Kala Kendra,

which included the Kala Kendras of the petitioners. Even the

villagers told that they would go on hunger strike from 23-02-2019 if

the petitioners are allowed to continue with their performances. A

representation was forwarded by the villagers to the Superintendent

of Police. Thereafter, actually the hunger strike had started on 23-

11 WP 2029-2019, 102-2020

02-2019. It was represented by the villagers that the Zilla Parishad

Schools and other schools were near from the Kala Kendra and as

the illegal activities were going on, they had prayed for the close

down of the Kala Kendras. As there was a problem of law and order

situation, show cause notice was immediately issued and the reply

was sought within 24 hours. It was alleged by the Grampanchayat

that the performances at both the petitioner Kendras are creating

nuisance to the nearby residents. Swift action was therefore

necessary. Illegal activities were carried out at Natraj Sanskrutik

Kala Kendra, and therefore, the offence was registered. The inquiry

report called from Superintendent of Police, Ahmednagar, was still

awaited when Mr. Bhandari had filed the affidavit-in-reply. The

licence can be cancelled or suspended by the same authority who

had issued the licence and further it was also considered that the

Tahsildar who had renewed the licence had no authority to renew

the same. Therefore, the order of cancelling the licence is proper

and legal which does not require any kind of interference.

8. At the outset, it can be seen that once the licence is renewed,

it cannot be cancelled on the ground that the authority renewing the

licence was not in fact authorized under the Act. It can be the

ground prior to the extension or issuing of a licence. In fact, when

such application for renewal is presented to a particular authority

12 WP 2029-2019, 102-2020

then either the said authority may issue/ renew the licence if he has

power/ authority to issue the same. If he is of the opinion that the

jurisdiction lies with another authority then he may direct the

applicant to go to the particular designated officer, or even if the

person to whom such application is tended is sub-ordinate, then he

may place it before the superior for the necessary orders. But when

once that jurisdiction is used, then another officer/ authority cannot

have powers to cancel such licence or renewal thereof. Such renewal

will have to be termed as 'duly issued licence or duly renewed

licence'. The affidavit-in-reply does not specifically state that the

authority in these cases who had granted the renewal had no such

authority to renew the licence.

9. Once the licence has been renewed in both the cases, it

presumes that the concerned authority had adhered to all the

procedure as contemplated under the Rules or Act. Any subsequent

derivation unless it comes under the breach of condition cannot give

an authority to the licensing authority to suspend or cancel the

licence. The said Rules of 1960 makes provision to suspend or

cancel licence under Rule 238 which is reproduced as follows ;

"238. Powers to suspend or cancel licence : -

                  (1)      The Licensing Authority may suspend or cancel
                  any      licence   granted    under      these       rules       for





                                         13                         WP 2029-2019, 102-2020

contravention of any of these Rules or of failure of the licensee to comply with any reasonable directions which the Licensing Authority may issue in order to prevent any obstruction, inconvenience, annoyance, risk or danger to the member of the audience in the theatre provided that the Licensing Authority shall give the licensee an opportunity to show cause before taking any action under this sub-rule.

(2) Notwithstanding the provisions of sub-rule (1) the licence shall be liable to immediate suspension or cancellation by the Licensing Authority if in the opinion of the Licensing Authority, the appliances in the premises for protection against and for extinguishing fire are inadequate or in any way insufficient or in unsatisfactory condition.

(3) Notwithstanding the provisions of sub-rules (1) and (2) the Licensing Authority may, in its absolute discretion at any time cancel or suspend any licence granted under these Rules and may direct and may direct the licensee to close the premises either permanently or temporarily, or direct him to comply with such direction and instructions that he may isue in order to prevent any obstruction, inconvenience, annoyance, risk, danger or damage tot he residents or passers-by in the vicinity or for the maintenance of public safety and the prevention of disturbance in the premises and every licensee shall forthwith comply with such directions or instructions given by

14 WP 2029-2019, 102-2020

the Licensing Authority, and if the licensee fails to comply with such directions and instructions his license shall be liable to immediate suspension or cancellation.

(4) Notwithstanding the provisions of sub-rules (1), (2) and (3) the Licensing Authority may cancel or suspend any licence granted under these rules and may direct the licensee to close the premises permanently or temporarily if the licensee fails to carry out any reasonable directions given to him by the Licensing Authority on receipt of a complaint about inconvenience caused to the spectators.

(5) Notwithstanding the provisions of sub-rules (1), (2), (3) and (4), the Licensing Authority may cancel or suspend any Licence granted under these rules for contravention of any condition of the Licence or of any of these rules or for failure to comply with any reasonable order or direction issued by the Licensing Authority in his regard."

10. Perusal of the above provision would show that upon the

evidence for those breach of terms or stipulations in the event, the

said licensing authority would get power to suspend or cancel the

licence. In these cases along with the licence that was issued in

favour of petitioners, there is list of conditions. Those conditions are

also governed by circular issued by the Government dated 15-11-

15 WP 2029-2019, 102-2020

2008. The respondents have not come with a case that any of those

conditions and restrictions of the licence given on 11-02-2019 in

both matters have been breached. Even in affidavit-in-reply the

concerned Naib Tahsildar has not pin-pointedly stated which term or

condition has been violated. Only on this count itself the writ

petitions deserve to be allowed, however since certain other points

have also been raised they are required to be considered.

11. It appears that the Grampanchayat has taken objection,

however it is to be noted that it is after the licence was renewed on

11-02-2019. It appears to have been taken on 14-02-2019. The

show cause notice which was issued on 26-02-2019 to both the

petitioners gives four issues / points on which objection was taken.

First is, that the villagers have passed resolution in Gram Sabha for

closure of all the Sanskrutik Kala Kendras in the village. As regards

this point, it can be said that under which provisions of law the Gram

Sabha can take such decision, has not been pointed by learned

Additional Public Prosecutor or by learned Advocate representing the

Grampanchayat. The Kala Kendras are run on the premises of the

property owned by the petitioners. They have every Constitutional

right to carry out business of their choice. No doubt it is not an

unfettered right, it comes with restrictions and in view of those

restrictions, they had applied to the competent authority for the

16 WP 2029-2019, 102-2020

licence and the renewal thereof subsequently. Therefore, Gram

Sabha cannot have any such unfettered right to resolve that they

would close such businesses. They can take objection to the

appropriate authority, however it should be before the licence is

issued or renewed. The second ground that is mentioned is, that

some illegal activities are going on in the vicinity of the Kala

Kendras. Third ground is that the offences under Prevention of

Immoral Traffic Act have been lodged on the owner of the Kala

Kendras, and the forth is that the law and order situation has arisen

due to the Kala Kendras. All these points are inter related. The

copies of the four First Information Reports produced on record

would show that the petitioners Kala Kendras are not involved.

Though in one matter it appears that the place in front of (not

belonging to the petitioners) appears to be the place of offence.

Therefore, when it has not been pointed out which illegal activity is

going on in the petitioner's Kala Kendra and what kind of law and

order situation has arisen, we cannot say that there was any

substance in those points/ grounds raised. Further it is to be noted

that at the time of renewal when the report was called from

Superintendent of Police, he had recommended renewal. Further

when the report of Superintendent of Police was called after the

show cause notice was issued, yet the Superintendent of Police by

17 WP 2029-2019, 102-2020

report dated 19-06-2019 recommended for giving permission to the

Kala Kendras by giving additional conditions of installation of CCTV's

and taking entry in respect of persons visiting the Kala Kendras.

Therefore, according to the Superintendent of Police, Ahmednagar

there is absolutely no law and order situation adversely affecting the

villagers if the Kala Kendras are allowed to continue their

performances. It will not be out of place to mention here that when

the earlier two writ petitions filed by the present petitioners were

withdrawn on 19-08-2019, in that writ petitions the Naib Tahsildar

had stated in paragraph No. 12 of his affidavit-in-reply thus ;

"12. In this view of the matter and the enquiry report so submitted by the Supt. Of Police Ahmednagar, the order of suspension of license may be revoked subject to compliance of the terms and conditions mentioned by the Supt. Of Police Ahmednagar in its report, by the petitioner." (Stress supplied)

And, therefore, it can be seen from the above statement on oath of

the Naib Tahsildar that the Government was not in favour of

revoking the order of suspension of licence. Now after the order is

passed by the respondent No.2 on 29-11-2019, the Government

cannot oppose the petition on some flimsy ground. The reasons

quoted for cancelling the licence do not amount to breach of terms

18 WP 2029-2019, 102-2020

of conditions of licence, and therefore, the said impugned order is

without any authority and illegal.

12. The above said catena of Judgments relied by the petitioners

would support the view of this Court that the licence cannot be

cancelled on some other ground than the breach of terms of licence.

In fact in K. V. Acharya's case (Supra), there was an offence against

the petitioner himself, yet taking into consideration the fact that the

licence authority had no power, competence or jurisdiction to take

such offences into consideration for cancellation or suspension of

licence, the order of cancellation was set aside.

13. Under both the circumstances, the writ petitions deserve to be

allowed, and they are accordingly allowed in terms of Prayer Clause

"A".

14. No order as to the costs.

(SMT. VIBHA KANKANWADI) JUDGE

vjg/-.