Geeta Lunch Home (Permit Room) ... vs State Of Maharashtra Thr. Gp And ...
2022 Latest Caselaw 11463 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CIVIL APPELLATE JURISDICTION
                 WRIT PETITION NO. 12188 OF 2022


Geeta Lunch Home                                .....Petitioner
     V/s.
State of Maharashtra & Ors.                     ....Respondents
                              -----
Mr. S.N. Gawade i/by. Shree & Co., Advocate for the
petitioner.


                        CORAM : SANDEEP K. SHINDE, J.

FRIDAY, 11TH NOVEMBER, 2022.

P.C. :

1. Mentioned. Not on board. Taken on board.

2. A praceipe is moved for speaking to minutes of the order dated 18 October, 2022.

th

3. It is pointed out, in paras-4 and 6, "respondent no.4 i.e. Deputy Commissioner of Police, H.Q.-1" has been inadvertently recorded as "respondent no.3".

4. Appropriate corrections be carried out and the order be read accordingly.

(SANDEEP K. SHINDE, J.) Rane 2/7 WP-12188-2022-STM

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.12188 OF 2022

Geeta Lunch Home (Permit Room) ] Through its Proprietress ] Smt.Sita Gopal Shetty ] .....Petitioner.

V/s.

State of Maharashtra & Ors. ] ....Respondents.

-----

Mr.R.D. Soni, Advocate a/w Advocate Sujay Gawade i/b Shree & Company.

Mr.P. P. Pujari, AGP for the State-Respondent.

CORAM : SANDEEP K. SHINDE, J.

TUESDAY, 18TH OCTOBER, 2022.

P.C. :

1. The petitioner was granted performance License

No.342/2004 by the Commissioner of Police under the Rules

called "Rules for Licensing and Controlling Places of Public

Amusement (other than Cinemas) and Performances for

Public Amusement including Melas, Tamashas), 1960".

The Respondent No.4 Deputy Commissioner of Police, H.Q.-

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1, the licensing authority by Show Cause Notice dated

15.7.2016 required the petitioner to show cause as to why

performance license should not be cancelled for alleged

violation of license conditions. Though, the petitioner was

duly served, he did not respond to the show cause notice.

Resultantly, on 20.12.2016, the performance license was

cancelled. That order was challenged in the Appeal before

the Principal Home Secretary (Appeal And Security)

Maharashtra State Mantralaya at Mumbai. Pending the

appeal, operation of the order passed by the Deputy

Commissioner of Police cancelling performance license was

stayed. Yet the appeal was decided ex-parte on 22.3.2018

by which order passed by the Deputy Commissioner was

confirmed. It appears, mistakeenly, another show cause

notice was issued by the Deputy Commissioner on

27.9.2017 after cancelling the performance license. No

matter what, the petitioner sought review of the order

dated 22.3.2018 passed in appeal. The review was

dismissed for want of jurisdiction, therefore, the petitioners

have filed this petition.

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  2. Mr.    Soni,      learned   Counsel     for    the        petitioners,   on

       instructions,    submits    that,    since       after     order   dated

22.3.2018 passed in appeal, the petitioner is not playing

musical instruments, Orchestra at his establishment

situated at Shop No.1, Umashankear Mishra Chawl, Are

road, Goregaon(E), Mumbai. Mr.Soni, the learned Counsel

submitted that license has been cancelled by the authority

principally, relying on the crimes registered against the

establishment or its owner or servants. One of such

crimes was registered on 26.6.2017 under Section 294 r/w

34 of the Penal Code and under Sections 3, 8(1) of the

Indecent Representation of Women (Prohibition) Act 1986

and another on 17.8.2017 by Social Service Unit, Crime

Branch, under Section 294, 114 r/w 34 of the Indian Penal

Code.

3. Mr.Soni submitted that in terms of Government G.R. dated

23.1.2019, mere pendency of prosecution itself could not

be a ground for cancelling the license so, long as the

license-holder himself or his agent or servant is convicted

of the said ofence. To fortify this submission, Mr. Soni, Rane 5/7 WP-12188-2022-STM

the learned Counsel for the petitioners relied on the

Judgments/orders passed in, Dilip Bhatia in Writ Petition

No.7271/1999; Ganpat Patil in Writ Petition No.2491/2013;

Maruti Gopale in Writ Petition no.5675/2006 and Shivraj

Hotels in Writ Petition (L) no.1752/2011.

4. Moreover, Mr. Soni, the learned Counsel for the petitioner

submitted that since the impugned order has been passed

without hearing the petitioner, in all fairness, the

petitioners may be granted an opportunity to file the reply

to show, cause notice dated 13.7.2016 issued by the

Deputy Commissioner. Mr.Soni submitted that the

petitioner shall appear before the respondent no.4 and file

reply to show cause notice. Whereafter, the respondent

no.4 may pass appropriate order in accordance with law.

Mr.Soni, therefore, submitted that the impugned order

may keindly be quashed and set aside.

5. The petition is opposed by the learned A.G.P. He relied on

the afdavit of the Assistant Commissioner. I have

perused it, however, afdavit does not point out, whether

ofences registered against the licensee, have been Rane 6/7 WP-12188-2022-STM

culminated into conviction or not. It is settled law that until

held guilty, a person should be treated as innocent, and

therefore, mere registration of crime would not furnish

ground to cancel license.

6. Thus, in consideration of above facts, it is evident that

the licensing authority while cancelling the license, in-

principal relied on the crimes registered against the

licensee or its servant, which he could not have, in view of

the Government Resolution dated 23.01.2019 and the law

laid down in above decisions. That apart, the

performance license has been cancelled by the ex-parte

order passed by the respondent no.2. Thus, for the

reasons stated above, I deem it appropriate to set aside

the impugned order and direct the respondent no.4 to

pass the order in accordance with law pursuant to show

cause notice dated 13.07.2016. For that, the petitioner

shall appear before respondent no.4 on 25.11.2022 and

file reply to the subject show cause notice. Thereafter, the

respondent no.4 shall pass appropriate order in

accordance with law.

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7. The petition is allowed in aforesaid terms and disposed of,

accordingly.

(SANDEEP K. SHINDE, J.)]

Note : Corrections are carried out in paras-4 and 6 (bold portion) only th pursuant to speaking to minutes order dated 11 November, 2022.

NEETA SHAILESH SAWANT Digitally signed by NEETA SHAILESH SAWANT Date: 2022.11.14 14:22:21 +0530