Lsp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2114 of 2008 Ramji D. Thapar M/s. Hotel Big Splash at Sai Kripa Compound, W.T.Patil Marg, Amar Nagar, Chembur, Mumbai-400 071. ..Petitioner V/s. 1. The Commissioner of Police, having his office at Opp. Mahatma Jyotiba Phule Market, Mumbai-400 001. 2. The State of Maharashtra, through the Hon’ble Minister for Home Affairs, Mantralaya, Mumbai- 400 032. ..Respondents Mrs. Veena Thadani for the petitioner. Mrs. Smita Gaidhane, AGP for respondents. CORAM CORAM CORAM : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. DATED DATED DATED : 17th October, 2008 : 17th October, 2008 : 17th October, 2008 P.C. P.C. P.C. . Heard Counsel for the parties. This Writ Petition takes exception to the order passed by respondent no.2 dated 17th July, 2008 dismissing the appeal preferred by the petitioner challenging the decision of the Dy. Commissioner of Police dated 15th October, 2007 cancelling the Public Entertainment Police License No. 139/99 granted to the petitioner in respect of establishment M/s. Hotel Big Splash situated at Chembur, Mumbai. The said decision was passed on the basis of show-cause notice issued on 23rd August, 2006 calling upon the petitioner to show cause why the Police 2 Entertainment License issued in his favour should not be cancelled on the grounds referred to in the show-cause notice. In the show-cause notice after referring to the instances on the basis of which proposed action was to be taken, it is noted that the petitioner on account of act of commission and omission of the petitioner, the licence issued in favour of petitioner deserves to be cancelled in terms of Rule 7(a), 8(1),(2),21(a), 24,27 read with 28 of the Rules for keeping places of public entertainment in Greater Bombay. The Dy. Commissioner of Police after giving opportunity to the petitioner passed final order on 15th October, 2007 cancelling the said police licence which was issued in favour of the petitioner for having public entertainment in the stated premises. The appropriate authority took into account relevant material on record including the reply filed by the petitioner in response to the show-cause notice and other documents as well as the oral submissions made before him. It has rejected the arguments of the petitioner that the petitioner cannot be proceeded against for the illegality committed by Shyam Sunder Agrawal who was inducted in the premises pursuant to the conducting agreement. The appropriate authority took the view that nevertheless the owner of the establishment who is licence holder would be personally responsible for every incident that took place in the establishment. The appropriate authority has also 3 referred to the fact that even in the past on two occasions the subject licence of the petitioner was suspended in the year 2001 for one day and year 2002 for two days. It then proceeded to observe that inspite of that there has been no improvement which clearly indicates that the petitioner was in habit of repeatedly committing offence and has no fear of law and is not acting in accordance with law. The appropriate authority further noted that petitioner had committed breach of peace. The appropriate authority has also adverted to the fact that after the issuance of subject show-cause notice, offence under the provisions of Bombay Police Act and PITA Act were registered against the establishment on 20th October, 2006 on the ground that women in the establishment were behaving indecently. In respect of said instance, the offence against 15 women under Bombay Police Act was also registered and that after issuance of show-cause notice on 20th May, 2007, a case was registered. Besides, during the pendency of said show-cause notice on 20th May, 2007, the case was registered against the establishment under Indian Penal Code and Prevention of Immoral Traffic Act, 1956 (PITA Act) and the Police Licence was suspended for a period of 45 days. After considering all these aspects the Competent Authority proceeded to record that only appropriate action against the petitioner can be one of the cancellation of licence 4 and suspension of licence of the establishment was not sufficient. The appropriate authority has also recorded a finding of fact that the petitioner is not a suitable person to hold the police licence. 2. This decision of the appropriate authority was challenged by way of statutory appeal before respondent no.2 who in turn has upheld the conclusion reached by the appropriate authority after recording its own finding that the persons who were found indulging in illegal acts in the premises of the establishment and in some cases the Court had awarded punishment of fine to them. It is then noted that the mandate of Rule 7-A obligates the licence holders to keep the establishment open only during specified time, whereas it is noticed that the establishment in question was found open beyond the specified time. The Appellate Authority further found that there has been breach of Rule 8(1)-as during surprise raids it was noted that the petitioner (licence holder) was personally not present in the premises which is breach of one of the condition of licence. The Appellate Authority further found that there has been breach of Rule 8(2) of the Public Entertainment Rules, 1953 as person other than the licence holder was found in the premises carrying the business. As per Rule 8(2) it was necessary to obtain prior permission from the Licensing Authority to allow such arrangement which was 5 not done. Besides the Appellate Authority also found that violation of Rule 21-A of the Rules has been noticed as dancers were allowed to perform indecent and vulgar dances in the establishment. The Appellate Authority also referred to earlier suspension orders in the year 2001-2002 and taking over all view of the matter concluded that no fault can be found with the decision of the Licensing Authority to cancel the licence which action was appropriate from the point of maintenance of law and order. Accordingly, the Appeal was rejected. 3. According to the petitioner, the finding recorded by the Competent Authority as well as the Appellate authority on violation of Rule 7-A cannot be sustained. Rule 7-A mandates that the licensee shall close the place of public entertainment at the hour mentioned in the licence as the closing hour of such a place. The proviso to Rule 7-A further stipulates that if any customer has been served in such a place with any eatables or drink before the closing hour, the licensee may keep the place open for a period not exceeding quarter of an hour immediately following the closing hour to enable the customer to consume the articles already served to him, but in no case shall any customer be allowed to remain in a place of public entertainment after the expiry of quarter of an hour immediately 6 following the closing hour mentioned in the licence. 4. According to petitioner from the instance referred to in para-2 in the show-cause notice, it is amply clear that the establishment was found open within the permissible limits. For, as per the proviso to rule 7-A it is permissible to keep the establishment open upto quarter of an hour even after the closing hour. The argument though attractive does not commend to me. To my mind, the proviso comes into play only when some customer is availing of the hospitality in the establishment at or around the closing hour. The proviso only enables the establishment to wind up the establishment after serving that customer who is given time upto quarter of an hour immediately following the closing hour. From the cases which are registered there is no mention of the fact that some customer was being served in the Restaurant. If it is so, the proviso will not come into play at all. The substantive provision in Rule 7-A is a clear mandate to the Licensee to close the establishment on or before the closing hour of such place. To get over this position, Counsel for the petitioner submits that Rule 7-A would come into play only if the establishment was open and the customer was found availing the hospitality even after closing hour of the establishment. That argument will have to be stated to be rejected. As aforesaid, the proviso comes 7 into play only if the customer is found in the establishment after the closing hour, but the substantive provision obligates the licensee to close the establishment before the closing hour. The fact that the establishment was found open even after the closing hour is established from the instances referred to in the show-cause notice. 5. Be that it may, what is overlooked by the Counsel for the petitioner is the stand taken by the petitioner in the reply filed before the Appropriate Authority pursuant to the show-cause notice. Although the show-cause notice is dated 23rd August, 2006, the earliest communication sent by the petitioner as relied by the petitioner is of 12th June, 2007. This communication clearly concedes that the petitioner has already parted with the business conducted in the establishment by entering into conducting agreement in favour of third party. Letter sent by the petitioner to the appropriate authority will be relevant for considering other aspects. I shall refer to the contents of the letter in some details at this stage itself. The letter dated 12th June, 2007 states that copies of the conducting agreement are duly submitted to the competent authorities and Zonal Police Station. It conceded the position that on 20th May, 2007 the Restaurant and Bar was closed. However, it is asserted 8 that without any show-cause notice or hearing, suspension order for closing the Restaurant for 45 days has been passed. It is then stated that 10 days has already passed and petitioner was suffering heavy losses on account of closing down of the restaurant for which reason the suspension order be vacated. The petitioner sent another communication dated 13th July, 2008 addressed to the Senior Inspector of Police which states that petitioner has closed down the Hotel Premises for 45 days from 30th May, 2007 to 13th July, 2007 and the period was expiring on 13th July, 2007 and since 45 days period was over, he would restart the hotel/restaurant and bar w.e.f. 14th July, 2007. Reliance is placed on one more letter sent by the petitioner dated 6th September, 2007 to the Assistant Commissioner of Police. In this letter it is stated that the petitioner has given conducting business of Restaurant and Bar and he possesses all relevant documents insupport thereof. It is then stated that during the raid conducted by the police at the relevant time Mr. Shyam Sunder Agrawal was conducting business as a conductor and for his acts of commission and omission, the petitioner has been penalised by requiring to close down the restaurant for 45 days. The petitioner has then stated that he was not personally involved in the commission of the illegal acts in the premises. The petitioner has further stated that now he has terminated the conducting agreement and 9 has removed the conductor Shyam Sunder Agrawal from the said premises. The petitioner then states that he now intends to start business of family restaurant and permit room in the premises. The petitioner then stated that he is a reputed businessman living in Chembur area and has a good business and that he has stopped the ladies service activities in the said restaurant and bar. The petitioner has then prayed that the PITA Act charges against him be dropped and he may be put to strict terms and condition to which he will abide. 6. The petitioner has then addressed another letter dated 29th September, 2007 to the Dy. Commissioner of Police. This is obviously the first communication sent in response to the subject show-cause notice dated 23rd August, 2006. This communication will have to be treated as reply to the show-cause notice. Inspite of specific instances and case made out in the show-cause notice dated 23rd August, 2006 petitioner chose to give vague reply in the following words; "I the receipt of your above referred show cause notice, in respect of the same I submit as under: I submit that the after referred show cause notice, I had received order dated 30-5-2007 for immediate suspension of police licence for 45 days for the case registered on 20-5-2007. As per the order I have also closed my hotel for 45 days. In this respect I submitted that at the time of case registered against the establishment, the said 10 establishment was conducting by Shyam Sunder Agarwal, I had given the said establishment on rental basis to him and during the said period the said case is registered. But now I had terminated the agreement with him and running the said establishment myself. In this respect I have also made an application to the Asstt. Commissioner of Police, Chembur Division. After the above said order, I have been called for decision of the above referred show cause notice. Therefore, I humbly request you that recently I have undergone the punishment by closing down the hotel for 45 days. It was the huge loss to me and now again awarding punishment in respect of the same and other charges it will ruined my business and my livelihood source. I have been called for personal hearing to decide the above referred show-cause notice but I have not submitted the answer for the same. Therefore, I did not remain present for personal hearing and submitting answer to the said show-cause notice with this letter. I have been called for personal above referred show cause notice but I answer for the same. Therefore, I did personal hearing and submitting answer notice with this letter. In the show cause notice cases registered under section 33(w) are pending trials in the Court. Therefore, on the basis of the same it is not lawful to punish me. There are judgements of Court in connection with the same. Therefore, I request you to kindly do not consider the said cases which are pending in court. On perusal of the cases registered against my hotel, it clearly shows that all cases are nearby closing timing. The real fact is that the police raised my hotel before prescribed time limit i.e. 1.30 a.m. charged the dancers. The police take time to do the charging procedure and when they complete the procedure, the same time is registered in the case. Therefore, the timing of charges are not correct. Usually I closed my hotel on or before the prescribed time limit. Therefore, the violation of rules in respect of time is not applicable here. In respect of dancers, I have not allowed to any dancer to behave indecent manner, they were dancing 11 on the recorded music. They were performing same dance as it is in the record. Therefore, performing the same dance is not indecent and if it was indecent then there should be banned or censored the said recorded music. But now due to ban on dance I have kept closed the dance performance. In respect of the performance fees, as there is ban on dance, it has create great effect on hotel business, therefore, due to this condition, it was impossible to pay the fees fully. Therefore, I am paying the said fees in instalment, I request you to kindly take lenient view in this respect. By considering the above circumstances, I request you to kindly take proper decision in respect of show-cause notice by taking lenient view. Thanking you," 7. Going by the defence taken by the petitioner, it is clear that petitioner has not specifically denied the fact that the premises were infact not closed before the closing hour; and that the cases registered in respect of the establishment referred to in the show-cause notice were false. The defence of the petitioner, however, seems to be that the police had already entered the premises before the prescribed time limit i.e. 1.30 a.m. and were engaged in the procedural matters for charging the dancers found in the premises which resulted in keeping the establishment open beyond the closing hour. This defence is a plea of desperation. Once the petitioner has conceded that he had already given the premises to third party for conducting the business and it is noticed that the petitioner was not present in the premises, there is no reason to doubt the 12 correctness of the case made out by the department to proceed against the establishment. 8. To get over this position, Counsel for the petitioner contends that the instances referred to in the show-cause notice were subjudice matters and could not be made basis for the action of cancellation of licence. Indeed, the consistent view of this Court is that subjudice cases cannot be taken into account for renewal of licence or cancellation of licence until the person concerned is found to be guilty by the Criminal Court. However, this argument, overlooks that the cases which are pending are against Raju Shashikant Shah, Santosh Anand Bapardekar and the concerned dancers. The fact which is taken into account by the department which is virtually accepted by the petitioner in his defence is that the establishment was found open even after the closing hours. That clearly attracts Rule 7-A of the Rules. 9. Be that as it may, the Competent Authority as well as the Appellate Authority have passed order against the petitioner on the finding that the petitioner has violated the terms and conditions of licence and the rules invouge. The question is whether that finding of the fact needs to be disturbed in exercise of writ jurisdiction under Article 226 of the Constitution. I 13 have no hesitation in answering this issue against the petitioner. Suffice it to observe that no fault can be found with the view taken by the two authorities below on the said aspect. Keeping in mind over all view of the situation including the fact that even in the past on two occasions the Petitioner has already suffered suspension order in respect of establishment; as also even during the pendency of the present show-cause notice, action of suspension of licence for 45 days was ordered and which has been suffered by the petitioner. 10. The two authorities below have also invoked Rule 8(1) in the context of the instances referred to in the show-cause notice. Rule 8(1) mandates that a person keeping a place of public entertainment shall not absent therefrom during the time it is open without obtaining the previous permission of the Licensing Authority to be endorsed on the licence. Admittedly, the petitioner had not taken such prior permission of the Licensing Authority. Nevertheless during the raids conducted by the police it was noticed that the petitioner was found absent from the premises. That clearly attracted Rule 8(1). It is not the petitioner’s case that he was infact present during such raids. That clearly attracts Rule 8(1) of the Rules. 11. Both the Authorities have also found that there has 14 been violation of Rule 8(2) of the Rules. Rule 8(2) of the Rules postulates that no person keeping a place of public entertainment should permit an agent to act for him in the management of such place without the like permission similarly endorsed. Once again, it is not the petitioner’s case that prior permission of the Licensing Authority to allow Raju Shashikant Shah and Santosh Anand or for that matter Shyam Sunder Agrawal to manage the business in the establishment was obtained. According to the petitioner, the petitioner had sent intimation regarding conducting agreement in favour of Shyam Sunder Agrawal. I am in agreement with the argument of the Learned AGP that mere sending intimation of conducting agreement is not sufficient to extricate the petitioner from the rigours of Rule 8(2). For, Rule 8(2) mandates that "prior" permission "in writing" of the Licensing Authority should be obtained for that purpose. That is completely lacking in the present case. The reply filed to the show-cause notice does not dispel the charge in the show-cause notice in any manner. Significantly, it is not the petitioner’s case that the Licensing Authority had granted permission to the petitioner to allow the business to be conducted through Manager Raju Shashikant or Santosh Anand who was found in the premises during the relevant raids. There is no endorsement on the licence in this behalf. In the circumstances, the conclusion about violation of Rule 15 8(2) of the Rules is inevitable. 12. In so far as Rule 21-A is concerned, it postulates "no person keeping a place of public entertainment shall permit during any performance of exhibition or any programme of entertainment at such place. (a) any profanity or any absence or indecent language; (b) any indecency of dream, dance or gestured." 13. Going by the defence of the petitioner, he has not allowed any dancers to behave in indecent manner; whereas the dancers were dancing on recorded music and dance and and replicating the same dance. Significantly, on the one hand petitioner contends that the activity was conducted in the premises by someone other than him and without his knowledge, namely, conductor of restaurant. The petitioner cannot absolve himself on such specious plea. The petitioner is the licence holder. As a matter of fact the terms and conditions of licence and provisions of Rule do not permit the petitioner to unilaterally induct third party to conduct the business therein. That itself is a cause for breach of terms and conditions of licence and the rules, inviting appropriate action. In so far as petitioner is concerned, in the past, before issuance of 16 show-cause notice, on two occasions the entertainment licence was put under suspension. Besides, during the pendency of show-cause notice once again the licence was suspended for 45 days. Further more, it is noticed that the show-cause notice refers to the fact that the petitioner was a defaulter to the extent of Rs. 6,54,500/-. It is a different matter that the petitioner has shown willingness to pay that amount. 14. Suffice it to observe that in the facts and circumstances of the present case, no fault can be found with the conclusion reached by the two authorities below that the only appropriate order to be passed is to cancel the entertainment licence which was operating in favour of the petitioner in respect of establishment Big Splash Bar and Restaurant. 15. At the end of the arguments, Counsel for the petitioner would contend that in that case the respondents be directed to consider the alternative request of the petitioner that the petitioner be allowed to open family restaurant and bar in the same premises on such terms and conditions as may be deemed appropriate as stated in his communication dated 17th January, 2008 and 30th January, 2008. This submission is rightly countered by the Learned AGP on the argument that once the licence is cancelled or revoked, such 17 person cannot be permitted to apply for issuance of fresh licence for place of public entertainment. That would be opposed to the spirit of Section 162(3) of the Bombay Police Act. The said provision read thus follows; 162(3): "When any such licence or written permission is suspended or revoked, or when the period for which the same was granted has expired, the person to whom the same was granted shall, for all purposes of this Act, deemed to be without a licence or written permission, until the order for suspending or revoking the same is cancelled, or until the same is renewed, as the case may be." 16. Reliance can be usefully made to Rule-5, Rule-24 and Rule-27. The same reads thus: "5(1) Every person applying for a licence to open or keep a place of public entertainment shall in the first instance satisfy the Commissioner or Police