:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 961 OF 2008 Dukhtarbi A. Khan of M/s. Royal Hotel ..Petitioner Vs. State of Maharashtra and ors. ..Respondents Mr. P.C. Kansara i/by Kansara & Thanekar for petitioner. Ms. V.S. Mhaispurkar, AGP for respondents. CORAM: CORAM: CORAM: B.H. MARLAPALLE, J. B.H. MARLAPALLE, J. B.H. MARLAPALLE, J. Date Date Date : April 29, 2008. : April 29, 2008. : April 29, 2008. P.C.: P.C.: P.C.: 1. Heard Mr. Kansara the learned counsel for the petitioner. 2. Rule. Ms. Mhaispurkar waives service for the respondents. 3. By consent of the parties, the petition is taken up for final hearing forthwith. 4. The petitioner is aggrieved by the order dated :2: 12/9/2007 passed by the Commissioner of Police, Greater Mumbai and confirmed by the State Government by dismissing Appeal No. 1 of 2007 as per the Judgment and Order dated 29/1/2008. 5. The petitioner is the owner of M/s. Royal Hotel which consists of about 8 rooms as part of lodging facility for tourists who visit Bombay for site seeing. On the demise of her husband, she made an application on or about 15/2/1988 for transferring the licence in her name and accordingly respondent no.2 renewed the licence for place of public entertainment (Licence No.17/Cuffe Parade dated 15/2/1988) and it was renewed upto 31/3/2006. She has thereafter submitted an application for renewal on 1/4/2006, 1/4/2007. 6. On or about 24/2/2006 the police officers attached to the Colaba Police Station raided the petitioner’s Lodge and registered C.R. No. 140 of 2006 for the offences punishable under Sections 3,4,5 and 7(1) of the Prevention of Immoral Trafficking Act. A show cause notice was issued on 23/8/2006 calling upon the petitioner to submit her explanation as to :3: why the licence granted to her should not be suspended. On or about 16/9/2006 the petitioner submitted her reply through her advocate and denied the allegations set out in the said show cause notice. Consequently, the impugned order was passed on 12/9/2007 by suspending the licence of the petitioner’s Lodge for 120 days and the Appellate Authority while dismissing the appeal agreed with the said order. 7. It is now claimed that the impugned order has been passed by the Commissioner of Police on the following grounds:- (a) Registration of C.R. No. 140 of 2006 for the offence punishable under Sections 3,4,5 and 7(1) of the Prevention of Immoral Trafficking Act. (b) Violation of Rule 8(1). (c) Violation of Rule 8(2). (d) Violation of Rule 23 of the Rules for :4: Keeping Places of Public Entertainment in Greater Bombay, 1953 framed under Section 33 of the Bombay Police Act, 1951. . The Appellate Authority having gone through the record confirmed the reasoning set out by the Commissioner of Police. Mr. Kansara the learned counsel for the petitioner referred to a number of decisions of this court and submitted that pendency of the criminal case cannot be a reason to suspend the licence and the authority will have to wait for the outcome in the trial. The allegation of breach of Rules 8(1) and 8(2) of the Rules of 1953 is incidental to the registration of C.R. No.140 of 2006 and it is not an independent charge and, therefore, licence cannot be suspended. Thirdly, it was submitted that unless it is proved by leading evidence that the Lodge was run through a Contractor/Manager, action under Rules 8(1) and 8(2) cannot be taken for suspension of licence. On the applicability of Rule 23 of the Rules 1953, Mr.Kansara submitted that the same also could be invoked only if the criminal case registered against the persons found in the Lodge at the relevant time is :5: decided and allowed in favour of the prosecution. 8. It appears that the Commissioner of Police was aware about his powers to suspend the licence under Section 162 of the Bombay Police Act, 1951 read with Rule 37 of the Rules of 1953 and, therefore, he proceeded to consider the other reasons like breach of Rules 8(1) and 8(2) etc. As per Mr. Kansara even if it is assumed that there was some reason to believe in the allegations of breach of Rules by the petitioner, the punishment of suspension of the licence for 120 days is too harsh and, therefore, some token punishment would meet the ends of justice more so when the petitioner has already appointed her son as the Manager and during the last about more than one and half years no complaint has been registered against the Lodge run by the petitioner. 9. Ms. Mhaispukar the learned AGP on the other hand submitted that the suspension of 120 days is justified and more so having regards to the past record of the petitioner. :6: 10. I am required to consider whether the impugned order of suspension of licence is sustainable on account of breach of Rules 8(1) and 8(2) of the Rules of 1953 and dehors the pendency of the criminal case against four accused persons who were allegedly picked up from the petitioner’s Lodge during the raid. Section 131 of the Bombay Police Act states that contravention of any Rule or Order made under Section 33 or any of the conditions of a licence issued under such rule or order, or abets the commission of any offence shall on conviction be punished. Section 131AA of the said Act states that the holder of a licence, granted under this Act, in respect of a place of public entertainment shall be responsible, as well as the actual offender for any offence under Section 131 committed by his servant or other agent acting with his express or implied permission on his behalf, as if he himself had committed the same unless he establishes that all due and reasonable precautions were taken by him to prevent the commission of such offence. 11. In her reply to the show cause notice, the petitioner admitted that she had given the Lodge on :7: leave and licence basis to one Mr. Manja (Manunath) Gowda - accused no.1 to conduct the said business of the Lodge. The impugned order also states that in the year 1991 the licence was suspended for three days. On one hand the petitioner claims that she has appointed her son as Manager and on the other hand she admitted that she had handed over the premises on leave and licence basis as per the agreement dated 8/2/2006 to the accused. Under such circumstances, the plea for a token punishment cannot be accepted. The petitioner appeared to be running a Lodge through a contractor, at least at the relevant time. 12. Mr. Kansara the learned counsel for the petitioner, on instructions, has submitted an undertaking before this court that, (a) the petitioner shall run the Lodge through her son who shall be responsible for the day to day activities of the said Lodge; (b) she shall not hand over the Lodge to any third party on leave or licence basis or by any mode, and :8: (c) the licence having been transferred as the LR of her husband, she will ensure that the business is run in keeping with the terms of the licence as renewed from time to time. 13. There is no doubt that the licence is granted on year to year basis and it is subject to renewal. The minimum or maximum limit of suspension of licence has not been set out either in the Act or under the Rules. On account of the stay order granted by this court from time to time, the impugned order could not be put in operation all these days. Having regards to the obtaining circumstances, I am satisfied that the order of suspension of licence cannot be said to be illegal, unreasonable or unjustified and the only issue which is required to be reconsidered is the period of suspension. In my considered opinion, ends of justice would be met if the suspension is limited to a period of three weeks. 14. In the premises, this petition succeeds partly. The order of suspension is hereby confirmed, but the period of suspension is reduced from 120 days :9: to three weeks and on the basis of the undertaking furnished before this court. Undertaking to be furnished within two weeks from today to the Commissioner of Police, Greater Mumbai and a copy of the same to be placed on record in this petition. 15. Rule is made absolute accordingly. (B.H. (B.H. (B.H. Marlapalle,J.) Marlapalle,J.) Marlapalle,J.)