1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.793 OF 2008 M/s.Gayland Hotels Pvt.Ltd. .. Petitioner Versus The Commissioner of Police Greater Mumbai & Anr. .. Respondents Mrs.Veena Thadani with Mr.Vishal Thadani for petitioner Mr.S.S.Joshi, A.G.P. for state. CORAM : S.C.DHARMADHIKARI, J. DATE : 29th April 2008 P.C. . The petitioner is a private limited company incorporated under the Companies Act, 1956. It has registered office at the address mentioned in the title of the petition. It is carrying on business as a Lodging and Boarding house. It has been conducting the said business under the name and style of M/s.Hotel Beach 2 Garden. It claims to have been issued public entertainment licence and are holding Class A and B licenses. It is the case of the petitioner that they are running a Lodge/Residential Hotel since 1950 and it is for the first time in all these years that a show cause notice has been issued calling upon the petitioner establishment as to why public entertainment license should not be cancelled. The show cause notice is dated 6th February 2007. A detailed reply is given to the show cause notice and stating that except one case where fine has been paid other cases mentioned in the show cause notice are pending disposal in appropriate court. They denied the allegations that their establishment has been facilitating and permitting immoral and indecent activities, including prostitution and all charges in that behalf are baseless. 2. Not being satisfied with the reply to the show cause notice, a personal hearing was held by 3 the licensing authority at which all particulars were given to make good the case in the reply. The show cause notice and the allegations thereto so also the written replies and the record available was considered by the licensing authority and it passed an order suspending the license of the petitioner for a period of 15 continuous days from 7th December 2007. Being aggrieved and dissatisfied with this order, appeal was preferred before the appellate authority and the appellate authority initially did not grant any interim protection /stay and that is why a writ petition was preferred before this Court. When the petition was placed for admission, a statement was made by the concerned police officer that the order passed by the licensing authority will not be given effect to for a period of four weeks. Thereafter, the appeal was taken up for hearing by the appellate authority and by the order passed on 13th March 2008, the said appeal has been dismissed. 4 3. Challenging the above order this petition is filed. 4. When this matter was placed before this Court on 2nd April 2008, at the request of learned A.G.P., granted time and ad-interim reliefs in terms of prayer clause (c). Thereafter, the matter was adjourned from time to time and ultimately the learned A.G.P. filed a reply, petitioner filed a rejoinder. Learned A.G.P. was orally directed to produce the records and he has complied with that direction by producing the record. 5. After the matter was heard for some time, Mrs.Thadani appearing for petitioner reiterated the contention that the establishment has not been subjected to a penal action or suspension of its license on any earlier occasion. This is for the first time that the show cause notice is 5 issued. She has invited my attention to the show cause notice and has urged that the show cause notice proceeds to allege that an offence has been registered being C.R.No.273 of 2006 on 28th January 2006, C.R.No.712 of 2006 on 12th March 2006 and C.R.No.728 of 2006 on 13th March 2006. In the first C.R. deposit has been forfeited and that case is disposed of. In second C.R. fine of RS.3,500/- is imposed. In third C.R. case is pending. As far as fourth C.R. is concerned which is subject C.R.No.9 of 2006, it alleges offences punishable under Prevention of Immoral Traffic Act and section 33(w) and (22) of the Bombay Police Act, 1951. However, that case is also sub-judice. She submits that the first three cases pertain to violation of Rule 8(1) and 8(2) of the Rules framed under the Bombay Police Act. She submits that for the said offence earlier fine was imposed and even deposit was forfeited. This is not a case where the extreme punishment of suspension of the license should be 6 imposed. Further she contended that the case under PETA is sub-judice and the law laid down by this Court is very clear, inasmuch as mere pendency of case cannot be made subject matter of cancellation or suspension unless nexus between pending case and the allegations in show cause notice is established and proved. In such circumstances, she prays that the orders be set aside. 6. Alternatively and without prejudice, she contended that the ad-interim order has been granted by this Court and even prior during the pendency of the appeal the order of suspension has never taken effect. The order of suspension is dated 7th December 2007. Thereafter considering the tourists season and this being lodging and boarding house, several bookings have been made. Bookings include that of foreign tourists. She submits that considering hotel’s proximity to the international airport now 7 cancellation of these bookings would not only result in loss of business but inconvenience to all foreign tourists. Considering this and the breach has been alleged for the first time, this court should take lenient view. 7. Mr.Joshi has supported the impugned order and after inviting my attention to the record, he contended that this is not a fit case for interference under writ jurisdiction. He submits that any lenient view or sympathetic view in such cases is misused and defaulting parties continue their illegal and irregular acts. He also submits that irresponsible and reckless allegations have been made against the concerned, High Powered Police Officials for the first time in writ petition without the same in any way proved or substantiated before licensing and the appellate authority. In such circumstances, even the alternate plea should not be accepted. He points out that there are serious irregularities 8 and illegalities committed. 8. In the case which is registered against the establishment under PETA, role of director and officer of the petitioner has been set out. Statement of the concerned persons including two ladies have been recorded. There are independent witnesses to the incident. In such circumstances, it is futile to urge that a genuine business activity is being conducted in the establishment. 9. After the matter was heard for some time on the last occasion, I had noted the request of Mrs.Thadani for petitioner that the petitioner would place an affidavit before this Court undertaking therein that they would appoint a Manager and thus comply with Rule 8(1) and 8(2) of the Rules within such time as is stipulated by this Court. They would not carry on business activities without a responsible person being 9 appointed and designated as Manager and that they would comply with the Rules by ensuring that the persons named in the application in that behalf would remain present at the site and available. Further, they undertake to carry on business in accordance with the terms and conditions of the license and the rules and that in the event any case is registered against the establishment in future under PETA or otherwise, they are aware that the license can then be cancelled. However, they undertake to abide by all such terms and conditions as are stipulated for granting license and in Rules. 10. Accordingly an affidavit affirmed on 29th April 2008 by Mr.Avnit Bhatia, Director of the petitioner is placed on record. Paras 2, 4 and 5 of the same read thus:- "2. I hereby state that although earlier I had not appointed any Manager 10 in respect of our establishment and I had no got the name of any person endorsed on the license as Manager, in order to ensure better Management of the hotel, I have decided to appoint (1) Ramesh Aswani, (2) Prabhmilan Singh & (3) Narinderjit Singh jointly and severally as Managers of the establishment. I undertake that either one of the said managers or one of the Directors, will always remain present in the Hotel. I say that I have made the necessary application under Rule 8(i) and 8(ii) of the Public Entertainment Rules to the Dy.Commissioner of Police for appointing the said persons as Managers and having their names endorsed as Managers on the licence." "4. I hereby declare and assure this Hon’ble Court that I have not allowed the 11 establishment of M/s.Hotel Beach Garden to be used for any immoral purpose at any time hereinbefore. I hereby solemnly undertake to this Hon’ble Court that I will take necessary steps to ensure that no case is registered against the establishment under the provisions of the Prevention of Immoral Traffic Act in future. I am aware that if any such case is registered against the establishment, the Public Entertainment Licence will be liable for action including cancellation." "5. I hereby assure this Hon’ble Court and undertake to this Hon’ble Court that I will abide by all the terms and conditions of the Public Entertainment Licence and the provisions of the Bombay Police Act, 1951." 12 11. Mrs.Thadani upon instructions from the deponent of this affidavit, who is present in court, makes a statement that application for appointment of all the three persons mentioned in para 2 of the affidavit or any one of them as Manager has also been forwarded to the licensing authority and none other than these three persons shall be designated as managers of the Hotel. They would be responsible for managing and administering the day to day affairs and ensuring that the licence terms and conditions are complied with by the establishment. They would take all responsibilities and also will be liable for such action as is initiated by the authorities. Needless therefore to state that if such an application is forwarded the Authorities to process the same and pass appropriate orders on the same within Ten days from the date of application. Until the orders are passed Mr.Ramesh Aswani or Prabhmilan Singh or Narinderjit Singh or any one of them shall 13 function as manager and would be liable for all consequences including the one enumerated above. Needless to state that the petitioner shall abide by all such requirements and carry out all such directions and orders of the licensing authority, insofar as appointment of manager at site is concerned. If due compliance is made, the license would be endorsed with the abovenamed or one of them as manager. 12. Further Mrs.Thadani after taking instructions makes a statement that the petitioner withdraws all allegations as are made in the correspondence and in the memo of this petition including against Mr.Amitabh Gupta. They also withdraw the complaint made to the Director General of Police. 13. In the light of the above and in the facts peculiar to this case so also considering that the establishment has been carrying on the 14 above business for a considerable period of time, a lenient view of the matter is taken. In the light of the unconditional withdrawal of the allegations and undertakings given to this Court, it is directed that the punishment of suspension of licence for fifteen days shall not be implemented until such time as the petitioner’s application for appointment of the Manager is considered and granted by the licensing authority. Further, within a period of ten days the decision must be taken by the licensing authority and a communication issued in that behalf. With a view to ensure that the petitioner complies with the undertaking given to this Court, it is directed that for a period of fifteen days the license should not be suspended. If within this period any breach of the terms and conditions of the license is noticed, it would be open for the respondents to pass such orders as are permissible in law and then the protection granted by this Court will not enure to the 15 benefit of petitioners. 14. If due compliance is made and the Manager is appointed so also the endorsement made in the license as indicated above, it is directed that the license would then not be suspended on the ground of non compliance with rule 8(i) and (ii). The punishment of suspension of licence would then not come into effect and the orders impugned in this petition would stand quashed and set aside. However, that will be subject to liberty reserved to the licensing authority in the above terms. Further it does not prevent the licensing authority from initiating such action as is permissible in law in case it notices any other violation of the terms and conditions of the license and the rules. Petition disposed of. No costs. 15. It is clarified that three persons who are named as managers would work for eight hours 16 a day in three shifts. R & P is returned to A.G.P. in Court. (S.C.Dharmadhikari, J)