1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. WRIT PETITION NO.1808 OF 2009 Yogesh Ramdeo Shinoy of Amantran Restaurant & Bar ..Petitioner. Vs. State of Maharashtra and Others ..Respondents. .... Mr. Pankaj C. Kansara for the Petitioner. Ms Geeta Shastri, AGP for the Respondents. ...... CORAM : DR. D.Y. CHANDRACHUD, J. 7th December, 2009. P.C. : 1. The Petitioner conducts a restaurant and Bar at Khar. A licence under the Rules for Keeping Places of Public Entertainment (“the rules”) in Greater Mumbai was issued to the Petitioner. A notice to show cause was issued to the Petitioner on 12th June, 2007 for an alleged breach of Rules 8(1), 8(2) and 21-A and the licence was proposed to be suspended under Rule 27 for a period of ninety days. The Petitioner submitted a reply on 25th June, 2007. During the pendency of the notice to show cause, it was alleged that the 2 Petitioner had again violated the terms and conditions of the licence on 17th and 26th May, 2007. A comprehensive notice to show cause was issued on 8th August, 2007 incorporating the allegations contained in the first notice. The first notice was, in the circumstances, withdrawn in view of the issuance of the second notice. It was alleged in the notice that when the establishment was raided by the police the owner was not found present therein and the premises were being unauthorizedly run through one Chandrashekhar Shetty in breach of Rule 8(1). It is also alleged that on 24th April, 23rd and 27th June, 18th September, 12th October, 2006 and on 17th and 26th May, 2007 it was found that waitresses were behaving in an obscene and indecent manner and there was a breach of Rule 21-A. In six out of seven cases a fine had been imposed in the prosecution that had been launched under the Bombay Police Act. The Petitioner filed his reply dated 12th September, 2007 denying the charges and it may be noted that it was specifically stated therein that the Petitioner had not appointed any person as manager in the hotel. The licence was suspended by the Deputy Commissioner of Police for a period of 3 sixty days. The Petitioner carried the order in appeal, which was confirmed by the appellate authority on 28th July, 2009. 2. An affidavit in reply has been filed in these proceedings by the Joint Secretary in the Home Department on 29th September, 2009. An additional affidavit was filed on 27th November, 2009. 3. In paragraph 3(b) of the Petition the Petitioner has made the following statement : “The petitioner has also made an application for enrolling the name of the manager, namely Chandrashekhar Shetty which application was allowed and the name of Chandrashekhar Shetty has been reflected and enrolled on the license.” 4. In order to deal with this statement, an additional affidavit has been filed by the Respondents in which it has been submitted that the Petitioner has not moved this Court with clean hands. It has been stated in the affidavit that in pursuance of an application dated 6th May, 2004 the Third Respondent had passed an order dated 7th 4 August, 2004 granting a licence to maintain a place of public entertainment in exercise of powers under the Bombay Police Act, 1951 read with the Rules of 1953. Accordingly a licence was issued on 24th August, 2004. It has been stated in the reply that the Petitioner had not made any application under Rule 8(2) of the Rules for the purpose of appointing an agent / manager for the management of the place of public entertainment nor had the Petitioner deposited any amount as required by Rule 29(VIII) of the Rules. Hence, there was no question of the authorities passing any order under Rule 8(2) authorizing the Petitioner to appoint an agent / manager. It has been stated that the copy of the licence which is annexed to the Petition at page 131 bears an alleged endorsement which has not been made by the office of the Third Respondent. The procedure which is followed for the purpose of Rule 8 is that on receipt of the application and on payment of requisite fees under Rule 29, an order is passed by the Third Respondent and thereafter an endorsement is made by the office of the Assistant Commissioner of Police, Kherwadi Division by mentioning the order number and the 5 date of the order on the licence under the signature of the concerned officer. It has been stated that in the copy which is annexed to the Petition no order number or date of the order has been mentioned nor does it bear a signature or stamp. It has also been submitted that the falsity of the case of the Petitioner is apparent from his own reply dated 4th September, 2007 in which the Petitioner has stated that he had not appointed any person as a manager. 5. A Petitioner who moves the Court under Article 226 has to be conscious of the discretionary nature of the jurisdiction and of the bounden duty that is cast upon him or her to state facts truthfully. As already noted earlier, in paragraph 3(b) of the Petition the statement before the Court is that the Petitioner had made an application for enrolling the name of his manager, Chandrashekhar Shetty; that the application was allowed and the name of the manager has been reflected and enrolled on the licence. This statement is belied by the Petitioner’s representation dated 12th September, 2007 to the Deputy Commissioner of Police in which he states thus : 6 “In the previous reply I have also mentioned that I have not appointed any person as a manager..” 6. That apart, from the affidavit in reply it is evident that a procedure is prescribed under the Rules for the inclusion inter alia of the name of a conductor or manager in the licence. The Rules for Keeping Places of Public Entertainment in Greater Mumbai spell out the fees that are required to be charged for this purpose in Rule 29(VIII). In the affidavit in reply, it has been stated that the Petitioner had never made an application for the inclusion of the name of his manager in the licence; that he had not paid the fee and that hence no order was passed for the inclusion of the name of the manager. There is a clear misstatement of facts in the Petition. The Petitioner has relied on a statement of facts which is false to his knowledge. The Petition is liable to be dismissed and is dismissed on this ground alone. 7. While deciding a similar case Rajendra P. Singh v. State of Maharashtra (Writ Petition 347 of 2006), a Learned Single Judge of 7 this Court, Hon’ble Mr. Justice S.C. Dharmadhikari observed that neither the law permitting the authorities to grant or to suspend such a licence had been challenged and there was no challenge to the requirement of obtaining a police licence and the conditions imposed or the power to impose them. The Learned Judge held that the extent of judicial interference in such matters has been laid down by the Supreme Court as far back as in the judgment in State of Uttar Pradesh v. Kaushailiya1, and subject to due compliance of the principles of natural justice the authorities “are the best Judges of the situation of the present nature”. The Learned Judge held that there is no absolute right to run a Bar and the grant of such a permission is subject to reasonable restrictions in public interest. An establishment conducting such a business must comply with the terms and conditions of the licence. The Petition challenging the action of cancellation in that case was dismissed. 8. The impugned order has been passed after furnishing to the Petitioner an opportunity of being heard. The contention of the 1 AIR 1964 SC 416. 8 Petitioner both before the appellate authority and in the writ proceedings that he had appointed a manager whose name appeared on the licence which had been issued by the Second Respondent is patently untrue. The fact that the Petitioner had a Nokarnama under the Excise Act does not obviate compliance with the requirements of the Rules in question which had been framed under the Bombay Police Act. The Petitioner, for the reasons already noted earlier, is disentitled to a discretionary and equitable remedy in pursuance of the jurisdiction vested in this Court under Article 226. The statement of fact which is contained in paragraph 3 (b) of the Petition is patently untrue. A party, in the position of the Petitioner, is disentitled to the grant of relief. For the aforesaid reasons, the Petition shall stand dismissed. Stay refused. ****