NMW57-11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.57 OF 2011 IN WRIT PETITION NO.296 OF 2005 Chandraprakash N. Agarwal .. Petitioner Versus State of Maharashtra & Ors .. Respondents Mr.S.P.Kanuga a/w Hitesh Vyas for the petitioner. Mr.M.V.More, A.G.P for the State. CORAM : S.C.DHARMADHIKARI, J. DATE : 25th January 2011 P.C.: 1] Heard. For the reasons set out in the affidavit in support, the order dismissing the petition in default is recalled. Petition is restored to file. Instead of restoring the interim and keeping the petition pending, with the consent of both sides, I have heard the petition finally. 2] The only contention raised by Mr.Kanuga, learned Counsel NMW57-11 2 appearing for petitioner is that the impugned orders have been passed on a show cause notice dated 7th February 2003. This show cause notice repeats the allegations in an earlier show cause notice. The earlier show cause notice is dated 16th October 2002. The very same incidents and cases are referred to in the show cause notice dated 7th February 2003 based upon which the order of cancellation of licence has been passed. 3] Mr.Kanuga submits that the earlier show cause notice was withdrawn. The second show cause notice is based on the same grounds and incidents. Further, there is complete non application of mind on the part of the authorities while passing the order of cancellation of licence inasmuch as the authorities are aware that Mr.Hitesh Vyas was engaged as an Advocate and he replied to the allegations in the show cause notice by forwarding reply/ written submissions. It is he who appeared before the Competent Authority. But, instead some other Advocate’s name is referred and without in any manner dealing with any of the arguments and points raised in the NMW57-11 3 written submissions so also oral arguments the order has been passed. 4] The appeal against the order of the competent authority is dealt with by the Home Minister of the State and the order was passed by the Joint Secretary, Home Department. For all these reasons, the impugned orders cannot be sustained and deserve to be set aside. 5] Mr.More, learned AGP appearing for respondents invited my attention to the affidavits in reply and also to the complaints received from residents and has submitted that each one of them has given their statement supporting the complaints that the indecent behaviour of the staff as also the waitresses and bar girls has been a cause of continuous nuisance and annoyance to the members residing in the residential locality. For all these reasons, he submits that the impugned orders should not be quashed and set aside but upheld in public interest. 6] After having heard learned Advocates at some length and NMW57-11 4 perusing with their assistance the impugned orders, I am of the opinion that they cannot be sustained because they are vitiated by complete non application of mind. There is absolutely no discussion as to why self-same incidents are made subject matter of the second show cause notice and whether the nuisance continues or not. Further, there is no reference to the complaints made leave alone the complainants/ members of the housing society whose statements have been recorded. Particularly, there is serious infirmity inasmuch as the authority was aware of one Advocate having appeared for the petitioner establishment but during the course of conclusions, the name of another Advocate appears and there is mixing up of facts as well. The Appellate Authority’s order also suffers from non application of mind and particularly the contents of the affidavit of one Mr.Mahajan would indicate that if the Minister had already concluded the hearing and had drawn up the order, there is nothing which would empower the Joint Secretary to sign the same and communicate it. In the absence of any authority either under the Conduct of Business Rules or otherwise, it is not clear how Joint NMW57-11 5 Secretary becomes the Appellate Authority. In these circumstances, even that order deserves to be set aside. 7] At this stage, I indicated to Mr.More that the Authority who is in charge of issuing show cause notice and passing order of cancellation of the licence should hear the petitioner establishment afresh. He stated that respondents would have no objection to this course but at such hearing even members of the society who have lodged complaints and given statements be allowed to intervene. Mr.Kanuga has no objection to this course and submitted that in fact the petitioner establishment would like these persons, who have given their statements to remain present, so that they can be cross examined and the contents can be relied upon only in accordance with the principles of natural justice. 8] For all these reasons, I proceed to quash and set aside the impugned orders passed by the Deputy Commissioner of Police and the Joint Secretary, Department of Home, Government of NMW57-11 6 Maharashtra. Rule is made absolute in these terms. The show cause notice dated 7th February 2003 will now be heard by the second respondent afresh and he will pass final orders thereon within two months from the date of petitioner’s first appearance. 9] The petitioner shall appear before the Deputy Commissioner of Police of the concerned zone on 8th February 2011 at 11 a.m. Needless, therefore, to clarify that since the impugned orders are set aside, the Deputy Commissioner shall apply his mind afresh and while passing final orders he should not be influenced by any of the observations in the earlier orders. He should independently apply his mind and decide the proceedings. 10] Further needless to add that since the impugned orders are quashed and set aside, the petitioner establishment can carry on its business in accordance with the terms and conditions of licence but subject to the proceedings being decided as above. All contentions of both sides are kept open and this Court has not expressed any opinion NMW57-11 7 thereon. 11] Rule absolute as above. No costs. (S.C.DHARMADHIKARI, J)