bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 6996 OF 2008 PETITION NO. 6996 OF 2008 PETITION NO. 6996 OF 2008 Jaya M. Shetty ... Petitioner v/s 1. The Assistant Commissioner of Police, Ulhasnagar Divn., Dist. Thane; 2. The State of Maharashtra ... Respondents Mrs.Veena Thadani i/by Mr.Vishal Thadhani for the petitioner. Mr.P.P.Kakade, A.G.P. for respondent Nos.1 and 2. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 17TH DECEMBER, 2008 17TH DECEMBER, 2008 17TH DECEMBER, 2008 P.C. P.C. P.C.: 1. This petition has been filed against the order of the respondents for not renewing the eating house registration certificate and the licence issued for a place for public entertainment under the Bombay Police Act in favour of the petitioner for the year 2008-2009. 2. The premises in which the petitioner is running his business were owned by Vazirani & Vazirani (in short, "the Vaziranis") prior to 1992, according to the petitioner. The Vaziranis entered into a conducting 2 agreement on 31.5.1992 for a period of approximately five years with one Rakesh Rai, and permitted him to conduct his business in the suit premises. According to the petitioner, since there was a clause in the conducting agreement which gave liberty to Rakesh Rai to purchase the establishment, he opted for the same. A Memorandum of Understanding was reached between Rakesh Rai and the Vaziranis for an amount of Rs.26 lacs. The entire transaction was to be completed by 31.3.2002. It was agreed between the parties that Rakesh Rai would remain in possession of the premises and carry on the business during this period. Thereafter on 1.10.1999 an agreement of licence to conduct the business was reached between Rakesh Rai and the petitioner. The petitioner obtained all the necessary licences to conduct an eating house and permit room in the premises. The licences which stood in Rakesh Rai’s name were renewed from time to time till Rakesh Rai died a violent death in 2005. The petitioner claims that the entire amount of Rs.26 lacs was handed over by Rakesh Rai to the Vaziranis and an agreement of sale was executed between them on 31.3.2002. The petitioner also claims that thereafter the Vaziranis reneged on their promise to execute the deed of conveyance. A suit was filed by the Vaziranis in 2002 against Rakesh Rai seeking an injunction against him. The application for injunction was rejected by the 3 Civil Court. Rakesh Rai filed Suit No.173 of 2002 before the Civil Judge, Sr.Divn., Kalyan and an order was passed directing Vaziranis not to evict the petitioner except by following the due process of law. 3. A suit was filed by the widow of Rakesh Rai before the Civil Judge, Jr.Divn., Ulhasnagar in which an injunction was sought against the Vaziranis for dispossessing the petitioner from the suit premises. The Vaziranis thereafter filed two suits before the Civil Judge, Sr.Divn., one against the Commissioner of Police and the other against the State Excise Department as well as the petitioner. A declaration and an injunction was sought in respect of the premises. However, no order has been passed by any Court thus far injuncting the petitioner from carrying on the business in the premises. 4. The licences for running the business of an eating house and permit room were renewed from time to time. The last renewal was for the year 2007-2008. The petitioner applied for renewal of the eating house registration certificate and the public entertainment for the year 2008-2009 on 26.3.2008. The petitioner also applied for the renewal of the FL III licence by paying the necessary licence fees. He obtained the 4 necessary certificate from the Fire Brigade Officer, Ulhasnagar Mahanagar Palika for running the business. 5. On 5.4.2008, the petitioner received a letter from the Assistant Commissioner of Police, Ulhasnagar, returning the papers submitted for renewal of the licence for public entertainment and the eating house registration certificate. The renewal was refused on the ground that the Vaziranis had filed complaints pointing out that the agreement with the petitioner had drawn to an end in the year 1999 and that it was not renewed subsequently. The Commissioner of Police had issued directions not to renew the eating house and permit room licences in the petitioner’s favour in view of the suit filed by the Vaziranis and which was pending adjudication. 6. Thereafter the petitioner received a notice on 29.4.2008 calling upon him to show cause as to why his eating house registration certificate and the public entertainment licences should not be cancelled on the ground that the conducting agreement between him and the Vaziranis had not been renewed after 1999. The petitioner replied to the show cause notice. Not being satisfied with the reply, by an order dated 1.6.2008 the Collector of Thane closed down the business of the 5 petitioner under Section 142(2) of the Bombay Prohibition Act, 1949. The Police had informed the State Excise Department that the FL III licence should not be renewed in favour of the petitioner because of the objections raised by the Vaziranis. The premises were then sealed by the State Excise Department. An order was issued on 5.6.2008 by the Assistant Commissioner of Police, Ulhasnagar Division, suspending the petitioner’s eating house registration certificate and the public entertainment licence indefinitely on the ground that the Vazirani’s had raised certain objections to the continuance of the business run by the petitioner. The order also mentions that the petitioner had violated the terms and conditions of the licences without mentioning any specific term which was breached. 7. An appeal was preferred by the petitioner to the appellate authority under the Bombay Police Act. Since neither the appeal nor the stay application were heard by the respondent No.2 herein, the petitioner preferred Writ Petition No.4825 of 2008 in this Court. By an order dated 7.7.2008, this Court directed that the interim relief application filed by the petitioner in the appeal should be disposed of by the appellate authority within two weeks from the date of receipt of the order of the High Court. The appeal itself was 6 disposed of by the 2nd respondent on 15.9.2008 confirming the order passed by the Assistant Commissioner of Police. Hence the present petition. 8. The only reason for non-renewal of the licences in favour of the petitioner is that the Vaziranis had filed a suit against the petitioner with respect to the possession of the premises. Admittedly, no orders have been obtained by the Vaziranis from the Civil Court restraining the petitioner from conducting the business in the premises. Therefore, in my opinion, the reason for the non-renewal of the licences is unacceptable. The learned A.G.P. was unable to bring to my notice any rule or condition in the licences which stipulates that it was incumbent on a person who seeks the renewal of such licences to obtain a "No Objection" from the landlord or the owner of the premises. 9. In the present case, the dispute with regard to the ownership and possession of the premises is pending before the Civil Court since the year 2002. No interim orders have been obtained by the Vaziranis in the suit filed by them in the year 2002 or in the subsequent suits. The licences have been renewed in favour of the petitioner from 2003 onwards despite the pendency of the suits. Therefore, the ground for non-renewal of the 7 licences in favour of the petitioner is unsustainable. The reasons stated in the impugned order is that the Vaziranis had pointed out to the authorities that the agreement with Rakesh Rai had come to an end in the year 1999 and that the agreement had not been subsequently renewed. An affidavit has been filed by the Assistant Commissioner of Police, Ulhasnagar Division, reiterating that the only reason for the non-renewal of the licences is the objection raised by the Vaziranis regarding the possession of the premises. Despite this, the petitioner has been issued licences from the year 2003 onwards. There is no material on record to indicate that the petitioner has violated any of the terms of the licences or that the petitioner had been prosecuted for violating the terms and conditions of the licences due to which they have not been renewed. 10. In such circumstances, the petition must be allowed. 11. The orders impugned are set aside. 12. Respondent Nos.1 and 2 will consider the application filed for renewal of licences afresh. They will not take into account the fact that suits have been filed by the Vaziranis against Rakesh Rai, his heirs and 8 the petitioner, unless any orders are obtained from the Civil Court directing that the licences should not be renewed. The respondents will dispose of the applications within 10 days from the date of this order.