((-1-)) MST IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.291 OF 2008 Bikramsingh Mohansingh Butola Petitioner versus State of Maharashtra & others Respondents Pankaj Kansara i/by Kansara & Thanekar for petitioner. Shekhar Ingawale, AGP for respondents. CORAM : A.M.KHANWILKAR, J. DATE : 20th February 2008 PC : 1. Heard counsel for parties. Rule. Rule made returnable forth by consent. Mr.Ingawale, AGP waives notice for respondents. As short question is involved, petition is taken up for hearing forthwith by consent. 2. This petition takes exception to the order passed by the Minister (Home) dated 23rd January 2008 in Appeal No.Reh 01/2007/64/Adm.5 whereby the petitioner had challenged the order passed by the first authority dated 28th August 2007 ordering suspension of petitioner’s license for a ((-2-)) MST period of thirty days. It is not necessary to burden this judgement with all the events that have led to filing of present petition. For, I am inclined to relegate the parties before the Appellate Authority for consideration of the matter afresh on its own merits in accordance with law. 3. The petitioner would succeed in this petition atleast on two grounds. In the first place, I find substance in the grievance of the petitioner that the authority below has referred to two instances of keeping the restaurant open beyond permissible hours which were not part of the show cause notice issued to the petitioner. Inasmuch as, in the show cause notice, the petitioner was called upon to explain why he should not be proceeded against for having kept the restaurant open till 1.30 a.m. and 1.45 a.m., which resulted into breach of condition No.7(A) of the Rules. However, in the order as passed, the authority has taken into account the instances of keeping the restaurant open till 1.30 a.m., 2.00 a.m., 3.15 a.m. and 1.40 a.m. respectively. Those instances are not referred to in the show cause notice at all. This clearly shows non application of mind muchless taking into ((-3-)) MST consideration the materials which are extraneous to the initiation of the proceedings not referred to in the show cause notice. 4. The second grievance of the petitioner is that the show cause notice calls upon the petitioner to explain the breach of Rule 8(1). In the show cause notice it is stated that one Rajesh Satayanarayan Patwa and Rajkumar Satyanarayan Patwa were found in the hotel during surprise visit, who were discharging duties of Manager. It is stated in the show cause notice that the said persons have been appointed Manager without prior permission of the authority. In response to this charge, the petitioner placed on record that the said Rajesh Satyanarayan Patwa and Rajkumar Satyanarayan Patwa were not appointed as Manager/s as such. However, they are working in the restaurant to assist the petitioner in the conduct of business. The said persons being educated and trustworthy, were permitted to handle cash as and when required. The petitioner also placed on record that if the petitioner has intention to appoint any of these persons as Manager, he would take prior permission of the concerned authority. In the order as passed by the authority, however, this ((-4-)) MST defence has not been adverted to at all. It would have been a different matter if the authority were to consider this stand and reject the same by relying on material available on record before it. That has not been done in the present case. 5. The appropriate course to my mind is to set aside the order of the Appellate Authority and relegate the petitioner to the appellate authority who shall decide all the contentious issues raised by the petitioner on its own merits in accordance with law uninfluenced by the order which is impugned in this petition or for that matter any observation in the present order. I am inclined to relegate the petitioner before the appellate authority as the said authority is the final fact finding authority. 6. Accordingly, this petition succeeds. The impugned judgement and order of the appellate authority is set aside and the matter is remitted to the appellate authority to be proceeded in accordance with law. The petitioner to appear before the appellate authority on 04th March 2008 at 11.00 a.m. in the office of the appellate authority who may proceed to decide the remitted ((-5-)) MST appeal on the same day and time or give suitable date and time as may be advised, while ensuring that the appeal is finally decided on or before 08th April 2008. 7. Till the appeal is finally decided, needless to observe that the order passed by the first authority shall not be given effect to. Petition disposed off on the above terms. (A.M.KHANWILKAR, J.)