1 wp1514-11.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1514 OF 2011 Deepak Kamble .. Petitioner Versus State of Maharashtra & Ors. .. Respondents Mr.P.C.Kansara i/b. Kansara & Thanekar for petitioner Ms.Smita Gaidhane, AGP for State. CORAM : S.C.DHARMADHIKARI, J. 14th September 2011. P.C.: 1] This petition under Article 226 of the Constitution of India is directed against the order passed by the Appellate Authority viz., Minister of Home, State of Maharashtra dated 30th March 2011. The appellate authority has confirmed the order of the Licensing authority dated 1st September 2010, cancelling the licence of the petitioner's establishment. 2] The petitioner claims to be a proprietor and carrying on business in the name and style of Lakshadeep Restaurant together 2 wp1514-11.doc with permit room. He claims that necessary licence under the Bombay Police Act, 1951 and Rules framed thereunder have been issued. He has also obtained necessary licence to serve liquor under Bombay Prohibition Act so also Rules framed thereunder. These licences are renewed from time to time and it is alleged that a case came to be registered under section 4, 5 and 7 of Immoral Traffic Prevention Act on 25th February 2009. The offences alleged are also punishable under Bombay Police Act, 1951. It is alleged that trial insofar as these cases are concerned, is pending before the competent court and there is no order of conviction or sentence. Yet, relying upon these incidents and the pending case, a show cause notice came to be issued bearing No.166 of 2009 dated 29th December 2009 calling upon the petitioners as to why licence should not be cancelled. The allegations are with regard to violations of Rule 8(1), 8(2), 6, 21(a), 23 and 24 of the Entertainment Rules, 1953 and, therefore, while replying to the said show cause notice, petitioner pointed out that no reliance can be placed on pending criminal case and as far as other violations and breaches alleged, there is no substance therein. It was urged that the allegations of breach of Rule 8(1) is not correct and false and 3 wp1514-11.doc frivolous. The petitioner pointed out that one Jayaram Shetty is an employee and he possesses necessary authority/ nokarnama and when he was present, there is no case of violation of this rule, made out. As far as Rule 8(2) is concerned, it was stated that the petitioner was personally present. It is stated that the said Jayaram Shetty is not appointed as a Manager and there is no need or providing his specimen signature. Further, as far as Rule 21(a) is concerned, it was stated that no customer was present and there was no activity which could be held to be objectionable or obscene. For all these reasons, it was prayed that the notice be discharged. 3] The licensing authority was not satisfied with this explanation and proceeded to hold that the petitioner has committed serious violations of the rules by allowing indecent and objectionable activities to be carried out by seven waitresses. While, it is true that the allegations are subject matter of a criminal case which is pending, yet, the petitioner has been repeatedly charged with violations of the rules and the licence was suspended in the year 1993 for fifteen days, in 1998 for five days in 2001 for seven days, in 2002 for three days and in 2004 for seven days. Still, the 4 wp1514-11.doc petitioner has not shown any improvement in conducting the establishment and business and, therefore, this is a fit case where the licence should be cancelled. Accordingly, by the order dated 1st September 2010, the licence came to be cancelled. 4] Aggrieved and dis-satisfied with this order, this subject appeal was filed and the Minister of Home, while confirming the order of the licensing authority, concluded that for violation of rules, action can be taken by issuing show cause notice even during the pendency of criminal case and that has no impact on the subject show cause notice and action taken in pursuance thereof. For all these reasons, the appellate authority found no merit in the appeal and proceeded to dismiss the same. 5] Aggrieved by these orders, this petition has been filed and Mr.Kansara places reliance on a decision of this Court in the case of Abdul Rashid Mohammed (M/s.Hotel Star Night) Vs. The Commissioner of Poloice, Gr.Mumbai & Anr. (W.P.9341 of 2010 dated 9th June 2011). 5 wp1514-11.doc 6] On the other hand, Ms.Gaidhani, learned AGP invites my attention to the affidavit in reply and submits that as far as peritioner's establishment is concerned, law is very clear and it could be proceeded with for violation and breach of terms and conditions on which the licence has been granted to the petitioner. These terms and conditions include adherence to the law and the subject rules. It was pointed out as to how obscene and objectionable activities were being carried out and also there is a violation of the Rules insofar as allowing the establishment to be run and business to be conducted by unauthorised persons. For all these reasons and placing reliance upon a judgement of this Court delivered on 23rd June 2008 in W.P.347 of 2008 (Rajendra Singh proprietor of M/s.Jai Hotel Vs. State of Maharashtra & Ors) that she submits that no interference is necessary. 7] After hearing both sides and perusing with their assistance the petition and the annexures thereto, including the impugned orders, I am of the opinion that as far as show cause notice is concerned, it could have been issued to allege the breaches and violation of the Rules. Assuming pendency of the criminal case was no bar for 6 wp1514-11.doc issuing such a notice, yet, what is apparent from a reading of the order of the licensing authority and that of the appellate authority is that the pendency of criminal case and the incidents leading to the same has influenced and weighed with the authorities. That is the sole basis for alleging violation of the terms and conditions of licence and the rules. Further, what has weighed with the licensing authority is that the establishment of the petitioner was proceeded against earlier and on four occasions, the licence was suspended for breach of the terms and conditions of the licence. For all these reasons, it was held that this is a fit case for cancellation of licence. To my mind, the penalty imposed of cancellation is extreme, excessive and arbitrary. If the petitioner establishment was proceeded against for violation of the terms and conditions of the licence, way back in the years 1996, 1998, 2001, 2002 and 2004 atleast six years had lapsed from the last violation. On all these occasions, it was found that the terms and conditions of the licence were breached but penalty of suspension was adequate enough, then, what weighed with the authorities for imposing extreme penalty of cancellation of licence has not been clarified at all. Beyond pendency of one criminal case which is stated to be about 7 wp1514-11.doc an incident of 14th December 2008, nothing has been pointed out which would lead to the conclusion that the punishment of cancellation of licence is warranted. For these reasons, to my mind, while the authorities may be justifed in proceeding against the petitioner establishment, irrespective of the incident which is the subject matter of pending criminal case, yet, other violations alleged are not such as would justify the penalty of cancellation of licence. To my mind, interest of justice would have been served if for this incident and for the subject violation, the penalty of suspension of licence for seven (7) days would have been imposed. In these circumstances, while setting aside the impugned orders to the extent of penalty imposed i.e. Cancellation of licence and substituting it with penalty of suspension of the licence for seven (7) days, this petition is disposed of. 8] Upon taking instructions, Mr.Kansara states that the petitioner will close down the establishment from 19th September 2011 for clear seven days till 26th September 2011, both days inclusive. If this statement, which is accepted as undertaking to this Court, is fully adhereed to, then, the petitioner may be permitted to carry on 8 wp1514-11.doc business in terms of the licence issued but liberty will be reserved to the department to proceed for such further and other violations, in accordance with law. Needless to state that if the petitioner is not found adhering to the undertaking given to this court, then, in addition to proceeding against the petitioner for contempt of court, the penalty of cancellation of licence would come into effect forthwith without further reference to court. (S.C.DHARMADHIKARI, J)