1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi WRIT PETITION NO.576 OF 2009. Dhananjay C. Shetty. ..Petitioner. vs. The Commissioner of Police & Anr. ..Respondents. .... Ms. Veena Thadani, for Petitioner. Mr.R.R. Bhosale, AGP, for Respondent Nos.1 & 2. .... CORAM : S.J.KATHAWALLA, J. DATE : 5TH AUGUST 2009. P.C. Rule. 2. By consent of the parties, rule made returnable forthwith. 3. Heard learned Advocates appearing for the petitioner as well as respondent nos.1 and 2. 4. This writ petition is filed by the petitioner seeking orders and directions of this Court calling for the papers and proceedings relating to the impugned orders dated 20 th September 2008 and 20 th February 2009 passed by the first and second respondents and after inquiring in to the validity and/or legality thereof to quash and set aside the said orders. 2 5. The petitioner is carrying on business of running of M/s. HOTEL IN PHOM at 148, Juhu Tara Road, Juhu, Mumbai. The petitioner holds a Public Entertainment License issued to him by the first respondent (Licensing Authority) under the provisions of the Public Entertainment Rules, 1953 which rules are framed under the Bombay Police Act, 1951. 6. It is the petitioner’s case that a show cause notice dated 18 th August 2007 was issued to him asking him to show cause as to why his public entertainment license no. 86/Santacruz should not be suspended for a period of 90 days. Under the show cause notice, it was alleged that the petitioner has violated Rules 7(A), 8(1), 8(2) and 24 of the Public Entertainment Rules. The petitioner replied to the show cause notice by his letter dated 29 th August 2008 pointing out that all the criminal cases pertaining to the same charge were pending before the Special Metropolitan Magistrate, Andheri and requested that no action be taken against his establishment and the show cause notice be withdrawn. Thereafter, the petitioner was called for a personal hearing in the matter by the first respondent on 4 th September 2008. The 3 petitioner vehemently denied the allegations made against him that he has violated Rule 7(A) of the Public Entertainment Rules, since the petitioner’s establishment was permitted to function upto 1.30 a.m. in accordance with law and the petitioner had not kept his establishment open after 1.30 a.m. The petitioner denied violating Rules 7A, 8(1), 8(2) and 24 of the Public Entertainment License Rules. 7. On 25 th September 2008, the petitioner received the orders dated 20 th September 2008 passed by the first respondent suspending the Public Entertainment License of the petitioner for a period of 45 continuous days. The petitioner has submitted that in the impugned order the first respondent had wrongly stated that the accused in case no.621 of 2007 had been convicted and the bail deposit has been forfeited. The petitioner sent a letter to the first respondent dated 29 th September 2008 and also met him personally and appraised him of the fact that there was an error apparent on the face of the record and the third case was also pending in Court. 8. The petitioner thereafter filed an appeal before the second respondent on 13 th October 2008 impugning the said order dated 20 th 4 September 2008. The second respondent heard the Advocate for the petitioner and rejected the appeal by an order dated 20 th February 2009, after which the present writ petition is filed. 9. It is inter-alia contended by the learned Advocate appearing for the petitioner that the authorities have not applied their mind whilst passing the impugned orders, is clear from the fact that it is wrongly recorded that the accused in case no.621 of 2007 has been convicted and the bail deposit has been forfeited. Though it was pointed out to the first as well as to the second respondents that case no.621 of 2007 was pending before the Court and the recording pertaining to the third case is incorrect, they did not bother to even correct the error apparent on the face of the orders. It is inter-alia also submitted that respondent nos. 1 and 2 have completely ignored the fact that the allegation of violation of Rule 7A has not been proved and the cases registered on 21 st November 2005 and 14 th February 2007 for alleged late closure could not be proven in Court and hence could not be used for initiating administrative action against the petitioner. It is submitted that even the second respondent failed to appreciate that the 5 two charges registered on 21 st November 2005 and 14 th February 2007 were the only material on the basis of which the allegation regarding violation of Rules 8(1) and 8(2) were being made. It is submitted that the establishment was visited by the police on 21 st November 2005 and 14 th February 2007 after the establishment was closed and there were no customers and only the staff was having food/cleaning utensils. On 25 th November 2005, the police came to the establishment at 20.45 hours and booked a false and bogus case against the petitioner. It is submitted that though the name of Mr. Mahendra Shetty is endorsed on the license as a “Manager”, the authorities have alleged that no one is shown as Manager on the license. It is submitted that the petitioner is always present personally in the restaurant and carries on business in accordance with law. It is submitted that save and except the charges, there was no other independent and cogent evidence to substantiate the allegation that the Public Entertainment Rules, 1953 has been violated. It is further submitted that as the petitioner has not violated any provisions of law and the Public Entertainment Rules, 1953, the question of violation of Rule 24 of the Public Entertainment Rules, 6 1953 does not arise. The impugned orders passed by the respondents are absolutely illegal and deserve to be quashed and set aside by this Court. 10. The learned Advocate appearing for respondent nos. 1 and 2 has pointed out that panchanamas were prepared on the days when the premises were raided and it was found that certain customers were present. He has pointed out that the respondent no.2 has in paragraph 6 of his order recorded that he has examined the documents made available to him and therefore, the order passed by respondent no.2 is after examining the said documents. He has submitted that the reply to the show cause notice is sketchy. However, the learned Advocate for respondent nos. 1 and 2 has conceded that though at the time of the first personal hearing itself before the respondent no.1, the petitioner had disputed the charges and had contended that the “police have registered the offences at the time of cleaning of the establishment”, and had argued before the respondent no.2 that “While suspending the license, the respondent had no documentary evidence. Hence, it is necessary that the show cause notice ought to have been withdrawn.”, 7 the purported documentary evidence on the basis of which the impugned orders were passed, i.e. the panchanama, etc. was neither mentioned in the show cause notice or is mentioned in any of the impugned orders. The same is also not shown to the petitioner. 11. I have considered the submissions made on behalf of the petitioner as well as the respondents. I have also gone through the various decisions of this Court to which my attention was drawn by the learned Advocates appearing for the parties. I have gone through the decision of this Court [Coram : Dr. D.Y. Chandrachud, J.] dated 17 th June 2004 in the case of Padma N. Kakarne v/s. The Commissioner of Police, Mumbai and Another, wherein it is categorically held that while it is open to the authorities to proceed against the license holder if there is a breach of the conditions governing the license, that breach must be established by cogent material. As in that case, even in this case, in my view, respondent nos. 1 and 2 have erroneously not established the alleged breach on the basis of cogent material. If there are documents in support of such breach, in my view, such documents not only ought to have been referred to in the show cause notice but the 8 documents also ought to have been mentioned in the impugned orders to enable the petitioner as well as the Court to know/understand as to which are the documents, the respondent nos. 1 and 2 have examined before passing of the impugned orders, more so when the petitioner has denied/disputed the charges levelled in the show cause notice at the personal hearings given by the respondent nos. 1 and 2 and have also denied/disputed the existence of any documentary evidence in support of the charges levelled against him. The petitioner must know which are the documents which have formed the basis of the orders under which the petitioner is held guilty and is punished. By not mentioning in the show cause notice or in the impugned orders as to what is the cogent material in possession of the authorities which has been the basis of the impugned order, the suspension of the license of a party who has admittedly denied/disputed the charges, would in my view, deserve immediate setting aside of the impugned order/s. 12. Hence, in my view, the appropriate order to pass would be to remit the proceeding back to the Deputy Commissioner of Police for 9 deciding upon the notice to show cause afresh in the light of the observations contained in the order. In the event that the authority seek to supplement the notice to show cause that has already been issued to the petitioner with additional material or carry out any corrections therein, it would be open to the authority to do so by issuing supplementary notice to the show cause notice. In the circumstances, the impugned orders dated 20 th September 2008 and 20 th February 2009 passed by the first and second respondents are quashed and set aside in order to facilitate fresh decision on the show cause notice issued to the petitioner. The Deputy Commissioner of Police shall endeavour to do so within a period of 4 weeks from today. 13. While disposing of the petition, it is clarified that no opinion is expressed on the merits of the allegations which have been levelled against the petitioner. Parties be supplied with a copy of this order duly authenticated by the P.A. of this Court. [ S.J.KATHAWALLA, J. ]