- 1 - 904-wp-5967-2010 srj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5967 OF 2010 M/s. Hotel Suraj .. Petitioner. V/s. State of Maharashtra & Others .. Respondents. Mr. R. D. Soni with Mr. A. Gawde i/b. M/s. Ram & Co., for the Petitioner. Mr. S. D. Rayrikar, AGP for Respondent Nos.1 to 5. Mr. L. C. Joshi i/b. Mr. Kalpesh Joshi, for Respondent Nos.6 to 10. CORAM: G.S.GODBOLE,J. DATE : 8th DECEMBER, 2011. P.C.:- 1 RULE. Rule made returnable forthwith and heard by consent of the the parties. The learned AGP waives service on behalf of Respondent Nos.1 to 5. Mr. Joshi waives service for Respondent Nos.6 to 10. 2 This is a peculiar case arising out of the provisions of Bombay Police Act, 1951 and Rules For Keeping A Place Of Public Entertainment, 1953 framed by the Commissioner of Bombay Police under the provisions - 2 - 904-wp-5967-2010 of Section 33 of Bombay Police Act, 1951. 3 On 11th November, 2009, the establishment of the Petitioner where it is running eating house with license for running an orchestra as also having a license under the Bombay Prohibition Act, 1949 to serve liquor coupled with Entertainment license under section 33 (w) of the Bombay Police Act, 1951 r/w 1953 rules being 'A' type license for serving liquor in a place of public entertainment. As stated above, the premises were inspected on 11th November, 2009 by Senior Inspector of Police, Immoral Trade, Social Service Branch, Bombay. 9 lady waitresses were found present at 1.25 a.m. (on the night of 11th November, 2011 i.e. at 1.25 a.m. of 12th November, 2011 in the night) and they were found to be making obscene gesture and were also found in close contact with the customers. The customers were found to be throwing Indian Currency Notes on the said lady waitresses. 4 The police also found that the Petitioner being licensor was not present in the establishment and the establishment was being conducted by the person named Ravi H. Adhikari in whose favour, there was no authentication as required by Rules 8(1) and 8(2) of the 1953 Rules. It was also found that the person named Dinnath H. Adhikari was acting as Cashier and even in his favour there was no authentication under Rules 8(1) and 8(2) of the 1953 Rules. - 3 - 904-wp-5967-2010 5 In view of this, two actions were taken. By the first action, Local Act Offence Nos. 3247/2009 to 3255/2009 were registered under Section 110 of the Bombay Police Act, 1951 against 9 lady waitresses. Local Act Offence No. 3256/2009 under Section 33(1)(w) was registered against the conductor Shri Ravi H. Adhikari and Local Act Offence No. 3257/2009 under Section 33(1)(w) was registered against cashier Shri Dinanath H. Adhikari. The second action was to issue show cause notice dated 29th December, 2009 to the Petitioner under Rule 27 of the Place of Public Entertainment Rule, 1953, calling upon him to show cause as to why the license should not be cancelled. It is pertinent to note that the show cause notice also indicated that various complaints had been received from the members of the Garden View CHS Ltd which owned the building in which the eating house establishment of the Petitioner is situated. The Petitioner submitted reply dated 7th January, 2010 which is at Exhibit “B” to the Petition. The reply makes quite interesting reading. The Petitioner accepted the incident of inspection on 11th November, 2009. Petitioner also accepted that the lady waitresses were found working in the establishment beyond 9.30 p.m. The Petitioner, however, contended that he provided dinner to the lady waitresses after 9.30 p.m. and on account of the fact that the staff room in the hotel is very small, the lady waitresses who were yet to have food were helping the other staff - 4 - 904-wp-5967-2010 in the hotel. He also admitted his absence from the establishment and admitted that the conductor Shri Adhikari and the cashier who were present in the establishment and that their names have not been duly endorsed on the license as required under Rule 8 (1) and 8(2) of the 1953 Rules. Thus, the incident of 11th November, 2009 was entirely admitted by the Petitioner. It was contended that with a view to save time which is lost in the Court, the offences had been admitted. No statement was made in respect of the complaint of the society in the show cause notice. The reply pleaded that a lenient view should be taken as the Petitioner and his family members and employees engaged in the hotel business were dependent on its income. 6 By order dated 22nd March, 2010, the licensing authority passed the final order. After holding that the breach of Rules 6, 8(1), 8(2), 21(A) and 24 has been established, the punishment of cancellation of license was imposed. What is urged during the course of hearing is that the complaints of the Society were not provided to the Petitioner and it is clear that apart from the finding and violation of Rule 6, 8(1), 8(2), 21(A) and 24; the licensing authority has also taken in to consideration that there were sufficient complaints received from the other members of the society and on this ground, license was cancelled. - 5 - 904-wp-5967-2010 7 Aggrieved by this order, the Petitioner filed Appeal before the State Government and since stay was not granted during the pendency of the Appeal, a Writ Petition was filed which was disposed off by directing that the order of the licensing authority shall remain stayed during the pendency of the Appeal and for a further period of two weeks in case the decision was adverse to the Petitioner. 8 The Petitioner thereafter filed written submission before the State Government. Ultimately by impugned Judgment and Order dated 6th July, 2010, the Hon'ble Minister for Home Affairs, Government of Maharashtra, dismissed the Appeal filed by the Petitioner, leading to the filing of this Writ Petition. 9 I have heard Mr. Soni, who submitted that no breach of 1953 Rules had been made. He alternatively submitted that assuming that the Petitioner has committed breach of Rules 6, 8(1), 8(2), 21(A) and 24 of the 1953 Rules, the punishment of cancellation of license as unduly harsh and disproportionate as only on account of notice dated 11th November, 2009, license could not have been cancelled. He submitted that so far as the allegations regarding complaints lodged by the members of the society are concerned, except the bare statement in the show cause notice no particulars or documents whatsoever were furnished to the Petitioner and, hence, the Petitioner was denied natural justice, since the licensing - 6 - 904-wp-5967-2010 authority has relied upon the complaints and documents. Mr. Soni therefore submits that this is a fit case where the lenient view needs to be taken. Mr. Rayrikar opposed the Writ Petition and supported the impugned Judgment and Order. According to Mr. Rayrikar, the case of violation of Rule 6, 8(1) and 8(2), 21(A) and 24 had been completely proved. Because of the business carried on behalf of the Petitioner, a lot of nuisance was being faced by other members of the society and, hence, the Petitioner was not found to be fit to conduct a place of public entertainment. Mr. Joshi, learned Advocate for Respondent Nos.6 to 10 pointed out that on account of the business of the Petitioner, the residents of the society were suffering continuously. Mr. Joshi pointed out that the lady waitresses employed in the establishment of the Petitioner also behaved in obscene manner out side the establishment. He pointed out that there is a lot of noise pollution and the residents are disturbed during their sleep at late night on account of noise created by the orchestra as also two and four wheeler vehicles coming and going from the establishment. He submitted that the members of the society were suffering a tremendous noise pollution and, hence the punishment of cancellation of license should be upheld. 10 I have carefully considered the respective submissions of the learned Advocates. In so far as the inspection conducted on 11th - 7 - 904-wp-5967-2010 September, 2009 is concerned, the Petitioner has admitted that he was not personally present in the establishment but the person named Ravi Adhikari was found to be conducting the establishment. It was admitted position that name of Shri Adhikari has not been entered in the license as a Manager in terms of Rules 8(1) and 8(2). The Petitioner also admitted that offences had been registered against nine lady waitresses, the Manager and the Cashier which had resulted in conviction. The Petitioner has also admitted that the nine lady waitresses were found in the establishment beyond 9.30 p.m. and at the time of inspection. Thus breach of rules 6, 8(1), 8(2), 21(A) and 24 had been completely admitted by the Petitioner. However, the show cause notice does not appear to be making a serious allegation regarding nuisance to the other members of the society. 11 According to Mr. Soni, no documents were supplied to the Petitioner in respect of the alleged complaints from the society members and, hence, the reply has not dealt with such complaints. Mr. Soni invited my attention to the ground in the memo of Appeal filed before the State Government and ground (ix) in the memo of Petition. There is nothing to indicate that the complaints filed by the members of the society were communicated to the Petitioner at any point of time. 12 In my opinion, the finding of fact recorded by the Licensing - 8 - 904-wp-5967-2010 Authority, that there is a breach of Rules 6, 8(1), 8(2), 21(A) and 24 is correct as the same was admitted and that does not require any interference. Both the authorities have come to the conclusion that there is a breach of the 1953 Rules by the Petitioner. However, it appears that while taking a final decision, regarding punishment, the licensing authority has also relied upon the complaints received from the members of the society. Mr. Joshi is justified in pointing out that in the show cause notice, the subsequent reference is made to the complaints and are also justified in pointing out that the Petitioner has never demanded the said documents by specific demand. However, one of the basic principles of natural justice is that nobody should be condemned unheard. It was, therefore, necessary for the licensing authority to give copies of the complaints to the Petitioner and also given an opportunity to the Petitioner to meet the said case. This exercise has not been done. 13 I have already upheld the finding of the Licensing Authority regarding breach of rules 6, 8(1), 8(2), 21(A) and 24 and the only question is whether the punishment of cancellation of license is dis- appropriate as alleged by Mr. Soni or is just and proper as alleged by the learned Advocates for the Respondents. For reaching an appropriate conclusion on the quantum of punishment, the Licensing Authority must apply its mind and it is for the Licensing Authority to decide whether - 9 - 904-wp-5967-2010 Petitioner should be imposed major or lesser punishment as contended by Mr. Soni. Only for that limited purpose, I am inclined to remand back the matter to the Licensing Authority. 14 The impugned Order holding that the Petitioner has committed a breach of rules 6, 8(1), 8(2), 21(A) and 24 is not being interfered with. Proceeding is remitted back to the Licensing Authority for the purpose of considering the complaints of the members of the society, giving an opportunity of hearing to the Petitioner on the said complaints of members of the society and providing copies of said complaints and permitting the Petitioner to file supplementary reply and then decide the quantum of punishment. 15 In view of the aforesaid discussion, this Petition partly succeeds. Only for the purpose of considering the quantum of punishment, the matter is remitted back to the Licensing Authority. Licensing Authority should supply copies of all complaints filed by the members of the said society to the Petitioner and permit the Petitioner to file supplementary reply within a period of one week after furnishing the said copies and thereafter Petitioner and the office bearers of the said Society will be heard on the question of quantum of punishment and appropriate order shall be passed. This entire exercise shall be complete on or before 31st December, 2011. - 10 - 904-wp-5967-2010 16 Rule made partly absolute in the aforesaid terms with no order as to costs. (G.S.GODBOLE,J.)