903wp8754-11.sxw 1 spb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8754 OF 2011 Shri Ramesh K. Shetty ... Petitioner. Proprietor of Ramesh Bar and Restaurant situated at Plot No.105/25 Sector 23, Turbhe, Navi Mumbai. V/s. 1. State of Maharashtra through the Office of Government Pleader, Writ Cell High Court, A.S.Bombay. 2. Commissioner of Police, Navi Mumbai. 3. Sr. Inspector of Police, APMC Police Station, Turbhe, Navi Mumbai. 4. The Hon’ble Principal Secretary (Home), Govt. of Maharashtra, Mantralaya Mumbai. ... Respondents. --- Mr. P.S. Kansara i/by M/s. Kansara & Thanekar for the Petitioner. Ms. P.S. Cardozo, AGP for Respondent Nos. 1 to 4. --- CORAM:- G.S. GODBOLE, J. DATED :- 18TH NOVEMBER, 2011. ORAL JUDGMENT : 1 Rule. Rule is made returnable forthwith by consent of the parties. Ms. Cardozo, learned AGP waives service on behalf of the Respondents. Heard Mr. Kansara for the Petitioner and Ms. Cardozo, AGP for the 903wp8754-11.sxw 2 Respondents at length. By consent, the Writ Petition is take up for hearing forthwith. 2 By the impugned order passed by the Licensing Authority, the eating house license given to the Petitioner under Section 33 (xa) and the license for public entertainment issued under Section 33 (w) & (y) of the Bombay Police Act, 1951 has been cancelled by the Commissioner of Police, Navi Mumbai by order dated 30th June, 2011 and the Appeal filed by the Petitioner has been dismissed. The facts of this case lie in a very narrow compass and are as under. 3 The Petitioner has been given a license to open/keep the place of public entertainment bearing license No. “CP/NM/LB-1/4/2004” in his eating house known as “Ramesh Bar And Restaurant” situated at Plot No. 105/25, Sector 23, Janta Market, Turbhe, Navi Mumbai. A separate license for eating house has also been granted to the Petitioner bearing No. 81/83(1)) under the provisions of Section 33 (xa) of the BP Act, 1951. 4 Establishment of the Petitioner was inspected on 04.11.2010 by the local police at 12.15 in the night when it was found that 10 lady waitress 903wp8754-11.sxw 3 were making obscene gestures and were in close physical contacts with customers and hence, two actions were taken. First was filing a criminal complaint vide N.C. No. 366 to 375 under Sections 110 and 117 of the Bombay Police Act, 1951. Second action was to make a report to the Licensing Authority and on the basis of this report a show cause notice was issued by the Licensing Authority on 7.4.2011, which was duly served on the Petitioner. The Petitioner submitted a reply on 25.4.2011 and accepted the guilt by stating that henceforth only the lady waitresses in whose favour proper Nokarnama is executed would be allowed to remain present in the establishment and he will ensure that henceforth lady waitress will not indulge in any obscene gestures and will not be allowed to come in close physical contact with the customers and that he will scrupulously follow all the terms and conditions of the entertainment license. 5 In the say to the show cause notice both the licenses, namely, eating house license and public entertainment license are mentioned but text of the show cause notice essentially deals with the license for public entertainment. In the reply filed by the Petitioner, the same fact is mentioned. 903wp8754-11.sxw 4 6 Thereafter, the Petitioner was given an opportunity of personal hearing on 13.06.2011 and even during the course of the personal hearing, he admitted his guilt and assured that in future he will take proper care and will ensure that a similar mistake is not committed in future. Thereupon the Commissioner of Police, Navi Mumbai passed first impugned order dated 30th June, 2011 (Exh. F pages 72 - 74) and cancelled both the license namely, eating house License No. 81/83(10)/ 2010 and public entertainment license bearing no. “CP/NM/LB-1/4/2004” though there is a typing error in respect of the number of the said license in the impugned order. 7 Aggrieved by this order, the Petitioner filed an Appeal under Rule 35 of the Places of Public Entertainment Rules, 1971 framed by the Commissioner of Police, Navi Mumbai under section 33 of the BP Act, 1951. The Principal Secretary (Appeal and Security) of the Home Department of the Government of Maharashtra thereafter passed impugned Judgment and Order dated 3.10.2011, Exh. J pages 133 to 135, and the Appeal was dismissed on the ground that there was a breach of conditions of license. Aggrieved by this orders, the present Writ Petition has been 903wp8754-11.sxw 5 filed. 8 Mr. Kansara for the Petitioner advanced following submissions : (a) that the impugned order of cancellation of the eating house license is completely without jurisdiction since there was no effective show cause notice for cancellation of the eating house license and merely because the said show cause notice and the reply referred the eating house license, it can not be construed that the eating house license was also proposed to be cancelled and hence the Petitioner did not deal with that aspect in the reply at all. In other words, according to Mr. Kansara the impugned order of the licensing Authority in so far as it cancels the eating house license is entirely without jurisdiction as the same is passed in breach of the Rules of natural justice. (b) In respect of the cancellation of license for Public Entertainment, it is submitted that this was the first ever breach of the condition of the license which was honestly admitted and the Petitioner has given honest assurance that henceforth only those lady waitresses who had valid prescribed Nokarnama would be allowed 903wp8754-11.sxw 6 to remain present in the establishment and the Petitioner would ensure they did not indulge in any obscene or illegal activities. (c) Once this assurance was given and in the absence of any past history of the breaches by the Petitioner the punishment of cancellation of the entertainment license was disproportionately harsh. 9 Mr. Kansara had tendered an Affidavit of Balkrishna Shetty, duly constituted attorney of the Petitioner wherein he has given undertaking that he is ready to have license suspended till 31st March, 2012. 10 On the other hand Ms. Cardozo, AGP, submitted that since there was an express admission of the Petitioner regarding events which took place on 4.11.2010, the licensing Authority was justified in cancelling both the licenses and was also justified in imposing punishment of cancellation as on his own showing, the Petitioner misused the eating house or a place of public entertainment. In so far as the submission of Mr. Kansara, regarding proportionality of the punishment, she submitted that the licensing Authority has discretion either to cancel the license 903wp8754-11.sxw 7 or suspend and that there is valid exercise of discretion done by the Licensing Authority. She further submitted that in fact there is past history of suspension of the license for public entertainment for a period of 5 days in September, 2009 which is reflected from the office file available with her. She further fairly accepted that neither in the show cause notice nor in the order of the licensing Authority there is any reference to the past history of the Petitioner. In so far as the argument regarding lack of notice in respect of the eating house license it was submitted by Ms. Cardozo that the notice was a composite notice and in that both the licenses were mentioned and the Petitioner had also understood the contents of the notice to mean that it was for both the licenses. 11 I have carefully considered the rival submissions and following points are required to be decided : (i) Whether show cause notice can be construed to be sufficient notice to call for the Petitioner to show cause for cancellation of even the eating house license under section 33 (xa) of the Act ?. (ii) Whether there was justification for cancellation of the 903wp8754-11.sxw 8 eating house license?. (iii) Whether there was justification for cancellation of the license to keep of place of public entertainment and whether that punishment is disproportionately harsh /severe. 12 In so far as Point No.(i) is concerned, Mr. Kansara is right in his submission that though in the subject of the show cause notice both licenses were mentioned but in the order of the show cause notice there is no whisper about the eating house license and the show cause notice is thus essentially a show cause notice for the purpose of cancellation of the license to keep a place of public entertainment. Even otherwise there is virtually no reason given by the licensing Authority or the Appellate Authority as to why it was found necessary to cancel even the eating house license when the eating house license under section 33 (xa) of the Act is distinct and different than the license to keep public entertainment which is issued under section 33(w) of the said Act. The license for public entertainment is issued to run a eating house which is allowed to serve liquor and other alcoholic drinks to its customers pursuant to the license under the Rules framed under the Bombay Prohibition Act, 1949 . These two licenses are, therefore, operating in different fields. There was 903wp8754-11.sxw 9 thus no effective notice in respect of the action of the cancellation of the eating house license and on that ground alone, I am satisfied that the impugned order of the licensing Authority cancelling the eating house license deserves to be quashed and set aside. 13 Thus Point Nos. 1 and 2 framed above will have to be answered in favour of the Petitioner. 14 In so far as Point No.3 is concerned, though Ms. Cardozo submits that there was past history of suspension of 5 days in the year September, 2009 neither the show cause notice nor the order of licensing Authority reflects this. It is thus clear that this material was not considered by the Licensing Authority itself nor has been considered by the Appellate Authority. Hence, though I do not doubt the correctness of the statement of the learned AGP Ms. Cardozo that cannot be made a ground for supporting the order of cancellation of the license. The grounds for judicial review of the administrative omission are well established and proportionality is one of the grounds for judicial review. If the Licensing Authority did not consider the earlier incident of September, 2009 as a ground for proposed cancellation, that aspect will have to be ignored from consideration. Once so ignored, it is clear that the licensing Authority 903wp8754-11.sxw 10 had only one incident of breaches committed by the licensee. It is no doubt true that the licensee had admitted the guilt and therefore, the licensing Authority was justified in coming to the conclusion that some coercive and punitive action needs to be taken against the licensee. However, action of permanent cancellation of the license is too harsh and that would permanently debar the Petitioner from serving alcoholic drinks in his establishment. It is no doubt true that some punitive action was required to be taken but on the touch stone of doctrine of proportionality the action of Licensing Authority does not pass a test of reasonableness. The Petitioner has filed Affidavit-cum-undertaking through his constituted attorney and Mr. Kansara states that a similar Affidavit personally sworn by the Petitioner would also be filed within 10 days from today. The Petitioner has shown his willingness to have his license suspended till 31.3.2012. In the absence of any past history, I could have accepted this request of the Petitioner. However, since I do not doubt the statement of Ms. Cardozo made at the Bar, though I am of the opinion that the punishment of the cancellation of the license is unduly and excessively harsh and disproportionate; in my opinion interests of justice would be served if instead of cancellation of the license of keeping place of public entertainment, the license is suspended for a 903wp8754-11.sxw 11 period ending 15th May, 2012. 15 Hence, I pass following order. i) Rule is made partly absolute. ii) The impugned Judgment and order dated 30th June, 2010 passed by the Respondent No.2 Commissioner of Police, Navi Mumbai in so far as it cancels the eating house license of the Petitioner bearing No. 81/83(10) is quashed and set aside in its entirety. (iii) The said order dated 30th June, 2010 in so far as it cancels the license to open/keep a place of public entertainment bearing CP/NM/LB-1/4/2004 is also quashed and set aside and it is directed that instead of cancellation, the said license to open /keep place of public entertainment shall remain suspended till 15th May, 2011 subject to the condition that within a period of 10 days from today the Petitioner files written undertaking of the Petitioner himself in this court and also before the Commissioner of Police, Navi Mumbai that he will accept the penalty of suspension of the license till 15th May, 2012. (iv) Needless to state that since license is only suspended, this order will not come in the way of the Petitioner or the Respondent 903wp8754-11.sxw 12 Licensing Authority to renew the License of the Petitioner both for eating house and for keeping of place of public entertainment if other conditions for renewal are duly complied with. [G. S. GODBOLE, J.]