wp7901-11.sxw 1 spb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7901 OF 2011 Ramarai Rammilan Rai ... Petitioner. Owner of Missile Restaurant & Bar, situated at Gate No.2, Bhagat Singh Road, Goregaon (W), Mumbai- 400 104. V/s. 1. State of Maharashtra through the Office of Government Pleader, Writ Cell High Court, A.S.Bombay. 2. Commissioner of Police, Gr. Mumbai, Hotel Branch Mumbai. 3 Deputy Commissioner of Police, H.Q.I (Licensing Authority), Hotel Branch, Mumbai. 4. The Hon’ble Home Minister (State), Govt. of Maharashtra, Mantralaya, Mumbai. ... Respondents. 5. Senior Inspector of Police, Bangur Nagar Police Station, --- Mr. P.S. Kansara i/by M/s. Kansara & Thanekar for the Petitioner. Ms. P.S. Cardozo, AGP for Respondent Nos. 1 to 5. --- CORAM:- G.S. GODBOLE, J. DATED :- 23rd NOVEMBER, 2011. ORAL JUDGMENT : 1 Rule. Rule is made returnable forthwith and heard finally by consent of the parties. Ms. Cardozo, learned AGP waives service on behalf wp7901-11.sxw 2 of the Respondents. 2 Heard Mr. Kansara for the Petitioner and Ms. Cardozo, AGP for the Respondents. 3 The Petitioner claims to be one of the partners of the establishment of an eating house known as “Missile Restaurant and Bar”, Goregaon (W), Mumbai. A license to keep a place of public entertainment has been given to the Petitioner and one Yar Mohammad Kallan under Section 33(1) (w) & (y) of the Bombay Police Act, 1951 subject to the Rules framed under the said Act. In exercise of powers conferred by Section 33, the Commissioner of Police, Mumbai has framed “Rules For Keeping Places Of Public Entertainment in Greater Bombay, 1953” (hereinafter referred to as the “said Rules” for short). 4 The place of eating house of the Petitioner was inspected at 23.05 hours on 12.11.2009 by the Senior Inspector of Police, Social Service Branch, Mumbai and at that time it was found that in a hall situated on the first floor, 13 lady waitresses were found making obscene gestures and were in close physical contacts with customers. It was also found that the customers were spraying and throwing Indian currency notes on the said wp7901-11.sxw 3 lady waitresses. It was also found that neither the Petitioner nor his co- licensee -Yar Mohammad Kallan were present in the establishment and that the establishment was being run through the persons named -Ganesh Bhoja Shetty, styled as a Manager and Sudarshan Vasant Hegde, working as Cashier. In view of this two actions were taken. Vide C.R.No. 2337/2009 and 2349/2009 the Local Act Offences were registered under Sections 110 and 117 of the Bombay Police Act, 1951; whereas Local Act Offence No. 2350/2009 and 2352/2009 was registered against the Manager Ganesh Bhoja Shetty under Section 33(w) read with Section 131 of BP Act,1951 and CR No. 2351/2009 and 2353/2009 were registered under Section 33(w) read with Section 131 of the BP Act, 1951 against Cashier- Sudarshan Vasant Hegde. 5 It is pertinent to note that since the Petitioner and his co-licensee Yar Mohammad Kallan were not present at the eating house, no offence of whatsoever nature was registered against them. It is an undisputed position that the said prosecution is still pending. 6 The second action which was taken was to submit a report to the Licensing Authority. A detailed panchanama was prepared and the same wp7901-11.sxw 4 has been signed by Sandesh Rajaram Desai and Abddul Majjid Abddul Jabbar Siddiqui. A copy of the panchanama was immediately handed over to Ganesh Bhoja Shetty (Manager) and Sudarshan Vasant Hegde (Cashier). 7 Since the prosecution registered under the BP Act,1951 and actions for breach of license conditions are two independent actions, a show cause notice was issued to the Petitioner and his co-licensee - Yar Mohammad Kallan on 3.02.2010. The show cause notice gave complete description of the inspection and called upon the Petitioner and his co- licensee to show cause as to why punitive action should not be taken against the Petitioner and his co-licensee by suspending the license for a period of 90 days. The show cause notice specifically refers to the violation of Rules 8(1), 8(2), 6, 21(a) and 24. 8 The Petitioner and his co-licensee sent a reply to the show cause notice through Advocate. Paragraphs 2,3 and 4 of the said reply are of some relevance. It was contended in paragraph 3 that the show cause notice is premature and is in violation of undertaking given by the Licensing Authority in this court in the case of Hotel Priya Restaurant and Bar vs. State of Maharashtra. The relevant portion reads thus : wp7901-11.sxw 5 “In the said undertaking you have undertaken that you will not take any action on the ground of pending cases and as seen from the said show cause notice you have based the said show cause notice on the ground of pending case and you have alleged against our client having committed breach of the Entertainment Rules, 1953.” Other judgment of this court in the case of Dilip J. Bhatia was also relied upon. In paragraph 3, it was stated that the copy of the FIR, Panchanama and other relevant material has not been furnished alongwith the show cause notice. It was further stated that since the criminal cases were pending, no action for suspension of the license can be taken. In para -4 it was stated thus : “4. As regards breach of Rule 8(1) and 8(2) our client states and submits that the person who is named as Manager is the employee working in the establishment of our client and he is holding the valid naukarnama and h is name also appears in the wage cum muster roll. Our client also sttes that on 12.11.2009 our client being the licensee was personally present on the said date, but for the reasons best known to the Officer, he has not taken any action against out client and has registered the case against one Shri Ganesh Shetty who was sitting at the cash counter. Our client therefore submits that there is no breach of Rule 8(1) as our client was personally present on the said date. As regards wp7901-11.sxw 6 breach of Rule 8(2) our client states that he has not appointed any person as Manager and therefore, he is not supposed to furnish the specimen signature of the said person. In view thereof, there is no breach of Rule 8(1) and 8(2).” 9 It is an admitted position that the copy of the Panchanama and the copy of the Local Act Crimes Register was furnished to the Petitioner by covering letter dated 01.01.2011 received by the Petitioner on 04.01.2011. In fact Mr. Kansara has handed over the photocopies of the said documents during the course of the argument. When these documents were furnished, no grievance of whatsoever nature was made by the Petitioner that all the requisite documents have not been furnished. No further reply was filed by the Petitioner. A personal hearing was fixed by the Licensing Authority and on 07.03.2011, the Petitioner was heard in-person. Thereafter, the Licensing Authority passed the impugned Order (Exh.D, pages 57-62) dated 10.03.2011 and the license was suspended for a period of 60 days. Aggrieved by this order, the Petitioner filed an Appeal under Rule 28 of the said Rules. By the impugned Judgment and Order dated 02.09.2011, the Hon’ble Minister for Home Affairs, Government of Maharashtra has dismissed the said Appeal. wp7901-11.sxw 7 10 Mr. Kansara for the Petitioner advanced following submissions : (a) The Petitioner or his co-licensee have not been prosecuted and they have not committed any offence and that the criminal prosecution under Section 110,117 and 33 of the Bombay Police Act, 1951 is pending and hence, facts or the incidents which led to the filing of such criminal proceedings cannot be made foundation for action of suspension of license. (b) A strong reliance was placed on the Judgment of the learned single Judge (S.C.Dharmadhikari, J.) in the case of Abdul Rashid Mohammed (M/s. Hotel Star Night) Vs. The Commissioner of Police Greater Mumbai & Anr. in Writ Petition No. 9341 of 2010 delivered on 9th June, 2011 and it was contended that the ratio of the said Judgment is applicable to the facts of this case. A very strong reliance was also placed on the Judgment of V.C.Daga, J. in Writ Petition No. 6178 of 2008 in the case of Sadanand A. Shetty vs. State of Maharashtra & Ors. delivered on 26th September, 2008 and the undertaking filed by the Deputy Commissioner of Police (H.Q-1), Mumbai in the said Writ Petition. It was contended that the passing of the impugned order wp7901-11.sxw 8 was clearly violative of the said undertaking. (c) It was submitted that though the Petitioner was factually present in the establishment on 12.11.2009 his presence was deliberately not noted in the Panchanama. Based on this, it was submitted that there was no violation of Rules 8(1) and 8(2). (d) It was alternatively submitted that in any case since the Petitioner had duly appointed Mr. Ganesh Shetty as Manager by executing the Nokarnama, which was endorsed by the Authorities under the Bombay Prohibition Act, 1949, there was no need to have a separate endorsement from the police authorities and hence, Rules 8(1) & 8(2) were not violated at all. Rule 6 and Rule 21-A were also not violated and unless pending criminal cases were decided, these Rules could not have been relied upon. (e) It was also submitted that unless and until the establishment of eating house was having license for the liquior or other intoxicating substances under the provisions of the Bombay Prohibition Act, 1949 or the Rules framed thereunder, no license either for Class ‘A’ or Class ‘B’ can be issued under the 1953 Rules framed by the Commissioner of Police. It was further submitted that hence, once Nokarnama was duly endorsed by the Authorities wp7901-11.sxw 9 under the Bombay Prohibition Act, there was no requirement of having the Nokarnama endorsed under Rule 8 from the Police Authorities. 11 On the other hand, Ms. Cardozo, learned AGP advanced the submissions that as the Petitioner or his co-licensee were absent at the time of inspection, the action of suspension of license is not taken and the criminal cases may be pending but it is an independent action since neither the Petitioner nor a co-licensee are accused in any of the criminal cases. Mere Nokarnama endorsed by the Authorities under the Bombay Prohibition Act, 1949 cannot be a substitution for an appropriate proceedings being followed as contemplated by Rule 8. Rule 8 contemplates for endorsement. That endorsement shall be made on the licensee from the concerned Licensing Authority and since admittedly there is no such endorsement made in the present case, violation of Rules 8 (1) & 8(2) is duly established. It was the Petitioner and his co- licensee who were not present and a false reply has been given, contending that the Petitioner was present but he was not shown present in the Panchanama. She submitted that if the Petitioner had really been present and if his name had really not been shown in the Panchanama, wp7901-11.sxw 10 nothing prevented the Petitioner from sending a representation to the concerned Police Officer or to the Licensing Authority that though he was present, he was deliberately shown absent. 12 She further submitted that the criminal prosecution and the action for breach of Rule are two independent and different actions, that there is no breach of the undertaking filed in W.P. 6178 of 2008 and that the undertaking has been duly complied since the show cause notice clearly reflects that the action proposed to be taken is for breach of Rules and the terms and conditions of the license and that is independent of the criminal prosecution. It was submitted that since no prosecution is pending against the Petitioner there is no breach of para 5 of the undertaking. Dealing with the Judgment of S.C.Dharmadhikari, J. in the case of Abdul Rashid Mohammed (supra) it was submitted that the ratio of that Judgment is not applicable to the facts of this case since from a reading of the said Judgment, it is clear that the show cause notice did not clearly refer to the violation of Rules 8(1) and 8(2). 13 I have considered the rival submissions. It is necessary to note down the relevant provisions of the Bombay Police Act, 1951 and 1953 Rules wp7901-11.sxw 11 framed by the Commissioner of Police, Mumbai. The relevant provisions are Sections 2(5A): Eating House, 2(10) : “Place of public entertainment” , Section 33(1)(w),(y),(xa) and Sections 110, 117, 131 and 162 of the BP Act, 1951 and Rules 1,2,3,6,8,21, 21-A, 24 and 27 of the Rules framed by the Commissioner of Police under Section 33 of the Bombay Police Act, 1951. The same read as under : (a) “2(5A) "eating- house" means any place to which the public are admitted, and where any kind of food or drink is supplied for consumption on the premises by any person owning or having an interest in or managing such place, and includes a refreshment- room, boarding-house, coffee- house or a shop where any kind of food or drink is supplied to the public for consumption in or near such shop but does not inc1ude “a place of public entertainment.”] (b) 2(10) "place of public entertainment" means a lodging- house. boarding and lodging- house or residential hotel, and includes any eating- house in which any kind of liquor or intoxicating drug is supplied (such as a tavern, a wine shop, a beer shop or spirit, arrack, toddy, ganja, bhang or opium shop) to the public for consumption in or near such place ;] (c) Chapter IV contains Police Regulations and Section 33 wp7901-11.sxw 12 provides for power to make Rules for Regulation of traffic and for preservation of orders in public place etc. we are concerned with clause (w), (xa) and (y) which reads thus: 33. Power to make rules or regulation of traffic and for presentation of order in public place, etc. [The Commissioner with respect to any of the matters specified in this sub-section, the District Magistrate with respect to any of the said matters (except those falling under Clauses [(a), (b), (d), (db), (e), (g), (r), (t) and (u) thereof)] and the Superintendent of Police with respect to the matters falling under the clauses aforementioned read with CI. (y) to this sub-section], in areas under their respective charges or any part thereof, may make, alter or rescind rules or orders not inconsistent with this Act for- ...... ........ (w) (i) licensing or controlling places of public amusement or entertainment; (ii) prohibiting the keeping. of places of public amusement or entertainment or assembly, in order to prevent obstruction, inconvenience, annoyance, risk, danger or damage to the residents or passengers in the vicinity; (iii) regu1ating the means of entrance and exit at places of public amusement or entertainment or assembly, and providing for the maintenance of public safety and the prevention of disturbance thereat; [(xa) registration of eating- hoses, including granting a certificate of registration in each case, which shall be deemed to be a written permission required and obtained under this Act for keeping the eating-house, and annual renewal of such registration within a prescribed period; (y) prescribing the procedure in accordance with which any license or permission sought to be obtained or required under wp7901-11.sxw 13 this Act should be applied for and fixing the fees to be charged for any such license or permission: (d) “S. 110. Behaving indecently in public. No person shall willfully and indecently expose his person ill any street or public place or within sight of, and in such manner as to be seen from any street or public place, whether from within any house or building or not, or use indecent language or behave indecently or riotously, or in a disorderly manner in a street or place of public resort or in any office station or station house. (e) S.117. Penalties for offenders under Secs. 99 to 116. Any person who contravenes any of the provisions of Secs. 99 to 116 (both inclusive) shall, on conviction, be punished with fine which may extend to [twelve hundred rupees]. (f) S. 131. Penalty for contravening rules, etc., under Sec. 33. [Save as provided in Sec. 131-A, whoever]- (a) contravenes any rules or order made under Sec. 33 or any of the conditions of a licence issued under such rule or order, or (b) abets the commission of any offence under Cl. (a) shall, on conviction be punished]- (i) if the rule or order under which the said licence was issued was made under Cls. (b), (g), (h), (i), sub- clauses (i) and (ii) of Cl. (r) or C1. (u) of sub-section (1) of Sec. 33, with imprisonment for a term, which may extend to eight days or with fine which may extend to [ one thousand two hundred fifty rupees] or with both; [(ia) if the rule or order under which the said licence was issued was made under sub-clause (iii) of clause (r) of section 33, with imprisonment for a term, which may extend to three months or with fine which may extend to two thousand rupees or with both.] (ii) if the rule or order contravened was made under Cl. [(wb) or wx] of sub-section (1) of Sec. 33, with imprisonment for a term which may extend to three months or with fine which may extend to [twelve thousand five wp7901-11.sxw 14 hundred rupees] or with both; (iii) if the rule or order contravened or the rule or order under which the said licence was issued was made under Cls. (n) and (o) of sub-section (1) of Sec. 33 with fine which may extend to [five thousand rupees; (iv) if the rule or order contravened was made under Cl. (b) of sub-section (1) of Sec. 33 and prohibits the sale or exposure for sale of any goods on any street or portion thereof so as to cause obstruction to traffic or inconvenience to the public- (a) for the first offence with imprisonment for a term which may extend to one month or with fine which may extend to two thousand five hundred rupees] or with both, and (b) for a subsequent offence with imprisonment for a term which may extend to six months and with fine which may extend to five hundred rupees; and (v) if the rule or order contravened or the rule or order under which the said licence was issued [was made under any clause of sub-section (1) of Sec. 33 and for the contravention of which no penalty is provided under this section], with fine which may extend to fifty hundred rupees]. (g) Section 162 reads thus: 162: Licences and written permissions to specify conditions, etc., and to be signed. (1) Any licence or written permission granted under the provisions of this Act shall specify the period and locality for which and the conditions and restrictions subject to which, the same is granted, and shall be given under the signature of the competent authority and such fee than be charged therefor as is prescribed by any rule under this Act in that behalf. Revocation of licences, etc. (2) Any licence or written wp7901-11.sxw 15 permission granted under this Act may at any time be suspended or revoked by the competent authority, if any of it conditions or restrictions is infringed or evaded by the person to whom it has been granted, or if such person is convicted of any offence in any matter to which such licence or permission relates. When licence revoked, etc., grantee to be deemed without licence.-(3) When any such licence or written permission is suspended or revoked, or when the period for which the same was granted has expired, the person to whom the same was granted shall for all purposes of this Act, be deemed to be without a licence or written permission until the order for suspending or revoking the same is cancelled, or until the same is renewed, as the case may be. Grantee to produce licence, etc., when required.(4) Every person to whom any such licence or written permission has been granted, shall, while the same remains in force, at all reasonable time, produce the same, if so required by a Police officer. Explanation- For the purpose of this section any such infringement or evasion by, or conviction of, a servant or other agent acting on behalf of the person to whom the licence or written permission has been granted shall be deemed to be infringement or evasion by, or as the case may be, conviction of the person to whom such license or written permission has been granted. ” (h) Rules framed by the Commissioner of Police wp7901-11.sxw 16 namely Rules for Keeping Places of Public Entertainment in Greater Bombay. Rules 1,2,3, 6, 8 and 21(A), 24 and 27 which read thus: “1. Places of public entertainment shall, for the purpose of regulation under the Bombay Police Act, 1951, be classified under class ‘A’ and Class ‘B’ Class ‘A’ shall comprise every place of public entertainment in which is sold liquor, today, or any intoxication as is defined in the Bombay Prohibition Act, 1949. Class ‘B’ shall comprise every place of public entertainment not comprised in Class ‘A’.. 2. No person shall open or keep a place of public entertainment of class ‘A’ or class ‘B’ without having previously obtained a licence from the Commissioner of Police. 3. No licence to keep a place of public entertainment of class ‘A’ shall be granted by the Commissioner of Police unless the applicant has previously obtained and produced to the Commissioner of Police, a licence granted for the same under the Bombay Prohibition Act, 1949 for the time being in force in Greater Bombay. 6. No license under these rules shall be issued unless the person keeping the place of public entertainment satisfies the Commissioner of Police that he shall comply with the provisions of the Bombay Shops and wp7901-11.sxw 17 Establishments Act, 1948, and the rules made thereunder” 8. (1) Change in old Rules vide Notification No. 24688/123-F/58 dated 18.12.58. Unless a person permitted to act under Sub Rule (2) (in this rule referred to as ‘the agent’) is present no person keeping a place of public entertainment shall absent himself therefrom during the time it is open without obtaining the previous permission of the licensing authority, to be endorsed on the license. 2) No person keeping a place of public Entertainment at any time permit an agent to act for him in the management of such place without the like permission similarly endorsed. Provided that permission to act as agent shall not ordinarily be refused if the person is a member of the licenses family or his paid servant. Provided that no such permission shall be endorsed on the licence unless, the agent affixes his signature or if he is illiterate, his left thumb impressing on the licence in the presence of the commissioner of Police duly countersigned by the Commissioner and furnishes to the Commissioner three additional specimen signatures or as the case may be, three left thumb impressions duly countersigned by the Commissioner of Police. wp7901-11.sxw 18 Provided further that in case of licenses issued before the date of this notification, the agent shall comply with the provisions of the preceding proviso within two months from that date” 21-A. Addition vide Notification No. 640/23-E dated 16.3.1992. Without prejudice to the provisions of rule 21, no person keeping a place of public entertainment shall permit during any performance or exhibition of any programme of entertainment at such place. (a) any profanity or any obscene or indecent language; or (b) any indecency of dress, dance or gesture” 24. Every person keeping a place of public entertainment shall conduct his or her occupation or business in such place in an orderly manner. 27. The Commissioner of Police