wp3015-11.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3015 OF 2011 Rajshekharan S. Nair ..Petitioner versus State of Maharashtra & Ors ..Respondents Mrs.Veena Thadani i/by N.K.Desai for the petitioner. Mr.A.I.Patel, A.G.P for the respondents. CORAM : S.C.DHARMADHIKARI, J. 12th July 2011. P.C.: . The petitioner has been proceeded against for violation of terms and conditions of the licence issued under the Bombay Police Act, 1951. The petitioner maintains an establishment at which he runs a restaurant and liquor bar, so also has performances. He states that for each one of them, there are licences issued under the relevant laws. The petitioner was proceeded against by the licensing authority for having allowed indecent and vulgar acts being committed at wp3015-11.doc 2 the establishment and the incident of 16th January 2009 has been relied upon. Further, it is alleged that the petitioner has violated Rules 8(1) and Rule 8(2) of the special rules by not remaining present at the establishment and allowing some unauthorised person to manage and administer it. For all these reasons, the show cause notice proposed suspension of his licence. 2 A reply was given to the show cause notice and while not disputing the incident it was stated that there was nothing indecent and vulgar about the women found at the establishment as they were about to leave and some of them were having their food. As far as the violation of Rules 8(1) and 8(2) is concerned, it was stated that prompt and immediate steps will be taken so as to comply with the rules. There are certain persons who are employed and they are not unauthorised inasmuch as one was a cashier. 3 The licensing authority was not satisfied with this wp3015-11.doc 3 explanation but as far as the indecent and vulgar act allegedly committed at establishment is concerned, the licensing authority held that it does not wish to rely on the said incident because a criminal case was filed, which resulted in acquittal of the accused. Further, as far as Rules 8(1) and 8(2) are concerned, the same have not been complied with and the petitioner was warned in 2003 and earlier his licence was suspended for seven days and three days respectively. For all these reasons, this is a fit case where the licence shall be suspended for ninety days. This order has been upheld by the Appellate Court. While upholding it, the Appellate Court has also accepted the case of the police department that the petitioner has allowed his establishment being used for indecent and vulgar activities. 4 The criticism of Mrs.Thadani appearing on behalf of the petitioner that Appellate Authority travelled much beyond the conclusion of the licensing authority and relied upon the incident which was not made foundation of the suspension, is wp3015-11.doc 4 justified. Reading of the order of the licensing authority reveals that, at more places than one it has been observed that incident of 16th January 2009 and the criminal cases are not relied upon, but, what has been emphasised is, violation of Rule 8(1) and Rule 8(2), so also, the punishment imposed earlier. In such circumstances, the appellate authority should not have taken in to account something which was not relied upon by the licensing authority. The order of the appellate authority suffers from patent error and also vitiated by non application of mind. The order, therefore, cannot be sustained. 5 However, finding that the petitioner has violated Rules 8(1) and 8(2) and the application made to include the name of certain person as a manager is preferred on 7th April 2011, bearing in mind the punishment imposed in the past, the interest of justice would be served if the licensing authority’s order is maintained, but, with a modification in the sentence. Accordingly, licence of the petitioner (Public Entertainment Licence) shall remain suspended for a period of seven days wp3015-11.doc 5 with effect from 18th July 2011. Similarly, it is directed that the authorities shall consider the petitioner’s request for insertion of the name mentioned in the application dated 7th April 2011 and pass necessary orders thereon within a period of two weeks from today. Depending upon the out come of this request and leaving open all rights of the authorities to proceed against the petitioner, this writ petition is disposed off. (S.C.DHARMADHIKARI, J)