IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1291 OF 2008 WRIT PETITION NO.1291 OF 2008 WRIT PETITION NO.1291 OF 2008 Sayyed Ali Akbar Murtuzai Partner of M/s.May Rose Restaurant. .. Petitioner Versus State of Maharashtra & Ors. .. Respondents Mr.P.C.Kansara for the petitioner. Ms.Smita Gaidhani, A.G.P for the respondents. CORAM: S.C.DHARMADHIKARI CORAM: S.C.DHARMADHIKARI CORAM: S.C.DHARMADHIKARI J. J. J. DATE : 11th June, 2008 DATE : 11th June, 2008 DATE : 11th June, 2008 P.C. P.C. P.C. 1. Rule. Respondents waive service. Heard both sides. By consent, Rule is made returnable forthwith. This Writ Petition under Article 226 of the Constitution of India challenges the order of the Appellate Authority (Minister of Home), Government of Maharashtra dated 20th April, 2008. The Licensing Authority by an order dated 16th January, 2007 has directed that the petitioner establishment’s licence be suspended for 60 days. That order was challenged in appeal and confirmed by the Appellate Authority. That is how the present petition. 2. Mr.Kansara appearing for the petitioner invited my attention to the annexures to this Writ Petition. He submits that the order of the Licensing Authority dated :2: 16th January, 2007 is passed upon a show cause notice dated 12th April, 2007. That show cause notice states that on 08th May, 1995 the Police Licence bearing No.44/Azad Maidan/1995 has been issued. The petitioner establishment is carrying on business from the premises situated at Cinema Road, Dhobi Talao, Mumbai. The Licensing Authority does not dispute that the licence issued was for running a permit room Class A. 3. The Licensing Authority was fully aware while issuing the present show cause notice that there are two cases registered against the establishment on 20th January, 2006 and 03rd June, 2006 respectively. Therefore, the Licensing Authority earlier issued a show cause notice bearing No.160/2006 dated 22nd August, 2006. The show cause notice dated 12th April, 2007 (subject show cause notice) itself recites that the case registered on 03rd June, 2006 is subjudice. The Licensing Authority does not wish to take into account that case and the incident reported therein for the purposes of the present proceedings. It has very categorically referred to another case registered on 20th January, 2006 which also forms part of the earlier action. In other words, in furtherance of the show cause notice issued on 22nd August, 2006 (earlier show cause notice), the Licensing Authority proceeded to take action of suspending the licence for two days. :3: 4. Now, it is pertinent to note that the Licensing Authority in paragraph Nos.3 and 4 of the present show cause notice refers to the same incident and case which is subjudice and in any event forms part of the earlier show cause notice. It has proceeded to allege in the show cause notice that the criminal case has been registered against the establishment on 03rd June, 2006 for conducting a dance performance in the establishment, without permission. The show cause notice itself recites that this is a case which is pending. 5. Thereafter, the notice refers to the some raid on the restaurant wherein it was discovered that the petitioner and the partners concerned with the business of running the restaurant have remained absent from the premises and the show cause notice itself recites that one Uday Korba Shetty (Manager) is incharge of the affairs. Thus, there is a violation of Rule 8(1) and 8(2). It is also unfortunate that subject show cause notice refers to violation of Rule 21A but despite repeated requests and adjournments, the learned A.G.P has been unable to produce any record save and accept reference to the pending case, as far as this violation and charges. Thus, the present show cause notice based upon which the impugned orders have been passed refers to the same incidents and case that have been part of :4: the earlier show cause notice and proceedings. It is not disputed that there is no fresh violation or breach after 03rd June, 2006. The show cause notice is thus clearly vitiated. 6. It is alleged in the subject show cause notice that the licence was suspended for three days in 2004 and for two days in 2007. In such circumstances, the Licensing Authority directed the petitioner to show cause as to why the licence should not be cancelled. A perusal of the paragraphs 6, 7, 8 and 9 of the show cause notice would reveal that the very cases which were forming part of the earlier show cause notice have been referred to and relied upon. 7. Naturally, the defence of the petitioner was that considering the law laid down by this Court, pending cases cannot be taken into consideration for the subject action unless and until the nexus between the present activities and the pending cases is established. In other words, if the indecent acts or acts of indecent exposure or violation of Rule 21A which is subject matter of the pending criminal cases are continuing and the nexus is established, the same cannot be taken into consideration repeatedly. Aware as the Licensing Authority was of this ruling and the view taken by this Court, still, in the order dated 16th November, 2007 it :5: held the petitioner guilty on the grounds which are clearly forming part of the criminal case and earlier proceedings. The final order does not in any manner indicate as to how the petitioner is guilty of violation of Rule 8(1) and 8(2) or Rule 21A of the subject Rules. The order of the Licensing Authority does not indicate, save and accept making reference to the pending case, anything, which would justify imposition of penalty of 60 days suspension is the submission made before the appellate authority and reiterated before me by Mr.Kansara. 8. From perusal of the orders impugned in this petition, it is apparent that they are vitiated by clear non application of mind. There is serious error apparent on the face of these orders in as much as all earlier incidents and cases have been made subject matter of a fresh show cause notice. There is nothing from the record which would enable me to take a view that the show cause notice dated 12th April, 2007 was issued because of any fresh incidents or acts as alleged therein. In such circumstances, it was the plain duty of the Appellate Authority to have interfered in the matter. 9. The Appellate Authority and the Licensing Authority ought to have been aware of the basic and :6: fundamental aspect in these cases. That is their order must speak for itself. Orders of this nature cannot be subsequently justified by referring to materials and matters which were not forming part of the show cause notice or the Record before the authorities. No justification of this nature can be permitted. There would be a clear violation of mandate of Article 14 which guarantees equality before law and equal protection of law. It is not as if there is a fundamental right to deal in intoxicants, but, when the licences are issued in accordance with the Rules empower imposition of conditions, then, any violation or breach empowering them to take action, including imposing penalties, should be justified after testing them on the above touchstone. In the present case although repeatedly the matter was adjourned, neither any affidavit is filed nor the record is produced. 10. Considering that the petitioner’s establishment has been functioning without a duly Authorised manager and a complaint was made on the last occasion orally that there is no application seeking permission to appoint or designate any employee as a manager, I called upon Mr.Kansara to file an affidavit-cum-undertaking. An affidavit-cum-undertaking has been filed by one Sayed Ali Akbar Murtazai who is one of the partners of the petitioner and in the affidavit-cum-undertaking in :7: paragraphs 3 to 5 this is what is stated: "3. I say that I alongwith two other partners are personally looking after day to day activity of said Restaurant. Petitioner had appointed various employees who were working in the restaurant of the petitioners. Petitioners have maintained the wage/salary register in which names of all the employees are recorded. I say that Shri Govind Gopal Shetty and Uday Shetty who are employed with the petitioner from last 6 years who are assisting the petitioner to look after day to day activity of said business in the absence of the petitioners. 4. I say that the above petition came up for hearing before this Hon’ble Court on 09.06.2008. This Hon’ble Court has directed the petitioner to file affidavit-cum-undertaking. In view thereof the petitioners hereby give following undertaking. (a) That petitioners (Licensees) shall abide by all the Rules, Regulations and terms of the licence and shall not commit any breach of licence conditions. :8: (b) Petitioners shall make the fresh application in the office of Respondent No.3 under rule 8(1) and 8(2) of Entertainment Rules, 1953 for recording the name of Manager on the "Place of Public Entertainment Licence" (Police Licence). 5. I say that the petitioners shall make the fresh application for recording the names Shri Govind Gopal Shetty and Uday Korba Shetty as the managers or responsible persons to look after the said business in the absence of petitioners. The said application will be made on or before 13.06.2008. The petitioners shall abide by the undertaking given to this Court. Whatever stated above is true and correct." 11. Copy of this affidavit-cum-undertaking was handed over to the learned A.G.P. However, the learned A.G.P. states that she has no instructions. I thought that considering the affidavit-cum-undertaking and the petitioner stating on oath that due compliance will be made with all rules and regulations so also conditions upon which licence is issued, I thought that the Licensing Authority would not pursue the matter further. However, learned A.G.P seems to have instructions from :9: the Authority to request this Court for a decision on merits and it is in this light that I had to refer to the materials on record of the Authority. Once there is no denial of the above factual position, then, there is no alternative but to interfere with the impugned orders and quash and set aside them. Rule is made absolute in terms of prayer clause (a) subject to the affidavit-cum-undertaking given to this Court that the petitioner would make an application on or before 13th June, 2008 to the Licensing Authority for designating either Mr.Govind Gopal Shetty or Mr.Uday Korba Shetty as managers or responsible persons. Upon proof of such application being made, the petitioner may be permitted to carry on the activities at the establishment. 12. Mr.Kansara in consonance with the affidavit-cum-undertaking submits that the petitioner will carry on the activities and ensure that there is no violation of the rules and regulations and terms and conditions of the licence. Needless to add that this order does not prevent the authorities, in case of any fresh incidents or cases to take appropriate action. It is further needless to add that the observations herein do not constitute any impediment or bar from proceeding as above. It is for the authorities to ensure maintenance of law and order, public peace so also compliance with the terms and conditions of the licence :10: and Rules in this behalf. Petition is allowed. There will be no orders as to costs. (S.C.Dharmadhikari, J)