1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.370 OF 2008 Manda Ashok Patliputra (M/s.Hotel Amrapali) ..Petitioner. V/s. The Commissioner of Police, Greater Mumbai & Anr. ..Respondents. Mrs.Veena Thadani for petitioner. Ms.Smita Gaidhani, AGP for respondents. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : FEBRUARY 21, 2008. DATE : FEBRUARY 21, 2008. DATE : FEBRUARY 21, 2008. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. Perused the relevant documents on record as well as the Orders passed by the two authorities below. 2. Rule. Rule made returnable forthwith by consent of the parties. Ms. Gaidhani waives notice for Respondents. 3. In so far as first contention raised on behalf of the Petitioner that the action initiated by the authority was founded on the stale instances is concerned, that does not commend to me. Indeed, show cause notice refers to 10 cases registered in 2 relation to the Restaurant operated by the Petitioner, which pertains to period between February, 2003 to August, 2005. However, that is one of the ground on which, action of cancellation of license was proposed. 4. The Authorities have also found that the Petitioner had violated license condition, which was breach of Rule 8(1) of the Rules 1953. The Authorities have concurrently found that the Petitioner permitted third person to conduct the business in her absence. That fact is candidly accepted by the Petitioner not only in the written reply filed to the showcause notice, but also by the husband of the Petitioner, who had appeared on behalf of the Petitioner before the First Authority, as is noted in concluding paragraph-1 at page 31. 5. To get over this position, Counsel for the Petitioner would contend that the Petitioner had made grievance at least before the Appellate Authority that no action can be taken against the Petitioner for violation of Rule 8(1) because the Petitioner has already applied to the Authority for grant of permission to appoint Manager, which Application is pending since 22nd December, 2003 before the 3 competent Authority. So long as no order was passed on the said Application, the Petitioner cannot be proceeded for violation of condition of license by invoking Rule 8(1) of the Rules. Indeed, the Petitioner has taken such ground in the Memo of Appeal filed before the Appellate Authority. However, what has been overlooked is that in the written reply filed before the First Authority in paragraph-2 thereof, the Petitioner has admitted the fact that no application for appointment of manager has been filed by her till filing of the said written reply on 18th July, 2006. The Petitioner has then assured that she would be soon appointing manager, however, would take prior permission of the concerned authority in that behalf. Nowhere in this written reply, it is even remotely suggested that there was already pending application of the Petitioner. Significantly, the husband of the Petitioner, who appeared before the First Authority, has candidly accepted the fact that he himself was not in a position to attend the restaurant business due to his illhealth, whereas the Petitioner who is the license holder is not able to attend the business during odd hours being a woman. Thus understood, it is amply clear that the Petitioner concedes the position that the Petitioner herself is not continually managing 4 the affairs of the restaurant, but is dependant on some other person. Significantly, no permission has been granted to the Petitioner to avail of assistance of any third person, albeit as Manager of the Restaurant. There is no reason to doubt the correctness of the view taken by the two Authorities below that this was a clear case of breach of rule 8(1) of the Rule. 6. Learned Counsel for the Petitioner then contends that the Authorities have proceeded against the Petitioner on the basis of cases, which have ended on account of accused pleading guilty in the respective cases. According to the Petitioner, by virtue of Section 33(w) and Section 110 read with Section 151 A of the Bombay Police Act, those cases could not be reckoned for the purpose of action of terminating license or for that matter suspending the same. There is no substance in this submission. For, Subsection (2) of Section 151A of the Act stipulates that where an accused person pleads guilty and remits the sum specified, no further proceedings in respect of the offence shall be taken against him. The expression "no further proceedings" cannot be widely read to include no action of termination of license or for that matter suspension thereof can 5 also be resorted to, which is the subtle attempt made by the Counsel for the Petitioner. The expression "no further proceedings" will have to be understood in the context of the protection available to the accused named in the said cases, wherein they have pleaded guilty, being protected on the principle of double jeopardy. The Petitioner is not one of the named accused in any of those cases. Even for that reason, the Petitioner cannot rely on the factum of accused in those cases having pleaded guilty as an impediment for proceeding against the Petitioner in relation to the action pertaining to the license in question. 7. It was next contended on behalf of the Petitioner that in paragraph-3(1), the Authority has referred to infraction of Rule 7(A) without giving details of such infraction, except mentioning the time till the restaurant was allegedly found open. The argument has been rightly refuted by the Counsel for the Respondents by pointing out the stand taken in the written reply filed on behalf of the Petitioner. Besides, the said stand taken in the written reply as aforesaid, the husband of the Petitioner, who had appeared before the first Authority, conceded the position that the said 6 breaches as referred to in the show cause notice have been committed; and called upon the Authority to view the matter sympathetically and give one opportunity to the Petitioner. Having regard to the stand taken by the Petitioner in the written reply as well as before the first Authority, as recorded in the Order impugned before this Court, I see no merits in the grievance made for the first time before this Court that no details about the events which resulted in breach of rule 7A have been spelt out in the show cause notice or the order passed by the authority below. 8. That takes me to the next argument canvassed on behalf of the Petitioner. According to the Petitioner, the Authority has committed manifest error in invoking Rule 8(1) of the Rules on the ground that the Manager has been appointed without taking prior permission of the competent authority. This argument proceeds on the premiss that the Petitioner had applied for permission by way of written application dated 27th April, 2006 which has remained undecided, even as of now. I have already addressed this aspect in the earlier part of the order to hold that this argument is devoid of merits having regard to the specific stand taken in the 7 written reply filed in response to the show cause notice as also by the representative of the Petitioner who had appeared before the first Authority at the hearing. 9. In my opinion, the basis on which the Authority proceeded to initiate action against the Petitioner cannot be termed as unwarranted or manifestly wrong. There was enough material before the Authority to hold that the Petitioner has committed breach of the license conditions, for which reason the license deserved to be suspended if not cancelled. 10. The last argument on behalf of the Petitioner is that the suspension period imposed by the first authority has been mechanically affirmed by the appellate authority without even adverting to the issues raised by the Petitioners as to why in the fact situation of the present case, sympathetic view was required to be taken. To the extent of this grievance, I am in agreement with the Petitioner that neither the first Authority nor the Appellate Authority have given sufficient indication in the impugned Order as to why it thought it appropriate to direct suspension of the license for a period of 60 8 days, I find substance in the grievance made on behalf of the Petitioner that the Appellate Authority has merely affirmed the final order passed by the first Authority, with regard to the length of suspension of license of 60 days, without independently examining the justification therefor. The Appellate Authority has additionally recorded that such course was necessary from the point of view of maintaining Law and Order, which is not the ground stated in the show cause notice at all. Be that as it may, as the quantum of suspension of license is a matter which is clearly the prerogative of the authority on the basis of subjective satisfaction to be reached by that authority; and the Appellate authority being final fact finding authority, as per the statutory appeal provided by the provisions of Bombay Police Act, in my opinion, it is appropriate to relegate the Petitioner before the Appellate Authority for the limited purpose of considering the justness and proportionality of the period of suspension of license, ordered by the first Authority. Indeed, the Appellate Authority will be free to consider that even in the past the Petitioner had committed similar breaches necessitating suspension of licence, as a justification for the proposed action. The Appellate Authority is free to 9 consider the said issue on its own merits in accordance with the law, uninfluenced by the observations made in the impugned order in that behalf or the present order. 11. Accordingly, this Petition partly succeeds to the above said limited extent. The findings reached by the two Authorities below on the necessity to take action against the Petitioner though upheld, Petitioner is relegated before the Appellate Authority by restoring the appeal to the file of the Appellate Authority for the limited purpose of considering the issue of justness and proportionality of the length of suspension of license as ordered by the First Authority. 12. The Petitioner to appear before the Appellate authority on 4th March, 2008 at 11 a.m. on which date the Appellate authority may proceed to hear the Petitioner on the point of just period of suspension of licence on the same day or fix the matter for hearing on the said issue on any other day suitable to the Appellate authority, provided the said issue is finally answered, one way or the other, on or before 17th April,, 2008. 10 13. It is made clear that the appellate authority will examine only the limited issue for which the matter is remitted back before it. 14. Till the said proceedings are finally decided by the Appellate authority , the Authorities shall not give effect to the Order passed by the first Authority. That arrangement shall continue for a period of two weeks thereafter from the date of service of the decision of the Appellate Authority on the Petitioner, if the same is adverse to the Petitioner, to enable the Petitioner to take recourse to such other remedy as may be permissible by law. 15. The Petition is disposed off on the above terms. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)