AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.431 OF 2008 IN WRIT PETITION NO.1985 OF 2008 Ratnakar Narayan Shetty (M/s. Laxmi Bar & Restaurant) .... Appellant Vs. State of Maharashtra & Ors. .... Respondents Mr. S.P. Kanuga i/b Mr. Hitesh Vyas for the appellant. Mr. Shekhar A. Ingavale, A.G.P. for the State. CORAM : SMT. RANJANA DESAI & K.K. TATED, JJ. DATED : 11TH NOVEMBER, 2008. P.C.:- 1. One Ratnakar Narayan Shetty has impugned in this appeal order dated 23/9/2008 passed by learned Single Judge in Writ Petition No.1985 of 2008. By the impugned order, Rule is issued. So far as the interim relief is concerned, learned Single Judge has observed as under : AJN 2 “There is no merit in the prayer for interim relief. In view of the observations of the authority in para 2 of the order the establishment holder has committed breach of license and terms and conditions frequently. In addition there is further reference to the repeated breach of rules in para 2 (II) and IV. Interim relief rejected.” The appellant is aggrieved by the refusal of interim relief and, hence, he has challenged the impugned order to that extent. 2. The instant writ petition is filed praying that order dated 30/7/2008 passed by the Minister (Home), Government of Maharashtra - respondent 4 herein confirming order passed by respondent 3 cancelling police licence of M/s. Laxmi Bar & Restaurant, be quashed and set aside. The case of the appellant as stated in the petition appears to be that he is carrying on his business as a sole proprietor of the business M/s. Laxmi Bar and Restaurant and that he had before setting up business of restaurant and bar obtained the requisite licences under the Bombay Police Act, Bombay Prohibition Act and under the Municipal Law and he is carrying on the said business since, 1993. AJN 3 The petition was initially filed in the name of Vasant Kashinath Mistry. Before lodging the petition, pursuant to the objections raised by the office, the name of Mr. Mistry was struck of from the title. The name of the appellant was shown as the petitioner. The appellant inserted the following sentence in the petition. “The petitioner has purchased the said hotel on 19/11/2004 from one Mr. Mistry according licence is issued in the name of petitioner. The said Agreement will be referred to and rely upon when produced as well be certified to the Court.” 3. We have heard Mr. S.P. Kanuga, learned counsel appearing for the appellant at some length. Mr. Kanuga contended that the order of learned Single Judge refusing interim relief is unjust. He submitted that by the orders impugned in the writ petition the police licence of the appellant is cancelled. Mr. Kanuga submitted that it is a person's fundamental right to carry on business. The punishment of cancellation of licence imposed is disproportionate to the allegations which are set out in the show cause notice which have been accepted by the Deputy Commissioner of Police and the Minister (Home) without application of mind. Learned counsel AJN 4 further urged that undoubtedly there can be reasonable restrictions on a person's right to carry on the business but, the reasonable restriction must necessarily relate to the business. The authority while taking a decision to cancel the licence should have considered the gravity and the nature of the alleged violations. He further submitted that a reading of the impugned orders indicate that it is the alleged violation of the rules by a third party which is taken against the appellant. Thus, the said alleged violations will not, according to Mr. Kanuga, relate to the appellant. Mr. Kanuga then submitted that the show cause notice is extremely vague. He drew our attention to section 110 of the Bombay Police Act and contended that this section is in several parts and the show cause notice does not indicate which part of the section according to the respondents is attracted to the present case. This has caused great prejudice to the appellant and consequently, even the adjudicating authority was not in a position to give a proper decision. Mr. Kanuga further submitted that contrary to several decisions of this court, stale instances of the alleged violations are taken into consideration. For example, for an alleged incident of September, 2001, the appellant's licence is sought to be cancelled in 2007/2008 which is clearly wrong. AJN 5 4. Mr. Kanuga took us through the judgments of this court in support of his submission that the action of cancellation of licence and also refusal of learned Single Judge to stay the said order is illegal. He relied upon Allahbaksh Ismail Ebrahim v. Commissioner of Police & Ors., 2004 (1) All MR 677, Kanu Nagu Mhatre v. The Assistant Commissioner of Police & Ors., 1996 (3) All MR 84 and Dilip J. Bhatia v. The Commissioner of Police, Thane & Anr., 2001 (1) Bom. C.R. 448. He submitted that the ratio of these judgments is clearly attracted to the facts of this case and assuming violation of rules is proved, the nature of violations did not call for cancallation of licence. He submitted that a disproportionate punishment could not have been awarded to the appellant. He submitted that in the circumstances, learned Single Judge erred in refusing interim relief to the appellant. 5. The submissions of Mr. Kanuga do not appeal to us. Admittedly, the licence was issued in the name of one Mr. Mistry from whom the appellant is said to have purchased the said hotel in the year 2004. The appellant claims to carry on his business of AJN 6 running the hotel since 1993. That means all along the appellant is conducting this hotel not with a police licence issued in his name but, in the name of one Mr. Mistry. This is clearly contrary to said Rules. In this connection, we may refer to section 2(10) of the Bombay Police Act, which “place of public entertainment”. It reads thus : “2(10) Place of public entertainment” means a lodging-house, boarding and lodging hosue 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 a spirit, arrack, toddy, ganja, bhang or opium shop) to the public for consumption in or near such place.” There is no dispute about the fact that the hotel with which we are concerned here is a place of public entertainment within the meaning of the above provisions. 6. We must now refer to Rule 2 of the Rules for Keeping Places of Public Entertainment in Greater Bombay, 1953 (for convenience, “the said Rules”). Rule 2 of the said Rules reads as under : “No person shall open or keep a place of public entertainment of Class “A” or Class “B” without AJN 7 having previously obtained a licence from the Commissioner of Police”. 7. We may also refer to Rule 14-A of the said Rules, which reads thus : “14-A. A licence granted under these rules for the keeping of places of public entertainment shall not be transferable or assignable but shall be personal for the benefit of the persons only to whom it is granted and where such person transfers or assigns his business to any other person or enters into an agreement with another person, involving his giving up the conduct or control over the business, the licence granted to him shall stand terminated on and from the date of such transaction, provided that in the case of death of the licensee, his heir or legal representative may make an application within one month from the date of death to the Commissioner of Police, to have the benefit of the licence for the unexpired portion of the term of the licence and the Commissioner may decide the application having regard to the provisions of rule 5.” On a plain reading of Rule 14-A, it is clear that the police licence granted under this rule is non-transferable and non- assignable licence. It is pertinent to note that even the heirs or the legal representatives of a person in whose name the police licence stands can make an application to have the benefit of the police AJN 8 licence only for the unexpired period of its term. The appellant therefore could not have conducted his business without a police licence issued in his favour. He could not have run the hotel with the police licence issued in the name of Mr. Mistry. We are informed by Mr. Kanuga that the appellant has got certain other licences issued by the Bombay Municipal Corporation. We need not at this stage find out whether in fact such licences are issued in favour of the appellant and how they are issued. The fact remains that in the absence of police licence, the appellant is running the hotel from 1993 to 2007. The licence is cancelled in 2007. In the petition, it is stated that before setting up the business, the appellant had obtained the requisite licences in his name. This statement is obviously false, because the appellant did not have the most vital licence i.e. the police licence. He does not have it even today. That is why the show cause notice is issued in the name of Mr. Mistry and before respondent 4, Mr. Mistry is shown as the appellant. It is pertinent to note that respondent 3 has cancelled the police licence of Mr. Mistry and the said order is confirmed by respondent 4. In our opinion, refusal of interim relief is justified on this ground alone. AJN 9 8. Assuming for the sake of argument that the appellant could have still carrying on with his hotel business, prima facie, we are of the opinion that even if it is found that the employees of the appellant have violated the said Rules, the appellant cannot be absolved of the said charge. In this connection, learned AGP has drawn our attention to Rule 24 of the said Rules, which read thus : “24. Every person keeping a place of public entertainment shall conduct his or her occupation of business in such place in an orderly manner.” 9. We may also usefully refer to Rule 21-A of the said Rules which reads as under: “21-A. Without prejudice to the provisions of Rule 21, no person keeping a place of public entertainment shall permit during any performance of 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.” AJN 10 10. Therefore, the appellant cannot be absolved of the violations of rules committed by his employees. He has to conduct his business in an orderly manner and in accordance with the rules and regulations. Prima facie, we are also not inclined to accept the contention that the stale instances have been taken into account. The instances on which reliance is placed are of the years 2001 to 2005 and the show cause notice has been issued in the year 2006. We have perused the judgments on which reliance is placed by Mr. Kanuga. To counter these judgments, our attention is drawn by learned AGP to the judgment of this court in Rajendra P. Singh, Proprietor of Jal Hotel v. State of Maharashtra & Ors. in Writ Petition No.347 of 2008 and yet another judgment of this court in Viraj Ambalal Rawal v. State of Maharashtra & Ors. in Writ Petition No.1629 of 2008. Since the writ petition is admitted, all contentions of both the sides based on the judgments on which they have placed reliance can be heard at the time of final hearing of the petition. In our opinion, interim relief is rightly rejected. There is no merit in the appeal. The appeal is, therefore, dismissed. Liberty to the appellant to move the court for fixing early date of hearing. AJN 11 [SMT. RANJANA DESAI, J.] [K.K. TATED, J.]