1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.69 OF 2008 Anitha A. Shetty .. Petitioner Versus Commissioner of Police, Gr. Mumbai and Ors. .. Respondents Mrs.Veena Thadani for petitioner Mr.R.R.Bhosale, A.G.P. for State. CORAM : S.C.DHARMADHIKARI, J. DATE : 22nd April 2008 P.C. . Heard Mrs.Thadani for petitioner and Mr.Bhosale for State. 2 2. The challenge in this petition under Article 226 of the Constitution of India is to the orders dated 19th September 2007 and 18th December 2007, which are passed by the Licensing Authority and the Appellate authority exercising powers under Bombay Police Act, 1951. 3. The petitioner claims to be the sole proprietress of a hotel which is located at Mumbai. She states that she has been issued licenses for running a Restaurant and permit room. She also claims to have a public entertainment license issued to her under the abovementioned Act. 4. It is her case that she has fully abided by the license terms and conditions and, therefore, there is no question of any violation or breach thereof being committed, soas to entail any suspension of the license. It is not disputed before me that a show cause notice was 3 issued on 4th August 2007 calling upon the petitioner to show cause as to why her license should not be cancelled. There was a reply given to the show cause notice on 27th August 2007 denying the allegations and pointing out that there is no violation. A personal hearing was given by the licensing authority on 12th September 2007. The licensing authority was not satisfied with the explanation and version of the petitioner and proceeded to pass an order on 19th September 2007 suspending petitioner’s licence for 90 days. 5. Aggrieved by the said order the petitioner preferred an appeal before the appellate authority under section 33 of the Act and the Appellate authority, after granting personal hearing to the petitioner and perusal of the record, upheld the order of the licensing authority and dismiss the appeal. That is how the present petition. 4 6. Mrs.Thadani appearing in support would urge that the impugned orders are vitiated by total non application of mind. She submits that the licensing authority has proceeded to rely upon the allegations in the show cause notice. As far as first case referred to therein, admittedly the said case is pending. The matter is subjudice. Even the second and third case would reveal that the same pertains to the establishment being kept open beyond the stipulated working hours. It is not a co-incidence that time of 10.00 p.m. and 02.50 a.m. entered therein bears of the same date. These cases are on the basis that the establishment was kept open but the fact is that the concerned persons were dragged to the local police station and made to wait there and that is how the timings are inserted. She places reliance on the decisions of this Court taking a view that mere pendency of cases is no ground to 5 suspend or cancel the licence. That apart, there is no violation inasmuch as the license itself referred to Krishna Shetty as Manager and it is nobody’s case that Krishna Shetty is not the person representing the establishment. In such circumstances, the view taken by the licensing authority and the appellate authority relying upon the pending cases is ex facie erroneous and deserves to be set aside. She submits that the appellate authority clearly overlooked and has failed to apply its mind to the fact that there is no charge of any Dance, much less any indecent exposure, inasmuch as the establishment has a public entertainment licence and there was a singer who was employed and that is how the activities of singing and orchestra, music were being undertaken. In such circumstances an additional reason cannot be assigned by the appellate authority to uphold the finding of the licensing authority. For all these reasons, the petition be allowed. 6 7. Reliance is also placed upon several decisions/orders, copies of which are annexed to this petition. 8. Learned A.G.P. has supported the impugned action and has contended that in the past license of petitioner was suspended. This is the fourth time that the establishment has been found to be indulging in similar activities. That apart, he submits that the breaches and violations of the terms and conditions are indeed serious. This is not a case where a lenient view can be taken. Although, a show cause notice was issued for cancellation of the licence, the licensing authority and the appellate authority have still taken a lenient view of the matter. They have suspended the license. In such circumstances and when authorities in charge of maintaining law and order and public peace have acted in conformity with the rules and 7 regulations and no malafides being alleged, their orders should not be interfered with by this Court. He submits that the license granted, to carry on the restaurant and permit room business is on the terms and conditions and one of which is that the acts shall not cause nuisance and annoyance so also breach of public peace. In such circumstances, the petition deserves to be dismissed. 9. Having perused the petition and the annexures thereto with the able assistance of learned Counsel for both sides, I am of the view that there is no reason to interfere with the concurrent findings recorded against the petitioner establishment. 10. In the petition itself, the petitioner has pointed out that in the reply to the show cause notice, it was stated that one Mr.Krishna Shetty has been referred to as the Manager and 8 his name has been endorsed on the license from July 1995. Thereafter, the petitioner made an application for endorsing the name of one Pradip Padnabh Shetty, also as the Manager on the license. This was necessitated because the police had been harassing and booking cases against Pradip Padnabh Shetty although Mr.Krishna Shetty was also present. While stating that there is no violation of Rule 8(1) and (2) of the Public Entertainment Rules, it is conceded that the application dated 27th September 2002 prays for inclusion of name of Pradip Shetty as manager, on the license. The licensing authority has concluded that this Pradip Shetty has been posing himself to be the manager of the establishment and was present at site. Although, Mr.Krishna Shetty has also been proceeded against in another cases, on the own showing of the petitioner, despite the name of Mr.Krishna Shetty being shown as Manager, name of Pradip Shetty was sought to be entered in the records which 9 application may have been preferred in the year 2002 but has admittedly not been granted. There is finding recorded that there is violation of Rule 8(1) and (2) by not taking prior permission of the Authorities and allowing certain persons to pose themselves as managers of the establishment. Thus, the petitioner has rightly been proceeded against on this ground. There is no substance in the contentions of Mrs.Thadani. The petitioner herself, while replying to the show cause notice, has made reference to Mr.Pradip Shetty and the request to allow him to function as Manager. 11. Insofar as other aspect is concerned in all fairness Mrs.Thadani does not dispute that pendency of cases can be made a subject matter of the action of suspension or cancellation of the license, but the nexus between the allegations in the show cause notice with the acts which are subject matter of the criminal proceedings has to 10 be clearly established. It is nobody’s case that the cases have not been registered. The criminal cases have been registered not only for keeping the establishment open beyond the stipulated working hours but violation and breach of Rule 21-A of the Rules. Rule 21-A reads thus;- "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 indecenet language; (b) any indecency of dress, dance or gesture." 12. A bare perusal of the same would indicate 11 that without prejudice to rule 21 no person keeping a place of public entertainment shall permit during any performance or exhibition of entertainment any indecency of dress, dance or gestures. In the present case, the licensing authority has clearly referred to the fact that the entire record has been inspected by the petitioner. They have been fully heard in the matter. Their version has also been considered. On 14th and 15th July 2007, the case before the licensing authority was that it is undisputed that there were some ladies who were present in the establishment but they were in a room for some private party. Their acts were indecent. The room is in the very premises. The licensing authority has not referred to this incident because it is subjudice. However, it has referred to this case for the limited purpose that the establishment was found to have committed breach of the terms and conditions of the licence in the past and the license was 12 suspended in the year 2000 for five days, in the year 2005 for fifteen days and in 2007 for two days. Yet, serious breaches have been alleged and cases had to be registered against the petitioner establishment. There is persistent breach of the terms and conditions of the license and despite earlier action, there is no change in the situation. It is such conclusion of the licensing authority which is upheld by the appellate authority. In my view, this court cannot substitute its views as a further appellate authority. More so, when the views of those who are in charge of maintaining law and order and public peace are consistent with the materials produced before them. This is not a case of a mere allegation in the show cause notice being made foundation of the impugned orders. This is a case where violation has been referred to and apart from serious cases being registered, it has been found that no Authorised person has been taking responsibility of managing 13 the establishment. The petitioner has not pursued her application and applied for prior permission while changing or substituting the managers. In such circumstances and when serious breaches are alleged in the past as well, it is not possible to accept the contention of Mrs.Thadani that the impugned orders are vitiated by serious errors apparent on the face of the record or non application of mind. 13. In the result, there is no substance in the petition and it is dismissed. In the view that I have taken, it is not necessary to make detailed reference to the decisions brought to my notice. It is not the case of Mrs.Thadani that the power to suspend was not available at all or that it could not be exercised merely because some criminal cases are registered and they are pending. Her argument proceeds on the basis that such power is available but its exercise is vitiated in this case, which submission on facts 14 is not found to be tenable. 14. At this stage, Mrs.Thadani requests that the ad-interim order be continued for some period to enable her to challenge this order. This request is opposed by the learned A.G.P. Considering that the ad-interim order is in force from 16th January 2008, interest of justice would be subserved if the ad-interim order is continued till 2nd May 2008. (S.C.Dharmadhikari, J)