IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Writ Petition No. 633 of 2008 Ramanna A.Shetty ..Petitioner vs. State of Maharashtra & ors. ..Respondents Mr.P.C.Kansara for petitioner. Mr.Shekhar Ingawale, A.G.P. for respondents. CORAM S.C.DHARMADHIKARI J. CORAM S.C.DHARMADHIKARI J. CORAM S.C.DHARMADHIKARI J. 22nd April, 2008 22nd April, 2008 22nd April, 2008 P.C. P.C. P.C. 1. The petitioner was issued a licence under the Bombay Police Act. The said licence has been cancelled pursuant to the show cause notice issued on 23rd March, 2006. The order to that effect has been passed on 9th February, 2007 which order has now been confirmed in Appeal. 2. The show cause notice alleges that the petitioner has been convicted and directed to pay a fine for the offence which has been registered vide C.R.No.327 of 2005. In so far the offence alleged under the penal code and the other provisions of the Bombay Police Act, the argument is that the said provisions which have been relied upon have been struck down by this Court and no action could have been initiated in pursuance thereof. 3. The petitioner has contended in this petition that the amended provisions of Bombay Police Act have been struck down on 12th April, 2006 and, therefore, the show cause notice could not have been issued alleging violation of that provision nor any action could have been taken in pursuance thereof. However, in so far as the other allegations are concerned, it is contended by Mr.Kansara that same pertain to breach and violation of the terms and conditions of the licence. The other cases are not such where punishment of cancellation of licence could have been imposed. As far as keeping the establishment open beyond the working hours is concerned even that violation is not such as would warrant this extreme action. 5. After this matter was argued for some time I had called upon the petitioner to file an undertaking in this Court and now the petitioner has filed the affidavit cum undertaking. The undertaking specifically states that the petitioner will not hold any amusement or entertainment programme in the restaurant cum bar and would only serve food and liquor and that too by complying with the terms and conditions of the police licence. He would abide by all such terms and conditions including for employment of female waitresses. He would not commit any breach or violation thereof nor conduct any amusement or entertainment programme in the establishment hereafter. 6. He has specifically stated that there is no case of any violation of the terms and conditions of the licence save and except the one mentioned in notice dated 23rd March, 2006. 7. Having perused the petition and annexures thereto and considering that the amended provisions of the Bombay Police Act have been struck down by this Court, the Licensing Authority has rightly not referred to the same. The Licensing Authority in the final order dated 9th February, 2007 has concluded that two cases that have been registered and where the petitioner has been asked to pay a fine pertain to keeping the establishment open beyond stipulated hours. The other case is under the amended provisions of the Bombay Police Act and, therefore, in my opinion, there is substance in the contention that the amended provisions having been struck down, they could not have been made subject matter of the impugned action. Considering the peculiar facts of this case and when even the respondents do not dispute the above position as is clear from para 9 of the affidavit in reply, present petition can be disposed of by quashing and setting aside the impugned order. Therefore, the impugned order of cancellation of petitioners’ licence is quashed and set aside subject to the undertaking given to this Court and the petitioner making a specific statement before the Court that no entertainment or amusement programme will be conducted in the establishment in any manner whatsoever. The petitioner does not have any amusement and entertainment licence and he has stated before this Court that he does not wish to apply for the same as well. All that he wishes to conduct is the activity of serving food and liquor and, therefore, the same be allowed provided he complies with the terms and conditions of the licence issued in that behalf. Subject to this undertaking and in the facts peculiar to this case, the impugned orders are quashed and set aside. It is clarified that they shall not operate as precedent in any future case. 8. Needless to further clarify that this order does not prevent the authorities from proceeding with the establishment in future, if it found to have violated the undertaking given to this Court and the terms and conditions of the licence or if the petitioner is otherwise unfit to hold the same. This action would not preclude the authorities to move this Court and request it to take action for the breach and violation of the undertaking given to this Court. Petition is allowed in the above terms. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)