1 7433.11-wp.sxw ata IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7433 OF 2011 Mrs. Kalyani A. Shetty of Hotel Anand Punjab .. Petitioner V/s. State of Maharashtra & Ors. .. Respondents. Mr. P .C. Kansara for Petitioner. Ms. P. S. Cardozo, AGP for Respondent State. CORAM : G. S. GODBOLE, J. DATE : NOVEMBER 14, 2011 P.C.:- Heard Mr. Kansara, learned Advocate for the Petitioner and Ms. Cardozo, learned AGP for the Respondent. 2 Rule. Rule made returnable forthwith. 3 Heard by consent of the parties. Ms. Cardozo, waives service of rule on behalf of the Respondent. 4 By this Writ Petition, filed under Articles 226 and 227 of the Constitution of India, the Petitioner has challenged the judgment and order dated 16.03.2011 passed by the Deputy Commissioner of Police(HQ-1) from the office of the Commissioner of Police, Greater Mumbai in exercise of the powers conferred by Rule 27 of the “Rules for Keeping Places of Public Entertainments in Greater Bombay” Rules. By the said order, the License No. 43/Colaba granted to the Petitioner to keep a place for public 2 7433.11-wp.sxw entertainment has been suspended for a period of 30 continuous days. The Petitioner is also challenging the judgment and order dated 18th August, 2011 passed by the Hon’ble Minister(Home Affairs) Government of Maharashtra in the Appeal filed by the Petitioner, whereby the Appeal has been dismissed and the order of suspension has been upheld. 5 Mr.Kansara, submitted that the impugned action is completely without jurisdiction. According to Mr. Kansara, the power to cancel license is conferred only by Section 162 of the Bombay Police Act, 1951( hereinafter referred to as “1951 Act). According to Mr. Kansara, the license can be suspended by the competent authority only if any of it’s conditions or restriction is infringed or violated by the person to whom it has been granted or such person is convicted of such offense with respect to any matter to which such license or permission relates. The actual license which has been granted in this case has not been produced. However, Mr. Kansara, has made statement at bar, which is not disputed, that the licensee is one for keeping a place of public entertainment. The proforma of the license filed in another Petition namely Writ Petition No. 7430 of 2011, has been relied upon and it is stated that the license given to the Petitioner is also similar. According to Mr. Kansara, no conditions whatsoever have been mentioned in the license and hence, there is no question of breach of any conditions. According to Mr. Kansara, since there is no breach of any conditions, the power under Section 162 could 3 7433.11-wp.sxw not have been invoked. Mr. Kansara, submitted that two things must be fulfilled before the Commissioner exercises powers or jurisdiction under Section 162 namely 1) either that person is not fit to hold the license or 2) in order to prevent any obstruction, inconvenience, annoyance, risk, danger or damage to the residents or passengers( or passers by) in for vicinity or prevent nuisance in such place, the license can be suspended. 6 Mr. Kansara, relied upon several judgments in support of his submissions, and contended that the mere pendency of criminal cases cannot be considered to be a ground for suspension of license. It was further submitted that for breach of Rules Section 131 of the 1951 Act, is applicable and, if, the licensee or other persons are being prosecuted for the alleged offense under the Act, on the basis of the same set of the facts, the licensing authority cannot initiate action for revocation or suspension. It was submitted by Mr. Kansara that for contravention of Rules Section 131 alone applies and, hence, it is only for the Magistrate to decide whether Rules have been contravened or not and even if the Magistrate convicts the person the maximum punishment is of fine of Rs.500/- 7 It is submitted that show cause notice can be therefore issued only if a person is not found to be suitable and since there are no recitals in the show cause notice about such satisfaction of the authority that Petitioner is not suitable to run the business being carried out in the establishment, there is no justification either for issuance of show cause notice or for 4 7433.11-wp.sxw passing the impugned order of suspension. In so far as the question of violation of Rule 8(1) and 8(2), Mr. Kansara, fairly made a statement that on 21.08.2009 when the premises were inspected by the Police, the Petitioner was not present. According to Mr.Kansara, because the Petitioner is lady and because her husband was present, though the husband may not have been given any authority to run the business, there was no violation. It was alternatively submitted that in any case mere absence of the Petitioner on that day does not constitute a serious breach of the Rules. 8 The next submission advanced by Mr. Kansara was to the effect that only on the ground of pending criminal cases no action can be taken. In this regard, Mr. Kansara relied upon several judgments some of which are as under:- a) Judgment of Justice A. M. Khanwilkar, in Writ Petition No. 7271 of 1999 in the case of Dilip J. Bhatia V/s The Commissioner of Police,Thane. b) Division Bench Judgment( H. S. Bedi,C.J. and V. M. Kanade, J), in Writ Petition No.5675 of 2006 in the case of Maruti Vithal Gopale V/s The State of Maharashtra and Anr. Regarding the allegation about violation of Rule 6, it was contended by Mr.Kansara that the lady waitresses, who were found in the establishment were not the employees. Relying on the reported judgment of Justice R. M. S. Khandeparker, in the case of Allahbaksh Ismail Ebrahim Vs Commissioner of Police and Ors reported in 2004(1) ALL MR 5 7433.11-wp.sxw 677 and particularly, paragraph Nos.8 to 10 thereof, it was submitted by Mr. Kansara that licensing authority is empowered to suspend the licenses if the conditions and restrictions imposed upon the licensee are violated or infringed and action for suspension of a license can also be taken in cases where the same is necessary to maintain the public safety and prevention of disturbances in a premises, as also to prevent any obstruction, inconvenience, annoyance, risk, danger or damage to the residents or passers by in the vicinity of the premises in relation to which the license has been issued. According to Mr. Kansara, the provisions of Rule 238 of the Rules for Licensing and Controlling Places of Public Amusement( Other Than Cinemas) and Performances for Public Amusement including Melas and Tamashas Rules (1960) framed by the Commissioner of Police, Mumbai under section 33(1) (w) (wa),(x) and (y) of the 1951 Act, are parimateria provisions of Rule 277 of the Rules for keeping places of public entertainment in Greater Bombay and, hence, ratio of the said judgment delivered by Justice R. M. S. Khandeparker is squarely applicable. By referring to the two conditions under Rule 27, it is submitted that none of the conditions were fulfilled in the present case. 9 It is submitted that in the impugned order passed by licensing authority, the conclusion has been reached that acts of indecency were reflected but no opportunity was given to deal with such contentions. 10 It is next submitted that on the basis of same facts which 6 7433.11-wp.sxw constituted the action, the prosecution had been initiated under Section 110 and 170 of the 1951 Act, which has resulted in acquittal and, hence, only on the basis of the report of the incident which took place on the relevant date, the authority was not justified in passing an order of suspension. It was submitted by relying on the judgment of Justice R. M. S. Khandeparker(supra) that by mere commission of an offense there can be no justification for invoking Rule 27. 11 The judgment of Justice Dr. D. Y. Chandrachud in Writ Petition No. 1181 of 2004 in the case of Padma N. Kokarne( M/s Pooja Bar and Restaurant) V/s The Commissioner of Police, Mumbai and Anr was also relied upon and it was contended that the Petitioner is having a valid license under the Rules framed under Bombay Prohibition Act, 1949 and if the impugned order is not set aside, the Petitioner is not in a position to serve liquor even though license under the 1949 Act and Rules framed thereunder had not been suspended. 12 Ms. Cardozo in reply submitted that Rule 27, consists of two distinct parts. There is power to revoke and power to suspend. It is submitted that Rule is very widely worded and depending upon the facts of each case, the licensing authority is granted powers to revoke license in case of serious breach and to suspend license in case the breaches are of a lesser degree or seriousness. 7 7433.11-wp.sxw 13 It was submitted that the argument about applicability of Section 131, was fallacious since the Petitioner who has got the license under the Rules cannot argue that only part of the Rules are applicable. The Rules apply in their entirety. In the present case Rule 6 has clearly been breached as the women employees were allowed to remain in the premises beyond the period prescribed by the Bombay Shops and Establishment Act, 1948. It was submitted that Rule 27 operates in a entirely different field and has nothing to do with pending prosecution or criminal cases which are already disposed of. The judgment delivered by Justice R. M. S. Khandeparker was sought to be distinguished by contending that the said judgment deals with an entirely different set of Rules. It was alternatively submitted that in any case, in the present case since violation of Rules 6, 8 and 21 has been established, the authority was justified in passing the impugned order of suspension. The judgment of Justice Dr. D. Y. Chandrachud, it is submitted, is clearly distinguishable and in fact it is submitted that even if there is only one ground of breach that is sufficient to justify the action of suspension. 14 It was submitted neither the show cause notice nor the final order of the authority relied upon the pending cases. It is alternatively submitted that in any case even if the order can be supported on one of the grounds, this Court cannot interferes in it’s extra ordinary jurisdiction. It was submitted that the fact that the first case resulted into an acquittal 8 7433.11-wp.sxw has also been taken into due consideration and coupled with the fact that in the interregnum period after issuance of show cause notice one more case was registered and that has resulted in prosecution which fact is accepted by the Petitioner was sufficient to support the impugned order. Relying on the judgment of the Division Bench of this Court ( Coram: Swatanter Kumar, C. J. and V. M. Kanade, J) in the case of Mr. Vittal K. Shetty v/s The State of Maharashtra and Ors in Letters Patent Appeal No. 76 of 2008 in Writ Petition No.1679 of 2008, it was submitted that present case is squarely covered by that judgment. Further reliance was placed on the judgment of Justice A. M. Khanwilkar, in the case of Kucchuputen Parampil Skarya James V/s State of Maharashtra and Ors in Writ Petition No. 182 of 2008 and it was submitted that the arguments which are in the nature of an after thought cannot be permitted to be advanced and impugned orders cannot be interferred with on that basis. In rejoinder, Mr.Kansara, submitted that the first case has resulted in an acquittal and though the second case has resulted in conviction and imposition of fine; they are not the subject matter of show cause notice and, hence, according to Mr. Kansara, the conviction in second case could not have been relied upon. 15 I have carefully considered the rival submissions. Before dealing with the said submissions, the relevant provisions of law are required to be noted. The facts lie in very narrow compass. (a) the Petitioner is the 9 7433.11-wp.sxw owner of eating house/restaurant known as Hotel Anand Punjab and is conducting her business there from. The Petitioner has been given a license under the provisions of Rules for keeping places of public entertainment in Greater Mumbai bearing No. 43/Colaba. The provisions of Bombay Shops and Establishment Act,1948 are undoubtedly applicable. The license issued to the Petitioner is a license on account of the fact that the Petitioner is also having license to serve liquor and other alcoholic substances under the provisions of the Rules framed under the Bombay Prohibition Act, 1949. (b) On 21.08.2009, the Senior Inspector of Police,Traffic Cell, Social Service Branch of Mumbai inspected the premises and on that occasion on the ground floor hall in the premises, 11 girls were found to be in close physical contact with the customers and were found to be behaving in disorderly manner, by making obscene gestures and customers were found to be showering Indian Currency Notes. At that time, the Petitioner was not found in the premises. In fact this aspect of the matter is admitted by Mr. Kansara, who has fairly made statement during the course of argument that the Petitioner was not present on that day in the premises. Instead of Petitioner, one Shama Sinha Shetty was found to be running the establishment through a person named as Manager Pravin G. Shetty and Cashier Chandra Narayan Mogvira was also found. In view of this, apart from registering an offense against various persons, including Petitioner, 10 7433.11-wp.sxw the said conducting Manager, cashier and the 11 lady waitresses under Section 110 and 170 of 1951 Act, a report was also submitted to the licensing authority. Based on this report, the licensing authority issued show cause notice dated 13.01.2010 and the Petitioner was called for hearing thereafter by issuing another notice. (c) The Petitioner has not placed on record a copy of the reply and, hence, one will have to go on the basis of narration in the impugned order. As stated above, Mr. Kansara, has expressly admitted the absence of the Petitioner at the time of inspection of the premises. (d) It is seen that during the course of hearing, the factum of inspection was not disputed nor was the fact that 11 women were present at 22.50 beyond the period prescribed under Bombay Shops and Establishments Act, 1948 was disputed. 16 The petitioner however, brought it to the notice of the authority that in respect of the incident which occurred on 21.08.2009, for the offense under Section 110 of the 1951 Act read with Section 33(w), the Petitioner had been acquitted. It was submitted by the Petitioner that the time at which inspection was carried out was falsely shown and it was also brought to the notice of the authority that in respect of the subsequent incident dated 28.11.2010, it had resulted in conviction and fine had been imposed. 11 7433.11-wp.sxw 17 Based on these facts, the Deputy Commissioner of Police passed an order in exercise of the powers conferred by Rule 27 after recording a finding that the Petitioner had committed a breach of Rules 8(1), 8(2),6 and 21(A) of the Rules. 18 Aggrieved by this order, Petitioner filed an appeal under Rule 28A of the Rules which has been dismissed by the Hon'ble Minister(Home Affairs) leading to the filing of this Petition. 19 It is necessary to note the relevant provisions of law. The word “eating house” has been defined under Section 2(5) of the Act. The words “place of public amusement” and “place of public entertainment” are defined under Section 2(9) and 2(10) respectively. Chapter IV contains Police Regulations and Section 33 provides for power to make Rules for Regulation of traffic and for preservation of orders in public place etc. we are concerned with clause (w), (xa) and (y) which reads thus: Clause(w),(xa,)and(y): 33. Power to make rules or regulation of traffic and for presentation of order in public place, etc. [The Commissioner with respect to any of the matters specified in this sub-section, the District Magistrate with respect to any of the said matters (except those falling under Cls. 4 [(a), (b), (d), (db), (e), (g), (r), (t) and (u)]) thereof and the Superintendent of Police with respect to the matters falling under the clauses aforementioned read with CI. (y) to this sub-section], in areas under their respective charges or any part thereof, may make, alter or rescind rules or orders not 12 7433.11-wp.sxw inconsistent with this Act for- (w) (i) licensing or controlling places of public amusement or entertainment; (ii) prohibiting the keeping. of places of public amusement or entertainment or assembly, in order to prevent obstruction, inconvenience, annoyance, risk, danger or damage to the residents or passengers in the vicinity; (iii) regu1ating the means of entrance and exit at places of public amusement or entertainment or assembly, and providing for the [(xa) registration of eating- hoses, included granting a certificate of registration in each case, which shall be deemed to be written permission required and obtained under this Act for keeping the eating-house, and annual renewal of such registration within prescribed period; (y) prescribing the procedure in accordance with which any license or permission sought to be obtained or required under this Act should be applied for and fixing the fees to be charged for any such license or permission: 20 Section 131 falls in Chapter VII which deals with offenses and punishment and provides for various punishments for contravening the Rules. Section 162 reads thus: 162: Licences and written permissions to specify conditions, etc., and to be signed. (1) Any licence or written permission granted under the provisions of this Act shall specify the period and locality for which and the conditions and restrictions subject to which, the same is granted, and shall be given under the signature of the competent authority and such fee than be charged therefor as is prescribed by any rule under this Act in that behalf. Revocation of licences, etc. (2) Any licence or written permission granted under this Act may at any time be suspended or revoked by the competent authority, if any of it 13 7433.11-wp.sxw conditions or restrictions is infringed or evaded by the person to whom it has been granted, or if such person is convicted of any offence in any matter to which such licence or permission relates. When licence revoked, etc., grantee to be deemed without licence. When any such licence or written permission is suspended or revoked, or when the period for which the same was granted has expired, the person to whom the same was granted shall for all purposes of this Act, be deemed to be without a licence or written permission until the order for suspending or revoking the same is cancelled, or until the same is renewed, as the case may be. Grantee to produce licence, etc., when required.(4) Every person to whom any such licence or written permission has been granted, shall, while the same remains in force, at all reasonable time, produce the same, if so required by a Police officer. Explanation- For the purpose of this section any such infringement or evasion by, or conviction of, a servant or other agent acting on behalf of the person to whom the licence or written permission has been granted shall be deemed to be infringement or evasion by, or as the case may be, conviction of the person to whom such license or written permission has been granted. ” It is necessary to quote the relevant Rules framed by the Commissioner of Police namely Rules for Keeping Places of Public Entertainment in Greater Bombay. Rules (6), (8) and 21(A), (27) which read thus: 14 7433.11-wp.sxw 6: No license under these rules shall be issued unless the person keeping the place of public entertainment satisfies the Commissioner of Police that he shall comply with the provisions of the Bombay Shops and Establishments Act, 1948, and the rules made thereunder” 8: 1) Unless a person permitted to act under Sub Rule (2) ( in this rule referred to as ‘the agent’) is present no person keeping a place of public entertainment shall absent himself therefrom during the time it is open without obtaining the previous permission of the licensing authority, to be endorsed on the license. 2) No person keeping a place of public Entertainment at any time permit an agent to act for him in the management of such place without the like permission similarly endorsed. Provided that permission to act as agent shall not ordinarily be refused if the person is a member of the licenses family or his paid servant. Provided that no such permission shall be endorsed on the license unless, the agent affixes hi signature or if he is illiterate, his left thumb impressing on the license in the presence of the commissioner of Police duly countersigned by the Commissioner and furnishes to the Commissioner three additional specimen signatures or as the case may be, three left thumb impressions 15 7433.11-wp.sxw duly countersigned by the Commissioner of Police. Provided further that in case of licenses issued before the date of t his notification, the agent shall comply with the provisions of the preceding proviso within two months from that date” 21-A : Without prrejudice to the provisions of rule 21, no person keeping a place of public entertainment shall permit during any performance or 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” 27:The Commissioner of Police shall have the power in his discretion at any time to cancel a license granted under these rules or to suspend it for such period as he may specifying to direct the keeper of any place of public entertainment to close such place either permanently or temporarily or otherwise act with reference thereto, if the Commissioner of Police is satisfied after such enquiry as he deems fit that the Licensee is not a suitable person for continuing to h old the licence or in order to prevent any obstruction, inconvenience, annoyance, risk, danger or damage to residents or passengers 16 7433.11-wp.sxw in the vicinity or to prevent nuisance in such place and every person keeping a place of public entertainment shall forthwith comply with such direction.” 21 In the facts of the present case, submission of Mr. Kansara, that the licensing authority has relied upon the pending criminal cases is not liable to be accepted since the show cause notice is not issued on the basis of pending criminal case, but the same has been issued on the basis of the detailed report of the inspection submitted by the concerned Police Officer. The said report prima facie indicates a clear violation of Rule (6), (8) and (21). In so far as violation of Rule(6) is concerned, the existence of the lady waitresses in the premises at 22.50 is not shown to be factually incorrect. Though a vague attempt is made to contend that they were not the employees of the Petitioner, it is also not brought on record by any independent material that they were either customers, who had come to the establishment or that the time of inspection was wrongly written. Thus, breach of Rule (6) is duly established. 22 In so far as breach of Rule (8) is concerned, as stated above Mr. Kansara specifically accepted that the Petitioner was not personally present. The Rules and particularly Rule (3) contemplate that if it is not possible for the licensee to remain present personally in the establishment, a licensee can submit application to the Commissioner of Police and in respect of Class (A) licensee of public entertainment 17 7433.11-wp.sxw is permitted to serve liquor under Bombay Prohibition Act, 1949 is granted and the licensee can request the Police Commissioner of Police for making