- 1 - 695.kan rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.695 OF 2011 Shri Amardeepsingh Chadha } M/s Hotel Amardeep } 1st Floor, Evergreen Bldg, } Road no.3, Khar, Mumbai-400 052 .. Petitioner vs 1.The State of Maharashtra } 2.The Dy.Commisisoner HQ-1 } 3.Sr.Inspector of Police, } Khar Police Station, Mumbai } .. Respondents Mr.P.C.Kansara a/w Mr.A.A.Karande for Petitioner Ms.A.A.Mane APP for State CORAM: K.U.CHANDIWAL, J DATE: 5th September, 2011 P.C. 1. Heard learned counsel for the Petitioner extensively. 2. Based on a show cause notice dated 8.12.2009 served upon the Petitioner he was given hearing and the licensing authority passed an order on 5.4.2010 (page 33A). Being - 2 - 695.kan dissatisfied with the said order the Petitioner approached the Appellate Authority. The Appellate Authority by its order dated 1.3.2011 confirmed the suspension of the licence of the Petitioner for conducting a lodge at Hotel Amardeep,1st Floor, Evergreen Building, Road no. 3,Khar, Mumbai for a period of 30 days. 3. The learned counsel has raised following contentions namely: a) The explanation given by the Petitioner is not considered by both the authorities; b) When the alleged two cases are pending, there could not have been recording the order of suspension on 5.4.2010; till adjudication of two cases. c) Since the State in Criminal Writ Petition No.2482 of 2009 made a statement before this Court that the suspension order dated 17.9.2008 for a period of 30 days only is elapsed, the learned Single Judge disposed of the Petition as infructuous, no orders could have been passed for the intervening period. 4. The learned counsel, in order to stress his - 3 - 695.kan points has placed reliance to judgment of ALLABAKSH ISMAIL EBRAHIM VS. COMMISSIONER OF POLICE 2004(1) ALL MR 677 which was dealing with breach of the conditions of Rules for the purpose of licensing and controlling places Amusement including Meals and Tamashas Act,1960. 5. In WRIT PETITION NO.9341 of 2010 ABDUL RASHID MOHAMMED VS.COMMISSIONER OF POLICE GREATER MUMBAI dated 9.6.2011. In that case, one of the allegation in the show cause notice was that a raid conducted at the establishment on 26.12.2008 at about 1.10 hours and it was found that about 9 ladies were conducting themselves in an indecent and vulgar manner. The case was pending and consequently action was terminated. 6. In WRIT PETITION NO.7271 of 1999 DILIP BHATIA (Satyam Lodging & Boarding) VS. COMMISSIONER OF POLICE Thane by order dated 20.7.2000 this Court accepted the contentions of - 4 - 695.kan the said petitioners as pendency of cases under Immoral Traffic (Prevention) Act, 1956 were against the employees of the hotel and could not be a ground for cancellation of the licence. 7. The learned counsel has placed reliance in WRIT PETITION NO.3207 of 2004 DILIP VASANT SHINDE VS.STATE OF MAHARASHTRA on order dated 15.12.2004. It was in the context of the authority while issuing notice were required to make available the documents which the party proposes to rely in support of the show cause notice or his contentions should have been considered. 8. In WRIT PETITION NO.5675 of 2006 MARUTI VITHAL GOPALE VS. STATE OF MAHARASHTRA & ANR the Division bench on 12.10.2006 on hearing learned counsel for the Petitioner-Maruti observed that pendency of the prosecution cannot be a ground for refusing to renew licence to carry on the said business. The principle underlining the - 5 - 695.kan said decision is that even if a criminal case is pending that by itself cannot be a ground so long as licence holder himself or his agent or servant is convicted of the said offence. 9. A survey of all the above Judgments would indicate that they are not applicable to the facts of the present case. 10. The present case display that Petitioner he has been found keeping his lodge or hotel open on 1.9.2009 and 9.9.2009 for which he has been prosecuted by the Department. In reply to the show cause notice, the Petitioner in para 6 mentions as under : It is submitted that pursuant to the order passed by the State of Maharashtra, the establishment was closed from the period 1.9.2009 to 30.9.2009. The Establishment admitted the guests on 31.8.2009. The check-out time of the establishment being 12.00 p.m. the guests who were admitted on 31.8.2009 left the establishment before 12.00 p.m. on 1.9.2009. On 1.9.2009 no guests were admitted in the establishment. On 1.9.2009 no guests - 6 - 695.kan were admitted in the establishment. On 31.8.2009 the police personnel visited the premises. He was informed that the establishment would remain closed from 1.9.2009 onwards. Inspite of this fact, the Police personnel who visited the premises deliberately and with the malafide intention recorded the date of visit on 1.9.2009. This fact will become clear from the register wherein the interpolation in date from 31 to 1.9.2009 is apparent on the face of record. In fact on 1.9.2009 the establishment was closed and no business was carried in establishment. 11. Thus, explicitly the Petitioner does not dispute that when the Authorities raided the premises it was operating. There were guests and even if that explanation for continuance of the premises is effective from 31.8.2009, accepted, it was not open for the Petitioner to continue the guests as he was served well in advance of the show cause notice and order and was aware of the date on which the order was to come into play. Such explanation being an eye- wash was rightly rejected by the authorities. 12. It is incorrect to canvass, that the explanation offered is not dealt. It is indeed - 7 - 695.kan considered in the orders of the licensing authorities as also by the Appellate Authority. Contention that the material that was relied was not explained is again misplaced as whatever was indicated in the show cause notice was to the knowledge of the Petitioner and it was more so in his reply he accepted the position primarily that at the material time two prosecutions based on infringement of the conditions of suspension of license which amounts to evasion of the condition, were initiated. Consequently, it cannot be said that the authorities did not adhere to the provisions mandated in section 162 (2) of the Bombay Police Act or Rules 27 or 28 thereof. The Appellate Authority has, after hearing the Petitioner and his representative analysed the documents tendered and thus passed the order impugned. 13. The last contention of the learned counsel for the Petitioner that even if all the facts as stated by the Department are accepted, the order - 8 - 695.kan of suspension for 30 days is excessive in nature. In the fact situation, it cannot be said so as conduct of the Petitioner is blame worthy as he flagrantly flout the suspension order. Showing inplacable approach. 14. Considering over all effect of the matter, The orders does not call for any interference. Petition rejected. Heard. Orders dated 5.4.2010 and 1.3.2011 are stayed up to 15.10.2011. K.U.Chandiwal, J