- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.787 OF 2008 WRIT PETITION NO.787 OF 2008 WRIT PETITION NO.787 OF 2008 Jai Hotchand Rochwani ...Petitioner vs. 1.The State of Maharashtra 2.Vijaysingh Jadhav ...Respondents Mr.P.R.Dave for the Petitioner Ms A.A.Mane A.P.P. for State CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE OF HEARING THE LAST ARGUMENT : SEPTEMBER 24,2008 DATE OF HEARING THE LAST ARGUMENT : SEPTEMBER 24,2008 DATE OF HEARING THE LAST ARGUMENT : SEPTEMBER 24,2008 DATE OF DATE OF DATE OF PRONOUNCEMENT OF JUDGMENT : SEPTEMBER 26, 2008 PRONOUNCEMENT OF JUDGMENT : SEPTEMBER 26, 2008 PRONOUNCEMENT OF JUDGMENT : SEPTEMBER 26, 2008 JUDGMENT: JUDGMENT: JUDGMENT: 1. Rule. Learned A.P.P. waives service for Respondent Nos.1 and 2. Taken up for hearing forthwith. 2. According to the case of the Petitioner, he is engaged in hotel business and he is running the hotel by name M/s.Hotel Celeste at Colaba opposite Sasoon Dock, Colaba, Mumbai. A licence was granted to the said hotel for public entertainment at public place under the provisions of Rules for keeping Places of Public Entertainment in Greater Bombay,1953 (hereinafter referred to as the said Rules). The said licence was granted on 28th May 1975. A show cause notice was issued on 30th November 2006 by the Deputy Commissioner of Police, Mumbai alleging that on 18th September 2006, it was found that prostitution business was conducted in the premises of the hotel and an offence has been registered under the provisions of Prevention of Immoral Traffic Act (hereinafter referred to - 2 - as PITA). In the show cause notice it was alleged that when the police raided the hotel on 7th February 2006, the licence holders were absent and it was found that without prior permission of the competent authority, one Nandkumar Motiram Savanani was allowed to conduct the said hotel as a Manager. The allegation is that thereby a breach of rule 8(1) of the said Rules of 1953 has been committed. It was alleged that the entry of the name of the Manager was not made on the licence and specimen signature and thumb impression of the Manager were not submitted. An allegation was made that a breach of Rule 8(2) has been committed. The third breach alleged in the show cause was that when a bogus customer was sent to the hotel on 18th September 2006 who was carrying a marked currency note of Rs.1000/-, at that time, it was found that rooms in the hotel were allowed to be used for prostitution. The marked currency note was found in the cash counter of the hotel. The allegation is that aforesaid breaches of Rules of 1953 were committed by the licence holders. The show cause was issued calling upon the licence holder to show cause as to why the licence shall not be cancelled by exercising power under Rule 27 of the said Rules of 1953. The said notice was replied on behalf of M/s.Hotel Celeste by a reply dated 22nd December 2006 issued by the Advocate for the Petitioner. 3. An order was passed on 16th November 2007 by the Deputy - 3 - Commissioner by which he suspended the licence for a period of 30 days. An Appeal was preferred against the said order by the Petitioner. By order dated 26th March 2008, the Hon’ble Minister for Home dismissed the said Appeal. 4. The learned counsel for the petitioner submitted that the licence could not have been suspended only on the ground of registration of offence under PITA. He submitted that unless there was a conviction under the provisions of the said Act, the licence cannot be suspended or cancelled. He placed reliance on the decision of this Court in Criminal Writ Petition No.7271 of 1999 decided on 20th July 2000 in the case of Dilip J. Bhatia Vs. the Commissioner of Police [2001 (1) Bom.C.R.p.448]. He submitted that as far as allegations of breach of Rules 8(1) and 8(2) are concerned, there was no material placed on record to show that any breach was committed by the Petitioner. He submitted that the impugned order shows non application of mind and the same deserves to be quashed and set aside. 5. The learned A.P.P submitted that a clear breach of terms and conditions of the licence has been established against the petitioner and in view of the findings of fact recorded by the Deputy Commissioner as well as by the Appellate Authority, no interference was called for. He submitted that instead of cancelling the licence, the same has been suspended for a - 4 - period of 30 days. He submitted that the impugned order is just and proper and no interference is called for. 6. I have carefully considered the submissions. The first breach which is alleged is as regards registration of an offence under PITA. Rule 23 of the said Rules reads thus : "23. If any person keeping a place of public entertainment knowingly permits prostitutes for the purpose of their trade or persons of notoriously bad character to meet or remain in such place, the Commissioner of Police shall have the power in his discretion at any time to cancel a licence granted under these rules or to suspend it for such period as he may specify and to direct such person to close the place either permanently or for such period as he may specify. The person to whom such direction is issued by the Commissioner of Police shall forthwith comply with such direction." 7. In the case of Dilip J.Bhatia Vs. Commissioner of Police [2001 (1) Bom.C.R. page 448], this court has held that registration of offence under PITA against the holder of a licence is no ground for cancellation of licence unless the licensee or his agent is convicted of such an offence. The view taken by the learned Single Judge in the said case is based on another decision of a Division Bench of this Court. - 5 - Therefore, on the said ground, the licence could not have been suspended. 8. The second ground on which the show cause notice is issued is the breach of rule 8 (1). Rule 8 of the said rules reads thus : "8(1) No person keeping a place of public entertaining under a licence under these rules shall absent himself therefrom during the hours specified in the licence or during such other hours for which permission has been granted under rule 7 without obtaining in writing previous permission from the Commissioner of Police and no such person shall permit any other person to act for him in the management of such place during the said hours without a like permission endorsed on his licence. (2) The licensee may suggest the name of any person, who is suitable and who has attained the age of majority to act in his absence as a manager or agent, in the management of the place of public entertainment. The name of such manager or agent shall be entered in the licence on payment of the prescribed fee. - 6 - The specific allegation in the show cause notice is that one Nandkumar Motiram Savanani was running the hotel on 7th February 2006 in absence of the licence holders without prior permission of the Authority. The third breach alleged is of sub-rule 2 of Rule 8. A reply was sent to the show cause notice by the Advocate for the petitioners. Paragraph 3 of the said reply deals with breaches alleged under Rule 8(1) and 8(2). Paragraph 3 of the said rely reads thus : "3. My client further state that as far as breach of rule No.8(1) and 8(2) are concerned, the license for conducting business is lying at Colaba police station from last one year for renewal and since the said licence is not been renewed by concerned authority and therefore the question of compliance of above rules will not arise." Thus, it is very clear that in the reply, the breach of rules alleged has not been denied and the only contention raised is that licence is lying at Colaba Police Station for renewal. It is not the case of the petitioner that any application was made for seeking permission under sub rule 1 of Rule 8. It is not the case of the Petitioner that any attempt was made to get the licence endorsed as required under sub-rule 1 of Rule 8. It is not the case that an application was made in terms of sub-rule 2 of Rule 8 seeking permission to enable an agent - 7 - or Manager to act for licensee in the management of such place. If steps were taken by the petitioner in terms of sub- rules 1 and 2 of the Rule 8 by making necessary applications only then the petitioner could have blamed the police for not forwarding the licence duly renewed. Thus, the fact of having committed the breach of sub rules 1 and 2 of Rule 8 is not disputed in the reply sent by the petitioner to the show cause notice. 9. Under Rule 27 of the said Rules of 1953, the Commissioner of Police has power to cancel the licence or suspend the same and to direct the keeper of any place of public entertainment to close such place either permanently or temporarily. Thus, there is a power vesting in the Commissioner of Police to suspend the licence. As found by the authorities, there is a breach committed by the petitioner of sub rules 1 and 2 of Rule 8. However, in view of the law laid down by this court, the first breach of contravention of Rule 23 alleged is no ground to suspend the licence. Considering the seriousness of the ground of breach of rule 23, suspension of licence for a period of 30 days was ordered. As the said breach is not established, the suspension of licence for a period of 30 days will be disproportionate to the other two breaches committed by the petitioner. In my view, considering the nature of the breaches, the suspension of licence will have to be brought down to a period of 7 days. - 8 - 10. During the course of arguments, the learned counsel for the petitioner had submitted that if this court is inclined to confirm the order, the petitioner may be permitted to keep three guests in the hotel during the period of suspension as the said guests are virtually permanent residents of the hotel. The said request cannot be acceded to as the suspension of licence will become meaningless if the said request is accepted. However, to enable the petitioner to make appropriate arrangements for the benefit of the said guests, it can be directed that the period of suspension will commence from 8th October 2008. 11. Hence, I pass the following order : i) The impugned order dated 16th November 2007 passed by the Deputy Commissioner of Police is modified. ii) It is directed that the licence No.15/Colaba will stand suspended for a period of seven days from 8th October 2008. Thus, the licence will remain suspended from 8th October 2008 to 14th October 2008 (both days inclusive). iii) The Deputy Commissioner of Police will depute a Police Officer to visit the establishment of the Petitioner during the aforesaid period twice a day to ensure that - 9 - the order of suspension of licence is implemented. iv) Writ Petition is partly allowed in above terms. v) Parties to act upon an authenticated copy of an operative part of this order. JUDGE JUDGE JUDGE