1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 4O OF 2009 IN CRIMINAL WRIT PETITION NO. 2516 OF 2008 Devakar Babu Shetty .. Applicant Vs State of Maharashtra & Another .. Respondents Mr. Vishal Thothani i/b Mrs. Veena Thandani for the applicant Miss. A.T. Javeri, APP for the State CORAM : Smt. V.K. TAHILRAMANI, J. DATE : 17th August, 2009. P.C.: 1. Heard the learned counsel for the applicant and the learned APP for the state. The applicant operates Shivsagar restaurant which is situated at Jadhav Market, Badlapur (W). Respondent no. 2 i.e Assistant Commissioner of Police, Ambernath division sent a notice letter dated 11th / 14th April, 2008 to the applicant to show cause as to why the license of his restaurant should not be cancelled if he does not produce the required NOC from the fire department. The Rma cra40-09.sxw 2 petitioner challenged the said order before the Home Department. The appeal came to be dismissed on 21st October, 2008. Hence, the applicant preferred writ petition no. 2516 of 2008. Thereafter, the restaurant came to be sealed. The applicant was also aggrieved by the action of the respondent of sealing the restaurant. Thereafter, writ petition no. 2516 of 2008 came to be disposed of on 3rd December, 2008. By the order whereby writ petition was dismissed, it was interalia observed that no fault can be found with the authorities for not renewing the license of the petitioner and thereafter sealing the premises. The applicant has now preferred this application for recalling the order 3rd December, 2008. 2. The contention of the applicant is that in view of Section 131A of the Bombay Police Act, 1951, the premises could not be sealed and while passing the order dated 3rd December, 2008, this court did not consider the provisions of Section 131 A of the Bombay Police Act. He has fairly admitted fact that the provisions of Section 131A of the Bombay Police Act were not pointed out at the time time when Writ Petition No. 2516 of 2008 was heard. However, perusal of the Rma cra40-09.sxw 3 provisions of Section 131A of the Bombay Police Act shows that the said section would not be attracted and the section 33(w) would apply. It is an admitted fact that even as on today, no NOC has been obtained from the fire department. The affidavit filed by Mrs. Pathak, the Assistant Commissioner of Police, Ambernath Division shows that 33 cases have been lodged against the applicant for illegal activities carried out in the restaurant. The said 33 cases are from the period 13th June, 2008 to 5th September, 2008. Looking to the fact that 33 cases were registered against the applicant and he was prosecuted and convicted in all theses 33 cases and despite that he still continued to run the restaurant, hence, DCP, Zone IV, Ulhasnagar has no option but to seal the premises in order to prevent the applicant from continuing his illegal activities and to prevent any untoward incident arising out of illegal and hazardous kitchen activities putting life and property in danger. On account of all this, the restaurant premises was sealed on 27th November, 2008. 3. The relevant provisions of Section 33 are read as under : "(i)licensing or controlling places of public amusement or Rma cra40-09.sxw 4 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) regulating the means of entrance and exist at places of public amusement or entertainment or assembly, and providing for the maintenance of public safety and the prevention of disturbance threats;" Section 33 (w)(10) specifically provides for prohibiting the keeping of place of public entertainment in order to prevent risk, danger or damage to the residents or passengers in the vicinity. In the present case, the mezzanine floor of the restaurant is just above the kitchen and the customers are served on the mezzanine floor. In the event of any untoward incident, in absence of any adequate fire and safety measures, especially looking to the fact that no NOC has been obtained from the fire department, the eminent possibility of danger to the life of the people and loss to the property cannot be ruled out. Despite the fact that the license of eating house was cancelled, the applicant has continued to run his business unauthorizedly / illegally. At this stage, it may be also stated that the Badlapur Police Station had Rma cra40-09.sxw 5 registered a case vide C.R. NO. I-128 of 2008 for the offence punishable under Sections 420, 465, 468, 470, 471 r/w. 34 of Indian Penal Code against the present applicant - Divakar Babu Shetty and two others for forging the no objection certificate in order to obtain Police License for the present eating house. In view of all these facts, especially the provisions of Section 33(w), no fault can be found in the action of the authorities in sealing the premises. The application is disposed of. (SMT. V.K. TAHILRAMANI, J) Rma cra40-09.sxw 6 Rma cra40-09.sxw