Bombay High Court
Shri K.V. Acharya & Another vs The State Of Maharashtra & Others on 13 January, 2000
Equivalent citations: 2000(3)BOMCR372, 2000CRILJ2038, 2000(3)MHLJ90
Author: R.M. Lodha
Bench: R.M. Lodha
ORDER R.M. Lodha, J.
1. In this writ petition filed under Article 226 of the Constitution of India, the petitioners are impugning the show cause notice dated 15-11-95, the order passed by respondent No. 2 on 2-4-96 and the order in appeal passed on 17-6-96 by respondent No. 3. In substance the grievance of the petitioners is suspension of their licence to keep a place of public entertainment for 15 days.
2. The petitioners are partners in the registered partnership firm of M/s. Golden Crown which is engaged in restaurant business at 29/33, Jankar Village Estate, August Kranti Marg, Mumbai. The petitioners were granted licence being Police Licence No. 36/1986 on 25-6-1986 by the Assistant Commissioner of Police, Tardeo Division, to keep a place of public entertainment. The said licence which was initially granted upto 31-3-87 continued to be renewed every year from time to time. The last renewal was made upto 31-3-97. A show cause notice was issued to the petitioners by the Dy. Commissioner of Police Head Quarters, Greater Bombay on 15-11-95 seeking explanation from the petitioners as to why their licence should not be suspended for a period of 15 days for repeatedly committing breaches of law and creating law arid order problem. The petitioners responded to the said show cause notice by filing reply and ultimately the respondent No. 2 passed an order on 2-4-96 suspending the petitioners licence to keep a place of public entertainment for 15 days. The said order passed by the respondent No. 2 on 2-4-96 came to be challenged in appeal by the petitioners before respondent No. 3 on various grounds. However, the appellate authority was not persuaded by the contentions of the petitioners and dismissed the appeal filed by the petitioners vide order dated 17-6-96. Aggrieved by the order passed by respondent No. 2 suspending petitioners licence for 15 days and confirmed in appeal by the appellate authority, the present writ petition has been filed.
3. In the present case in the show cause notice given to the petitioners the following incidents, offences, breaches and omissions have been mentioned while proposing the suspension of petitioners licences.
No. L&CNo.
U/ Section Date & Time Accused Remarks
1. 1272/92 33-l (W) 17-4-92 00.40 hrs. Shivram H. Shetty Accused absent.
2. 1552/92 "
20-05-92 03-00 hrs. Bhaskar Shetty Bail Deposit forfeited.
3. 2468/93 33-l (W) 5-10-93 02.45 hrs. Ramesh Hegde Bail Deposit forfeited.
4. 2676/93 "
19-10-93 01. 45 hrs. Ramesh Hegde "
5. 2953/93 "
18-11-93 "
"
6. 94 33-l(W) 4-3-94 02.45 hrs. Ashok K. Shetty Accused absent. Bail Deposit forfeited.
7. 739/94
"
7-5-95 02. 35 hrs. Ramesh Hegde "
8. 874/94
"
5-6-94/03.15 hrs. Ramesh Hegde "
9. 895/94
"
10-6-94/01.30 hrs "
"
10. 1319/94 "
27-9-94/00.4 hrs. Shivram G. Shetty.
"
11. 1396/94 "
9-10-94/03.30 hrs. Ramesh Hegde "
12. 1411/94 "
12-10-94/01.35 hrs. "
"
13. 1647/94 17-12-94/02.30 hrs. Navin Chotha "
14. 1686/94 "
30-12-94/02.00 hrs. Ashok K. Shetty "
15. 89/95
"
27-1-95/01-35 hrs. Ramesh D. Hegde "
16. 151/95
"
5-2-95/01. 15 hrs. Navin R. Chotha "
17. 310/95
"
28-2-95/01.30 hrs. Ramesh D. Hegde "
18. 400/95
"
17-3-95/02.10 hrs. "
"
19. 450/95
"
24-3-95/02.00 hrs. Navin R. Chotha."
"
4. Admittedly the original licence granted to petitioners to keep the place of public entertainment has been renewed every year after the first incident as cited in the show cause notice dated 17-4-92 and the last incident dated 24-3-95 at Item No. 19 mentioned in the said notice had taken place. Obviously when the aforesaid offences or incidents or breaches were not found sufficient by the concerned authority for denial of renewal of licence to the petitioners, the said offences, incidents or breaches cannot furnish grounds for cancellation or suspension of licence which was renewed after the said offences, incidents or breaches had already taken place. Rule 13-A of the Rules for Keeping Places of Public Entertainment in Greater Bombay framed by Commissioner of Police under section 33 of the Bombay Police Act provides for renewal of licence granted under these rules. Rule 13-A of the said Rules reads thus :-
"13-A. (1) (Addition notification not available) every application for renewal of a licence granted under these rules shall be made at least 30 days before the day on which such licence is to expire. The application shall be accompanied by the license to be renewed and the appropriate amount of fee as specified in Rule 29.
(2) Where an application is made in accordance with sub-rule (1) the premises in respect of which the licences is to be renewed, shall be deemed to be duly licensed until such licence is renewed and delivered to the applicant or his agent or until an intimation that the renewal of the licence has been refused is communicated to such person.
(3) Any application for renewal of a licence, not made in accordance with the provisions of sub-rule (1), shall be liable to be rejected by the Commissioner of Police.
(4) The Commissioner of Police may refuse to renew the license if he is satisfied after such enquiry as he thinks fit, that the licensee is not suitable a person for continuing to held the license."
5. A perusal of the aforesaid Rule shows that the licensing authority may refuse to renew the license if it is satisfied that the licensee is not suitable person for continuing to hold the licence. Once the licensing authority renewed the license despite the omissions, offences and breaches committed by the licensee earlier thereto, it would mean that such licensee has been found to be suitable person for renewal despite the said offences, breaches or incidents and, therefore, the said offences, breaches or incidents could not be considered as ground for suspension of licence when such offences, incidents or breaches were not found sufficient for refusal of renewal of licence. The same view was taken by me in M/s. Hotel K.K. Sansar v. Dy. Commissioner of Police and others, wherein the identical question was involved. In that case the offences related to the period from 1-1-95 to 19-12-97. The licence was renewed in that case after 1-1-95 every year till 31-3-99. Despite the fact that there were 27 offences committed by that licensee for the period from 1-1-95 to 19-12-97, the licence was renewed for the subsequent year and later on the authorities concerned suspended the licence for the offences committed anterior to the renewal of licnece. When the matter came before this Court, I in paragraph 4 of the judgment held thus:
"4. From the aforesaid statement of charges, it would be seen that the said offences related to the period from 1-1-95 to 19-12-97. Mr. Joshi learned A Pane! Counsel was candid in admitting that the licence issued to the petitioner for the first time in the year 1991 has been renewed from time to time. He did not dispute the fact that the said licence issued in the name of the petitioner has been renewed in the year 1995, 1996, 1997 and 1998. The last renewal was made on 7-4-98 which was valid upto 31-3-99. It is very difficult to appreciate, much less understand, that if the alleged offences were not found sufficient by the competent authority for denial of renewal of licence to the petitioner, how could the said offences furnish grounds for cancellation or suspension of licence which was renewed after the said offences had already taken place. If the alleged offences as set out in the statement (Annexure-A) were serious, there was no occasion for the competent authority to renew the licence from time to time thereafter. The very fact that the licence was renewed by the competent authority even after such offences under section 33(W) and 110 of Bombay Police Act, 1951, were committed by the petitioner, it would show that such offences were not found weighty of refusal for renewal of the licence to the petitioner. When the competent authority renewed the licence in favour of the petitioner after such offences were committed by the petitioner, the licence authority had no power, competence or jurisdiction to take such offences into consideration for cancellation or suspension of licence. On this ground alone the order passed by respondent No. 1 on 18-8-98 and confirmed in appeal by respondent No. 2 cannot be sustained. In this view of the matter, I do not intend to go into various questions raised by the petitioner in the writ petition challenging the impugned order."
6. For the reasons already indicated above, the writ petition deserves to be allowed and is allowed. The order passed by respondent No. 2 on 2-4-96 and the order passed by respondent No. 3 in Appeal on 17-6-98 are accordingly quashed and set aside.
7. Rule stands disposed of in aforesaid terms.
8. No costs.
9. Writ petition allowed.