ORAL JUDGMENT :
1. Rule. Rule is made returnable forthwith and heard finally by consent of the parties. Ms. Cardozo, learned AGP waives service on behalf of the Respondents.
2. Heard Mr. Kansara for the Petitioner and Ms. Cardozo, AGP for the Respondents.
3. The Petitioner claims to be one of the partners of the establishment of an eating house known as "Missile Restaurant and Bar", Goregaon (W), Mumbai. A license to keep a place of public entertainment has been given to the Petitioner and one Yar Mohammad Kallan under Section 33(1) (w) & (y) of the Bombay Police Act, 1951 subject to the Rules framed under the said Act. In exercise of powers conferred by Section 33, the Commissioner of Police, Mumbai has framed "Rules For Keeping Places Of Public Entertainment in Greater Bombay, 1953" (hereinafter referred to as the "said Rules" for short).
4. The place of eating house of the Petitioner was inspected at 23.05 hours on 12.11.2009 by the Senior Inspector of Police, Social Service Branch, Mumbai and at that time it was found that in a hall situated on the first floor, 13 lady waitresses were found making obscene gestures and were in close physical contacts with customers. It was also found that the customers were spraying and throwing Indian currency notes on the said lady waitresses. It was also found that neither the Petitioner nor his co- licensee -Yar Mohammad Kallan were present in the establishment and that the establishment was being run through the persons named -Ganesh Bhoja Shetty, styled as a Manager and Sudarshan Vasant Hegde, working as Cashier. In view of this two actions were taken. Vide C.R.No. 2337/2009 and 2349/2009 the Local Act Offences were registered under Sections 110 and 117 of the Bombay Police Act, 1951; whereas Local Act Offence No. 2350/2009 and 2352/2009 was registered against the Manager Ganesh Bhoja Shetty under Section 33(w) read with Section 131 of BP Act,1951 and CR No. 2351/2009 and 2353/2009 were registered under Section 33(w) read with Section 131 of the BP Act, 1951 against Cashier- Sudarshan Vasant Hegde.
5. It is pertinent to note that since the Petitioner and his co-licensee Yar Mohammad Kallan were not present at the eating house, no offence of whatsoever nature was registered against them. It is an undisputed position that the said prosecution is still pending.
6. The second action which was taken was to submit a report to the Licensing Authority. A detailed panchanama was prepared and the same has been signed by Sandesh Rajaram Desai and Abddul Majjid Abddul Jabbar Siddiqui. A copy of the panchanama was immediately handed over to Ganesh Bhoja Shetty (Manager) and Sudarshan Vasant Hegde (Cashier).
7. Since the prosecution registered under the BP Act,1951 and actions for breach of license conditions are two independent actions, a show cause notice was issued to the Petitioner and his co-licensee - Yar Mohammad Kallan on 3.02.2010. The show cause notice gave complete description of the inspection and called upon the Petitioner and his co- licensee to show cause as to why punitive action should not be taken against the Petitioner and his co-licensee by suspending the license for a period of 90 days. The show cause notice specifically refers to the violation of Rules 8(1), 8(2), 6, 21(a) and 24.
8. The Petitioner and his co-licensee sent a reply to the show cause notice through Advocate. Paragraphs 2,3 and 4 of the said reply are of some relevance. It was contended in paragraph 3 that the show cause notice is premature and is in violation of undertaking given by the Licensing Authority in this court in the case of Hotel Priya Restaurant and Bar vs. State of Maharashtra. The relevant portion reads thus :
"In the said undertaking you have undertaken that you will not take any action on the ground of pending cases and as seen from the said show cause notice you have based the said show cause notice on the ground of pending case and you have alleged against our client having committed breach of the Entertainment Rules, 1953."
Other judgment of this court in the case of Dilip J. Bhatia was also relied upon. In paragraph 3, it was stated that the copy of the FIR, Panchanama and other relevant material has not been furnished alongwith the show cause notice. It was further stated that since the criminal cases were pending, no action for suspension of the license can be taken. In para -4 it was stated thus :
"4. As regards breach of Rule 8(1) and 8(2) our client states and submits that the person who is named as Manager is the employee working in the establishment of our client and he is holding the valid naukarnama and h is name also appears in the wage cum muster roll. Our client also sttes that on 12.11.2009 our client being the licensee was personally present on the said date, but for the reasons best known to the Officer, he has not taken any action against out client and has registered the case against one Shri Ganesh Shetty who was sitting at the cash counter. Our client therefore submits that there is no breach of Rule 8(1) as our client was personally present on the said date. As regards breach of Rule 8(2) our client states that he has not appointed any person as Manager and therefore, he is not supposed to furnish the specimen signature of the said person. In view thereof, there is no breach of Rule 8(1) and 8(2)."
9. It is an admitted position that the copy of the Panchanama and the copy of the Local Act Crimes Register was furnished to the Petitioner by covering letter dated 01.01.2011 received by the Petitioner on 04.01.2011. In fact Mr. Kansara has handed over the photocopies of the said documents during the course of the argument. When these documents were furnished, no grievance of whatsoever nature was made by the Petitioner that all the requisite documents have not been furnished. No further reply was filed by the Petitioner. A personal hearing was fixed by the Licensing Authority and on 07.03.2011, the Petitioner was heard in-person. Thereafter, the Licensing Authority passed the impugned Order (Exh.D, pages 57-62) dated 10.03.2011 and the license was suspended for a period of 60 days. Aggrieved by this order, the Petitioner filed an Appeal under Rule 28 of the said Rules. By the impugned Judgment and Order dated 02.09.2011, the Hon'ble Minister for Home Affairs, Government of Maharashtra has dismissed the said Appeal.
10. Mr. Kansara for the Petitioner advanced following submissions :
(a) The Petitioner or his co-licensee have not been prosecuted and they have not committed any offence and that the criminal prosecution under Section 110,117 and 33 of the Bombay Police Act, 1951 is pending and hence, facts or the incidents which led to the filing of such criminal proceedings cannot be made foundation for action of suspension of license.
(b) A strong reliance was placed on the Judgment of the learned single Judge (S.C.Dharmadhikari, J.) in the case of Abdul Rashid Mohammed (M/s. Hotel Star Night) Vs. The Commissioner of Police Greater Mumbai & Anr. in Writ Petition No. 9341 of 2010 delivered on 9th June, 2011 and it was contended that the ratio of the said Judgment is applicable to the facts of this case. A very strong reliance was also placed on the Judgment of V.C.Daga, J. in Writ Petition No. 6178 of 2008 in the case of Sadanand A. Shetty vs. State of Maharashtra & Ors. delivered on 26th September, 2008 and the undertaking filed by the Deputy Commissioner of Police (H.Q-1), Mumbai in the said Writ Petition. It was contended that the passing of the impugned order was clearly violative of the said undertaking.
(c) It was submitted that though the Petitioner was factually present in the establishment on 12.11.2009 his presence was deliberately not noted in the Panchanama. Based on this, it was submitted that there was no violation of Rules 8(1) and 8(2).
(d) It was alternatively submitted that in any case since the Petitioner had duly appointed Mr. Ganesh Shetty as Manager by executing the Nokarnama, which was endorsed by the Authorities under the Bombay Prohibition Act, 1949, there was no need to have a separate endorsement from the police authorities and hence, Rules 8(1) & 8(2) were not violated at all. Rule 6 and Rule 21-A were also not violated and unless pending criminal cases were decided, these Rules could not have been relied upon.
(e) It was also submitted that unless and until the establishment of eating house was having license for the liquior or other intoxicating substances under the provisions of the Bombay Prohibition Act, 1949 or the Rules framed thereunder, no license either for Class 'A' or Class 'B' can be issued under the 1953 Rules framed by the Commissioner of Police. It was further submitted that hence, once Nokarnama was duly endorsed by the Authorities under the Bombay Prohibition Act, there was no requirement of having the Nokarnama endorsed under Rule 8 from the Police Authorities.
11. On the other hand, Ms. Cardozo, learned AGP advanced the submissions that as the Petitioner or his co-licensee were absent at the time of inspection, the action of suspension of license is not taken and the criminal cases may be pending but it is an independent action since neither the Petitioner nor a co-licensee are accused in any of the criminal cases. Mere Nokarnama endorsed by the Authorities under the Bombay Prohibition Act, 1949 cannot be a substitution for an appropriate proceedings being followed as contemplated by Rule 8. Rule 8 contemplates for endorsement. That endorsement shall be made on the licensee from the concerned Licensing Authority and since admittedly there is no such endorsement made in the present case, violation of Rules 8 (1) & 8(2) is duly established. It was the Petitioner and his co- licensee who were not present and a false reply has been given, contending that the Petitioner was present but he was not shown present in the Panchanama. She submitted that if the Petitioner had really been present and if his name had really not been shown in the Panchanama, nothing prevented the Petitioner from sending a representation to the concerned Police Officer or to the Licensing Authority that though he was present, he was deliberately shown absent.
12. She further submitted that the criminal prosecution and the action for breach of Rule are two independent and different actions, that there is no breach of the undertaking filed in W.P. 6178 of 2008 and that the undertaking has been duly complied since the show cause notice clearly reflects that the action proposed to be taken is for breach of Rules and the terms and conditions of the license and that is independent of the criminal prosecution. It was submitted that since no prosecution is pending against the Petitioner there is no breach of para 5 of the undertaking. Dealing with the Judgment of S.C.Dharmadhikari, J. in the case of Abdul Rashid Mohammed (supra) it was submitted that the ratio of that Judgment is not applicable to the facts of this case since from a reading of the said Judgment, it is clear that the show cause notice did not clearly refer to the violation of Rules 8(1) and 8(2).
13. I have considered the rival submissions. It is necessary to note down the relevant provisions of the Bombay Police Act, 1951 and 1953 Rules framed by the Commissioner of Police, Mumbai. The relevant provisions are Sections 2(5A): Eating House, 2(10) : "Place of public entertainment" , Section 33(1)(w),(y),(xa) and Sections 110, 117, 131 and 162 of the BP Act, 1951 and Rules 1,2,3,6,8,21, 21-A, 24 and 27 of the Rules framed by the Commissioner of Police under Section 33 of the Bombay Police Act, 1951. The same read as under :
(a) "2(5A) "eating- house" means any place to which the public are admitted, and where any kind of food or drink is supplied for consumption on the premises by any person owning or having an interest in or managing such place, and includes a refreshment- room, boarding-house, coffee- house or a shop where any kind of food or drink is supplied to the public for consumption in or near such shop but does not inc1ude "a place of public entertainment."]
(b) 2(10) "place of public entertainment" means a lodging- house. boarding and lodging- house or residential hotel, and includes any eating- house in which any kind of liquor or intoxicating drug is supplied (such as a tavern, a wine shop, a beer shop or spirit, arrack, toddy, ganja, bhang or opium shop) to the public for consumption in or near such place ;]
(c) 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:
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 Clauses [(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 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 maintenance of public safety and the prevention of disturbance thereat;
[(xa) registration of eating- hoses, including granting a certificate of registration in each case, which shall be deemed to be a written permission required and obtained under this Act for keeping the eating-house, and annual renewal of such registration within a 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:
(d) "S. 110. Behaving indecently in public. No person shall willfully and indecently expose his person ill any street or public place or within sight of, and in such manner as to be seen from any street or public place, whether from within any house or building or not, or use indecent language or behave indecently or riotously, or in a disorderly manner in a street or place of public resort or in any office station or station house.
(e) S.117. Penalties for offenders under Secs. 99 to 116. Any person who contravenes any of the provisions of Secs. 99 to 116 (both inclusive) shall, on conviction, be punished with fine which may extend to [twelve hundred rupees].
(f) S. 131. Penalty for contravening rules, etc., under Sec. 33.
[Save as provided in Sec. 131-A, whoever]-
(a) contravenes any rules or order made under Sec. 33 or any of the conditions of a licence issued under such rule or order, or (b) abets the commission of any offence under Cl. (a) shall, on conviction be punished]-
(i) if the rule or order under which the said licence was issued was made under Cls. (b), (g), (h), (i), sub- clauses (i) and (ii) of Cl. (r) or C1. (u) of sub-section (1) of Sec. 33, with imprisonment for a term, which may extend to eight days or with fine which may extend to [ one thousand two hundred fifty rupees] or with both;
[(ia) if the rule or order under which the said licence was issued was made under sub-clause (iii) of clause (r) of section 33, with imprisonment for a term, which may extend to three months or with fine which may extend to two thousand rupees or with both.]
(ii) if the rule or order contravened was made under Cl. [(wb) or wx] of sub-section (1) of Sec. 33, with imprisonment for a term which may extend to three months or with fine which may extend to [twelve thousand five hundred rupees] or with both;
(iii) if the rule or order contravened or the rule or order under which the said licence was issued was made under Cls. (n) and (o) of sub-section (1) of Sec. 33 with fine which may extend to [five thousand rupees;
(iv) if the rule or order contravened was made under Cl. (b) of sub-section (1) of Sec. 33 and prohibits the sale or exposure for sale of any goods on any street or portion thereof so as to cause obstruction to traffic or inconvenience to the public-
(a) for the first offence with imprisonment for a term which may extend to one month or with fine which may extend to two thousand five hundred rupees] or with both, and
(b) for a subsequent offence with imprisonment for a term which may extend to six months and with fine which may extend to five hundred rupees; and
(v) if the rule or order contravened or the rule or order under which the said licence was issued [was made under any clause of sub-section (1) of Sec. 33 and for the contravention of which no penalty is provided under this section], with fine which may extend to fifty hundred rupees].
(g) 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 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.-(3) 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. "
(h) Rules framed by the Commissioner of Police namely Rules for Keeping Places of Public Entertainment in Greater Bombay. Rules 1,2,3, 6, 8 and 21(A), 24 and 27 which read thus:
"1. Places of public entertainment shall, for the purpose of regulation under the Bombay Police Act, 1951, be classified under class 'A' and Class 'B'
Class 'A' shall comprise every place of public entertainment in which is sold liquor, today, or any intoxication as is defined in the Bombay Prohibition Act, 1949.
Class 'B' shall comprise every place of public entertainment not comprised in Class 'A'..
2. No person shall open or keep a place of public entertainment of class 'A' or class 'B' without having previously obtained a licence from the Commissioner of Police.
3. No licence to keep a place of public entertainment of class 'A' shall be granted by the Commissioner of Police unless the applicant has previously obtained and produced to the Commissioner of Police, a licence granted for the same under the Bombay Prohibition Act, 1949 for the time being in force in Greater Bombay.
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) Change in old Rules vide Notification No. 24688/123-F/58 dated 18.12.58. 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 licence unless, the agent affixes his signature or if he is illiterate, his left thumb impressing on the licence 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 duly countersigned by the Commissioner of Police.
Provided further that in case of licenses issued before the date of this notification, the agent shall comply with the provisions of the preceding proviso within two months from that date"
21-A. Addition vide Notification No. 640/23-E dated 16.3.1992. Without prejudice 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"
24. Every person keeping a place of public entertainment shall conduct his or her occupation or business in such place in an orderly manner.
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 hold the licence or in order to prevent any obstruction, inconvenience, annoyance, risk, danger or damage to residents or passer by 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."
14. It is necessary to deal with submissions of Mr. Kansara that the impugned order is in breach of the undertaking given to this Court. This submission has no substance. The order dated 26th September, 2008 passed by V.C.Daga,J. in Writ Petition No. 6178/2008 in the case of Sadanand A. Shetty (Supra) reads thus :
"P.C.: . The undertaking given by Shri Vijaysinh Jadhav, Deputy Commissioner of Police (H.Q.-1), Mumbai vide his affidavit dated 26th September, 2008 is taken on record. He is put on notice that failure on his part to comply with the orders of this Court in future would entail action for contempt of court.
2. At this stage, learned counsel for the petitioner makes a statement that the petitioner would not make any grievance with respect to the closure suffered by him for a period of 45 days.
3. In view of the above, after hearing both parties, by consent of parties without recording reasons both impugned orders are quashed and set aside. Petition is allowed. No order as to costs. (V.C.DAGA, J.) "
The relevant portion of paragraph 3 to 5 of the undertaking read thus :
"3. I say that from the show cause notice at Exhibit-B one gets an impression and rightly so, that the action against the Petitioner in this matter was initiated just because prosecution is pending against him.
4. I most respectfully submit that the Police Authorities can take action for suspension or cancellation of licences for breach of conditions of licences or the rules applicable. This action is independent of the Criminal Prosecution. I respectfully agree that the show cause notice must reflect that the action proposed to be taken is for breach of rules and terms and conditions of licences and that is independent of the Criminal Prosecution.
5. I undertake not to initiate any action against any licence holder only because Criminal Prosecution is pending against him. Henceforth, the show cause notice shall specifically reflect that the action proposed to be taken is for alleged violation of licensing conditions and rules. The documents constituting the record of the Criminal Prosecution shall be relied upon only as a material for the purpose of establishing the alleged breach. The show cause notices issued henceforth would specify that the action is proposed to be taken against the licence holder on the basis of material available with the department (including the record of Criminal Prosecution) for breach of the Rules and the terms and conditions of licences."
15. Once this undertaking is considered in juxtaposition with the facts of the present case it is clear that the Licensing Authority has clearly followed the order passed by the Justice V.C. Daga and the statement made in the undertaking. In the present case, the show cause notice is not at all based on the criminal prosecution, since there was no prosecution pending against the Petitioner or his co-licensee. The show cause notice clearly reflects that the action proposed to be taken is for breach of the Rules and the Terms and Conditions of the license and pending the criminal prosecution. In the present case, no criminal prosecution is pending against the Petitioner or his co-licensee and hence, there is no question of breach of any undertaking. This submission of Mr. Kansara has to be therefore, and is hereby rejected.
16. The next submission of Mr. Kansara that the impugned order is contrary to the ratio in the case of Abdul Rashid Mohammed, (supra) decided by S.C.Dharmadhikari, J. is also devoid of any substance. This will be clear from the reading of paragraphs 3 and 4 of the Judgment which reads thus :
"3. The contention raised before me by Ms.Thadani in support of her submissions is that the law has been making a distinction inasmuch as the cancellation and suspension for breach of violation of terms and conditions of the licences is permissible, but, when such breach and violation is interlinked with an act which is the subject matter of a pending criminal case, then, the licence cannot be suspended or cancelled. In other words, if the incident is made subject matter of a show- cause notice to cancel or suspend the licence and at the same time a criminal case is also filed then till the pendency of the criminal case that incident cannot be made a foundation of the impugned action. That apart, she submits that assuming this is permissible in law, yet, in this case what has been held is that the ladies, nine in number, were working as women waitresses. However, these ladies were not employees of the petitioner establishment. If these ladies are found at the establishment beyond stipulated hours and which act or incident is subject matter of a pending criminal case then that would not have in any event be made a ground for suspension of the licence.
4. With the assistance of the learned Counsel appearing for the petitioner and the learned AGP, I have carefully perused the order which suspends the petitioner's licence for 15 days. That order passed by the licensing authority and confirmed by the appellate authority specifically holds that the suspension is effected for violation of rule 8(1) and 8(2) of the applicable rules. The licensing authority has not adverted to the aspects that have been highlighted before me by Ms.Cardozo and which are also pointed out on the affidavit filed in this petition in Court. If indeed the suspension was permissible for violation of the terms and conditions of the licence which mandates strict adherence to the provisions of Bombay Shops and Establishments Act, 1948 and also require maintainance of law and order so also avoiding indecent and vulgar acts by anybody concerned with the establishment, then, that should have been properly spelt out and cogent reasons ought to have been assigned to support such conclusion. If the allegations in the show cause notice are perused in the light of the conclusions drawn, then, the suspension is effected not on this ground but for violation of Rule 8(1) and (2) of the Rules. Now, the action is supported on other grounds. Therefore there is no alternative but to quash and set aside both the orders which are impugned in this petition."
17. The ratio of the said Judgment has no application to the facts of the present case. In the present case, the provisions of Rule 8(1) have been clearly relied upon in the show cause notice. Only defence of the Petitioner is that there is endorsement on the Nokarnama by the Authorities under the Bombay Prohibition Act. Mr. Kansara fairly admitted that the Nokarnama has no endorsement of the Licensing Authority as contemplated by Rule 8 of the 1953 Rules framed under the Bombay Police Act, 1951. The ratio of the Judgment in the case of Abdul Rashid Mohammed (supra) has, therefore, no application to this case.
18. The next submission of Mr.Kansara that unless and until the Eating House has a license issued for serving of liquor and other intoxicating substances under the provisions of the Bombay Prohibition Act, 1949, the said Eating House cannot be given a license for public entertainment under section 33 (x) of the 1951 Act is also devoid of substance. I have also extracted Rules 1 to 3 of the 1953 Rules. In fact the definition of "a place of public entertainment" under section 2(10) clearly shows that even lodging-house, a boarding and lodging house or residential hotel is also included within the definition of "place of public entertainment". The said definition includes "eating house" in which any kind of liquor or intoxicating drug is supplied to the public for consumption in or near such place. If a place of public entertainment holds a license under the Bombay Prohibition Act, 1949, such an establishment is given Class 'A' license; whereas an establishment which is not having license under the Bombay Prohibition Act, 1949, is given Class 'B' license but it is not a necessary pre-requisite that for getting a license to keep a place of public entertainment as defined in section 2(10) of the 1951 Act, the owner of the establishment must necessarily have a license to serve liquor and other intoxicating substances under the Bombay Prohibition Act, 1949.
19. The next submission of Mr. Kansara that the Petitioner was in fact present in the establishment but was deliberately not shown to be present is also devoid of any substance. If the Petitioner had really been present and if his name was not shown in the Panchanama nothing prevented the Petitioner from immediately informing the Licensing Authority or the concerned Police Officer who had prepared the Panchanama in writing after the inspection on the next date or soon thereafter that his presence was deliberately not shown. Apart from this Ganesh Shetty and Hegde who are working as Manager and Cashier respectively of the Petitioner, as can be seen from the reply to the show cause notice, have also been given copies of the Panchanama and they have singed in token of the receipt of such copies. They could have made an endorsement on the Panchanama that the Petitioner was present but was deliberately not shown present. From all these facts, it is clear that contention of the Petitioner in paragraph 4 of the reply to the show cause notice, whereby the Petitioner has claimed that he was present but was deliberately shown absent is completely wrong, false and is an after thought and has been rightly ignored by the Licensing Authority and the Appellate Authority. Even this submission of Mr. Kansara has no merit. Violation of Rule 8(1) and 8(2) is thus clearly established.
20. It was further submitted that all the documents relied upon by the Licensing Authority were not furnished to the Petitioner. Reliance is placed in this regard on the Judgment of the learned single Judge (Coram: F.I.Rebello, J.) in Writ Petition No. 3207 of 2004 in the case of Dilip Vasant Shinde vs. State of Maharashtra & Ors. The reliance placed on the ratio of the said case is of no assistance to the Petitioner in the present case.
21. It is contended that another undertaking given in the case of Hotel Uma Palace vs. State of Maharasthra in Writ Petition No. 1819 of 2010 has also been breached.
22. I have considered these submissions. In so far as the present case is concerned, the Petitioner had demanded the documents by making the averments in his reply, as noted above, alongwith the covering letter dated 1.1.2011. The requisite documents were furnished. No grievance was made by the Petitioner thereafter till passing of the impugned order. No written communication is sent to the Licensing Authority. In fact, the fact that Manager -Shri Shetty and Cashier- Shri Hegde were present in the premises is admitted by the Petitioner which is clear on a minute reading of his reply to the show cause notice. The Licensing Authority has relied on the Panchanama, copy of which has been admittedly furnished to the Petitioner. Hence, facts of this case are clearly distinguishable from the facts in Writ Petition No. 3207/ 2004. Further the contention regarding breach of the undertaking given to the court in the case of Hotel Uma Palace is also not proper. In that case, the Petitioner had sought documents which were not given. The panchanama and other documents which were available in that case were not given and in fact on account of non-production of the Panchanama, the criminal proceedings had resulted in acquittal. It is thus clear that the Judgment of the learned singe Judge of this Court (Coram : S.J.Kathawala, J.) in the case of M/s. Hotel Uma Palace has no application to the facts of this case.
23. The last submission of Mr. Kansara that the impugned action is based on the criminal prosecution is also devoid of any substance. In the first place, neither the Petitioner nor his co-licensee are prosecuted. The persons who are prosecuted are the Manager and the Cashier of the Petitioner and the waitress who were found to be making obscene gestures and being in close physical contact with the customers. The Licensing Authority is conscious of the fact that the prosecution for criminal action and punitive action of suspension of licence are two different things and pendency of the criminal proceedings have not been relied upon by the Licensing Authority as a ground for punitive action for suspension of licence for 60 days. It fact it is necessary to make note that in the show cause notice the Licensing Authority had proposed suspension of licence for 90 days but in the impugned order the licence is suspended only for 60 days which exhibits a conscious application of mind on the part of the Licensing Authority. Hence, there is no merit in any of the submissions advanced by Mr. Kansara. No other submission was advanced before me. The Licensing Authority acted within its jurisdiction under Rule 27 of the 1953 Rules read with Section 162 of the Act. The discretion conferred on the Licensing Authority is validly exercised. The Appellate Authority has independently considered the entire case including the facts of the case and has concurred with the decision of the Licensing Authority. Rules of natural justice have been fully followed. There is no perversity in the finding recorded by the Licensing Authority and confirmed by the Appellate Authority.
24. For all these reasons, in my opinion, no case is made out for interference in the extra-ordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India. There is no merit in the Writ Petition and the same deserves to be dismissed. It is accordingly dismissed. Rule is discharged with no order as to costs. The earlier ad- interim orders stand vacated.
25. As this stage Mr. Kansara makes an oral request for staying this order i.e. for staying the order of suspension for a period of four weeks. Since I have come to the conclusion that there is a clear breach of Rule 8(1) and 8(2) as also there is a breach of Rule 6 and 21-A and in view of the fact that the Licensing Authority and the Appellate Authority have concurrently passed orders against the Petitioner and since the impugned order does not cancel the License of the Petitioner, the prayer for stay is rejected.