Sayyed Ali Akbar Murtuzai Partners of M/S.May Rose Restaurant Vs State of Maharashtra and 4 Ors.

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 ORDINARY ORIGINAL CIVIL JURISDICTION

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 WRIT PETITION NO.1291 OF 2008

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 Sayyed Ali Akbar Murtuzai
 Partner of M/s.May Rose
 Restaurant. .. Petitioner

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 Versus

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 State of Maharashtra & Ors. .. Respondents

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 Mr.P.C.Kansara for the petitioner.

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 Ms.Smita Gaidhani, A.G.P for the respondents.

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CORAM: S.C.DHARMADHIKARIJ.
DATE : 11th June, 2008

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P.C.

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 1. Rule. Respondents waive service. Heard both
 sides. By consent, Rule is made returnable forthwith.
 This Writ Petition under Article 226 of the Constitution
 of India challenges the order of the Appellate Authority
 (Minister of Home), Government of Maharashtra dated 20th
 April, 2008. The Licensing Authority by an order dated
 16th January, 2007 has directed that the petitioner
 establishment’s licence be suspended for 60 days. That
 order was challenged in appeal and confirmed by the
 Appellate Authority. That is how the present petition.

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 2. Mr.Kansara appearing for the petitioner invited
 my attention to the annexures to this Writ Petition. He
 submits that the order of the Licensing Authority dated

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 16th January, 2007 is passed upon a show cause notice
 dated 12th April, 2007. That show cause notice states
 that on 08th May, 1995 the Police Licence bearing
 No.44/Azad Maidan/1995 has been issued. The petitioner
 establishment is carrying on business from the premises
 situated at Cinema Road, Dhobi Talao, Mumbai. The
 Licensing Authority does not dispute that the licence
 issued was for running a permit room Class A.

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 3. The Licensing Authority was fully aware while
 issuing the present show cause notice that there are two
 cases registered against the establishment on 20th
 January, 2006 and 03rd June, 2006 respectively.
 Therefore, the Licensing Authority earlier issued a show
 cause notice bearing No.160/2006 dated 22nd August,
 2006. The show cause notice dated 12th April, 2007
 (subject show cause notice) itself recites that the case
 registered on 03rd June, 2006 is subjudice. The
 Licensing Authority does not wish to take into account
 that case and the incident reported therein for the
 purposes of the present proceedings. It has very
 categorically referred to another case registered on
 20th January, 2006 which also forms part of the earlier
 action. In other words, in furtherance of the show
 cause notice issued on 22nd August, 2006 (earlier show
 cause notice), the Licensing Authority proceeded to take
 action of suspending the licence for two days.

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 4. Now, it is pertinent to note that the Licensing
 Authority in paragraph Nos.3 and 4 of the present show
 cause notice refers to the same incident and case which
 is subjudice and in any event forms part of the earlier
 show cause notice. It has proceeded to allege in the
 show cause notice that the criminal case has been
 registered against the establishment on 03rd June, 2006
 for conducting a dance performance in the establishment,
 without permission. The show cause notice itself
 recites that this is a case which is pending.

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 5. Thereafter, the notice refers to the some raid on
 the restaurant wherein it was discovered that the
 petitioner and the partners concerned with the business
 of running the restaurant have remained absent from the
 premises and the show cause notice itself recites that
 one Uday Korba Shetty (Manager) is incharge of the
 affairs. Thus, there is a violation of Rule 8(1) and
 8(2). It is also unfortunate that subject show cause
 notice refers to violation of Rule 21A but despite
 repeated requests and adjournments, the learned A.G.P
 has been unable to produce any record save and accept
 reference to the pending case, as far as this violation
 and charges. Thus, the present show cause notice based
 upon which the impugned orders have been passed refers
 to the same incidents and case that have been part of

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 the earlier show cause notice and proceedings. It is
 not disputed that there is no fresh violation or breach
 after 03rd June, 2006. The show cause notice is thus
 clearly vitiated.

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 6. It is alleged in the subject show cause notice
 that the licence was suspended for three days in 2004
 and for two days in 2007. In such circumstances, the
 Licensing Authority directed the petitioner to show
 cause as to why the licence should not be cancelled. A
 perusal of the paragraphs 6, 7, 8 and 9 of the show
 cause notice would reveal that the very cases which were
 forming part of the earlier show cause notice have been
 referred to and relied upon.

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 7. Naturally, the defence of the petitioner was that
 considering the law laid down by this Court, pending
 cases cannot be taken into consideration for the subject
 action unless and until the nexus between the present
 activities and the pending cases is established. In
 other words, if the indecent acts or acts of indecent
 exposure or violation of Rule 21A which is subject
 matter of the pending criminal cases are continuing and
 the nexus is established, the same cannot be taken into
 consideration repeatedly. Aware as the Licensing
 Authority was of this ruling and the view taken by this
 Court, still, in the order dated 16th November, 2007 it

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 held the petitioner guilty on the grounds which are
 clearly forming part of the criminal case and earlier
 proceedings. The final order does not in any manner
 indicate as to how the petitioner is guilty of violation
 of Rule 8(1) and 8(2) or Rule 21A of the subject Rules.
 The order of the Licensing Authority does not indicate,
 save and accept making reference to the pending case,
 anything, which would justify imposition of penalty of
 60 days suspension is the submission made before the
 appellate authority and reiterated before me by
 Mr.Kansara.

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 8. From perusal of the orders impugned in this
 petition, it is apparent that they are vitiated by clear
 non application of mind. There is serious error
 apparent on the face of these orders in as much as all
 earlier incidents and cases have been made subject
 matter of a fresh show cause notice. There is nothing
 from the record which would enable me to take a view
 that the show cause notice dated 12th April, 2007 was
 issued because of any fresh incidents or acts as alleged
 therein. In such circumstances, it was the plain duty
 of the Appellate Authority to have interfered in the
 matter.

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 9. The Appellate Authority and the Licensing
 Authority ought to have been aware of the basic and

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 fundamental aspect in these cases. That is their order
 must speak for itself. Orders of this nature cannot be
 subsequently justified by referring to materials and
 matters which were not forming part of the show cause
 notice or the Record before the authorities. No
 justification of this nature can be permitted. There
 would be a clear violation of mandate of Article 14

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 which guarantees equality before law and equal
 protection of law. It is not as if there is a

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 fundamental right to deal in intoxicants, but, when the
 licences are issued in accordance with the Rules empower
 imposition of conditions, then, any violation or breach
 empowering them to take action, including imposing
 penalties, should be justified after testing them on the
 above touchstone. In the present case although
 repeatedly the matter was adjourned, neither any
 affidavit is filed nor the record is produced.

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 10. Considering that the petitioner’s establishment
 has been functioning without a duly Authorised manager
 and a complaint was made on the last occasion orally
 that there is no application seeking permission to
 appoint or designate any employee as a manager, I called
 upon Mr.Kansara to file an affidavit-cum-undertaking.
 An affidavit-cum-undertaking has been filed by one Sayed
 Ali Akbar Murtazai who is one of the partners of the
 petitioner and in the affidavit-cum-undertaking in

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 paragraphs 3 to 5 this is what is stated:

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 "3. I say that I alongwith two other partners
 are personally looking after day to day activity
 of said Restaurant. Petitioner had appointed
 various employees who were working in the
 restaurant of the petitioners. Petitioners have
 maintained the wage/salary register in which
 names of all the employees are recorded. I say
 that Shri Govind Gopal Shetty and Uday Shetty who
 are employed with the petitioner from last 6
 years who are assisting the petitioner to look
 after day to day activity of said business in the
 absence of the petitioners.

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 4. I say that the above petition came up for
 hearing before this Hon’ble Court on 09.06.2008.
 This Hon’ble Court has directed the petitioner to
 file affidavit-cum-undertaking. In view thereof
 the petitioners hereby give following
 undertaking.

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 (a) That petitioners (Licensees)
 shall abide by all the Rules, Regulations
 and terms of the licence and shall not
 commit any breach of licence conditions.

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 (b) Petitioners shall make the fresh
 application in the office of Respondent
 No.3 under rule 8(1) and 8(2) of
 Entertainment Rules, 1953 for recording
 the name of Manager on the "Place of
 Public Entertainment Licence" (Police
 Licence).

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 5. I say that the petitioners shall make the
 fresh application for recording the names Shri
 Govind Gopal Shetty and Uday Korba Shetty as the
 managers or responsible persons to look after the
 said business in the absence of petitioners. The
 said application will be made on or before
 13.06.2008. The petitioners shall abide by the
 undertaking given to this Court. Whatever stated
 above is true and correct."

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 11. Copy of this affidavit-cum-undertaking was handed
 over to the learned A.G.P. However, the learned A.G.P.
 states that she has no instructions. I thought that
 considering the affidavit-cum-undertaking and the
 petitioner stating on oath that due compliance will be
 made with all rules and regulations so also conditions
 upon which licence is issued, I thought that the
 Licensing Authority would not pursue the matter further.
 However, learned A.G.P seems to have instructions from

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 the Authority to request this Court for a decision on
 merits and it is in this light that I had to refer to
 the materials on record of the Authority. Once there is
 no denial of the above factual position, then, there is
 no alternative but to interfere with the impugned orders
 and quash and set aside them. Rule is made absolute in
 terms of prayer clause (a) subject to the
 affidavit-cum-undertaking given to this Court that the
 petitioner would make an application on or before 13th
 June, 2008 to the Licensing Authority for designating
 either Mr.Govind Gopal Shetty or Mr.Uday Korba Shetty as
 managers or responsible persons. Upon proof of such
 application being made, the petitioner may be permitted
 to carry on the activities at the establishment.

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 12. Mr.Kansara in consonance with the

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 affidavit-cum-undertaking submits that the petitioner

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 will carry on the activities and ensure that there is no
 violation of the rules and regulations and terms and
 conditions of the licence. Needless to add that this
 order does not prevent the authorities, in case of any
 fresh incidents or cases to take appropriate action. It
 is further needless to add that the observations herein
 do not constitute any impediment or bar from proceeding
 as above. It is for the authorities to ensure
 maintenance of law and order, public peace so also
 compliance with the terms and conditions of the licence

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 and Rules in this behalf. Petition is allowed. There

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 will be no orders as to costs.

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 (S.C.Dharmadhikari, J)

Sayyed Ali Akbar Murtuzai Partners of M/S.May Rose Restaurant v. State of Maharashtra and 4 Ors.

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Sayyed Ali Akbar Murtuzai Partners of M/S.May Rose Restaurant v. State of Maharashtra and 4 Ors.

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