Quashed

Virendra Thimappa Bhandary (M/S. Varuna Bar and Rest.) v. the Deputy Commissioner of Police (H.Q.1) Mumbai and Anr.

Bombay HC19 Jun 2013WP/1405/2012

Case brief

AI extract

What is this about?

The High Court of Bombay quashed an order refusing a 'Premises and Performance' license for an orchestra in a bar/restaurant. The court held that pendency of criminal cases against employees cannot justify denial under Rule 110(b) citing consistent precedent. The matter was remanded for fresh consideration.

What did the court decide?

Impugned order dated 25/5/2012 quashed; matter remanded to respondent to reconsider application afresh within 6 weeks.

Virendra Thimappa Bhandary (M/S. Varuna Bar and Rest.)… — Service and Employment | Bombay HC (2013)

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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.1405 OF 2012

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Virendra Thimappa Bhandary (M/s. Varuna Bar and Restaurant) Versus The Deputy Commissioner of Police (H.Q.1) Mumbai and Anr.

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....Petitioner.

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...Respondents.

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Mr. Mayur Khandeparkar with Mr. T.N.Tripathi with Ms. Sapna Rachure i/by T.N.Tripathi & Co., advocates for the Petitioner. Mr. Shekhar Ingavale, AGP for the respondent/State.

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Mr. Rajiv Chavan, PI, Desk-X, Hotel Branch of respondent present.

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CORAM : RANJIT MORE, J.

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DATED : June 19, 2013.

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P.C.:

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Heard Mr. Khandeparkar, the learned counsel for the petitioner

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and Mr. Ingavale, the learned AGP for the respondent/State.

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2 By this petition filed under Article 226 of the Constitution of India, petitioner is challenging the order dated 25^th May, 2012, passed by respondent no.1, by which petitioner's application for grant of ' Premises and Performance ' license for having the amusement of 'Orchestra ' in

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the establishment of the petitioner known as M/s. Varuna Bar and Restaurant, has been rejected. There is no dispute that earlier, the petitioner's father (since deceased) was granted 'Premises and Performance' license for having the amusement of 'Orchestra' programmes and dance in the said premises in the year 1996. It was continued till 2005 when the State Government banned all forms of dance in eating houses, beer bars and permit rooms.

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3 In the month of July, 2010, Petitioner made an application for grant of fresh 'Premises & Performance' Licence for having the amusement of Orchestra in the aforesaid premises. By the order dated 23^rd December, 2011, Respondent no.1 rejected petitioner's application for grant of the said license. Petitioner thereafter preferred an appeal. However, the same was also dismissed on 30^th January, 2012. It is pertinent to note that the petitioner's application for grant of said license was refused mainly on the ground that the petitioner does not have independent parking space. Petitioner thereafter preferred Writ Petition No.667 of 2012 in this Court. This Court disposed of the said petition by an order dated 13^th April, 2012. This Court recorded statement of Mr. Sahane, Police Inspector, Hotel Branch that respondent no.1 was willing to reconsider the Application of the Petitioner for grant of licence without

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insisting upon independent parking space. In the light of this statement, matter was remanded back to respondent no.1 to consider petitioner's application afresh and liberty was also granted to the petitioner to approach this Court directly, in case, petitioner's application is rejected. As stated above, petitioner's application was again rejected by the impugned order and the petitioner thereafter, in pursuant of the liberty granted under order dated 13^th April, 2012 in Writ Petition No.667 of 2012, has approached this Court directly.

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4 Perusal of the impugned order reveals that respondent no.1 has not insisted for independent parking space. However, license is refused on following two grounds namely:

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“1) according to the Plan passed by the State Excise Department, the establishment totally has three divisions. The area of the Permit Room (“C”) is 403 sq.ft., the area of the Restaurant (“A”) is 426 sq.ft. and the area of the Restaurant (“B”) is 325 sq.ft. However, according to the Plan submitted by the establishment owner for the stage, it is seen that the stage admeasuring 10 X 12 has been constructed in the Permit Room (“C”) and Restaurant (“A”).

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Similarly, the Vanarai Police Station has registered LAC Nos.851 to 865 under Section 110 of the Bombay Police Act against 15 bar girls who were behaving in an indecent manner; on 30/12/2010 action was taken by LAC No.1260/10, on 19/02/2011, action was taken by LAC No.204/11 on 5/7/2011, LAC Nos.649 to 663 were registered under Section 110 of the Bombay Police Act against 15 bar girls for behaving in an indecent manner, on 15/7/2011, LAC No.709 to 711 under Section 110 of the Bombay Police Act were registered against 3 bar girls for having behaving in an indecent manner, on 29/7/2011, LAC No.772 to 733 were registered under Sections 116 and 33(1)(w) of the Bombay Police Act, on 13/8/2011 action was taken by LAC No.827/11. In this manner, in the year 2010- 2 times and in the year 2011- 5 times, i.e. totally 7 times action has been taken against the establishment.”

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5 So far as ground no.1 is concerned, the learned counsel for the petitioner makes a statement that the objection raised by respondent no.1 is complied with. Mr. Ingawale, the learned AGP after taking instructions from Mr. Chavan, Police Inspector, does not dispute that the first objection is complied with by the petitioner.

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6 So far as the second ground of objection is concerned, Mr. Khandeparkar, the learned counsel for the petitioner relies upon the decision of the learned Single Judge in the case of Dilip J. Bhatia Versus Commissioner of Police, Thane & Another, 2001(1) Bombay C.R. 448 . Observations of the learned Single Judge in paragraph 11 of the said judgment are important in this regard, which read as follows:

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“11. With regard to the first point raised on behalf of the petitioner that pendency of the cases under the Prevention of Immoral Traffic Act, 1956 against the employees of the hotel cannot be a ground for cancellation of licence of a hotel and at any rate eating house run by the petitioner in the name and style of Satyam Lodging and Boarding is concerned, the same need not detain us as it is squarely covered by the unreported decision of the Division Bench of this Court in Writ Petition No.1041 of 1985 decided on 16^th August, 1985 (Kimatram Harpaldas Aswani v. The State of Maharashtra and others). This Court has held that pendency of prosecution cannot be a ground for refusing to renew a licence to carry on the said business. Principle underlying the said decision is that even if a criminal case is pending, that by itself cannot be a ground so long as the licence holder himself or his agent or servant is convicted of the

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said offence. Our criminal jurisprudence recognises that until a person is tried and held guilty, he should be treated as innocent. Other decisions have also dealt with the same subject matter which have been included in the writ petition compilation. I do not think that it is necessary for me to refer to each of the said decision as the consistent view of this Court has been that pendency of the criminal proceedings cannot be a ground for cancellation of licence. Accordingly, petition should succeed on this issue.”

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Ratio of the decision of the learned Single Judge is squarely applicable to the facts and circumstances of the present case. Perusal of the impugned order shows that the said licence was denied to the petitioner under Rule 110(b) of the Rules for Licensing and Controlling Places of Public Amusements (Other Than Cinemas) and Performances for Public Amusement, including Cabaret Performances, Discotheque, Games, Pool Game Parlours, Amusement Parlours providing Computer Games, Virtual Reality Games, Cyber Cafes, Games with Net Connectivity, Bowling Alleys, Card Rooms, Social Clubs, Sports Clubs, Melas and Tamashas Rules, 1960 (In short 'Said Rules'). Clause (b) of Rule 110 of the said Rules reads as follows:

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“110. Power to refuse license: - The Licensing Authority may refuse a Premises Licence,

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(a) ----------

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(b) If he is satisfied after such enquiry as he thinks fit that the applicant for license of the premises in question is not fit or unsuitable to grant such License.”

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The Licensing Authority may refuse a Premies Licence if he is satisfied after such enquiry as he thinks fit that the applicant for license of the premises in question is not fit or unsuitable to grant such license. No doubt, that the respondent no.1 has recorded findings in terms of clause (b) of Rule 110 of the said Rules. However, said finding is based on pending prosecution against the petitioner. In view of the decision of the learned Single Judge in Dilip J. Bhatia (Supra), pending criminal proceedings could not have been taken into consideration. In these circumstances, second objection to refuse grant of license also, can not be sustained.

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7 Be that as it may, the first order, under which petitioner was refused license, was only on the ground that, the petitioner did not have any independent parking space. If that be so, after remand of the matter, respondent no.1 could not have taken into consideration additional

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grounds for refusal of the grant of the said license to the petitioner.

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8 In the light of discussion made here in above, impugned order can not be sustained. Petition is disposed of by passing the following

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order :

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Impugned order dated 25^th May, 2012, passed by respondent no.1, is quashed and set aside, and the matter is remanded back to respondent no.1 to consider petitioner's application afresh.

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In the light of discussion made here in above, respondent no.1 is directed to take decision in this regard as expeditiously as possible and in any case, preferably within a period of six weeks from the date of receipt of this order.

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Mr. Khandeparkar, the learned counsel for the petitioner, submits that he has already forwarded necessary documents to respondent no.1 and if a fresh demand is made, he will comply with the same. Statement accepted.

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(RANJIT MORE, J.)

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Virendra Thimappa Bhandary (M/S. Varuna Bar and Rest.) v. the Deputy Commissioner of Police (H.Q.1) Mumbai and Anr.

Case brief

What is this about?

What did the court decide?

Virendra Thimappa Bhandary (M/S. Varuna Bar and Rest.) v. the Deputy Commissioner of Police (H.Q.1) Mumbai and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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