Remanded

Ganpat Mahadev Patil (Since Decd) through Lrs, Kapil Ganpat Patil v. State of Maharashtra and Ors.

Bombay HC20 Jun 2013WP/2491/2013

Case brief

AI extract

What is this about?

The High Court dismissed the State's challenge to the cancellation of a lodging licence. Relying on precedents, the court held that mere pendency of criminal cases is insufficient for cancellation and set aside the impugned orders, remanding them to the Sub Divisional Officer to reconsider the matter on merits after hearing parties.

What did the court decide?

Impugned orders quashed; matter remanded to Sub Divisional Officer, Thane Division to reconsider cancellation keeping in mind legal dicta sought hearing within eight weeks.

Ganpat Mahadev Patil (Since Decd) through Lrs, Kapil… — Writ and Judicial Review | Bombay HC (2013)

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JP CHAVAN

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 2491 OF 2013

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Ganpat Mahadev Patil ... Petitioner Versus Teh State of Maharashtra and others ... Respondents

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Mr. R. D. Soni with Mr. S. N. Gawade i/by Ram & Co. for the petitioner Mr. P. P. Kakade, AGP for respondent No.1 to 5

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CORAM : N. M. JAMDAR, J. DATE : 20 JUNE 2013

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P.C.

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Rule. Rule made returnable forthwith. By consent taken up for final hearing.

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By this petition the petitioner challenges the order passed by the Principal Secretary, Home Department, State of Maharashtra dated 27 February 2013 and the order dated 26 November 2012 passed by the Sub Divisional Officer, Thane Division, Thane. By the impugned orders licence granted to the petitioner to conduct lodging & boarding establishment has been cancelled.

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The petitioner is conducting the business in the name and style “ Amar Palace Lodging and Boarding" at Miragaon, District Thane. The petitioner has licence under the Shops and Establishment Act, Eating House Licence, FL III Licence and licence to keep a place of Public Entertainment as being, a licence of FLB Licence and licences for keeping different entertainments. On 12 July 2012 the licence of the petitioner to

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conduct lodging and boarding establishment was cancelled. As against this order, the petitioner filed statutory Appeal to the Principal Secretary, and also filed Writ Petition No. No. 8965 of 2012. The petition came to be disposed of on 5 October 2012 by directing the respondent No.2 - Appellate Authority to hear and decide the the appeal within two weeks, The Principal Secretary, by order dated 18 October 2012 disposed of the appeal by remanding same to the Sub Divisional Officer, Thane Division, Thane i.e. the first authority. The issue as to whether the name of the petitioner be recorded as legal heir of his father, was also directed to be decided.

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Upon remand, by order dated 26 November 2012, the licence was cancelled w.e.f. 17/12/2012. An appeal came to be filed by the petitioner before the Principal Secretary which has been dismissed by the impugned order dated 27 February 2013. The impugned order has been passed primarily on the ground that the licence is required to be cancelled in view of certain pending criminal cases against the petitioner under Section, 3, 4,5, 7 (1-A ) of The Prevention of Immoral Trafficking Act, 1956 along with Section 366 (1) of the Indian Penal Code.

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Learned counsel for the petitioner submitted that before passing the order on 26 November 2012 no show cause notice was given to the petitioner and this point though raised in the earlier proceedings, has not been considered. The learned counsel further submits that mere pendency of the criminal cases cannot be a ground for cancellation of the licence and reliance is placed on the judgment of the Division Bench of this Court in the case of Maruti Vitthal Gopale Vs. State of Maharashtra and others (Writ Petition No. 5675/20216 dt.12/6/20212) and the decision of the learned Single Judge of this Court in Dilip J. Bhatia Vs. The Commissioner of Police, Thane and others [2001(1)

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Bom. C.R. 448] .

Learned AGP supports the impugned order and he draws my attention to the affidavit in reply filed by the State.

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As far as the first ground regarding show cause notice is concerned, the proceedings against the petitioner have now been considered twice by the first authority as well as the appellate authority and the grounds for cancellation of licence has been sufficiently made clear to the petitioner. Purpose of a show cause notice is to make the person aware of the imputation sought to be levied against him. The petitioner is fully aware of the grounds which are sought to be urged and there is no warrant to interfere with the impugned order on the ground that show cause notice was not served after the order of remand before the order cancellation of licence was passed.

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So far as the second ground regarding pendency of the criminal cases is concerned, the State, in its reply, has merely reiterated that because of the pendency of the criminal cases licence is cancelled. It is not stated in the affidavit whether the said criminal cases have resulted in conviction. Division Bench of this Court, in Maruti Vitthal Gopale (Supra) has observed in paragraph 2, 4 and 5 as under:

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"2. The learned Advocate for the petitioner has, however, argued that in the light of the judgment of this Court in Writ Petition No.7271 of 1999 (Dilip J. Bhatia V/s. The Commissioner of Police, Thane), dated 20th July, 2000, no order cancelling the petitioner's licence could be passed, until and unless a conviction had been recorded. It has also been argued that the petitioner was admittedly not involved in any criminal matter and action, if at all, was warranted against the manager and waiters alone.

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We have heard the learned Advocates for both the parties

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and gone through the judgment in the cited case. The relevant portion reads as under:-

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“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 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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We find that the above quoted observations apply to the facts of the present case. We have, therefore, no option but to set aside the impugned orders and allow the petition. We make it clear that if the prosecution results in a conviction, it would be open to the respondents to reconsider the matter in the light of the findings of the Criminal Court."

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The decision applies to the present case. No other contrary position is shown.

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In view of the above legal position, it will be appropriate to set aside the impugned orders and remand the proceedings to the first authority to consider the same a per the law laid down by this Court as enumerated above. The aspects regarding heirship right etc. of the petitioner are not dealt with in this petition. They will be considered by the authority on their own merits.

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Rule is accordingly made absolute in terms of prayer clause (a) and

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the matter is remanded back to the Sub Divisional Officer, Thane Division, Thane to consider whether the licence in question granted to the petitioner is required to be canceled, keeping in mind the dicta of this Court as enumerated above. The Sub-Divisional Officer, Thane Division, Thane will consider the matter on its own merits and dispose of the same after hearing the parties, within eight weeks.

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( N. M. JAMDAR, J.)

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Ganpat Mahadev Patil (Since Decd) through Lrs, Kapil Ganpat Patil v. State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

Ganpat Mahadev Patil (Since Decd) through Lrs, Kapil Ganpat Patil v. State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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