APPU M SHETTY Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Rule. By consent, Rule made returnable forthwith and heard finally. I have extensively heard Ms. Bobby Malhotra, Advocate appearing for the Petitioner and Ms. Cardozo, learned AGP for Respondents.

(2.) The facts lie in a narrow compass. The Petitioner is running an eating house. Name is Hotel Sona. The Petitioner is aged 70 years. The hotel is situated at Goregaon. The Licencing Authority namely Assistant Commissioner of Police, Goregaon Division, Mumbai has issued a licence to keep a place of public entertainment bearing No. 37/Goregaon in favour of the Petitioner. The said licence empowers him to serve liquor in his eating house for which a special licence under section 33(xa) is issued. The concerned police officer namely Senior Inspector of Police, Prevention of Immoral Business Desk, Social Service Branch, Mumbai inspected the establishment of Petitioner at 00.35 on 6/12/2009 and during the course of inspection, it was found that on the ground floor hall, with the beats of music being played on Orchestra, 5 lady waitresses were making obscene gestures and were found to be in close contact with the customers and the customers were found to be showering Indian Currency notes on the said lady waitresses. The Petitioner was admittedly not present in the establishment. It is not the case of the Petitioner that the said lady waitresses were not employees of the Petitioner. One Rajesh Vishwanath Shetty was a person who was found to be conducting the entire business and one Dinesh Loku Poojari was found to be a person working as Manager in the establishment. In terms of Rule 8 of the Rules For Keeping The Places of Public Entertainment in Greater Bombay, 1953 framed by Commissioner of Police, Mumbai under Section 33 of the Bombay Police Act, 1951, the Petitioner had not obtained any prior permission of the Licencing Authority either to appoint the said Shri Shetty or said Shri Poojari as his agents. In view of this incident, a report was submitted to the Licencing Authority and, independent of this report, offences under section 33(w) r/w section 131 bearing C.R. Nos. 2088/2009 and 2089/2009 were registered against the conductor Rajesh Shetty and the Manager Dinesh Loku Poojari. Similarly, offences bearing C.R. Nos. 2090/2009 to 2094/ 2009 were registered against 5 waitresses under Section 110 of the Bombay Police At, 1951. The Petitioner is not an accused in any of these offences.

(3.) Since criminal prosecution and administrative action under Rule 27 of the 1953 Rules are two different things and operate in different fields, the first being a penal action and second being an administrative action, the Licencing Authority issued a show cause notice to the Petitioner on 4/2/2010. There is no dispute about receipt of the show cause notice. Show cause notice clearly indicated violation of Rule 8( 1), 8(2), 6, 21A and 24. Paragraph-7 of the show cause notice clearly shows that pending criminal cases were not the basis or foundation of the show cause notice and the proposed action of cancellation of licence. In paragraph-8, past history of the various administrative actions against the Petitioner were indicated which show that in 1997 police licence was suspended for 7 days, for 15 days in the year 2001, for 30 days in the year 2002, for 7 days in the year 2004, for 20 days in the year 2006, for 10 days and 15 days in the year 2007 and warning was issued in the year 2009. Thus the fact that the Petitioner is habitually violating provisions of the Rules was clearly indicated in the show cause notice which is at Exh. B to the Petition. The reply virtually admits that police had visited the establishment and also admits that lady waitresses who were employees of the Petitioner were found working in the establishment. The only dispute is about the timing of the visit of the police. The Petitioner has not indicated as to what is the time when the police visited the premises. A bald statement was made in the reply that the police came to the hotel before prescribed time limit and when the lady waitresses were returning from the work and were going to home. No time is indicated in the reply. Even in the appeal memo filed before the State Government no time has been indicated. There was mere denial of violation of rule 6 and 21. Reliance is placed on certain Judgments. Paragraphs 4 and 5 of the reply reads thus :"4) The person alleged as manager in the cases registered; is one of the staff members and he was doing supervision work in my absence. Till date I have not appointed any one as a manager in my hotel. I always remain present in the hotel in the business hours except lunch time and at the time of some other important work. In my absence I told to one of the worker to handle the hotel business for the time being. Therefore, in respect of violation of rule 8(1) as well as 8(2) is not taken place. 5) I hereby submitting that as compared to the cases, the proposed punishment is so harsh. Therefore, kindly take lenient view in this matter."