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2012 DIGILAW 66 (BOM)

Ramesh S. Alva v. State of Maharashtra

2012-01-11

GIRISH GODBOLE

body2012
ORDER: 1. By an earlier order dated 23/11/2011 notice for final disposal was issued and the Respondents were granted liberty to file additional affidavit if they so desire. Today Ms. Cardozo has placed on record a letter dated 10/1/2012 addressed by the Assistant Commissioner of Police for the Commissioner of Police, Navi Mumbai addressed to Ms. Cardozo stating that apart from the earlier affidavit already filed by ACP(Administration) Mr. Baliram Kushabhau Chikhale on 9/9/2011 they do not want to file any further affidavit and that the AGP should make a statement that Licencing Authority has not granted any licence for Performing an Orchestra. The contents of this letter are recorded and statement of Ms. Cardozo in terms of this letter is also recorded. In view of this, without any further affidavit, hearing is proceeded. 2. Since common questions of facts and law arise in both the Writ Petitions, on the request made by the learned Advocates, both the Writ Petitions are being clubbed together and are taken up together for hearing and are being disposed of by this common Judgment. 3. Rule. Rule made returnable forthwith by consent of the parties. Ms. Cardozo waives service on behalf of the Respondents. BRIEF RESUME OF FACTS: 4. Petitioners in both the Writ Petitions own and run eating houses for which they have been granted licences under Section 33(xa) of the Bombay Police At, 1951 (hereinafter referred to as the said Act) and have also been granted licences to run a Place of Public Entertainment as contemplated by section 2(10) of the said Act read with Section 33(w) and the Rules framed by the Commissioner of Police, New Bombay. Thus they are existing establishments. Both the Petitioners applied for grant of performance licence as contemplated by Rule 100 of “The Rules for Licensing and Controlling place of Public Amusement (other than Cinemas) and performances for public amusement (Including Melas and Tamashas Rules, 1999 (hereinafter referred to as 1999 Rules). The Commissioner of Police is the Licensing Authority. Both the applications were rejected by the Licensing Authority by Orders dated 5/3/2010 in Writ Petition No. 6373 of 2011 and dated 17/3/2010 in Writ Petition No. 6383 of 2011. Both the Petitioners filed appeals against the orders refusing to grant licence. The Commissioner of Police is the Licensing Authority. Both the applications were rejected by the Licensing Authority by Orders dated 5/3/2010 in Writ Petition No. 6373 of 2011 and dated 17/3/2010 in Writ Petition No. 6383 of 2011. Both the Petitioners filed appeals against the orders refusing to grant licence. However, the Hon’ble Minister (Home) dismissed both the Appeals by assigning reason for the first time that the application for licence has been refused on account of the provisions of section 33A inserted by Maharashtra Act No. 35 of 2005. Aggrieved by these orders, the Petitioner in Writ Petition No. 6373 of 2011 Shri Ramesh Alva filed Writ Petition No. 7559 of 2010 whereas the Petitioner in Writ Petition No. 6383 of 2011 Shri Omprakash N. Vaswani filed Writ Petition No. 7558 of 2010 in this Court which were heard together by learned Single Judge (A.S.Oka, J) and by Judgment and Order dated 30/9/2010 both the Petitions were allowed and the proceedings were remanded back to the Commissioner of Police, Navi Mumbai Licencing Authority for consideration of the prayer of the Petitioners for grant of licence for conducting Orchestra in accordance with law in the light of the Judgment of this Court in the case of JairamK. Shetty v/s. State of Maharashtra & ors. (V.C.Daga, J) in Writ Petition No. 3711 of 2008 decided on 22nd July, 2008. 5. After this order, the Commissioner, Licensing Authority passed a fresh order on 18/11/2010 in both the Writ Petitions giving 3 reasons. Contention of the Petitioners that on account of absence of Orchestra they are unable to keep their restaurant open for longer time and hence their business is affected was rejected on the ground that no material in support of such contention has been produced on record. In so far as the second contention of the Petitioners that they have an unblemished track record and they have not violated any condition of any licence earlier is concerned, the said contention was rejected by recording a finding that there were criminal complaints and prosecution initiated against the Petitioners for the year 1997 to 2007 in the case of Writ Petition No. 6373 of 2011 and 1998 to 2007 in Writ Petition No. 6383 of 2011. The last reason given by the Licensing Authority was to the effect that since Navi Mumbai was a city which was developing very fast as an Educational Hubg it has now become a major educational center and in Navi Mumbai very good educational atmosphere is being developed for the students. The Licensing Authority was therefore of the opinion that by granting licence for conducting Orchestra in the Eating Houses of the Petitioners, there was a likelihood of distraction of the young students and this may result in having adverse effect on their future. Based on this, the Commissioner rejected the Applications for grant of performance licences under Rule 100. 6. Aggrieved by these Orders, the Petitioners filed Appeals before the State Government. In the said Appeals, apart from the other submissions it was inter alia contended that some other establishment of Bharat B. Thakur had been granted a performance licence to operate an Orchestra in Navi Mumbai and, hence, based on this a plea of violation of Article 14 of the Constitution of India was sought to be raised. The Appellate Authority however upheld the decision given by the Licensing Authority by refusing applications for licences and recorded its independent reasons in support of its decision. Aggrieved by these reasons, the present Writ Petitions have been filed. SUBMISSIONS: 7. Mr. Soni, learned Advocate for the Petitioners advanced following submissions: (a) It is submitted that in so far as the first reason given by the Licensing Authority is concerned, Petitioners had no occasion to prove the adverse impact of not having an Orchestra. (b) Regarding second reason Mr. Soni submitted that despite the said earlier instances of breach of licence conditions, the licence to run a place of public entertainment had been renewed from time to time, hence, according to Mr. Soni, earlier breaches had already been waived and the same could not have formed the basis of rejection of an application for grant of new performance licence. In support of his submission, Mr. Soni has relied upon the Judgment of the learned Single Judge (R.M. Lodha, J as he then was) in the case of ShriK.V. Acharya & Anr. v/s. The State of Maharashtra & ors. 2000 (2) All M.R. 283 and particularly following observations in paragraph-4 of the said Judgment: “4. In support of his submission, Mr. Soni has relied upon the Judgment of the learned Single Judge (R.M. Lodha, J as he then was) in the case of ShriK.V. Acharya & Anr. v/s. The State of Maharashtra & ors. 2000 (2) All M.R. 283 and particularly following observations in paragraph-4 of the said Judgment: “4. Admittedly the original licence granted to petitioners to keep the place of public entertainment has been renewed every year after the first incident as cited in the show cause notice dated 17-4-92 and the last incident dated 24-3-95 as item no. 19 mentioned in the said notice had taken place. Obviously when the aforesaid offences or incidents or breaches were not found sufficient by the concerned authority for denial of renewal of licence to the petitioners, the said offences, incidents or breaches cannot furnish grounds for cancellation or suspension of licence which was renewed after the said offences, incidents or breaches had already taken place.” (c) In respect of the third reason about Navi Mumbai having developed as an educational center Mr. Soni submits that the Commissioner cannot take a policy decision not to grant licence in Navi Mumbai and it is only the State Government which can take such policy decision which is not taken. (d) It is further submitted that the reasons in support of the decisions are very cryptic and no particulars are given as to how and in what manner granting of 2 new licences for running Orchestra will adversely affect educational careers of the students. (e) Mr. Soni criticised the said order on the ground that the Order is without reasons. In support of this submission Mr. Soni relied on the Judgment of the learned Single Judge (V.C. Daga,J) in the case of JairamShetty (supra) and relied upon the following observations in paragraph 12 of the said Judgment: “12. Bare reading of the order-in-original passed by the Commissioner of Police, Navi Mumbai shows that no reason was recorded or indicated for rejecting application made by the petitioner. One line order rejecting the application not only shows non-application of mind but shocks the judicial conscious of this Court, especially, when it is brought to the notice of this Court that the reasons in support of the order were recorded, practically, after expiry of one year, that too, by an officer, who had no opportunity to hear the matter.” (f) Mr. Soni also relied on the averments in Ground No. 2 of the grounds of challenge in the Writ Petitions and contended that paragraph-5 of the affidavits in reply which deal with the ground No. 2 admit that pursuant to order of this Court in Writ Petition No. 2084 of 2011 the Licensing Authority had issued a performance licence for Orchestra of Hotel Natraj Restaurant and Bar. He therefore submitted that different yardsticks cannot be applied and even the Petitioners are entitled to be given licence for performance of Orchestra. 8. On the other hand, Ms. Cardozo, learned AGP supported the impugned orders and advanced following submissions. (a) She submitted that the Petitioners have not placed any material on record to indicate that their business was adversely affected on account of non availability of the performance licence to conduct Orchestra and hence, the first reason given by the Licensing Authority was proper. (b) In so far as the second reason is concerned, she pointed out that even in the Appeals the fact that earlier actions had been taken against the Petitioners was not seriously disputed nor is it disputed before the Court during the course of submissions. She submitted that merely because the licence for public entertainment had been renewed and merely because the earlier instances against the Petitioners were not considered to be serious enough to cancel the licence for public entertainment or to refuse to renew such licences, that does not and cannot preclude the Licensing Authority from taking into consideration the earlier instances as additional factors for deciding as to whether the Petitioners should be given performance licences. (c) In support of third reason she submitted that the Licensing Authority being the local Commissioner of Police has better knowledge of the local conditions and as a fact if the Licensing Authority has found that Navi Mumbai is fast developing as a educational center and if the Licensing Authority feels that on account of granting permission to run Orchestra in Eating Houses where liquor is already served, minds of young students may be distracted; there is nothing wrong in this conclusion of the Licencing Authority. She submitted that in terms of Scheme of the 1999 Rules, the Licensing Authority was entitled to take into consideration such surrounding circumstances and factors. (d) Meeting criticism of Mr. She submitted that in terms of Scheme of the 1999 Rules, the Licensing Authority was entitled to take into consideration such surrounding circumstances and factors. (d) Meeting criticism of Mr. Sony based on the Judgment of the learned Single Judge (R.M. Lodha, J), she submitted that the said Judgment deals with a case of request to renew licence whereas in the present case the Court is concerned with the grant of completely new licence. (e) She submitted that nobody has a vested right to get a new licence and a citizen seeking licence must comply with the conditions of the Rules and only then licence can be granted. (f) Dealing with the Judgment of the Hon’ble Justice Shri V.C. Daga she submitted that though first order of the Licensing Authority which was set aside by this Court was without any reason, the second order gives elaborate reasons for refusing to grant applications for licences. (g) In so far as the averments in paragraph ground No. 2 of the grounds she again pointed out the paragraph-5 of the affidavit in reply and pointed out that the Licensing Authority in that case had rejected the Application for licence but Appeal filed by the concerned Petitioner Bharat Thakur was allowed by the State Government. Since the Licensing Authority was not implementing the order of the State Government, Bharat Thakur had filed Writ Petition No. 2084 of 2011 for writ of mandamus and all that this Court has done is to direct the Licensing Authority to implement the order of State Government. She therefore submitted that no case for breach of Article 14 is established. (h) In so far as the second instance given by Mr. Soni about another Orchestra Performance Licence issued is concerned, she pointed out that the said instance was not from Navi Mumbai and was from Thane and hence will not be of much relevance. CONSIDERATION OF SUBMISSIONS: 9. I have carefully considered rival submissions. In exercise of powers conferred by clauses (w), (wa), (x) and (y) of Sub-Section (1) of Section 33 of the 1951 Act, the Commissioner of Police, Navi Mumbai has already framed the aforesaid 1999 Rules. CONSIDERATION OF SUBMISSIONS: 9. I have carefully considered rival submissions. In exercise of powers conferred by clauses (w), (wa), (x) and (y) of Sub-Section (1) of Section 33 of the 1951 Act, the Commissioner of Police, Navi Mumbai has already framed the aforesaid 1999 Rules. Rule 2(j) defines term “Public Amusement Performance” as under: “(j) “Public Amusement Performance” means a performance of dramas, songs, dances, mimeties and similar other performances given in a place of public amusement or in any other place whether with or without admission fee and to which admission is not restricted, exclusively to the members of any particular institution.” Rule 100 of the said Rules provides for performance licence and reads thus: “100. Performance Licence. - No person shall hold a musical, dancing dramatic minctic, theatrical or other performance; for public amusement including Melas and Tamashas or any public exhibition or diversion or game by whatever name called unless and until he has obtained a performance Licence from the Licensing Authority to hold such performance.” Rule 102 provides for grant of Performance Licence and reads thus: “102. Grant of Performance Licence.- (1) The Licensing Authority on being satisfied that all the necessary rules have been complied with may grant a performance Licence to the applicant on such terms and conditions and subject to such restriction as the Licensing Authority may determine. (2) The performance licence shall be in Form ‘E’ and shall state the title of each item of the performance and the general description of such item, as for instance ‘Drama’ Song ‘Tamasha’ Mela, Ras Dance etc. which the performance licence is intended to carer and no item not so specified by the Licensing Authority in the performance licence shall be produced staged exhibited displayed at or performed. (3) A performance Licence may in the discretion of the Licensing Authority be granted either for a performance at a single place of amusement or for all or any places situated within the jurisdiction of the Licensing Authority.” Rule 104 provides for power to refuse licence and reads thus: “104. (3) A performance Licence may in the discretion of the Licensing Authority be granted either for a performance at a single place of amusement or for all or any places situated within the jurisdiction of the Licensing Authority.” Rule 104 provides for power to refuse licence and reads thus: “104. Power to refuse Licence – The Licensing Authority may refuse, except in the case of a Mela, Tamasha and Ras, a licence to perform or exhibit any or all of the plays or all of exhibition or any other items of performance included in the application for licence if he considers them:- (a) To be indecent or of a scurrilous character; (b) To contain offensive references to personalities ; (c) To wound the susceptibilities of any motion or followers of any religion; (d) To be seditious or to be likely to excite political discontent; (e) To promote hostile feelings between different classes; (f) To be calculated to cause a breach of the peace; or (g) to be objectionable on any ground other than those specified in (a), (b), (c), (d), (e) and (f). The Licensing Authority shall not be bound to state the reasons for refusing any Performance Licence except in case of ground (g), when he shall give such reasons in writing.” 10. Careful perusal of the aforesaid Rules will clearly indicate that grant of performance licence is not a matter of right and only if the conditions of the Rules are fulfilled and only if the Licensing Authority is satisfied about the compliance of the conditions including the factors which are relevant and which are indicated in Rule 104, the Licensing Authority will grant licence in its discretion. Discretion to grant or refuse licence is not unfettered but is regulated and Rule making Authority has contemplated atleast 7 reasons as to when Licensing Authority may refuse to grant licence. In my opinion, clause (g) of Rule 104 is very crucial and confers a wide discretion on the Licensing Authority to refuse to grant licence if it finds grant of a licence be objectionable on any ground other than those specified in sub-clauses (a) to (f) of Rule 104. The Rule also provides that if the Licensing Authority declines to grant licence on the ground contained in sub-clause (g) of Rule 104 reasons in support of such refusal must be stated. 11. The Rule also provides that if the Licensing Authority declines to grant licence on the ground contained in sub-clause (g) of Rule 104 reasons in support of such refusal must be stated. 11. In this case in the first instance such reasons were not stated. Hence the learned Single Judge (A.S. Oka, J) set aside the orders and remanded the matter back to the Licensing Authority. However, perusal of the new orders passed by the Licensing Authority as confirmed by the Appellate Authority which are impugned in these Writ Petitions shows that the cogent reasons have been recorded and given by the Licensing Authority for refusing to grant licence. The reasons need not be verbose and it is sufficient if brief but appropriate reasons are given. The contention of the Petitioners that they were suffering adversely in their business on account of non-availability of performance licence for running Orchestra has rightly been rejected by the Licensing Authority in the absence of any material having been placed by the Petitioners on record in support of such contentions. 12. The second contention of the Petitioners was to the effect that they had an unblemished track record. This statement of the Petitioners was found to be false and the Licensing Authority was therefore justified in recording a finding based on the earlier instances that the said contention of the Petitioners was incorrect. Nothing has been shown either before the Appellate Authority or before this Court to indicate that the second reason given by the Licensing Authority was incorrect. Reliance placed by Mr. Soni on the Judgment of R.M. Lodha, J in the case of K.V. Acharya (supra) is not well placed. In that case the Court was considering the question of cancellation or suspension of an existing licence and in that context observation in paragraph-4 of the said Judgment were made. The Judgment is clearly distinguishable on the facts of the case. The Authority was considering past record of the Petitioners and merely because the licence to keep a place of public entertainment had been renewed despite earlier instances, this action of renewal cannot be considered to be an action which completely erases or effaces the earlier instances. Consideration for cancellation or suspension of existing licence and consideration for grant of a completely new licence are bound to be different and this is what is precisely done by the Licensing Authority. Ms. Consideration for cancellation or suspension of existing licence and consideration for grant of a completely new licence are bound to be different and this is what is precisely done by the Licensing Authority. Ms. Cardozo is therefore justified in contending that the Judgment of the learned Single Judge in K.V. Acharya(supra) does not apply to the facts of this case and I uphold the said submission. 13. The third submission of Mr. Soni that the Licensing Authority has not followed the mandate of the Judgment of the learned Single Judge (V.C. Daga,J) in the case of JairamShetty (supra) also does not impress me. A perusal of the Judgment quoted hereinabove will indicate that this Court was dealing with the one line order for rejecting the application and in that context those observations were made. In this case cogent reasons which are not very verbose and which need not be verbose, have been given by the Licensing Authority and hence, the ratio of the aforesaid Judgment in the case of JairamShetty (supra) has no application. 14. It is now necessary to deal with the next submission of Mr. Soni that no particulars of the likely adverse effect on the students are given. Application for performance licence was not an application for conducting one time stage show but was an application for conducting an Orchestra everyday in a Eating House which was already having licence issued to serve liquor under the Bombay Prohibition Act, 1949 coupled with the licence to keep place of Public Entertainment under the provisions of the 1951 Act. If, in such a place additional attraction of Orchestra is to be provided and if the Licensing Authority in its wisdom and with knowledge of local conditions apprehends that this may result in attracting student community taking education in the educational centers in Navi Mumbai and may harm educational atmosphere; it can hardly be said that such a formation of opinion by the Licensing Authority is improper or unwarranted. In my opinion, Sub-Clause (g) of Rule 104 of 1999 Rules in fact mandates the Licensing Authority to consider such other circumstances than those enumerated in sub-clauses (a) to (f) of Rule 104. In my opinion, this consideration by the Licensing Authority was not erroneous. That is the legislative intend behind framing Sub-Clause (g) of Rule 104 of 1999 Rules. Hence even this submission of Mr. Soni does not impress me. In my opinion, this consideration by the Licensing Authority was not erroneous. That is the legislative intend behind framing Sub-Clause (g) of Rule 104 of 1999 Rules. Hence even this submission of Mr. Soni does not impress me. 15. It is now necessary to deal with one last submission of Mr. Soni based on the Judgment of this Court in the case of Bharat Thakur in Writ Petition No. 2084 of 2011. Since the said Judgment is a short order, the same is reproduced as under: The only prayer made by the petitioner in this petition is that respondent 3 be directed to issue premises licence for performance of the Orchestra in the petitioner’s restaurant as per the order dated 29/9/09 passed by the State Government in Appeal No. REH/2009/73/SB-5, which is annexed to the petition at Exhibit-D. Learned Counsel for the State on instructions from Mr. Tribhuvan ACP (Adm.) New Bombay Police Commissioner-ate states that the 3rd respondent wants to move the State Minister (Home/Urban) who has passed the order for review of the said order. The Order is dated 29/9/09. We fail to understand why till date, if the 3rd respondent wanted to get the said order reviewed, no application for review is made. In the circumstances of the case, we expect the respondents to comply with the order dated 29/9/09 at Exhibit-D within three weeks from today. Needless to say that within the stipulated period of three weeks it would be open to the respondents to adopt any remedy which may be open to them in law in respect of the said order. 2. Petition is disposed of Perusal of the said Judgment clearly shows that in fact this Court had never directed grant or issuance of performance licence for running an Orchestra and, hence, the contention of the Petitioners in ground No. 2 of the Petition which suggest that by order of this Court the licences were issued are clearly without any substance and are not factually correct and cannot be accepted. A perusal of the aforesaid order shows that in that case, the Licensing Authority had declined to issue a licence, the Petitioner therein had filed an appeal before the State Government which was allowed on 29/9/2009 and the Licensing Authority had not implemented that order. A perusal of the aforesaid order shows that in that case, the Licensing Authority had declined to issue a licence, the Petitioner therein had filed an appeal before the State Government which was allowed on 29/9/2009 and the Licensing Authority had not implemented that order. In such a situation the Petitioner therein had approached this Court for a writ of mandamus directing the Licensing Authority to implement the order dated 29/9/2009 and all that has been done by the Division Bench was to expect the Respondent Licensing Authority to comply with the Order of the State Government. This can hardly be said to be an order passed by this Court directing issuance of licence for an Orchestra. In view of this, argument based on Article 14 has no substance. The statement made in paragraph- 5 of the affidavit in reply and the statement made by Ms. Cardozo today on the basis of letter received from the Licensing Authority will have to be accepted as correct in the aforesaid context. 16. Hence I see no merit in the Writ Petitions. Mr. Soni however apprehends that the Licensing Authority may change its mind or some other Licensing Authority may grant performance licence to other establishments to conduct an Orchestra; the Commissioner may change and the Licensing Authority or the new incumbent may grant such licence. If such eventualities take place it will be always open to the Petitioners to submit a fresh application which will have to be decided in accordance with law by considering all the relevant facts including the past track record of the Petitioners. 17. These observations may not be taken to mean that the Licensing Authority should reject the application based on past record and the period as to when the earlier instances had occurred would also be a relevant consideration. 18. Subject to aforesaid clarification, Petitions are dismissed and Rule discharged with no order as to costs.