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Judgment
A.M. Khanwilkar, J.—Heard counsel for the parties. Rule. Mr. Bhosale, AGP waives notice for the respondents. Rule made returnable forthwith as short question is involved.
This petition takes exception to the order passed by the Minister (Home) dated 23rd January 2008 in Appeal No. Reh.01/2007/101/Spl.5 whereby the said appeal preferred by the petitioner has been dismissed upholding the order passed by the first authority dated 3rd November 2007 directing suspension of petitioners license for a period of thirty days. For the nature of order that I propose to pass, it is not necessary to advert to all the events that have led to filing of present petition. In my opinion, the order passed by the appellate authority will have to be set aside and the petitioner relegated before the appellate authority for reconsideration of the appeal afresh in accordance with law. It is necessary atleast for two reasons.
The first grievance of the petitioner is that although paragraph 2 of the show cause notice refers to three sets of different criminal cases, however, the authority was conscious of the fact that first two cases cannot be taken into account as the petitioner has been acquitted of those criminal cases. Nevertheless, the appellate authority has confirmed the order passed by the first authority while taking into account even those two cases which were rightly excluded by the first authority from consideration. That position emerges from discussion in paragraph 7 of the impugned order passed by the appellate authority. This is, by itself, a good ground for setting aside the order of the appellate authority.
There is yet another formidable ground made out by the petitioner. Inasmuch as, the show cause notice concedes the position that the seven persons who were found in the restaurant which was open till 2.25 a.m. on 12th April 2007, were none other than Manager and six waiters of the restaurant against whom separate cases have been registered. According to the petitioner, although the show cause notice refers to Section 33(w) of the Bombay Police Act, the underlying breach-which weighed with the authorities for taking action against the petitioner-was on account of the fact that the restaurant was found open till 2.25 a.m. The petitioner submits that even if the restaurant was found open beyond the specified time, however, as no customer was found in the restaurant at the relevant time, the question of applying principle stated in Rule 7(A) of the Rules to such a case does not arise. Inasmuch as, Rule 7(A) presupposes that the restaurant was found open beyond the closing hours and customer was availing of the hospitality in the restaurant. That position is reinforced from proviso to Rule 7(A) of the Rules. As mentioned earlier, the show cause notice proceeds on the clear premise that seven persons found in the restaurant at 2.25 a.m. on 12th April 2007 were Manager and six waiters. If it is so, Rule 7(A) will have no application to the said situation.
The learned AGP, however, contends that the cases which are registered against the employees referred to at sr. No. 3 clearly spell out that at the relevant time even the customers were found present in the restaurant; and the stand of the employees of the petitioner was that the said customers were not leaving the restaurant as they were in an inebriated condition.
Be that as it may, to my mind, those are matters to be considered by the appropriate authority.
Counsel for the petitioner further contends that the stated cases refer to Section 102 of the Act, whereas Section 102 would be attracted to a situation which prevails on the street or public place and not within the restaurant. Going by the plain language of Section 102 the argument canvassed on behalf of the petitioner merits acceptance. That provision would be attracted where a person causes restriction in any street or public place in the manner provided in Section 102. It is fairly accepted by the learned AGP that for the nature of allegations or the criminal cases registered in relation to the incident of 12th April 2007, application of Section 102 of the Act is misplaced. Even this aspect deserves consideration by the appropriate authority.
It has been observed by me that in all such matters the authority generally refers to Section 33(w) of the Act. The appropriate authority be well advised that Section 33(w) of the Act is a general enabling provision authorising the licensing authority to make, alter or rescind rules or orders not inconsistent with the Act in relation to places of public amusement or entertainment in respect of matters referred to in Clause (W) of Section 33. The authorities are under mistaken belief that the said provision can be invoked for the proposed action of suspension of license. Indeed, the licensing authority has power to suspend the license for breach of license condition with reference to terms and conditions of license read with Rules of 1953 with specific reference to Rules, such as Rules 7(A), 8(1) and 8(2), as the case may be. It is expected that in future while issuing show cause notices, the authorities will take note of this position and make reference to correct provisions of law on the basis of which show cause notices are founded, so as to obviate any argument regarding correctness of the show cause notice on that count.
Insofar as present matter is concerned, having regard to the observations made in the earlier part of this order, I am inclined to set aside the order dated 23rd January 2008 passed by the Minister (Home) and instead restore the appeal to the file of the appellate authority to be heard and decided on its own merits in accordance with law uninfluenced by any of the observations made in the impugned judgement and/or for that matter present decision with regard to the merits of the controversy. In other words, all questions are left open.
Till the appeal is finally decided by the appellate authority, the order passed by the first authority shall not be given effect to by the authorities.
Accordingly, this petition succeeds. The impugned judgement and order of the appellate authority is set aside and the matter is remitted to the appellate authority to be proceeded in accordance with law. The petitioner to appear before the appellate authority on 04th March 2008 at 11.00 a.m. in the office of the appellate authority who may proceed to decide the remitted appeal on the same day and time or give suitable date and time as may be advised, while ensuring that the appeal is finally decided on or before 08th April 2008.
Petition disposed off on the above terms.