AI Structured Summary
Not yet generated for this judgment
Judgment
R.V. More, J.—Rule. Rule made returnable forthwith. By consent of the learned Counsel appearing for the respective parties, petitions are taken up for final hearing.
In all these petitions, common question of fact and law is involved, therefore, all these petitions are being disposed of by this common order.
By these petitions under Articles 226 and 227 of Constitution of India, the Petitioners are challenging the order dated 2nd/4th August 2014 passed by the Commissioner of Police, Thane and the order dated 6th September 2014 passed by the appellate authority, namely, the Principal Secretary, Home Department, Government of Maharashtra whereby the eating house licence, the public entertainment licence and the premises and performance licence in respect of the Petitioners'' establishment are suspended for an indefinite period under the provisions of section 33(wa) of the Bombay Police Act, 1951 read with Rule 222(2) of the Rules for Licencing and Controlling Places of Public Amusement (other than Cinemas) and Performances for Public Amusement, including Melas and Tamashas, 1960 ["the said Rules" for short].
I have heard Mr. Soni, Mrs. Thadani and Mr. Kansara, the learned Counsel appearing for the Petitioners in these petitions. Their submissions are as under:
[a] The Petitioners in all these writ petitions are running hotel and restaurant business since many years. The hotels run by the Petitioners are in the premises located within the jurisdiction of Thane Municipal Corporation. It is the case of the Petitioners that they have been issued all requisite licenses, namely, the eating house licence, the licence for sale of liquor in Form FL-III, the public entertainment licence [i.e., police licence] and the premises and performance licence. The Petitioners are carrying on said business under the strength of valid licenses. It is also case of the Petitioners that they have been granted No-Objection Certificate by the Fire Department of Thane Municipal Corporation and the No-Objection Certificates have been granted after a detailed scrutiny and inspection of the premises and surrounding circumstances by the Fire Department and after satisfying themselves about the same.
[b] The Commissioner of Police, Thane by his letter dated 27th June 2014, requested the Municipal Commissioner of Thane city to take appropriate action in respect of violation of laws by several bars and restaurants. In pursuant of this letter, on 14th July 2014 a drive was started by the Chief Fire Officer of Thane Municipal Corporation-Respondent No. 2 and notice under section 5(1) of the Maharashtra Fire Prevention and Life Safety Measures Act, 2006 ["the Fire Safety Act" for short] was given for inspection of the premises. It is the case of the Fire Department of Thane Municipal Corporation that during the inspection of premises, several instances of non compliance with mandatory fire safety requirement were noticed. By another notice under section 6 of the Fire Safety Act, the Petitioners were directed to comply with the said requirements. It is the case of the Petitioners that they immediately complied with all the requirements and accordingly informed the Fire Department that all the requirements as set out in the notice under section 6 of the Fire Safety Act are complied with. However, according to the Fire Department, the Petitioners falsely alleged compliance but did not care to comply with. The Fire Department accordingly submitted reports to the Commissioner of Police, Thane and on the basis of said reports, the Commissioner of Police, Thane has suspended above licenses for indefinite period. Under the provisions of section 33(wa) of the Bombay Police Act, 1951 read with Rule 222(2) of the said Rules by passing separate order in each matter.
[c] The Petitioners challenged the order of the Commissioner of Police by filing appeals before the appellate authority, namely, the Principal Secretary, Home Department, Government of Maharashtra. The appellate authority after hearing the parties directed the Petitioners who have not submitted the relevant documents and certificates, to submit the same to the Chief Fire Officer before 9th/10th September 2014 and the Chief Fire Officer was directed to give report to the Commissioner of Police after scrutiny of documents by 15th September 2014. Further the Commissioner of Police was directed to take final decision within two weeks thereafter. Subsequent to the order of the appellate authority, on 13th/20th September 2014, the Petitioners received letters from the Chief Fire Officer, requiring them to comply with additional 16 to 17 requirements set out in the said letters.
[d] It is the case of the Petitioners that already No-Objection Certificate was granted by the Fire Department to their establishments after detailed scrutiny and inspection. Despite the same, under the directions of the Commissioner of Police, Thane, the Fire Department of Thane Municipal Corporation has issued notices under section 5(1) of the Fire Safety Act.
[e] It is the contention of the Petitioners that these notices are issued only to those restaurants in which waitresses are employed. This action on the part of the Commissioner of Police and Chief Fire Officer are of moral policing. The Petitioners further contended that these notices were complied with by them by submitting necessary certificates to the Fire Department. Despite this, incorrect report was submitted to the Commissioner of Police and thereafter the licences are suspended by the impugned orders on the basis of such incorrect reports.
[f] The Petitioners alleged that the Commissioner of Police and the Chief Fire Officer are hand in gloves and they do not want to allow the Petitioners to run the business of restaurant in which waitresses are being employed. It is the submission of the Petitioners that the waitresses employed by them are in accordance with the provisions of law and the action on the part of the police and Fire Department is violative of provisions of Articles 14 and 19 of the Constitution of India.
[g] The Petitioners also submitted that during the pendency of appeals, under the directions of the appellate authority they again submitted required certificates to the Fire Department Officials who were present at the time of hearing and despite this, subsequent to the order of the appellate authority again the Fire Department asked the Petitioners to comply with additional 17 to 18 requirements. The submission of the Petitioners is that compliances of additional requirements were sought inasmuch as the Fire Department and police were aware that the requirements asked earlier vide notice dated 14th July 2014 were duly complied with. They submitted that in any case, the impugned orders of suspension cannot be supported by asking additional compliances and making grievance that same are not complied with. The Petitioners in most of the petitions have put on record copies of the relevant certificates sought by the Fire Department under the notice dated 14th July 2014. The Petitioners lastly submitted that the impugned orders are malafide and passed with ulterior motive and in order to harass the Petitioners and therefore same cannot be sustained.
[h] Lastly, it was submitted on behalf of the Petitioner that the orders passed are in violation of principles of natural justice.
Mr. Jahagirdar, the learned Senior Counsel appearing for the Chief Fire Officer of Thane Municipal Corporation opposed the petition vehemently. He supported the impugned orders. He submitted that notices issued by the Fire Department under section 5 of the said Act on 14th July 2014 and inspection of the establishments of the Petitioners was in accordance with the provisions of the Fire Safety Act. He submitted that the Petitioners falsely alleged compliance but in fact did not care to comply with the requirements sought. He further submitted that certificates tendered by the Petitioners are not sufficient to make compliance of the requirements and therefore reports were submitted to the police on the basis of which valid action of suspension of the Petitioners'' licenses has been taken under Rule 222(2) of the Said Rules.
Mr. Jahagirdar further submitted that most of the Petitioners have not submitted sanctioned building plans in which their establishments are situated. He also submitted that certificates regarding the compliance of condition no. 7 submitted by the Petitioners are not sufficient. He also relied upon the additional requirements which the Petitioners were directed to comply with by the Fire Department subsequent to the order of the appellate authority. In support of his contention, he also relied upon the National Building Code. He lastly submitted that the impugned orders are passed within the ambit and scope of the Fire Safety Act and the said Rules and therefore no interference with the same at the hands of this Court is warranted.
Mr. Apte, the learned Senior Counsel appearing for the Thane Municipal Corporation and Mrs. Bhide, learned AGP for the Commissioner of Police and the State of Maharashtra adopted the arguments advanced by Mr. Jahagirdar. They submitted that there is no need of interference with the impugned orders at the hands of this Court and prayed for the dismissal of the writ petitions.
Having considered the rival submissions of learned Counsel appearing for the Petitioners and the learned Senior Counsel appearing for the Fire Department as well as for the Thane Municipal Corporation and the learned AGP for the State and having gone through the provisions of the Fire Safety Act and the said Rules as well as the relevant provisions of the Bombay Police Act, 1951, and the impugned orders, I find merit in the petitions.
At the outset, it would be apt to consider whether the Fire Department of Thane Municipal Corporation and the Commissioner of Police, Thane can support the impugned orders by relying upon the non compliance of additional requirements which have been set out in the letter dated 13th/20th September 2014.
By the notice dated 14th July 2014 issued under section 5 of the Fire Safety Act, the Petitioners in each petition were directed to comply with seven requirements. It is common case of the Fire Department and the Commissioner of Police that these requirements are not complied with and therefore the Petitioners'' licences were suspended. The Petitioners thereafter preferred appeals and the appellate authority directed the Petitioners to again submit certificates in compliance with the notice dated 14th July 2014 to the Chief Fire Officer and the Chief Fire Officer was directed to make scrutiny of the documents and submit report to the Commissioner of Police and the Commissioner of Police was directed to take final decision on the basis of said report. In my considered view, the Fire Department or the Commissioner of Police cannot support the impugned order of suspension on the basis that the additional requirements which the Petitioners were directed to comply with subsequent to the appellate authority''s order, are not complied with. The impugned orders of suspension can be supported on the grounds mentioned in the said order alone. The subsequent reports cannot save the earlier actions of suspension. The Fire Department and the Commissioner of Police, in my view, cannot rely upon the material which has come before them after the passing of impugned orders.
In the present case, the Fire Department and the Commissioner of Police are justifying their impugned action of suspension of the Petitioners'' licences on the basis of non compliance of additional requirements by the Petitioners which were sought from them subsequent to the order of appellate authority. The Fire Department or the Commissioner of Police cannot justify their action of suspension of licences on the basis of material collected post facto of passing of the impugned orders, which is not at all permissible under the law. Post facto compliance is strictly deprecated by the Apex Court in several judgments. Reference can be made to the decision of the Apex Court in Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, .
Thus, the impugned orders of suspension can be sustained only if the Petitioners fail to comply with the requirements set out in the notice dated 14th July 2014. If it is found that the Petitioners have complied with these requirements, then the impugned orders cannot be sustained.
Now, let us consider whether the Petitioners have complied with the requirements sought by the Fire Department under the notice dated 14th July 2014. Admittedly, the Fire Department acted upon the request of the Commissioner of Police, Thane made vide his letter dated 27th June 2014 and issued notice dated 14th July 2014 to the Petitioners. By the said notice, the Petitioners were required to comply with following seven requirements/items:
[1] Submit photographs of the emergency exit of the said eating house to the Fire department.
[2] A certificate that sufficient electrical arrangements have been set up in the said eating house should be submitted to the Fire Department.
[3] The plan of the said eating house duly approved by the Municipal Corporation be submitted to the Fire Department.
[4] Submit a certificate in the prescribed from issued by the duly licensed fire protection and safety engineers that fire extinguishers have been installed in the said eating house according to the upto date Indian Manak, 2190.
[5] Submit photographs of the "Smoking Prohibited" boards put up in the eating house to the Fire Department.
[6] Submit a certificate to the Fire Department that sufficient arrangements have been made for ventilation in the said eating house.
[7] Submit a certificate to the Fire Department that the fuel used in the said eating house is protected from fire.
It is specific case of the Petitioners that all the certificates required under notice dated 14th July 2014 issued under section 5(1) of the Fire Safety Act, were submitted on 16th July 2014 to the Fire Department except the sanctioned building plans issued by the Municipal Corporation of the building in which the eating house of the Petitioner is situated, and despite this, adverse report is filed by the Chief Fire Officer and the Petitioners'' licences are suspended by the Commissioner of Police. It is the case of the Petitioners that again these certificates were submitted to the Chief Fire Officer during the pendency of appeals. Mr. Jahagirdar, the learned Senior Counsel appearing for the Fire Department of Thane Municipal Corporation submitted that these certificates are not sufficient. He also submitted that sanctioned building plan issued by the Municipal Corporation of the building in which the eating house is situated have not been submitted by the Petitioners. He further submitted that the certificate submitted by the Petitioners in reply to item no. 7 of the said notice is not certified by the proper authority.
Thus, there seems to be no dispute that the Petitioners submitted certificates as per item number 1, 2, 4, 5 and 6. The dispute is about the non compliance of certificate at serial number 3 and 7, namely, the sanctioned building plans and the Fire Safety certificate regarding the fuel use in the eating house from competent certifying authority. Regarding other certificates, as stated above, the Fire Department contends that those certificates are not sufficient. Therefore, let us see whether the certificates submitted by the Petitioners are sufficient and whether the Fire Department can ask for the sanctioned building plans of the buildings in which the Petitioners'' establishments are situated.
It would be apposite to advert to some of the provisions of the Fire Safety Act and the Maharashtra Fire Prevention and Life Safety Measures Rules, 2009 [for short "Fire Safety Rules"]. Section 3(1) of the Fire Safety Act prescribes that owner or occupier of the building must provide fire prevention and life safety measures in the building and minimum fire fighting installations as specified against such building in the Schedule-I of the Act. Section 3(2) of the Act provides that no building will be granted completion certificate or part completion certificate, unless the Competent Authority is satisfied that the requirements as specified in Schedule-I are complied with. Section 3(3) of the Fire Safety Act prescribes that the licensing agency should issue a certificate in form-A as prescribed in Rule 4(1) of the Fire Safety Rules certifying that the measures and installation in the building or part thereof as prescribed under the said Act have been provided. Rule 4(2) of the Fire Safety Rules prescribes that the certificate is required to be issued by the Licensed Agency twice a year regarding the maintenance of fire prevention and life safety measures in a building or premises being in good repair and efficient condition which have been provided in accordance with provisions of section 3(1) of the Fire Safety Act. Section 9 empowers the Chief Fire Officer to appoint any person as a licensed agency for the purposes of the Fire Safety Act. Rule 14 of the Fire Safety Rules provides that the licensed agency would be granted licence to act as a licensed agency in Form-N. Section 10 of the Fire Safety Act prescribes that only the licensed agency can carry out the work of providing fire prevention and life safety measures or performing such other related activities. Section 10(2) categorically states that the licensed agency will not give a certificate under sub-section (3) of section 3 of the Fire Safety Act regarding compliance of the fire prevention and life safety measures or maintenance thereof in good repair and efficient condition, without there being actual such compliance or maintenance.
Perusal of the above provisions makes it abundantly clear that licensed agencies are appointed by the Chief Fire Officer and licensed agency is expected to carry out the work of providing fire prevention and life safety measures. The licensed agencies are also authorised to issue necessary certificates regarding fire prevention and life safety measures in Form-B. Most of the Petitioners have annexed to the petitions, copies of the certificates which they had furnished to Respondent No. 2 in pursuant of the notices dated 14th July 2014. The Fire Department or the Commissioner of Police have not specifically denied that certificates in respect of compliance of requirement at serial numbers 1, 2 and 4 to 6 as per the notices dated 14th July 2014 are not submitted by the Petitioners. Having seen the certificates annexed to some of the petitions and having gone through the provisions of the Fire Safety Act and the Fire Safety Rules, in my view, the said certificates would be sufficient compliance of the Fire Safety Act, especially when it is not the case of the Fire Department that agencies who issued these certificates are not approved or licensed agencies.
In respect of certificate at item No. 7, the Fire Department directed the Petitioner to obtain the certificate of fire safety as regards the cooking gas used in their establishment. The Petitioners accordingly obtained certificates from M/s. Alka Enterprises, M/s. Madhu Krishna Gas Service, M/s. Hariom Sales and Service and Promod Gas Services. The Fire Department contends that the certificates issued by these agencies are not sufficient. The submission of the Fire Department, I find, is without merit inasmuchas as per clause 4.3 of the Liquefied Petroleum Gas Storage Installations Code of Practice framed by the Bureau of Indian Standards, New Delhi which is applicable to the residential, commercial and industrial cylinder installations, the maintenance, inspection, repair, etc of the system shall be done by the agencies approved by the LP gas distribution company or by the LP gas distribution company themselves. Evidence on record shows that the four Agencies mentioned above are authorised to install and certify the installations are protected from fire. The fire safety certificate at serial number 7 cannot, therefore, be doubted and said to be insufficient.
As far as compliance of point no. 3 of the notice dated 14th July 2014 is concerned, in my considered opinion, Respondent No. 2 was not justified in asking the Petitioners to comply the same nor the Commissioner of Police could have suspended the licences on this ground. It is a matter of fact that the Petitioners are running their business of hotel, bar and restaurants since many years after obtaining valid licences and these licences were of course issued after obtaining NOC from the Fire Department. In most of the petitions, the NOC issued by the Fire Department is still subsisting. Various licences in respect of the Petitioner''s establishments are continued from year to year. Now, therefore, on that ground licences cannot be suspended. If the building or premises in which the Petitioners'' establishments are situated, are illegal or constructed in breach of the provisions of any municipal law, in that case the Municipal Corporation can always take action under the relevant corporation laws. However, licences cannot be suspended by the Commissioner of Police on that ground when same have been renewed from year to year by the Competent Authority.
Mr. Jahagridar, learned Senior Counsel appearing for the Fire Department of Thane Municipal Corporation also tried to rely upon the provisions set out in Part-IV of the National Building Code regarding fire and life safety. The reliance, in my view, is misplaced inasmuch as the forward to this part of the said Code categorically states that the Code deals with the safety from fire with regard to construction of buildings, hence same cannot be made applicable to the restaurants or bar which are located in the portion of the building.
Be that as it may, the Petitioners'' establishments have been in existence since long and the very fact that the licences have been renewed from time to time without insisting on the requirements as sought now, clearly indicates that the requirements are sought to be implemented only against the Petitioners, which action cannot be justified.
Here, reference needs to be made to the facts relating to Durga Bhavan Hotel, who had filed writ petition in this Court. The licence of said Durga Bhavan hotel was also suspended by the Commissioner of Police, Thane. Said Durga Bhavan Hotel filed a writ petition in this Court, being Writ Petition No. 7800 of 2014. The facts of the present case and the said writ petition are similar. The owner of the said restaurant also submitted all the certificates except the building completion certificate and plan of licenced premises. The Respondent ultimately withdrew the suspension order in respect of said Durga Bhavan restaurant and issued fresh show cause notice in view of the fact that compliance which were required in law were already made.
Next, I would like to consider the submissions of the Petitioner that licences in respect of their establishments are suspended without following the principles of natural justice. It is true that the Commissioner of Police has suspended the licences in respect of the Petitioners'' establishments without giving any notice to them. However these licences came to be suspended relying upon the report of the Chief Fire Officer.
The scheme of the Fire Safety Act is a complete code in itself which provides for steps to be taken before any premises which are not complying with fire safety norms are sealed. Section 5 provides for notice to be issued to the establishment regarding fire prevention and life safety measures whereunder a show cause notice is required to be given with time-frame to comply with any short-falls. Section 6 provides for steps to be taken in the event of non compliance of notice and section 8 provides for last steps of sealing the building.
Admittedly, the procedure stated hereinabove is not followed by Respondent No. 2 and instead report is sent to the Commissioner of Police whereupon the Commissioner of Police has invoked the powers under Rule 222(2) of the said Rules and suspended the Petitioners'' above mentioned licences. Under Rule-222(1) of the said Rules, the licensing authority is authorised to suspend or cancel any licence granted under the said Rules for the contravention of any of the rules only after providing an opportunity of hearing. Sub-rule (2) of Rule-222 makes an exception to sub-rule (1) in case the licensing authority is of the opinion that the compliances in terms of protection against and for extinguishing fire are inadequate or in any way insufficient or in unsatisfactory condition. These Rules are applicable to the premises and performance licences and has no application to the eating house licence issued by the Municipal Corporation or the police licence issued by the Commissioner of Police. These licences could not have been suspended without giving an opportunity of hearing to the Petitioners. I have already recorded a finding that the Petitioners have complied with the requisitions sought by the Chief Fire Officer vide his notice dated 14th July 2014. If the Chief Fire Officer was of the opinion that the certificates submitted by the Petitioners are not in compliance with the Fire Safety Act, then, of course, the Chief Fire Officer could have issued notice and taken steps as provided in sections 7 and 8 of the Fire Safety Act, instead, the Chief Fire Officer sent the report to the Commissioner of Police. In fact, the notices under section 5 were issued by the Fire Department pursuant to the request made by the Commissioner of Police vide his letter dated 27th June 2014. In these circumstances, in my opinion, the Commissioner of Police was not justified in suspending the Petitioners'' licences without giving an opportunity of hearing to the Petitioners to show cause as to why their licences should not be suspended.
Taking totality of the facts and circumstances of the case into consideration, I find that the impugned orders cannot be sustained. In the light of above discussion, petitions are disposed of by passing following order:
1] The impugned orders, namely, the order dated 2nd/4th August 2014 passed by the Commissioner of Police, Thane and the order dated 6th September 2014 passed by the appellate authority, namely, the Principal Secretary, Home Department, Government of Maharashtra suspending licences in respect of the Petitioners'' establishments, are hereby quashed and set aside.
2] It is open to the Chief Fire Officer-Respondent No. 2 to issue fresh notice under section 5 of the Fire Safety Act to the Petitioners'' establishments if he is of the opinion that the Petitioners have not complied with the requirements sought for under the notice dated 13th September 2014 and take appropriate decision as per the provisions of the Fire Safety Act.
3] It is open to the Commissioner of Police, Thane to proceed against the Petitioners on fresh cause of action, however, before taking any action, the Petitioners shall be granted an opportunity of hearing.
After the order was pronounced, Mr. Jahagirdar, the learned Senior Counsel appearing for the Chief Fire Officer and Mr. Apte, the learned Senior Counsel appearing for the Thane Municipal Corporation requested for the stay to the operation of this order. Request was opposed by the learned Counsel appearing for the Petitioners. Since I have come to the conclusion that the Petitioners have made compliances of the requirements sought by the Fire Department vide its notice dated 14th July 2014, it would not be appropriate to stay this order. Request for the stay is, therefore, not accepted.