SHIRIN BOMAN FARAMARZI & Ors. v. STATE OF MAHARASHTRA & Ors.

Mr. P. C. Kansara for the Petitioners Mr. R. R. Bhosale, AGP for R-1-2 Mr. J. S. Saluja, AGP for R-3-5 CORAM: S. C. DHARMADHIKARI, J. DATED: 17/10/2011 P.C. This writ petition under Article 226 of the Constitution of India seeks direction to the authorities exercising powers under the Bombay Prohibition Act, 1949 and Bombay Police Act, 1951 to renew the licences under the respective enactments in favour of the petitioners.

The Petitioners are carrying on business in the name and style OSWP1930 2 of ‘Cafe Paris’ from the address mentioned in the cause title of this petition. The petitioners are the heirs and legal representatives of one B. D. Irani, who was a partner along with two others in a partnership firm. That partnership firm earlier was managing and administering this business and subsequently upon death of the partners namely Sheriar F. Irani and Kaikhushroo Irani it is the petitioners who have been carrying on business in partnership with their father B. D. Irani who has also since expired. Now, what has been argued against the petitioners is that on the expiry of the partners and if the parties are claiming to be carrying on business in partnership, then they must get the licence under the Bombay Prohibition Act, 1949 styled as FL III Licence corrected by deleting the names of the deceased partners. It is stated that a procedure is prescribed in terms of the relevant notifications and circulars under that law where under the partners who are remaining or those who are carrying on business in some other stage or manner should get appropriate declarations or orders or take steps in law so as to delete the names of the deceased or erstwhile partners.

It is contended that because of the noncompliance allegedly with the provisions of the Bombay Prohibition Act, 1949 the Public OSWP1930 3 Entertainment Licence under the Bombay Police Act, 1951 is not being renewed resulting in the petitioners having breached the provisions for want of the necessary permissions and licences. It is stated that the business is being managed by the petitioners continuously and there is no violation of any law nor breach of the terms of the licences. Yet, for want of compliance with certain formalities that the petitioners have to approach this court for renewal of the licences in their favour or else they will have to face penal consequences.

On the last occasion request for adjournment was made to seek instructions and as far as the Collector Mumbai City is concerned, he is the authority under the Bombay Prohibition Act, 1949, Mr. Bhosale, learned AGP states on instructions that the Collector is finalizing the process of passing the requisite orders and directions on the application for renewal of the licences but bearing in mind the controversy and particularly that the heirs of the erstwhile / deceased partners being residing out of India, that the Collector would have to give a public notice inviting claims and objections from interested parties. This has been done according to Mr. Bhosale despite the petitioners’ willingness to give an undertaking and OSWP1930 4 indemnity indemnifying the Collector and all others functioning and exercising powers under the Bombay Prohibition Act, 1949 indemnifying them against all claims in respect of the said licence. Whatever may be the necessary steps, the Collector must complete them and as Mr. Bhosale states within a period of eight weeks from today the Collector shall intimate to the petitioners, the necessary outcome of the applications that are made and if any compliances are required at the end of the petitioners they also shall be intimated within this period and in no case the time would be extended beyond this eight weeks’ period.

Mr. Saluja learned AGP appearing on behalf of the Commissioner of Police, Dy. Commissioner of Police, so also Senior Inspector of Police i.e. respondents No. 3 to 5 who are exercising powers under the Bombay Police Act, 1951 are concerned, states that as soon as the petitioners forward necessary authorization and licence under the Bombay Prohibition Act, 1949, the petitioners’ licence styled as Public Entertainment Licence under the Bombay Police Act, 1951 and the relevant rules and regulations thereunder shall be renewed in favour of the petitioners by these respondents. He states that in any case they will take a period of 15 days for such OSWP1930 5 renewal as soon as the petitioners forward the necessary licence under the Bombay Prohibition Act, 1949.

Thus within a period of eight weeks the Collector shall comply with the necessary requirements of law and within two weeks of the Collector complying with the said steps and measures and on production of the Collector’s Authorization, the Bombay Police Act, 1951 the authorities under the Bombay Police Act, 1951 shall renew other permissions and licences in favour of the petitioners.

This order is passed in the peculiar facts of this case and bearing in mind that there is no denial of the fact that prior to the filing of this petition and even during its subsistence the petitioners have not been prosecuted for violation of any law nor any cases are filed against the petitioners. Needless to state that if the petitioners are proceeding to carry on the business they shall be permitted by the respondents to do so subject to their powers to proceed against the respondents in accordance with law being reserved. If there is any violation or breach of the relevant laws or terms and conditions of the licence which were earlier issued, the petitioners can be prosecuted in accordance with law. OSWP1930 6