Aurangabad v. Aurangabad

Mr.S.T.Shelke, advocate for the petitioner. Mr.N.N.Jadhav, A.G.P. for the Respondent. ... CORAM : V.R.KINGAONKAR,J. Date : 04.03.2010. ORAL JUDGMENT

By this petition, the petitioner impugns order dated 22.1.2007, issued by the Deputy Commissioner of Police, Aurangabad and 2 order dated 20.4.2008, rendered by Hon'ble Home Minister, dismissing his appeal which resulted into cancellation of license granted to his eating house styled as "Hotel Moonlight" Sillekhana, Aurangabad.

The petitioner was running an eating house under license No.CP/AG/124/II, issued by the competent Police authority and a separate license issued by the Municipal Corporation. A show cause notice dated 28.8.2008 was served on him by the Deputy Commissioner of Police, alleging that there were four (4) non-cognizable offences registered against him for offence U/s 33(w) read with Section 131 of the Bombay Police Act, 1951 and that he shall explain as to why the license granted to his eating house be not cancelled. He submitted his reply to the notice. The Deputy Commissioner of Police, cancelled the license in exercise of powers under the relevant Rules called Public Amusement or Entertainment Place of Aurangabad Rules, 1955, which were made under provisions of the Bombay Police Act, 1951. The petitioner preferred appeal which was dismissed by the Hon'ble Minister. 3

Heard learned counsel and learned A.G.P.

The competent Police Officer is empowered to cancel the license granted to an eating house if certain conditions enumerated in Rule 26 of the aforestated Rules are satisfied. The impugned order does not specify under which sub-rule of Rule 26, the petitioner was disqualified to run the hotel. It prima facie, however, appears that the Deputy Commissioner of Police, Aurangabad found that under Rule 26(3), the petitioner was ineligible to continue license because he was in a habit of committing breach of the Rules.

On perusal of the show-cause notice (Exh.A) dated 18.8.2006, it appears that four (4) non-cognizable cases were referred for which the petitioner was called upon to give his explanation. Out of these four (4) cases, only in NC Case No.74/2005 fine of Rs.200/- (Rupees 4 two hundred) was imposed on accused by name Maheboobkhan Azimkhan. The petitioner was not accused in given Criminal case. He was not joined even as co-accused. Therefore, it can not be said with certainty that he committed the offence punishable U/s 33(w) read with Section 131 of the Bombay Police Act. The remaining two offences bearing NC Case No.415/2005 and NC Case No.470/2005 are still pending before the Court. The fourth NC case bearing No.619/2005, the petitioner was not accused. The case was filed against one Abdul Kadirkhan Abdul Raheman but Court issued warning and closed the NC case. The material on record does not show that the petitioner himself committed intentional breach of the relevant Rules or provisions of the Bombay Police Act. The Deputy Commissioner of Police did not discuss as to how mere registration of the two NC cases could be sufficient proof to infer that the petitioner was in a habit of committing violation of the Rules. The finding rendered by the Deputy Commissioner of Police is not substantiated by valid reasons nor there appears due application of judicial mind by the 5 Appellate Authority. Considering these aspects, both the impugned orders are quite unsustainable.

In the result, the petition is allowed. The impugned orders are set aside. Rule made absolute accordingly. (V.R.KINGAONKAR,J.) asp/office/wp368908