Hotel Nikesh Bar And Restaurant Through Its Proprietor Shri. Eknath Dharma Kakade v. State Of Maharashtra And ORS.

1 WP 10484-15.doc-932

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO.10484 OF 2015 Hotel Nikesh Bar & Restaurant, Through ] its Proprietor Shri Eknath Dharma Kadake.

] ... Petitioner

Versus

State of Maharashtra and Ors.

] ... Respondents Mr. R. D. Soni a/w Mr. S. N. Gawade i/b Shree & Co. for Petitioner. Mr. P. G. Sawant, A.G.P. for State.

CORAM :- M. S. SONAK, J.

DATE :- OCTOBER 21, 2015 P. C. :- 1.

Rule.

2.

With the consent of and at the request of learned Counsel for parties, Rule is made returnable forthwith. 3.

The challenge in this petition is to the orders dated 20/11/2014 and 29/09/2015 by which the Police Commissioner and the Appellate Authority have cancelled the petitioner's eating house license and place for public entertainment license (PPEL).

2 WP 10484-15.doc-932 4.

Mr. Soni, learned Counsel for petitioner, submitted that show cause notice dated 25/02/2014 merely required the petitioner to show cause as to why the license should not be suspended. The final order however has cancelled the license. Mr. Soni submits that this is not permissible and constitutes violation of principles of natural justice and fair play.

5.

Mr. Sawant, learned A.G.P. for State, submitted that in this case, the petitioner has, in the course of personal hearing, admitted the default. In these circumstances, the cancellation of licenses is proper and the same ought not to be interfered with on basis of a mere technicality.

6.

The show cause notice indeed suggests that the same required the petitioner to show cause as to why the licenses should not be suspended. There was no reference to cancellation. Although there is material on record which establishes that the petitioner has admitted the default, Mr. Soni is right in his submissions that the final order travels beyond what was suggested in the show cause notice. 7.

The petitioner in this petition, has disputed the factum of admission of default. However, such factum is recorded in the order made by the Police Commissioner. Upon the receipt of the order, the petitioner did not write to the Police Commissioner disclaiming the admission so recorded in the order. Further, in the memo of appeal, there is no grievance that such admission was not made and that the

3 WP 10484-15.doc-932 same is incorrectly recorded. In quasi judicial proceedings, this constitutes sufficient material to conclude that the defaults were admitted by the petitioner.

8.

Since the final action has travelled beyond the show cause notice, the same is required to be modified. Instead of cancellation of the license, it is directed that the license of the petitioner shall stand suspended. The petitioner to appear before the Police Commissioner on 30/10/2015 and submit authenticated copy of this order. The Police Commissioner to decide upon the suspension period within two weeks thereafter. The Police Commissioner to afford an opportunity of hearing to the petitioner in the matter of determination of the suspension period.

9.

Rule is made absolute to the aforesaid extent. There shall be no order as to costs.

10.

All concerned to act on basis of authenticated copy of this order.

(M. S. SONAK, J.)