Criminal Writ Petition No. 206 of 2012

10th August, 2012

Petitioner Counsel: Shri R.R. MANTRI
Respondent Counsel: Smt. S.D. SHELKE

Cases Cited:
State of U.P. and others Vs. M/s Indian Hume Pipe Co. Ltd., AIR 1977 SC 1132 [Para 6]
Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others, AIR 1999 SC 22 [Para 6]
The Hon'ble Secretary and Correspondent, Badruka College of Commerce and Arts (Day), Hyderabad Vs. State of Andhra Pradesh and others, AIR 1997 A.P. 179 [Para 6]
Harbanslal Sahnia and another Vs. Indian Oil Corpn. Ltd. and others, AIR 2003 SC 2120 [Para 6]
K. Venkatachalam Vs. A. Swamickan and another, 1999(3) ALL MR 643 (S.C.) =(1999) 4 SCC 526 [Para 6]
L. Hirday Narain Vs. Income-Tax Officer, Bareilly, AIR 1971 SC 33 [Para 6]
K.V. Acharya and another Vs. The State of Maharashtra and others, 2000(2) ALL MR 283 =2000(3) Bom. C.R. 372 [Para 6]

JUDGMENT

JUDGMENT :- Heard. Perused records.

2. Rule. Rule made returnable forthwith.

3. Heard finally by mutual consent.

4. The petitioner is seeking quashing of the order dated 05/03/2012 passed by the Dy. Commissioner of Police, (Head quarters) Police Commissionerate, Aurangabad pursuant to the notice No. 11214 dated 25/08/2011 to show cause against the proposed cancellation of the eating house registration No. CP/AG/163/I of Hotel Ding Dong, Jalna Road, Aurangabad. According to the petitioner, eating house registration in respect of hotel Ding Dong at Aurangabad was granted to him in the year 1993 and the registration was renewed from time to time till it was cancelled by Dy. Commissioner of Police, Aurangabad by the impugned order. The petitioner submits that the cancellation of the said registration is in violation of principles of natural justice, in as much as show cause notice dated 25/08/2011 made no reference to the alleged breaches or lapses on his part as mentioned in the impugned order in order to seek explanation in respect thereto.

5. The petition has been resisted with the affidavit reply dated 23/04/2012 sworn by one Kisansing Bahure, A.C.P., Aurangabad. The respondent submits that the licence of the petitioner was cancelled on the basis of his involvement in the offences the list of which is enclosed along with the affidavit at Exhibit R-1 and there is transfer of licence illegally to one Rameshwar Laxman Sananse by the petitioner as evinced from the F.I.R. in Crime No. 100/2010 and Crime No. 105/2011 registered with Jawaharnagar Police Station. The respondent further submits that there is alternative remedy of preferring an appeal against the order of cancellation of the licence and avoidance of the same dis-entitles the petitioner to invoke writ jurisdiction.

6. Learned advocate for the petitioner submitted on placing reliance on the following judgments:-

(i) State of U.P. and others vs. M/s Indian Hume Pipe Co. Ltd., : AIR 1977 Supreme Court 1132.

(ii) Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and others : AIR 1999 Supreme Court 22.

(iii) The Hon'ble Secretary and Correspondent, Badruka College of Commerce and Arts (Day), Hyderabad vs. State of Andhra Pradesh and others : AIR 1997 Andhra Pradesh 179.

(iv) Harbanslal Sahnia and another vs. Indian Oil Corpn. Ltd. and others : AIR 2003 Supreme Court 2120.

(v) K. Venkatachalam vs. A. Swamickan and another : (1999) 4 Supreme Court Cases 526 : [1999(3) ALL MR 643 (S.C.)].

(vi) L. Hirday Narain vs. Income-Tax Officer, Bareilly : AIR 1971 Supreme Court 33 submitted that even when there is alternative remedy available under statute, writ jurisdiction of this Court is not ousted as the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion : and in the appropriate cases arising out of any of the three contingencies : (i) where the writ petition is filed for the enforcement of any of the fundamental right (ii) where there is violation of the principle of natural justice (iii) where the order or proceedings are wholly without jurisdiction or the vires of an Act and is challenged, the High Court can still exercise its writ jurisdiction. He pointed out that show cause notice referred only to the involvement of the petitioner in Crime No. 3033/2000 under section 392, 294, 176, 109 read with section 34 of the Indian Penal Code, 33(w), 131, 66(B), 82, 85 (1) of Bombay Police Act registered with Jawaharnagar Police Station as the basis for the proposed cancellation of the licence and further required the petitioner to show cause as to why his licence should not be cancelled for such a lapse. He further pointed out from the list R-1 annexed to the affidavit in reply that the case arising out of the said Crime had ended in acquittal and further more there has been renewal of the registration thereafter from time to time. Relying on judgment of this Court in K.V. Acharya and another vs. The State of Maharashtra and others : 2000(3) Bom. C.R. 372 : [2000(2) ALL MR 283], he submitted that renewal of the registration after the alleged violation pointed out to insufficiency of the alleged violation for the purposes of cancellation of licence on that count. He further submitted that show cause notice made no reference to any of the offences referred to in the impugned order or to the alleged transfer of licence as ground for proposed cancellation of the licence. He submitted that if the said facts were to be mentioned in the show cause notice as grounds for proposed cancellation, the petitioner could have shown cause in relation to the said grounds and therefore, non mentioning of the same in the show cause notice is a clear case of violation of the principles of natural justice.

7. A perusal of the show cause notice, a copy of which is found annexed as annexture "G" to the petition, reveals the merit of the submissions made on behalf of the petitioner. There is nothing in the show cause notice which makes reference to the alleged lapses referred to in the impugned order. Solitary reference to Crime No. 3033/2000 registered with Jawaharnagar Police Station in the show cause notice has no force of an actionable lapse as the registration in question was renewed thereafter by the concerned authorities from time to time and the case arising out of the said crime had ended in acquittal. Obviously, this is the case of violation of the principles of natural justice. Relegating the petitioner to the alternative remedy would only be denial of justice which is due to him. Hence, the order.

ORDER

Order No. 3400 of 2012, Desk VI(1) dated 05/03/2012 passed by Dy. Commissioner of Police (Head Quarters), Commissionerate of Police, Aurangabad is quashed and set aside.

Rule is made absolute in terms of the above order.

Petition allowed.