1. Rule. Rule is made returnable forthwith and heard finally by consent of the parties. Ms. Cardozo, learned AGP waives service on behalf of the Respondents.

2. Heard Mr. Kansara for the Petitioner and Ms. Cardozo, AGP for the Respondents.

3. The Petitioner claims to be one of the partners of the establishment of an eating house known as “Missile Restaurant and Bar”, Goregaon (W), Mumbai. A license to keep a place of public entertainment has been given to the Petitioner and one Yar Mohammad Kallan under Section 33(1) (w) & (y) of the Bombay Police Act, 1951 subject to the Rules framed under the said Act. In exercise of powers conferred by Section 33, the Commissioner of Police, Mumbai has framed “Rules For Keeping Places Of Public Entertainment in Greater Bombay, 1953” (hereinafter referred to as the “said Rules” for short).

4. The place of eating house of the Petitioner was inspected at 23.05 hours on 12/11/2009 by the Senior Inspector of Police, Social Service Branch, Mumbai and at that time it was found that in a hall situated on the first floor, 13 lady waitresses were found making obscene gestures and were in close physical contacts with customers. It was also found that the customers were spraying and throwing Indian currency notes on the said lady waitresses. It was also found that neither the Petitioner nor his colicensee -Yar Mohammad Kallan were present in the establishment and that the establishment was being run through the persons named -Ganesh Bhoja Shetty, styled as a Manager and Sudarshan Vasant Hegde, working as Cashier. In view of this two actions were taken. Vide C.R.No. 2337/2009 and 2349/2009 the Local Act Offences were registered under Sections 110 and 117 of the Bombay Police Act, 1951; whereas Local Act Offence No. 2350/2009 and 2352/2009 was registered against the Manager Ganesh Bhoja Shetty under Section 33(w) read with Section 131 of BP Act,1951 and CR No. 2351/2009 and 2353/2009 were registered under Section 33(w) read with Section 131 of the BP Act, 1951 against Cashier- Sudarshan Vasant Hegde.

5. It is pertinent to note that since the Petitioner and his co-licensee Yar Mohammad Kallan were not present at the eating house, no offence of whatsoever nature was registered against them. It is an undisputed position that the said prosecution is still pending.

6. The second action which was taken was to submit a report to the Licensing Authority. A detailed panchanama was prepared and the same has been signed by Sandesh Rajaram Desai and Abddul Majjid Abddul Jabbar Siddiqui. A copy of the panchanama was immediately handed over to Ganesh Bhoja Shetty (Manager) and Sudarshan Vasant Hegde (Cashier).

7. Since the prosecution registered under the BP Act,1951 and actions for breach of license conditions are two independent actions, a show cause notice was issued to the Petitioner and his co-licensee - Yar Mohammad Kallan on 3/02/2010. The show cause notice gave complete description of the inspection and called upon the Petitioner and his colicensee to show cause as to why punitive action should not be taken against the Petitioner and his co-licensee by suspending the license for a period of 90 days. The show cause notice specifically refers to the violation of Rules 8(1), 8(2), 6, 21(a) and 24.

8. The Petitioner and his co-licensee sent a reply to the show cause notice through Advocate. Paragraphs 2,3 and 4 of the said reply are of some relevance. It was contended in paragraph 3 that the show cause notice is premature and is in violation of undertaking given by the Licensing Authority in this court in the case of Hotel Priya Restaurant and Bar vs. State of Maharashtra. The relevant portion reads thus :

“In the said undertaking you have undertaken that you will not take any action on the ground of pending cases and as seen from the said show cause notice you have based the said show cause notice on the ground of pending case and you have alleged against our client having committed breach of the Enter