JUDGMENT
P.S. Patankar, J.
1. The learned Advocate for the Petitioner prays for deletion of Respondent No. 4. Prayer granted.
2. Rule.
3. The learned A.G.P. for Respondents 1 to 3 waives notice. By consent heard forthwith.
4. The short question involved in this petition under Article 227 is whether the Petitioner is entitled to get licence under “The Rules for Licensing and Controlling Places of Public Amusement (other than Cinemas) and Performances for Public Amusement, including Melas and Tamashas, 1960” (hereinafter referred to “Rules of 1960”) for running Mini Children Park.
5. A few facts are as follows:-
The Petitioner applied to Ulhasnagar Municipal Council for getting a permission to run Mini Children Park. Agreement took place between the Petitioner and Ulhasnagar Municipal Council on 24.5.1996. Ulhasnagar Municipal Council granted licence to the Petitioner to run the same on 25.6.1996. It provided for certain terms and conditions. One of the terms was (1) The applicant shall use the site to be utilised by him for operating Mini Park Amusement. As the said term provided ‘Mini Park Amusement’ Municipal Council insisted that the Petitioner should apply for a licence under Rules 1960. Hence the Petitioner applied, but the Police Commissioner, Thane by order dated 2.9.1996 held that premises are situated at inconvenient place and hence rejected the said application under Rule 92A. The Petitioner went before the State Government challenging the said order. However, the said order came to be confirmed by order dated 8.11.1996 holding that the place is located in congested and thickly populated locality.
6. The learned Counsel for the Petitioner first submitted that Rules of 1960 do not apply as Mini Children Park does not fall under the defination of ‘Public Amusement Performance’ as provided.
7. He next submitted that rejection of the licence to the Petitioner was without any basis and without proper application of mind and hence arbitrary and illegal.
8. I shall first consider whether the rejection was legal and proper. According to the learned A.G.P. the rejection was in view of amended Rule 92A(iii) which reads as under:-
92-A Requirements to be full-filled for grant of premises Licence: Every person applying for grant of premises licence for Public Amusement shall fulfill the following requirements, namely:-
(a) x x
(iii) The proposed place of amusement shall not have been located in the congested and thickly populated area.
9. However, it is difficult to accept the submission of Ld. A.G.P. The learned Counsel for the Petitioner is right in pointing out that different reasons given for rejecting the licence by two authorities below and that shows that there was no proper application of mind. The first and primary authority, which is supposed to grant the licence (Respondent No. 1- Police Commissioner, Thane, has only said that place is inconvenient. In view of the above, Rule, this cannot be a reason. The Re visional authority for the first time tried to give the reason which can be said to fall under Rule 92A(iii). But no details are given and the report mentioned therein was not disclosed to the Petitioner. It was not even mentioned in the order passed by the first authority – Respondent No. 1. This goes to show that there was no proper consideration. The Petitioner wanted to start Mini Children Park at a place near Gol Maidan. In fact the said land admeasuring 50′ x 150′ is reserved by the Municipal Council, Ulhasnagar for the purpose of children park. Part of the said land is taken on rent by the Petitioner for the purpose of his Mini Children Park. It is also to be noted that Ulhasnagar Municipal Council has already granted permission to the Petitioner and the Petitioner has also paid the necessary tax etc. Therefore, in my opinion the rejection was not legal and proper, particularly when Petitioner wanted to instal 5-6 small items of play such as toad, caterpillar etc.
10. In view of the above, I am not deciding the point whether the licence for a Mini Children Park of such a nature is required under the Rules of 1960 or not.
11. In view of this, I pass the following order:
12. Rule is made absolute in terms of prayer (b)(ii) and (c).
13. The prayers (b)(ii) and (c) runs as under:-
(b) That Your Lordships will be pleased to issue a writ of certiorari or writ in the nature of certiorari or any other appropriate writ, order or direction in that regard viz.
(ii) and after going into the legality and propriety thereof be pleased to quash and set aside the impugned decision of the respondent No. 1 dated 2.9.1996 and that of the respondent No. 2 passed in Appeal No. PPE-0196-28-SPL-5 dated 8.11.1996 thereby confirming the decision of the respondent No. 1.
(c) that your Lordships will be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction that regard, thereby direeting the respondents Nos. 1 and 2 by mandatory order and directions, to forthwith grant licence and permission to the petitioner to run the Mini Amusement Park for children qua her application made with respondent No. 1.