D.R. Khanna, J.
(1) These are two petitions moved under Section 482 of the Code of Criminal Procedure for stay of the two prosecutions which have been launched against the petitioner under Section 112 of the Delhi Police Act.
(2) According to the petitioner he is operating a guest house at property No. 6-7 Partap Singh Building, Janpath, New Delhi from before 1980. Such guest houses fall under the definition of the term 'Place of public entertainment' as defined in Section 2(1) of the Delhi Police Act, 1978. Section 28(i)-x empowers the Commissioner of Police by a notification in Official Gazette to make regulations for licensing or controlling places of entertainment and clause (zb) further empowers him to prescribe the procedure in accordance with which any license or permission sought to be obtained or required under the Act should be applied for, and fix fees to be charged for any such license or permission.
(3) As a result of the power so conferred by these provisions of Section 28 of the Delhi Police Act, the Commissioner of Police framed regulations which were published in the Delhi Gazette on 19-12-1980. A from is prescribed therein of the application for license which any applicant has to move. Regulation 6 provides that no person shall open or keep place of public entertainment without having previously obtained license from the Commissioner of Police or any other officer authorised by him in (his behalf. Regulation 7 requires the moving of applications for license in the prescribed from (Annexure 1). Regulation 8 lays down that every person applying for a license to open or keep place of public entertainment shall in the first instance satisfy the Commissioner of Police or any other officer authorised by him in that behalf that he is suitable, the locality and place where such place of entertainment is to be opened are fit for the purpose, the means of entrance and exist to and from the place are convenient, easy, sufficient and satisfactory and in case the place is any enclosure, building, tent, booth or other erection etc. the arrangements regarding the ventilation and precautions against fire are suitable and sufficient. One of the conditions for issue of license prescribed by regulation 9 is that the applicant must fix his signature or thumb impression as the case may be on the license in the presence of the Commissioner or any other officer authorised by him. He is next enjoined under regulation 10 to comply with the provisions of Delhi Shops & Establishments Act and the rules made there under. There are, further a number of regulations prescribing certain prohibitions.
(4) Regulation 39 gives right of appeal before the Administrator Delhi to any person aggrieved by order of the Commissioner refusing to grant or renew, or cancelling or suspending a license.
(5) The petitioner contends that soon after the publication of these registrations, he applied for a license and registration of the said premises as place of public entertainment. However, till this date his application has neither been accepted nor rejected. The result has been that no license has been so far issued.
(6) Subsequently in the year 1982 two prosecutions were set into motion by the police under Section 112 of the Delhi Police Act for running the said guest house without obtaining the license. These prosecutions are pending.
(7) The petitioner had in the meanwhile instituted a civil suit in which he sought permanent injunction restraining the Commissioner of Police from interfering with the day to day business activities of operating the lodging house. This suit is still pending. It has been stated therein that the Commissioner of Police has been requiring the petitioner to submit 'No Objection Certificates' from different authorities. These authorities have been in similar manner sitting over the applications made to them and have not issued the certificates. The petitioner has contended in that suit that the regulations framed under the Delhi Police Act do not prescribe obtaining of such 'No Objection Certificates' and that it is for the Commissioner of Police to be satisfied whether license should be granted or not and for this purpose he may hold such investigation that he may consider appropriate,
(8) During the pendency of the proceedings before the Criminal Court under Section 112 of the Delhi Police Act, the petitioner sought that they be stayed because of the pendency of the civil suit and otherwise too till his application for grant of license pending before the Commissioner, of Police was decided. The Metropolitan Magistrate however, rejected this application and as such the petitioner has now moved the present petitions.
(9) I have beard the parties and given my due consideration to all the circumstances. It is obvious that it is the same authority namely the Commissioner of Police who has been made competent to issue license for opening or operating a place of public entertainment and for launching prosecution under Section 112 for operating such place without any license. .He has, however, not chosen to make any order on the application of the petitioner for grant of license although the same has been pending before him for more ^ than 3 years Instead two prosecutions have been started for the failure of the petitioner to obtained license. This is a very piquant situation, as on the one hand the Commissioner is not issuing the license and on the other penalising the petitioner for absence of it. The regulations framed under the Delhi ^ Police Act empower the Commissioner to be satisfied about the location and the place where the public entertainment place is operated or is proposed to be operated. These provisions are for public good and for proper upkeep of the city so that haphazard growth on public entertainment places does not take place. Such places have also to be suitable for the persons who occupy and stay there, commensurate with the requirements of sanitation, protection from ^ fire, adequate water supply, ventilation etc. The Commissioner of Police thereforee, has to be satisfied that the place is suitable for operating public entertainment place. Courts should not normally interfere when such measures for public good and health are required to be complied with. However, at the same time when a person has applied for license and claims that he has complied with the requirements enjoined upon him under the regulations framed, the matter cannot be allowed to hang on indefinitely and the application for license kept in cold storage. It is for the Commissioner of Police to satisfy himself about the suitability of the application and if need be he can obtain clarification from the applicant or other departments, or get inspection made from his staff or otherwise. Primarily investigation and satisfaction have to be obtained by the. Commissioner himself. He must decide the application one way or the other within a reasonable time so at to enable the aggrieved party, if any, to exercise his right of appeal before the Administrator under regulation 39. It is too much to expect that while the Commissioner can sit over the application indefinitely, he is at liberty to prosecute the applicant under Section 112 of the Delhi Police Act. It is rather penalising a person for not being in possession of something which is itself withheld by the prosecutor. Moreover Section 112 which makes non-obtaining of the license as penal itself envisages that 'whoever fails to obtain license ' under this Act, in respect of a place of public entertainment' within the prescribed, period shall on conviction be punishable with fine which may extend to Rs. 50.00 .. The grave man of the offence thus is the failure to obtain the ' license. The question to be considered is when the person concerned has already applied for license and has done everything required of him under the regulations, and the Commissioner withholds the same without giving any ' decision, can he be accused of failure to obtain a license. The issue of license is not within his powers and the ball in that regard has already passed to the court of Commissioner when he applied for license. In a similar situation the Calcutta High Court in the case of Balhar shah Timber Depot v. Commissioner of Commercial Tax and another. : AIR1958Cal246 observed that a person can be said to have failed to get himself registered when he does not take any steps whatsoever to obtain registration certificate, but when he has applied for registration and has not thereafter done anything to prevent or obstruct registration but the authorities concerned are unable for some reason or other to complete registration before a certain time, the dealer concerned cannot be said to have failed to get himself registered, within the meaning of Section 11(2) of the Bengal Finance (Sales-tax) Act, 1941. In Pannalal Nandlal Bhandari v. Commissioner of Income Tax, : 30ITR139(Bom) , the Bombay High Court as well observed that when the legislature has advisedly used two expressions 'omission' and 'failure' on the part of the assessed, failure must connote that there is an obligation which has not been carried out and if there was no obligation upon the assessed to make a return then it would not be a failure on his part to carry out that obligation.
(10) In these circumstances I am of the opinion that the prosecution against the petitioner should remain stayed till the Commissioner of Police disposes of the application of the petitioner for grant of license one way or the other. It is directed accordingly.