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2018 (1) TMI 1521
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....tion is formed by the persons, who are engaged in the business of running the restaurants in various parts of the city of Bangalore (now Bengaluru). 4. In addition to serving food items/beverages to their customers, the owners of these restaurants also entertain their customers by displaying "Live Band Music" in their restaurants. Indeed, the purpose of providing the facility of "Live Band Music" is to attract more and more customers in the restaurants. In some restaurants, the "cabaret dance" and "discotheque" are also performed to attract the customers. 5. The facility of "Live Band Music" and other two items in the restaurants gave a cause to the dispute, which led to filing of the writ petitions in the High Court of Karnataka in the year 1989 and later in appeal to this Court by the Appellant-Association and some individual restaurants' owners against the State. The dispute arose with the following background. 6. The Karnataka Police Act, 1963 (hereinafter referred to as "the Act"), apart from dealing with several other matters pertaining to police force/administration, also deals with the subject "Police Regulations" in Chapter IV of the Act. 7. Section 31, whi....
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.... the Division Bench in an appeal filed by the State set aside the order of the Single Judge and while allowing the State's appeal dismissed the writ petitions. The writ Petitioners felt aggrieved and filed appeals by way of special leave before this Court being Civil Appeal Nos. 1857-1858 of 2000. 12. By order dated 28.11.2002 (Annexure P-3), this Court allowed the appeals and restored the order of the Single Judge. It was held that the writ Petitioners' premises, i.e., restaurants displaying Live Band Music is not a place of "Public Amusement" but it is a place of "Public Entertainment". It was held that the Order 1989 was, therefore, not applicable to the writ Petitioners' (Appellants') restaurants for regulating the activities carried on therein as the same fell outside the purview of the Order 1989. The operative part of the order reads as under: In view of the aforesaid conclusion of ours, we are of the considered opinion that the Appellants' premises which is a "place of public entertainment" cannot be held to be also a "place of public amusement" merely because a live band is also provided in the place of entertainment where food and drinks ar....
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....nch dismissed the appeal. The Appellant-Association felt aggrieved and carried the matter in appeal by special leave before this Court. 18. This Court by order 02.12.2005 allowed the appeal in part and permitted the Appellant members to run their restaurants with display of Live Band Music till Rules are framed. This Court, however, imposed three conditions on the restaurants' owners. First, the proposed display of entertainment would not be used to promote the public gambling or the game house, it shall not be used for prostitution and no narcotic substance will be allowed to be consumed in the restaurants. Second, the restaurants owners will not organize or allow any performance or shows, which are immoral, obscene or indecent and will ensure that there is no obscenity or indecency in dress, movement or gesture and will ensure that the performers does not expose their person; and third, the restaurant owners shall not permit any obscene or objectionable posters or pictures to be exhibited in their restaurants. The owners of the restaurants also gave the undertaking that they would not allow these three things to occur in their restaurants. 19. The Commissioner then issu....
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....nce under the Order 2005, as was being done by them till 2005. 28. His submission was that insistence of the Commissioner of Police on the restaurant owners to obtain the licence under Clause 3 of the Order 2005 violates the principle of equality enshrined in Article 14 of the Constitution, as also it infringes their fundamental right guaranteed Under Article 19(1)(g) of the Constitution to practice any profession, or to carry on any occupation, trade or business. 29. Learned Counsel urged that the conditions specified in the Order 2005 to obtain the licence are unworkable, unreasonable and harsh and thus are incapable of being implemented. The conditions, according to the learned Counsel, also creates a discrimination between the two alike restaurants without any reasonable classification as it requires one restaurant owner to obtain the licence and exclude other similar restaurant owners from obtaining the licence. 30. Learned Counsel urged that since the restrictions imposed on the Appellant while running the restaurants are found unworkable or/and unreasonable, it amounts to infringement of their fundamental right guaranteed Under Article 19(1)(g) of the Constitution. ....
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....t in impugned judgment and contended that the appeal has no merit. 34. Before we proceed to examine the various submissions urged by the learned Counsel for the parties, it is apposite to take note of the relevant provisions of the Act and the Order 2005, which have a bearing over the controversy. 35. Section 2(14) of the Act defines the expression "Place of Public Amusement" whereas Section 2(15) defines the expression "Place of Public Entertainment". As mentioned above, Section 31 gives power to the Commissioner of the Police and the District Magistrate to make orders for Regulation of traffic and for preservation of order in public places etc. Clause (w) of Section 31 deals with licensing or controlling places of public amusement or entertainment whereas Clause (x) deals with licensing or controlling with such exceptions as may be specified, the musical, dancing, mimetic or theatrical or other performances for public amusement including melas and tamashas. 36. Clause 2 of the Order 2005 defines certain expressions such as "Cabaret", "Discotheque", "Educational Institution", "Live Band", "Religious Institution". Clause 3 deals with obtaining of the licence. Clause 4 deal....
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.... residents or passengers in the vicinity; (iii) regulating the means of entrance and exit at places of public amusement or entertainment or assembly and providing for the maintenance of public safety and the prevention of disturbance thereat; Clause (x) (x) (i) licensing or controlling with such exceptions as may be specified, the musical, dancing, mimetic, or theatrical or other performances for public amusement, including melas and tamashas; (ii) regulating in the interest of public order, decency or morality or in the interest of general public, the employment of artists, and the conduct of the artists and the audience at such performances; (iii) prior scrutiny of such performance by a Board appointed by the Government or by an Advisory Committee appointed by the Commissioner or the District Magistrate in this behalf; (iv) regulating the hours during which and the places at which such performances may be given; Clause 2 of Order 2005 2. Definitions: b) 'Cabaret' means a form of dance performed in a place of public entertainment by dancers or artists or any other person as a part of musical e....
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....ority or the Officer so authorized may, if need be, seek assistance of any other authority or authorities during such inspection. Clause 7 7. Grant or refusal of Licence: (1) The Licensing Authority shall while deciding to grant or refuse a licence under this Order have regard to the following aspects, namely: (a) the interest of public in general; (b) the status and antecedents of the applicant; (c) availability of parking place commensurate with the seating capacity; (d) the possible adverse impact on law and order; (e) vicinity of the place to educational or religious institutions. For this purpose vicinity shall mean within a distance of 200 (two hundred) metres; (f) that the entertainment does not in any way incite religious feelings; (g) that the materials used for the structure do not pose any kind of fire hazard; (h) that the proposed entertainment does not promote public gambling or the premises shall not be used a gaming house or does not encourage prostitution or allow the use of narcotic substances or permit any other illegal activity; (i) that the licensee shall not organ....
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....normal doorway fitted with doors which open outwards. (4) There shall be openings sufficiently wide enough to ensure good ventilation or there shall be provision for sufficient good air condition. (5) One W.C. and one urinal separate for men and women each for every fifty persons or less shall be provided. (6) Any live band performance within the licensed premises for conducting live band shall be conducted on a stage which shall be properly demarcated from the seating area. There shall be no inter-mingling of performers with customers/guests on or off the stage. There shall be a distance of at least five feet between the stage and first row of seating area. Clause 9 9. Notice Board: (1) Every licensee shall affix or cause to be affixed at some conspicuous place at the place of Public Entertainment a board of suitable size on which shall be written in Kannada and English, the name and address of the licensee and the period of licence. (2) He shall also specify the seating capacity/maximum capacity of the premises conducting live band, Cabaret, Discotheque, as the case may be. (3) He shall also exhibit at a prominent pla....
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....illegal activity or violates any of the conditions of this order, the licensing authority shall have the discretion to suspend the licence for such period as he may think fit and direct such person to close the place for such period as he may specify. The person to whom such direction is issued by the licensing authority shall comply with such direction. However, the period of suspension shall not exceed 30 days at a time. Clause 15 15. Procedure for cancellation of Licence: No licence granted under this Order shall be cancelled until the holder of the licence has been given a reasonable opportunity of showing cause why his licence should not be cancelled. Clause 16 16. Inspection of Licensed Premises: Every person maintaining a place of public entertainment shall, at all times allow free access to such place to the Licensing Authority or any police officer not below the rank of a Police Inspector having jurisdiction over the area or authorized by the Licensing Authority to hold inspection as deemed necessary to ensure and satisfy that the Licensee has complied with the provisions of this Order. Clause 17 17. Notice to the Licen....
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....e group, and (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases; namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure. 43. In Ram Krishna Dalmia (supra), this Court reiterated the principles which would help in testing the legislation on the touchstone of Article 14 in the following words: (a) that a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself; (b) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional p....
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....ewise, while examining such question, the Court cannot proceed on a general notion of what is reasonable in its abstract form nor the Court can proceed to decide such question from the point of view of the person on whom such restriction is imposed. What is, therefore, required to be decided in such case is whether the restrictions imposed are reasonable in the interest of general public or not. 47. This Court has laid down the test of reasonableness in the case of State of Madras v. VG Row AIR 1952 SC 196 and very succinctly said that it is important, in this context, to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial mind. 48. This Court has further ruled that the expression "in the interest of general public" occurri....
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....). Fourth, in the light of these three reasons, no fault can be found so far as the source of power of the Commissioner of Police to issue the Order 2005 is concerned. 53. Fifth, the Order 2005 has been issued to deal with three activities, which are covered by the expression "Public Entertainment" as defined in Section 2(15) of the Act. In other words, the Appellant's business activity, viz., running of the restaurants and display of Live Band and two others fall under the expression "Public Entertainment". 54. Sixth, in the light of aforementioned reasonings, Cabaret, Discotheque or Live Band Music are rightly subjected to the rigor of Order 2005. Indeed, the Order 2005 has been issued only with a view to control, regulate and supervise the three performances in the restaurants. Since these performances are displayed in a restaurant where public has an access and, therefore, in the larger public interest, these performances have to be controlled, regulated and supervised by imposing reasonable restrictions in law under Clause (6) of Article 19. 55. Seventh, making it obligatory to obtain licence under Clause 3 to display Cabaret, Discotheque or Live Band is a reasona....
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.... or indecency in dress, movement or gesture or/and the performers does not indulge in any kind of indecency and in exposing their person. Clause (j) provides that licensee shall not permit any obscene or objectionable posters or pictures to be exhibited in the premises. Clause (k) provides that the proposed premises do not cause obstruction, inconvenience, annoyance, risk, danger or damage to the residents or to passers-by of such premises and lastly Clause (l) provides that it must be ensured that all the aforementioned precautions have been taken in the premises in respect of which licence is to be granted to provide for the safety, to avoid any inconvenience likely to cause to public and to ensure full comfort to the persons attending the programs displayed in the restaurants. 61. So far as Clause 8 is concerned, it is important as it deals with seating arrangements in the restaurants. It sets out six parameters in Sub-clauses (1) to (6) to control the sitting arrangements in the restaurants. It also provides that every restaurant shall have at least one emergency exit in addition to normal doorway fitted with doors which open outward in the event of occurrence of any fire ha....
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....s of the area. 69. Tenth, the Order 2005 has rightly provided a check on the powers of the licensing authority in granting or refusing the licence in as much as the licensing authority is now required to give reasons for rejecting the licence. 70. Such rejection can always be made subject matter of challenge in the Court of law by an aggrieved. A provision of this nature eliminates any kind of arbitrariness on the part of licensing authority while considering the grant or rejection of the licence Under Order 2005. 71. This takes us to examine another question as to whether any case of arbitrariness or/and discrimination in issuing Order 2005 as urged by the Appellant is made out. 72. We are, however, unable to find any case of arbitrariness or discrimination having been made out by the Appellant so as to attract the rigor of Article 14 of the Constitution. 73. Indeed, the Order 2005 does not create any discrimination between the two alike. The restaurants which are engaged in displaying the three performances specified in Clause 2 (b), (d) and (j) of the Order 2005 are under legal obligation to take licence under Clause 3. 74. Learned Counsel for the Appellant, ho....
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....e Respondent-Police Commissioner, Bengaluru to verify and ensure strict compliance of the licence conditions, including all the conditions of the Order 2005 in relation to all the Licensees in whose favour, the licences have been issued so far. 80. The Commissioner will further verify and ensure that those restaurant owners who have not obtained licences so far and yet running their restaurant without holding the licence, such restaurant owners be granted some reasonable time to apply for obtaining the licence after ensuring compliances as provided in the Order 2005, which alone will enable them to run their restaurants in conformity with the requirements of the Order 2005. 81. Failure to obtain the licence after granting a reasonable time to the restaurant owners would result in closure of their restaurants after giving them notice of the closure. 82. Before parting, we consider it opposite to take note of one fact that though Clause 7 (K) of the Order 2005 rightly provides in general to ensure that the proposed premises do not cause any obstruction, inconvenience, annoyance, risk, danger or damage to the residents or to passerby of such premises, but what we find is that....