TMI Blog2018 (1) TMI 1521X X X X Extracts X X X X X X X X Extracts X X X X ..... ned lucidly and succinctly the scope and ambit of Articles 14 and 19(1)(g) - Similarly, so far as Article 19(1)(g) of the Constitution is concerned, this Article accords fundamental rights to carry on any profession, occupation, trade or business. However, the right guaranteed under Clause (g) is made subject to imposition of appropriate reasonable restrictions by the State in the interest of general public under Clause (6). As and when the question arises as to whether a particular restriction imposed by law under Clause (6) is reasonable or not, such question is left for the Court to decide. The test of reasonableness is required to be viewed in the context of the issues, which faced the impugned legislature. In construction of such laws and while judging their validity, the Court has to approach the issue from the point of furthering the social interest, moral and material progress of the community as a whole. Likewise, 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, therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, which falls in Chapter IV, deals with power to make, alter or rescind orders issued for Regulation of traffic and for preservation of order in public places. This Section empowers the Commissioner and the District Magistrate to make orders, alter or rescind subject to a caveat that it should not be inconsistent with the provisions of the Act. 8. The Commissioner and the District Magistrate are empowered to regulate the traffic and to preserve and control the public places. Section 31 (a) to (z) has specified different areas for this purpose. It is, in exercise of this power, the Commissioner/District Magistrate of Bengaluru issued an order in the year 1989 called Licensing and Controlling of Places of Public Amusements (Bangalore City) Order, 1989 (hereinafter referred to as the Order 1989 ). The Commissioner then called upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 are served and consequently the provisions of the Licensing Order will have no application to such premises. The impugned judgment of the Division Bench of the High Court is set aside and these appeals are accordingly allowed. 13. It is with this factual background, the Police Commissioner, Bangalore city was required to issue the Order in the year 2005 called The Licensing and Controlling of Places of Public Entertainment (Bangalore City) Order, 2005 (hereinafter referred to as the Order 2005 ) Under Section 31 of the Act. It is this order which gave rise to second round of litigation in the High Court and now in this appeal. 14. The Order 2005 with which we are concerned in this appeal was passed by the Commissioner of Police with a view to regulate the running and the functioning of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity 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 issued the impugned Order 2005 on 09.12.2005 (Annexure-P-8) after ensuring the compliances as directed. This gave rise to filing of the writ petition by the Appellant-Association questioning its constitutional validity in the High Court of Karnataka. 20. The challenge to the Order 2005 was based mainly on two grounds. First, the Licensing Order, 2005 violates Article 14 of the Constitution and being discriminatory in nature, is not legally sustainable. Second, it infringes the Appellant's fundamental right guaranteed Under Article 19(1)(g) of the Constitution and hence ultra vires the provisions of the Constitution. 21. The Single Judge repelled both the aforementioned submissions of the Appellant-Association and by order dated 09.02.2007 dismissed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 31. Learned Counsel then elaborated the aforementioned submissions by referring to various clauses of the Order 2005 with a view to show their unreasonableness and harshness in implementation and contended that the Order 2005 deserves to be quashed as being unconstitutional. 32. Learned Counsel for the Appellant filed a compilation of the cases in support of his contentions. These decisions are Bijoe Emmanuel and Ors. v. State of Kerala and Ors. (1986) 3 SCC 615, Secretary, Ministry of Information Broadcasting, Govt. of India and Ors. v. Cricket Association of Bengal and Ors. (1995) 2 SCC 161, Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd., (1995) 5 SCC 139, Mrs. Usha Uthup v. Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 deals with the application for licence. Clause 5 gives power to the licensing authority to make inspection of the premises. Clause 7 deals with grant or refusal of licence. Clause 8 deals with the seating arrangements in the premises in question. Clause 9 deals with Notice Board. Clause 10 deals with renewal of licence. Clause 11 deals with termination of licence. Clause 12 deals with prohibition of change of the name. Clause 13 deals with power to stop music. Clause 14 deals with suspension of licence. Clause 15 deals with procedure for cancellation of licence. Clause 16 deals with inspection of licenced premises. Clause 17 deals with notice to the licensing authority and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 entertainment; d) 'Discotheque' means a facility provided at a place of public entertainment to customers or patrons for singing or dancing of whatever form or both; j) 'Live band' means music, live or recorded, provided at a place of public entertainment, whether or not accompanied by any form of dancing including cabaret. Clause 3 3. Obligation to obtain a Licence: No person shall open or maintain a place of public entertainment like live band, cabaret, discotheque without obtaining a licence under the provisions of this Order from the Licensing Authority: Providing that no such licence shall be necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 organize or allow performance of shows which are immoral, obscene or indecent and ensure that there is no obscenity or indecency in dress, movement or gesture or that the performers indecently expose their person; (j) the licensee shall not permit any obscene or objectionable posters or pictures to be exhibited; (k) that the proposed premises do not cause obstruction, inconvenience, annoyance, risk, danger or damage to the residents or to passerby of such premises; (l) that all adequate precautions have been taken in the premises in respect of which the licence is to be granted to provide for the safety, convenience and comfort of the person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 place in the premises a photo copy of the licence. Clause 10 10. Renewal of Licence: (1) Every application for renewal of the licence granted under this Order shall be made at least thirty days before the day on which such licence is to expire. The application shall be accompanied by the licence to be renewed and the amount of fee as specified in Clause 18. (2) Where an application is made in accordance with Sub-clause (1), the earlier licence shall be deemed to be in force till the renewal or refusal of such licence is communicated to the applicant. (3) Application for renewal of a licence, not made in accordance with the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Licensing Authority: Every person shall, as soon as he voluntarily closes the place of public entertainment in respect of which a licence has been granted under this Order, shall intimate such closure to the Licensing Authority. Clause 18 18. Fee: Licensing Fee for every licence per annum, shall be as below: (i) Fresh Licence- ₹ 20,000/- (ii) Renewal- ₹ 5,000/- (iii) Application form fee ₹ 500/- 38. There are two Latin legal maxims, which need to be kept in mind while deciding the questions arising in this appeal. One is Salus Populi Supremo Lex which means the safety of the people is the supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciples 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 principles; (c) that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds; (d) that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest; (e) that in order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of common report, the history of the times an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 occurring in Clause (6) is an expression of wide import which comprehends in it public order, public health, public security, morals, economic welfare of the community and lastly objects mentioned in Part IV of the Constitution. (See Municipal Corporation of the City of Ahmedabad and Ors. v. Jan Mohammed Usmanbhai and Anr., (1986) 3 SCC 20 and Deepak Theatre, Dhuri v. State of Punjab and Ors., 1992 Supp (1) SCC 684). 49. This Court has also ruled, as mentioned above, that the State has a right to regulate running of any business by putting reasonable restrictions under Clause (6) in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned 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 reasonable restriction on the Appellant's fundamental right to carry on the business of running the restaurants. 56. Indeed, controlling of any business by asking its owner to obtain licence to do such business is held to be a reasonable restriction on citizen's fundamental right Under Article 19(1)(g) read with Clause (6) and we do not find any illegality in such Regulation. 57. Eighth, conditions specified in Sub-clauses (a) to (l) of Clause 7, Clause 8 and Clause 9 of the Order 2005 are well conceived conditions in public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioned 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 hazard. Similarly, Clause 9 provides that how the Notice Board would be displayed and what will be its contents. 62. In our considered opinion, the conditions specified in Clauses 7, 8 9 directly deal with the public safety, comforts, convenience, morality and law and order and we have not been able to find any kind of unreasonableness or arbitrariness in any of the abovementioned clauses so as to hold that they are unworkable for running the restaurant and to display the three performances. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidering 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, however, pointed out the proviso to Clause 3 that it is this proviso which creates a discrimination inasmuch as there does not appear to be any justifiable reason to exclude those restaurants from obtaining the licence which are conducting Yakshagana, Bayalata (field drama) or Bharat Natyam, folk Art, Music recital, vocal or instrumental like Veena or Mrudana etc. 75. We do not find any merit in this submission though look at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 there is no specific clause/condition dealing with control of noise pollution which is likely to create or rather bound to create due to regular display and performance of the three activities in the restaurants thereby causing disturbance, annoyance and inconvenience to the near residents of the nearby area. The Commissioner shall ensure that no noise pollution is caused to residents ..... X X X X Extracts X X X X X X X X Extracts X X X X
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