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TMI Blog2018 (1) TMI 1521X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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, which falls in Chapter IV, deals with power to make, alt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 are served and consequently the provisions of the Licensing Order will h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 issued the impugned Order 2005 on 09.12.2005 (Annexure-P-8) after ensuring the complianc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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. 31. Learned Counsel then elaborated the aforementioned submissions by referring to various clauses of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 deals with the application for licence. Clause 5 gives power to the licensing authority to make inspection of the premises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest 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 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, dange ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cence 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 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- Rs. 20,000/- (ii) Renewal- Rs. 5,000/- (iii) Application form fee Rs. 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 supreme law and the other is "Salus republicae supremo lex" which mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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 and may assume every state of facts which can be conceived existing at the time of legislation; and (f) that while good faith and knowledge of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 the interest of general public. It was held in the case of Minerva Talkies, Bangalore and Ors. v. State of Karnataka and Ors. 1988 Supp. SCC 176 that the right to carry on the business of exhibiting ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts. 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 interest. These conditions ensure the safety and the welfare of the general Public who regularly visits such restaurants to take food and witness the live performances of the artists in the restaurants. 58. Indeed, if these safety measures are not adhered to by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use 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. 63. In our view, those who find themselves unable to ensure compliances of these conditions or feel that it is not possible for them to comply, may not display the performances in their restaurants. 64. As held above, the public interest, the welfare and the safety of general public always override the right o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct 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 attractive at its first blush. First, it is for the Police Commissioner to decide in its discretion having regard to the totality of entire fact situation as to what should be brought within the ambit of the Order 2005 and what should be left out from its clutches. Second, there appears reasonable distinction between the two performances because as rightly urged by the Respondent, the performances specified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the nearby area due to any of the three performances in any restaurant and that remedial steps are taken in that behalf. 83. Similarly, with a view to avert any untoward incident due to breaking of fire may be for any reasons in the licensed premises, appropriate specific safety measures must be carried out under the guidance of team of experts. These steps are in public interest and it should be given precedence by the Commissioner of Police not only at t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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