IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:- 12.10.2006 Coram:- The Hon'ble Mr. Justice P.SATHASIVAM and The Hon'ble Mr. Justice S.MANIKUMAR W.A. Nos.603, 604, 967 & 990 of 2006 and W.A.M.P. Nos.1241, 1242, 1613 & 1618 of 2006 W.A. Nos.603 & 604 of 2006 1. The Government of Pondicherry rep. by Secretary to Government, Local Administration Secretariat, Pondicherry. 2. The Commissioner, Pondicherry Municipality, Pondicherry. ... Appellants/ Respondents vs. S.Muthukumaraswamy ... Respondent in WA No.603 of 2006. (Petitioner) R.Arumugam ... Respondent in WA No.604 of 2006. (Petitioner) W.A. No.967 of 2006 1. The Union Territory of Pondicherry through the Chief Secretary, Pondicherry. 2. The Under Secretary to Government, Public Administration Department, Pondicherry. https://hcservices.ecourts.gov.in/hcservices/ 3. The Commissioner, Pondicherry Municipality, Pondicherry. ... Appellants / Respondents vs. M.M.Dinesh ... Respondent/ Petitioner W.A. No.990 of 2006 Pondicherry Municipality, rep. by its Commissioner, No.1, Rue Dumas, Pondicherry. ... Appellant (Respondent) vs. M.M.Dinesh ... Respondent (Petitioner) Appeals against the orders of the learned single Judge dated 11.2.2006 made in W.P. Nos.39280, 39281, 34460 and 34461 of 2005 W.A.No.603/2006 in W.P.39280/2005 W.A.604/06 in W.P.39281/05 Writ Petitions filed under Article 226 of the Constitution of India praying for issue of a writ of certiorarified Mandamus calling for the records of the second respondent (i) relating to his order dated 30.11.2005 in PM/RO-II/CS/62-15/2005 and quash the said order and consequently direct the respondents to renew the licence to the petitioner for using the premises at 4/14 Kamaraj salai Pondicherry as a place of public resort for conducting classical dance programme. W.A.604/06 in W.P.39281/05 (ii) relating to his order dated 30.11.2005 in PM/RO-II/CS/62-12/A4/2005 and quash the said order and consequenly direct the respondents to renew the licence to the petitioner for using the premises 534, III Floor, Anna Salai, Pondicherry 605 001 as a place of Public resort for conducting Madras Dance Programme. 2. Writ of certiorarified Mandamus to call for the records of the 2nd respondent in their order in G.O.Ms.No.27/LAS/2005 dated 20.9.2005 and quash the same and may grant such other reliefs. (W.A.967/2006 in W.P.34460/2005) 3. Writ of Certiorarified Mandamus to call for the records of the respondent in his order in No.PM/RO-II/97/A4/2003 dated 21.9.2005 quash the same and direct the respondent to issue a licence to the Petitioner for the purpose of holding Indian Classical Dance at Hotel Al Rasheed Citadal at Door No.1, 100 feet Road, Ellapillai Chavady, Pondicherry-5. (W.A.990/2006 in W.P.34461/2005) https://hcservices.ecourts.gov.in/hcservices/ For Government of : Mr.T.Murugesan, Pondicherry/appellants Govt. Pleader (Pondicherry) assisted by K.K.Sashidharan, Additional Government Pleader. For Respt. in WAs.603 and 604 of 2006 : Mr.R.Yashodvardhan For Respt. in WAs.967 and 990 of 2006 : Mr.K.Doraisami, Senior Counsel for Mr.R.Sunilkumar. COMMON JUDGMENT P.SATHASIVAM, J. Since the issue involved in all these Writ Appeals is one and the same, they are being disposed of by the following Common Judgment. 2. The Union Territory of Pondicherry and the Commissioner, Pondicherry Municipality, aggrieved by the identical but separate orders of the learned single Judge, quashing the 'prohibition portion' of the impugned Government Order in G.O.Ms.No.27/LAS/2005, dated 20.09.2005, and directing the Commissioner, Pondicherry Municipality, to consider the application of the Writ Petitioners for renewal of licence to use their premises as a place of public resort for conducting classical dance programmes and to pass orders thereon within a period of 8 weeks from the date of receipt of copy of the said order, filed the above Writ Appeals. 3. For the sake of convenience, we shall refer the case of S.Muthukumaraswamy, Proprietor of Fillo Hotel, petitioner in W.P. No.39280 of 2005. The said Muthukumaraswamy is the sole proprietor of Fillo Hotel, running hotel business at Door No.4/14, Kamaraj Salai, Pondicherry. The grievance of the writ petitioner/respondent is that the licence held by him for conducting classical dance programmes in his hotel, which was valid upto 30.11.2005, has not been renewed further and his application for renewal of the said licence was rejected by the Pondicherry Municipality by order dated 30.11.2005. The main ground of the writ petitioner/respondent is that the Municipal Authorities cannot reject the application for renewal of the licence by taking resort to the Government Order in G.O.Ms.No.27/LAS/2005, dated 20.09.2005, and that the writ petitioner has a unfettered right to claim the renewal of licence by virtue of Section 349 of the Pondicherry Municipalities Act, https://hcservices.ecourts.gov.in/hcservices/ 1973, and that, having regularly paid the necessary fees and taxes for the purpose of holding such classical dance programme in their Hotel, the authorities concerned cannot deny the request for renewal of the existing valid licence for a further period. The respondents/appellants filed a counter affidavit and contested the matter. It is the case of the Government of Pondicherry and the Municipality that the Government, by taking a policy decision, passed G.O. Ms.No.27/LAS/2005, dated 20.09.2005, by virtue of which, grant of fresh licences for holding dance shows and floor shows in public premises such as hotels, etc. was prohibited. The said Government Order proclaimed that there shall not be issuance of fresh licence for performing Indian classical dance, western dance and floor shows. On the basis of the said Government order, the licences of Sun Guest House and Fillo Hotel, which were valid till 30.09.2005, were not renewed. It is further stated that, under the Rules of Business of the Union Territory under Section 46 (1) of the Union Territories Act, 1983, the Minister concerned is competent to issue direction, hence, the said Government Order is valid and operative. Learned single Judge, who heard the Writ Petition along with connected W.Ps., after considering the Government Order in G.O.Ms.No.27/LAS/2005, dated 20.09.2005, quashed a portion of the said order to the extent it prohibits the authorities from issuing any fresh licence in so far as the performance of Indian classical dance is concerned on the ground that it is an infringement of the fundamental right guaranteed by the Constitution of India. By quashing a part of the Government Order, the learned Judge also quashed the consequential orders of the Pondicherry Municipality and directed the Commissioner, Pondicherry Municipality, to consider the application of the petitioner for renewal of licence afresh and pass orders thereon within a period of 8 weeks from the date of receipt of a copy of the order. 4. Questioning the orders, quashing a portion of G.O.Ms.No.27/LAS/2005, dated 20.09.2005, and the consequential orders passed by the Commissioner, Pondicherry Municipality; the Government of Pondicherry and the Commissioner, Pondicherry Municipality, have filed the above Appeals. 5. Heard Mr. Mr.T.Murugesan, learned Government Pleader (Pondicherry), for the appellants; Mr.R.Yashodvardhan, learned counsel for the respondents in W.A. Nos.603 and 604 of 2006; and Mr.K.Doraisami, learned Senior Counsel for the respondent in W.A. Nos.967 and 990 of 2006. 6. Mr.T.Murugesan, learned Government Pleader (Pondicherry), at the foremost, submitted that the learned Judge, https://hcservices.ecourts.gov.in/hcservices/ having upheld the validity and legality of G.O.Ms.No.27/LAS/2005, dated 20.09.2005, and having observed that the power exercised by the Government in issuing the said G.O. is absolute and cannot be interfered with by the Court, committed an error in quashing the order to the extent it prohibits the authorities from issuing any fresh licence insofar as the performance of Indian classical dance on the ground that it infringed the fundamental right guaranteed under Article 19(1)(g) of the Constitution of India, hence, quashing a portion of a valid Government Order is unwarranted. He strenuously contended that renewal of licence is not automatic as claimed by the respondents/petitioners, therefore, when the statute itself does not confer any vested right to demand for renewal of licence, the question of infringing upon the fundamental rights guaranteed under Article 19(1)(g) of the Constitution of India does not arise. According to him, the learned Judge failed to take note that the impugned Government Order imposes only a reasonable restriction and it is not a total prohibition on the right of the respondents to carry on the hotel business. He further contended that the learned Judge ought to have considered the fact that the other provisions of the Pondicherry Municipalities Act do not in any manner interfere with the right of the Municipality to decline the grant of/renewal of licence on the ground of public order, decency, morality etc. It is further argued that there was a proper exercise of statutory powers by the appellants in refusing to renew the licence issued to the respondents. According to him, the learned Judge, while on the one hand proceeded in a right and proper perspective by upholding the need and obligation on the part of the Government to maintain purity, decency and morality in the matter of public life and to take all steps to avoid indecency and immorality being developed and encouraged, on the other hand, has erred in quashing the prohibitory part of the impugned Government Order and directing the authorities to consider the request of the respondents for renewal of licence. Learned Government Pleader also pointed out that the Municipality is taking action against all the persons similarly placed. Since some of the hotel owners obtained prohibitory orders from the Civil Court, in obedience to such orders, no action is being taken for the present. 7. On the other hand, Mr.R.Yashodvardhan, learned counsel and Mr.K.Doraisami, learned Senior Counsel, appearing for the respective respondents, vehemently contended that the impugned Government Order infringes the right of the respondents/writ petitioners to carry on trade or business as provided under Article 19(1)(g) of the Constitution. According to them, the prohibition portion of the Government Order and the consequential orders of the https://hcservices.ecourts.gov.in/hcservices/ Commissioner, Pondicherry Municipality, refusing to renew the licence granted earlier, have been rightly quashed by the learned Judge, hence, there is no ground for interference. 8. Before going into the rival contentions, it is useful to refer to the Government Order in G.O.Ms. No.27/LAS/2005, dated 20.09.2005, and the consequential orders of the Commissioner, Pondicherry Municipality. A. The said Government Order reads as follows:- " GOVERNMENT OF PONDICHERRY (Abstract) Local Administration Secretariat – Municipal License for conduct of the Entertainment – Banning of conduct of all kinds of dances – Order issued ----------------------------------------------- LOCAL ADMINISTRATION SECRETARIAT G.O.Ms.No.27/LAS/2005 Pondicherry dated 20.09.2005 ORDER: WHEREAS under Section 349 of Pondicherry Municipalities Act, 1973, read with Pondicherry Municipalities (Places of Public Resort and Entertainments), Rules 1980 applications are being received for grant of licenses for performing Indian classical, western dances and floor shows. 2. WHERAS, in term of Section 349(3) (a) of Pondicherry Municipalities Act, 1973, G.O.No.383, dt.30.12.1976 of Local Administration Department was issued. 3. WHEREAS, the Government of Pondicherry is satisfied that it is not in public interest to grant any further licenses for the purposes mentioned above. Therefore, the Municipal Authorities are directed not to issue any fresh license for the above mentioned purposes in any permanent buildings, as defined under Rule 2 (c) of Pondicherry Municipalities (Places of Public Resort and Entertainments) Rules, 1980. By Order K. Nagalingam, Under Secretary to Govt (LA) " B. S.Muthukumaraswamy/Proprietor of M/s.Fillo Hotels filed a petition, dated 21.11.2005, praying for renewal of the licence in https://hcservices.ecourts.gov.in/hcservices/ respect of his hotel for conducting classical dance programmes. The Commissioner, Pondicherry Municipality, by proceedings dated 30.11.2005; after recording factual findings to the effect that obscene dances are being conducted and the audience take resort to acts of violence, giving rise to law and order problem; and by holding that with a view to safeguard public morale and decency in the premises in respect of which licences are granted, they are not any more permitted to be used for performing any kind of dance programme on term basis; and also by making reference to G.O.Ms. No.27/LAS/2005, dated 20.09.2005, wherein the policy decision of the Government has been expressed not to renew the licence; refused to renew the licence granted to the Hotel run by S.Muthukumaraswamy. The said Government Order as well as the consequential rejection orders of the Commissioner, Pondicherry Municipality, were challenged by the hotel owners by way of writ Petitions. Though the learned Judge upheld the action of the Pondicherry Administration, however, observed that without amending the Act, they cannot prohibit the performance of classical dance programmes, and issued directions to the commissioner to consider the application of the petitioners for renewal of licence afresh. 9. Now, let us consider the relevant provisions of the Pondicherry Municipalities Act, 1973, " Sec. – 349. Application and grant of licence.--(1) When any person desires to obtain a licence to use any enclosed place or building for public resort or entertainment, or to construct any enclosure or building for such purpose, he shall send an application to the commissioner setting forth the name of the owner of the place or building, its situation, size and description, the material of which the enclosure or building is made or proposed to be made, whether it is or is proposed to be permanent or temporary, and the purpose for which it is proposed to be used. (2) Upon the receipt of any such application, the commissioner shall inspect the place or building in respect of which a licence is required, and may call on the applicant, by notice in writing, to make any alteration or addition in the material or arrangement of the enclosure or building or in the precautions for the safety of the public to be assembled therein, and may refuse to grant a licence until the alteration or addition is made. (3) (a) If the commissioner after consulting such authority or officer as the https://hcservices.ecourts.gov.in/hcservices/ Government may from time to time by notification direct, is satisfied-- (i) that the enclosed place or building may safely be used for the purpose of public resort or entertainment proposed; (ii) that no objection, arising from its situation, ownership, or the purpose proposed exists, he shall give to the applicant a written licence, signed by him, specifying the enclosure or building and the purpose for which it is to be used. Such licence shall be in such form and subject to such fee and conditions as the Government may, from time to time, prescribe. (b) If the commissioner is not satisfied as aforesaid, he may refuse a licence, recording his reasons for refusal in writing. (4) Every licence granted shall state the period for which it is to continue in force, and shall cease to be in force on the expiration of that period. Sec. – 350. Revocation or suspension of licence.-- The commissioner may, for reasons to be recorded in writing, revoke or suspend the licence when he has reason to believe-- (a) that the licences has been fraudulently obtained; (b) that the enclosed place or building has been used for other purposes of public resort or entertainment than that for which the licence was granted; (c) that the place or building can no longer be safely used for the purpose for which the licence was granted; (d) that any condition of the licence has been contravened. Sec. – 352. Power to enter place of public resort to inspect licence or to prevent further use.-- It shall be lawful for any officer of police in charge of a station or of higher rank than head constable or any other officer duly authorised by the Government by notification, to enter at any time any enclosure or building for which licence is required under this Act, to inspect the licence if any has been issued, and, if there is no licence or if the conditions of the licence are not observed and if he sees reason to apprehend imminent danger to the https://hcservices.ecourts.gov.in/hcservices/ public, to prevent the further use of such enclosure or building as a place of public resort or entertainment. Sec. – 353. Government may revise any proceedings under this Act.-- The Government may call for and examine the record of any proceeding taken under this Act, may call for any report in connection therewith, may make or cause to be made any further inquiry and may pass any order which it may think fit. Sec. – 358. Power of the Government to pass orders or give directions to municipal councils:- The Government may, either generally or in any particular case, make such order or give such directions as it may deem fit in respect of any action taken or omitted to be taken under section 355, section 356 or section 357." 10. In the light of the above statutory provisions, let us consider as to whether the impugned orders of the Government and the Commissioner, Pondicherry Municipality, are sustainable more particularly in the light of Article 19(1)(g) of the Constitution of India. Let us also consider as to whether the learned Judge is right in quashing the Government Order partially and issuing a direction for considering the applications for renewal of licence in respect of performance of classical dance in the Hotels/Public Resorts of the writ respondents/Petitioners. 11. The main grievance of the respondents/writ petitioners is that the impugned Government Order infringes the very fundamental right conferred on the citizens under Article 19 (1)(g). The said provision and sub-clause(6) are reproduced below, " 19. Protection of certain rights regarding freedom of speech, etc. - (1) All citizens shall have the right - ..................................... (g) to practise any profession, or to carry on any occupation, trade or business. ..................................... (6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, [nothing in the said sub-clause shall affect the operation of any https://hcservices.ecourts.gov.in/hcservices/ existing law in so far as it relates to, or prevent the State from making any law relating to, - (i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise]." Right to freedom is one of the fundamental rights specifically provided in Part-III of the Constitution of India. The above provision gives the citizens of this country the right to practise any profession and to carry on any occupation, trade or business subject to reasonable restrictions. Sub-clause (6) makes it clear that the State is free to make any law, imposing reasonable restrictions in the interests of the general public, and that so long as the profession, occupation, trade or business is not opposed to any law, the State can only regulate and they cannot completely prohibit the citizens from practising such profession, occupation, trade or business. It is not in dispute that the respondents were granted licences under Section 349 of the Pondicherry Municipalities Act, 1973, by the Commissioner, Pondicherry Municipality, for the performance of Indian classical dance in their premises in question. 12. The impugned Government Order, viz., G.O.Ms.No.27/LAS/2005, completely prohibited the grant of licences for performing Indian Classical dance, western dance and floor shows. By the said Government Order, the Government directed the Municipal Authorities not to issue any fresh licence for the above mentioned performances in any permanent buildings as defined under Rule 2(c) of Pondicherry Municipalities (Places of Public Resort and Entertainments) Rules, 1980. 13. It is the contention of the learned counsel for the respondents/writ petitioners that the impugned Government Order, imposing restriction on the municipal authorities not to issue any fresh licence to the petitioners and other public resorts, goes against the freedom and fundamental right to practise any profession or to carry on any occupation, trade or business guaranteed by the Constitution of India. It is also highlighted by the learned counsel that the performance of Indian classical dance programmes is not prohibited in the Act and according to them, the State by way of an executive order, at the most, could only https://hcservices.ecourts.gov.in/hcservices/ regulate the performance and cannot altogether prohibit the performance itself since Indian classical dances are being encouraged by the Government of India and other States. 14. Learned Government Pleader vehemently contended that the learned single Judge having found that the impugned Government Order was valid and legal and borne out of legitimate exercise of powers conferred on the authorities concerned, committed an error in quashing such Government Order to a limited extent, which course cannot be sustained. According to him, the impugned Government Order only imposes a reasonable restriction in the matter of exercise of right to carry on any trade or business as could be seen from the provisions of Section 349 of the Act which prescribes the need to obtain a licence only where such dance shows or performances are required to be conducted in a building and in other respects, such licence is not necessary. It is also highlighted on behalf of the Government and the Municipality that the purpose and object of passing the impugned Government Order is to prevent the inception of such immoral and indecent dance shows in the public premises and for which there is no need to amend the existing laws, as observed by the learned Judge. He also pointed out that the Senior Superintendent of Police has objected to the grant of licence and in the absence of No Objection Certificate from the competent authority prescribed under the Act, the licence could not be granted and therefore the rejection orders are legally valid. 15. It is true that by the impugned order of the Government and the consequential orders of the Pondicherry Municipality, there is no prohibition in running the hotel business. However, the performance of Indian classical dance and other allied dances alone are prohibited since the Senior Superintendent of Police, who is one of the authorities to be consulted before the grant of licence, has submitted a report to the effect that the respondents/hotel owners are misusing the licence and, according to him, under the guise of Indian classical dances, these commercial establishments are staging semi-nude/nude dances. He further submitted that this has invited a lot of criticism from the members of the public who are of the opinion that these shows are nothing but obscene acts. He also stated that on several occasions, the audience indulged in acts of violence resulting in police intervention and registration of criminal cases. Finally, the Officer has opined that all the licensed dance shows under various nomenclatures need to be closed down in order to maintain peace and tranquility in the Territory; and that the Police Department is not in favour of granting any further licence for the conduct of Indian classical dance programmes. 16. As per the Government Order, it is incumbent on the part of the Commissioner, Pondicherry Municipality, to consult the https://hcservices.ecourts.gov.in/hcservices/ officers, viz., (a) Additional District Magistrate, Pondicherry, and (b) Senior Superintendent of Police, Pondicherry for the grant of licence. Though the Additional District Magistrate has issued NOC for grant of licence, the other authority, viz., Senior Superintendent of Police, has expressed strong objections, because of which, and also by reason of the impugned Government Order, the Commissioner refused to renew the licence granted to the respondents after expiry of the period. 17. Though an argument was advanced that the impugned Government Order was not issued in the name and the authority of the Lieutenant-Governor of Pondicherry but issued only by the Secretary, hence, the same is not permissible; in view of the fact that the learned single Judge has not accepted the said contention and that the writ petitioners have not challenged the same by way of appeal (present appeals only by the Government and the Municipality), we are of the view that there is no need to go into the said aspect. 18. Regarding the attack based on Article 19(1)(g) of the Constitution of India, learned counsel appearing for the respondents heavily relied on a Division Bench decision of the Andhra Pradesh High Court reported in 2003 Crl.L.J. 1360 (Big Way Bar & Restaurant v. Commissioner of Police, Hyderabad). The question before the Division Bench of the