Case: Karnataka Live Band Restaurants Association Vs. State of Karnataka &amp; Others

1. This appeal is directed against the final judgment and order dated 19.04.2007 passed by the High Court of Karnataka at Bangalore in Writ Appeal No. 556 of 2007whereby the High Court dismissed the appeal filed by the appellant herein praying for setting aside the order dated 09.02.2007 passed by the Single Judge of the High Court in Writ Petition No.27523 of 2005.2. In order to appreciate the controversy involved in the appeal, it is necessary to set out the facts infra in detail including the background facts, which led to filing of this appeal.3. The appellant is the Association registered under the Karnataka Societies Registration Act, 1960 and Rules framed thereunder. The Association 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 theand 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, 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 restaurant owners, who were displaying "Live Band Music" in their restaurants to obtain the licences under Order 1989 for running their restaurants and for displaying the Live Band Music.9. The restaurants owners felt aggrieved and filed the writ petitions in the High Court of Karnataka. According to them, their restaurants wherein they were displaying "Live Band Music" for entertaining their customers, was not an activity covered under Order 1989. It was contended that these restaurants could not be treated as a place of "Public Amusement" as defined under Section 2(14) of the Act, but at best could be treated as a place of "Public Entertainment" as defined under Section 2(15) of the Act. In other words, the contention of the writ petitioners was that the applicability of the Order 1989 was confined only to the places of "Public Amusement" and since the restaurants were displaying Live Band Music, their place could not be termed as the place of public amusement as defined under Section 2(14) of the Act. It is for this reason, the provisions of the Order 1989 could not be extended to their restaurants.10. It was contended that there lies a distinction between the activities falling in "Public Amusement" and those falling in "Public Entertainment" as is clear from the two expressions defined in Section 2 (14) and Section 2 (15) of the Act.11. The Writ Court (Single Judge) finding substance in the writ petitioners aforementioned contention allowed the writ petitions and quashed the order of the Commissioner. However, the Division Bench in an appeal filed by the State set aside the order of the Single Judge and while allowing the States 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.of 2000.12. By order dated 28.11.2002 (Annexurethis 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 asview 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.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 restaurants providing the facility of displaying "Live Band Music", "cabaret dance" and "discotheque" in the restaurants. The details of the Order 2005 would be mentioned at a later stage while dealing with the issues.15. Thefelt aggrieved by the Order 2005 filed writ petitions and challenged its legality and validity. The Single Judge was of the view that since the Commissioner did not comply with the procedure laid down in Section 31 of the Act before issuing the Order inasmuch as he did not invite any objections from the public at large, the Order 2005 is bad in law.16. The Single Judge, accordingly, disposed of the writ petitions and directed the Commissioner of Police to treat the Order 2005 impugned in the writ petitions to be the "draft Order" and granted an opportunity to the public at large to file their objections as provided in the Act to the proposed draft Order 2005 and then to proceed in the case in accordance with law. The Single Judge further held that since Live Band Music was not being displayed for a long period in the restaurants, no prejudice would be caused to the restaurants owners, if they do not display the Live Band Music for a further period of two months. The Commissioner was, accordingly, directed to decide the objections, if any, filed by the parties concerned within two months and then to proceed in accordance with law.17. Dissatisfied with the order of the Single Judge, theand many other restaurants owners filed intra Court appeal before the Division Bench. The Division Bench dismissed the appeal. Thefelt 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 issued the impugned Order 2005 on 09.12.2005after ensuring the compliances as directed. This gave rise to filing of the writ petition by thequestioning 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 appellants 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 theand by order dated 09.02.2007 dismissed the appellants writ petition. As a consequence thereof, the Order 2005 was upheld.22. The appellant felt aggrieved and filed the writ appeal before the Division Bench of the High Court. The Division Bench concurred with the reasoning and conclusion of the Single Judge and, by impugned judgment, dismissed the appeal.23. The writ petitioners felt aggrieved and filed the present appeal by way of special leave in this Court.

Reasoning:
39. In our considered view, it is the prime duty, rather statutory duty, of the Police personal/administration of every State to maintain and give precedence to the safety and the morality of the people and the State. Indeed, both are important and lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The Act and the Order 2005 are enacted keeping in view the safety and the morality of the people at large.40. In our view, whenever the impugned action is challenged on the touchstone of Articles 14 and 19(1)(g) of the Constitution, we have to keep in mind theprinciple of law laid down by this Court wherein this Court has examined lucidly and succinctly the scope and ambit of Articles 14 and 19(1)(g) .Having examined the questions in the light of aforementioned general principles of law, we are of the considered opinion that the Order 2005 does not suffer from any legal infirmity and is therefore constitutional. This we say for more than one reason as detailed infra.52. First, Section 31 is a valid piece of legislation. Its constitutionality is not questioned. Second, clauses (w) and (x) of Section 31 empowers the Commissioner of Police to issue Order in respect of the matters specified therein. Third, it is in exercise of this statutory power, the Commissioner of Police, Bangalore has issued the Order 2005 to regulate, control and supervise the activities specified in clause(w) and (x). 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 appellants 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(1).55. Seventh, making it obligatory to obtain licence under Clause 3 to display Cabaret, Discotheque or Live Band is a reasonable restriction on the appellants 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 citizens 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(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. 58) Indeed, if these safety measures are not adhered to by the owners of the restaurants while running their restaurants, the general public would always have a risk of subjecting themselves to the happening of any untoward incident endangering their life and safety.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 of an individual. There is no prohibition for any individual to carry on such business. However, if he wishes to carry on such business, he has to follow the norms and the statutory regulation framed for carrying on the business. He cannot be heard to say that he will carry on the business but without ensuring the norms and the regulations framed for the purpose.Ninth, all the measures set out in Clauses 7, 8 and 9 need to be complied with in letter and spirit by every restaurant owner before obtaining the licence and that they must continue to observe its compliances during currency of the licence on regular basis for the benefit, safety and the welfare of the customers and the residents 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.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.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 in the proviso, are not usually performed in restaurants but are performed in theaters or/and auditoriums as one time performance by the artists whereas the three performing items namelyCabaret, Discotheque and Live Band Music are the activities which are regularly performed and attract more crowd and lastly the items specified in proviso even if performed in restaurants does not involve any kind of indecency or obscenity whereas other three performances may unless controlled. In our view, proviso seems more clarificatory in nature.76. In any case, in our view, if the Commissioner finds that the performances specified in proviso may also be brought within the ambit of the Order 2005 then he is always at liberty to include any such performance in Clause 3.77. We have perused the decisions cited by the learned counsel for the appellant mentioned above. In our opinion, there can be no dispute with the law laid down in these cases. They are, however, distinguishable from the facts contained therein as compared to the facts of the case at hand.78. In the light of the foregoing discussion, we are of the considered view that the Order 2005 does not suffer from any arbitrariness or unreasonableness and nor it infringes the fundamental right of the appellant guaranteed under Article 19 (1)(g) of the Constitution of India. In other words, in our considered view, both the Courts below were justified in upholding the Order 2005 as being constitutional and legal.