Karnataka Live Band Restaurants Association vs State of Karnataka & Ors.

Constitution of India – Art. 19(1)(g) – Test of reasonableness in matters of public interest – Held: Test of reasonableness is required to be viewed in the context of the issues, which faced the 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 – In such case therefore, it is required to be decided that whether the restrictions imposed are reasonable in the interest of general public or not.

Constitution of India – Art. 19(6) – Expression “in the interest of general public” – Held: Said expression is of wide import which comprehends in it public order, public health, public security, morals, economic welfare of the community and objects mentioned in Part IV of the Constitution.

Constitution of India – Art. 19(6) – Power under, of State to regulate running of any business – Rights of an individual qua general public and the State – Held: State has a right to regulate running of any business by putting reasonable restrictions u/Cl.(6) in the interest of general public – Public interest, the welfare and safety of general public always override the right of an individual – There is no prohibition for any individual to carry on any business, however, he has to follow the norms and the statutory regulation framed for carrying on the business.

The Licensing and Controlling of Places of Public Entertainment (Bangalore City) Order, 2005 – Cl. 7, 8 and 9 – If arbitrary or unreasonable – Held: Conditions specified in Cl.7, 8 & 9 deal with public safety, comforts, convenience, morality and law and order – There is no unreasonableness or arbitrariness in any of the clauses so as to hold that they are unworkable for running the restaurant and to display the three performances in question viz. “Live Band Music”, “Cabaret Dance” and “Discotheque” – Those who are not able 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 - 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, he has to follow the norms and the statutory regulation framed for carrying on the business.

The Licensing and Controlling of Places of Public Entertainment (Bangalore City) Order, 2005 – Grant/Rejection of license under – Powers of licensing authority – Held: The 2005 Order provides a check on the powers of the licensing authority in granting or refusing the licence as the licensing authority is now required to give reasons for rejecting the licence – Such rejection can always be made subject matter of challenge in the Court of law – 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.

The Licensing and Controlling of Places of Public Entertainment (Bangalore City) Order, 2005 – Proviso to Cl.3– Plea of appellant that the proviso violates Art. 14 contending that Cl.3 creates discrimination by excluding those restaurants from obtaining licence which conduct Yakshagana, Bayalata (field drama) or Bharat Natyam, folk Art, Music recital, vocal or instrumental like Veena or Mrudana etc. Held: Not tenable – The aforesaid performances are not usually performed in restaurants but are performed in theaters or/and auditoriums as one time performance by the artists whereas the three activities in question, viz.- Cabaret, Discotheque and Live Band Music are regularly performed and attract more crowd – Further, those items even if performed in restaurants do not involve any kind of indecency or obscenity whereas the three performances in question may, unless controlled – Thus, there appears reasonable distinction between the two sets of performances – Constitution of India – Art.14. Pollution – Noise Pollution – Caused due to regular display and performance of Cabaret, Discotheque and Live Band Music in the restaurants – Remedial steps for – Direction – Held: Commissioner of Police shall ensure that no noise pollution is caused to the residents of the nearby area due to any of the three performances in any restaurant and that remedial steps are taken in that behalf – The Licensing and Controlling of Places of Public Entertainment (Bangalore City) Order, 2005 – Cl.7 (K).

Kerala Police Act, 1963 – s.2(15) – Places of public entertainment – Public Interest – Appropriate safety measures – Held: With a view to avert any untoward incident due to breaking of fire 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 Commissioner of Police not only while granting of licenses but also by doing regular inspection of licensed premises without any lapse – The Licensing and Controlling of Places of Public Entertainment (Bangalore City) Order, 2005.

Dismissing the appeal, the Court

HELD: Article 19 – Test of reasonableness and Constitutionality of The Licensing and Controlling of Places of Public Entertainment (Bangalore City) Order, 2005.

1.1 Article 19(1)(g) of the Constitution of India accords fundamental rights to carry on any profession, occupation, trade or business. However, the right guaranteed under sub-clause (g) of Clause (1) of Article 19 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 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. 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, therefore, required to be decided in such case is whether the restrictions imposed are reasonable in the interest of general public or not. The State has a right to regulate running of any business by putting reasonable restrictions under clause (6) in the interest of general public. [Paras 45, 46, 48 and 49][523-F-H; 563-D-E]

1.2 In the light of the aforementioned general principles of law, it is clear that the 2005 Order does not suffer from any legal infirmity and is therefore constitutional for the following reasons: First, Section 31, Kerala Police Act, 1963 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 2005 Order 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 2005 Order is concerned. Fifth, the 2005 Order 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”. Sixth, in the light of aforementioned reasonings, Cabaret, Discotheque or Live Band Music are rightly subjected to the rigor of 2005 Order. Indeed, the 2005 Order 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. Seventh, making it obligatory to obtain licence under Clause 3, 2005 Order 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. Indeed, controlling of any business by asking its owner to obtain licence to do such business is a reasonable restriction on citizen’s fundamental right under Article 19(1)(g) read with clause (6) and there is no illegality in such regulation. Eighth, conditions specified in Sub-clauses (a) to (l) of Clause 7, Clause 8 and Clause 9 of the 2005 Order 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. 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. [Paras 51- 58][564-B-C; 565C] Whether the 2005 Order violates Article 14 of the Consitution of India and is discriminatory?

2.1 The appellant has not been able to make out any case of arbitrariness or discrimination so as to attract the rigor of Article 14 of the Constitution. Indeed, the 2005 Order does not create any discrimination. [Paras 72, 73][567-F-G]

2.2 The restaurants which are engaged in displaying the three performances specified in Clause 2 (b), (d) and (j) of the 2005 Order are under legal obligation to take licence under Clause 3. However, according to the appellant, the proviso to Clause 3 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. There is no merit in this submission for the following reasons. 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, 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 namely - Cabaret, 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. The proviso is more clarificatory in nature. Further, in any case, 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. [Paras 73-76][567-G-H; 568-F]

2.3 In the light of the foregoing discussion, it is clear that the Order 2005 does not suffer from any arbitrariness or unreasonableness. Both the Courts below were justified in upholding the 2005 Order as being constitutional and legal. [Para 78][568-G-H]

2.4 The 2005 Order is upheld. Accordingly, the respondentPolice Commissioner, Bengaluru is directed to verify and ensure strict compliance of the licence conditions, including all the conditions of the 2005 Order in relation to all the licensees in whose favour, the licences have been issued so far. 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. 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. [Paras 79-81][569-A, C-D] Concept of individual welfare vis-a-vis community welfare.

3. “Salus Populi Supremo Lex” means the safety of the people is the supreme law and the other is “Salus republicae supremo lex” means safety of the State is the supreme law. It is the prime duty, rather statutory duty, of the Police personnel/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 1963 Act and the 2005 Order are enacted keeping in view the safety and the morality of the people at large. [Paras 38, 39][560C-D, E] Compliances under Clauses 7, 8 and 9 of the 2005 Order.

4.1 The conditions specified in Clauses 7, 8 and 9 directly deal with the public safety, comforts, convenience, morality and law and order and there is no unreasonableness or arbitrariness in any of the clauses so as to hold that they are unworkable for running the restaurant and to display the three performances. 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. 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 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. Further, the 2005 Order has rightly provided a check on the powers of the licensing authority in granting or refusing the licence inasmuch as the licensing authority is now required to give reasons for rejecting the licence. 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 2005 Order. [Paras 62, 63 and 6871][566-E, F; 567-C-E]

4.2 Public interest, 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.[Para 64][566-F-G]

4.3 Indeed, judicial notice is taken of an incident that occurred in recent past in a restaurant in Mumbai where life of several innocent people sitting in the restaurants were lost due to lapses in ensuring compliance of safety measures. Yet another incident of the similar nature occurred few years before in Upahar Theater in Delhi where several innocent people lost their life due to non-observance of safety measures. When such incidents occur, they never obliterate from the memories of the citizen and leave a message to all the stakeholders that steps for strict compliance must be taken to avoid any such recurrence in future at any place. All the stakeholders to keep the aforesaid observations in mind. [Paras 66, 67][567-A-C]

Clause 7(K) of the 2005 Order. Need for remedial measures.

5.1 Though Clause 7 (K) of the 2005 Order 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 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. Similarly, with a view to avert any untoward incident due to breaking of fire 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 the time of granting of license but also by doing regular inspection of the licensed premises without any lapse on his part. [Paras 82, 83]569-D-G]

Bijoe Emmanuel & Ors. v. State of Kerala & Ors. (1986)

3 SCC 615 : [1986] 3 SCR 518; Secretary, Ministry of Information & Broadcasting, Govt. of India & Ors. v. Cricket Association of Bengal & Ors. (1995) 2 SCC

161 : [1995] 1 SCR 1036; Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd.(1995) 5 SCC 139 : [1995]

2 Suppl. SCR 467; Mrs. Usha Uthup v. State of West Bengal & Ors. AIR 1984 Cal.268; Sakal Papers (Pvt.) Ltd. v. U.O.I. AIR 1962 SC 305 : [1962] SCR 842; Indian Express Newspapers (Bombay) Pvt. Ltd. & Ors. v. U.O.I.& Ors. (1985) 1 SCC 641 : [1985] 2 SCR 287; Express Newspaper(P) Ltd. & Anr. v. U.O.I. & Ors. AIR 1958 SC 578 : [1959] SCR 12; Life Insurance Corpn. of India v. Manubhai D.Shah (1992) 3 SCC 637 : [1992] 3 SCR 595; R. Rajagopal @ R.R. Gopal & Anr. v. State of T.N. & Ors. (1994) 6 SCC 632 : [1994] 4 Suppl. SCR 353; K.A. Abbas v. U.O.I. & Anr. (1970)

2 SCC 780 : [1971] 2 SCR 446; Mohd. Faruk v. State of M.P. & Ors. (1969) 1 SCC 853 : [1970] 1 SCR 156; Dharam Dutt & Ors. v. U.O.I. & Ors. (2004) 1 SCC 712 : [2003] 6 Suppl. SCR 151; Cellular

Operators Asson. Of India & Ors. v. TRAI & Ors. (2016)

7 SCC 703 : [2016] 9 SCR 1; M/s Dwarka Prasad Laxmi Narain v. State of U.P. & Ors. AIR 1954 SC 224 : [1954] SCR 803; State of Maharashtra & Anr. v. Indian Hotel & Restaurants Asson. & Ors. (2013) 8 SCC 519 : [2013] 7 SCR 654; People’s Union for Civil Liberties & Anr. v. U.O.I. & Anr. (2013) 10 SCC 1 : [2013] 12 SCR 283; Raja Video Parlour & Ors. v. State of Punjab & Ors. (1993) 3 SCC 708 : [1993] 1 Suppl. SCR 149; M/s Noorulla Ghazanfarulla v. Municipal Board of Aligarh & Ors. (1982) 1 SCC 484; Andhra Industrial Works, A.P. v. Chief Controller of Imports & Ors. AIR 1974 SC 1539 : [1975] 1 SCR 327; Dr. Ram Manohar Lohia v. State of Bihar & Anr. AIR 1966 SC

740 : [1966] SCR 709; Delhi Cloth & General Mills Co. Ltd. etc. v. U.O.I. Etc. (1983) 4 SCC 166 : [1983]

3 SCR 438; Illachi Devi(D) by L.Rs. & Ors. v. Jain Society, Protection of Orphans India & Ors. (2003) 8 SCC 413 : [2003] 4 Suppl. SCR 62; M.J. Sivani & Ors. v. State of Karnataka & Ors. (1995) 6 SCC 289; Indulal K. Yagnik v. State & Ors. AIR 1963 Guj. 259; Saia v. People of State of New York 334 US 558 (1948) – distinguished.

Budhan Choudhry v. State of Bihar AIR 1955 SC 191 : [1955] SCR 1045; RamKrishna Dalmia & Ors. v. S.R. Tendulkar & Ors. AIR 1958 SC 538 : [1959] SCR 279; State of Madras v. VG Row AIR 1952 SC 196 : [1952] SCR 597 – followed.

Shashikant Laxman Kale & Anr. v. Union of India & Anr. (1990) 4 SCC 366 : [1990] 3 SCR 441; State of Maharashtra & Anr. v. Indian Hotel & Restaurants Association & Ors.(2013) 8 SCC 519 : [2013] 7 SCR 654; Municipal Corporation of the City of Ahmedabad & Ors. v. Jan Mohammed Usmanbhai &

Anr. (1986) 3 SCC 20 : [1986] 2 SCR 700; Deepak Theatre, Dhuri v. State of Punjab & Ors. (1992) Suppl.

1 SCC 684 : [1991] 3 Suppl. SCR 242; Minerva

Talkies, Bangalore & Ors. v. State of Karnataka & Ors. (1988) Suppl. SCC 176 – referred to.