# KARNATAKA LIVE BAND RESTAURANTS ASSOCIATION v. STATE OF KARNATAKA & ORS

- **Citation:** [2018] 1 S.C.R. 533
- **Court:** Supreme Court of India
- **Decided:** 2018-01-25
- **Case number:** Civil Appeal No. 4741 of 2007
- **Bench:** R. K. Agrawal, Abhay Manohar Sapre
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/karnataka-live-band-restaurants-association-v-state-of-karnataka-ors-32580
- **Pages:** 38

## Headnote

The Licensing and Controlling of Places of Public
Entertainment (Bangalore City) Order, 2005 - Constitutionality of
- Order of 2005 framed u/s.31 of Karnataka Police Act, 1963,
regulated the running and functioning of restaurants displaying
activities viz. "Live Band Music", "Cabaret Dance" and
"Discotheque" in restaurants - Writ Petitions by appellantAssociation before High Court questioning the constitutional validity
of the 2005 Order, dismissed by High Court - Held: The 2005 Order
does not suffer from any legal infirmity and is therefore constitutional
- Appellant's business activity, viz., running of restaurants, display
of Live Band Music and two other performances fall under the
expression "Public Entertainment" - 2005 Order was 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, therefore, in the larger public
interest, these performances have to be controlled, regulated and
supervised by imposing reasonable restrictions in law u/Cl.(6) of
Art.19 of the Constitution - Making it obligatory to obtain licence
to display Cabaret, Discotheque or Live Band is a reasonable
restriction on appellant's fundamental right to carry on the business
of running the restaurants - Controlling of any business by asking
its owner to obtain licence to do such business is a reasonable
restriction on citizen's fundamental right u/Art.19(1)(g) r/w 19(6) -
Therefore, restaurants engaged in displaying the three performances
specified in Cl.2 (b), (d) and (j) of the 2005 Order are under legal
obligation to take licence u/Cl.3 - Karnataka Police Act, 1963 -
ss.2 (14), 2 (15) and 31 - Licensing and Controlling of Places of
Public Amusements (Bangalore City) Order, 1989 - Constitution of
India - Art.19(1)(g) and 19(6).
[2018] 1 S.C.R. 533
533
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SUPREME COURT REPORTS
[2018] 1 S.C.R.
Karnataka Police Act, 1963 - The Licensing and Controlling
of Places of Public Entertainment (Bangalore City) Order, 2005 -
Purpose of enactment - Held: The 1963 Act and the 2005 Order
are enacted keeping in view the safety and the morality of people at
large.
Maxims - "Salus Populi Supremo Lex" and "Salus republicae
supremo lex"- Concept of individual welfare vis-a-vis community
welfare - Discussed.
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, conv

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KARNATAKA LIVE BAND RESTAURANTS ASSOCIATION
v.
STATE OF KARNATAKA & ORS.
(Civil Appeal No. 4741 of 2007)
JANUARY 25, 2018
[R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]
The Licensing and Controlling of Places of Public
Entertainment (Bangalore City) Order, 2005 - Constitutionality of
- Order of 2005 framed u/s.31 of Karnataka Police Act, 1963,
regulated the running and functioning of restaurants displaying
activities viz. "Live Band Music", "Cabaret Dance" and
"Discotheque" in restaurants - Writ Petitions by appellantAssociation before High Court questioning the constitutional validity
of the 2005 Order, dismissed by High Court - Held: The 2005 Order
does not suffer from any legal infirmity and is therefore constitutional
- Appellant's business activity, viz., running of restaurants, display
of Live Band Music and two other performances fall under the
expression "Public Entertainment" - 2005 Order was 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, therefore, in the larger public
interest, these performances have to be controlled, regulated and
supervised by imposing reasonable restrictions in law u/Cl.(6) of
Art.19 of the Constitution - Making it obligatory to obtain licence
to display Cabaret, Discotheque or Live Band is a reasonable
restriction on appellant's fundamental right to carry on the business
of running the restaurants - Controlling of any business by asking
its owner to obtain licence to do such business is a reasonable
restriction on citizen's fundamental right u/Art.19(1)(g) r/w 19(6) -
Therefore, restaurants engaged in displaying the three performances
specified in Cl.2 (b), (d) and (j) of the 2005 Order are under legal
obligation to take licence u/Cl.3 - Karnataka Police Act, 1963 -
ss.2 (14), 2 (15) and 31 - Licensing and Controlling of Places of
Public Amusements (Bangalore City) Order, 1989 - Constitution of
India - Art.19(1)(g) and 19(6).
[2018] 1 S.C.R. 533
533
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SUPREME COURT REPORTS
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Karnataka Police Act, 1963 - The Licensing and Controlling
of Places of Public Entertainment (Bangalore City) Order, 2005 -
Purpose of enactment - Held: The 1963 Act and the 2005 Order
are enacted keeping in view the safety and the morality of people at
large.
Maxims - "Salus Populi Supremo Lex" and "Salus republicae
supremo lex"- Concept of individual welfare vis-a-vis community
welfare - Discussed.
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
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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:
KARNATAKA LIVE BAND RESTAURANTS ASSO. v. STATE
OF KARNATAKA
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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.
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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,
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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
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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/
KARNATAKA LIVE BAND RESTAURANTS ASSO. v. STATE
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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]
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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
KARNATAKA LIVE BAND RESTAURANTS ASSO. v. STATE
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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.
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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.
Case Law Reference
[1986] 3 SCR 518
 distinguished
Para 32
[1995] 1 SCR 1036
 distinguished
Para 32
[1995] 2 Suppl. SCR 467 distinguished
Para 32
AIR 1984 Cal.268
 distinguished
Para 32
[1962] SCR 842
 distinguished
Para 32
[1985] 2 SCR 287
 distinguished
Para 32
[1959] SCR 12
 distinguished
Para 32
[1992] 3 SCR 595
 distinguished
Para 32
[1994] 4 Suppl. SCR 353 distinguished
Para 32
[1971] 2 SCR 446
 distinguished
Para 32
[1970] 1 SCR 156
 distinguished
Para 32
[2003] 6 Suppl. SCR 151 distinguished
Para 32
[2016] 9 SCR 1
 distinguished
Para 32
[1954] SCR 803
 distinguished
Para 32
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[2013] 7 SCR 654
 distinguished
Para 32
[2013] 12 SCR 283
 distinguished
Para 32
[1993] 1 Suppl. SCR 149 distinguished
Para 32
(1982) 1 SCC 484
 distinguished
Para 32
[1975] 1 SCR 327
 distinguished
Para 32
[1966] SCR 709
 distinguished
Para 32
[1983] 3 SCR 438
 distinguished
Para 32
[2003] 4 Suppl. SCR 62 distinguished
Para 32
(1995) 6 SCC 289
 distinguished
Para 32
AIR 1963 Guj. 259
 distinguished
Para 32
334 US 558 (1948)
 distinguished
Para 32
[1955] SCR 1045
 followed
Para 42
[1959] SCR 279
 followed
Para 43
[1990] 3 SCR 441
 referred to
Para 44
[2013] 7 SCR 654
 referred to
Para 44
[1952] SCR 597
 followed
Para 47
[1986] 2 SCR 700
 referred to
Para 48
[1991] 3 Suppl. SCR 242 referred to
Para 48
(1988) Suppl. SCC 176 referred to
Para 49
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4741
of 2007.
From the Judgment and Order dated 19.04.2007 of the High Court
of Karnataka at Bangalore in Writ Appeal No. 556/2007(GM-Police).
S. N. Bhat, Adv. for the Appellants.
V. N. Raghupathy, Adv. for the Respondents.
The Judgment of the Court was delivered by
ABHAY MANOHAR SAPRE, J. 1. This appeal is directed
against the final judgment and order dated 19.04.2007 passed by the
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High Court of Karnataka at Bangalore in Writ Appeal No. 556 of 2007
(GM-POLICE) whereby 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 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,
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.
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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 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
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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 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 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. The appellant-Association felt 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
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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, the appellantAssociation and many other restaurants owners filed intra Court appeal
before the Division Bench. The Division Bench dismissed the appeal.
The appellant-Association felt 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
09.12.2005 (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.
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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
the appellant's 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. This is how the issue has reached
to this Court to examine the legality and correctness of the Order 2005
issued by the Commissioner under Section 31 of the Act.
24. Heard Mr. S.N. Bhat, learned counsel for the appellant and
Mr. V.N. Raghupathy, learned counsel for the respondents.
25. Learned Counsel for the appellant (writ petitioner/restaurant
owners' Association) while assailing the legality and correctness of the
reasoning and the conclusion of the Single Judge (writ Court) and the
Division Bench, reiterated the same submissions, which were
unsuccessfully urged by the appellant before the two Courts below.
26. Elaborating his submissions, learned counsel contended that
the activity of displaying Live Band Music in the restaurants with which
we are concerned in this appeal is not an activity of a nature, which can
be brought within the four corners of Section 31 of the Act so as to
regulate its functioning by the impugned Order 2005.
27. In other words, the submission was that it is not necessary for
the appellant to take licence for displaying the Live Band Music in their
restaurants and such activity can be performed in the restaurants even
without the licence under the Order 2005, as was being done by them till
2005.
28. His submission was that insistence 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
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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 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 & Ors. vs. State of Kerala & Ors. (1986) 3 SCC 615,
Secretary, Ministry of Information & Broadcasting, Govt.of India
& Ors. vs. Cricket Association of Bengal & Ors. (1995) 2 SCC
161, Tata Press Ltd. vs. Mahanagar Telephone Nigam Ltd., (1995)
5 SCC 139, Mrs. Usha Uthup vs. State of West Bengal & Ors.,
AIR 1984 Cal.268, Sakal Papers (Pvt.) Ltd. vs. U.O.I., AIR 1962
SC 305, Indian Express Newspapers (Bombay) Pvt. Ltd. & Ors.
vs. U.O.I. & Ors. (1985) 1 SCC 641, Express Newspaper(P) Ltd.
& Anr. Vs. U.O.I. & Ors. AIR 1958 SC 578, Life Insurance Corpn.
of India vs. Manubhai D. Shah, (1992) 3 SCC 637, R. Rajagopal @
R.R. Gopal & Anr. Vs. State of T.N. & Ors., (1994) 6 SCC 632,
K.A. Abbas vs. U.O.I. & Anr. (1970) 2 SCC 780, Mohd. Faruk vs.
State of M.P. & Ors. (1969) 1 SCC 853, Dharam Dutt & Ors. vs.
U.O.I. & Ors. (2004) 1 SCC 712, Cellular Operators Asson.