WRIT PETITION 3153 of 1995 on 29 March 1995

J U D G E M E N T

The issue involved in all these three petitions, is oneand the same. Hence these petitions are decided and disposed ofby this common order.

Facts:

1. Writ Petition No. 3153 of 1995

In this petition, the petitioner has challenged the actionof the respondents restraining the petitioner from having musicand dance at his restaurant. The application of the petitioner forsuch performance licence dated 29.3.1995 was not considered bythe respondents. According to the petitioner, its dominant purposeis to provide food and drinks to the people who enter the premises.Music/dance/ orchestra is an ancillary activity. The artists areamature or strugglers. No advertisement is given for suchperformance. From 15[th] October, 1994, it is obligatory to obtainperformance licence at the place of public entertainment, ifdances or music or orchestra are performed. Therefore, thepetitioner prayed for direction to the respondents to consider theapplication of the petitioner dated 29.3.1995 for grant of licencewithout insisting upon a premises licence.

2. Writ Petition No. 3550 of 1995

This petition is directed against the order dated15.7.1995 passed by the Dy. Commissioner of Police, Gr. Bombayrejecting the application of the petitioner for grant of performancelicence, dated 4.6.1994. The petitioner provides food and drinks tothe customers who enter the petitioner restaurant for thatpurpose and by way of ancillary activity the petitioner introducedband as well as dance on recorded music for sometime at nightfor which no fees or money is collected or intended to be collected.Such programme is neither advertised nor invitation is sent to thecustomer as they are not for public amusement. The applicationfor such performance licnece is rejected on the ground of insufficient area and for want of premises licence. The petitionerhas challenged the said order on the ground that premises licenceis not necessary as the place sanctioned is the place for keepingthe public entertainment and not public amusement and prayedthat the said order be quashed and set aside and consider theperformance licence without insisting on premises licence.

3) Writ Petition No. 3577 of 1995

This petition is directed against the order dated 7.6.1995

passed by the Commissioner of Police, Gr. Bombay rejecting theapplication of the petitioner for grant of performance licence,dated 1.12.1993 on the ground that some females were foundindulging into illegal activities outside the hotel, hence cases underSection 110 of Cr. P. C. were registered against them. Thepetitioner has challenged the said order on the ground thatpremises licence is not necessary as the place sanctioned is theplace for keeping the public entertainment and not publicamusement and contending that the principles of natural justiceare not followed, the petitioner prayed that the said order bequashed and set aside and consider the performance licencewithout insisting on premises licence.

4. In all the three petitions, the petitioners are runningRestaurant and Bar. They are the place of public entertainmentwithin the meaning of Clause 10 of Section 2 of the Bombay PoliceAct, 1951 and the petitioners are holding the licences under the said Act to run the public entertainment. Food and drinks areserved to the public in these hotels. However, the petitioners havestarted music, orchestra and dance on recorded music for thecustomers who used to visit to these hotels. But, theCommissioner of police, after 15[th] October, 1994, as peramendment to the Bombay Police Act, issued notification andimposed restriction on holding musical dancing , dramatic,mimetic, theatrical or other performance of public amusement,including Melas and Tamashas or for public exhibition or gamesand therefore, the petitioners had approached the Commissionersof police for such performance licence.

5. Submissions: Learned Advocate appearing for thepetitioner has confined his argument in respect of Petition No.3577 of 1995. He said that he is challenging the order of thePolice Commissioner mainly on the ground of violation of naturaljustice. He submitted that the incidents of lodging criminal casesagainst six females outside the hotel premises and establishingconnection of these six cases of the females with the Hotelpremises is arbitrary. While rejecting the application seekingpermission, the petitioners were not given opportunity of audienceand they have been kept in dark and the unrelated incidents havebeen considered in the decision making process . If theopportunity to refute those charges would not have been denied tothe petitioners, then the decision of rejection would not have takenby the Commissioner.

6. While arguing the case of natural justice the learnedAdvocate relied on State of Orissa Vs. Dr. (Miss) Binapani Deiand others, reported in AIR 1967 SC 1269 and submitted that hedoes not want to press any other point of obtaining licence for thepublic amusement or for the dance performance in view of thesubsequent changes in the rules framed under the Bombay PoliceAct and the said issue is pending before the Hon'ble SupremeCourt. He restricted his reliefs in all the 3 petitions to the orchestraor the musical performance by unknown /strugglers/new comerartists.

7. The learned AGP, while countering the submissions ofthe learned Advocate for the petitioners submitted that the licencefor any public performance including music or orchestra isrequired to be obtained by the petitioners in view of the amendedrule 21 dated 15[th] October, 1994. He relied on the unreportedruling of the Hon'ble Division Bench of this Court in the case ofDamodar S. Mudaliar Vs. State of Maharashtra in Writ petition No.24 of 1998. The Learned AGP further submitted that thepetitioners are running their business and and holding orchestra intheir hotels since last 15 years as the ad interim reliefs in theirfavour was granted by this Court at the time of admission. Thepetitioners, in fact are liable to pay the penalty or required chargefor using the premises for public amusement. The police officialshave not charged any amount from the Hoteliers as the matterwas subjudiced and in apprehension that it may amount tocontempt. So that position is to be clarified.

8. Consideration: These three petitions have been filed in theyear 1995 i.e. immediately after the amendment in Rules forKeeping Places for Public Entertainment in Greater Bombay(Amendment) Rules,1994 was enforced. Rule No.21 wasamended on 15[th] October, 1994 and by that amendment, theGovernment made it compulsory to obtain performance licencefor public amusement. In the meantime, the Government ofMaharashtra made legislation prohibiting dance performance onvocal or recorded music at public entertainment places and thesaid enactment is under challenge, pending before the Hon'bleApex Court. Hence, the relief of dance performance cannot besought and considered in view of pendancy of the matter beforethe Hon'ble Apex Court.

9. In all the three matters interim relief was granted.Since 1995 till today, the music performance has been staged inall the three restaurants . In Writ petition No.3153 of 1995, thepetitioner has sought relief that the respondents be directed toconsider the application of the petitioner dated 29.3.195 forgranting performance licence without insisting upon premiseslicence. In Writ petition No. 3550, the Commissioner of police, byletter dated 15.7.1995 had rejected the application of the petitionerdated 4.6.1994 requesting to permit for conducting entertainmentprogramme of Indian dance and orchestra. While rejecting thesaid application, the Police commissioner has mentioned thatnecessary documents were not furnished and that the total areaof the premises, 300 sq. ft. including the area of the stage, isvery insufficient and the police have demanded archetects' plan in accordance with the rules and also NOC of the BMC.

accordance with the rules and also NOC of the BMC.

10. Unreported ruling of the Hon'ble Division Bench of thisCourt in the case of Damodar S. Mudaliar Vs. State ofMaharashtra in Writ Petition No. 24 of 1998 ,is relied on the pointof mandatory requirement of performance licence u/s 21, formusic or any such performance at the place of publicentertainment. Thus, within the frame work of the Rules under-Keeping place of Public Entertainment in Greater Bombay(Amendment)Rules 1994, the Police Commissioner has takencorrect decision while rejecting the application for performancelicence in respect of Writ petition 3550/1995. The application forperformance licence, in Writ petition No. 3153 of 1995, is yetpending before the Commissioner of Police.

11. In respect of the third Writ Petition No.3577/95, whilerejecting the application dated 1.12.1993, the Commissioner ofPolice had mentioned about some unlawful activities of femalesoutside the premises of the petitioner, lodging criminal case underSection 110 of Cr.P.C. against six ladies, without hearing thepetitioners. In the case of Binapani Dei (supra)the Hon'bleApex Court ruled that - “even administrative orders which involve civilconsequences have to be passed consistently with therules of natural justice”.

Thus, it was necessary for the Police Commissioner after making petitioners aware of the incident, the petitionersshould have been given hearing and then ought to have passed the orders. Principles of natural justice should been respected bythe Commissioner of police.

12. Due to the subsequent enactment, the State ofMaharashtra, banned the dance performance and as the matter ispending before the Hon'ble Apex Court, that issue cannot be dealtwith. So, the issue of performance of music is only kept open forthe Police commissioner to decide. The requirements of area,stage, acoustics , etc. vary from the types of performance. Theperiod of 14 years has been lapsed. On this backdrop andconsidering the efflux of time, the petitioners in Writ Petition No.3153/95 and 3577 of 1995 to apply fresh for the performancelicence as per rules and the Commissioner of Police to decide it,in accordance with law. It is clarified that there was no legalimpediment for the Police not to charge fees or penaltywhichever is prescribed as per the law when the music is beingperformed at the restaurants since 1995 till today pursuant to theorders of interim relief.

In the result, all the three petitions are disposed of bythis common order with separate findings in each.

(A) With the disposal of the petitions, the orders of interimrelief come to an end, in view of the mandatory requirement ofthe performance licence as required under Rule 21 of Keepingplace of Public Entertainment in Greater Bombay (Amendment)Rules 1994 framed under the Bombay Police Act.

(B) The petitioners in Writ Petition No. 3153 of 1995 and 3577

of 1995 to apply fresh and the Commissioner of Police or theconcerned authority to decide those applications at the earliest,in accordance with law.

(C)As regards Writ Petition No. 3550, decision takenPolice Commissioner vide order dated 15.7.1995 is correct andlegal. So, no interference is required in the said order. However,it is made clear that the petitioner may apply afresh after duecompliance of the requirements.

Rule is discharged.

( MRIDULA BHATKAR, J.)

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