KARNATAKA LIVE BAND RESTAURANTS ASSOCIATION versus STATE OF KARNATAKA & ORS. on 25 January 2018

[2018] 1 S.C.R. 533

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 PublicEntertainment (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 displayingactivities viz. “Live Band Music”, “Cabaret Dance” and“Discotheque” in restaurants – Writ Petitions by appellant-Association before High Court questioning the constitutional validityof the 2005 Order, dismissed by High Court – Held: The 2005 Orderdoes not suffer from any legal infirmity and is therefore constitutional– Appellant’s business activity, viz., running of restaurants, displayof Live Band Music and two other performances fall under theexpression “Public Entertainment” – 2005 Order was issued onlywith a view to control, regulate and supervise the three performancesin the restaurants – Since these performances are displayed in arestaurant where public has an access, therefore, in the larger publicinterest, these performances have to be controlled, regulated andsupervised by imposing reasonable restrictions in law u/Cl.(6) ofArt.19 of the Constitution – Making it obligatory to obtain licenceto display Cabaret, Discotheque or Live Band is a reasonablerestriction on appellant’s fundamental right to carry on the businessof running the restaurants – Controlling of any business by askingits owner to obtain licence to do such business is a reasonablerestriction on citizen’s fundamental right u/Art.19(1)(g) r/w 19(6) –Therefore, restaurants engaged in displaying the three performancesspecified in Cl.2 (b), (d) and (j) of the 2005 Order are under legalobligation to take licence u/Cl.3 – Karnataka Police Act, 1963 –ss.2 (14), 2 (15) and 31 – Licensing and Controlling of Places ofPublic Amusements (Bangalore City) Order, 1989 – Constitution ofIndia – Art.19(1)(g) and 19(6).

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Karnataka Police Act, 1963 – The Licensing and Controllingof Places of Public Entertainment (Bangalore City) Order, 2005 –Purpose of enactment – Held: The 1963 Act and the 2005 Orderare enacted keeping in view the safety and the morality of people atlarge.

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Maxims – “Salus Populi Supremo Lex” and “Salus republicaesupremo lex”– Concept of individual welfare vis-a-vis communitywelfare – Discussed.

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Constitution of India – Art. 19(1)(g) – Test of reasonablenessin matters of public interest – Held: Test of reasonableness is requiredCto be viewed in the context of the issues, which faced the legislature– In construction of such laws and while judging their validity, theCourt has to approach the issue from the point of furthering thesocial interest, moral and material progress of the community as awhole – In such case therefore, it is required to be decided thatwhether the restrictions imposed are reasonable in the interest ofDgeneral public or not.

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

Constitution of India – Art. 19(6) – Power under, of State toregulate running of any business – Rights of an individual quageneral public and the State – Held: State has a right to regulaterunning of any business by putting reasonable restrictions u/Cl.(6)in the interest of general public – Public interest, the welfare andsafety 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 regulationframed for carrying on the business.

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The Licensing and Controlling of Places of PublicEntertainment (Bangalore City) Order, 2005 – Cl. 7, 8 and 9 – Ifarbitrary or unreasonable – Held: Conditions specified in Cl.7, 8& 9 deal with public safety, comforts, convenience, morality andlaw and order – There is no unreasonableness or arbitrariness inany of the clauses so as to hold that they are unworkable for running H

the restaurant and to display the three performances in questionviz. “Live Band Music”, “Cabaret Dance” and “Discotheque” –Those who are not able to ensure compliances of these conditionsor feel that it is not possible for them to comply, may not display theperformances in their restaurants - Public interest, the welfare andthe 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 regulationframed for carrying on the business.

The Licensing and Controlling of Places of PublicEntertainment (Bangalore City) Order, 2005 – Grant/Rejection oflicense under – Powers of licensing authority – Held: The 2005Order provides a check on the powers of the licensing authority ingranting or refusing the licence as the licensing authority is nowrequired to give reasons for rejecting the licence – Such rejectioncan always be made subject matter of challenge in the Court of law– A provision of this nature eliminates any kind of arbitrariness onthe part of licensing authority while considering the grant orrejection of the licence.

The Licensing and Controlling of Places of PublicEntertainment (Bangalore City) Order, 2005 – Proviso to Cl.3– Pleaof appellant that the proviso violates Art. 14 contending that Cl.3creates discrimination by excluding those restaurants from obtaininglicence which conduct Yakshagana, Bayalata (field drama) orBharat Natyam, folk Art, Music recital, vocal or instrumental likeVeena or Mrudana etc. Held: Not tenable – The aforesaidperformances are not usually performed in restaurants but areperformed in theaters or/and auditoriums as one time performanceby the artists whereas the three activities in question, viz.- Cabaret,Discotheque and Live Band Music are regularly performed andattract more crowd – Further, those items even if performed inrestaurants do not involve any kind of indecency or obscenitywhereas the three performances in question may, unless controlled– Thus, there appears reasonable distinction between the two setsof performances – Constitution of India – Art.14.

Pollution – Noise Pollution – Caused due to regular displayand performance of Cabaret, Discotheque and Live Band Music inthe restaurants – Remedial steps for – Direction – Held:

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ACommissioner of Police shall ensure that no noise pollution is causedto the residents of the nearby area due to any of the threeperformances in any restaurant and that remedial steps are takenin that behalf – The Licensing and Controlling of Places of PublicEntertainment (Bangalore City) Order, 2005 – Cl.7 (K).

BKerala Police Act, 1963 – s.2(15) – Places of publicentertainment – Public Interest – Appropriate safety measures – Held:With a view to avert any untoward incident due to breaking of firein the licensed premises, appropriate specific safety measures mustbe carried out under the guidance of team of experts – These stepsare in public interest and it should be given precedence byCCommissioner of Police not only while granting of licenses but alsoby 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

DHELD: Article 19 – Test of reasonableness andConstitutionality of The Licensing and Controlling of Places ofPublic Entertainment (Bangalore City) Order, 2005.

1.1 Article 19(1)(g) of the Constitution of India accordsEfundamental rights to carry on any profession, occupation, tradeor business. However, the right guaranteed under sub-clause (g)of Clause (1) of Article 19 is made subject to imposition ofappropriate reasonable restrictions by the State in the interest ofgeneral public under clause (6). As and when the question arisesas to whether a particular restriction imposed by law under clauseF(6) is reasonable or not, such question is left for the Court todecide. The expression “in the interest of general public”occurring in Clause (6) is an expression of wide import whichcomprehends in it public order, public health, public security,morals, economic welfare of the community and lastly objectsmentioned in Part IV of the Constitution. The test ofGreasonableness is required to be viewed in the context of theissues, which faced the impugned legislature. In construction ofsuch laws and while judging their validity, the Court has toapproach 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 cannotproceed on a general notion of what is reasonable in its abstractform nor the Court can proceed to decide such question from thepoint of view of the person on whom such restriction is imposed.What is, therefore, required to be decided in such case is whetherthe restrictions imposed are reasonable in the interest of generalpublic or not. The State has a right to regulate running of anybusiness by putting reasonable restrictions under clause (6) inthe 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 oflaw, it is clear that the 2005 Order does not suffer from any legalinfirmity and is therefore constitutional for the following reasons:First, Section 31, Kerala Police Act, 1963 is a valid piece oflegislation. Its constitutionality is not questioned. Second, clauses(w) and (x) of Section 31 empowers the Commissioner of Policeto issue Order in respect of the matters specified therein. Third,it is in exercise of this statutory power, the Commissioner ofPolice, Bangalore has issued the 2005 Order to regulate, controland supervise the activities specified in Clause (w) and (x). Fourth,in the light of these three reasons, no fault can be found so far asthe source of power of the Commissioner of Police to issue the2005 Order is concerned. Fifth, the 2005 Order has been issuedto deal with three activities, which are covered by the expression“Public Entertainment” as defined in Section 2(15) of the Act. Inother words, the appellant’s business activity, viz., running of therestaurants and display of Live Band and two others fall underthe expression “Public Entertainment”. Sixth, in the light ofaforementioned reasonings, Cabaret, Discotheque or Live BandMusic 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 wherepublic has an access and, therefore, in the larger public interest,these performances have to be controlled, regulated andsupervised by imposing reasonable restrictions in law underclause (6) of Article 19. Seventh, making it obligatory to obtainlicence under Clause 3, 2005 Order to display Cabaret, AB

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ADiscotheque or Live Band is a reasonable restriction on theappellant’s fundamental right to carry on the business of runningthe restaurants. Indeed, controlling of any business by asking itsowner to obtain licence to do such business is a reasonablerestriction on citizen’s fundamental right under Article 19(1)(g)read with clause (6) and there is no illegality in such regulation.BEighth, conditions specified in Sub-clauses (a) to (l) of Clause 7,Clause 8 and Clause 9 of the 2005 Order are well conceivedconditions in public interest. These conditions ensure the safetyand the welfare of the general Public who regularly visits suchrestaurants to take food and witness the live performances ofCthe artists in the restaurants. Indeed, if these safety measuresare not adhered to by the owners of the restaurants while runningtheir restaurants, the general public would always have a risk ofsubjecting themselves to the happening of any untoward incidentendangering their life and safety. [Paras 51- 58][564-B-C; 565- C]DWhether the 2005 Order violates Article 14 of theConsitution of India and is discriminatory?

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

2.2 The restaurants which are engaged in displaying thethree performances specified in Clause 2 (b), (d) and (j) of the2005 Order are under legal obligation to take licence underFClause 3. However, according to the appellant, the proviso toClause 3 creates a discrimination inasmuch as there does notappear to be any justifiable reason to exclude those restaurantsfrom 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 noGmerit in this submission for the following reasons. First, it is forthe Police Commissioner to decide in its discretion having regardto the totality of entire fact situation as to what should be broughtwithin the ambit of the Order 2005 and what should be left outfrom its clutches. Second, the performances specified in theHproviso, are not usually performed in restaurants but are performed in theaters or/and auditoriums as one timeperformance by the artists whereas the three performing itemsnamely - Cabaret, Discotheque and Live Band Music are theactivities which are regularly performed and attract more crowdand lastly the items specified in proviso even if performed inrestaurants does not involve any kind of indecency or obscenitywhereas other three performances may unless controlled. Theproviso is more clarificatory in nature. Further, in any case, if theCommissioner finds that the performances specified in provisomay also be brought within the ambit of the Order 2005 then heis 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 thatthe Order 2005 does not suffer from any arbitrariness orunreasonableness. Both the Courts below were justified inupholding the 2005 Order as being constitutional and legal. [Para78][568-G-H]

2.4 The 2005 Order is upheld. Accordingly, the respondent-Police Commissioner, Bengaluru is directed to verify and ensurestrict compliance of the licence conditions, including all theconditions of the 2005 Order in relation to all the licensees inwhose favour, the licences have been issued so far. TheCommissioner will further verify and ensure that those restaurantowners who have not obtained licences so far and yet runningtheir restaurant without holding the licence, such restaurantowners be granted some reasonable time to apply for obtainingthe licence after ensuring compliances as provided in the Order2005, which alone will enable them to run their restaurants inconformity with the requirements of the Order 2005. Failure toobtain the licence after granting a reasonable time to the restaurantowners would result in closure of their restaurants after givingthem 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 thepeople is the supreme law and the other is “Salus republicaesupremo lex” means safety of the State is the supreme law. It isthe prime duty, rather statutory duty, of the Police personnel/

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Aadministration of every State to maintain and give precedence tothe safety and the morality of the people and the State. Indeed,both are important and lie at the heart of the doctrine that thewelfare of an individual must yield to that of the community. The1963 Act and the 2005 Order are enacted keeping in view thesafety and the morality of the people at large. [Paras 38, 39][560-BC-D, E]

Compliances under Clauses 7, 8 and 9 of the 2005 Order.4.1 The conditions specified in Clauses 7, 8 and 9 directlydeal with the public safety, comforts, convenience, morality andClaw and order and there is no unreasonableness or arbitrarinessin any of the clauses so as to hold that they are unworkable forrunning the restaurant and to display the three performances.Those who find themselves unable to ensure compliances of theseconditions or feel that it is not possible for them to comply, maynot display the performances in their restaurants. All the measuresDset out in Clauses 7, 8 and 9 need to be complied with in letterand spirit by every restaurant owner before obtaining the licenceand they must continue to observe its compliances during currencyof the licence on regular basis for the benefit, safety and thewelfare of the customers and the residents of the area. Further,Ethe 2005 Order has rightly provided a check on the powers ofthe licensing authority in granting or refusing the licence inasmuchas the licensing authority is now required to give reasons forrejecting the licence. Such rejection can always be made subjectmatter of challenge in the Court of law by an aggrieved. Aprovision of this nature eliminates any kind of arbitrariness onFthe part of licensing authority while considering the grant orrejection of the licence under 2005 Order. [Paras 62, 63 and 68-71][566-E, F; 567-C-E]

4.2 Public interest, welfare and the safety of general publicalways override the right of an individual. There is no prohibitionGfor any individual to carry on such business. However, if he wishesto carry on such business, he has to follow the norms and thestatutory regulation framed for carrying on the business. Hecannot be heard to say that he will carry on the business butwithout ensuring the norms and the regulations framed for theHpurpose.[Para 64][566-F-G]

4.3 Indeed, judicial notice is taken of an incident thatoccurred in recent past in a restaurant in Mumbai where life ofseveral innocent people sitting in the restaurants were lost dueto lapses in ensuring compliance of safety measures. Yet anotherincident of the similar nature occurred few years before in UpaharTheater in Delhi where several innocent people lost their lifedue to non-observance of safety measures. When such incidentsoccur, they never obliterate from the memories of the citizen andleave a message to all the stakeholders that steps for strictcompliance must be taken to avoid any such recurrence in futureat any place. All the stakeholders to keep the aforesaidobservations 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 providesin general to ensure that the proposed premises do not causeany obstruction, inconvenience, annoyance, risk, danger ordamage to the residents or to passerby of such premises, butthere is no specific clause/condition dealing with control of noisepollution which is likely to create or rather bound to create dueto regular display and performance of the three activities in therestaurants thereby causing disturbance, annoyance andinconvenience to the near residents of the nearby area. TheCommissioner shall ensure that no noise pollution is caused toresidents of the nearby area due to any of the three performancesin any restaurant and that remedial steps are taken in that behalf.Similarly, with a view to avert any untoward incident due tobreaking of fire in the licensed premises, appropriate specificsafety measures must be carried out under the guidance of teamof experts. These steps are in public interest and it should begiven precedence by the Commissioner of Police not only at thetime of granting of license but also by doing regular inspection ofthe 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 ofInformation & Broadcasting, Govt. of India & Ors. v.Cricket Association of Bengal & Ors. (1995) 2 SCC161 : [1995] 1 SCR 1036; Tata Press Ltd. v. Mahanagar AB

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Telephone Nigam Ltd.(1995) 5 SCC 139 : [1995]2 Suppl. SCR 467; Mrs. Usha Uthup v. State of WestBengal & 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. AIR1958 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] 4Suppl. SCR 353; K.A. Abbas v. U.O.I. & Anr. (1970)2 SCC 780 : [1971] 2 SCR 446; Mohd. Faruk v. Stateof M.P. & Ors. (1969) 1 SCC 853 : [1970] 1 SCR 156; Dharam Dutt & Ors. v. U.O.I. & Ors. (2004) 1SCC 712 : [2003] 6 Suppl. SCR 151; CellularOperators Asson. Of India & Ors. v. TRAI & Ors. (2016)7 SCC 703 : [2016] 9 SCR 1; M/s Dwarka PrasadLaxmi 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) 8SCC 519 : [2013] 7 SCR 654; People’s Union for CivilLiberties & Anr. v. U.O.I. & Anr. (2013) 10 SCC 1 :[2013] 12 SCR 283; Raja Video Parlour & Ors. v. Stateof Punjab & Ors. (1993) 3 SCC 708 : [1993] 1 Suppl.SCR 149; M/sNoorulla Ghazanfarulla v. MunicipalBoard of Aligarh & Ors. (1982) 1 SCC 484; AndhraIndustrial Works, A.P. v. Chief Controller of Imports &Ors. AIR 1974 SC 1539 : [1975] 1 SCR 327; Dr. RamManohar Lohia v. State of Bihar & Anr. AIR 1966 SC740 : [1966] SCR 709; Delhi Cloth & General MillsCo. Ltd. etc. v. U.O.I. Etc. (1983) 4 SCC 166 : [1983]3 SCR 438; Illachi Devi(D) by L.Rs. & Ors. v. JainSociety, Protection of Orphans India & Ors. (2003) 8SCC 413 : [2003] 4 Suppl. SCR 62; M.J. Sivani & Ors.v. State of Karnataka & Ors. (1995) 6 SCC 289; IndulalK. Yagnik v. State & Ors. AIR 1963 Guj. 259; Saia v.People of State of New York 334 US 558 (1948) –distinguished.

KARNATAKA LIVE BAND RESTAURANTS ASSO. v. STATEOF KARNATAKA

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.

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Shashikant Laxman Kale & Anr. v. Union of India &Anr. (1990) 4 SCC 366 : [1990] 3 SCR 441; State ofMaharashtra & Anr. v. Indian Hotel & RestaurantsAssociation & Ors.(2013) 8 SCC 519 : [2013] 7SCR 654; Municipal Corporation of the City ofAhmedabad & Ors. v. Jan Mohammed Usmanbhai &Anr. (1986) 3 SCC 20 : [1986] 2 SCR 700; DeepakTheatre, Dhuri v. State of Punjab & Ors. (1992) Suppl.1 SCC 684 : [1991] 3 Suppl. SCR 242; MinervaTalkies, Bangalore & Ors. v. State of Karnataka & Ors.(1988) Suppl. SCC 176 – referred to.

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544SUPREME COURT REPORTS

[2018] 1 S.C.R.

FCIVIL APPELLATE JURISDICTION: Civil Appeal No. 4741of 2007.

From the Judgment and Order dated 19.04.2007 of the High Courtof Karnataka at Bangalore in Writ Appeal No. 556/2007(GM-Police).

S. N. Bhat, Adv. for the Appellants.

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V. N. Raghupathy, Adv. for the Respondents.

The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. This appeal is directedagainst the final judgment and order dated 19.04.2007 passed by the H

High Court of Karnataka at Bangalore in Writ Appeal No. 556 of 2007(GM-POLICE) whereby the High Court dismissed the appeal filed bythe appellant herein praying for setting aside the order dated 09.02.2007passed by the Single Judge of the High Court in Writ Petition No.27523of 2005.

2. In order to appreciate the controversy involved in the appeal, itis necessary to set out the facts infra in detail including the backgroundfacts, which led to filing of this appeal.

3. The appellant is the Association registered under the KarnatakaSocieties Registration Act, 1960 and Rules framed thereunder. TheAssociation is formed by the persons, who are engaged in the businessof running the restaurants in various parts of the city of Bangalore (nowBengaluru).

4. In addition to serving food items/beverages to their customers,the owners of these restaurants also entertain their customers bydisplaying “Live Band Music” in their restaurants. Indeed, the purposeof providing the facility of “Live Band Music” is to attract more andmore customers in the restaurants. In some restaurants, the “cabaretdance” and “discotheque” are also performed to attract the customers.

5. The facility of “Live Band Music” and other two items in therestaurants gave a cause to the dispute, which led to filing of the writpetitions in the High Court of Karnataka in the year 1989 and later inappeal to this Court by the appellant-Association and some individualrestaurants’ owners against the State. The dispute arose with thefollowing background.

6. The Karnataka Police Act, 1963 (hereinafter referred to as“the Act”), apart from dealing with several other matters pertaining topolice force/administration, also deals with the subject “PoliceRegulations” 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 preservationof order in public places. This Section empowers the Commissioner andthe District Magistrate to make orders, alter or rescind subject to a caveatthat it should not be inconsistent with the provisions of the Act.

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A8. The Commissioner and the District Magistrate are empoweredto 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 ofBengaluru issued an order in the year 1989 called “Licensing andControlling of Places of Public Amusements (Bangalore City) Order,B1989” (hereinafter referred to as “the Order 1989”). The Commissionerthen called upon the restaurant owners, who were displaying “Live BandMusic” in their restaurants to obtain the licences under Order 1989 forrunning their restaurants and for displaying the Live Band Music.

9. The restaurants owners felt aggrieved and filed the writ petitionsCin the High Court of Karnataka. According to them, their restaurantswherein they were displaying “Live Band Music” for entertaining theircustomers, was not an activity covered under Order 1989. It wascontended that these restaurants could not be treated as a place of “PublicAmusement” as defined under Section 2(14) of the Act, but at bestDcould be treated as a place of “Public Entertainment” as defined underSection 2(15) of the Act. In other words, the contention of the writpetitioners was that the applicability of the Order 1989 was confinedonly to the places of “Public Amusement” and since the restaurantswere displaying Live Band Music, their place could not be termed as theplace of public amusement as defined under Section 2(14) of the Act. ItEis for this reason, the provisions of the Order 1989 could not be extendedto their restaurants.

10. It was contended that there lies a distinction between theactivities falling in “Public Amusement” and those falling in “PublicEntertainment” as is clear from the two expressions defined in Section 2F(14) and Section 2 (15) of the Act.

11. The Writ Court (Single Judge) finding substance in the writpetitioners’ aforementioned contention allowed the writ petitions andquashed the order of the Commissioner. However, the Division Benchin an appeal filed by the State set aside the order of the Single Judge andGwhile allowing the State’s appeal dismissed the writ petitions. The writpetitioners felt aggrieved and filed appeals by way of special leave beforethis Court being Civil Appeal Nos. 1857-1858 of 2000.

12. By order dated 28.11.2002 (Annexure P-3), this Court allowedthe appeals and restored the order of the Single Judge. It was held thatH

the writ petitioners’ premises, i.e., restaurants displaying Live Band Musicis not a place of “Public Amusement” but it is a place of “PublicEntertainment”. It was held that the Order 1989 was, therefore, notapplicable to the writ petitioners’ (appellants’) restaurants for regulatingthe activities carried on therein as the same fell outside the purview ofthe Order 1989. The operative part of the order reads as under:

“In view of the aforesaid conclusion of ours, we are of theconsidered opinion that the appellants’ premises which isa “place of public entertainment” cannot be held to be alsoa “place of public amusement” merely because a live bandis also provided in the place of entertainment where foodand drinks are served and consequently the provisions ofthe Licensing Order will have no application to suchpremises. The impugned judgment of the Division Benchof the High Court is set aside and these appeals areaccordingly 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 Order2005”) under Section 31 of the Act. It is this order which gave rise tosecond round of litigation in the High Court and now in this appeal.

14. The Order 2005 with which we are concerned in this appealwas passed by the Commissioner of Police with a view to regulate therunning and the functioning of the restaurants providing the facility ofdisplaying “Live Band Music”, “cabaret dance” and “discotheque” inthe restaurants. The details of the Order 2005 would be mentioned at alater stage while dealing with the issues.

15. The appellant-Association felt aggrieved by the Order 2005filed writ petitions and challenged its legality and validity. The SingleJudge was of the view that since the Commissioner did not comply withthe procedure laid down in Section 31 of the Act before issuing theOrder inasmuch as he did not invite any objections from the public atlarge, the Order 2005 is bad in law.

16. The Single Judge, accordingly, disposed of the writ petitionsand directed the Commissioner of Police to treat the Order 2005 impugned A

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Ain the writ petitions to be the “draft Order” and granted an opportunity tothe public at large to file their objections as provided in the Act to theproposed draft Order 2005 and then to proceed in the case in accordancewith law. The Single Judge further held that since Live Band Music wasnot being displayed for a long period in the restaurants, no prejudicewould be caused to the restaurants’ owners, if they do not display theBLive Band Music for a further period of two months. The Commissionerwas, accordingly, directed to decide the objections, if any, filed by theparties concerned within two months and then to proceed in accordancewith law.

17. Dissatisfied with the order of the Single Judge, the appellant-CAssociation and many other restaurants owners filed intra Court appealbefore the Division Bench. The Division Bench dismissed the appeal.The appellant-Association felt aggrieved and carried the matter in appealby special leave before this Court.

18. This Court by order 02.12.2005 allowed the appeal in part andDpermitted the appellant members to run their restaurants with display ofLive Band Music till Rules are framed. This Court, however, imposedthree conditions on the restaurants’ owners. First, the proposed displayof entertainment would not be used to promote the public gambling orthe game house, it shall not be used for prostitution and no narcoticEsubstance will be allowed to be consumed in the restaurants. Second,the restaurants owners will not organize or allow any performance orshows, which are immoral, obscene or indecent and will ensure thatthere is no obscenity or indecency in dress, movement or gesture andwill ensure that the performers does not expose their person; and third,the restaurant owners shall not permit any obscene or objectionableFposters or pictures to be exhibited in their restaurants. The owners ofthe restaurants also gave the undertaking that they would not allow thesethree things to occur in their restaurants.

19. The Commissioner then issued the impugned Order 2005 on09.12.2005 (Annexure-P-8) after ensuring the compliances as directed.GThis gave rise to filing of the writ petition by the appellant-Associationquestioning its constitutional validity in the High Court of Karnataka.

20. The challenge to the Order 2005 was based mainly on twogrounds. First, the Licensing Order, 2005 violates Article 14 of theConstitution and being discriminatory in nature, is not legally sustainable.H

Second, it infringes the appellant’s fundamental right guaranteed underArticle 19(1)(g) of the Constitution and hence ultra vires the provisionsof the Constitution.

21. The Single Judge repelled both the aforementioned submissionsof the appellant-Association and by order dated 09.02.2007 dismissedthe appellant’s writ petition. As a consequence thereof, the Order 2005was upheld.

22. The appellant felt aggrieved and filed the writ appeal beforethe Division Bench of the High Court. The Division Bench concurredwith the reasoning and conclusion of the Single Judge and, by impugnedjudgment, dismissed the appeal.

23. The writ petitioners felt aggrieved and filed the present appealby way of special leave in this Court. This is how the issue has reachedto this Court to examine the legality and correctness of the Order 2005issued by the Commissioner under Section 31 of the Act.

24. Heard Mr. S.N. Bhat, learned counsel for the appellant andMr. V.N. Raghupathy, learned counsel for the respondents.

25. Learned Counsel for the appellant (writ petitioner/restaurantowners’ Association) while assailing the legality and correctness of thereasoning and the conclusion of the Single Judge (writ Court) and theDivision Bench, reiterated the same submissions, which wereunsuccessfully urged by the appellant before the two Courts below.

26. Elaborating his submissions, learned counsel contended thatthe activity of displaying Live Band Music in the restaurants with whichwe are concerned in this appeal is not an activity of a nature, which canbe brought within the four corners of Section 31 of the Act so as toregulate its functioning by the impugned Order 2005.

27. In other words, the submission was that it is not necessary forthe appellant to take licence for displaying the Live Band Music in theirrestaurants and such activity can be performed in the restaurants evenwithout the licence under the Order 2005, as was being done by them till2005.

28. His submission was that insistence of the Commissioner ofPolice on the restaurant owners to obtain the licence under Clause 3 ofthe Order 2005 violates the principle of equality enshrined in Article 14

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Aof the Constitution, as also it infringes their fundamental right guaranteedunder Article 19 (1)(g) of the Constitution to practice any profession, orto carry on any occupation, trade or business.

29. Learned counsel urged that the conditions specified in theOrder 2005 to obtain the licence are unworkable, unreasonable and harshBand thus are incapable of being implemented. The conditions, accordingto the learned counsel, also creates a discrimination between the twoalike restaurants without any reasonable classification as it requires onerestaurant owner to obtain the licence and exclude other similar restaurantowners from obtaining the licence.

C30. Learned counsel urged that since the restrictions imposed onthe appellant while running the restaurants are found unworkable or/andunreasonable, it amounts to infringement of their fundamental rightguaranteed under Article 19(1)(g) of the Constitution.

31. Learned counsel then elaborated the aforementionedDsubmissions by referring to various clauses of the Order 2005 with aview to show their unreasonableness and harshness in implementationand contended that the Order 2005 deserves to be quashed as beingunconstitutional.

32. Learned counsel for the appellant filed a compilation of theEcases in support of his contentions. These decisions are BijoeEmmanuel & 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 SCC161, Tata Press Ltd. vs. Mahanagar Telephone Nigam Ltd., (1995)5 SCC 139, Mrs. Usha Uthup vs. State of West Bengal & Ors.,FAIR 1984 Cal.268, Sakal Papers (Pvt.) Ltd. vs. U.O.I., AIR 1962SC 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 @GR.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. OfIndia & Ors. vs. TRAI & Ors. (2016) 7 SCC 703, M/s DwarkaPrasad Laxmi Narain vs. State of U.P. & Ors., AIR 1954 SC 224,H

State of Maharashtra & Anr. vs. Indian Hotel & RestaurantsAsson. & Ors. (2013) 8 SCC 519, People’s Union for Civil Liberties& Anr. vs. U.O.I. & Anr. (2013) 10 SCC 1, Raja Video Parlour &Ors. vs. State of Punjab & Ors. (1993) 3 SCC 708, M/s NoorullaGhazanfarulla vs. Municipal Board of Aligarh & Ors. (1982) 1 SCC484, Andhra Industrial Works, A.P. vs. Chief Controller of Imports& Ors., AIR 1974 SC 1539, Dr. Ram Manohar Lohia vs. State ofBihar & Anr. AIR 1966 SC 740, Delhi Cloth & General Mills Co.Ltd. etc. vs. U.O.I. Etc., (1983) 4 SCC 166, Illachi Devi(D) by L.Rs.& Ors. vs. Jain Society, Protection of Orphans India & Ors., (2003)8 SCC 413, M.J. Sivani & Ors. vs. State of Karnataka & Ors.,(1995) 6 SCC 289, Indulal K. Yagnik v. State & Ors. AIR 1963 Guj.259 and Saia vs. People of State of New York, 334 US 558 (1948).

33. In reply, learned counsel for the respondent (State) supportedthe reasoning and conclusion arrived at in impugned judgment andcontended that the appeal has no merit.

34. Before we proceed to examine the various submissions urgedby the learned counsel for the parties, it is apposite to take note of therelevant provisions of the Act and the Order 2005, which have a bearingover the controversy.

35. Section 2 (14) of the Act defines the expression “Place ofPublic Amusement” whereas Section 2(15) defines the expression “Placeof Public Entertainment”. As mentioned above, Section 31 gives powerto the Commissioner of the Police and the District Magistrate to makeorders for regulation of traffic and for preservation of order in publicplaces etc. Clause (w) of Section 31 deals with licensing or controllingplaces of public amusement or entertainment whereas clause (x) dealswith licensing or controlling with such exceptions as may be specified,the musical, dancing, mimetic or theatrical or other performances forpublic amusement including melas and tamashas.

36. Clause 2 of the Order 2005 defines certain expressions suchas “Cabaret”, “Discotheque”, “Educational Institution”, “Live Band”,“Religious Institution”. Clause 3 deals with obtaining of the licence. Clause4 deals with the application for licence. Clause 5 gives power to thelicensing authority to make inspection of the premises. Clause 7 dealswith grant or refusal of licence. Clause 8 deals with the seatingarrangements in the premises in question. Clause 9 deals with Notice A

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ABoard. Clause 10 deals with renewal of licence. Clause 11 deals withtermination of licence. Clause 12 deals with prohibition of change of thename. Clause 13 deals with power to stop music. Clause 14 deals withsuspension of licence. Clause 15 deals with procedure for cancellationof licence. Clause 16 deals with inspection of licenced premises. Clause17 deals with notice to the licensing authority and clause 18 deals withBlicence fees.

37. Relevant Sections of the Act and the clauses of the Order2005 need reproduction in verbatim infra.

Section 2(14) of the Act

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“(14) “place of public amusement” means any place, wheremusic, singing, dancing, or any diversion, or game, or themeans of carrying on the same is provided and to which thepublic are admitted and includes a race course, circus,theatre, music hall, billiard room, bagatelle room,gymnasium, fencing school, swimming pool or dancing hall; D

Section 2(15)

(15) “place of public entertainment” means any place towhich the public are admitted and where any kind of foodor drink is supplied for consumption in the premises byany person owning or having an interest in or managingsuch place and includes a refreshment room, eating house,coffee house, liquor house, boarding house, lodging house,hotel, tavern, or a shop where wine, beer, spirit, arrack,toddy, ganja, or other kind of liquor or intoxicant or anykind of food or drink is supplied to the public forconsumption in or near such shop;”

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Section 31

Section 31 - Power to make orders for regulation of trafficand for preservation of order in public places, etc. (1) TheCommissioner and the District Magistrate, in areas undertheir respective charges or any part thereof, may make,alter or rescind orders not inconsistent with this Act, for,—

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Clause (w)

(w) (i) licensing or controlling places of public amusementor entertainment; H

(ii) prohibiting the keeping of places of public amusementor entertainment or assembly, in order to preventobstruction, inconvenience, annoyance, risk, danger ordamage to the residents or passengers in the vicinity;

(iii) regulating the means of entrance and exit at places ofpublic amusement or entertainment or assembly andproviding for the maintenance of public safety and theprevention of disturbance thereat; Clause (x)

(x) (i) licensing or controlling with such exceptions as maybe specified, the musical, dancing, mimetic, or theatricalor other performances for public amusement, includingmelas and tamashas;

(ii) regulating in the interest of public order, decency ormorality or in the interest of general public, the employmentof artists, and the conduct of the artists and the audience atsuch performances;

(iii) prior scrutiny of such performance by a Board appointedby the Government or by an Advisory Committee appointedby the Commissioner or the District Magistrate in thisbehalf;

(iv) regulating the hours during which and the places atwhich such performances may be given;”

Clause 2 of Order 2005

2. Definitions:

b) ‘Cabaret’ means a form of dance performed in a place ofpublic entertainment by dancers or artists or any otherperson as a part of musical entertainment;

d) ‘Discotheque’ means a facility provided at a place ofpublic entertainment to customers or patrons for singingor dancing of whatever form or both; j)‘Live band’ means music, live or recorded, provided at aplace of public entertainment, whether or not accompaniedby any form of dancing including cabaret.

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Clause 3

3. Obligation to obtain a Licence:- No person shall openor maintain a place of public entertainment like live band,cabaret, discotheque without obtaining a licence under theprovisions of this Order from the Licensing Authority:

Providing that no such licence shall be necessary forplaces of public entertainment like refreshment room,eating house, coffee house, boarding house, lodging house,hotel, tavern or shop where wine, beer, spirit, arrack orany other kind of liquor, intoxicant or any kind of food ordrink is supplied to the public for consumption on the basisof a valid licence obtained under the relevant provisionsapplicable for establishing and maintaining such places ofpublic entertainment and also supplying theabovementioned things or services and where live band,cabaret or discotheque or any other activity of a similarnature is not performed:

Provided further that no such licence shall also benecessary to conduct Yakshagana, bayalata (field drama),Bharathanatyam, Folk Art, music recital, vocal orinstrumental like Veena, Mrudana etc.

Clause 4

4. Application for Licence: (1) Every person applying for alicence to maintain a place of public entertainment shallmake an application in form No.1 along with the documentsspecified therein and his three recent photographs.

(2) An application can be obtained from the LicensingAuthority on payment of the specified fee under clause 18of this Order.

(3) While submitting the application, the applicant shallappear in person before the Designated Authority and satisfyhim that all the required information and documents havebeen furnished along with the application.

Clause 5

5. Inspection of the premises- The Licensing Authority orany officer not below the rank of Inspector of Police, asmay be authorized by the Licensing Authority may for thepurpose of granting licence, if necessary, hold an inspectionof the site or premises. The Licensing Authority or theOfficer so authorized may, if need be, seek assistance ofany other authority or authorities during such inspection.

Clause 7

7. Grant or refusal of Licence: (1) The Licensing Authorityshall while deciding to grant or refuse a licence under thisOrder have regard to the following aspects, namely:

(a) the interest of public in general;

(b) the status and antecedents of the applicant;

(c) availability of parking place commensurate with theseating capacity; (d) the possible adverse impact on law and order; (e) vicinity of the place to educational or religiousinstitutions. For this purpose vicinity shall mean within adistance of 200(two hundred) metres; (f) that the entertainment does not in any way incitereligious feelings; (g) that the materials used for the structure do not poseany kind of fire hazard; (h) that the proposed entertainment does not promotepublic gambling or the premises shall not be used a gaminghouse or does not encourage prostitution or allow the useof narcotic substances or permit any other illegal activity;

(i) that the licensee shall not organize or allow performanceof shows which are immoral, obscene or indecent and ensurethat there is no obscenity or indecency in dress, movementor gesture or that the performers indecently expose theirperson; A

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A(j) the licensee shall not permit any obscene orobjectionable posters or pictures to be exhibited; (k) that the proposed premises do not cause obstruction,inconvenience, annoyance, risk, danger or damage to theresidents or to passerby of such premises; B

(l) that all adequate precautions have been taken in thepremises in respect of which the licence is to be granted toprovide for the safety, convenience and comfort of thepersons attending the programmes therein.

(2) The Licensing Authority on being satisfied and subjectto the provisions of this Order, may grant a licence to theapplicant in Form-II on such terms and conditions, and forsuch period subject to such restrictions as the LicensingAuthority may determine. No licence shall be granted fora period exceeding one year. A licence can be renewed fora period not exceeding one year at a time:

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Provided that where the Licensing Authority refused togrant licence, it shall do so for reasons to be recorded inwriting and that order shall be communicated to theapplicant:

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Provided further that the licensee may conduct any showor public entertainment only between 10.00 hrs. and 23.30hrs. However, the licensing authority at his discretion maypermit conducting of shows or public entertainment beyond23.30 hrs. on special occasions not exceeding three suchoccasions in a year for each licence.

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Provided further that additional conditions may beimposed by the Licensing Authority during the period ofLicence for reasons to be recorded in writing andcommunicate the same to the licensee.

Clause 8

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8. Seating arrangements:-

(1) The licensee shall not accommodate more than twentypersons per nine square meters in the place of publicentertainment:

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KARNATAKA LIVE BAND RESTAURANTS ASSO. v. STATEOF KARNATAKA [ABHAY MANOHAR SAPRE, J.]

Provided that the entrance, passage, corridor, gangwayand stage shall be deducted for the purpose of calculatingthe seating accommodation.

(2) There shall be an open space of not less than fivefeet wide on any two sides of the premises where live bandor discotheque is performed.

(3) There shall be at least one emergency exit inaddition to the normal doorway fitted with doors which openoutwards.

(4) There shall be openings sufficiently wide enoughto ensure good ventilation or there shall be provision forsufficient good air condition.

(5) One W.C. and one urinal separate for men andwomen each for every fifty persons or less shall be provided.

(6) Any live band performance within the licensedpremises for conducting live band shall be conducted on astage which shall be properly demarcated from the seatingarea. There shall be no inter-mingling of performers withcustomers/guests on or off the stage. There shall be adistance of at least five feet between the stage and firstrow of seating area.

Clause 9

9. Notice Board:- (1) Every licensee shall affix or causeto be affixed at some conspicuous place at the place of PublicEntertainment a board of suitable size on which shall bewritten in Kannada and English, the name and address ofthe licensee and the period of licence.

(2) He shall also specify the seating capacity/maximumcapacity of the premises conducting live band, Cabaret,Discotheque, as the case may be.

(3) He shall also exhibit at a prominent place in the premisesa photo copy of the licence.

Clause 10

10. Renewal of Licence:- (1) Every application for renewal A

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of the licence granted under this Order shall be made atleast thirty days before the day on which such licence is toexpire. The application shall be accompanied by the licenceto be renewed and the amount of fee as specified in clause18.

(2) Where an application is made in accordance with sub-clause(1), the earlier licence shall be deemed to be in forcetill the renewal or refusal of such licence is communicatedto the applicant.

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(3) Application for renewal of a licence, not made inaccordance with the provisions of this clause, shall be liableto be rejected by the licensing authority.

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Clause 11

11. Licence shall terminate with the transfer of business:-A licence granted under this Order for maintaining a placeDof public entertainment shall not be transferable orassignable to any other person. Where such persontransfers or assigns his business to any other person orenters into an agreement with another person, involvinghis giving up of the conduct or control over the business,Ethe licence granted to him shall stand terminated on andfrom the date of such transaction:

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Provided that in the case of death of the licensee, his heiror legal representatives may make an application withinone month from the date of death to the Licensing Authorityseeking continuance of the licence for the un-expired termFof the licence. No fee shall be charged for such continuanceof licence.

Clause 12

12. Prohibition of change of name:- A licensee shall notmake any change in the name of the establishment or usehis premises or allow any other person to use the premisesfor the purpose of any other type of entertainment whichhe is not authorized under the licence.

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Clause 13

13. Power to stop music: Without prejudice to theconditions specified in the licence, the Licensing Authoritymay, by a general or special order made in this behalf, directthat no music shall be played or allowed to be played duringsuch time as he may direct.

Clause 14

14. Suspension of licence: If any person maintaining a placeof public entertainment permits prostitution or permitspersons to meet or remain in such place for the purpose ofplanning or carrying out an illegal actitity or violates any ofthe conditions of this order, the licensing authority shallhave the discretion to suspend the licence for such periodas he may think fit and direct such person to close the placefor such period as he may specify. The person to whomsuch direction is issued by the licensing authority shallcomply with such direction. However, the period ofsuspension shall not exceed 30 days at a time.

Clause 15

15. Procedure for cancellation of Licence: No licencegranted under this Order shall be cancelled until the holderof the licence has been given a reasonable opportunity ofshowing cause why his licence should not be cancelled.

Clause 16

16. Inspection of Licensed Premises: Every personmaintaining a place of public entertainment shall, at all timesallow free access to such place to the Licensing Authorityor any police officer not below the rank of a Police Inspectorhaving jurisdiction over the area or authorized by theLicensing Authority to hold inspection as deemed necessaryto ensure and satisfy that the Licensee has complied withthe provisions of this Order.

Clause 17

17. Notice to the Licensing Authority: Every person shall,as soon as he voluntarily closes the place of public A

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Aentertainment in respect of which a licence has been grantedunder this Order, shall intimate such closure to theLicensing Authority.

Clause 18

18. Fee:- Licensing Fee for every licence per annum, shallBbe as below:

(iii) Application form fee Rs.500/-”

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38. There are two Latin legal maxims, which need to be kept inmind while deciding the questions arising in this appeal. One is “SalusPopuli Supremo Lex” which means the safety of the people is thesupreme law and the other is “Salus republicae supremo lex” whichDmeans safety of the State is the supreme law.

39. In our considered view, it is the prime duty, rather statutoryduty, of the Police personal/administration of every State to maintainand give precedence to the safety and the morality of the people and theState. Indeed, both are important and lie at the heart of the doctrine thatEthe welfare of an individual must yield to that of the community. The Actand the Order 2005 are enacted keeping in view the safety and themorality of the people at large.

40. In our view, whenever the impugned action is challenged onthe touchstone of Articles 14 and 19(1)(g) of the Constitution, we haveFto keep in mind the well-settled principle of law laid down by this Courtwherein this Court has examined lucidly and succinctly the scope andambit of Articles 14 and 19(1)(g) .

41. So far as Article 14 is concerned, it is useful to refer to thelaw laid down in two decisions of this Court reported in BudhanGChoudhry vs. State of Bihar, AIR 1955 SC 191 and Ram KrishnaDalmia & Ors. vs. S.R. Tendulkar & Ors. AIR 1958 SC 538.

42. In the case of Budhan Choudhry (supra), the ConstitutionBench of seven Judges of this Court explained the true meaning andscope of Article 14 as follows:

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“5. … It is now well established that while Article 14 forbidsclass legislation, it does not forbid reasonable classificationfor the purposes of legislation. In order, however, to passthe test of permissible classification two conditions mustbe fulfilled, namely, (i) that the classification must be foundedon an intelligible differentia which distinguishes personsor things that are grouped together from others left out ofthe group, and (ii) that that differentia must have a rationalrelation to the object sought to be achieved by the statutein question. The classification may be founded on differentbases; namely, geographical, or according to objects oroccupations or the like. What is necessary is that theremust be a nexus between the basis of classification and theobject of the Act under consideration. It is also wellestablished by the decisions of this Court that Article 14condemns discrimination not only by a substantive law butalso by a law of procedure.”

43. In Ram Krishna Dalmia (supra), this Court reiterated theprinciples which would help in testing the legislation on the touchstone ofArticle 14 in the following words:

“(a) that a law may be constitutional even though it relatesto a single individual if, on account of some specialcircumstances or reasons applicable to him and notapplicable to others, that single individual may be treatedas a class by himself;

(b) that there is always a presumption in favour of theconstitutionality of an enactment and the burden is uponhim who attacks it to show that there has been a cleartransgression of the constitutional principles;

(c) that it must be presumed that the legislature understandsand correctly appreciates the need of its own people, thatits laws are directed to problems made manifest byexperience and that its discriminations are based onadequate grounds; (d) that the legislature is free to recognise degrees of harmand may confine its restrictions to those cases where theneed is deemed to be the clearest; A

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(e) that in order to sustain the presumption ofconstitutionality the Court may take into considerationmatters of common knowledge, matters of common report,the history of the times and may assume every state of factswhich can be conceived existing at the time of legislation;and (f) that while good faith and knowledge of the existingconditions on the part of the legislature are to be presumed, ifthere is nothing on the face of the law or the surroundingcircumstances brought to the notice of the court on which theclassification may reasonably be regarded as based, thepresumption of constitutionality cannot be carried to the extentof always holding that there must be some undisclosed andunknown reasons for subjecting certain individuals orcorporations to hostile or discriminating legislation.”

(emphasis supplied)

44. These principles were reiterated by this Court in ShashikantLaxman Kale & Anr. vs. Union of India & Anr. (1990) 4 SCC 366and in a recent decision of this Court in State of Maharashtra & Anr.vs. Indian Hotel & Restaurants Association & Ors. (2013) 8 SCC519.

45. Similarly, so far as Article 19(1)(g) of the Constitution isconcerned, this Article accords fundamental rights to carry on anyprofession, occupation, trade or business. However, the right guaranteedunder clause (g) is made subject to imposition of appropriate reasonablerestrictions by the State in the interest of general public under clause(6).

46. As and when the question arises as to whether a particularrestriction imposed by law under clause (6) is reasonable or not, suchquestion is left for the Court to decide. The test of reasonableness isrequired to be viewed in the context of the issues, which faced theimpugned legislature. In construction of such laws and while judgingtheir validity, the Court has to approach the issue from the point offurthering the social interest, moral and material progress of thecommunity as a whole. Likewise, while examining such question, the Court cannot proceed on a general notion of what is reasonable in itsabstract form nor the Court can proceed to decide such question fromthe point of view of the person on whom such restriction is imposed.What is, therefore, required to be decided in such case is whether therestrictions imposed are reasonable in the interest of general public ornot.

47. This Court has laid down the test of reasonableness in thecase of State of Madras vs. VG Row, AIR 1952 SC 196 and verysuccinctly said that it is important, in this context, to bear in mind that thetest of reasonableness, wherever prescribed, should be applied to eachindividual statute impugned and no abstract standard or general patternof reasonableness can be laid down as applicable to all cases. The natureof the right alleged to have been infringed, the underlying purpose of therestrictions imposed, the extent and urgency of the evil sought to beremedied thereby, the disproportion of the imposition, the prevailingconditions at the time, should all enter into the judicial mind.

48. This Court has further ruled that the expression “in the interestof general public” occurring in clause (6) is an expression of wide importwhich comprehends in it public order, public health, public security, morals,economic welfare of the community and lastly objects mentioned in PartIV of the Constitution. (See Municipal Corporation of the City ofAhmedabad & Ors. vs. Jan Mohammed Usmanbhai & Anr., (1986)3 SCC 20 and Deepak Theatre, Dhuri vs. State of Punjab & Ors.,1992 Supp(1) SCC 684).

49. This Court has also ruled, as mentioned above, that the Statehas a right to regulate running of any business by putting reasonablerestrictions under clause (6) in the interest of general public. It was heldin the case of Minerva Talkies, Bangalore & Ors. vs. State ofKarnataka & Ors. 1988 Supp. SCC 176 that the right to carry on thebusiness of exhibiting cinematograph films, which is governed by theprovisions of Karnataka Cinemas Regulation Act and the Rules framedthereunder, is subjected to the rigor of reasonable restrictions and theState Government has a power to limit/restrict the exhibiting number ofshows in the Talkies in a day. It was held that such provisions arenecessary to ensure public safety, health and other allied matters. It washeld that imposing such restriction is essentially regulatory in nature andserves the purpose of the Act.

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A 50. After taking note of the general principle of law governingthe field, which we have to keep in mind, we have to examine the questionas to whether the Order 2005, impugned in the appeal, has created anydiscrimination or whether the Order 2005 is in any way unreasonable orarbitrary and lastly, whether it violates the appellant’s fundamental rightguaranteed under Article 19 (1)(g).B

51. Having examined the questions in the light of aforementionedgeneral principles of law, we are of the considered opinion that the Order2005 does not suffer from any legal infirmity and is thereforeconstitutional. This we say for more than one reason as detailed infra.

C52. First, Section 31 is a valid piece of legislation. Itsconstitutionality is not questioned. Second, clauses (w) and (x) of Section31 empowers the Commissioner of Police to issue Order in respect ofthe matters specified therein. Third, it is in exercise of this statutorypower, the Commissioner of Police, Bangalore has issued the Order2005 to regulate, control and supervise the activities specified in clause(w)Dand (x). Fourth, in the light of these three reasons, no fault can be foundso far as the source of power of the Commissioner of Police to issue theOrder 2005 is concerned.

53. Fifth, the Order 2005 has been issued to deal with threeactivities, which are covered by the expression “Public Entertainment”Eas defined in Section 2(15) of the Act. In other words, the appellant’sbusiness activity, viz., running of the restaurants and display of LiveBand 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 ofFOrder 2005. Indeed, the Order 2005 has been issued only with a view tocontrol, regulate and supervise the three performances in the restaurants.Since these performances are displayed in a restaurant where publichas an access and, therefore, in the larger public interest, theseperformances have to be controlled, regulated and supervised by imposingGreasonable restrictions in law under clause (6) of Article 19.

55. Seventh, making it obligatory to obtain licence under Clause 3to display Cabaret, Discotheque or Live Band is a reasonable restrictionon the appellant’s fundamental right to carry on the business of runningthe restaurants.

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56. Indeed, controlling of any business by asking its owner toobtain licence to do such business is held to be a reasonable restrictionon citizen’s 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 Sub-clauses (a) to (l) of Clause7, Clause 8 and Clause 9 of the Order 2005 are well conceived conditionsin public interest. These conditions ensure the safety and the welfare ofthe general Public who regularly visits such restaurants to take food andwitness the live performances of the artists in the restaurants.

58. Indeed, if these safety measures are not adhered to by theowners of the restaurants while running their restaurants, the generalpublic would always have a risk of subjecting themselves to the happeningof any untoward incident endangering their life and safety.

59. At this stage, it is also necessary to take note of variouscompliances, which are required to be made by the Licensee to run theirrestaurants.

60. Sub-clause (a) of Clause 7 deals with the interest of public ingeneral. Clause (b) deals with the status and antecedents of the applicantwho applies for running the restaurant. Clause (c) deals with availabilityof parking place commensurate with the seating capacity. Clause (d)deals with possible adverse impact on law and order. Clause (e) dealswith vicinity of the place (restaurants) to educational or religiousinstitutions, i.e., 200 meters. Clause (f) provides that entertainmentdisplayed should not in any way incite religious feelings of any particularcommunity. Clause (g) provides that the material used for the structurein running the restaurants should not pose any kind of fire hazard. Clause(h) provides that the proposed entertainment should not promote publicgambling nor the premises be used as a gaming house nor any attemptbe made to encourage a prostitution nor the premises be allowed to beused for sale or consumption of narcotic substance nor the licensee ispermitted to carry on any kind of illegal activities in the premises. Clause(i) provides that licensee shall not organize or allow performance ofshows which are immoral, obscene or indecent and will ensure that thereis no obscenity or indecency in dress, movement or gesture or/and theperformers does not indulge in any kind of indecency and in exposingtheir person. Clause (j) provides that licensee shall not permit any obscene A

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Aor objectionable posters or pictures to be exhibited in the premises. Clause(k) provides that the proposed premises do not cause obstruction,inconvenience, annoyance, risk, danger or damage to the residents or topassers by of such premises and lastly clause (l) provides that it must beensured that all the aforementioned precautions have been taken in thepremises in respect of which licence is to be granted to provide for theBsafety, to avoid any inconvenience likely to cause to public and to ensurefull comfort to the persons attending the programs displayed in therestaurants.

61. So far as Clause 8 is concerned, it is important as it deals withseating arrangements in the restaurants. It sets out six parameters inCsub-clauses (1) to (6) to control the sitting arrangements in the restaurants.It also provides that every restaurant shall have at least one emergencyexit in addition to normal doorway fitted with doors which open outwardin the event of occurrence of any fire hazard. Similarly, Clause 9 providesthat how the Notice Board would be displayed and what will be itsDcontents.

62. In our considered opinion, the conditions specified in Clauses7, 8 & 9 directly deal with the public safety, comforts, convenience,morality and law and order and we have not been able to find any kindof unreasonableness or arbitrariness in any of the abovementioned clausesEso as to hold that they are unworkable for running the restaurant and todisplay the three performances.

63. In our view, those who find themselves unable to ensurecompliances of these conditions or feel that it is not possible for them tocomply, may not display the performances in their restaurants.F

64. As held above, the public interest, the welfare and the safetyof general public always override the right of an individual. There is noprohibition for any individual to carry on such business. However, if hewishes to carry on such business, he has to follow the norms and thestatutory regulation framed for carrying on the business. He cannot beGheard to say that he will carry on the business but without ensuring thenorms and the regulations framed for the purpose.

65. In our opinion, here comes the application of the two maximsquoted supra while determining the rights of an individual qua public andthe State.

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66. Indeed, we can take judicial notice of an incident occurred inrecent past in a restaurant in Mumbai where life of several innocentpeople sitting in the restaurants were lost due to lapses in ensuringcompliance of safety measures. Yet another incident of the similar natureoccurred few years before in Upahar Theater in Delhi where severalinnocent people lost their life due to non-observance of safety measures.

67. When such incidents occur, they never obliterate from thememories of the citizen and leave a message to all the stakeholders thatsteps for strict compliance must be taken to avoid any such recurrencein future at any place. We hope that all the stakeholders will keep ourobservations in mind.

68. Ninth, all the measures set out in Clauses 7, 8 and 9 need to becomplied with in letter and spirit by every restaurant owner beforeobtaining the licence and that they must continue to observe itscompliances 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 thepowers of the licensing authority in granting or refusing the licence in asmuch as the licensing authority is now required to give reasons forrejecting the licence.

70. Such rejection can always be made subject matter of challengein the Court of law by an aggrieved. A provision of this nature eliminatesany kind of arbitrariness on the part of licensing authority while consideringthe grant or rejection of the licence under Order 2005.

71. This takes us to examine another question as to whether anycase of arbitrariness or/and discrimination in issuing Order 2005 as urgedby the appellant is made out.

72. We are, however, unable to find any case of arbitrariness ordiscrimination having been made out by the appellant so as to attract therigor of Article 14 of the Constitution.

73. Indeed, the Order 2005 does not create any discriminationbetween the two alike. The restaurants which are engaged in displayingthe three performances specified in Clause 2 (b), (d) and (j) of the Order2005 are under legal obligation to take licence under Clause 3.

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A74. Learned counsel for the appellant, however, pointed out theproviso to Clause 3 that it is this proviso which creates a discriminationinasmuch as there does not appear to be any justifiable reason to excludethose restaurants from obtaining the licence which are conductingYakshagana, Bayalata (field drama) or Bharat Natyam, folk Art, Musicrecital, vocal or instrumental like Veena or Mrudana etc.B

75. We do not find any merit in this submission though look attractiveat its first blush. First, it is for the Police Commissioner to decide in itsdiscretion having regard to the totality of entire fact situation as to whatshould be brought within the ambit of the Order 2005 and what shouldbe left out from its clutches. Second, there appears reasonable distinctionCbetween the two performances because as rightly urged by therespondent, the performances specified in the proviso, are not usuallyperformed in restaurants but are performed in theaters or/and auditoriumsas one time performance by the artists whereas the three performingitems namely - Cabaret, Discotheque and Live Band Music are theDactivities which are regularly performed and attract more crowd andlastly the items specified in proviso even if performed in restaurantsdoes not involve any kind of indecency or obscenity whereas other threeperformances may unless controlled. In our view, proviso seems moreclarificatory in nature.E76. In any case, in our view, if the Commissioner finds that theperformances specified in proviso may also be brought within the ambitof the Order 2005 then he is always at liberty to include any suchperformance in Clause 3.

77. We have perused the decisions cited by the learned counselFfor the appellant mentioned above. In our opinion, there can be nodispute with the law laid down in these cases. They are, however,distinguishable from the facts contained therein as compared to the factsof the case at hand.

78. In the light of the foregoing discussion, we are of the consideredGview that the Order 2005 does not suffer from any arbitrariness orunreasonableness and nor it infringes the fundamental right of theappellant guaranteed under Article 19 (1)(g) of the Constitution of India.In other words, in our considered view, both the Courts below werejustified in upholding the Order 2005 as being constitutional and legal.

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79. Now we uphold the Order 2005, we consider it apposite todirect the respondent-Police Commissioner, Bengaluru to verify andensure strict compliance of the licence conditions, including all theconditions of the Order 2005 in relation to all the Licensees in whosefavour, the licences have been issued so far.

80. The Commissioner will further verify and ensure that thoserestaurant owners who have not obtained licences so far and yet runningtheir restaurant without holding the licence, such restaurant owners begranted some reasonable time to apply for obtaining the licence afterensuring compliances as provided in the Order 2005, which alone willenable them to run their restaurants in conformity with the requirementsof the Order 2005.

81. Failure to obtain the licence after granting a reasonable timeto the restaurant owners would result in closure of their restaurantsafter giving them notice of the closure.

82. Before parting, we consider it opposite to take note of onefact that though clause 7 (K) of the Order 2005 rightly provides in generalto ensure that the proposed premises do not cause any obstruction,inconvenience, annoyance, risk, danger or damage to the residents or topasserby of such premises, but what we find is that there is no specificclause/condition dealing with control of noise pollution which is likely tocreate or rather bound to create due to regular display and performanceof 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 toresidents of the nearby area due to any of the three performances in anyrestaurant and that remedial steps are taken in that behalf.

83. Similarly, with a view to avert any untoward incident due tobreaking of fire may be for any reasons in the licensed premises,appropriate specific safety measures must be carried out under theguidance of team of experts. These steps are in public interest and itshould be given precedence by the Commissioner of Police not only atthe time of granting of license but also by doing regular inspection of thelicensed premises without any lapse on his part.

84. We hope the Commissioner will take into consideration theseobservations.

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570SUPREME COURT REPORTS[2018] 1 S.C.R.

A85. In view of foregoing discussion and subject to aforementioneddirections, the appeal fails and is accordingly dismissed.

Divya Pandey

Appeal dismissed.

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