Badshah Restaurant vs Commissioner of Police, Hyderabad

The order passed by the Commissioner of Police, Hyderabad city, Hyderabad, in Memo No. L&O/A3/1394/94, dated 7-2-1998 is impugned in this writ* petition.

The petitioner herein is a Restaurant and represented by its Proprietor in this proceedings. The proprietor of the petitioner claims very rich experience in running hotel business. The respondent issued on 15-11-1994 ''No Objection'' letter addressed to the Chief Medical Officer, Municipal Corporation of Hyderabad, for establishment of ''Badshah Restaurant*. In the same manner the Municipal Corporation of Hyderabad has also issued ''No Objection'' letter on 28-11-1994. Based upon the said letter the petitioner is stated to have made huge investment in renovating the premises by making some additions and alterations to the existing premises. The petitioner is stated to have made all installations, furniture and fixtures for running of a standard Bar and Restaurant with Orchestra,. Singing and Dancing. The respondent is stated to have been granted amusement licence dated 10-6-1994 valid upta 31-12-1994. The petitioner thereafter applied for renewal of amusement licence on 29-12-1994 by paying the required fee. The respondent through proceedings dated 18-5-1995 refused renewal of Amusement licence without any valid reasons, according to the petitioner. As such the petitioner filed W.P.No.11564/95 against the respondent and the same was allowed by this Court on 4-7-1995 directing the respondent to renew the amusement licence as per Rules. The respondent preferred W.A.No. 1367/95 against the said Judgment. However, the respondent herein by his order dated 22-3-1997 granted amusement licence upto 31-12-1997.

The petitioner filed application on 16-12-1997 for renewal of the amusement licence from" 1-1-1998 to 31-12-1998, enclosing the challan evidencing payment of the required fee. The respondent through the impugned proceedings dated 7-2-1998 rejected the application of the petitioner on the ground "that it has been reported that the Management of the Restaurant under the guise of conducting Music, Singing and Indian Dances are employing young women and girls and indulging them in prostitution and obscene dances thereby corrupting the minds of persons." It is this order, which is impugned in this writ petition.

The impugned order, according to the petitioner, is not only illegal, but actuated by mala fides, apart from being violative of the orders passed by this Court.

It is stated that the order is vague in its terms. There are no reports against the petitioner about any such involvement in prostitution, obscene dances as alleged in the impugned order. On the other hand, the concerned Assistant and Deputy Commissioners of Police by letter dated 24-12-1997 expressed their no objection to conduct dances etc., purely in accordance witii the conditions of the amusement licence. The respondent has deliberately concocted this allegation for the purpose of rejecting the application of the petitioner. At any rate, a copy of the report received by the respondent is not supplied to the petitioner. The order based on such report, which is not supplied to the petitioner is violative of principles of natural Justice. No opportunity whatsoever was given to the petitioner before rejecting the application to the petitioner for renewal of licence. It is on these grounds the impugned order is questioned.

It is also required to note that in the affidavit filed, the petitioner had chosen to characterise the respondent as a dictator by stating'' ''the respondent behaves like a dictator and has no respect for law or for the orders of this Hon''ble Court and has no respect for the fundamental rights of the citizens...." We shall have to say something about the manner and method in which the petitioner had chosen to attack the impugned order elsewhere in this order.

Whether the petitioner has got any fundamental right to obtain the amusement licence from the respondent-Commissioner and as to whether a statutory authority could be characterised as a dictator without there being any supporting material ? We shall deal with the said issues in the course of this order.

In the counter affidavit; it is inter alia stated that the Commissioner of Police has granted licence on 21-3-1995 for establishment of Badshah Restaurant as per the application of the petitioner dated 29-12-1994. It is further stated that the licensee was granted licence to start a Restaurant only, but not a licence for conducting music and dance in the restaurant.

However, it is conceded that the petitioner was granted amusement licence valid upto 31-12-1997, pursuant to the directions of this Court in W.P.No. 1367/95. It is admitted that the petitioner had applied for renewal of the amusement licence from 1-1-1998 to 31-12-1998 and the same was rejected, as there were specific instances where the petitioner has violated the conditions of licence granted to him, while running the restaurant by involving itself in :

(i) Cr.No.196/97 u/s 294(a) and 109 IPC of Ramgopalpet Police Station;

(ii) Petty case No.631/97 u/s 21/ 76 C.P. Act of Ramgopalpet Police Station.

It is also stated that on 4-9-1997 at 2230 hours the premises of Badshah Restaurant was raided by the Police and the Manager, by name Abdul Saleem and eight young girls aged between 19 and 22 years were apprehended as the said girls were found dancing with semi-nude dresses'' by exposing their breasts and thighs to the Customers'' and thus violated the conditions of licence. A case in Cr.No. 196/97 u/s 294(a) read with 109 IPC has been registered on the file of Ramgopalpet police Station. However, the trial Court acquitted the accused on 23-12-1997. The respondent is exercising his statutory power had taken the relevant facts into consideration, including the reports of the concerned subordinate Police Officers. The respondent had thought it fit to reject the application of the petitioner on me basis of the reports available on record and also on the basis of the adverse instances that had come to the notice of the respondent.

Now a look at me impugned order :

"Your request for renewal of Amusement licence to hold Music, Singing and Indian Dances in your Restaurant for the year 1998 was considered. However, it has been reported that the Management of the Restaurant under the guise of conducting Music, Singing and Indian Dances are employing young women and girls and indulging them in prostitution and obscene dances thereby corrupting the minds of persons. Hence your request is rejected on Law and Order point of view and in the interest of General Public."

Sri E. Ayyapu Reddy, learned Counsel for the petitioner submits that the impugned order passed by the respondent suffers from incurable infirmities. It is urged that the order is vitiated for non application of mind. There are no adverse reports against the petitioner from any of the Police Officers. The respondent had failed to take the favourable reports submitted by the Assistant and Deputy Commissioners of Police of the area concerned and eshewcd the relevant factors from consideration. The impugned order is violative of fundamental rights guaranteed by the Constitution under Article 19(1)(g). The order is patently arbitrary as no reasons are assigned by the respondent. It is also violative of principles of natural justice.

The learned Government Pleader for Home submitted that the petitioner has no right, much less any fundamental right to get the amusement licence from the respondent. Grant or refusal of licence by the respondent in exercise of the statutory power conferred by the Hyderabad City Police Act, 1348 F (Act No.IX of 1348 F) (for short ''the Act'') and the Rules framed thereunder, depends upon variety of factors and circumstances and the Commissioner of Police in the instant case had taken the relevant factors into consideration in refusing to renew the licence of the petitioner. The impugned order" passed by the respondent is based on reports and other material available on record. The petitioner has no right to insist that he should be given an opportunity before rejecting the application for renewal of the licence. The past activities of the petitioner were rightly taken into consideration by the respondent-Commissioner before passing the impugned order. The order is intra vires. The petitioner''s business is not closed down on account of refusal to renew the amusement licence and there is no restriction for carrying on its hotel business. Therefore, the question of violation of the fundamental right of the petitioner guaranteed by Article 19(1)(g) of the Constitution of India does not arise.

Before dealing with the rival submissions, it would be apt to have a look at the "Rules relating to places of public entertainment in the City of Hyderabad, 1351 F." The said Rules are framed in exercise of the power under clauses (f), (g) and (h) of subsection (1) of Section 21 of the Hyderabad City Police Act, 1348 F. The Rules relate to the establishment, regulation and licensing of places of public entertainment. Rule 106 of the said Rules prohibits public display of any sport or performance of a drama or dance or holding of any performance or exhibition in such premises, without a licence. It would be appropriate to have a look at Rules 106 and 108 of the said Rules.

"Rule 106 : Compulsion of Licence for Performance :

No person has been granted a licence for such premises shall be authorised, without obtaining a licence in form (c) annexed to these rules, (which shall, for the purpose of this Chapter, be called licence for performance) to permit a public display of any sport or performance of a drama or dance or holding of any performance or exhibition in such premises.

Compulsion of Licence for Performance and Performance not to be held at an unlicensed place :

No person shall be authorised to hold public demonstration of any drama or music and dance party or exhibition at such area without obtaining a licence and no person, before licence has been issued shall hold any such demonstration or exhibition etc., at any such place, which is not permitted by the Commissioner of Police.

Rule 112 of the said Rules confers power upon the Commissioner of Police to refuse the licence in respect of demonstrations mentioned in the application, if in his opinion, they are :

(a) Obscene or immoral

(b) ....

(c) ...

(d) ...

(e) Objectionable for any other reasons.

Rule 115 of the Rules says that no person to whom licence for demonstration has been issued under these rules shall be authorised to permit any such matters mentioned below :

(i) Indecent or obscene talk;

(ii) ....

(iii) Made dressing obscene drama or action ;

(iv) Loathsome personation of any dead or living person;

(v) ....

(vi)....

(viii) Any such act which is likely to cause danger or loss to the public.

It is the accepted position that there is no provision for renewal of the licence as such; but, the same is required to be applied afresh every time by the interested person and the same has to be considered in accordance with law. It is not the case of renewal of a licence. The application for grant of licence, itself, is rejected under the impugned order.

The records produced pursuant to the Rule Nisi are perused.

The record reveals that "the Assistant Commissioner of Police, Ramgopalpet expressed no objection to conduct dances etc., purely in accordance with the conditions laid down in the amusement licence beyond 31-12-1997 and to the same effect is the observation of the Deputy Commissioner of Police, North zone. However, the Additional Deputy Commissioner of Police, Task Force, North Zone, Hyderabad, through letter dated 21-1-1998 informed the Commissioner of Police, inter alia, that "the Management of the restaurants under the guise of conducting music, singing and Indian dances in their restaurants are employing young women and girls and indulging them in prostitution and obscene dances thereby corrupting the minds of persons." Accordingly, the Additional Deputy Commissioner of Police, Task Force, North Zone, requested the Commissioner to reject the application of the petitioner for grant of amusement licence. Thus, it is clear that the petitioner is not right in asserting that all the authorities have recommended the case of the petitioner for grant of amusement licence. It is, however, urged by the learned Counsel for the petitioner that the reasons assigned by the Commissioner of Police for rejecting the application arc totally vague and indefinite and such reasons cannot constitute a valid ground for rejecting the application of the petitioner. The learned Counsel for the petitioner placed reliance upon an un-reported judgment of this Court in W.P.No.l 1099/95 dated 11-7-1995. It would be apposite to have a look at the impugned order in that writ petition. It inter alia reads as under :

"During the enquiries by the local police, it was found that the Licensee had violated certain conditions by conducting nude dances earlier in Maharaja Bar and Restaurant. Thus, it is very clear that the licensee is habitual in violating the licence conditions. The display of vulgarity results in unruly behaviour among the customers and creates serious Law and Order problems which have to be dealt with by the Police by use of force. In order to prevent these dances, a constant vigil has to be kept by the Police which involves surprise checks, raids etc. As a great deal of force has to be deployed for this purpose, it is felt that it is better to avoid giving permissions for these dances."

Dealing with the impugned order therein, this Court observed that :

"There is no doubt that the impugned order do not disclose the particulars of enquiries said to have been made by the local police. Equally, they are silent about the particulars as to when and how the petitioners habitually violated the licence conditions. Therefore, I have no option but to accept the contention that the reasons given in the impugned orders refusing to renew the licences are vague."

This Court further observed :

"It is obvious that the impugned orders have been passed more as a preventive measure to avoid problems in the maintenance of Law and Order. The object may look laudable. It is not difficult to understand the anxiety or zeal of the Commissioner of Police to nip at the bud, the problems that are likely to arise due to grant of amusement licences. They are known to one and all. But, the law does not permit him to do so."

It is rather difficult to appreciate as to how the ratio of that judgment would apply to the facts of the case on hand. Here is a case where, the Commissioner of Police refuse to grant licence in favour of the petitioner for the year 1998 on the basis of the reports received by him about the management of the Restaurant that under the guise of conducting Music, Singing and Indian dance, it was employing young women and girls and ,, indulging them in prostitution and obscene dances resulting in corrupting the minds of the persons. Such decision is taken by the Commissioner of Police purportedly in the public interest. It was not based upon the basis of registration of cases against the petitioner, as was the case in W.P.No. 11099/95, upon which reliance was placed by the learned Counsel for the petitioner. The decision, in my considered opinion, has no application whatsoever to the facts of the case on hand. The impugned order passed by the Commissioner of Police cannot be reviewed* on the basis of the principle laid down by this Court in WP.No.11099/95.

The Judgment rcnderedby a Division Bench of this Court in WP No.4074/96 and batch, dated 4-2-1997 is of no help. The Division Bench had not adverted to any of the issues that arise for consideration in the present writ petition. It is true that WANo. 1366/95 preferred against the Judgment rendered by my learned brother Justice D. Reddeppa Reddi in W.P.No. 11099/95, came up ''for consideration before a Division Bench of this Court and the Bench had dismissed the appeal holding :

"No doubt, in the appeal several grounds have been taken assailing the order of the learned Judge, but the fact remains that all those grounds do not require to be considered by us as they were properly considered by the learned Judge in the order under challenge. The appellants in the memorandum of grounds have again referred to the criminal cases booked against the petitioners. The learned Judge on verification of the record produced by the learned Government Pleader found that the cases referred to in the counter affidavit do not form part of the record and came to the conclusion that it is difficult to sustain the impugned orders on the strength of the cases referred to in the counter affidavit. Since the learned Judge reached the above conclusion on a consideration of the record placed before him, we are not inclined to interfere with the same. The learned Judge has elaborately considered the rival contentions and came to the conclusion that the impugned orders are not sustainable and directed renewal of the licences. We are also of the view that the learned Judge has correctly appreciated the decisions relied on by the parties. We, therefore, see no justification to interfere with the order of the learned Judge. The writ appeal is, therefore, dismissed."

It would be pertinent to recall the observation made by a Division Bench of this Court in the judgment in WA.No.615 of 1997 dated 10-7-1997, while dealing with the very same question as to whether refusal to grant amusement licence would infringe the fundamental right guaranteed under Article 19(1)(g) of the Constitution of India and observed :

"Freedom of trade and business which the petitioner-restaurant has alleged to have been violated, it appears, has been confused to be a right of the restaurant, which, in itself, is neither a trader nor a businessman. Article 19(1)(g) guarantees to all citizens of India ''to practise any profession, or to carry on any occupation, trade or business.'' Thus, unless it is shown that some one who is a citizen of India and has been in any trade or business which is interfered with, he cannot claim any right under Article 19(1)(g). The right under Article 19(1)(g) is accordingly not recognised as a right of a company or Corporation, but is recognised as a right of the persons if they are citizens of India who form or constitute a Company or a Corporation."

In the very same Judgment, the Division Bench took the view that the past conduct of a person can certainly be taken into consideration in considering whether such person deserves a licence or not and observed :

"We have, however, failed to understand how without referring to the past conduct of a person, it can be found whether he is a notorious scoundrel or of a bad character, unless antecedents of the person seeking , licence is known, it will not be possible to say whether he or she deserves a licence or not. We thus find good reasons to disagree with the view taken by the single Judge and hold that the Commissioner of Police has not exceeded his jurisdiction and/or interfered with the freedom of trade and business of the petitioner-restaurant unreasonably by declining to grant the licence sought for the so called entertainment/amusement programmes.''''

Now, the crucial question that would arise for consideration is as to whether the petitioner has got any statutory right to get the amusement licence ? The question whether the action of the respondent in refusing to grant amusement licence is contrary to the principles of natural Justice, would depend upon the answer to the said question.

I am of the considered opinion that no person has any right under the provisions of the Act and the Rules framed thereunder to get amusement licence as a matter of right. No such right is conferred upon any individual and similarly no such statutory duty is imposed upon the Commissioner of Police to grant the amusement licence as and when asked for by an interested person. It is true the statutory power conferred upon the Commissioner of Police is required to be exercised fairly and reasonably. Every person who applies for grant of amusement licence, undoubtedly, has a right for consideration of his application in accordance with law. The Commissioner of Police, while considering such application for granting amusement licence is required to take decision in accordance with law and provisions of the Act and the Rules framed thereunder. He is required to take the relevant factors into consideration and eshew the irrelevant facts. An important aspect that was not taken into consideration by this Court in the earlier decisions is that there is no provision for renewal of amusement licence. Every time the concerned individual has to apply afresh for grant of the licence and every time such request is required to be considered by the authority afresh and in accordance with law. There is no provision for granting renewal, as in the case of various other enactments.

In Chingleput Bottlers Vs. Majestic Bottling Company, , the Apex Court while considering the provisions of Tamil Nadu Arrack (Manufacture) Rules, 1981, relating to the granting of licence for manufacturing and supplying of bottled arrack to the whole-sale and retail licensees, considered the question as to whether the applicant has any right or expectation-to get licence, and observed :

"It must follow that the grant of a liquor licence under Rule 7 of the Rules does not involve any right or expectation but it is a matter of privilege. The Commissioner was therefore under no obligation either to disclose the sources of information or the gist of the information that he had. All that was required was that he should act fairly, and deal with the applications without any bias, and not in an arbitrary or capricious manner."

While dealing with the question relating to the applicability of principles of natural Justice in such a situation, the Apex Court observed :

"It is well-settled that, while considering the question of breach of the principles of natural justice, the Court should not proceed as if there are inflexible rules of natural Justice of universal application. Each case depends on its own circumstances. Rules of natural justice vary with the varying constitutions of statutory bodies and the rules prescribed by the Legislatures under which they have to act."

In the aforesaid case also, the Commissioner of Excise, rejected the application of the petitioner for grant of licence under Rule 7 of the Rules on the basis of a report of the Collector and other information and also on the representation stated to have been made by one Majestic Bottling Company. The same was questioned on the ground of violation of the principles of natural Justice. It was urged that the Commissioner had acted in flagrant violation of the rules of natural justice in not furnishing the petitioner a copy of the report of the Collector and other extraneous material comprising a representation received from Messrs Majestic Bottling Company along with various other documents. Nor had the Commissioner disclosed to the petitioner the substance of the report of the Collector or other information gathered by him. The Apex Court repelled the contention and observed :

"We do not think that the Commissioner was under an obligation to furnish Messrs Chingleput Bottlers with a copy of the report submitted by the Collector or of the representation made by Messrs Majestic Bottling Company. This equally applies to the two-page note appearing in the file of Messrs Chingleput Bottlers. It was quite proper for the Commissioner to make secret and discreet inquiries from confidential sources. There was no duty cast on him to disclose to Messrs Chingleput Bottlers the sources of adverse information or to give them an opportunity to confront the informants."

In the same judgment, the Apex Court after referring to Mclnms v. Onslow Fane, 1978 (3) All. ER 211 noticed the distinction between initial applications for grant of licence and the revocation, suspension or refusal to renew licences already granted and observed :

"In application cases, on the other hand, nothing is being taken away, and in all normal circumstances there are no charges, and so no requirement of an opportunity of being heard in answer to the charges. Indeed, there is the far wider and less defined question of the general suitability of the applicant for membership or a licence. The distinction is well recognized, for in general it is clear that the Courts will require natural justice to be observed for expulsion from a social club, but not on an application for admission to it. The intermediate category i.e., of the expectation cases, may at least in some respects be regarded as being more akin to forfeiture cases than application cases; for although in form there is no forfeiture but merely an attempt at acquisition that fails, the legitimate expectation of a renewal of the licence or confirmation of the membership is one which raises the question of what it is that has happened to make the applicant unsuitable for the membership or licence for which he was previously thought suitable."

It is in this context that a person has to file an application seeking amusement licence and there is no provision for renewal of the licence, acquires significance. I am of the considered opinion that the applicant has no right to insist that he should be given an opportunity to explain his case as to why the licence should be granted in his favour. The decision rejecting application and refusing to grant amusement licence, therefore, cannot be said to be in contravention of the principles of natural Justice. The principles of natural Justice requiring an opportunity of being heard has no application. The principle that the decision is required to be fair and reasonable would undoubtedly apply even in case of rejection. Therefore, it is not possible to agree with the submission made by the learned Counsel for the petitioner that the impugned order is violative of the principles of natural justice.

The petitioner is not doing any business in organising Indian Classical dance. His business is running Restaurant. By the impugned order the business and trade of the petitioner is in no way adversely effected. Therefore, the question of infringement of the fundamental right guaranteed under Article 19(1)(g) of the Constitution of India does not arise. At any rate, this point is not seriously pursued by the petitioner and, therefore, no final opinion as such need be expressed. Variety of questions may arise about the nature of the trade and business and the extent of restrictions that could be imposed on such trade or business. No opinion need be expressed on that count.

The Commissioner of Police has rightly taken into consideration the report of the Additional Deputy Commissioner of Police, Task force. The Commissioner, in such matters, is entitled to receive information from his own source. It is no body''s case that the Commissioner of Police has acted in mala fide manner, notwithstanding the averment in the affidavit filed in support of the petition that the Commissioner of Police had acted like a ''dictator''

It is true and well known that the remedy under Article 226 of the Constitution is a discretionary one. The Court has got wide discretion in granting the relief under Article 226 of the Constitution of India. Every person invoking the jurisdiction under Article 226 of the Constitution of India is required to approach the Court with clean hands. Complete facts are required to be revealed. Pleadings are required to be tempered with sobriety. Court''s forum cannot be used for discrediting and abusing the opposite party. No such privilege is conferred upon any individual approaching the Court under Article 226 of the Constitution of India. Irresponsible pleadings in a given case itself may dis-entitle the party for the relief and the Court would be well within its limits to refuse relief to such persons, who do not show their respect to the judicial process. Viewed in such background I do not find any justification whatsoever on the part of the petitioner to characterise the Commissioner of Police as a dictator. The action of an authority in a given case would be unfair and unreasonable or even arbitrary. But every authority passing such arbitrary order cannot be equated to that of a dictator.

For all the aforesaid reasons, I do not find any merit in the writ petition. The writ petition fails and it is accordingly dismissed. No costs.