Research › Search › Judgment

Karnataka High Court · body

2008 DIGILAW 244 (KAR)

Ashok Hegde v. State of Karnataka

2008-04-17

ANAND BYRAREDDY

body2008
ORDER Anand Byrareddy, J.— These petitions coming on for preliminary hearing (B Group) are taken up for final disposal. Though the Additional Government Advocate appearing for the respondents has sought for an adjournment on the ground that the Advocate General would appear in the matters and would seek to address arguments at length. Having regard to the limited scope of challenge in these petitions and the facts and circumstances of the case and today being the last sitting day for the Court before the commencement of the Summer Vacation, little purpose is served in adjourning the matters beyond the Summer Vacation to hear the learned Advocate-General. Accordingly, the matters are considered for final disposal on the basis of the pleadings and averments made. 2. The brief factual matrix in these petitions are as follows: In WP. No. 1312/2008 the petitioner is a partnership firm which has established a Restaurant in the name and style of 'Port of Pavillion', at Gandhinagar, Bangalore. It is duly licensed to run a Bar and Restaurant in the said premises under the provisions of the licensing and Controlling of Places of Public Amusements (Bangalore City) Order, 1989. The petitioner having made an application to conduct live band music in the restaurant and the first respondent having Med to consider the application, the petitioner had the benefit of a deemed licence in terms of the provisions of the above Licensing Order. However, when the first respondent refused to renew the licence, for a further period, in the year 1998, the petitioner had approached this Court by way of a writ petition in W.P. No. 75/1998. The petition was allowed on 11.3.1998, with a direction to the first respondent to consider the application. During the pendency of the above petition and till the consideration of the application, this Court had permitted the petitioner to conduct live band music in the Restaurant The first respondent, however, challenged the order by way of an appeal in W.A. Nos. 1446-1460/1998 which was considered along with other connected writ appeals and were allowed by this Court setting aside the order of the single judge. The petitioner had, along with the others, preferred appeals to the Supreme Court, in Civil Appeal Nos. 1862-1864/2001. The Supreme Court, by its order dated 28.11.2002, allowed the appeals while holding that no licences would be required for playing ramie in Restaurants, live or otherwise. 3. The petitioner had, along with the others, preferred appeals to the Supreme Court, in Civil Appeal Nos. 1862-1864/2001. The Supreme Court, by its order dated 28.11.2002, allowed the appeals while holding that no licences would be required for playing ramie in Restaurants, live or otherwise. 3. The first respondent, had some time thereafter published the Licensing and Controlling of Places of Public Entertainment (Bangalore City) Order, 2005 (hereinafter referred to as the 2005 Order', for brevity). This order was challenged by several persons, including the petitioner, in W.P. No. 16318/2005 and other connected petitions. This Court had allowed the batch of petitions as on 27.9.2005, holding that the notification under challenge dated 25.5.2005 would be treated as a draft notification and afforded liberty to tie petitioner and others to file their objections within thirty days to the said notification and directed the first respondent to consider the objections before issuing a final notification. This Court, however, observed that the petitioners shall not run their live band shows In Restaurants till such time. This was challenged by way of writ appeals. A Division Bench of this Court having dismissed the appeals, the petitioners were before the Supreme Court in Civil Appeal No. 7197/2005 and other connected appeals. The Supreme Court, by its order dated 2.12.2005, while disposing of the appeals observed as follows: We, therefore, dispose of the appeals by directing that the live bands shall be allowed to operate until the appropriate Rules are framed by the Commissioner in modification of the observations of the learned Single Judge as affirmed by the Division Bench and till the requisite licenses are granted thereunder. In the meanwhile, the aforesaid three conditions will continue to operate as for as the live bands are concerned. It transpires that the first respondent had proceeded to publish the Licensing and Controlling of Places of Public Entertainment (Bangalore City) Order, 2005, in the face of the objections filed by the petitioners. The petitioners being aggrieved by the conditions imposed under the 2005 Order had challenged the legality of the name before this Court in WP No. 27523/2005, along with other petitioners. That batch of petitions were heard and dismissed on merits on 9.2.2007. Appeals having been filed, the order of the Single Judge has been affirmed. The petitioners being aggrieved by the conditions imposed under the 2005 Order had challenged the legality of the name before this Court in WP No. 27523/2005, along with other petitioners. That batch of petitions were heard and dismissed on merits on 9.2.2007. Appeals having been filed, the order of the Single Judge has been affirmed. It is the case of the petitioners that they have carried the same before the Supreme Court and the same is pending consideration in Special Leave Petition No. 8851/2007. It is without prejudice to the right to question the legality of the notification and which is pending consideration before the Supreme Court, that this petition is filed. 4. In the light of the petitioner having filed an application before the first respondent on 21.12.2005 along with the necessary prescribed fee and documents prescribed under the 2003 Order, seeking a licence and the respondents having returned the same with an endorsement that the Occupation Certificate as prescribed under the 2005 Order does not accompany the application seeking licence, the petitioner is before this Court. 5. Similarly in W.P. No. 763/2008, the petitioner also runs a Bar and Restaurant in the name and style of 'Chef-inn Regency' on the Ring Road, Domlur, Bangalore, since the year 2004 and ii duly licensed to run a Bar and Restaurant The petitioner had filed an application under the 2005 Order, for a licence to run live band shows. The case of the petitioner is that the same has been returned with an endorsement that an Occupation certificate has not been submitted along with the application and this is sought to be challenged. 6. Similar is the case of the petitioner in W.P. No. 764/2008, who is running a Bar and Restaurant in the name and style of 'Chef/Inn Deluxe', in RMV Extension, Mekri Circle, Bangalore. The premises in which the business is being run was built in the year 1960. 7. In W.P. No. 1431/2008 the petitioner has been running live band shows in its premises at S.C. Road, Sheshadripuram, Bangalore. The petitioner's application having been returned with an endorsement that an Occupation Certificate was not produced along with the application the petitioner is before this Court. 8. In W.P. No. 10076/2008 the circumstances are identical as in the other cases. 9. Shri N. Devadas, Senior Advocate, appearing for the Counsel for the petitioners in W.P. Nos. The petitioner's application having been returned with an endorsement that an Occupation Certificate was not produced along with the application the petitioner is before this Court. 8. In W.P. No. 10076/2008 the circumstances are identical as in the other cases. 9. Shri N. Devadas, Senior Advocate, appearing for the Counsel for the petitioners in W.P. Nos. 763 and 764/2008, Shri Shekhar Shetty, appearing far the petitioner in W.P. No. 10076 and Shri N.K. Ramesh appearing for the petitioner in W.P. No. 1312/2008, were heard at length. It is their common ground that having regard to the course of events insofar as the 2005 Order is concerned and Paragraph 7 of the 2003 Order providing for the aspects which shall be addressed by the Licensing Authority while deciding to grant or refuse the licence, the authority having returned the application farm far the reason indicated, cannot be sustained. It to contended that the non-production or non-availability of a sanctioned plan or Occupation Certificate of the premises in respect of which a licence is sought, is not a material consideration if the authority could otherwise satisfy itself as to the suitability of the premise. 10. It is contended that the petitioners were required to file the application for licence in terms of Paragraph 4 of the Order in Form-1 prescribed thereunder. The said Form provides a chock list requiring the applicant to indicate whether or not the documents, as would be applicable, were produced or not. The applicants also being required to appear in person to submit the application as well at the documents, the petitioners had done so. There was no indication that their application could not be processed for want of one ox other documents, the petitioners were not informed that their applications would not be considered, if such documents do not accompany the application. In any event, the return of the applications by the respondents with the endorsement that the sanctioned plan of the building in which the activity is sought to be conducted or the occupation certificate of the said premises not being available, could not be germane to the consideration of their application and the lame either being granted or refused. In any event, the return of the applications by the respondents with the endorsement that the sanctioned plan of the building in which the activity is sought to be conducted or the occupation certificate of the said premises not being available, could not be germane to the consideration of their application and the lame either being granted or refused. The Counsel would seek to point out that the aspects that required to be addressed by the Licensing Authority are as prescribed under Paragraph 7 of the Licensing Order and hence, the Licensing Authority has sought to virtually reject the application as it were. The Licensing Authority, has therefore acted in an arbitrary and unfair manner. In any event, the petitioners herein are running a Bar and Restaurant in the premises wherein they have also sought for a licence to conduct live band shows, it would presuppose that the premises under each of their occupation is under legal occupation complying with the requirements of the civic agency or the local authority, the building plan or the occupation certificate would only assist the Licensing Authority in considering the application for grant of a licence to run the live band under the 2005 Order with the aspects prescribed under Paragraph 7 of the Licensing Order in view, which are the primary consideration. The non production of the building plan or the occupation certificate does not foreclose the Licensing Authority from conducting an inspection of the premises and satisfying itself as to the applicant complying with the requirements under the Licensing Order. The attitude of the respondents is only to scuttle the very process of granting a licence, which is apparent from its conduct over a period of time. In that, though there was an order by this Court earlier in these very petition recording the submission of the Advocate General that the respondents would consider their applications, if they are submitted and the respondents having been placed on a time-frame had intact, taken further steps to publish a notification in the newspapers inviting objections insofar as their proposal to conduct live band shows in their respective premises. However, the respondents took an about-turn and thereafter have stone-walled the petitioners, by seeking to prefer an appeal against the order passed by this Court, which merely recorded that the applications would be considered, on the basis of a concession offered by the Advocate General. However, the respondents took an about-turn and thereafter have stone-walled the petitioners, by seeking to prefer an appeal against the order passed by this Court, which merely recorded that the applications would be considered, on the basis of a concession offered by the Advocate General. Thereafter the respondents sought to withdraw the appeal and prefer a Review Petition before this Court, which was allowed and the matters are now being heard over again. Thus the object of the respondents in seeking to adopt such measures is only to ensure that the application of the petitioners are kept in abeyance and not processed, which is wholly unfair and arbitrary. The petitioners would therefore contend that the Licensing Authority may consider their applications with due regard to the aspects that are to be taken in to consideration as prescribed under Paragraph 7 of the Licensing Order and to pass appropriate orders. The return of their applications on the ground for want of either the sanctioned plan or the building licence is not with reference to the spirit and tenor of the Licensing Order. It is to ensure mat an applicant does not commence any such activity which would run counter to public peace, tranquility and law and order, as is apparent from a plain reading of the conditions proscribed. The Counsel for the petitioners would uniformly contend that the Suit that the Licensing Order does not prescribe a time frame within which the application for grant or refusal of a licence is sought to be misused by the Licensing Authority, as ii apparent from the tenor of the Review Petition wherein the respondent-Licensing Authority had taken a contention that the Court could not have further imposed a time frame within which the respondent authority ought to consider their applications and it is on that sole ground that a Review Petition had been filed to recall the order and to remove any such imposition of a time frame. The petitioners would therefore submit that in view of the earlier order of the Supreme Court, which does permit the petitioners to continue with the live band shows nil such time that their licences are considered and granted, it would be appropriate if the petitioners arc permitted to carry on with their live band shows till such time the respondents process their applications in view of the provisions of the Licensing Order and to either grant or reject the same for good reason, the return of the same on the ground that either the sanctioned plan or the building licence or the occupation certificate is not produced, is therefore, wholly arbitrary and would seek an appropriate writ or direction to the respondents in this regard and in the meanwhile would seek a further direction to permit the petitioners to carry on with the live band shows. 11. On the other hand, the Government Advocate while pleading inability to submit argument on the footing that it is the Advocate General who has been instructed to appear in the matters and that it would be placing the respondents at a disadvantage in disposing of the matters at this point of time without hearing the Advocate General, would persistently seek an adjournment till after the summer vacation. On the Counsel's attention being drawn to the limited question that an set for consideration and the tenor of the statement of objections filed by the State in one of these petitions, which does not raise any serious question which would require the matter being adjourned till alter the summer vacation, to hear the learned Advocate-General. The Additional Government Advocate guardedly mentioned that it is the apprehension of the State that any permission granted to perform live band shows would lead to an escalation of other illegal activity such as prostitution, gambling, drug trafficking and drunken driving and that the State requires time to supplement its pleadings in this regard. 12. As already stated, having regard to the limited scope of the petitions and the chequered course of events that the petitioners have been taken through, it if appropriate that insofar as the present petitions are concerned, the same be disposed of on the basis of the material and on the pleadings available. This would not cause the respondents any serious disadvantage. 13. This would not cause the respondents any serious disadvantage. 13. The apprehensions expressed, in pasting by the Counsel for the State are also not tenable in the context of these petitions and the 2005 Order. In the face of the State not choosing to ban live bands altogether - the applications require to be processed in terms of the 2005 Order. Any purported illegal activity that may generally be associated, in the view of the respondents, cannot be a ground for stalling such consideration. This ii especially so when there are other legal provisions to deal with any other such illegal activity. 14. The endorsements issued by the respondents in returning the applications filed by the petitioners on the free of it are not sustainable. The fact that these petitioners are already running Restaurants in every single case, in the premises in which they are also seeking a licence to conduct live band would indicate that they are in lawful possession and occupation of the premises. If they arc unable to produce a building plan or occupation certificate, it ought not to impede or render it impossible for the Licensing Authority to consider whether an applicant is entitled to hold a licence under the 2005 Order. Having regard to the aspects that are to be taken in to consideration by the licensing Authority in either granting or refusing a licence. The prescription of production of a sanctioned building plan or occupation certificate would only enable the Licensing Authority to proceed safely on the basis that there is a civic authority, which has affixed its seal of approval on the building premises having been built in accordance with the sanctioned plan and being capable of occupation under the relevant building bye-laws. This is not a material consideration on which the grant or refusal of the licence would hinge on. In other words, it is always open for the Licensing Authority to inspect the premises and independently hold that the premises is not fit for the grant of a licence to conduct a live band in terms of the conditions that are prescribed under true Licensing Order even if there was a sanctioned building plan and an occupation certificate. In other words, it is always open for the Licensing Authority to inspect the premises and independently hold that the premises is not fit for the grant of a licence to conduct a live band in terms of the conditions that are prescribed under true Licensing Order even if there was a sanctioned building plan and an occupation certificate. The sanction of a building plan or the grant of occupation certificate under the building bye-laws or other local laws would have no bearing on the grant or otherwise of a licence under 2003 Licensing Order. It is clearly independent and therefore, the Licensing Authority at beat could have called upon the petitioners to showcause as to why these documents had not been produced and it was for the Licensing Authority to have taken in to consideration such contentions as the applicants might have put forth in support of their case as to the same not being available or not being warranted in the light of the other circumstances which could have been established on the face of it. 15. A plain perusal of the relevant provisions would make this reasoning dear. Paragraph 7 of the 2005 Order prescribes the several aspects that are to be considered by the Licensing Authority while deciding to grant or refuse a licence. The tame it extracted here for ready reference. (a) the interest of public in general; (b) the status and antecedents of the appellant; (c) availability of parking place commensurate with the seating capacity. (d) the possible adverse impact on law and order. (c) vicinity of the place to educational or religious institutions. For this purpose vicinity shall mean within a distance of 200 (two hundred) metres. (a) the interest of public in general; (b) the status and antecedents of the appellant; (c) availability of parking place commensurate with the seating capacity. (d) the possible adverse impact on law and order. (c) vicinity of the place to educational or religious institutions. For this purpose vicinity shall mean within a distance of 200 (two hundred) metres. (f) that the entertainment does not in any way incite religious feelings; (g) flat the materials used for the structure do not pose toy kind of lire hazard; (h) that the proposed entertainment does not promote public gambling or the premises shall not he used as a gaming house or does not entourage prostitution or allow the use of narcotic substances or permit any other illegal activity; (i) that the licencee shall not organise or allow performance of shows which are immoral, obscene or indecent and (sic) that there is no obscenity or indecency in dress, movement or gesture or that the performers indecently expose their person; (j) the licencee shall not permit any obscene or objectionable pictures or pictures to be exhibited; (k) that the proposed premises do not cause obstruction, inconvenience, annoyance, risk, danger or damage to the residents or to passersby of such premises; (l) that all adequate precautions nave been taken in the premises in respect of which the licence it to be granted to provide for the safety, convenience and comfort of the persons attending the programmes therein. It is clear that the availability of a sanctioned plan or an Occupation Certificate is neither germane nor material for the authority to decide on the application. 16. It may further be teen mat insofar as the sanctioned plan of a building is concerned, the occupant may or may not possess the same - especially if the building is old and has changed hands several times. Section 301 of the Karnataka Municipal Corporations Act, 1976, may be seen in this regard. In such cases, the fact that the civic authority may have assessed the building to property tax and that the same is not an illegal structure under illegal occupation of the applicant may require to be taken into consideration. 17. Section 301 of the Karnataka Municipal Corporations Act, 1976, may be seen in this regard. In such cases, the fact that the civic authority may have assessed the building to property tax and that the same is not an illegal structure under illegal occupation of the applicant may require to be taken into consideration. 17. Insofar as the requirement of production of an Occupation Certificate is concerned, from a reading of bye-law No. 5.5 of the Bangalore Mahanagara Palike Bye-laws, 1983, or Bye-law No. 5.6 of the Bye-laws 2003 which provide for an Occupation Certificate read with Section 310(2) of the Karnataka Municipal Corporations Act, 1976, does even contemplate a deemed grant of such a certificate if the Commissioner has failed to consider the application far such a certificate after thirty days. Such a certificate is not even contemplated if the building in question consists of less than three floors. 18. Hence, in this view of the matter, even though the State Government has filed its statement of objections, there is no merit in the same. In that, the contentions in the statement of objections are to the effect that the Licensing Order does prescribe a condition of production of a sanctioned building plan or occupation certificate and the same not having been furnished, it was well within the Licensing Authority's power to have returned the application and it was for the petitioners to make good the detect. This does not justify the action of the respondents. 19. This does not justify the action of the respondents. 19. Though it is contended that the petitioners ought to be permitted to continue with their live bond shows, it ii not in dispute that the petitioners applicants are not seeking renewal of live band shows that they may have conducted, but, they are fresh applications for conducting such shows and even though the Order of the Supreme Court does indicate that the petitioners can run their live band shows till such time the application is granted, it would be appropriate if the respondents are placed on a time frame to consider and process the applications without insisting on the production of a sanctioned building plan or occupation certificate, if it can otherwise be demonstrated that the premises of the applicants are either fit or not fit for purposes of running live band show which the licensing Authority could very well decide on the basis of an Inspection or other material which the petitioners may be in a position to produce and if the respondents inspite of this time frame do not or are not in a tuition to comply with the directions of this Court, it would then be possible to permit the petitioners to commence their live band shows, subject to the conditions imposed by the Order of the Supreme Court earlier. 20. Accordingly, the petitions are allowed. Annexure-H in W.P. No. 1312/2008, Annexure-A in W.P. No. 764/2008, Annexure-A in W.P. No. 763/2003, Annexure-E in W.P. No. 1431/2008 and Annexures-F and G in WP No. 10076/2007 are quashed and the respondent-Licensing Authority in each of these petitions is directed to reconsider the petitioners' applications which have been resubmitted by them and to consider the same for grant of licence for conducting live band shows in terms of Paragraph 7 of the 2005 Order within a period of thirty days from today and in the event that the respondents does not pass appropriate orders within thirty days from today, the petitioners shall be at liberty to commence the live band shows in their premises in terms of the permission granted by the Supreme Court by its order dated 2.12.2005 with the conditions as applicable.