Madras High Court
D.P. Anand vs State Of Tamil Nadu And Another on 4 July, 1997
Equivalent citations: 1998CRILJ724, (1997)IIMLJ413
ORDER
1. W.M.P. No. 8669 of 1997 is for an interim direction directing the second respondent to issue a temporary licence to the petitioner to hold the cultural dances at the petitioner's Pals restaurant at Premises No. 42, Anna Salai, Chennai-600002, pending disposal of the writ petition.
2. The prayer in the writ petition is to call for the records of the second respondent ending with his order bearing Rc. No. E3(1)/1284/177617/96, dated 27-3-1997 and direct the respondents to renew the licence for holding the Indian cultural dances at No. 42, Anna Salai, Chennai-600 002. On the basis of the application dated 9-12-1996, for the period from 1-1-1997 to 31-12-1997.
3. When the Writ Miscellaneous petition was taken up, the learned senior counsel appearing for the petitioner submitted that the arguments to be advanced in the Writ Miscellaneous Petition will hold good for the writ petition as well and the prayer in both of them are almost similar and requested that the Writ Miscellaneous Petition as well as the writ Petition may be taken up together. The learned Additional Government Pleader had no objection for the same and he has further stated that since a detailed counter has already been filed in the Writ Petition itself, the main case may be taken up for disposal. Accordingly, I heard both the counsel in the Writ Petition.
4. The petitioner has averred in his writ petition that he is the proprietor of the restaurant namely, Pals Restaurant at premises No. 42, Anna Salai. Chennai-600 002. He has been running the said restaurant from the year 1961. He was granted licence by the second respondent from the year 1969, for conducting cabaret dances. Subsequently, he was permitted to conduct the Indian Cultural dances and the last licence issued by the second respondent was valid for the period from 1-1-1996 to 31-12-1996. While so, on 1-1-1997 a Sub-Inspector of Police from D. 1 Police Station came to the restaurant and requested to stop conducting the Indian Cultural dances forthwith. There was no written order. The petitioner stated that he had applied for renewal of the licence on 9-12-1996 for the period from 1-1-1997 to 31-12-1997 with the enclosures and paid Rs. 75/- being the licence fee. He has made the renewal application in the Month of December as usual, hoping to get the licence in the month of February of the following year. This has been the practice. On 2-1-1997, the petitioner wrote to the second respondent stating that the reasons for stopping the dance has not been disclosed to him. He also pointed out that the application for renewal was pending. Hence, he must be permitted to continue the dance performance. According to him, he was incurring great hardship and heavy financial loss by stopping the dance performance. There was no response, hence he filed W.P. No. 480 of 1997 for Mandamus to direct the second respondent to issue the licence as per application dated 9-12-1996. When the said writ petition was pending, the second respondent issued a show cause notice dated 8-1-1997. Thereafter, a learned single Judge of this Court passed orders in the writ petition directing the petitioner to reply to the show cause notice and the same should be considered by the second respondent. Opportunity was also given to the petitioner to challenge the order if it was against him.
5. In the show cause notice, it was stated that since obscene dances were conducted as per the complaint of one Sashidaran dated 30-11-1996 and a subsequent raid by the police officials resulting in a criminal case in Crime No. 1738 of 1996 under Section 294(A) of Indian Penal Code, the renewal of the licence would be refused. The petitioner sent a reply on 18-1-1997. After about 45 days, by the letter dated 27-3-1997, the licence was refused. Before passing the said order, when the petitioner requested the second respondent for production of Sashidaran and the Police Officer who conducted the raid, for cross-examination and some other documents, the request was not complied with. However, a personal hearing was fixed on 14-3-1997 and when a request was made for adjournment, it was refused. In the circumstances, the writ petition has been filed.
6. A detailed counter has been filed by the second respondent. In the counter, it is admitted that the petitioner was given a licence to conduct Indian Cultural Dances at No. 42, Anna Salai, Chennai-2, subject to the conditions that music in the hall must be with minimum sound; the dance should be strictly in accordance with cultural performance and without obscenity and no liquor should be served in the premises. It is also admitted that the licence was periodically renewed. After receipt of a complaint from Sashidaran on 30-11-1996, Anti-Vice Squad Police registered a case under Section 294(A) of Indian Penal Code and conducted a raid. In the raid it was found that girls were performing obscene dance before the audience. Hence a show cause notice was issued for rejecting the renewal applied for on 9-12-1996. This application was processed. When the remarks of the Police was called for, the Assistant Commissioner of Police Anti-vice Squad sent a report that a obscene dance performance was conducted on 30-11-1996. Only pursuant to the same, show cause notice was issued on 8-1-1997. After the receipt of the complaint from Sashidaran, there was police raid and eight girls, who performed the dance and the petitioner were arrested. Case in AVS Crime No. 1738/96 was registered under Section 294(A) of Indian Penal Code. The pendency of the criminal case is not a bar to consider the request for renewal. The police party also witnessed the dance performance. It is stated that the girls had scantily dressed came near the spectators table and performed the obscene dance. Comparing the dress of the dancing girls with that of the persons in the swimming pool and films is not relevant. The licence was for conduct of Cultural dances without any obscenity. When the conditions are controverted the petitioner is not entitled for renewal of the licence. Apart from Sashidaran, other witnesses like Kannan and Hariharan and also the police officials were witnesses to the obscene dance. The documents requested for were furnished to the Criminal Court. As the Madras City Police Act did not provide for a trial, the question of producing witnesses for cross-examination did not arise. The order passed by the second respondent is only an administrative order and not a judicial one. However, a personal hearing was given on 14-3-1997. As sufficient opportunity was given, the request for adjournment was refused on 14-3-1997. On 14-3-1997, the petitioner's counsel represented that the petitioner was conducting the dance performance for the last forty years without any blemish and this single incident should not be taken into account for rejecting the renewal application.
7. The counter states further that in the criminal case C.C. No. 76/86 before the Additional Chief Metropolitan Magistrate Court, Sashidaran turned hostile, having been gained over by the petitioner. But two other witnesses, Kannan and Hariharan examined in the said case, have clearly spoken about the obscene dance. The petitioner's counsel cross-examined these two witnesses examined on 17-3-1997. After considering the reply sent by the petitioner and taking into account the statements of Kannan, Hariharan and Police Officials, the second respondent passed the order rejecting the renewal of the licence.
8. The counter further denies the various grounds set out in the affidavit. The counter states that there was no violation of principles of natural justice. The refusal was justified and hence not violative of the Fundamental Rights of the petitioner. The second respondent was justified in exercising his powers under Section 76(A)(2) of The Madras City Police Act. At the time of the renewal of the licence, the licensing authority has to necessarily consider the previous conduct of the petitioner. As the petitioner has come to adverse notice and violated the conditions of the licence, the licensing authority has got every right to reject his request.
9. The learned senior counsel Mr. Habibullah Badsha, appearing for the petitioner raised several contentions. According to him, the second respondent has no power to refuse the licence by invoking Section 76 of the Madras City Police Act. When the proceedings to issue or renew a licence is a quasi judicial proceeding, proper enquiry should have been conducted. The non-furnishing of the statement relied upon by the second respondent vitiates its proceedings as it tantamounts to violation of principles of natural justice. When the statements of certain persons are relied upon, those persons must be produced for cross-examination. The second respondent has developed a prejudice against the petitioner and hence on that ground alone this order could not be sustained. On these grounds, the learned senior counsel made a request that if this Court decides to direct reconsideration, the direction must be issued to some other person and not to the second respondent.
10. The learned Additional Government Pleader Mr. K. Thirugnanasambantham, on the other hand contended that the second respondent has powers to cancel the licence under Section 76 of the Madras City Police Act. Further he contended that sufficient opportunities were given to the petitioner before the impugned order was passed. Therefore, there is no justification for allowing the writ petition.
11. The relevant Sections relating to the grant, cancellation etc., of the licence are Sections 34 and 76 of the Madras City Police Act. Section 34(1) of the Act reads as follows :
"34(1) : No enclosed place or building having an area of forty six and half square meters or upwards shall be used for public entertainment or resort without a licence from the Commissioner.
Provided that nothing contained in this sub-section shall apply to any Church, temple, mosque, or other place of worship.
(2) The Commissioner may, at the time of grant of a licence under sub-section (1) or at any time during the currency of any such licence, require any person, other than a local authority, applying for such licence or the holder of such licence, as the case may be, to deposit with the Commissioner in cash or in Government promissory notes such sum, as may be prescribed as security for the due observance of the conditions of licence.
(3) Where there is breach or non-observance of the conditions of the licence granted under sub-section (1) the Commissioner may forfeit the security so deposited to the Government.
(4) The forfeiture of the deposit shall not be a bar for proceeding against the holder of the licence under the provisions of Section 76."
A reading of Section 34(1) of the Act shows that no place shall be used for public entertainment without licence of the Commissioner. Sub-section (2) of Section 34 prescribed condition for issue of licence. The condition is to require the license to deposit with the Commissioner in cash or in Government promissory notes such sum as may he prescribed for the security of the observance of the conditions to licence. Sub-section (3) of Section 34 of the Act provides for forfeiture of security deposit for breach or non-observance of the conditions of the licence.
12. In addition to this Section 76 of the Madras City Police Act provides for cancellation and suspension of any licence granted under the Act. That apart, under Section 76(A)(2) of the Act, for breach of conditions, conviction and fine are also contemplated.
13. Section 294 of the Indian Penal code provides for punishment for a term which may extend to three months or fine or both, when any one does any obscene act in any public place, or sings, recites or utters any obscene songs, ballad or word.
14. Therefore, if a person performs obscene dance under a licence issued under Section 34 of the Madras City Police Act, he has to suffer the punishments of suspension of licence or cancellation of licence or forfeitre of deposit, or conviction and imprisonment under the said Act and also conviction and punishment under the Indian Penal code. The Madras City Police Act and the Indian Penal code lay emphasis that a particular act of obscenity will be met with severe actions. Emphasis is on punishing to prevent the business to be carried on by the licensee.
15. There is also no provision in the Act preventing grant of licence to a person whose licence has been cancelled or suspended or who has suffered punishment either under the Madras City Police Act or under the Indian Penal Code for obscenity. Further, it is not stated to be a disqualification for obtaining a licence under the Act in question.
16. The licence is refused on the grounds of a complaint from one Sashidaran and the raid resulting in detection of obscene dances conducted by the petitioner in the premises at No. 42, Anna Salai, Chennai-600 002. As regards the complaint of Sashidaran, in the criminal case, he has retracted his version hence, his complaint cannot be taken into account at all. As regards the raid is concerned, it is the subject-matter of the case in Crime No. 1738 of 1996, under Section 294(A) of Indian Penal Code.
17. Whether there was obscenity in the dance performed on 30-11-1996 is a question that has got to be decided in the criminal case. Till then, it cannot be assumed that there was obscenity in the dance performed on that particular date.
18. It is represented by the learned Government Pleader that on that date when the Police Officers raided the restaurant they found as a matter of fact that obscene dances were conducted. Therefore, the statement of the Police Officers who raided the restaurant can be taken into account.
19. The learned Senior counsel for the petitioner on the other hand contends that inasmuch as the Police Officers were not examined and the copies of the report of the Assistant Commissioner about the raid was not furnished to the petitioner, the statement of the Police Officers cannot be relied upon by the second respondent, who is functioning as a quasi Judicial authority.
20. According to the learned counsel for the petitioner, the second respondent will be considered to be acting in a quasi judicial jurisdiction when he considers an application for grant or renewal of licence to carry on business. The right to carry on business is a fundamental right. When such a right of a party is in stake, equity demands that he should act in a quasi judicial manner and in compliance with the principles of natural justice. The contention of the counsel for the petitioner has some force. This is fortified by the judgment of the Supreme Court, rendered as early as in 1977 reported in State of Kerala v. K. T. Shaduli, AIR 1997 SC 1627 : (1977) 3 SCR 233. In paragraph 3 the Apex Court has set out the principle in the following terms :
"One of the rules which constitutes a part of the principles of natural justice is the rule of audi alterem partem, which requires that no man should be condemned unheard. It is indeed a requirement of the duty to act fairly which lies on all quasi judicial authorities, and this duty has been extended also to authorities holding administrative enquiries involving civil consequences or affecting the rights of parties."
21. Under the provisions of the Madras City Police Act, only restrictionsare contemplated for a person who carries on business in an enclosed place or building. As we have found already there are number of restrictions in the form of security deposit, suspension, cancellation and prosecution contemplated by the Act. There is no provision in the Act to prohibit the carrying on business. It is also to he noticed that there is no provision to refuse to grant a licence or renew a licence when a person commits breach of conditions of the licence or commits the other criminal offences like conducting obscene dances. The Legislature could provide for total refusal of licence or renewal of licence when a person commits breach of the conditions of the licence or the offences like one mentioned above. In the absence of such a provision, we have to take it that the intention of the Legislature is not to Prohibit once for all the carrying on business like running the cultural dences etc., even it he commits breach of the licence or commits the offence of obscenity by misusing the licence granted to him. Therefore, in my view Section 76 of the Madras City Police Act empowers the licensing authority namely, the Commissioner only, to cancel or suspend the licence already granted exercising the powers under that Section. The licensing authority or the Commissioner cannot refuse to renew the licence, since for misuse, a number of punishments are provided as, as indicated earlier.
22. The learned senior counsel for the petitioner contended, as already stated, that the licensing authority has taken into account the oral evidence given by the witness Kannan and Hariharan and also the report of the Assistant Commissioner. The grievance of the counsel for the petitioner is that the witnesses whose evidence sought to be relied must be produced for cross-examination. A copy of the Assistant Commissioner's report must have also been furnished. Hence, there was violation of principles of natural justice.
23. As we have already seen, the licensing authority under Section 34 of the Madras City Police Act exercises a quasi judicial power. Assuming that the Assistant Commissioner is acting only as administrative authority under Section 34 of the Madras City Police Act, even then when a person's civil right is affected, natural justice requires that the authority concerned, before passing orders is required to furnish a copy of the same. Several Judgments of this Court as well as the Supreme Court repeatedly indicated this position, otherwise there will be a gross violation of the Principles of natural justice.
24. As a regards the oral evidence of the witnesses, namely, Kannan and Hariharan is concerned, the criminal Court is yet to assess these evidence and come to a decision as regards the acceptability or otherwise. If an opinion is expressed about the evidence by another authority when the matter is subjudice, it really tantamounts to contempt of Court. Section 2(c) of the Contempt of Courts Act, 1971, is as follows :-
"Criminal contempt" means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which -
(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of any Court; or
(ii)prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;"
The expressing of opinion about the oral evidence before it is analysed and assessed by the criminal Court, is certainly a prejudice or interferes or tends to interfere with the due course of judicial proceeding. I do not want to say further on this matter.
25. From another angle also the evidence given in a criminal Court cannot be used as evidence straightway. Section 33 of the Indian Evidence Act, 1872 permits the admission of such evidence only when the witness who gave the evidence is dead or unable to be examined subsequently. Section 33 of the Indian Evidence Act, 1872, reads as follows :
"33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated - Evidence given by a witness in a judicial proceeding or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding or in latter stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or his presence cannot be obtained without an amount of delay or expense which, under the circumstance of the case, the Court consider unreasonable."
The object of the said Section is that the evidence recorded in an earlier proceeding cannot be relied upon and the witness who gave the evidence must be examined in the subsequent proceedings for the purpose of establishing the truth of the fact. It is not the case of the second respondent that the witnesses mentioned are dead or cannot be found, or incapable of giving evidence, or kept out of the way by the adverse party. On this score as well the evidence of Kannan and Hariharan, cannot he relied upon.
26. In the impugned order, we are able to see that the report of the Inspector and the party of Anti vice squad have been relied upon. The second respondent has not furnished the copy of the report relating to the raid. The reason given by him is that the petitioner would have got it from the Magistrate where the case is pending. This is not proper. As I have already held that natural justice requires that the authority who relies upon a report or a document for passing an order against an individual, is bound to furnish the copy of the same. This requirement cannot be slightly brushed aside, stating that the said report or document would have been furnished by or could have been obtained from another authority, before whom the document or the report has already been produced. We have also found that the oral evidence of Sashidaran, Kannan and Hariharan cannot be relied or committed upon as per Section 33 of the Indian Evidence Act, without examining them.
27. From the above discussion, I am of the opinion that the order of the second respondent dated 27-3-1997 cannot he sustained. But that will not automatically result in the grant of licence to the petitioner by this Court. The application of the petitioner dated 9-12-1996 has to be reconsidered, in the light of the observations contained in this order. At this stage, the learned counsel for the petitioner vehemently contended that if the matter is to be decided by the very same authority, namely, the present second respondent, his client will not able to get justice, since the second respondent has developed serious prejudice against him. The learned counsel for the petitioner read out certain passages from the order dated 27-3-1997 and the counter filed by the second respondent. In paragraph 16, of the impugned order, the second respondent has observed as follows :
"16. To upkeep the decency and morality, I consider that the evils which are corrupting the young generation by way of obscene dances should he nipped in the bud by imposing restrictions by making use of powers conferred on me under the law."
This will only indicate the anxiety of the second respondent as the Chief Police Officer of the city to maintain decency and morality and saying the younger generation from being trapped in immoral and indecent activities. As we have already indicated, there are methods enumerated by the Madras City Police Act as well as the Indian Penal Code to curb the activities of persons indulging in immoral and indecent or obscene activities. They could be punished by the criminal Court and the licensing authority by suspending or cancelling their licence or forfeiture of their security deposit. But in the absence of a provision for refusing to grant of licence when a person commits an offence with reference to decency, morality or obscenity or for that matter commits the offence again and again the Court is helpless except to state that person has to be allowed to carry on the business, without detriment to his fundamental rights guaranteed under Article 19(1)(g) of the Constitution of India. But at the same time, the authorities cannot remain as silent spectators. He could interfere and prevent the person by imposing the penalties mentioned above. The authority concerned has not been empowered to deprive the persons of the chance of carrying on the business. When the Legislatures themselves have not chosen to provide such a power, the Court cannot confer such a power upon the said authority. The power of the Court, however high it may be, is only to interpret the law and enforce it, not to embark upon enacting laws, even though to a limited extent it can suggest the authorities concerned to do so.
28. The learned counsel for the petitioner pointed out that the second respondent has refused to grant even two weeks time when a letter was given to him on 13-3-1997 itself. The learned counsel points out certain allegations against the second respondent. I am not satisfied that the allegations contained in the affidavit filed in support of the petition would permit us to draw an inference that the second respondent is prejudiced against the petitioner. It is but natural that a person who has to pass an order is also bound to justify it. Again it is but natural that a person who is aggrieved by an order of an authority is not only likely to criticise the order but also the person or authority who passed it. It is hoped that as a Chief Police Officer and a quasi judicial authority, it is not only the duty of the second respondent to curb or nip the evils in the bud but also to see that such an act of curbing or nipping does not deprive a man of his mode of earning his bread.
29. For the foregoing reasons, the writ petition is allowed. The second respondent is directed to consider the application dated 9-12-1996, in the light of the observations contained in this order, and pass orders within 4 weeks from today, after giving sufficient opportunity to the petitioner. However, there will be no order as to costs. Consequently, W.M.P. No. 8669 of 1997, is dismissed.
30. Petition allowed.