Karnataka High Court
P.D. Mistry And Etc. Etc. vs Commissioner Of Police, Bangalore And ... on 17 January, 1994
Equivalent citations: 1994CRILJ1746, ILR1994KAR1324, 1994(1)KARLJ505
ORDER
1. The question involved in all these petitions either directly or indirectly have arisen from the applicability or otherwise of the Licensing and Controlling of Places of Public Amusements (Bangalore City) Order, 1989 (in short the 1989 Order) and the Licensing and Controlling of Places of Public Amusements (District) Order, 1985 (in short the 1985 Order). 1989 Order refers to Bangalore City and the 1985 Order refers to the Districts in the State of Karnataka, But the provisions in both the Orders are almost identical. Hence, without making reference to either Bangalore City or other Districts in the State, these petitions are disposed of by making reference to the Licensing Authority. For Bangalore City the Licensing Authority is the Commissioner of Police and for the District in the State the Licensing Authority is the District Magistrate.
2. The Order in question has been made in exercise of the power conferred under Section 31 of the Karnataka Police Act, 1963 (for short 'the Act'). Section 31 of the Act deals with regulatory powers of the police viz., powers to make order for regulation of traffic and for preservation of peace and tranquillity in public places. This regulations apply to certain activities which are in the nature of games of chance against public order, morals etc. shall not be carried on public places. In order to appreciate the rival contentions and whether licence is required to conduct certain games or shows at particular and it is power to understand the following provisions of the Karnataka Police Act, 1963, and the 1989 Order.
2A. Section 2(7) of the Act reads thus :
"2(7) "gaming" does not include a lottery but includes all form of wagering or betting on a horse-race, run on any race course within or outside the State, when such wagering or betting takes place -
(i) on the day on which such race is run; and
(ii) in an enclosure set apart for the purpose in a race course by the license of such race course under the terms of the licence issued under Section 4 of the Mysore Race Courses Licensing Act, 1952 (Mysore Act VIII of 1952); and Explanation :- In this clause,
(i) "wagering or betting", includes the collection or soliciting of bets, the receipt or distribution of winnings of prizes in money or otherwise, in respect of any act which is intended to aid or facilitate wagering or betting or such collection, soliciting, receipt or distribution;
(ii) 'game of chance' includes a game of chance and skill combined, but does not include any athletic game or sport; ........
(11) "instruments of gaming" includes any article used or intended to be used as a subject or means of gaming, any document used or intended to be used as a register or record or evidence or any gaming, the proceeds of any gaming and any winning or prizes in money or otherwise distributed or intended to be distributed in respect of any gaming;
(12) "place" includes a building, a tent, a booth or other erection, whether permanent or temporary, or any area whether enclosed or open;
(13) 'place of public amusement' means any place where music singing, dancing, or any diversion, or game, or the means of carrying on the same is provided and to which the public are admitted and includes a race course, circus, theatre, music hall billiard room, beagattelle room, gymnasium fencing school, swimming pool or dancing hall;
(14) "Place of public entertainment" means any place to which the public are admitted and where any kind of food or drink is supplied for consumption on the premises by any person owning or having an interest in or managing such 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 any kind of food or drink is supplied to the public for consumption in or near such shop."
Under the 1989 Order the Commissioner of Police is the Licensing Authority of Bangalore City and in other places the concerned District Magistrate is the Licensing Authority. As per Clause 3 of the 1989 order every person who intends to carry on business in the nature of public amusement shall make an application for licence which reads thus :-
"(1) Every application of grant of licence to conduct or organise any public amusement shall be made in six set to the licensing authority in Form-I. Provided that no such licence shall be necessary to conduct Yakshagana, bayalata (field drama), folk arts and magic shows and also for conducting public amusements for a period not exceeding one week except circus."
Clause 3 further indicates about the form in which application to be submitted and to their requirements to be complied with. On receipt of such application under Clause 3, the Licensing Authority, if satisfied, forward the copies of such applications under Clause 4 of the Order to the concerned authorities calling for their reports or certificates. The said authorities are the Superintended of Police in case of District, the Executive Engineer, Public Works Department, the Health Officers, the Officer of the Electrical Inspectorate and the Fire Officer. The said authorities specified above, within fifteen days from the date of receipt of application, under sub-clause (1) send their reports or certificates to the licensing authority and before sending their reports or certificates as the case may be, regarding the conduct of public amusements satisfy themselves about the following :-
(a) that the conduct of public amusement will not endanger public safety;
(b) that the premises and electrical installations are adequate and sound for conduct of public amusements;
(c) that adequate provisions are made for sanitation, ventilation and light;
(d) that necessary precautions have been observed and provision is made to instal fire fighting equipments;
(e) that the provisions of this order have been complied with and
(f) that there is no objections for the grant of licence.
If the Officers specified under sub-clause (1) do not furnish their reports or certificates within the time specified in sub-clause (2) the licensing authority is competent to hold spot inspection under Clause 4(4) of the Order.
While considering the application, the licensing authority shall in deciding whether to grant or refuse license for conducting public amusement, have regard to the following matters, namely :-
(a) the interest of public in general; and
(b) the status and antecedent of the applicant.
As per the amended Clause 4(7) of the Order the licensing authority shall dispose of the application within 15 days from the date of receipt of the certificate or report, as the case may be under sub-clause (2). The licensing authority may grant a license to the applicant in Form-2 on such terms and conditions and subject to such restrictions as it may determine. Where the licensing authority refused to grant a licence, it shall do so by order communicated to the applicant giving reasons in writing for such refusal. As per sub-clause (8) if the licensing authority does not dispose of the applications within the time specified under sub-clause (7), the licence shall be deemed to have been granted to the applicant.
3. Clause 7 deals with seating arrangements. Clause 8 deals with electrical installations. Clause 9 deals with inspections etc.
4. Most of the petitioners presented their applications to the licensing authority seeking permission to issue fresh licence or renewal of such license. The licensing authority refused to grant fresh licence or renewal. In some cases failed to take any decision in spite of existence of deeming clause.
5. Aggrieved by the in correct order passed by the licensing authority or on his inaction to take a decision within the time stipulated; the petitioners have filed these petitions.
6. For the purpose of disposal, all the cases are classified as follows :-
(i) Seeking for fresh licence or renewal for conducting video games for the year 1993/94.
(ii) seeking licence to conduct floor shows, Orchestra, live band, cabaret, classical dances etc.
(iii) to declare the Dart game as not a game of chance but a game of skill as such obtaining a licence is not required.
(iv) to declare that the 1989 Order has no application in respect of clubs or Associations which are carrying on games like chess, carrom, Rummy, Volley ball, Football, Basket ball.
(v) to declare that the order has no application in cases of clubs which have engaged in recreative activities to its members.
The common contention raised in all these petitions is that 1989 Order has no application to their cases.
7. Sri. H. B. Datar, learned Senior Counsel appearing for some of the petitioners argued as follows :
(1) Certain clauses in the Order will apply to cinemas or shows of such types only but not to video games.
(2) When applications submitted after complying with all the requirements as contemplated under the Order as per Clause 4(7) the licensing authority should have taken a decision within 15 days. Since it failed to take any decision within the time stipulated the licence sought for shall be declared deemed to have been granted.
(3) Final orders passed by the licensing authority disclose non-application of mind by the licensing authority to the relevant considerations as such the same are liable to be quashed.
8. Sri R. B. Nayak, learned counsel for petitioners in some of the writ petitions while adopting the arguments of Sr. Datar he further added one more contention namely that most of the orders deserve to be quashed for the reasons that they are all in a cyclostyled form.
9. Sri. C. K. Venkatesh, learned counsel for petitioners in some of the petitions while adopting the arguments of Shri Datar, he added by submitting that order under challenge to be quashed as licensing authority had failed to give reasons while rejecting applications.
10. Sri Ashok Haranahally, learned counsel for the petitioners in W.P. No. 179/94 contended that the request of the petitioner be declared as deemed to have been granted, because no action was taken by the licensing authority within 15 days on petitioner's application. Further he argued that for more than 7 to 8 years petitioner was carrying on business in video games and on every renewal time without any objection the same was got renewed. It is for the first time viz., for the present year even though this application was presented well within time and the conditions laid down in the Order were complied with the request came to be rejected that too after the statutory period of 30 days. Hence the petitioner is not bound by it and the same be declared as deemed to have been granted due to default on the part of the licensing authority concerned. Order at Annexure-A which is supposed to be an order refusing renewal is not an order in the eye of law. Because there is nothing to indicate that the licensing authority passed the same taking, into consideration compliance of other relevant consideration. A cyclostyled order cannot be equated to a considered order.
11. Submission of others is that the action of the licensing authority in not considering petitioners' request in conduct recreation or other live-band music etc., is illegal and improper exercise of power conferred under the Order.
11A. According to Sri. Gangi Reddy, the games like dart, chess, carrom, rummy, football, Valley ball and Basket ball are not games of chance but they are purely of skill. To play or exhibit such games or plays no licence is required by the members within their clubs. As such the licensing authority cannot insist on obtaining licence by those who are carrying on such games or shows. In support of these contentions Sri. Gangireddy placed reliance on a decisions of this Court in Rama Recreation Association v. Commissioner of Police, .
Thus arguing they submitted that all the petitioners filed in respect of such games or shows by allowed and the reliefs sought for in respective petitions be granted.
12. Sri Datar, Senior Counsel and Sri. Ashok Haranahally, further submitted that in case of Video games the Supreme Court has granted an injunction in S.L.P. No. 11012 of 1991 whereby the respondents therein have been restrained from interfering with conducting of video game business by the petitioner/s therein.
13. Sri Ashok Haranahally, submitted that the petitioner in W.P. 179/94 had earlier filed W.P. No. 7792/93 and the same was allowed on 29-7-1993. Then a request was made to declare that the licence requested be deemed to have been granted. This Court in the said writ petition on 29-7-1993 passed an order restraining the respondents from preventing the petitioner therein from operating the Floor shows.
14. As an answer to these contentions Sri Satish Doddamani, learned HCGP, argued as follows :-
1) That most of the contentions now raised in these petitions were canvassed in the case of M. Radhakrishna v. State of Karnataka, , wherein this Court after considering the scope of Ss. 2(14) and 31 of the 1963 Act - place of public amusement, video game parlour held that definition of video games parlour used therein is not exhaustive, but illustrative. It observed, that anything diverting a person from usual occupation or enabling him to play a game of skill or no skill, with access to public viz., video game parlour 'place of public amusement' is covered by S. 31 of the Act.
It further observed :
"(i) From the language employed in the definition of the 'place of public amusement', the necessary ingredients to bring within its ambit are : the public must have access to the place and anyone of the enumerated or illustrative events are conducted. The definition is not exhaustive, but illustrative. For instance, the expression 'any diversion or game or the means for carrying on the same is provided and to which public are admitted' clearly indicates that within the definition anything which diverts any person from his usual occupation or enables any person from his usual occupation or enables him to play a game will be an amusement and where that amusement is provided with access to the public as opposed to personal or private, it will be a place of public 'amusement' in English language, it is clear that any game which diverts a person from his usual occupation for entertainment would constitute 'amusement' which can even be listening to music or playing musical instrument or playing any game of skill or no skill which will give amusement to the person playing.
(ii) It would be incorrect to assert that the video games are not games of amusement merely because it is supposed to assist the person playing the games to acquire skill. The person who has acquired the skill of playing the game does not stop visiting vide parlour because he has acquired the required skill. He is likely to go back to it again and again for amusement. Viewed thus, the parlour run by the petitioners are places of amusement as defined under S. 2(14) of the Karnataka Police Act is not left in doubt. If the places of amusement, they are covered by the order issued under S. 31 of the Police Act by the Commissioner of Police."
2) Due to pressure of work the licensing authority was unable to pass a separate and speaking order in each case.
3) Circumstances existed in all the petitions were almost identical as such the licensing authority passed orders which look similar.
4) The said orders were passed after taking into consideration the relevant factors. Thus there was application of mind by the licensing authority while passing orders.
5) Due to pressure of work, and preoccupation with maintaining law and order problem the licensing authority was prevented from taking a final decision within 15 days. Therefore the contention that wherever decision not taken within 15 days their request deemed to have been granted has no substance as deeming clause is only directory and not mandatory.
6) Whether the petitioners are conducting games like dart, chess, carrom, rummy, volleyball, football, basketball which are games of skill and not games of chance are to be enquired into by the concerned authority or to decide on the report by the subordinates. Till then no licenses be granted.
7) The same will apply to games or shows like recreation activities in clubs. Thus arguing Sri Satish Doddamani, submitted that there is no merit in all these petitions and they are liable to be dismissed.
15. From the arguments advanced by both sides it is clear that the games or shows stated to conducted by the petitioners are at places known as public places. None of the games are devoid of some sort of amusement. Though it is argued that the 1989 order is not applicable to video games and the matter is pending before the Supreme Court in S.L.P. 11012 of 1991 but in view of S. 31 of the Act and the 1989 Order particularly which deal with the games, places etc., the only conclusion can be drawn is that it is difficulty to separate video game from any other public amusement. When once video game is brought within the purview of public amusement, the only answer is that for conducting shows in such video game parlours one has to obtain licence or to get it renewed as required under the Order. Any violation of which will definitely result in breach of the Order. The decision laid down in Radhakrishna's case dealt with the definition of video parlour game. Though in writ appeal the decision in Radhakrishna's case has been modified but the definition clause concerned it is not held that the definition as suggested in Radhakrishna's case is not applicable to video parlour. Thus even to conduct video games, licence has to be obtained under the Order. But the licensing authority on receipt of application can't straightway reject it arbitrarily without applying its mind to the relevant factors and without giving reasons in writing. No doubt by mere making an application will not confer a right on the applicant to compel the authority to issue licence. But where application is rejected the applicant will have a right to know for what reasons or circumstances the licensing authority has refused his application for licence. Time and again it is said that though the circumstances in all the cases similar but the authority can't pass an order by making use of a cyclostyled order. Explanation of pressure of work cannot be accepted as proper. In matters of the type, the licensing authority while passing order shall exercise judicious approach. If necessary the authority can make spot inspection along with the concerned authorities under clause 3 of the Order and after satisfying shall pass an order either to grant or refuse. The licensing authority has got authority to refuse, grant or to renew the licence. While doing so he shall take into consideration the antecedents of the applicant, safety, convenience, public order and comfort of the persons attending the exhibitions therein. For any refusal of licence, the licensing authority shall give reason in writing otherwise their livelihood will be deprived of Non-application of mind in passing an order will be arbitrary. Perusal of all the orders whether of fresh licence or renewal, they suffer from arbitrariness and non-application of mind to the relevant considerations. Hence, all those orders are quashed reserving liberty to the licensing authority concerned to hold enquiry either by himself or by his subordinate officers and to pass fresh orders in accordance with the Order within fifteen days from the date of receipt of the copy of this order.
16. Regarding the deemed licences are concerned the law contemplates that all the authorities shall take action within the time as it is an obligation on the part of the authorities concerned to act quickly and promptly. The authorities should be vigilant and not sleep over the matter when period for decision is fixed. In the instant cases no proper explanation has been given as to why no action was taken within the stipulated period. Hence petitioners were right in seeking for a declaration that they have obtained the licences by virtue of the deemed provisions under clause 4(8) of the Order. However in view of the circumstances explained above it is proper to give one more chance to the licensing authority to take a final decision in these matters also.
17. Regarding some recreation items floor shows, live-band music etc., the principles and observations narrated above will apply. In these cases also there is no attempt to know whether 1989 Order actually applies to these cases.
18. It is strange to find that some petitioners who have submitted their application for fresh licences or for renewal, without waiting for the reply have approached this Court for issuance of directions either for grant or renewal of their licences to conduct video games and other public amusements including the games of like nature. It is clear that if such applications are received by the licensing authority it is open for him to grant/renew licence in accordance with the Order within a reasonable time without giving scope for the petitioner to seek for a declaration that the aforesaid application has not been attended within 30 days.
19. Hence, all these petitions are disposed of with the following directions :
1) Wherever the petitioners' applications either for grant or for renewal of licence to conduct vide games, public amusements, floor shows or music, etc. have been rejected, the orders rejecting the applications are quashed with a direction that the respondents shall pass a considered order within 15 days from the date of receipt of this order.
2) Any games like dart, chess, carrom, rummy etc. which are not the games of chance but the games of skill and the games like football, volleyball, basket ball, etc. played by the members within their clubs, permission for such games from the licensing authority under the 1989 Order is not required as held by this Court in Rama Recreation Association v. Commissioner of Police, .
3) Wherever the licensing authority has not taken any action on the applications presented either for fresh licence or for renewal of the licence within the statutory period, now the respondents are directed to pass appropriate orders on such applications within 10 days from the date of receipt of this order.
4) While granting permission to conduct shows or games under 1985/1989 Orders, licensing authority will have right to impose reasonable restrictions regulating the same in order to safeguard the public order, welfare, morality and public health, etc.
5) Since vide games parlour, as observed, comes under 1989 Order it is open for the authorities concerned to consider whether para 7 of the 1989 Order which regulates seating arrangement, etc. is advisable and applicable.
6) If the authorities feel that in view of the deeming provision, the schedule fixed under the 1989 Order to dispose of the applications by the licensing authority is too short and impracticable in place like Bangalore to pass order immediately as the licensing authority will always be busy with other important duties, it is open for the authorities to seek appropriate amendment to the relevant provisions of the 1989 Order.
7) While granting licences the authorities are entitled to impose conditions which are reasonable, workable regulatory and prohibitory in nature. Because S. 31 of the Police Act gives power to the authority to regulate certain activities. But such regulation are not supposed to be oppressive in nature so as to make licensees difficult to comply with the licensing conditions.
With the above observation these writ petitions are disposed of.
20. Order accordingly.