Madras High Court
S. Muthukumaraswamy, Proprietor Of ... vs The Government Of Pondicherry ... on 1 February, 2006
Author: V. Dhanapalan
Bench: V. Dhanapalan
ORDER V. Dhanapalan, J.
1. By consent of the counsel on either side, the writ petitions are taken up for disposal.
2. The petitioner in W.P. No. 39280 of 2005 has submitted that he is the Sole Proprietor of Fillo Hotel which was started by the previous owner in 1995. He purchased the hotel along with the business for a valid consideration of Rs. 45 lakhs from the previous owner by name P.A. Kochu Mathews, after obtaining a bank loan of Rs. 25 lakhs from Union Bank of India, Pondicherry Branch.
3. The said hotel has boarding and lodging facilities with 12 rooms for guests and had a valid Bar Licence, Boarding and Lodging Licence and licence for conducting Classical Dance Programmes, issued by the Excise Department and Municipal authorities.
4. After purchasing the hotel on 09.12.2002, he had applied for transfer of all licences to his name and got the Bar Licence transferred after paying a Name Transfer Fee for Rs. 4 lakhs; the Classical Dance Programme Licence and Trading Licence were also likewise transferred. He had also settled all the arrears of the previous owner towards ESI/PF contributions which had not been done since 1993.
5. The petitioner further submits that originally, the licence for conducting Classical Dance Programme used to be granted on annual basis and after July 2002, the Municipal authorities started renewing the licence for a period of three months only and when this was objected to, the second respondent stated that the same was necessitated due to technical reasons and since then, the renewal has been for three-monthly periods only. It is the further submission of the petitioner that the ticket fees of Rs. 50/- was enhanced to Rs. 100/- and he has been paying the Entertainment Tax of 45% regularly on a weekly basis and the Entertainment Tax paid by him ranges from Rs. 12,000/- to Rs. 15,000/- per week. He further states that Property Tax is also collected along with the application for the renewal of licence for Classical Dance Programme every March despite his objections to the revision.
6. The petitioner has stated in his affidavit that the last renewal of the licence was from 01.09.2005 to 30.11.2005. In such a situation, the petitioner had made an application for renewal of licence on 21.11.2005 along with original licence. On 01.12.2005, he was called over telephone by the Revenue Officer of the Pondicherry Municipality and served with the impugned order dated 30.11.2005 in PM/RO-II/CS/62-15/2005 passed by the second respondent. In the impugned order, it was stated that the petitioner's request for renewal of licence was refused on the alleged ground that Classical Dance was not being conducted but other nude or semi-nude shows were allegedly conducted and that audience had allegedly resorted to violence, giving rise to law and order problems. It was alleged that information had been received from police regarding this. According to the petitioner, the allegations are completely baseless and farthest from truth and he has only been carrying on Classical Dance Programmes and the second respondent had not chosen to put forth these allegations to the petitioner and no opportunity was given to him to refute the same.
7. According to the petitioner, Pondicherry is a former French Colony attracting a number of tourists from France and other countries. The Aurobindo Ashram also attracts tourists from all over the world. The hotels in Pondicherry also provide Classical Dance performances to acquaint the foreign tourists with Indian culture and there are four hotels in the town which have such performances and there has been constant harassment of the petitioner by the police for extraneous considerations. In fact, a criminal complaint had also been filed against the petitioner and on trial, this had ended in acquittal of all the charges by the learned Judicial Magistrate, Pondicherry. Therefore, the need for renewal of licence was necessitated by the reasons stated above and only on having the licence renewed, the petitioner can continue the conduct of Classical Dance programmes.
8. It is the contention of the petitioner that on the contrary, the second respondent has passed the impugned order without affording an opportunity to him for hearing, stating that the first respondent has passed G.O. Ms. No. 27/LAS/2005 dated 20.09.2005 in public interest, prohibiting grant of any fresh licences for conducting Indian Classical Dance, Western Dance and Floor Shows. It is the case of the petitioner that the first respondent has only prohibited grant of fresh licences and has not prohibited renewal of existing licences and in fact, two hotels continue to retain their licences for conducting such programmes and the second respondent, without understanding the import of the Government Order has erroneously stated that the Government is also not to issue any fresh licence. It is the further contention of the petitioner that consequent to the issuance of the Government Order dated 20.09.2005, the present impugned order dated 30.11.2005 has been passed by the second respondent refusing renewal of licence.
9. The petitioner in W.P. No. 39281 of 2005 is the Sole Proprietor of Sun Guest House, engaged in hotel business, since September 2000. The said hotel has boarding and lodging facilities with 12 rooms for guests and had a valid Bar Licence, Boarding and Lodging Licence and licence for conducting Madras Dance Programmes, issued by the Excise Department and Municipal authorities.
10. The petitioner further submits that originally, the licence for conducting Madras Dance Programme used to be granted on annual basis and after July 2002, the Municipal authorities started renewing the licence for a period of three months only and when this was objected to, the second respondent stated that the same was necessitated due to technical reasons and since then, the renewal has been for three-monthly periods only.
11. It is the further submission of the petitioner that the ticket fees of Rs. 50/- was enhanced to Rs. 100/- and he has been paying the Entertainment Tax of 45% regularly on a weekly basis and the Entertainment Tax paid by him ranges from Rs. 12,000/- to Rs. 15,000/- per week. He further states that Property Tax is also collected along with the application for the renewal of licence for Madras Dance Programme every March despite his objections to the revision.
12. The petitioner has stated in his affidavit that the last renewal of the licence was from 01.09.2005 to 30.11.2005. In such a situation, the petitioner had made an application for renewal of licence on 21.11.2005 along with original licence. On 01.12.2005, he was called over telephone by the Revenue Officer of the Pondichery Municipality and served with the impugned order of the second respondent dated 30.11.2005 in PM/RO-II/CS/62-12/A4/2005. In the impugned order, it was stated that his request for renewal of licence was refused on the alleged ground that Madras Dance was not being conducted but other nude or semi-nude shows were allegedly conducted and that audience had allegedly resorted to violence, giving rise to law and order problems. It was alleged that information had been received from police regarding this. According to the petitioner, the allegations are completely baseless and farthest from truth and he has only been carrying on Madras Dance Programmes and the second respondent had not chosen to put forth these allegations to the petitioner and no opportunity was given to him to refute the same.
13. The petitioner has also pointed out the fact that Pondicherry is a former French Colony attracting a number of tourists from France and other countries. The Aurobindo Ashram also attracts tourists from all over the world. The hotels in Pondicherry also provide Madras Dance performances to acquaint the foreign tourists with Indian culture and there are four hotels in the town which have such performances and there has been constant harassment of the petitioner by the police for extraneous considerations.
14. Therefore, the need for renewal of licence was necessitated by the reasons stated above and only on having the licence renewed, the petitioner can continue the conduct of Madras Dance programmes.
15. It is the contention of the petitioner that on the contrary, the second respondent has passed the impugned order without affording an opportunity to the petitioner for hearing, stating that the first respondent has passed G.O. Ms. No. 27/LAS/2005 dated 20.09.2005 in public interest, prohibiting grant of any fresh licences for conducting Indian Classical Dance, Western Dance and Floor Shows. It is the case of the petitioner that the first respondent has only prohibited grant of fresh licences and has not prohibited renewal of existing licences and in fact, two hotels continue to retain their licences for conducting such programmes and the second respondent, without understanding the import of the Government Order has erroneously stated that the Government is also not to issue any fresh licence. It is the further contention of the petitioner that consequent to the issuance of the Government Order dated 20.09.2005, the present impugned order dated 30.11.2005 has been passed by the second respondent refusing renewal of licence.
16. Aggrieved by the order of the second respondent dated 30.11.2005, the petitioners in both the cases have challenged the writ petition on the following grounds:
i. That the impugned orders are arbitrary to law passed in violation of principles of natural justice inasmuch as the petitioners were not granted an opportunity of being heard before passing the impugned orders;
ii. That the alleged ground for refusal of renewal was non-existent and without basis and further, they have a fundamental right of freedom to carry on a lawful trade and business and conducting Classical Dance/Madras Dance is an absolute right available to the petitioners, subject to the restrictions, and the present impugned orders are an infringement upon the petitioners' fundamental rights and are as such null and void;
iii. That Classical Dance/Madras Dance does not, in any way, contravene public morals and decency and the artistes who perform the Classical Dance programmes also have the fundamental right to carry on their lawful avocation and thus the impugned orders contravene their rights also;
iv. That the second respondent, before passing the impugned order had failed to see that the Government Order dated 20.09.2005 did not prohibit the renewal of licences but only prohibited grant of fresh licences and the said order had no application to the case of the petitioners;
v. That the second respondent failed to see that Section 349 of the Pondichery Municipalities Act, 1973 (hereinafter referred to as "the Act") permitted grant of licences and there could not be any executive order contrary to the provisions of the Act;
vi. That the second respondent also failed to see that two other hotels namely Hotel Mass and Hotel Blue Star continue to have licences for dance programmes and the action of the second respondent in passing the impugned orders against the petitioners is arbitrary and violative of Article 14 of the Constitution of India;
vii. That the action of the second respondent has been vitiated by arbitrariness and malafides and he has failed to failed to take into account the relevant considerations and has also erred in taking into account irrelevant and extraneous considerations in passing the impugned orders;
viii. That the petitioners have been periodically granted renewal of licence and had a legitimate expectation that the said licence would be renewed and the impugned orders are also violative of the same;
ix. That the scheme of the Act is such that renewal of licence is automatic and revocation or suspension of licences can only be made for the reasons set out in Section 350 and in the case of the petitioners, no such reason is available for refusal to renew and x. That the impugned orders are bad in law and therefore, liable to be set aside.
17. Mr. K. Chandru, learned Senior Counsel for the petitioners, during the course of his exhaustive arguments, has submitted that the impugned orders challenging the writ petitions, are in infringement of the constitutional rights and various provisions of the Act, which deal with the control, administration and regulation in respect of renewal of licence. In support of the petitioners' case, he has pointed out that Indian Classical Dance, in all its form, is encouraged by the Government of India and other State Governments and Classical Dances are performed even in Government functions and in other social gatherings and that there is no object sought to be achieved by the issue of the impugned orders inasmuch as the existing licences issued for conducting Classical Dance are not disturbed by the second respondent and therefore, the impugned orders are bad for selective discrimination.
18. The learned Senior Counsel for the petitioners has also questioned the power of the Government in issuing such a Government Order which contravenes Article 239 of the Constitution of India and it is not issued by the Lt. Governor of Pondicherry and has submitted that the Legislature of Pondicherry has given powers to Municipal authorities to grant / renew licence to the applicants seeking licence according to the provisions of the Act.
19. In support of his above contention, the learned Senior Counsel for the petitioners, has placed reliance on a decision of the Supreme Court J.P. Bansal v. State of Rajasthan and Anr. which reads as follows:
The Constitution requires that action must be taken by the authority concerned in the name of the Governor. It is not till this formality is observed that the action can be regarded as that of the State. Constitutionally speaking, the Council of Ministers are advisers and as the Head of the State, the Governor is to act with the aid or advice of the Council of Ministers. Therefore, till the advice is accepted by the Governor, views of the Council of Ministers do not get crystallised into action of the State.
20. It is also the contention of the learned Senior Counsel for the petitioners that the respondents are very well within the powers to act in accordance with the provisions of the Act and take appropriate action under the relevant provisions of the Act.
21. The learned Senior Counsel for the petitioners has pointed out that the Constitution of India, under Part-III, has guaranteed fundamental rights, more particularly, protection of certain rights regarding freedom of speech, etc. under Article 19(1)(g) which provides as follows:
to practise any profession, or to carry on any occupation, trade or business.
and also Clause 19 (6) which provides as under:
Nothing in sub-clause(g) of the said clause shall affect the operation of any existing law insofar it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and in particular [nothing in the said sub-clause shall affect the operation of nay existing law insofar as it relates to, or prevent the State from making any law relating to:
i. the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or ii. the carrying on by the State, or by a Corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise].
22. The learned Senior Counsel for the petitioners has also referred to Sections 349, 350 and 352 of the Act which provide as below:
349. Application and grant of licence:
3(a) If the Commissioner, after consulting such authority or officer as the Government may from time to time, by notification direct, is satisfied
(i) that the enclosed place or building may safely be used for the purpose of public resort or entertainment proposed.
350. Revocation or suspension of licence The Commissioner may, for reasons to be recorded in writing, revoke or suspend the licence when he has reason to believe:-
a. that the licences has been fraudulently obtained;
b. that the enclosed place or building has been used for other purposes of public resort or entertainment that that for which the licence was granted;
c. that the place or building can no longer be safely used for the purpose for which the licence was granted d. that any condition of the licence has been contravened.
352. Power to enter place of public resort to inspect licence or to prevent further use:-
It shall be lawful for any officer of police in charge of a station or of higher rank than Head Constable or any other officer duly authorised by the Government by notification, to enter at any time for enclosure or building for which licence is required under this Act, to inspect the licence if any has been issued, and, if there is no licence or if the conditions of the licence are not observed and if he sees reason to apprehend imminent danger to the public, to prevent the further use of such enclosure or building as a place of public resort or entertainment.
23. In support of his contentions, the learned Senior Counsel for the petitioners has placed reliance on a decision of the Supreme court wherein it was held as under:
If the power exercised by the Collector was a quasi judicial power-as we hold it to be - that power cannot be controlled by the directions issued by the Board. No authority however high placed can control the decision of a judicial or a quasi judicial authority. That is the essence of our judicial system. There is no provision in the Act empowering the Board to issue directions to the assessing authorities or the appellate authorities in the matter of deciding disputes between the persons who are called upon to pay duty and the department. It is true that the assessing authorities as well as the appellate authorities are judges in their own cause; yet when they are called upon to decide disputes arising under the Act, they must act independently and impartially. They cannot be said to act independently if their judgment is controlled by the directions given by others. Then, it is a misnomer to call their orders as their judgments; they would essentially be the judgments of the authority that gave the directions and which authority had given those judgments without hearing the aggrieved party. The only provision under which the Board can issue directions is Rule 233 of the Rules framed under the Act. That rule says that the Board and the Collectors may issue written instructions providing for any supplemental matters arising out of these Rules. Under this rule, the only instruction that the Board can issue is that relating to administrative matters; otherwise that rule will have to be considered as ultra vires Section 35 of the Act.
24. Further, the learned Senior Counsel appearing for the petitioners has drawn the attention to the fact that Section 350 of the Act, gives the power of revocation or suspension of licence and Section 352 deals with the power to enter place of public resort to inspect licence or to prevent further use and thus, these provisions have given enormous powers to the Municipal authorities to regulate, control and grant licence and there is no need for the Government to come out with such a Government Order prohibiting issue of licence based on which the present impugned orders dated 30.11.2005 has been passed and is the subject matter of the challenge.
25. The learned Senior Counsel for the petitioners has made it very clear that the Order passed by the Government is exfacie illegal and against the Constitutional rights guaranteed under Article 19(1)(g) of the Constitution of India and there is a discrimination motivated by some persons who have already had the licence and are conducting entertainment programmes and in order to monopolise their business and at their instance, the impugned orders in these writ petitions have been passed and this amounts to discrimination and violation of Article 19(1)(g) of the Constitution of India.
26. He has further contended that in any event, the power of issuing such a Government Order in directing Municipal authorities not to issue any fresh licence for the above-mentioned purposes in any permanent building as defined under Rule 2(c) of Pondicherry Municipalities (Places of Public Resort and Entertainment) Rules 1950 (hereinafter referred to as "the Rules") is an arbitrary exercise of powers and against the constitutional guarantee and as such, the same is infirmed by its prohibition clause and needs to be quashed and in the event of that Government Order getting quashed, the present impugned orders dated 30.11.2005, which are based on the Government Order dated 20.09.2005 cannot be sustainable and hence, need to be quashed.
27. The learned Senior Counsel for the petitioners has placed reliance on a decision of the Constitution Bench of the Supreme Court reported in AIR 1970 SC 93 Mohd. Faruk v. State of Madhya Pradesh and Ors. which reads as follows:
The Notification dated 12.01.1967 issued by the Governor of Madhya Pradesh in exercise of the powers conferred under Section 430(3) of the Act canceling confirmation of the bye-laws made by the Jabalpur Municipal Committee for inspection and regulation of slaughter houses insofar as the bye-laws relate to slaughter of bulls and bullocks, which has the effect of prohibiting the slaughter of bulls and bullocks within the municipality of Jabalpur imposed a direct restriction upon the fundamental right of the petitioner and is ultra vires as infringing Article 19(1)(g) of the Constitution.
The impugned notification though technically within the competence of the State Government, directly infringes the fundamental right of the petitioner guaranteed by Article 19(1)(g), and may be upheld only if it be established that it seeks to impose reasonable restrictions in the interests of the general public and a less drastic restriction will not ensure the interest of the general public. The Court must in considering the validity of the impugned law imposing a prohibition on the carrying on of a business or profession, attempt an evaluation of its direct and immediate impact upon the fundamental rights of the citizens affected thereby and the larger public interest sought to be ensured in the light of the object sought to be achieved, the necessity to restrict the citizen's freedom, the inherent pernicious nature of the act prohibited or its capacity or tendency to be harmful to the general public, the possibility of achieving the object by imposing a less drastic restraint, and in the absence of exceptional situations such as the prevalence of a state of emergency-national or local- or the necessity to maintain essential supplies, or the necessity to stop the activities inherently dangerous, the existence of a machinery to satisfy the administrative authority that no case for imposing the restriction is made out or that a less drastic restriction may ensure the object intended to be achieved.
28. The second respondent has filed a Common Counter in both the writ petitions and has submitted that he is the Executive Engineer and is also holding the additional charge as Commissioner, Pondicherry Municipality as on date and is acquainted with the facts of the case covered by these writ petitions both of which have been filed for the grant of the relief of issue of a writ of certiorarirfied mandamus calling for the records of the second respondent relating to the order dated 30.11.2005 in PM/RO-II/CS/62-15/2005 (in W.P. No. 31280 of 2005) and order dated 30.11.2005 in PM/RO/II/CS-62-12/AR/2005 (in W.P. No. 31281 of 2005) and quash the said orders and consequently direct the respondents to renew the licences to the petitioners using their respective premises as a place of public resort for conducting Classical Dance/Madras Dance Programme.
29. The second respondent has denied all the allegations, claims and averments contained in the affidavits filed in support of the writ petitions except those which are specifically admitted.
30. According to the second respondent in both the writ petitions, it is true that the Pondicherry Municipality granted licence to the petitioner-1 i.e. Fillo Hotel, to use the first floor of the building bearing Door No. 4/14, Kamaraj Salai, Pondicherry, for the conduct of Classical Dance Programme initially for the period from 06.07.2001 to 05.07.2002 and in respect of petitioner - 2, i.e. Sun Guest House, the Pondicherry Municipality granted licence to use the third floor of the building bearing door No. 534 at Anna Salai, Pondicherry for the conduct of Madras Dance Programme, initially for the period from 11.09.2000 to 31.03.2001 and thereafter, the licencea in respect of the above-mentioned hotels, were renewed upto 31.03.2003 on annual basis.
31. It is the case of the second respondent in both the writ petitions that in the meeting held on 18.03.2003 in the Chamber of the Collector of Pondichery to review the law and order situation, it was informed that there were complaints on the performance of Classical dances conducted in the hotels and hence, it was decided in the said meeting that such dances should not be allowed to be performed in the hotels.
32. It is the further case of the second respondent in both the writ petitions that Rule 26(3) of the Rules lays down that annual licences shall be granted in respect of permanent buildings provided that for reasons to be recorded in writing, the Commissioner may grant a licence so as to be valid for a period of less than one year. Further, Section 349(4) of the Act states that every licence granted shall state the period for which it is to continue in force and shall cease to be in force on the expiration of the said period. In view of the said statutory position, licences were granted only for a period of three months, i.e. from 01.04.2003 to 30.06.2003.
33. The second respondent in both the writ petitions has also contended that the issue relating to the conduct of such dance programmes in the hotels was raised during the Budget Session on the Floor of the Pondicherry Assembly Session and objections were raised on the basis of the claim that such dances in the hotels were immoral and demoralise the people. The Hon'ble Minister for Local Administration replied that the matter would be examined and appropriate decision would be taken in the matter. However, in the meanwhile, the licences issued to the hotels for conduct of Classical Dance Programmes were renewed from time to time for shorter duration and the last renewal was made for the period from 01.09.2005 to 30.11.2005. The claim of the petitioners that they had raised objections to the renewal of licences for such shorter duration is not true and denied inasmuch as the petitioners did not raise any objection either orally or in writing and the said allegation is absolutely untrue.
34. The second respondent has also admitted that the petitioners submitted their applications for renewal of licences. As per the provision under Section 349(3)(a) of the Act, the Commissioner has to consult such authority or office as the Government may direct, before granting or refusing any licence. In this regard, the Government have prescribed the Additional District Magistrate, Pondicherry and Senior Superintendent of Police as the authorities to be consulted vide Notification issued in G.O. Ms. No. 383 dated 30.12.1976 of the Local Administration Department. In compliance, the Senior Superintendent of Police was consulted on that issue relating to grant of licence and the views offered by the Additional Senior Superintendent of Police, in respect of both the writ petitioners, are as follows:
Licences granted for Classical Shows are being misused and reportedly these commercial establishments are staging semi-nude/nude dances in the garb of Indian Classical dances. This has invited a lot of criticism from the members of the public who are of the opinion that these shows are nothing but obscene acts and that the administration was turning a Nelson's eye owing to other considerations. In addition, on several occasions, during the course of these shows, the audience has indulged in acts of violence requiring the police intervention and registration of criminal cases. Thus, these shows are perennial source of law and order problems and hence, are not desirable.
In fact, we are of the opinion that all the licensed dance shows under various nomenclatures need to be closed down in order to maintain peace and tranquility in the Territory.
Hence, the Police Department is not in favour of granting any further licences for the conduct of the so-called Indian Classical Dances.
35. The second respondent has also pointed out that a news-item has been reported in the New Indian Express on 5th June 2004 revealing that Pondicherry has become an ideal destination for cabaret. The dancing women turn up in bikinis, they slink away to one corner of the floor where they disrobe themselves and appear nude for a couple of minutes before retreating fast into the dressing rooms and during special shows held during Deepavali and New Year, the women are believed to dance nude. The dance undertaken by these women is more of a selling point for commercial sex. Therefore, it is clear that once the two statutory authorities nominated by the Government of Pondicherry, who are required to be consulted by the Commissioner of Pondicherry Muncipality, in the matter of grant of licence, have expressed the view that the Department of Police is not in favour of granting any further licence for the conduct of the so-called Indian Classical Dance shows in the hotels, it would not be illegal for the Commissioner to rely on the views expressed by the aforesaid authority in the matter of issue/renewal of licence.
36. It is further submitted by the second respondent that the views of the senior police officer of high rank, who has been statutorily so appointed for the purpose of consultation, cannot be ignored and the views expressed by the Additional Senior Superintendent of Police are based on real fact situation and in the interest of general public, which is the paramount consideration of the Municipality. The view expressed by the statutory authority is very clear and recommends that all the licensed dance shows under the various nomenclatures need to be closed down in order to maintain peace and tranquility in the Territory.
37. It is the strong case of the second respondent that the Government has also taken a decision that it is not in public interest to grant any further licence for such dance programmes in any form and accordingly, directions have been issued to all Municipal authorities not to issue any fresh licence vide G.O. Ms. No. 27 dated 20.09.2005 of the Local Administration Department Secretariat and based on that, the renewal of licence to the petitioners was refused.
38. It is contended by the second respondent that Section 349(b) of the Act provides only for recording the reasons in writing for refusal of licence and it does not provide for any quasi-judicial procedure such as affording an opportunity of being heard in person before refusing the licence. That apart, as per Section 349(4) of the said Act, every licence granted shall cease to be in force automatically on the expiration of that period mentioned in the licence. It is the duty and responsibility of the Government to safeguard the identity and sanctity of the tradition and culture of the Union Territory from any moral degradation and that tourism cannot be promoted at the cost of moral degradation in the society and it is the duty of the police to keep a constant vigil in this regard.
39. It is the further case of the second respondent that the Inspector of Police, Orleanpet, Pondicherry has brought to the notice of the Commissioner, Pondicherry Municipality that a case has been registered in Cr. No. 15/2004 under Section 294 read with Section 34 IPC against two girls and one male person who were found dancing in one of the petitioners hotel, viz., Hotel Fillo, in an obscene manner and a copy of the F.I.R. has also been marked to the Commissioner of Pondicherry Municipality. The second respondent further submits that the claim of the petitioners that there was an acquittal in the said criminal case is immaterial to the present issue but the mere filing of the said criminal case only points out the fact that such incidents do occur during the performance of the so-called Indian Classical Dance.
40. According to the second respondent, the claim of the petitioners that G.O. Ms. No. 27 dated 20.09.2005 has only prohibited the grant of fresh licences and has not prohibited the renewal of existing licences, is absolutely baseless and incorrect. It is the submission of the second respondent that any licence granted on expiration of that period is ceased to be in existence after that period is over and as such, there is no arbitrariness in passing the said impugned orders and it is strictly in accordance with the provisions of the Act that the impugned orders have been passed. It is also the strong case of the second that there is no provision under Section 349 of the Act to provide an opportunity to the petitioners of being heard and the views of the police authority are sufficient to discontinue the licence and also submitted that there is no infringement of the right of the petitioners to carry on their trade, business or profession inasmuch as they are running their hotel business and performance of Classical Dance programme in their hotel premises cannot be deemed to be a trade or profession or business and thus, no interference is made by the respondents and therefore, there is no violation of the petitioners' right under Article 19(1)(g) of the Constitution of India.
41. It is the further case of the second respondent that the claim in respect of two other hotels, namely Blue Star and Hotel Mass in Pondicherry are conducting the Floor Shows, are baseless for the reason that in the independent suit filed by the said hotels, the Civil Courts have granted injunction restraining the Municipality from interfering with the conduct of Classical Dances in the said hotels and as such, there is no case of violation of Article 14 of the Constitution of India.
42. The further contention of the respondents is that the G.O. Ms. No. 27 of 2005 dated 20.09.2005 has been issued by the Government in the larger public interest involved and hence, the impugned orders dated 30.09.2005 refusing renewal of licence of the petitioners, based on the above-said Government Order, are very much valid and in such a situation, the writ petitions filed by the petitioners are devoid of merits and are liable to be dismissed with costs.
43. In respect of the contention of the petitioners that renewal of licence is automatic, Mr. T. Murugesan, learned Government Pleader-cum-Public Prosecutor, Pondicherry appearing for the respondents has referred to various provisions of the Act like powers and functions of Municipality, inter-departmental consultation, etc. more particularly to Section 394(4) of the Act which states that every licence granted shall cease to be in force on the expiration of the period mentioned and therefore, renewal of licence would also amount to grant of fresh licence.
44. The learned Senior Counsel for the respondents has also contended that the impugned orders do not in any way infringe the rights of the petitioners to carry on their occupation or trade or business inasmuch as they are running hotel business and performance of Classical Dance programmes in hotels cannot be deemed to be a trade or profession or business of the petitioners and thus, there is no violation of petitioners' right under Article 19(1)(g) of the Constitution of India.
45. The learned Senior Counsel for the respondents has indicated that a case has been registered in Cr. No. 15/2004 against two girls and one male person who were found dancing in one of the petitioners hotel, viz., Hotel Fillo, in an obscene manner and a copy of the F.I.R. has also been marked to the Commissioner of Pondicherry Municipality. In addition to that, the Government has also passed G.O.Ms. No. 27 dated 20.09.2005 prohibiting grant of fresh licences.
46. The learned Senior Counsel for the respondents submits that in view of the above, the renewal of licence has been refused to the petitioners in the impugned orders and thus, the action of the second respondent is not arbitrary or in violation of Article 14 or 19(1)(g) of the Constitution of India. He has further mentioned that two other hotels are running such programmes even today as there is injunction from the Civil Courts to Municipality in interfering with such performances and thus, there is no discrimination. In such view of the matter, the impugned orders are in larger public interest and therefore, the writ petitions are devoid of merits and liable to be dismissed.
47. Heard both sides.
48. Upon perusing the affidavits filed in support of the writ petitions and the counter affidavit filed by the second respondent and based on the submissions made by the learned Senior Counsel for either side, it is seen that the impugned orders have been passed in violation of principles of natural justice as there was no opportunity given to the petitioners before passing the impugned orders. It is also seen that the impugned orders are in infringement of the fundamental right to practise any profession or to carry on any occupation, trade or business under Article 19(1)(g) of the Constitution of India. It is also made clear that Section 349 of the Act has permitted grant of licences and thus, there could not be any executive order contrary to the provision of the Act also in view of the fact that Sections 350 and 352 of the Act have given the power of regulation in respect of grant of licence to the Municipal authorities. There is also selective discrimination as some of the Hotels in Pondicherry have been granted licence for performance of Indian Classical Dance and thus, there is a clear violation of Article 14 of the Constitution of India. Further, the impugned orders have been passed taking into account irrelevant and extraneous considerations and as such, the action of the second respondent is vitiated by arbitrariness and malafides.
49. It is seen that the petitioners have firstly questioned the power of the Government in issuing such an order which infringes the very fundamental rights conferred on the citizens under Article 19(1)(g) of the Constitution of India and also the provisions of Sections 349, 350 and 352 of the Act.
50. The second respondent has brought to the notice of the Court that under Section 349 of the Act read with Rules, the basic requirement is to have inter-departmental consultation with Additional District Magistrate and Senior Superintendent of Police. Accordingly, when such consultation was made, the Additional District Magistrate said that the claim can be considered subject to other condition being satisfied, i.e. the grant of No Objection Certificate from the police authorities. Since this is the reason that the impugned orders came to be passed, it is the case of the petitioners that they have satisfied all the requirements and it is the bounden duty of the respondents to consider and scrutinize the application if there is no further defect and the respondents have got ample powers to decide the issue in accordance with the provisions of the Act, more particularly, under the provisions contemplated under Sections 349, 350 and 352 of the Act. Instead of taking such a course, the second respondent has decided to follow the Government Order No. 27 dated 20.09.2005 which is the subject matter of the other writ petition wherein this Court has quashed the conflicting portion, i.e. the prohibition portion of the Government Order contrary to the fundamental freedom to practise any profession or to carry on any trade or business.
51. Since the second respondent has taken the decision in the issuance of the present impugned orders, on the basis of the Government Order in which the conflicting portion has been quashed in the other writ petition, the present impugned orders cannot be sustainable and in such view of the matter, the impugned orders dated 30.11.2005 are in nullity and are liable to be quashed.
52. While doing so, this Court cannot keep the public interest in doldrums and there must be a cautious approach to the system of governance and public interest. Here, it is worthwhile to refer to the decision of the Supreme Court J.P. Bansal v. State of Rajasthan and Anr. which reads as follows:
Statute being an edict of the legislature, it is necessary that it is expressed in clear and unambiguous language. Where, however, the words were clear, there is no obscurity, there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for the Court to innovate or take upon itself the task of amending or altering the statutory provisions. In that situation, the Judges should not proclaim that they are playing the role of a law-maker merely for an exhibition of judicial valour. They have to remember that there is a line, though thin, which separates adjudication from legislation. That line should not be crossed or erased.
53. Hence, when there is a provision under Section 349 of the Act which stipulates clearly as to what is to be done and when such unambiguous provision is not properly regulated, considered and scrutinized by the respondents, this Court has got ample power to direct the respondents to apply the provisions stipulated in the Act in respect of consideration of renewal of licence.
54. As pointed out by the learned Senior Counsel for the petitioners, it is worthwhile to consider the decision of the Constitution Bench of the Supreme Court of India Mohd. Faruk v. State of Madhya Pradesh and Ors. which reads as follows:
The Notification dated 12.01.1967 issued by the Governor of Madhya Pradesh in exercise of the powers conferred under Section 430(3) of the Act canceling confirmation of the bye-laws made by the Jabalpur Municipal Committee for inspection and regulation of slaughter houses insofar as the bye-laws relate to slaughter of bulls and bullocks, which has the effect of prohibiting the slaughter of bulls and bullocks within the municipality of Jabalpur imposed a direct restriction upon the fundamental right of the petitioner and is ultra vires as infringing Article 19(1)(g) of the Constitution.
55. Mr. K. Chandru, the learned Senior Counsel for the petitioners has placed further reliance on a case reported in All England Law Reports (1968) which reads as follows:
Reliance was placed on a passage in the speech of Earl Cairns L.C., in Julius v. Lord Bishop of Oxford. Lord Cairns said that the cases decided (7):
... that where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the court will require it to be exercised.
56. Thus, it is made clear by the learned Senior Counsel for the petitioners that the power vested with a public officer must be exercised and in case, it is not properly exercised, the Court will require it to be exercised. In pointing out the infringement of the rights guaranteed under Article 19(1)(g) of the Constitution of India .
57. In view of the above decisions and also decision made in the other Writ Petition No. 34460 of 2005 in quashing the prohibition portion of the impugned Government Order in G.O. Ms. No. 27/LAS/2005 dated 20.09.2005, wherein it was held as under, In such view of the matter, the impugned Government Order is quashed to the extent of prohibiting the authorities from issuing any fresh licence insofar as the performance of Indian Classical Dance is concerned as it is an infringement of the fundamental right guaranteed by the Constitution of India and therefore, the particular portion prohibiting issue of any fresh licence has to be struck off.
While doing so, this Court is conscious of the larger public interest involved in relation to maintaining public order, decency and morality and the authorities are empowered to regulate the same by invoking the provisions of the Act to prevent any act which is inherently dangerous, noxious or injurious to public interest, health or safety or is likely to prove nuisance to the community. In such a situation, the respondents can very well invoke the provision under Section 352 of the Act or any law time being in force to prevent misuse or abuse of any licence granted or to be granted. Further, it is open to the respondents to amend the Act accordingly, if necessary.
In view of the above, the impugned order is quashed only to the extent indicated above and the issues raised by the petitioner are answered accordingly and the writ petition is allowed to that extent.
the impugned orders dated 30.09.2005, which are consequential orders of the Government order, are quashed and considering the facts and circumstances of the cases, this Court is inclined to direct the second respondent in each of the writ petitions to consider the application of the petitioners for renewal of licence afresh and pass orders thereon within a period of eight weeks from the date of receipt of a copy of this order.
Accordingly, the writ petitions are allowed and consequently, connected W.P.M.P.s are closed. No costs.