Karnataka High Court
Mrs Cynthia vs The Commissioner on 11 October, 2017
Author: Vineet Kothari
Bench: Vineet Kothari
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 11TH DAY OF OCTOBER, 2017
BEFORE
THE HON'BLE Dr. JUSTICE VINEET KOTHARI
WRIT PETITION Nos. 35411-416/2017 (LB - RES)
BETWEEN
1. MRS.CYNTHIA
W/O PRAVEN
AGED ABOUT 38 YEARS
OFF/A. A.P. TOWER, BALLAL BAGH
KODIALBAIL, MANGALORE
R/O "SHEEBA SUHANI"
KOTTARA CROSS I STREET
BEJAI POST, MANGALORE
D.K. DISTRICT - 575004.
2. MRS.SUSHEELA.K.S
W/O H.M.NAGARAJ
AGED ABOUT 42 YEARS
OFF/A. MANJESH ARCADE
ASHOKNAGAR, MANGALORE
R/O NEAR S.D.C. BANK
ASHOKNAGAR POST, MANGALORE
D.K. DISTRICT - 575006.
3. MR. SONU PHILIP
S/O C.I. PHILIP
AGED ABOUT 32 YEARS
OFF/A. KANKANADY BYE PASS ROAD
KANKANADY, MANGALORE
R/O KAIPUZHA HOUSE
PAZHAVANGADI POST, RANNY
PATHANAMTHITTA DISTRICT
KERALA STATE - 689673.
4. MR. MAXIN K. KURIAN
S/O K.P. KURIAN
AGED ABOUT 36 YEARS
Date of Order 11.10.2017 W.P.Nos.35411-35416/2017
Mrs. Cynthia and others. Vs.
The Commissioner & Another
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OFF/A. BEJAI CHURCH CROSS ROAD
BEJAI, MANGALORE
R/O SAROJINI SHETTY COMPOUND
DHARMANAGAR, ULLALA
MANGALORE
D.K. DISTRICT - 575020.
5. MR. NAGESH
S/O LAXMINARAYAN
AGED ABOUT 35 YEARS
OFF/A. SONA PALACE BUILDING
NEAR INFOSYS TECHNOLOGY
KOTTARA BUS STOP JUNCTION
KOTTARA, MANGALORE
R/O UDDADA BETTU
KARAMAR HOUSE, MARAVOOR VILLAGE
BAJPE POST, MANGALORE
D.K. DISTRICT - 574142.
6. MR. RAKESH SHETTY
S/O JAYANAND SHETTY
AGED ABOUT 30 YEARS
OFF/A. SMART TOWER
NEAR K.M.C. HOSPITAL
JYOTHI CIRCLE, MANGALORE
R/O VYASANAGAR,
BEHIND KPT, MANGALORE
D.K. DISTRICT - 575004. ... PETITIONERS
(BY SRI. RAJARAM SOORYAMBAIL, ADVOCATE)
AND
1. THE COMMISSIONER
MANGALORE CITY CORPORATION
LALBHAG, MAIN ROAD
MANGALORE-575003.
2. COMMISSIONER OF POLICE
MANGALORE CITY
NEAR A.B. SHETTY CIRCLE
Date of Order 11.10.2017 W.P.Nos.35411-35416/2017
Mrs. Cynthia and others. Vs.
The Commissioner & Another
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STATE BANK, MANGALORE-01
D.K. DISTRICT. ... RESPONDENTS
(BY SRI. K.N.NITISH, ADV. FOR
SRI.K.V. NARASIMHAN,ADV FOR R-1;
SRI. D.R.ANANDEESHWAR, HCGP FOR R-2)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER DATED 01.07.2017 ISSUED BY
RESPONDENT NO.1 VIDE ANNEXURES-A TO A5 AND GRANT
AN INTERIM ORDER TO STAY THE EXECUTION OF
IMPUGNED ORDER ISSUED BY RESPONDENT NO.1 DATED
01.07.2017 VIDE ANNEXURES-A TO A5.
THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Mr. Rajaram Sooryambail, Adv. for Petitioners Mr. K.N.Nitish, Adv for K.V.Narasimhan, Adv. for R-1 Mr. D.R.Anandeeshwar, HCGP for R-2.
1. The petitioners have filed these petitions in this court with the following prayers:
"PRAYER WHEREFORE, the petitioner most respectfully prays that this Hon'ble Court may be pleased to:
a) Issue a writ in the nature of Certiorari or any other writ or order quashing the impugned order dated 01.07.2017 issued by 1st respondent vide Annexures-A to A5.
b) Issue any other writ, order or direction as this Hon'ble Court may deem fit to grant in the facts Date of Order 11.10.2017 W.P.Nos.35411-35416/2017 Mrs. Cynthia and others. Vs. The Commissioner & Another 4/8 and circumstances of the case including an order as to costs.
INTERIM PRAYER Pending disposal of this writ petition, petitioners pray that, this Hon'ble Court may be pleased to pass/grant an interim order of stay by staying the execution of impugned order issued by the 1st respondent dated 01.07.2017 vide Annexure-A to A5, in the interest of justice.
2. The respondent-Mangalore City Corporation has filed its Statement of Objections and also Additional Statement of Objections along with certain "Mahazar Reports" prepared by the Respondent-Mangalore City Corporation on 01.07.2017. Though it has been observed in the said "Mahazar Reports" that in the Spas run by the petitioners, the Female Therapists were giving massage to the Males in an obscene manner, but no such evidence has been placed on record. No statutory provision has been pointed by the Respondent-Mangalore City Corporation before this Court, which prohibits such an activity of massage being given by the persons of opposite sex. No other evidence or material has also been adduced by the Respondent-Municipal Body Date of Order 11.10.2017 W.P.Nos.35411-35416/2017 Mrs. Cynthia and others. Vs. The Commissioner & Another 5/8 about the obscenity part nor any specific notice has been given to the petitioners to controvert this allegation in the "Mahazar Reports" before the impugned order canceling their Trade Licence were passed by the Respondent-Public Body vide Annexure-A5 dated 01.07.2017.
3. The learned counsel for the petitioners has drawn the attention of the court towards a decision of the learned Single Judge of Madras High Court in the case of Influence Lifestyle Stores Pvt. Ltd. Vs. Government of Tamil Nadu [LAWS (MAD)-2009-7-695] quoting the Supreme Court's decision in the case of Anuj Garg and Others Vs. Hotel Association of India and Others [(2008) 3 SCC 1], and he has submitted that, the running of Spa with the cross massages done by persons belonging to other sex, there was no law regulating the field and therefore, such activity per se could not be prohibited.
4. The relevant portion of Para-8 of the said judgment of the learned Single Judge is quoted below for ready reference:
Date of Order 11.10.2017 W.P.Nos.35411-35416/2017 Mrs. Cynthia and others. Vs. The Commissioner & Another 6/8 "8. The Supreme Court in Para-43 of the judgment emphasized that the State's duty to ensure circumstances of safety which inspire confidence in women to discharge their duties. Para-43 reads as follows:
xxx xxx xxx xxx xxx The cases referred to earlier are all cases where there was a specific legislation curbing such activities. But in the case of running of a Spa with cross massages done by persons belonging to other sex, there is no law regulating the field. The only two provisions under the Madras City Police Act, 1888 is Sections 34 and
35. They read as follows:
xxx xxx xxx xxx xxx "In the light of the above, it can clearly be seen that the respondent-
police as on the date has no legal right to prevent an health Spa being operated by any citizen of this Country even if it is done by persons belonging to the opposite sex. As pointed out by the Supreme Court in Anuj Garg and Others Vs. Hotel Association of India and Others (supra) that a majoritarian impulses rooted in moralistic tradition cannot impinge upon individual autonomy. At the same time, there is no prohibition for the respondent-police to inspect and take appropriate action in Date of Order 11.10.2017 W.P.Nos.35411-35416/2017 Mrs. Cynthia and others. Vs. The Commissioner & Another 7/8 accordance with law, in cases of any criminal activities prohibited by law." The application is allowed to the extent indicated above. No costs. Application allowed."
5. In view of this legal position and there being no statutory specific legal bar governing the present case, the petitions are disposed of with a liberty and direction to the Respondent-Municipal Body to issue appropriate Show Cause Notice to the petitioners and then, after taking their objections and relevant evidence on record, pass fresh and appropriate orders in the matter before taking any coercive action against the petitioners like that of canceling of Trade Licence itself.
6. The impugned notices/orders issued against the petitioners vide Annexure-A Series dated 01.07.2017 shall not be enforced till such fresh and appropriate orders are passed by the competent authority of the Respondent- Mangalore City Corporation viz., the Commissioner of the said the said Corporation.
Date of Order 11.10.2017 W.P.Nos.35411-35416/2017 Mrs. Cynthia and others. Vs. The Commissioner & Another 8/8 The petitions are accordingly disposed of. No costs.
Sd/-
JUDGE KGR (Sl.No.47)