Karnataka High Court
R. Shankaregouda vs The Commissioner Of Police, Bangalore on 11 March, 1998
Equivalent citations: ILR1998KAR3141, 1998(3)KARLJ494
Author: Tirath S. Thakur
Bench: Tirath S. Thakur
ORDER
1. Can the Licensing Authority exercising powers under the Licensing and Controlling of Places of Public Amusements (Bangalore City) Order, 1989, refuse a licence on the ground that the grant would offend the provision of any other statute in force? What is 'Entertainment' within the meaning of Rule 11 of the Karnataka Excise Licences (General Conditions) Rules, 1967? Should the term be interpreted ejusdem generis having regard to the Company it keeps in the said provision, or can the wide interpretation adopted by the Licensing Authority be accepted? These are some of the questions that fall for consideration in this bunch of petitions which assail the validity of orders passed by the Licensing Authority refusing to the petitioners licences to provide live music in their Bar and Restaurants, inter alia on the ground that live music is 'Entertainment' within the meaning of that expression in Rule 11 of the General Conditions Rules hence impermissible in a place where liquor is served.
2. The petitioners own Restaurants that are located in different parts of the City of Bangalore. Each one of them except petitioner-in W.P. No. 38164 of 1997 has obtained what is called a CL-9 License under the Karnataka Excise Licences (Safe of Indian and Foreign Liquors) Rules, 1968. These licenses are permissible only for places where sale of liquor is accompanied by sale of food or other refreshments. For the past few years, the petitioners have been offering to their patrons liquor which their licences permit them to sell and food to the accompaniment of live-band music played for the kind of ambience that is found conducive by their customers to good food and drinks. Business sailed smoothly till the year 1995 when the Licensing Authority refused licences to the petitioner for playing live-band music under the Licensing and Controlling of Places of Public Amusements (Bangalore City) Order, 1989, hereinafter referred to as Amusement Order inter alia on the ground that live music was made impermissible by Rule 11 of the Karnataka Excise Licensing (General Conditions) Rules, 1967, in any place licensed for the sale of liquor. While doing so the Licensing Authority also called in aid certain violations allegedly committed by the petitioners under the Excise Act besides pointing out that the Rules do not permit employment of children or women in any place licensed for the sale of liquor. Aggrieved the petitioner/licensees assailed the order of refusal in Khaleel Ur Rehaman and Others v Commissioner of Police, Bangalore and Others . My noble brother Raveendran, J., before whom those petitions came up for hearing, declared that live-band music was neither illegal nor unlawful, nor was it something that could be frowned upon and that before the Licensing Authority could reject the request for an Amusement License he ought to have afforded an opportunity of being heard to the applicants. The failure of the Licensing Authority to do so was held to be sufficient to render the refusal orders unsustainable. Two other important observations that were made in the said decision may also be noticed at this stage. Firstly it was observed that a Bar and Restaurant may have separate portions for serving liquor and food in which event, it was possible that a licence could without any objection be applied for and obtained in respect of the portion where no liquor was served. Secondly it was declared that the violations alleged against the petitioner/licensees in respect of matters other than those under the Licensing Order, invoked by them was no ground for rejection of their requests. Reliance in support was placed upon J.L. Malhotra v Commissioner of Police. The petitions were accordingly disposed of with a direction to the Licensing Authority to pass appropriate orders on the applications made by the petitioners for the year 1996 keeping in view the observations made by the Court.
3. The Licensing Authority did not however budge from the view taken by it and rejected the applications for the grant of licenses for the year 1996 on almost the same grounds as had been invoked by it for the previous year, without so much as giving to the licensees an opportunity of being heard or disclosing to them the materials on the basis of which he was doing so. These orders were also assailed by the licensee in W.P. No. 11065 of 1996 and connected matters in which it was inter alia contended on their behalf that the rejection of the applications without considering the same in the light of the observations made by this Court and without disclosure of the material on which the said rejections were ordered showed that the Licensing Authority had as a matter of policy decided not to issue any licence and that the licensees were entitled to the issue of licences without remitting the matter back to the said Authority, which course it was argued was held permissible by this Court in K. Rajagopal Rao v State of Karnataka and Another. This Court was however of the view that the material on record was not sufficient for it to declare that the Licensing Authority had rejected the applications following any policy decision taken in that regard although the rejection of the applications was found to be bad even otherwise. The petitions were accordingly allowed and the Licensing Authority directed to reconsider the applications for the year 1996 in accordance with the observations made in the order. The petitioner/licensees were in the mean time permitted to conduct their live-band music, till such time, the applications were disposed of afresh with the result that music continued to flow till the end of December 1996, on the strength of the orders made by this Court.
4. Come 1997, fresh applications were made by the petitioners for licences envisaged by the Amusement Licensing Order are an annual feature. In these applications some of the petitioners appear to have represented to the Licensing Authority that the objection regarding the service of liquor in the area where the artists give their performance would no longer be available to the authorities having regard to the fact that their excise licences had been modified suitably to exclude the area where the band performed. The petitioners case is that the Licensing Authority accepted this position after spot verification. The respondents dispute that any such verification was ever conducted nor is there anything on the record to support the same. The fact however remains that the Licensing Authority had granted the requisite licences to each one of the petitioners for the year 1997, giving them respite from litigation during the said year, not so much because of any material change in the situation that prevailed during the earlier two years, as the liberal approach adopted by it towards the subject. This respite was however short-lived for applications made by the licensees for the year 1998 have once again run into rough waters and been rejected for reasons that are no different from those that were called in aid for similar rejection orders passed for the years 1995 and 1996. Stated briefly the reasons for rejection are three-fold namely:--
(i) the petitioners are facing proceedings for violation of the terms and conditions of the licences issued in their favour under the Excise Act, which renders their antecedents doubtful and disentitles them to the grant of a licence under the Public Amusement Order of 1989;
(ii) The Restaurants owned by the petitioners do not have enough parking space around them which is likely to create traffic congestion and inconvenience to the general public; and
(iii) Rules 9 and 11 of the Karnataka Excise Licensing (General Conditions) Rules, 1967, do not permit any entertainment in a place licensed for serving liquor nor do the said rule permit the employment of women in any such place.
5. Arguments addressed at the bar were varied both in content and context. They presented a broad spectrum, understandably because each counsel did his best to cater to the individual peculiarities of the case he argued. It was contended that the rejection of all the applications including the one relating to a restaurant where no liquor is served sufficiently showed that the rejection was pursuant to a policy decision to refuse such licences. The rejection of requests in cases where the area in which liquor is served is separated from that where food and refreshment only are served also came in for severe criticism of the learned Counsel for the petitioners. The orders were in some of these petitions assailed as being violative of the principles of natural justice, having been passed without any opportunity to the applicants to either controvert the material used against them or be heard in support of their applications. Procedural and other infirmities apart the debate was bound to and did eventually centre round the validity of the reasons given by the Licensing Authority for rejecting the applications. These reasons as noticed earlier are common to all the petitioners and can therefore be conveniently examined which I propose to do ad seriatim.
Reason No. 1.--Pendency of certain proceedings for the alleged violation of the terms and conditions governing the excise licences issued to the petitioners under the Excise Act and the Rules framed thereunder, is one of the grounds for refusal of licences under the Amusement Order. The question is whether that is legally permissible. My answer is in the negative. I say so for two distinct reasons. Firstly because what is pointed out by the Licensing Authority is not a case proved at the trial but only an allegation that a violation of another licence has been committed by the person holding the same. There is as we know a long distance between an accusation and its proof before the Court or the Authority competent to punish the breach. A mere accusation is neither proof of the guilt nor sufficient proprio vigors to constitute a sound basis for the denial of the benefit otherwise due to the person, facing any such accusation unless of course the accusation is of such a grave nature that the Licensing Authority may consider the same to be sufficient to deny a licence in general public interest. It may be difficult to exhaustively enumerate situations in which this can be done but cases involving moral turpitude and antinational or subversive activities may constitute a class by themselves where a serious allegation may be enough to deny in general public interest a licence to the accused. Cases involving breach of the conditions of another licence do not obviously fall in that category and cannot therefore by themselves be enough to justify refusal of a licence. Secondly, the allegation against the petitioners is that they have violated the terms of the licence granted to them under the Excise Act. Now if any such allegation was of such a serious nature as to call for any punitive action against the licensees the same ought to have been taken and the licences issued under the Excise Act cancelled. No such cancellation has admittedly followed so far. It is therefore difficult to appreciate how the breach of a condition stipulated in the licences which has not resulted in the cancellation of the said licences could constitute a basis for the refusal of a licence under a different enactment. What is not enough for the cancelling of one licence cannot also be enough for refusal of another. This Court has in J.L. Malhotra's case, supra, gone to the extent of holding that even if the licence has been cancelled for violation of the conditions governing the same, any such cancellation would be irrelevant for purposes of granting or refusing any other licence. In those cases, the Licensing Authority had refused an amusement licence on the ground that the licence granted to the applicant for conducting floor shows had been cancelled because of a breach of the terms and conditions stipulated for the same. The refusal of the authority was questioned in this Court inter alia on the ground that the Licensing Authority had taken an irrelevant factor into consideration. Babu, J., as his lordship then was quashed the Order of refusal holding that the violation of the terms and cancellation of another licence held by the licensee was irrelevant and the refusal order based on the same was legally bad. The following passage from the order passed in W.P. No. 25656 of 1994 is in this regard noteworthy:
"The learned Government Pleader in support of the order made by the Commissioner submitted that in granting a licence, the status and antecedents of applicant for licence would be considered and they would be relevant in terms of sub-clause (v) of Clause 4 of the Karnataka Licensing and Controlling of Places of Public Amusements Order, 1989 issued under the Karnataka Police Act. Undoubtedly the status and antecedents of the applicant for licence would be relevant. In considering the antecedents of applicant irrelevant factors need not be taken note of. It was held by this Court that when live-band music was played and no cabaret shows are held, to take into consideration the violations committed by the petitioner in respect of cabaret shows would not be relevant".
6. I would only add that while violation of the terms of another licence or its cancellation for any such violations may not constitute in itself a ground for refusal of another licence to the licensee, the Licensing Authority would in terms of Clause 4(5) of the Amusement Order be entitled to take into consideration any such violation while considering the antecedents of the applicant. The expression antecedents has not been defined but according to the dictionary meaning it implies the previous conduct or history of the applicant. While examining the antecedents of the applicant, his conduct as regards compliance with the terms and conditions of any licence held by him previously cannot be considered entirely irrelevant. On the contrary his previous conduct qua any such licence may be suggestive of the respect or otherwise he has for the law, and his willingness or otherwise to abide by the restrictions placed by the terms and conditions subject to which he had secured the previous licence. Any other view would in my opinion lead to anamolous results. Take a case where the applicant is proved to have abused the concession granted to him in the form of a licence and committed violations of a very grave nature. Can it be said that such violations cannot be taken note of because they relate to a licence other than the one which the applicant now seeks. Can his conduct qua the other licence held by him, not constitute his antecedents within the meaning of Clause 4(5) of the Amusement Order. Taking that logic further, can it be said that the applicant seeking any such licence may be involved in dozens of criminal cases, he can still insist that his conduct or misconduct qua other laws of the land is his business and not that of the Licensing Authority who must turn a blind eye to all such misdemeanours and even Criminal acts no matter how serious they are. The expression "Antecedents of the applicant" cannot in my opinion be put in the strait jacket of a definition. It would imply all such events of the past which may be relevant for the purposes of determining whether the applicant is a suitable person for the grant of the license sought by him.
7. As to what is relevant would vary from case to case depending upon the nature and the purpose for which the licence is being issued. Broadly speaking, the following parameters can be kept in view by the Licensing Authority.-
(i) That an allegation about the violation of the terms of any other licence held by the applicant will not constitute a sufficient ground for refusing the same if any such allegation has not itself resulted in cancellation of the licence, the terms and conditions whereof are alleged to have been violated. That is because what is not sufficient for cancellation of the licence held by the petitioner, can also not be sufficient for refusal of any other licence;
(ii) That the cancellation of any other licence on account of proved misconduct on the part of licensee or violation of the terms and conditions subject to which the same was granted would also not ipso facto justify refusal of another licence whether under the same Act or a different enactment. Stated differently the cancellation of another license previously held by the applicant would not in itself be enough to deny him a licence under a different law;
(iii) That the Licensing Authority would in the matter of examining the status and antecedents of licensee be entitled to take into consideration not only the reports about his character but also matters such as cancellation of previous licences issued to the applicant cancelled on account of his having violated the terms and conditions of the same. If upon consideration of all such factors, the Licensing Authority, is of the opinion that the violations committed by the applicant are so grave or persistent that it is not in public interest to grant the licence applied for, it shall be entitled to refuse the licence on that ground. In coming to that conclusion however, the violation of the terms of any other licences whether alleged or proved, may not by itself be sufficient and ought to be supported by other material to buttress the conclusion of the Licensing Authority that the grant of a licence would be against public interest having regard to his antecedents.
8. In the instant case, as noticed earlier, all that is pointed out by the Licensing Authority, is that there are certain allegations suggesting breach of the conditions of the Excise Licence issued in favour of the petitioners. The said allegations have not been substantiated and have in any event not resulted in the cancellation of the Excise Licences. That being so, it was not possible for the Licensing Authority to conclude that any such violations could justify the refusal of an amusement licence under the Amusement Licensing Order.
Reason No. 2.--The Licensing Authority appears to be of the view that non-availability of sufficient parking space, around the Restaurants is also sufficient to justify refusal of a fresh licence. That a Licensing Authority, can while considering the grant of a licence, take note of the parking requirements of those visiting the places licensed for public use, cannot be disputed. It is open to and indeed necessary that the Licensing Authority keeps itself informed about the parking requirements of a public place whether it is a Bar and Restaurant or any other place to which public is admitted. The question however is whether the enforcement of such a requirement at the stage of granting renewals of the licences already issued is justified. It is true that the Licensing Order does not strictly speaking conceive of a renewal of the licence earlier granted, but in substance, a fresh grant follows an earlier one and is therefore in substance a renewal of the licence issued earlier. The licences granted to the petitioners for the year 1977, did not conceive of any parking problem, for the customers or any inconvenience to the general public on account of the Restaurants owned by the petitioners attracting their customers whether for purposes of food, drinks or both. This would necessarily imply that for the year immediately past, the Licensing Authority did not consider parking to be a major problem so as to prevent the licensees from carrying on their business under a fresh licence. The question then is whether by bringing in the spectre of 'Parking Problems', the Licensing Authority has acted fairly and in a reasonable manner. Stated differently, the question is whether the Licensing Authority has cited 'Parking Problems' only to justify the order of refusal made by it. The orders passed by the Licensing Authority do not set out any statistics nor is there any other basis discernible either from the orders or the record produced before me to suggest that there has been any sudden spurt in the vehicular traffic or congestion in the region where the petitioners are carrying on their respective business. It is true as was argued by the learned Advocate General, that the density of traffic has increased over the years and the roads in Bangalore are proving insufficient to contain the same, but a general increase in the density of the traffic in the city which is a concommitant of the growing population and in some measure, the growing affluence of the middle class in this country cannot justify closing down of establishments that have been running in the past. There is also no material to suggest that on account of the grant of Amusement Licences, which the petitioners have applied for the number of visitors to such public places, is significantly more than what these places would attract if they were to carry on without such licences. The position may indeed have been different if the petitioners were admitting members of the general public say, on the basis of admission tickets for any amusement being carried on by them, in which event, those visiting for amusement simplisitor may have been more than those who visit these places for drinks or food. That however is not so. Here the customers who visit the Restaurants do so for food or drinks and not for an amusement show. Music whether live or otherwise is only an accompanying feature. It may not therefore be correct to suggest that the number of people visiting these places, would be more if the places are licensed for providing amusement also.
9. Mr. Shankar, argued that those visiting places of entertainment like the Bar and Restaurants run by the petitioners tend to stay on for a longer duration if the place is additionally enjoyable on account of the availability of amusement in the form of music. This according to the learned Counsel would mean that the vehicles in which they visit these places shall have to be parked for a longer duration outside such places thereby creating traffic congestion for a longer period. The argument is entirely conjectural. Just because, the stay of a customer who visits a Restaurant is enjoyable, does not necessarily mean that he would over stay or linger on for a duration longer than that is considered necessary. The capacity to accommodate customers, in all such places is limited. It is difficult to conceive of a situation where those who have finished with their food or drinks would stick around even when others who want to come in are waiting. Besides there is no material to show that there has been any particular problem on account of lack or insufficiency of the parking area available in the neighbourhood of the establishments of the petitioners or any one of them. The Licensing Authority appears to have taken a general view without any specific complaint regarding any particular place. I therefore find it difficult to uphold the reason advanced by it, in so far as insufficiency of the parking area around the Restaurant is concerned. It would indeed be open to the Licensing Authority to keep such considerations in mind while granting fresh licences based on first time applications in future. To may also be open to it to refuse future grants based on cogent material showing demonstrable prejudice or inconvenience to the public on account of lack of parking area in or around any particular Restaurant. So long as that is not done generalised type of reasoning adopted by the Licensing Authority would not suffice nor can the licences be refused only on that basis.
Reason No. 3.--On behalf of the petitioners it was argued that the Licensing Authority cannot while considering an application for grant of a licence under the Licensing and Controlling of Places of Public Amusements, (Bangalore City) Order, 1989, feel inhibited by provisions contained in other Statutes in force. It was urged that the Licensing Authority can under Clause 4(v) of the Order aforementioned, refuse a licence only if it is satisfied that the grant of any such licence is not in the interest of public in general or that the status and antecedents of the applicant do not justify any such grant. The absence of any provision in the licensing order, it was argued, making the provisions of other Statutes relevant, for refusal of such licences was a definite indication that the said provisions were not really relevant and need not be kept in view while granting or refusing licences. There is in my opinion, no substance in that submission. It is true that in terms of Clause 4(5) of the Licensing Order, supra, the Licensing Authority is required to keep in view the interest of the public in general and the status and antecedents of the applicant while granting or refusing the licence but the words "interest of the public in general" are much too wide to exclude from consideration the other laws prevalent in the State. If the grant of a licence under the licensing order, is likely to offend any such statutory provision, the same cannot be considered to be in the "interest of general public". It is difficult to see how the grant of a licence under the licensing order can be justified or declared to be in the "interest of the public in general", even when such a grant may violate any other provision of law in force in the State. The Licensing Authority is in my opinion entitled to keep in view the provisions of other laws in force and decline the grant of licence, if it comes to the conclusion that such a grant is impermissible under any such law. The Licensing Authority's reference to or reliance upon the provisions of Karnataka Excise Licences (General Conditions) Rules, 1967, cannot therefore be found fault with.
10. The next and the more important question however is whether the Excise Licences (General Conditions) Rules, 1967, do really forbid live music in a place licensed for sale of liquor. Rule 11 of the said rules, may at this stage be extracted.
"Rule 11. (1) No gambling, dance, gathering, feast or any kind of entertainment or unlawful act shall be permitted in such premises.
(2) the Licensee shall sell liquor only in the approved shop and shall not sell in such premises any article other than such article and except to the extent permissible in accordance with the terms of the licence".
11. A careful reading of the above would show that the words used in the same are "any kind of entertainment" and not "any kind of amusement". The term "Entertainment" has not been defined either in the Excise Act or in the Rules mentioned above. It has not been defined even in Police Act, or the Amusement Licensing Order issued under the same. Section 2(15) of the Police Act defines the expression "place of public entertainment" as a 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, including a refreshment room, eating house, coffee house, liquor house, Boarding house, lodging house, hotel, or a shop where wine, beer, spirit, arrack, toddy, ganja, or other kind of liquor or intoxicant, food or drinks are supplied to the public for consumption. When viewed in the context of the Karnataka Police Act a restaurant where food or liquor are served is a place of "Public Entertainment". It would follow that the expression "Entertainment" has a much wider meaning assigned to it under the Police Act, for it includes, even food, and drinks offered in a Restaurant or refreshment room. Any such wide meaning does not fit into the scheme of Rule 11 of the General Conditions Rules. That is because, if 'Entertainment' is understood in the wider sense the rule would forbid the licensee from serving food and refreshment in a place which is licensed for the sale of liquor. The true position however is exactly the opposite, A CL-9 licence is issued to authorise sale of liquor only in places where food and refreshment is also served. In other words the wider meaning given to the term entertainment, in the Police Act, has no application to Rule 11 in which the said term has been used in a restricted sense and ought to be understood in the context in which it appears. When so viewed, the expression "any kind of entertainment" in Rule 11, cannot in my opinion include playing of music whether live or taped for precisely speaking three reasons. Firstly, because the expression any kind of entertainment appears in the company of the expression 'unlawful act' and must therefore take its colour from the said expression so as to be understood to mean an entertainment which has an element or tendency of being unlawful. There may indeed be a large variety of entertainments which may fall in that category including in the context of a restaurant a dance performance also called floor show of an obscene or a vulgar type; Secondly the expression 'Any kind of Entertainment' if given a liberal meaning would include taped music also. It was not disputed by the learned Advocate General that music whether live or taped would amount to "entertainment" if the expression is given the wide interpretation offered by the Licensing Authority. It may also include music telecast on the electronic media, a Cricket match or even a movie depicting the life and the times of the noble king Harishchandra. Mr. Vijay Shankar, was however hesitant in suggesting, that the expression could be given any such wide interpretation so as to banish from places licensed for serving liquor even taped music or other form of entertainment provided by the media; Thirdly there is no reason scientific or otherwise advanced by the Respondents to suggest why music can be considered to be averse to liquor or vice versa. It is not the case of the Respondents that music has a delirious effect on those who enjoy a drink. The argument on the contrary, was that music is pure, music is vidya, it is Saraswati and therefore should not be allowed to be mixed with liquor. It was also contended that music over a cup of tea or coffee is different from music over a drink. I have, I must confess failed to appreciate the rationale behind this reasoning which accepts music as gentle, pure and even sacred but suggests that its benign presence can be tolerated only if no liquor is served in the place. The argument in otherwords is that since liquor is bad those in the Company of Baechus must have no distractions. It is difficult to discover the logic behind that reasoning. No one can claim that he has a right to consume alcohol, and if liquor is considered bad, the State can and ought to introduce prohibition which is one of the directive principles also. But having permitted consumption of alcohol, in places of public entertainment, how far can, the State or the Rule making authority be justified in keeping out from such places what is otherwise perfectly legal and harmless.
12. Mr. Vijaya Shankar, then argued, that Rule 11 was aimed at maintaining the moral and social values which we in India are so sensitive about. He urged that permitting the Restaurant owners to offer live music to its customers would threaten the moral fibre and lead to various other evils which need to be prevented. Our social order was not according to the learned Counsel, prepared to accept digressions that may have the tendency to upset or disturb the prevailing value system. There arc two reasons why this argument must in my opinion fail. The first and the foremost is that Rule 11 does not prescribe a moral code of conduct either for the licensees or their customers. Seen carefully the dominant purpose underlying the rule is to maintain peace in public places licensed for serving liquor and to prevent the commission of offences rather than enforcing any moral sanctions on those managing or visiting such places. Judged from a purely moral angle even consumption of alcohol may fall foul of a puritan's point of view. But then the Scheme of the rules does not support that view. The State has not for whatever reasons and compulsions declared consumption of alcohol as an evil which needs to be stamped out; nor do the rules with which we are dealing aim at rooting out the evil of drinking from the society and thereby establishing an order compatible with professed moral standards. The rules do not even forbid women visiting a place licensed for serving liquor and making use of the same. If Mr. Vijaya Shankar's submission were to be accepted it would be wholly immoral if not scandulous for a member of the fair sex to be admitted into any such place, for the standards of morality expected of female members of the society is conventionally higher than those that the males dominating the society have etched out for themselves. That apart, I find it difficult to subscribe to the view that the moral and the social values which the Indian milieu is committed to stands on such a brittle footing as to be threatened by the musical notes of a performer in a place of public entertainment. Moral and ethical values nourished in this country since times immemorial are neither transcient nor ephemeral. Those values rest on surer foundations, capable of defying the winds of change. If the substratum of that value system stays in its place, the society need not remain pledged to archaic notions or attitudes resistant to change.
13. There is yet another angle from which the matter needs to be considered. The Restaurants have been for the past few years obtaining licences for live music, but no untoward incident muchless one suggesting any immoral activity has been reported. The Licensing Authority has also not referred to or made any such activities a basis for refusing the licences applied for. The apprehension expressed by Mr. Vijayashankar is therefore not supported by experience which is an important consideration in such matter. I would accordingly hold that Rule 11 of the General Condition Rules, does not forbid live music in a Restaurant holding a CL-9 licence for serving liquor, food and refreshment. ,
14. That leaves me with the only other question namely whether a female voice can in any such live presentation of music be provided by an artist engaged by the owner of the Restaurant. Reliance for the prohibition is placed by the Respondents on Rule 9 of the General Conditions Rules, which reads as under :
"Rule 9. (1) The licensee shall not employ any women.
(2) He shall not employ any person who has been convicted.
(3) The licensee shall not employ, in any capacity, a person who is below the age of 18 years or a person who is suffering from any contagious disease".
15. The rule, it is apparent from a plain reading of the above, is in three parts, one dealing with employment of woman, the other employment of convicts and the third employment of any person who is below the age of 18 years or who is suffering from any contagious disease. A careful reading of the rule, would however show that there is a difference in the expression used by the rule-making Authority in so far as employment of persons below the age of 18 years or persons suffering from any contagious disease are concerned, the rule provides that the licensee shall not employ any such person "in any capacity". This would imply that wherever the rule forbids employment of any individual in 'any capacity', it makes a specific provision to that effect. The words "in any capacity" appearing in sub-rule (3) of Rule 9 are significantly absent from sub-rules (1) and (2) thereof. Sub-rules (1) and (2) simply provide that the licensee shall not employ any woman or any person who has been convicted. If the intention was to forbid the licensee from employing women or convicts also "in any capacity" nothing prevented it from making a provision to that effect as indeed it has done in the case of minors and persons suffering from any contagious disease. This would imply that in so far as women are concerned, their employment is forbidden but not in every capacity. Such employment may in certain capacities and situations, be permissible. When seen in the context of the purpose underlying the rules and the Karnataka Excise Act, under which the rules have been framed, I am inclined to hold that employment of women under Rule 9 of the General Conditions Rules, is forbidden only in so far as the sale and service of liquor is concerned. Any other interpretation would in my opinion not only run counter to the language employed in the rule, but even lead to anomalous results. Take for instance a case where the licensee engages the services of a Chartered Accountant in connection with his business. Can it be said that such an engagement or employment whether on contract or other basis, is forbidden if the Chartered Accountant happens to be a woman? Take also a case where the licensee maintains on its staff on a part time basis, a Registered Medical Practitioner. Can it be said that any such employment is impermissible if the person employed happens to be a woman? So also there may be other capacities in which a woman may be employed by the licensee, which capacities may be wholly unconnected with the actual service of liquor to the customers. Just because the licensee has employed a woman in connection with his business, no matter the woman in the course of any, such employment does not directly handle the liquor at any stage would not in my opinion violate the provisions of Rule 9. That apart Rule 9 imposes a restriction which must be interpreted strictly so that the same does not operate to affect the right of the employer or the employee beyond what is absolutely essential. When so viewed, Rule 9 must be understood to forbid the licensee from employing women with a view to serving liquor to the customers or handling liquor at any stage. That appears to me to be the purpose underlying the said provision. I am not for the time being examining whether a restriction like the one imposed by Rule 9, against employment of women, in relation to sale of liquor is a valid restriction in the context of the right of the employer as also the women employees, to be treated equally in matters of employment and right to earn their livelihood, but assuming that the said provision is valid its play must be restricted, to the bare minimum. The intention of the rule-making authority obviously is to prevent the licensees from engaging women for promoting the sale of liquor. That purpose can in my opinion served well even when the provision is understood in a restricted sense. Suffice it to say that Rule 9 does not forbid employment of a female artist whether for instrumental or vocal music so long as any such artist is not employed to serve or handle liquor for the customers visiting any such place of public entertainment.
16. I may at this stage refer to the provisions of the Licensing of Public Amusement Order in some detail for it was argued on behalf of the petitioners that the same does not conceive of a licence for any amusement other than where the public is admitted to the show on payment of a certain admission fee. It was contended by Mr. Shivaswamy, learned Counsel for some of the petitioners that although the definition of the expression "places of Public Amusement" in Section 2(14) of the Karnataka Police Act, is wide enough to include any place where music, singing, dancing or any other diversion, game, or means of carrying on the same is provided yet the licensing order issued under the said Act did not conceive of an amusement licence in respect of live music performed within the four walls of a Restaurant to which the public do not secure admission on payment of any admission fee. The contention was that having regard to the provisions contained in the licensing order, an Amusement licence is not at all needed if what was offered was live music to customers who visit a restaurant for food or refreshment with or without liquor. The contention even though attractive is not equally sound. The definition of the expression "place of Public Amusement" does not exclude a musical performance only because it is given in a restaurant. It is true that there is no separate provision in the licensing order applicable to Restaurants, but, that is inconsequential so long as the performance is one which amounts to an amusement within the meaning of the definition given by the Act. For the provisions of the Act and the licensing order to apply, it is not necessary that admission to any such place should be on payment of an admission fee. Neither the Act nor the licensing order supports such an inference. A licence is therefore essential for any amusement in the form of live music in a Restaurant. Before parting with this aspect I may point out that Clause 4(7) empowers the Licensing-Authority to grant a licence on such terms and conditions and subject to such restrictions as it may determine. That is a power which the Licensing Authority is entitled to exercise keeping in view the nature of the amusement, the place where the same is being offered, the number of artists that are permitted to perform, the time for such performances, so on and so forth. Needless to say that the Licensing Authority would in exercise of the said power be entitled to place all such reasonable restrictions as may be considered necessary and appropriate by it to maintain public order and tranquility, prevent commission of offences and public nuisance and ensure adherence to law. The Licensing Authority can reserve power to cancel or suspend the licences in the event of any violation of any such terms and conditions being reported to it. Suffice it to say that the nature of the restrictions and the conditions subject to which the licences may be granted is a matter which is in the discretion of the Licensing Authority to be exercised by it in a fair and reasonable manner.
17. In the result these writ petitions succeed and are hereby allowed. The impugned orders passed by the Licensing Authority, are quashed and the Licensing Authority directed to consider the said applications afresh and pass appropriate orders on the same in accordance with law keeping in view the observations made hereinabove. In the meantime and till fresh orders are passed the petitioners shall be entitled to conduct live music in their respective Bar and Restaurants.
18. No costs.