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3. For the sake of convenience, we shall refer the case of S.Muthukumaraswamy, Proprietor of Fillo Hotel, petitioner in W.P. No.39280 of 2005.

The said Muthukumaraswamy is the sole proprietor of Fillo Hotel, running hotel business at Door No.4/14, Kamaraj Salai, Pondicherry. The grievance of the writ petitioner/respondent is that the licence held by him for conducting classical dance programmes in his hotel, which was valid upto 30.11.2005, has not been renewed further and his application for renewal of the said licence was rejected by the Pondicherry Municipality by order dated 30.11.2005. The main ground of the writ petitioner/respondent is that the Municipal Authorities cannot reject the application for renewal of the licence by taking resort to the Government Order in G.O.Ms.No.27/LAS/2005, dated 20.09.2005, and that the writ petitioner has a unfettered right to claim the renewal of licence by virtue of Section 349 of the Pondicherry Municipalities Act, 1973, and that, having regularly paid the necessary fees and taxes for the purpose of holding such classical dance programme in their Hotel, the authorities concerned cannot deny the request for renewal of the existing valid licence for a further period.

3. WHEREAS, the Government of Pondicherry is satisfied that it is not in public interest to grant any further licenses for the purposes mentioned above. Therefore, the Municipal Authorities are directed not to issue any fresh license for the above mentioned purposes in any permanent buildings, as defined under Rule 2 (c) of Pondicherry Municipalities (Places of Public Resort and Entertainments) Rules, 1980.

By Order K. Nagalingam, Under Secretary to Govt (LA) "

B. S.Muthukumaraswamy/Proprietor of M/s.Fillo Hotels filed a petition, dated 21.11.2005, praying for renewal of the licence in respect of his hotel for conducting classical dance programmes. The Commissioner, Pondicherry Municipality, by proceedings dated 30.11.2005; after recording factual findings to the effect that obscene dances are being conducted and the audience take resort to acts of violence, giving rise to law and order problem; and by holding that with a view to safeguard public morale and decency in the premises in respect of which licences are granted, they are not any more permitted to be used for performing any kind of dance programme on term basis; and also by making reference to G.O.Ms. No.27/LAS/2005, dated 20.09.2005, wherein the policy decision of the Government has been expressed not to renew the licence; refused to renew the licence granted to the Hotel run by S.Muthukumaraswamy. The said Government Order as well as the consequential rejection orders of the Commissioner, Pondicherry Municipality, were challenged by the hotel owners by way of writ Petitions. Though the learned Judge upheld the action of the Pondicherry Administration, however, observed that without amending the Act, they cannot prohibit the performance of classical dance programmes, and issued directions to the commissioner to consider the application of the petitioners for renewal of licence afresh.

12. The impugned Government Order, viz., G.O.Ms.No.27/LAS/2005, completely prohibited the grant of licences for performing Indian Classical dance, western dance and floor shows. By the said Government Order, the Government directed the Municipal Authorities not to issue any fresh licence for the above mentioned performances in any permanent buildings as defined under Rule 2(c) of Pondicherry Municipalities (Places of Public Resort and Entertainments) Rules, 1980.

13. It is the contention of the learned counsel for the respondents/writ petitioners that the impugned Government Order, imposing restriction on the municipal authorities not to issue any fresh licence to the petitioners and other public resorts, goes against the freedom and fundamental right to practise any profession or to carry on any occupation, trade or business guaranteed by the Constitution of India. It is also highlighted by the learned counsel that the performance of Indian classical dance programmes is not prohibited in the Act and according to them, the State by way of an executive order, at the most, could only regulate the performance and cannot altogether prohibit the performance itself since Indian classical dances are being encouraged by the Government of India and other States.

Those Petitions were filed by various Bars/Restaurants' owners of the Twin Cities of Hyderabad and Secunderabad. While considering similar provisions as in the present cases, the Division Bench concluded as follows:-

" 65. The above provisions of the Act and the Rules made thereunder would show that it is not the intention of the Government to prohibit music, singing and dances in a hotel and restaurant premises and provisions have been made by way of licensing and for regulating the business in public place of amusement. Neither the Act nor the rules empower the Commissioner of Police to completely prohibit conduct of singing, music and dance programmes, in the public places of amusement in the interest of general public. Playing of music and singing of songs or performance of dance would cause no harm to the general public nor it is injurious to health, safety and health of the general public and the same is not prohibited. The various provisions would only show that a regulatory mechanism has been made in the rules for grant of licences, suspension or revocation of the same in cases of violations of conditions of licence. Under Rule 112 of the Rules, the Commissioner of Police has been authorised to refuse grant of licence if in his opinion they are obscene or immoral etc. The power of the State to impose reasonable restrictions in respect of any profession or business or for that matter to impose a total prohibition or to regulate the same is not in dispute. But, whether total prohibition of conduct, of music, singing and dances on the ground of obscenity or indecency would be justified is the question that arises for consideration in these matters. It may be that some of the licensees might have violated the licence conditions and are indulging in conduct of dances in vulgarity and cases might have also been booked against them for violation of the conditions of licence. Merely because some of the licensees have violated the conditions of licence or there was opposition by some people can a total prohibition be imposed prohibiting the music and singing and dances when the statute has not allowed such prohibition? In our considered opinion, the same would amount to negating the fundamental right guaranteed under Art. 19(1)(g) of persons who are interested in applying for amusement licences. The right of such persons cannot be deprived merely because others who have been issued licences have violated the conditions of amusement licence or because of sentiments of some section of the public. Therefore, the policy decision taken by the Commissioner of Police prohibiting total prohibition of conduct of music, singing and dances in bars and restaurants, in our opinion, would amount to unreasonable restriction. Any restriction the State wants to bring in must be a reasonable one within the meaning of Art.19(6) of the Constitution of India. In Chintamanrao V. State of M.P. (AIR 1951 SC 118), it was held that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interest of the public. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Art. 19(1)(g) and the social control permitted by Clause (6) of Art.19, it must be held to be wanting in that quality. Herein no care has been taken to strike a balance between the freedom guaranteed in Art. 19(1)(g) and the so called general public interest and a total prohibition is sought to be imposed under the guise of obscenity or vulgarity in the performance of dances.