Live Band music in restaurant, Appeal dismissed, Karnataka Police to give licence

January 28, 2018

A Bench of Supreme Court Judges, Justice R.K. Agrawal and Justice Abhay Manohar Sapre dismissed the appeal filed in Karnataka Live Band Restaurants Association v. State of Karnataka & Ors, Civil Appeal No. 4741 of 2007.

The appellant in Supreme Court is the Association registered under the Karnataka Societies Registration Act, 1960 and Rules framed thereunder. The Association is formed by the persons, who are engaged in the business of running the restaurants in various parts of the city of Bangalore. In addition to serving food items/beverages to their customers, the owners of these restaurants also entertain their customers by displaying "Live Band Music" in their restaurants. Indeed, the purpose of providing the facility of "Live Band Music" is to attract more and more customers in the restaurants. In some restaurants, the "cabaret dance" and "discotheque" are also performed to attract the customers.

The facility of "Live Band Music" and other two items in the restaurants is the reason for dispute, which led to filing of the writ petitions in the High Court of Karnataka in the year 1989 and later in appeal to this Court by the appellant-Association and some individual restaurants' owners against the State. The dispute arose with the following background.

The Karnataka Police Act, 1963, apart from dealing with several other matters pertaining to police force/administration, also deals with the subject "Police Regulations" in Chapter IV of the Act. Section 31, which falls in Chapter IV, deals with power to make, alter or rescind orders issued for regulation of traffic and for preservation of order in public places. This Section empowers the Commissioner and the District Magistrate to make orders, alter or rescind subject to a caveat that it should not be inconsistent with the provisions of the Act.

The Commissioner and the District Magistrate are empowered to regulate the traffic and to preserve and control the public places. Section 31 (a) to (z) has specified different areas for this purpose. It is, in exercise of this power, the Commissioner/District Magistrate of Bengaluru issued an order in the year 1989 called "Licensing and Controlling of Places of Public Amusements (Bangalore City) Order, 1989" (hereinafter referred to as "the Order 1989"). The Commissioner then called upon the restaurant owners, who were displaying "Live Band Music" in their restaurants to obtain the licences under Order 1989 for running their restaurants and for displaying the Live Band Music.

The restaurants owners felt aggrieved and filed the writ petitions in the High Court of Karnataka. According to them, their restaurants wherein they were displaying "Live Band Music" for entertaining their customers, was not an activity covered under Order 1989. It was contended that these restaurants could not be treated as a place of "Public Amusement" as defined under Section 2(14) of the Act, but at best could be treated as a place of "Public Entertainment" as defined under Section 2(15) of the Act. In other words, the contention of the writ petitioners was that the applicability of the Order 1989 was confined only to the places of "Public Amusement" and since the restaurants were displaying Live Band Music, their place could not be termed as the place of public amusement as defined under Section 2(14) of the Act. It is for this reason, the provisions of the Order 1989 could not be extended to their restaurants.

It was contended that there lies a distinction between the activities falling in "Public Amusement" and those falling in "Public Entertainment" as is clear from the two expressions defined in Section 2 (14) and Section 2 (15) of the Act. The Writ Court (Single Judge) finding substance in the writ petitioners' aforementioned contention allowed the writ petitions and quashed the order of the Commissioner. However, the Division Bench in an appeal filed by the State set aside the order of the Single Judge and while allowing the State's appeal dismissed the writ petitions. The writ petitioners felt aggrieved and filed appeals by way of special leave before this Court being Civil Appeal Nos. 1857-1858 of 2000.

By order dated 28.11.2002, the Supreme Court allowed the appeals and restored the order of the Single Judge. It was held that the writ petitioners' premises, i.e., restaurants displaying Live Band Music is not a place of "Public Amusement" but it is a place of "Public Entertainment". It was held that the Order 1989 was, therefore, not applicable to the writ petitioners' (appellants') restaurants for regulating the activities carried on therein as the same fell outside the purview of the Order 1989. With this factual background, the Police Commissioner, Bangalore city was required to issue the Order in the year 2005 called "The Licensing and Controlling of Places of Public Entertainment (Bangalore City) Order 2005" under Section 31 of the Act. It is this order which gave rise to second round of litigation in the High Court and now in this appeal.

The Order 2005 in this appeal was passed by the Commissioner of Police with a view to regulate the running and the functioning of the restaurants providing the facility of displaying "Live Band Music", "cabaret dance" and "discotheque" in the restaurants. The details of the Order 2005 would be mentioned at a later stage while dealing with the issues. The appellant-Association felt aggrieved by the Order 2005 filed writ petitions and challenged its legality and validity. The Single Judge was of the view that since the Commissioner did not comply with the procedure laid down in Section 31 of the Act before issuing the Order inasmuch as he did not invite any objections from the public at large, the Order 2005 is bad in law.

The Single Judge, accordingly, disposed of the writ petitions and directed the Commissioner of Police to treat the Order 2005 impugned in the writ petitions to be the "draft Order" and granted an opportunity to the public at large to file their objections as provided in the Act to the proposed draft Order 2005 and then to proceed in the case in accordance with law. The Single Judge further held that since Live Band Music was not being displayed for a long period in the restaurants, no prejudice would be caused to the restaurants' owners, if they do not display the Live Band Music for a further period of two months. The Commissioner was, accordingly, directed to decide the objections, if any, filed by the parties concerned within two months and then to proceed in accordance with law.

Dissatisfied with the order of the Single Judge, the appellant-Association and many other restaurants owners filed intra Court appeal before the Division Bench. The Division Bench dismissed the appeal. The appellant-Association felt aggrieved and carried the matter in appeal by special leave before this Supreme Court.

In the Judgment the court said that "In our considered view, it is the prime duty, rather statutory duty, of the Police personal/administration of every State to maintain and give precedence to the safety and the morality of the people and the State. Indeed, both are important and lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The Act and the Order 2005 are enacted keeping in view the safety and the morality of the people at large."

"In our view, whenever the impugned action is challenged on the touchstone of Articles 14 and 19(1)(g) of the Constitution, we have to keep in mind the well-settled principle of law laid down by this Court wherein this Court has examined lucidly and succinctly the scope and ambit of Articles 14 and 19(1)(g)."

"In our view, those who find themselves unable to ensure compliances of these conditions or feel that it is not possible for them to comply, may not display the performances in their restaurants."

"Now we uphold the Order 2005, we consider it apposite to direct the respondent-Police Commissioner, Bengaluru to verify and ensure strict compliance of the licence conditions, including all the conditions of the Order 2005 in relation to all the Licensees in whose favour, the licences have been issued so far.Similarly, with a view to avert any untoward incident due to breaking of fire may be for any reasons in the licensed premises, appropriate specific safety measures must be carried out under the guidance of team of experts. These steps are in public interest and it should be given precedence by the Commissioner of Police not only at the time of granting of license but also by doing regular inspection of the licensed premises without any lapse on his part. We hope the Commissioner will take into consideration these observations."

The court dismissed the appeal filed by the Association.

Read the Judgment of Supreme Court of India in Karnataka Live Band Restaurants Association v. State of Karnataka & Ors dated 25.1.2018