R SHANKAREGOUDA Vs. COMMISSIONER OF POLICE BANGALORE

JUDGEMENT

(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 (sale 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.