JAGDISH V SHETTY Vs. COMMISSIONER OF POLICE; STATE OF MAHARASHTRA; NATIONAL AIDS CONTROL ORGANISATION; DISTRICT COLLECTOR OF PUNE

JUDGEMENT

(1.) The challenge in all these petitions is to the constitutional validity of Sections 33a and 33b of the Bombay Police Act, as amended by the Bombay police (Amendment) Act, 2005. The bill was passed by the Legislative Assembly on 21st July, 2005 and by the Legislative Council on 23rd July, 2005 and has now come into force. The Sections under challenge may be gainfully reproduced:-"33a (1) Notwithstanding anything contained in this Act or the rules made by the commissioner of Police or the District magistrate under sub-section (1) of Section 33 for the area under their respective charges, on and from the date of commencement of the Bombay Police (Amendment) Act, 2005,-- (a) holding of a performance of dance, of any kind or type, in any eating house, permit room or beer bar is prohibited; (b) all performance licences, issued under the aforesaid rules by the Commissioner of police or the District Magistrate or any other officer, as the case may be, being the licensing Authority, to hold a dance performance, of any kind or type, in an eating house, performance, of any kind or type, in an eating house, permit room or beer bar shall stand cancelled. (2) Notwithstanding anything contained in section 131, any person who holds or causes or permits to be held a dance performance of any kind or type, in an eating house, permit room or beer bar in contravention of sub-section (1) shall, on conviction, be punished with imprisonment for a term which may extend to three years and with fine which may extend to rupees two lakhs: provided that, in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, such imprisonment shall not be less than three months and fine shall not be less than rupees fifty thousand. (3) If it is, noticed by the Licensing authority that any person, whose performance licence has been cancelled under sub-section (1) , holds or causes to be held or permits to hold a dance performance of any kind or type in his eating house, permit room or beer bar, the Licensing Authority shall, notwithstanding anything contained in the rules framed under section 33, suspend the certificate of Registration as an eating house and the licence to keep a Place of public Entertainment (PPEL) issued to a permit room or a beer bar and within a period of 30 days from the date of suspension of the certificate of Registration and licence, after giving the licensee a reasonable opportunity of being heard, either withdraw the order of suspending the Certificate of registration and the licence or cancel the certificate of Registration and the licence. (4) A person aggrieved by an order of the licensing Authority cancelling the certificate of Registration and the licence under sub-section (3) , may, within a period of 30 days from the date of receipt of the order, appeal to the State Government. The decision of the State Government thereon shall be final. (5) Any person whose performance licence stands cancelled under sub-section (1) , may apply to the Licensing Authority, who has granted such licence, for refund of the proportionate licence fee. The Licensing authority, after making due inquiry shall refund the licence fee on pro-rata basis, within a period of 30 days from the date of the receipt of such application. (6) The offence punishable under this section shall be cognizable and non-bailable. 33b. Subject to the other provisions of this act, or any other law for the time being in force, nothing in section 33a shall apply to the holding of a dance performance in a drama theatre, cinema theatre and auditorium; or sports club or gymkhana, where entry is restricted to its members only, or a three starred or above hotel or in any other establishment or class of establishments, which, having regard to (a) the tourism policy of the Central or State Government for promoting the tourism activities in the state; or (b) cultural activities, the State government may, by special or general order, specify in this behalf. Explanation.-- For the purposes of this section, "sports club" or "gymkhana" means an establishment registered as such under the provisions of the Bombay Public Trusts Act, 1950, or the Societies Registration Act, 1860 or the Companies Act, 1956, or any other law for the time being in force. "

(2.) The challenges as formulated in the Writ petitions, may now be set out before adverting to the facts. Writ Petition No. 2450 of 2005 has been filed by the Indian Hotel and Restaurant Association (AHAR) and Shri J. V. Shetty, General Secretary. AHAR is an association of various hotel owners and bar owners and/or conductors of the same, who carry on business of running restaurants and bars in Mumbai. The grounds of challenge to the constitutional validity of the Act, and the various other contentions raised in Writ Petition No. 2450 of 2005, may be summarised as under:-" (1) Maharashtra Act No. 35 of 2005 is not applicable to the petitioners members; (2) The amendment violates Article 19 (1) (g) of the Constitution of India by imposing restrictions by way of total prohibition on the petitioners fundamental right to practice any profession or to carry on any occupation, trade or business; (3) Section 33b exempts certain establishments from the ban imposed by section 33a; The amended Section 33a is violative of Article 14 of the Constitution of India; (4) Affidavit in reply dated 1st October, 2005 does not comply with the provisions of order 19 Rule 3 of the Code of Civil procedure. Hence the contentions in the return filed being based on mere hearsay and being without personal knowledge cannot be relied upon or admitted in evidence; (5) Material portions of the petition have not been denied by the respondents and consequently are deemed to have been admitted. To the extent contentions have not been controverted, the petition will have to proceed based on uncontroverted facts in the petition. The allegations about trafficking, showering of money by customers, vulgarity and immorality have been made without any personal knowledge and/or investigation being carried out by the Government. The allegations about exploitation of girls or trafficking have appeared for the first time in the return filed by the Government. The statement of objects and reasons does not refer to trafficking. "the challenges in W. P. No. 5503/20045 and 5504/2004 are similar.

(3.) Writ Petition Lodging No. 2052 of 2005 is filed by Bharatiya Bargirls Union, a registered trade union bearing No. Kamgar Upa Ayuktha/thane/945/2004 under the Trade Union Act. It is represented by Ms. Varsha Kale, Honorary President. It claims a membership of 5000, who work as bar girls in different parts of Maharashtra. It is their contention that there are approximately 75,000 women working in around 2500 bars and hotels in or around mumbai city as well as in other districts of maharashtra. The principal contentions as urged are that:-" (1) the amendment is violative of the right of the bar girls to carry on an occupation or profession within the meaning of Article 19 (1) (g) of the Constitution of India. The restriction amounts to a total prohibition and consequently is violative of the fundamental rights to carry on an occupation or profession. (2) The impugned amendment is arbitrary and discriminatory in as much as it permits performance of dance in a drama theatre, cinema theatre and auditorium or sports club or gymkhana or three starred and above hotel, while completely prohibiting the same in an eating house, permit room or beer bar. The classification created has no reasonable nexus to the aims and objects it is supposed to achieve and is not founded on any intelligible differentia, having a nexus with the object sought to be achieved, namely prohibiting dancing in an eating house, beer bar and permit room and consequently is violative of article 14 of the Constitution of India. "