Orchestra license appeal dismissed, Bombay High Court

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Shivaji Sambu Waghralkar vs The Commissioner Of Police Office Of ... on 2 April, 2026

Author: N. J. Jamadar

Bench: N. J. Jamadar

2026:BHC-AS:15781
-WP12910-2025.DOC

                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CIVIL APPELLATE JURISDICTION

                                        WRIT PETITION NO. 12910 OF 2025

                  Shivaji Sambu Waghralkar,
                  Sole Proprietor of M/s Hausa Restaurant
                  & Bar, The Affaire, Shop Nos. 14, 15, 16 and 19,
                  Plot No. 9, Sector-17, Sanpada,
                  Navi Mumbai, District - Thane
                                                                                        ...Petitioner

                                              Versus

                  1. The Commissioner of Police,
                  Office of Commissioner of Police at

ARUN
RAMCHANDRA Sector 10, opposite RBI, CBD Belapur,
SANKPAL
Navi Mumbai, Maharashtra - 400 614.
Digitally signed by
ARUN RAMCHANDRA
SANKPAL
Date: 2026.04.02
2. Senior Police Inspector of Police,
22:48:57 +0530
...Respondents
Vashi Police Station

                  Mr. Bernardo Reis, a/w Pratik Dixit, i/b Parampara Mistry, for the
                         Petitioner.
                  Mr. V. G. Badgujar, AGP for the State.

                                                          CORAM :    N. J. JAMADAR, J.
                                                     RESERVED ON :   06th JANUARY, 2026
                                                  PRONOUNCED ON :    2nd APRIL 2026

                  JUDGMENT: -

1. Rule. Rule made returnable forthwith and, with the consent of
   
                 the learned Counsel for the parties, heard finally.
   

2. By this petition under [Articles 226](https://indiankanoon.org/doc/1712542/) and [227](https://indiankanoon.org/doc/1331149/) of the Constitution of
   
                 India the petitioner takes exception to the order dated 14 th August,
   
                 2025 passed by the Divisional Commissioner, Konkan Division, in
   

-WP12910-2025.DOC

Entertainment License Appeal No.15/2025, whereby the said appeal

preferred by the petitioner against the order dated 24 th February, 2025,

passed by the Commissioner of Police, Navi Mumbai (R1) rejecting the

application for an Entertainment License to operate the Orchestra at

M/s. Hausa Restaurant and Bar, came to be dismissed.

1. The petitioner is the owner of M/s. Hausa Restaurant and Bar

(the establishment) situated in a fully commercial building named "The

Affaire", located at Flat No.9, Sector 17, Sanpada, Navi Mumbai (the

premises). To operate the said restaurant and bar at the said premises

the petitioner has obtained an Eating House License issued by the

Municipal Corporation and Foreign Liquor License-III (FL-III) under the

Foreign Liquor Rules, 1953. The petitioner desired to have an Orchestra

License for live music performances in the said establishment. The

petitioner never intended to, nor intends to hold, "dance performances"

in the said establishment. Thus, the petitioner filed an application for

grant of a Live Music Orchestra performance license under the

provisions of the the Maharashtra Police Act, 1951 ("the [Police Act,

1951](https://indiankanoon.org/doc/20935611/) ") and the Rules for Licensing and Controlling Places of Public

Amusement (other than Cinemas) and Performances (including Melas

and Tamashas), 1999, ("the Public Amusement Rules, 1999"). All

requisite compliances were made. No objection certificate was obtained

from the concerned police station.

-WP12910-2025.DOC
4. It is the grievance of the petitioner that, a misinformation

campaign was started by persons having a vested interest. On the basis

of the alleged objections received from 23 Co-operative Housing

Societies, 232 citizens/local public representatives and one business

association, and the media reports indicating opposition to the grant of

performance license, respondent No.1, the petitioner asserts, refused

the license to operate a live music Orchestra purportedly in exercise of

powers under Rule 104 of the Public Amusement Rules, 1999.

1. Being aggrieved, the petitioner preferred an appeal before the

Divisional Commissioner under Section 33 of the Police Act, 1951.

1. By the impugned order, the Divisional Commissioner rejected the

appeal concurring with the view of respondent No.1 - the Licensing

Authority. The petitioner claims that the Appellate Authority did not

examine the matter at all and by a one line reasoning that the Licensing

Authority rightly decided the application by assessing law and order

situation, dismissed the appeal.

1. Being thus aggrieved, the petitioner has invoked the writ

jurisdiction. A slew of exceptions are taken to the order of refusal of

licence passed by the Licensing Authority, and the impugned order.

1. Firstly, the order of refusal of license passed by respondent No.1

was arbitrary and beyond the scope of the provisions contained in Rule

-WP12910-2025.DOC

104 of the Public Amusement Rules, 1999. Secondly, breach of

principles of natural justice is alleged, as no opportunity of hearing was

granted to the petitioner before passing the order, by the Licencing

Authority. Thirdly, the impugned orders are in breach of the provisions

contained in the Police Act and the Public Amusement Rules, 1999 and

impinge upon the fundamental rights of the petitioner. Fourthly, the

petitioner was subjected to invidious discrimination, as there are two

bars in the very same building, which have been granted licence to play

pre-recorded loud music. Lastly, the Licensing Authority has granted

licenses to 53 other bars in Navi Mumbai area to operate Orchestra and

live music performance.

1. An affidavit-in-reply has been filed on behalf of the respondents.

The refusal to grant the license to operate a live orchestra is sought to

be justified on the ground that the Licensing Authority, on the basis of

objective material, has arrived at the conclusion that the grant of

Orchestra Licence has the propensity to create a serious law and order

situation. The fact that the petitioner holds an Eating House License and

FL-III License at the said premises is stated to be wholly irrelevant for

determining the prayer for grant of an Orchestra License. In substance,

it is the contention of the respondents that in response to the public

notice issued by the Licensing Authority several objections were

received from Co-operative Housing Societies, citizens, local public

-WP12910-2025.DOC

representatives and business association. And, thus, the license was

justifiably refused by respondent No.1.

1. I have heard Mr. Reis, the learned Counsel for the petitioner, and

Mr. Badgujar, the learned AGP for the State, at some length. With the

assistance of the learned Counsel for the parties, I have also perused the

material on record including the documents filed alongwith the

affidavit-in-reply on behalf of the respondents.

1. Mr. Reis, the learned Counsel for the petitioner, mounted a multi-

fold challenge to the impugned orders. First and foremost, Mr. Reis

would urge, the impugned order suffers from the vice of flagrant

violation of the principles of natural justice. No opportunity of personal

hearing was granted to the petitioner before the order of rejection of

licence came to be passed. Secondly, the impugned order passed by the

Divisional Commissioner, Mr. Reis would urge, singularly lacks reasons.

The Divisional Commissioner has copiously extracted the contentions of

the parties and the substance of the order passed by the Licensing

Authority and, thereafter, simply observed that the Licensing Authority

has rightly refused the licence apprehending law and order situation.

The Divisional Commissioner has not at all examined the legality and

correctness of the order passed by the Licensing Authority in the light of

the grounds of challenge raised by the petitioner.

-WP12910-2025.DOC

1. Thirdly, Mr. Reis would urge, the reasons for which the license

has been refused do not fall within the ambit of any of the clauses of

Rule 104 of the Public Amusement Rules, and thus, in the affidavit-in-

reply an endeavour has been made on behalf of the respondents to

support the refusal of license by pressing into service the grounds on

which the licence was not refused by the Licensing Authority

1. Lastly, Mr. Reis strenuously submitted that, despite a categorical

undertaking of the petitioner that the petitioner would not operate a

dance bar, on the basis of a misinformation campaign, the petitioner's

fundamental rights have been trampled upon. Even in the matter of

operation of the dance bars, the Supreme Court has castigated the

instrumentalities of the State for imposing arbitrary, unreasonable and

onerous conditions. To lend support to this submission, Mr. Reis placed

reliance on a judgment of the Supreme Court in the case of [Hotel Priya,

A Proprietorship vs. State of Maharashtra](https://indiankanoon.org/doc/70680640/) and others1.

1. Per contra, Mr. Badgujar, the learned AGP, supported the

impugned orders, with tenacity. It was submitted that the grant of

licence is in the discretion of the Licensing Authority. Since in response

to the public notice, inviting the objections to the proposal to operate a

live Orchestra in the petitioner's premises, hundreds of objections were

received, no fault can be found with the exercise of discretion by the

1 2022 SCC OnLine SC 204.

-WP12910-2025.DOC

Licensing Authority. The assessment of the Licensing Authority that the

grant of license to operate a live orchestra may lead to a law and order

situation is not open for interference in exercise of the supervisory

jurisdiction as the Licensing Authority is best suited to assess the

situation.

1. Mr. Badgujar further submitted that, the petition suffers from

gross suppression of facts. It has transpired that there have been

numerous complaints of violations of the terms of Orchestra License at

Kalpana Restaurant, run by the petitioner at Vashi, and several reports

of commission of cognizable and non-cognizable offences have been

registered against the petitioner in connection therewith. On five

occasions, the said license has been suspended. Thus, the petitioner

who has resorted to gross suppression of facts does not deserve any

relief, submitted Mr. Badgujar.

1. I have given anxious consideration to the submissions canvassed

across the bar. The core controversy revolves around the justifiability of

the refusal of license to operate live Orchestra. Before addressing the

contentious issues, it may be apposite to have a resume of the statutory

provisions and the rules which govern the grant or refusal of the

licence.

1. Chapter IV of the Police Act, 1951 contains the provisions under

the heading, "Police Regulations". Under Section 33 of the Police Act,

-WP12910-2025.DOC

1951, distinct authorities have been empowered to make rules for

regulations of traffic and for preservation of order in public places, etc

Clauses (w) and (wa) of sub-section (1) of Section 33 empower the

Commissioner of police to make rules inter alia for licensing or

controlling places of Public amusement or entertainment, prohibiting

the keeping of places of public amusement or entertainment or

assembly, in order to prevent obstruction, inconvenience, annoyance,

risk, danger or damage to the residents or passengers in the vicinity and

the Licensing or Controlling [in the interest of public order, decency or

morality or in the interest of the general public], with such exceptions

as may be specified, the musical, dancing, mimetic or the article or

other performances for the public amusement, including melas and

tamashas.

1. In exercise of the powers conferred under Section 33(1) of the

Police Act, 1951, the Commissioner of Police, Navi Mumbai, has made

Public Amusement Rules, 1999. A brief reference to the relevant Rules

may be necessary. Under Rule 2(i); the 'Premises' and under Clause (j);

"Public Amusement performance" are defined as under:

"2(i) "Premises" means any place which is used or is intended to
be used as a place or public amusement or any place other than
cinema theatre wherein musical, dancing, dramatic, mimetics,
theatrical or other performances of public amusement, exhibition
or diversion or game are staged.

-WP12910-2025.DOC

2(j) "Public Amusement Performance" means a performance of
dramas, songs, dances, mimetics and similar other performances
given in a place of public amusement or in any other place
whether with or without admission fee and to which admission is
not restricted exclusively to the members of any particular
institution."
19. Chapter II of the Public Amusement Rules, 1999 makes provision

for issue of No Objection Certificate for the use of a premises as a place

for public amusement. Under Rule 4, before grant of No Objection

Certificate, the Licensing Authority is enjoined to notify the public of the

intention of the prospective licence to put to use the given premises as a

place of public amusement, for the purpose of inviting the objections.

Under Rule 5, without prejudice to the authority of the Licensing

Authority to refuse or grant licenses for premises and performances

under rule 93 and 94 and 103 and 104, the Licensing Authority may

grant No Objection Certificate at the site notified by the Applicant.

1. Under the scheme of the Public Amusement Rules, 1999, there is

a necessity to have independent premises licence and performance

licence. Chapter VIII of the Public Amusement Rules, 1999, subsumes

provisions in relation to, "Premises Licence". Chapter IX deals with

"Performance Licence".

1. Rule 91 proscribes the use of the premises as a place of public

amusement unless the persons being the owner or occupant thereof

shall have obtained a premises licence therefor. Under Rule 94, the

-WP12910-2025.DOC

Licensing Authority may refuse a premises licence, if appears to it, that

the premises is likely to cause obstruction, inconvenience, risk or danger

to residents or passers by in the vicinity of the premises.

1. Likewise, Rule 100 proscribes performances sans licence. It

provides no person shall hold a musical, dancing, dramatic, minetic,

theatrical or other performance; for public amusement including Melas

and Tamashas or any public exhibition or diversion or game by

whatever name called unless and until he has obtained a performance

licence from the Licensing Authority to hold such performance.

1. Rule 104, with which we are primarily concerned, empowers the

Licensing Authority to refuse the licence in specified cases. Rule 104

reads as under:

"104. Power to refuse Licence.-- The Licensing Authority may
refuse, except in the case of a Mela, Tamasha and Ras, a licence to
perform or exibit any or all of the plays or all of exhibitions or any
other items of performance included in the application for licence
if he considers them:--
(a) To be indecent or of a scurrilous character;

   (b)      To contain offensive references to personalities;

   (c)      To wound the susceptibilities of any motion or followers of
   any religion;

   (d)      To be seditious or to be likely to excite political
   discontent;

   (e)      To promote hostile feelings between different classes;

                                                            -WP12910-2025.DOC

   (f)      To be calculated to cause a breach of the peace; or

   (g)      To be objectionable on any ground other than those
   specified in (a), (b), (c), (d) and (f).

The Licensing Authority shall not be bound to state the reasons
for refusing any Performance Licence except in case of ground

(g), when he shall give such reasons in writing."
24. Evidently, Clauses (a) to (f) of Rule 104 empower the Licensing

Authority to refuse licence for the specified reasons. Clause (g), which is

residuary in nature, provides that the Licensing Authority may refuse

the performance licence if he considers the performance, "to be

objectionable on any ground other than those specified in Clauses (a) to

(f)". The Licensing Authority need not give reasons for refusing of

performance licence, except in case of ground (g), whereunder he is

enjoined to record reasons in writing, if the performance is considered

to be objectionable.

1. In the case at hand, the performance licence has been refused

under Rule 104, on the ground that the Licensing Authority was of the

view that, in the event the licence to operate orchestra was granted a

serious law and order situation was likely to arise. It appears, the

Licencing Authority has resorted to residuary Clause (g) of Rule 104, as

the licence does not seem to have been refused with reference to any of

the grounds enumerated in clauses (a) to (f). Whether the aforesaid

action is justifiable?

-WP12910-2025.DOC

1. As is evident from the order passed by Licensing Authority, it

appears that the Licensing Authority had received objections to the

notice published under Rule 4 of the Public Amusement Rules, 1999 to

the grant of the licence to operate orchestra and live music at the

establishment. It records that 23 cooperative housing societies, 232

citizens/local representatives and one Association of Merchants had

lodged objections for the grant of licence to operate orchestra and,

there were news report which revealed that the citizens were protesting

against the possible grant of the licence to the Petitioner. On the basis of

the aforesaid material, the Licensing Authority was persuaded to reject

the Application observing that a serious law and order situation was

likely to arise if the licence was granted.

1. Before the Appellate Authority, it appears, a spot inspection

report was submitted by the Deputy Collector-cum-Special Executive

Officer, Konkan Division. To assess the justifiability of refusal of the

licence, the said spot inspection report deserves to be considered.

1. The following features emerge from the spot inspection report.

The establishment was located on the ground floor of the building,

"Affaires". The said building was a completely commercial premises.

There were two bars, namely, "91 Palm Lounge Bar" and "Rosewood

Bar" on the ground floor of the said building. On the northern side of

the Affaires, there were two buildings. The first building was also

-WP12910-2025.DOC

having commercial offices, establishments and residential flats, from 4 th

floor onward. The second building was having only commercial

establishments. In the first building there was a bar styled, " Sajio Bar"

and, in the second building, there was another bar, "Atarangi Bar".
29. It would be contextually relevant to note that in the Affidavit in

Reply filed on behalf of the Respondents, refuting the contention of the

petitioner that, in Navi Mumbai Commissionerate, there were 53 bars

which were granted licence to operate orchestra/live music, it was

contended that, licence to operate orchestra/live music performance

was granted to 43 bars/establishments.

1. The situation which thus emerges is that in the very building, nay

the ground floor on which the Petitioner intended to have a

performance licence to operate an orchestra, there were two bars where

the liquor was served and pre-recorded live music was allowed to be

played. Likewise, in two adjacent buildings of the Affaires, there were

two bars, namely Sajio and Atarangi. The building, in which the

premises was situated and the Petitioner intended to have licence to

operate an orchestra, was completely commercial. One of the ad-joining

buildings was, however, of mixed use. Incontrovertibly, in Navi Mumbai

Commissionerate area itself, the Licensing Authority had issued as many

as 43 licences to operate orchestra/live music. Thus, two facts becomes

absolutely clear. First, there are bars in the very building where the

-WP12910-2025.DOC

establishment in question is situated and in the adjoining buildings.

Second, the Licensing Authority has granted licence to operate

orchestra/live music performances for more than 40 establishments.

1. Keeping in view the aforesaid factual backdrop, an answer to the

aforesaid question about the justifiability of refusal of licence deserves

to be explored, in two parts. First, the procedural fairness. Second, the

exercise of power within the bounds of law.

1. On the aspect of failure to provide an opportunity of hearing to

the petitioner before the rejection of the application for performance

license, it is not denied that no such opportunity of hearing was given to

the petitioner. On the contrary, the failure to provide an opportunity of

hearing was sought to be justified by the learned AGP by submitting

that in a case of the present nature, it is the interest of general public

which is paramount and the failure to give an opportunity of hearing to

the Petitioner by the Licensing Authority cannot be said to have caused

irreparable prejudice to the Petitioner. In fact in the Affidavit in Reply an

assertion has been made that even if the opportunity of hearing would

be given to the Petitioner the consequence would have been same.

1. I am afraid to accede to this submission. If the Licensing

Authority performs an administrative function which entails civil

consequences, the Licensing Authority must provide an efficacious

opportunity of hearing to the person against whom an adverse order is

-WP12910-2025.DOC

passed. The Petitioner could have shown the unsustainability of the

objections filed on behalf of the cooperative housing societies and

citizens that the Petitioner would start a dance bar/ladies bar in the

subject premise.

1. In the case of [UMC Technologies Private Limited vs Food

Corporation Of India](https://indiankanoon.org/doc/65382777/) and another2, the Supreme Court enunciated that,

it must be noted that it is the first principle of civilised jurisprudence

that a person against whom any action is sought to be taken or whose

right or interests are being affected should be given a reasonable

opportunity to defend himself. The basic principle of natural justice is

that before adjudication starts, the authority concerned should give to

the affected party a notice of the case against him so that he can defend

himself.

1. A Constitution Bench of the Supreme Court in the case of

CORE vs. ECL SPIC SMO MCML (JV) (2025) 4 SCC 641, postulated the

object of observing the principles of natural justice as under:

"..... The object of observing the principles of natural justice is to
ensure that "every person whose rights are going to be affected by
the proposed action gets a fair hearing."158 The non-observance of
natural justice is itself a prejudice to any person who has been denied
justice depending upon the facts and circumstances of each case.159
The principle of procedural fairness is rooted in the principles of the
rule of law and good governance. In Madhyamam Broadcasting
Limited v. Union of India, (2023) 13 SCC 401 this Court held that the
requirement of procedural fairness "holds an inherent value in
itself....."
2 (2021) 2 SCC 551

-WP12910-2025.DOC

1. Mr. Badgujar, the learned AGP further attempted to salvage the

position by submitting that before the Appellate Authority an efficacious

opportunity of hearing was given to the Petitioner. This submission also

does not merit acceptance.

1. If an efficacious opportunity of hearing was not given to a party

in the Court of first instance, the prejudice thereby caused cannot be

remedied by providing an opportunity of hearing in the Appeal. If

natural justice is violated at the first instance, the right of appeal cannot

be a panacea. The net effect would be, instead of a fair trial followed

by appeal, there would be, at best, an unfair trial followed by fair trial.

1. In a recent pronouncement in the case of [Krishnadatt Awasthy vs.

State of Madhya Pradesh](https://indiankanoon.org/doc/54281017/) and others3 , a three-Judge Bench of the

Supreme Court considered the question whether denial of natural

justice at the initial stage can be cured by an appellate body. The

Supreme Court enunciated that the provision for an appeal should not

rest on the assumption that the appellate body is infallible. When one

party is denied the opportunity to present their case, the initial decision

fails to provide meaningful guidance to the appellate authority, in

achieving a fair and just resolution. The Supreme Court answered the

question as under:

3 (2025) 7 Supreme Court Cases 545

-WP12910-2025.DOC

"70. Following the above discussion, it must be concluded that a
defect at the initial stage cannot generally be cured at the appellate
stage. Even in cases where a "full jurisdiction" may be available at the
appellate stage, the courts must have the discretion to relegate it to the
original stage for an opportunity of hearing. Therefore, the ex parte
decision to set aside the appellants' selection stands vitiated."
(emphasis supplied)

1. This Court is of the view that, in the case at hand, the order

passed by the licensing authority is infirm for non-observance of the

principles of natural justice as no opportunity of hearing was provided

to the petitioner in the context of the objections received on behalf of

the co-operative societies and citizens.

1. Article 19(1)(g) of the Constitution of India declares that all

citizens shall have the right to practice any profession, or to carry on

any occupation, trade or business. Right to practise any profession or to

right to any occupation, trade or business is one of the fundamental

freedoms guaranteed by the Constitution. Under Clause (6) of [Article

19](https://indiankanoon.org/doc/1218090/), the State is empowered to impose reasonable restrictions on the

exercise of the right conferred by said sub-clause in the interest of

general public. The legality and justifiability of the action of refusal of

licence would thus be required to be tested on the anvil of the

constitutional protection.

1. The power to impose reasonable restrictions on the right to carry

on any occupation, trade or business is in the interest of general public.

The fact that the competent authorities have granted licences to operate

the premises as a eating house place and even an FL-III licence,

-WP12910-2025.DOC

indicates that the extant activity of operating a bar and restaurant,

albeit under requisite licences, cannot be said to be one which is

prohibited. Nor the operation of orchestra or staging live music

performance can said to be inherently dangerous or injurious to general

public.

1. Since the Licensing Authority does not claim that there is no

policy of issuing a performance licence to operate orchestra and/or

render live music performances and has, in fact, issued such licences to

more than 40 establishments within its jurisdiction, the staging of

orchestra/live music performances cannot be said to be per se indecent

or profane.

1. In a different context, in the case of [State of Punjab Vs Devans

Modern Breweries Ltd,4](https://indiankanoon.org/doc/39828/) the Supreme Court enunciated that dealing in a

commodity which is governed by a statute cannot be said to be

inherently noxious and pernicious. The State is entitled to prohibit any

trade or commerce in potable liquor. However, once a licence is granted

to carry on any trade or business, can it be said that a person is

committing a crime in carrying on business in liquor although he strictly

complies with the terms and conditions of licence and the provisions of

the statute operating in the field? The Supreme Court observed that, if

the answer to the said question was to be rendered in the affirmative, it

4 (2004) 11 SCC 26.

-WP12910-2025.DOC

will create havoc and lead to anarchy and judicial vagaries. It was

concluded, so long as, it is not made impermissible to carry on such

business by reason of a statute, no crime can be said to have been

committed in relation thereto.

1. The following observations of the Supreme Court are instructive

and hence extracted below.

"48. Dealing in a commodity which is governed by a statute
cannot be said to be inherently noxious and pernicious. A
society cannot condemn a business nor there exists a
presumption in this behalf if such business is permitted to be
carried out under statutory enactments made by the legislature
competent therefor. The legislature being the final arbiter as to
the morality or otherwise of the civilized society has also to state
as to business in which article(s) would be criminal in nature.
The society will have no say in the matter. The society might
have a say in the matter which could have been considered in a
Court of law only under common-law right and not when the
rights and obligations flow out of statutes operating in the field.
Health, safety and welfare of the general public may again be a
matter for the legislature to define and prohibit or regulate by
legislative enactments. Regulatory statutes are enacted in
conformity with Clause (6) of Article 19 of the Constitution to
deal with those trades also which are inherently noxious and
pernicious in nature; and furthermore, thereby sufficient
measures are to be taken in relation to health, safety and
welfare of the general public. The courts while interpreting a
statute would not take recourse to such interpretation whereby
a person can be said to have committed a crime although the
same is not a crime in terms of the statutory enactment.

-WP12910-2025.DOC

Whether dealing in a commodity by a person constitutes a crime
or not can only be the subject-matter of a statutory enactment.

......

1. From the analysis of decisions rendered by this Court in Cooverjee B. Bharucha, R.M.D. Chamarbaugwala, Har Shankar or Khoday Distilleries, it will appear that a person cannot claim any right to deal in any obnoxious substance on the ground of public morality. The State, therefore, is entitled to completely prohibit any trade or commerce in potable liquor. Such prohibition, however, has not been imposed. Once a licence is granted to carry on any trade or business, can it be said that a person is committing a crime in carrying on business in liquor although he strictly complies with the terms and conditions of licence and the provisions of the statute operating in the field? If the answer to the said question is to be rendered in the affirmative it will create havoc and lead to anarchy and judicial vagaries. When it is not a crime to carry on such business having regard to the fact that a person has been permitted to do so by the State in compliance with the provisions of the existing laws, indisputably he acquires a right to carry on business. Even in respect to trade in food articles or other essential commodities either complete prohibition or restrictions are imposed in the matter of carrying on any trade or business, except in terms of a licence granted in that behalf by the authorities specified in that behalf. The distinction between a trade or business being carried out legally or illegally having regard to the restrictions imposed by a statute would have, therefore, to be judged by the fact as to whether such business is being carried out in compliance with the provisions of the statute(s) operating in the field or not. In other words, so long it is not made impermissible to carry on such business by reason of a statute, no crime can be said to have been committed in relation thereto. The doctrine of res

-WP12910-2025.DOC

extra commercium, thus, would not be attracted, whence a
person carries on business under a licence granted in terms of
the provisions of the regulatory statutes.

.........

1. The matter is covered by statutory provisions. The court cannot interpret equality, freedom or commerce clauses of the Constitution in such a manner so as to take away the rights and obligations created under a statute on the ground of public morality or otherwise. When a statute permits a trade, morality takes a back seat as "legislature" as contradistinguished from "judiciary" is supposed to be the authority to consider the morality or otherwise of certain things prevailing in the society."
2. The Supreme Court has thus emphasized that the legislature is

the final arbiter as to the morality or otherwise of the civilised society

and has also to state as to what business in which articles would be

criminal in nature. The society will have no say in the matter. The

Society might have say in the matter which could have been considered

in a Court of law only under common law right and not when the right

and obligations flow out of statute operating in the field. Health, safety

and general welfare of the public may again be a matter for the

legislature to define and prohibit or regulate by legislative enactments.

1. On the aforesaid touchstone, reverting to the facts of the case at

hand, it is imperative to note that the sole ground on which the

Application for performance licence has been refused is that, objections

have been raised by the cooperative housing societies, citizens and local

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peoples representatives and a business Association. Copy of those

objections have been annexed by the State to the Affidavit in Reply.

From a perusal of those objections, it becomes evident that the

objections are based on the premise that the premises may be used for

dance bar/ ladies bar and the presence of dance bars/ladies bar would

cause negative impact in the neighborhood and would give rise to

public safety and security concerns.

1. In some of the representations, there is a reference to the peoples

representatives spearheading the campaign. However, without delving

into the contention on behalf of the Petitioner that a misinformation

campaign was orchestrated against the Petitioner, on an objective

analysis, the Courts finds that the resistance stemmed from the

apprehension that the Petitioner would operate a dance bar/ladies bar,

under the guise of orchestra.

1. It would be necessary to note that the Application for

performance licence clearly records that the performance licence was

sought for live band with one stage. It is not the case of the

Respondents that the performance licence was required to be refused as

there was an apprehension that the Petitioner would run dance

bar/ladies bar under the guise of orchestra. Could the Licensing

Authority thus refuse the performance licence on the basis of the

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perceived misuse of the premises in the objections lodged in response to

the notice?

1. In view of the provisions contained in Rule 104 of the the Public

Amusement Rules, 1999, the power to refuse the licence can be

exercised for the specified reasons. Under the residuary clause (g),

"objectionable on any ground other than those specified in Clauses (a)

to (f)", the Licensing Authority cannot be said to have an unfettered and

unregulated power to refuse the licence. Such interpretation would give

a carte blanche to the Licensing Authority.

1. To what extent, the Licensing Authority could refuse the

performance licence, if the Applicant satisfies all other requirments

solely on the basis of the objections raised by the members of the public

in response to the notice under Rule 4 is a matter which warrants a

balancing exercise. On the one part, the guarantee of fundamental

freedom to carry on any trade or occupation or business is to be

secured. On the other hand, the general public needs to be protected

from the potential harm that may result from carrying on the particular

trade or occupation. Since the activity is regulated by statute and rules,

and is not per se immoral, dangerous or inherently injurious, the issue

of justifiability of objections based on morality crops up for

consideration.

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1. In the case of [Indian Hotel and Restaurant Association (Ahar) and

Anr Vs State of Maharashtra5](https://indiankanoon.org/doc/113334597/) while examining the constitutionality of

certain provisions of the Maharashtra Prohibition of Obscene Dance in

Hotels, Restaurants and Bar rooms and Protection of Dignity of Women

(working therein) Act, 2016 ("the Act 2016") and the Rules framed

thereunder, the Supreme Court reemphasized that the State cannot take

exception to dance performance per se. In the process, the Supreme

Court made the following observations:

"79. It needs to be borne in mind that there may be certain
activities which the society perceives as immoral per se. It may
include gambling (though that is also becoming a debatable
issue now), prostitution etc. It is also to be noted that standards
of morality in a society change with the passage of time. A
particular activity, which was treated as immoral few decades
ago may not be so now. Societal norms keep changing. Social
change is of two types: continuous or evolutionary and
discontinuous or revolutionary25. The most common form of
change is continuous. This day-to-day incremental change is a
subtle, but dynamic, factor in social analysis. It cannot be
denied that dance performances, in dignified forms, are socially
acceptable and nobody takes exceptions to the same. On the
other hand, obscenity is treated as immoral. Therefore, obscene
dance performance may not be acceptable and the State can
pass a law prohibiting obscene dances. However, a practice
which may not be immoral by societal standards cannot be
thrusted upon the society as immoral by the State with its own
notion of morality and thereby exercise 'social control'.

5 (2019) 3 SCC 429.

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Furthermore, and in any case, any legislation of this nature has
to pass the muster of constitutional provisions as well. We have
examined the issues raised in the aforesaid context.

1. This brings us to the Principle of res extra commercium. Insofar as dance performances are concerned, it has already been held that it is not res extra commercium. We would, at this stage, again refer to Indian Hotel and Restaurants Association (1) where these aspects are dealt with as under:

.....

80.2 Injury to Public Morals: TheCourt
categorically rejected the contention that the dance
bars affect or cause harm to public morale. In
pertinent part, this Court stated that: "120. ..In our
opinion, the State neither had the empirical data to
conclude that dancing in the prohibited
establishment necessarily leads to depravity and
corruption of public morals nor was there general
consensus that such was the situation..."
80.3 Res Extra Commercium: The State Government contended
that the dance performances in such establishments affect the
dignity of women and leads to corruption of public morals.
Thus, the respondent justified that the prohibition is a
reasonable restriction necessary "in the interest of general
public" as under Article 19(6) of the Constitution. This Court
categorically rejected the said contention, and held that the
respondent "failed to establish that the restriction is reasonable
or that it is in the interest of general public". This Court further
added that the prohibition fails to satisfy the doctrine of 'direct
and inevitable effect' to justify such restriction, and the
insufficiency of the existing regulatory framework."

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1. In the case of Hotel Priya, A Proprietorship (Supra), which also

arose out of the conditions imposed on the orchestra performance

under the Public Amusement Rules, 1999 namely, (i) the licencee was

permitted to keep only four women singers/artists and four male

singers/artists to remain present on permitted stage and (ii) only eight

artists were permitted to remain present on the permitted stage (four

male and four women), the Supreme Court examined the legality and

justifiability of those conditions.

1. The Supreme Court observed that the impugned gender-cap (i.e.

four females and four males, in any performance) appeared to be the

product of a stereotypical view that women who perform in the bars

and establishments, like the appellants, belong to a certain class of

society. The Supreme Court declared the condition imposing a gender

cap as to the number of women or men, who can perform in orchestras

and bands, in bars licenced under the Rules, 1960 and other allied

provisions, was void. While the overall limit of performers in any given

performance cannot exceed eight, the composition (i.e., all female,

majority female or male, or vice versa) can be of any combination,

declared the Supreme Court. After referring to the previous

pronouncement in the case of Hotel Priya, A Proprietorship (Supra), the

Supreme Court observed inter alia as under:

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"43. It is thus clear that each of the arguments which the
state is relying on, were considered in the context of challenge
to statutory prohibitions, as well as license conditions. The
arguments advanced in the present case, that the restrictions
are necessary in the public interest, to promote the welfare of
women, prevent human trafficking in women, and their
exploitation, and that the restrictions are necessary in the
interest of public morals, are well worn, and have been
decisively rejected. Apart from regurgitating the same rejected
submissions, the state has not justified, independently, how the
gender-cap, as for an individual orchestra or band, is
regulatory."
54. In the light of the aforesaid position in law, in the considered

view of this Court, the impugned order refusing the performance licence

on the ground that a serious law and order situation may arise if licence

for orchestra/live music performance was granted, appeared to be

without any objective basis. The Licensing Authority has taken into

account the objections raised on behalf of the society and citizens which

were evidently based on an incorrect impression that once the

orchestra/live music performance licensee is granted, the Petitioner

would operate the dance bar/ ladies bar. In view of the provisions of the

Act 2016, even the operating of dance bar per se is not completely

prohibited. Thus on an misplaced apprehension, the performance

licence could not have been rejected.

1. For the forgoing reasons the Petition deserves to be allowed.

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1. Hence, the following order:

: O R D E R:
(i) The Petition stands allowed.

   (ii)     The impugned order as well as the order passed by

the Licensing Authority refusing the performance licence

stand quashed and set aside.

(iii) The Licensing Authority shall grant performance

licence to operate orchestra/live music performance, if

other conditions are fulfilled, within a period of four

weeks from the date of communication of this order.

(iv) Rule made absolute to the aforesaid extent.
No costs.

[N. J. JAMADAR, J.]