1. The owners/occupiers of bar and restaurants in the City of Bangalore, the respondents herein, had filed applications before the Commissioner of Police, Bangalore City, for conducting live band music in their respective bar and restaurants under the provisions of the Licensing and Controlling of places of Public Amusements (Bangalore City) Order, 1989 (hereinafter called as 'Licensing Order'). The requests made were rejected by the Commissioner of Police vide various orders passed against the respondents on similar grounds as detailed in Annexure-D filed in W.A. Nos. 1446 to 1460 of 1998. The Licensing Authority found that as under the Karnataka Excise Act, 1965 (hereinafter called as the 'Act') and Rule 11 of the Karnataka Excise Licences (General Conditions) Rules, 1967 (hereinafter called as the Licensing Rules) the respondents could not carry on any other activity in the licensed premises, where liquor is served, they were not entitled to the grant of licences. Aggrieved by the order of the Licensing Authority, the respondents herein filed various petitions in this Court, which were heard and allowed by the learned Single Judge vide his Order dated 11th of March, 1998, R. Shankare Gowda v Commissioner of Police, Bangalore City, which is impugned in these appeals.
2. The order of the learned Single Judge has been challenged on the ground that the same was contrary to Rules 9 and 11 of the Licensing Rules. The learned Single Judge is stated to have given very restrictive constructions to the words 'any kind of entertainment' occurring in sub-rule (1) of Rule 11 of the Licensing Rules. It is claimed that theLicensing Authority while acting under Licensing Order had jurisdiction and was competent to consider the interests of the public at large before deciding to grant or refusing to grant the licence. Under the circumstances and keeping in view the relevant rules of the Licensing Rules, the competent authority is claimed to have rightly come to the conclusion that the conduct of live band music in a bar and restaurant where liquor is served was against the public interests besides being against the statutory provisions. Any liberal construction to any of the provisions of the Act or the Rules made thereunder was likely to endanger the interests of the public at large. It is further contended that the learned Single Judge was not justified in comparing the conduct of live band music with that of providing taped music in a bar and restaurant. It is claimed that the Licensing Authority was justified in refusing to grant the licence by keeping in mind the insufficiency of parking space near or around the area where live band music was intended to be conducted. The antecedents of the person applying for the grant of licence was a relevant consideration for deciding to grant or reject his prayer for licence or its renewal for the purposes of conduct of the live band music.
3. The admitted facts in the case are that the respondents herein are the owners of bar and restaurants except the respondent in W.A. No. 1455 of 1998. All such respondents are admitted to have obtained licences in CL-9 issued by the Licensing Authority under the Karnataka Excise (Sale of Indian and Foreign Liquors) Rules, 1968 (hereinafter called as the Liquor Rules). The conduct of live band music in the City of Bangalore is governed by the Licensing Order. The Commissioner of Police, Bangalore City, is the Licensing Authority. The applications of the respondents for grant of licences to conduct live band music in their respective bar and restaurants in the year 1998 were rejected on the similar grounds as detailed in Annexure-D noticed hereinabove.
4. The learned Single Judge noticed the following reasons which had weighed with the Licensing Authority for rejection of all the applications of the respondents:
(i) The petitioners are facing proceedings for violation of the terms and conditions of the licences issued in their favour under the Excise Act, which renders their antecedents doubtful and disentitles them to the grant of a licence under the Public Amusement Order of 1989.
(ii) The restaurants owned by the petitioners do not have enough parking space around them which is likely to create traffic congestion and inconvenience to the general public; and
(iii) Rules 9 and 11 of the Karnataka Excise Licenses (General Conditions) Rules 1967, do not permit any entertainment in a place licensed for serving liquor nor do the said rule permit the employment of women in any such place.
5. While dealing with Reason No. 1, the learned Single Judge found that the mere allegations suggesting breach of the conditions of thelicence issued in favour of the licensee could not be made a basis for refusal of the grant of licence unless such allegations were substantiated and established. Referring to Reason No. 2, the learned Judge held that the reason was untenable as it was not obligatory for the respondents herein to make provision for parking area around the restaurants where they intended to conduct the live band music. He was of the opinion that it was open to the Licensing Authority to keep such considerations in mind while granting fresh licences based on first time applications in future and it may also be open for the Licensing Authority to refuse future grants on cogent materials showing demonstrable prejudice or inconvenience to the public on account of the parking area in and around any particular restaurant. It was however specifically held:
'So long as that is not done generalised type of reasoning adopted by the Licensing Authority would not suffice nor can the licensee be refused only on that basis'.
While dealing with Reason No. 3, the learned Single Judge referred to the Licensing Order, the provisions of the Act and the Rules, the meanings of the word 'public amusement' and 'public entertainment' under the Karnataka Police Act and concluded that neither Rule 9 nor Rule 11 of the Licensing Rules places any restriction on the employment of the female artist whether instrumental or vocal music so long as any such artist was not employed to serve or handle liquor for the customer visiting such place of public entertainment. The argument of the respondent that no licence was needed for providing public amusement through live band music was however negatived holding 'a licence is therefore essential for any amusement in the form of live music in a restaurant'. It was further noticed that Clause 4(7) empowered the Licensing Authority to grant a licence on such terms and conditions and subject to such restriction as it may determine. It was further observed that the nature of the restrictions and the condition subject to which the licence could be granted was a matter which lay in the discretion of the Licensing Authority to be exercised by it in a fair and reasonable manner. The learned Single Judge quashed the impugned orders passed by the Licensing Authority and directed it to consider the applications of the respondents afresh by passing appropriate orders on the same in accordance with the law and keeping in view the observations made by him. Till fresh orders were passed, the respondents were held entitled to conduct the live band music in their respective bar and restaurants.
6. Before considering and adjudicating the rival pleas raised before us, it is necessary to take note of some of the provisions of laws relied upon by the learned Counsel for the parties, which are stated to be applicable in these appeals. As all the respondents are owners of bar and restaurants they have admittedly been granted licences in CL-9 issued by the Licensing Authority under the Liquor Rules. The rules have been framed in exercise of the powers vesting in the Government under Section 71 of the Act. The Act has been enacted to provide for a uniform excise law in the State of Karnataka relating to the production, manufacture, possession, import, export, transport, purchase and sale of liquor and intoxicating drugs.
7. Section 13 of the Act provides that no person shall manufacture or collect an intoxicant or cultivate hemp plant or tap a toddy producing tree or draw toddy from any tree or construct or work a distillery or brewery or bottle liquor for sale or use, keep or have in his possession any materials, still, utensils, implement or apparatus, whatsoever for the purpose of manufacturing any intoxicant other than toddy except under the authority and subject to the terms and conditions of a licence granted under the Act. Section 15 mandates that no intoxicant shall be sold except under the authority and subject to the terms and conditions of a licence granted in that behalf. 'Intoxicant' has been defined under Section 2(16) to mean any liquor as defined in clause (18) or any intoxicating drug as defined in clause (17). 'Liquor' has been defined to include spirits of wine, denatured spirits, wine, beer, toddy and all liquids consisting of or containing alcohol for wash and any other intoxicating substance, which the State Government may by notification, declare to be liquor for the purposes of the Act. Rule 9 of the Licensing Rules prohibits the employment of women, convicted persons, person below the age of 18 years or persons suffering from contagious disease in the licensed premises. Rule 11 forbids certain acts in the licensed premises and reads as:
'(1) No gambling, dance, gathering, feast or any kind of entertainment or unlawful act shall be permitted in such premises.
(2) The licensee shall sell liquor only in the approved shop and shall not sell in such premises any article other than such article and except to the extent permissible in accordance with the terms of the licence'.
Form No. CL-9 is the proforma of the licence for the sale of Indian made foreign liquor under the Act and the Licensing order. The general conditions of the licence are:
1. The licensee shall be bound by the provisions of the Karnataka Excise Act, 1965 and any general or special rules prescribed or which may from time to time be prescribed thereunder.
2. The privilege under this licence extends to the sale of Indian (other than arrack) or foreign liquors of the brands furnished by the licensee. Any alterations to the lists furnished should be approved by the Deputy Commissioner. No liquors below the strength of 25 'Under Proof in case of Brandy, Whisky and Rum and 35 'Under Proof in case of Gin and not more than 8% of Alcohol by volume in case of Beer will ordinarily be included in the list.
3. The holder of this licence shall upon requisition by any officer not below the grade of a Sub-Inspector of Excise be bound to produce to such officer the original invoice showing the importation of all liquors for the sale of which this licence is granted forinspection and to all the samples of the liquors in the shop to betested.
4. The licensee is bound to maintain correct daily accounts of transactions and submit the return every month to the Excise Officers concerned within the first week of the following month.
5. The licence may be suspended or cancelled in accordance with the provisions of Section 29 of the Act and licensee or his employee shall be liable for prosecution for breach of any of the conditions of the licence under the provisions of the Act or the rules and orders thereunder.
6. xxx xxx xxx.
7. The sale of liquor is restricted to persons supplied with meals or refreshment prepared and served for consumption in the premises only.
8. The Karnataka Police Act, 1963 (hereinafter called 'the Police Act') has been enacted to provide for a uniform law for the regulation of the police force in the State, the maintenance of public order and other matters connected therewith.
9. Section 2(14) of the Police Act defines the 'place of public amusement' as:
'any place where music, singing, dancing or any diversion, or game, or the means of carrying on the same is provided and to which the public are admitted and includes a race course, circus, theatre, music hall, billiard room, beagattelle room, gymnasium fencing school, swimming pool or dancing hall'.
Section 2(15) defines 'place of public entertainment' as:
'any place to which the public are admitted and where any kind of food or drink is supplied for consumption on the premises by any person owning or having an interest in or managing such place and includes a refreshment room, eating house, coffee house, liquor house, boarding house, lodging house, hotel, tavern, or a shop where wine, beer, spirit, arrack, toddy, ganja, or other kind of liquor or intoxicant or any kind of food or drink is supplied to the public for consumption in or near such shop'.
10. The Commissioner of Police, Bangalore City, has made the Licensing Order. Para 3 of the Licensing Order provides that the application for grant of licence to conduct or organise any public amusement shall be made in six sets to the Licensing Authority in the prescribed form accompanied by the requisite fee. On receipt of the application, the Licensing Authority, if satisfied that the application is in order, forward the copies of such application as soon as possible to the authorities specified in para 4 having jurisdiction over the area where public amusement is proposed to be conducted for their reports or certificates, as the case may be. Such authorities include the Executive Engineer, Public Works Department; the Health Officers; the Officer of the Electrical Inspectorate and the Fire Officer. The authorities are obliged to submittheir reports or certificates to the Licensing Authority after satisfying themselves about the following:
(a) that the conduct of public amusement will not endanger publicsafety;
(b) that the premises and electrical installations are adequate and sound for conduct of public amusements;
(c) that adequate provisions are made for sanitation, ventilation and light;
(d) that necessary precautions have been observed and provision is made to install fire fighting equipments;
(e) that the provisions of this order have been complied with and (f) that there is no objection for the grant of licence.
The Licensing Authority thereafter shall decide whether to grant or refuse licence for conducting public amusement having regard to the following matters:
(a) the interest of public in general; and
(b) the status and antecedent of the applicant.
11. The licence for conducting the public amusement is to be granted in Form II attached to the Licensing Order, which specifically provides that the same is granted subject to the provisions of the Licensing Order and the following terms and conditions;
1. The licensee shall not permit any obscene or objectionable poster or pictorial publicity material to be displayed in the licensed place of public amusement.
2. The licensee shall not organise or perform shows of public amusements which are obscene in character.
3. The licensee shall sell tickets for admissions to any show of public amusement within the licenced place of public amusement by providing suitable booths for the purpose.
4. The licensees shall not admit into the licensed place of public amusement in excess for the number specified in the licence.
5. The licensee shall not conduct any show of public amusement before 10 A.M. or after 12 Midnight.
6. The licensee shall not permit smoking or consumption of liquor in the licenced place of public amusement,
7. The licensee shall comply with all the directions issued by thelicensing authorities from time to time.
(emphasis supplied)
12. The licences for conduct of public amusement actually granted to the respondents prescribed 11 conditions, inter alia providing 'no liquor will be served in place of the live band music and that the licensee should provide sufficient parking space near his building'.
Condition No. 11 provided:
'The conditions of the Fire Force and other Departments should be followed strictly failing which the licence will be cancelled'.
13. Live band music has not been defined under any Act, Rule or even the licence. It is commonly understood as the conduct of the music involving men and women singing songs for the entertainment of the audience. The conduct of live band music has to be understood to be a public amusement and the place where it is conducted is a place of public amusement.
14. The Supreme Court in Y.V. Srinivasamurthy and Others v State of Mysore and Another, had held that the 'entertainment' and 'amusement' were wide enough to include theatres, dramatic performances, cinemas, sports and the like.
Black's Law Dictionary, 6th Edition, defines 'Amusement' at page 84 thus:
'pastime; diversion, enjoyment. A pleasurable occupation of the senses, or that which furnished it'.
The learned Single Judge was, therefore, right in holding that for the conduct of live band music, which was a 'public amusement' a licence under the Licensing Order was necessary.
15. Admittedly, the constitutional validity of Rules 9 and 11 of the Licensing Rules forbidding certain acts in the licensed premises was not challenged by the respondents seeking grant of licence under the Licensing Order. Rule 11 of the Licensing Rules as already noticed did not permit the gambling, dancing, gathering or other kinds of entertainments in the licensed premises. Licence in terms of the aforesaid rule is granted in Form No. CL-9 in favour of the person and the premises specifically mentioned therein. Such a licence is subject to various conditions as detailed herein earlier. The licence specifically authorises the sale of Indian liquor other than arrack or foreign liquor or both at the premises number mentioned therein. It has also been submitted that before the grant of a licence, the licensee is obligated to file an application in the prescribed form along with the site plan where the sale of liquor is to be carried on. In the absence of a challenge to Rule 11, no person could claim the grant of the licence under the Licensing Order to carry on gambling, dancing or other type of entertainments in the premises and the area licensed for the sale of liquor as detailed in Form No. CL-9 issued in favour of each licensee. The question of conduct of the live band music admittedly an amusement and entertainment cannot be claimed as a matter of right to be carried on in the licensed premises by a licensee who has been granted a licence under the Licensing Rules. If the premises for conduct of public amusement is distinct and different than a premises for which licence under the Licensing Rules has been granted, the authority under the Licensing Order is obliged to considerthe prayer independently without having reference to Rules 9 and 11 of the Licensing Rules, but, if the licensee applies for both the licences, the authority under the Licensing Order is justified to decline the licence, as admittedly such a licensee is forbidden under law to provide any entertainment within the licensed premises under the Act and the Rules made thereunder.
16. Being conscious of this legal embargo, the learned Counsel appearing for the respondents-licensees argued at length that the Licensing Authority under the Licensing Order was not justified to invoke the provisions of Rules 9 and 11 of the Licensing Rules, as no such provision was made under the Licensing Order. According to them, in the absence of a specific provision in the Licensing Order, the Licensing Authority under the said Order could not and should not have insisted for compliance of Rules 9 and 11 of the Licensing Rules. Elaborating their submissions, the learned Counsel submitted that the grant or refusal of licence was governed and controlled only by Para 4 of the Licensing Order, which inter alia did not put any restriction as contemplated under Rules 9 and 11 of the Licensing Rules.
17. The Supreme Court in M.J. Sivani and Others v State of Karnataka and Others, found that the relevant acts dealing with regulation of games or running of common gaming house authorising the Licensing Authority having charge over the area, by virtue of office had the right to exercise his powers regulating the gaming or common gaming house by issuance of licence for running the same subject to conditions or restrictions imposed therein to maintain peace, order and security, morality, prevention of offences, detection of the crime, apprehension or detention of offenders and have the offenders tried for violation of law in accordance with the procedure prescribed. Dealing with the licences regulating the video games, the Apex Court found that for a commoner or a novice, it is difficult to play video game with skill. The question whether a particular video game is a game of skill or a game of chance or mixed chance or skill required to be determined on the main element, namely, skill or chance. If it was a game of pure chance or mixed chance and skill, it was a gaming. Even if the game was for amusement or diversion of a person from his usual occupation for entertainment, it would amount to gaming and the object of the relevant Act, notification or order regulating such games was intended to regulate running of the video games for which a licence was required from the Licensing Authority. The guidelines provided and the law laid down in M.J. Sivani's case, supra, regarding video games would be equally applicable with respect to the live band music which has been declared to be carried on for providing amusement to the customers in the licensed premises under the Licensing Rules. The Licensing Authority, therefore, is conferred with discretion to impose such restrictions, imposed by notification or order having statutory force or conditions emanating therefrom as part thereof as are deemed appropriate to the trade or business or avocation for a licence or permit, as the case may be.
18. The argument that the conditions of Rules 9 and 11 of the Licensing Rules could not be deemed incorporated in the Licensing Order though attractive on the face of it, yet is without substance when analysed in depth keeping in view the public interest and the object intended to be achieved by the Licensing Authority. Generally speaking, an Act or statute or a rule and order made thereunder by itself be sufficient for determining the rights and obligations arising or accruing thereunder, but that does not debar the concerned authority to keep in mind the apprehended violation of an existing law and the obligations cast upon the party applying for the grant of licence. Under the Licensing Order an application for grant of licence for conducting public amusement has to be filed under Para 3 thereof in the prescribed form, which inter alia, provides 'details of the place where the public amusement is proposed to be conducted'. Similarly, Form No. II issued in terms of Para 4 of the Licensing Order clearly specifies 'the situation of the place where the public amusement is conducted'. In the conditions of licence under the Licensing Order, it is specifically mentioned that 'the licensee shall not permit smoking or consumption of liquor in the licensed premises of public amusement'. A combined reading of various provisions of the Act, the Licensing Rules and the Licensing Order clearly and unambiguously show that the licence for conducting public amusement can be granted in a place where the licensee cannot serve liquor or permit smoking. Rules 9 and 11 of the Licensing Rules however provide that the liquor can be served in the licensed premises subject to the conditions specified therein. All kinds of entertainments including amusement cannot be carried on in the premises specified in the licence issued in CL-9. Accepting the plea that the Licensing Authority under the Licensing Order cannot go beyond the conditions specified in that order itself would lead to disastrous effects, which would not only be in violation of the mandatory provisions of law, but also against the public policy. Before deciding to issue a licence under the Licensing Order, the Licensing Authority has to be satisfied about the place where the amusement is to be provided. If a person seeking licence is not possessed of any such premises, the Licensing Authority has the right to decline the grant of licence even though no such ground is specifically mentioned under Para 4 of the Licensing Order. Take a case where a person applying for the licence is a lessee of the premises owned by a religious institution or a lessee of a premises in a residential area and the premises is located within the residential area or in the immediate vicinity of a religious place, can the licence for such premises be claimed as a matter of right? The answer is empathetically 'No' because the grant of such licence though not specifically prohibited under Para 4 of the Licensing Order is yet against the public policy and the contractual obligations imposed upon the lessee seeking grant of licence. No body can insist for the grant of a licence, which apparently is found to be violating the conditions of the other prevalent law applicable in the case. Sub-para (2) of Para 4 of the Licensing Order casts a duty upon the Licensing Authority that before granting the licence it must be satisfied that the conduct of intended public amusement was not likely to endanger publicsafety and that there was no objection to the grant of licence. The Licensing Authority though presumed to act upon the reports of the officers specified in sub-para (1) of Para 4, is yet under an obligation that while deciding whether to grant or refuse licence for conducting public amusement shall have regard to the interests of the public in general and the status and antecedent of the applicant. The compliance of the provisions of Rules 9 and 11 of the Licensing Rules, is therefore a sine qua non for grant of the licence under the Licensing Order. All the relevant provisions of law including the provisions of the Act, the Rules made thereunder, the Karnataka Police Act, the Rules made thereunder the Licensing Order have to be taken into consideration while granting or refusing to grant the licence under the Licensing Order. The provisions of the Licensing Rules cannot be termed to be alien to the provisions of the Licensing Order.
19. It is well-settled rule of construction that the provisions of a statute or a rule made thereunder has to be read so as to harmonise with one another and the provisions applicable in the case cannot be used or interpreted in such a manner which would defeat the purpose and object intended to be achieved. The Court should try to avoid absurd consequences while interpreting the statutes. Inconsistency and repugnancy have to be avoided while giving harmonious construction to the provisions of the law applicable in the case. The Court should always try to avoid giving a construction which may result in anomalies. A provision cannot be interpreted in isolation and no such interpretation is accepted from a Court which apparently amounts to the violation of the provision of any law applicable. The most fair and rational method of interpretation is by exploring the intention of the legislature or the rule making authority through the most natural and probable signs which are either the words, the context, the subject-matter, the effects and consequence, or the spirit and reason of the law. A bare mechanical interpretation of the words and application of a legislative intent is likely to reduce most of the remedial and beneficial legislation to futility.
20. Krishna Iyer J. while speaking for the Court in Chairman, Board of Mining Examination and Chief Inspector of Mines and Another v Ramjee, observed 'To be literal in meaning is to see the skin and miss the soul of the regulation. The judicial key to construction is the composite perception of the deha and the dehi of the provision'. The Courts are supposed to be more cautious while dealing with the legislation enacted to give effect to the policies particularly dealing with controversial matters. That does not mean that the Court should remain silent spectators even if it finds that the polices were against the public interests being violative of the fundamental right or defeating the basic features of the Constitution. The provisions of law, rules and the orders issued thereunder cannot be interpreted in a manner, which may result to set at naught legislative judgment, which if allowed would amount to subversive of the constitutional harmony and equity of instrumentalities.
21. Justifying the judgment of the learned Single Judge, it was argued on behalf of the respondents that as the Licensing Order and the Licensing Rules impose unreasonable restrictions on the right to carry on the trade and business, the same were liable to be ignored being void, as they violated the constitutional guarantee under Article 19(1)(g) of the Constitution.
22. No such plea appears to have been raised either in the writ petitions or during the arguments before the learned Single Judge. The point as to whether any alleged restriction amounted to the violation of fundamental right has to be considered and decided on the basis of the facts of each case. The restriction, if any, whether it is a reasonable or otherwise, is a question of fact to be determined on the basis of settled law and not a pure question of law as argued. However, as the plea regarding violation of constitutional guarantee under Article 19(1)(g) of the Constitution has been raised to justify the order of the learned Single Judge, we have decided to deal with it even in the absence of specific pleadings.
23. There cannot be any quarrel with the proposition that the State cannot put any unreasonable restriction on the right of a citizen to practice any profession or to carry on any occupation, trade or business. It is however, equally true that the right to practice any profession or carry on any occupation, trade or business must be legal, valid and not against the public policy. It is not disputed that all the respondents are liquor vendors authorised to sell liquor under the Act and the Rules framed thereunder. Sale of liquor cannot be claimed as a matter of right. It has been authoritatively held by the Apex Court that sale of liquor may absolutely be prohibited or permitted to be carried only under the licence of sale. As the sale of liquor is controlled by the statutory provision, a person dealing with it cannot raise the plea of violation of fundamental right, if any restriction is put in carrying on the said trade, as in the instant case has been done under the Licensing Rules, particularly, by way of Rules 9 and 11.
24. It is also settled position of law that no citizen has a fundamental right to carry on business wherever he chooses. The right to carry on the business can be regulated by specifying the places keeping in view the interests of the society and such specification cannot be termed to be unreasonable violating the guarantee of fundamental right as enshrined under Article 19(1)(g) of the Constitution.
25. In T.B. Ibrahim, Proprietor, Bus Stand, Tanjore v Regional Transport Authority, Tanjore, where the appellant was a lessee of a site in the town of Tanjore in the State of Madras, upon which he had a bus stand, which originally belonged to the Municipality and the said appellant merely held a licence from that authority for running the bus stand, which was continued from time to time, but after a number of years, the Municipality refused to renew his licence and the Regional Transport Authority declared the bus stand as unsuitable, he approached the HighCourt challenging the action of the Municipal Authority on the ground of the order being contrary to the principles of natural justice and violating his fundamental right guaranteed under Article 19(1)(g) of the Constitution, the High Court rejected the pleas and in appeal the Supreme Court held:
'The next contention was that the order is repugnant to Article 19(1)(g) of the Constitution, according to which all citizens must have the right to practice any profession or to carry on any occupation, trade or business. It cannot be denied that the appellant has not been prohibited from carrying on the business of running a bus stand. What has been prohibited is that the bus stand existing on the particular site being unsuitable from the point of view of public convenience, it cannot be used for picking up or setting down passengers from that stand for outstations journeys. But, there is certainly no prohibition for the bus stand being used otherwise for carrying passengers from the stand into the town, and 'vice versa. The restriction placed upon the use of bus stand for the purpose of picking up or setting down passengers to outward journeys cannot be considered to be an unreasonable restriction.
It may be that the appellant by reason of the shifting of the bus stand has been deprived of the income he used to enjoy when the bus stand was used for outward journeys from Tanjore, but that can be no ground for the contention that there has been an infringement of any fundamental right within the meaning of Article 19(1)(g) of the Constitution. There is no fundamental right in a citizen to carry on business wherever he chooses and his right must be subject to any reasonable restriction imposed by the executive authority in the interest of public convenience. The restriction may have the effect of eliminating the use to which the stand has been put hitherto but the restriction cannot be regarded as being unreasonable if the authority imposing such restriction had the power to do so. Whether the abolition of the stand was conducive to public convenience or not is a matter entirely for the Transport Authority to judge, and it is not open to the Court to substitute its own opinion for the opinion of the authority, which is in the best position, having regard to its knowledge of local conditions to appraise the situation'.
Applying the aforesaid test, it cannot be said that the respondents-licensees had any right muchless a fundamental right to insist for the grant of licences under the Licensing Order for providing public amusement in the specified licensed premises.
26. The learned Single Judge appears to have ignored the object of the Act and the Rules made thereunder, the scheme of the Licensing Rules and the Licensing Order. The question was not as to whether the amusement can be provided by live band music by employing the women or not, but the question was as to whether any such amusement could be claimed as a matter of right in the premises licensed under the Act andthe Licensing Rules. After holding that the live band music was an amusement requiring a licence, the learned Single Judge could not have ignored the mandatory provisions of Rules 9 and 11 of the Licensing Rules. Allowing the writ petitions of the respondents was likely to perpetuate the violation of the terms of the licence under which they were carrying on the business of the sale of liquor. No Court can become a party to facilitate the violation of law whether directly in issue or indirectly, but admittedly against statutory safeguards. The provisions of the Licensing Order and Licensing Rules have to be read conjunctively and the Licensing Authority is obliged to grant or refuse to grant the licence in terms thereof by keeping in view the circumstances of each case.
27. The learned Counsel appearing for the respondents, who were petitioners in Writ Petition No. 741 of 1998 and Mr. Shetty, appearing for his clients have vehemently argued that their clients were not carrying on the business of the sale of liquor in the premises applied for grant of licence for providing amusement under the Licensing Order. It is contended that the authorities under the Act and the Licensing Rules have already bifurcated the premises. Be it as it may, the position of law does not change and the pleas of fact have to be taken as established, which cannot he substituted by this Court while exercising jurisdiction under Article 226 of the Constitution of India. Such of the respondents who had applied for the grant of licence for amusement in places other than the licensed premises under the Act and the Licensing Rules are at liberty to approach the Licensing Authority under the Licensing Order afresh by praying for the grant of licence in their favour after fulfilment of all the requisite qualifications.
28. All other points of law noticed and decided by the learned Single Judge, which have not been specifically dealt with by us in this judgment shall stand confirmed. The learned Single Judge was right in holding that mere pendency of the proceedings for alleged violation of the terms and conditions governing the Excise Licence issued to the writ petitioners under the Act and the rules framed thereunder could not be made a ground for refusal of licence under the Licensing Order. In this regard, we agree with both the reasoning and the conclusions arrived at by the learned Single Judge. The learned Single Judge was also justified to hold that it is open to the Licensing Authority to keep in mind the availability of the parking space near or around the place for which the licence is prayed for to be granted under the Licensing Order. We, however, do not agree with the learned Single Judge that such a consideration would not be applicable in the case of those who had earlier been granted the licences under the said Order. It is made clear that it shall be open to the Licensing Authority to refuse grant of licence on cogent material showing demonstrable prejudice or inconvenience to the public on account of lack of parking area in or around the place sought to be licensed for the purposes of providing amusement.
29. Under the circumstances, the appeals are allowed and the order of the learned Single Judge impugned therein is set aside. Writ petitionsfiled by the respondents shall be deemed dismissed and rule issued discharged. Respondents are held liable to pay costs of Rs. 2,000/- each, which shall be deposited in the fund of the Karnataka Sate Legal Authority.
30. The dismissal of the writ petitions and disposal of these appeals would not prevent the respondents herein and others to file fresh applications for the grant of licence in premises other than the licensed premises under the Licensing Rules and if such applications are filed, the same shall be considered and disposed of by the Licensing Authority under the Licensing Order in accordance with the law applicable and keeping in view the observations made in this judgment.