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H.M. Duggappa Vs. the Deputy Commissioner and District Magistrate and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1980CriLJ301
AppellantH.M. Duggappa
RespondentThe Deputy Commissioner and District Magistrate and anr.
Excerpt:
.....for the competent authority to refuse a licence for, or to prohibit, the keeping of any place of public amusement or entertainment by a person of notoriously bad character. thus, the aforesaid sub-section (7) of section 31 of the act empowers the competent authority to refuse a licence for or to prohibit the keeping of any place of public amusement or entertainment by a person of notoriously bad character, irrespective of the provisions contained in section 31 or the order issued thereunder. it was thus contended that unless the authority is satisfied that the grant of a licence will not in any way affect the maintenance of law and order, the authority is not bound to grant the licence. (b) to contain offensive personalities; the reason given by the licensing authority for rejecting..........the variety entertainment shows in sy no. 49 of davangere and also to use the said place for public amusement.2. the first respondent has rejected the application on the ground that the grant of licence will badly affect the effective maintenance of law and order.3. it was submitted by the learned counsel appearing for the petitioner that the impugned order does not contain any reason and the reason given by the first respondent that it would affect the effective maintenance of the law and order, cannot at all be said to be a ground for rejecting the application.4. the petitioner filed an application for grant of licence for conducting the variety entertainment shows on the ground belonging to shree beeralin-geshwara temple, davangere, and also to use the said place for public.....
Judgment:
ORDER

K.A. Swami, J.

1. In this petition under Article 226 of the Constitution, the petitioner has sought for quashing of the order dated 7-5-1979 bearing No. 1 (1) ENT.CR.113/7B-79 passed of the District Magistrate, Chitradurga, rejecting the application filed by the petitioner for grant of a licence for conducting the variety entertainment shows in Sy No. 49 of Davangere and also to use the said place for public amusement.

2. The first respondent has rejected the application on the ground that the grant of licence will badly affect the effective maintenance of law and order.

3. It was submitted by the learned Counsel appearing for the petitioner that the impugned order does not contain any reason and the reason given by the first respondent that it would affect the effective maintenance of the law and order, cannot at all be said to be a ground for rejecting the application.

4. The petitioner filed an application for grant of licence for conducting the variety entertainment shows on the ground belonging to Shree Beeralin-geshwara Temple, Davangere, and also to use the said place for public amusement, for a period of 3 months from the date of commencement. This application was filed on 18-8-1978. Thereafter, the petitioner was directed to obtain no-objection certificate under para 10 (4) of the Licensing and Controlling of Public Amusements and Places of Public Amusements Order, 1969 issued by the first respondent in exercise of the powers under Sub-section (1) of Section 31 of the Karnataka Police Act, 1963 (hereinafter referred to as 'the Act') and also to obtain an order from the competent authority leasing the premises in question to the petitioner for the aforesaid purposes and to produce the lease deed executed by the temple committee in that regard. Accordingly, the petitioner approached the temple authorities of Shree Beeralin-geshwara temple, Davangere, and the temple authorities have agreed to lease the land in question to the petitioner on a rent of Rs. 30 per day, as per Exhibit-H. The petitioner produced the order Exhibit-H before the first respondent. Thereafter, the application of the petitioner was notified in the daily newspaper known as 'Davangerevani' on 2-2-1979 as required by para 10 (3) of the aforesaid order. According to the petitioner, no objections were filed by the members of the public. Thereafter, the first respondent has issued an endorsement rejecting the application of the petitioner.

5. Section 31 of the Act, empowers the Deputy Commissioner and the District Magistrate in areas under their respective charges or any part thereof, to make, alter or rescind orders not inconsistent with the Act, for the purposes mentioned in Clauses (a) to (z) therein. For our purpose, Clauses (w) and (x) of Section 31 (1) of the Act, are relevant and the same are as follows:

(w)(i) licensing or controlling places of public amusement or entertainment;

(ii) 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;

(iii) regulating the means of entrance and exit at places of public amusement or entertainment or assembly and providing for the maintenance of public safety and the prevention of disturbance thereat;

(x) (i) licensing or controlling with such exceptions as may be specified, the musical, dancing, mimetic, or theatrical or other performance for public amusement, including melas and tamashas:

(ii) regulating in the interest of public order, decency or morality or in the interest of general public the employment of artists,

and the conduct of the artists and the audience at such performances,

(iii) prior scrutiny of such performance by a Board appointed by the Government or by an Advisory Committee appointed by the Commissioner or the District Magistrate in this behalf;

(iv) regulating the hours during which and the places at which such performances may be given.

As per Sub-section (2) (ii) of Section 31 of the Act, the aforesaid power of making, altering or rescinding orders under the aforesaid Clauses shall be subject to previous sanction of the State Government. There are other conditions mentioned in Sub-sections (3) to (6) of Section 3l of the Act, but the same are not relevant for our purpose, hence the said clauses have not been adverted to. However, Sub-section (7) of Section 31 of the Act, is relevant for our purpose and the same is as follows:

Notwithstanding anything herein before contained in this section or which may be contained in any order made thereunder, it shall always be lawful for the competent authority to refuse a licence for, or to prohibit, the keeping of any place of public amusement or entertainment by a person of notoriously bad character.

Thus, the aforesaid Sub-section (7) of Section 31 of the Act empowers the competent authority to refuse a licence for or to prohibit the keeping of any place of public amusement or entertainment by a person of notoriously bad character, irrespective of the provisions contained in Section 31 or the order issued thereunder.

6. In exercise of the aforesaid powers, the first respondent has published the order dated 29-10-1970 in the Mysore Gazette of Dec. 17th, 1970, known as the 'Licensing and Controlling of Public Amusement and Places of Public Amusements Orders, 19&9.' As per the provisions contained in the aforesaid order the licensing officer for premises is the District Magistrate of Chitradurga District and in the case of Yaxagana (Bailata), Dramas, the Taluka Magistrate having the jurisdiction over the area has also been empowered to grant a licence. The licence is required to be obtained both for use of the premises as a place of public amusement and also to perform or exhibit any or all of the plays or exhibitions mentioned in the application. The application filed by the petitioner pertained to both use of the premises for public amusement and also to perform or exhibit any or all the shows or exhibitions mentioned in the application. Therefore, under para 10 (4) of the aforesaid Order, the petitioner was required to obtain the no-objection certificate from the licensing authority.

7. According to the case of the petitioner, the licensing authority has not issued No Objection Certificate but has rejected the application filed for licence as already stated above. As per the contents of the impugned order, it is not possible to hold as to whether the application was rejected under para 13 of the Order or under para 39 of the Order, since the impugned order does not contain any reason which can be said to fall either under para 13 or para 39 of the Order. The learned High Court Government Pleader appearing for the respondents, however contended that under para 39, it was open for the first respondent to refuse to grant the licence on any of the grounds not covered by Clauses (a) to (f) of para 30 of the Order. Therefore, the order passed by the first respondent is in accordance with law. He also further submitted that paragraphs 13 and 39 of the Order read together go to show that the granting of the licence is within the discretion of the authority. It was thus contended that unless the authority is satisfied that the grant of a licence will not in any way affect the maintenance of law and order, the authority is not bound to grant the licence. NO doubt the discretion is vested in the licensing authority regarding the grant of licence but that discretion cannot be exercised arbitrarily without giving any reason for the same. The right to practice any profession or to carry on any occupation, trade or business is one of the fundamental rights guaranteed under Article 19 (1) (g) of the Constitution. Therefore, the licensing authority functioning 'under the Act and the Order made thereunder, should not act in such a manner so as to nullify the fundamental right guaranteed to the petitioner under the Constitution. It is to prevent the arbitrary exercise of the power, it is made incumbent upon the authority to give reasons for refusing to grant the licence,' Paras 13 and 39 of the Licensing and Controlling of Public Amusements and Places of Public Amusements Order, 1969, referred to above are as follows:

13. It shall be in the discretion of the licensing officer to refuse to grant a licence for any premises proposed to be used as a place of public amusement, if such place appears to him likely to cause obstruction, inconvenience, annoyance, risk, danger or damage or damage to residents or passers-by in the vicinity of such premises.

* * * *

39. The licensing officer may refuse, or after granting may withdraw, or cancel a licence to perform or exhibit any or all of the plays or exhibitions mentioned in the application, if he considers them:

(a) to be indecent or of a scurrilous character;

(b) to contain offensive personalities;

(c) to be likely to wound the religious feelings, of any class of individuals; ,

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

(e) to promote hostile feelings between different classes;

(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), (e) and (f).

(2) The licensing officer shall specify in his order of refusal or withdrawal upon which of the above grounds such order is passed and in the case of an order passed on 'ground (g) shall state in such order the reasons which led him to consider the play or the exhibitions as the case may be objectionable.

The aforesaid sub-para (2) of Para 39 makes it incumbent upon the authority to give reasons with reference to the grounds mentioned in sub-para (1) and if the ground for rejection is the one falling under Clause (g) of sub-para (1) of para 39, the order must contain the reasons which led the licensing authority to consider the play or exhibition as the case may be, as objectionable. Thus, the licensing authority cannot arbitrarily refuse to grant the licence except on the grounds mentioned in Clauses {a.) to (g) of sub-para (1) of para 39 of the Order, arid that too in accordance with sub-para (2) thereof. The reason given by the licensing authority for rejecting the application is that the grant of licence in question will badly affect the effective maintenance of law and order. Without there being any supporting reason, this can hardly be said to be a ground for refusing to grant a license falling in any one of the grounds mentioned in para 39 of the Order referred to above. If this can be accepted as a valid ground for refusing licence, then no licence for the purposes in question can be granted inasmuch as grant of licence for the aforesaid purposes does require special attention of the authority enjoined with the duty to maintain law and order. That does not mean that the licence itself should be refused. The petitioner is not said to be a person of notoriously bad character. As such, it is clear that the application for grant of licence in question filed by the petitioner has been refused arbitrarily.

8. As already pointed out, the District Magistrate has arbitrarily rejected the application of the petitioner and it has resulted in the deprivation of the petitioner of his fundamental right to carry on the profession of his choice guaranteed in the Constitution without any valid reason as the reason given in the order cannot be said to be valid one, Accordingly, the order passed by the District Magistrate, is hereby quashed and he is directed to re-consider the application of the petitioner forthwith, in the light of the observations made in this order.


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