(2017) 11 SCC 250
Order dated 24-2-2016
(Before Dipak Misra and Shiva Kirti Singh, JJ.)
Writ Petition (C) No. 793 of 2014
1. This Court on 26-11-2015 (2016) 15 SCC 330, (2016) 15 SCC 334, after considering various aspects, had passed the following order: (Indian Hotel & Restaurant Assn. case (2016) 15 SCC 330, (2016) 15 SCC 334)
“6. We must also fairly state that Mr Salve, learned Senior Counsel submitted that the order shall be complied with within two weeks hence and the licences shall be issued to the applicants, on their fulfilling the conditions. Needless to say, when the licences are issued, the hoteliers shall strictly be guided by the directions which we have given hereinbefore and the regulatory measures that are going to be imposed by the licence-granting authority.”
2. Despite the aforesaid order, it is submitted by Mr Bhushan, learned Senior Counsel appearing for the petitioner that the licences have not yet been granted but letters have been issued to the eligible applicants. As we find, 157 applications were received and 101 applications have been entertained but they have not been granted licences as they have to fulfil certain conditions. It is submitted by Mr Bhushan that some of the conditions that have to be followed are absolutely impermissible under the constitutional framework. To understand the scenario in proper perspective, we may reproduce the conditions which have been filed. They read as follows:
“(1) This licence is valid for only one stage of 10 ft × 12 ft in size in restaurant area as per approved plan of the Excise Department for FL-III with non-transparent partition between restaurant and permit room area.
(2) The stage should be covered from all sides by a non-removable partition of 3 ft height.
(3) There shall be a distance of 5 ft between the abovementioned partition and the customers' seating area.
(4) A red line restricting the customers to not to cross it shall be drawn near the customer seating area after distance of 5 ft.
(5) The licensee is permitted to keep only 4 dancers/artists to remain present on the permitted stage.
(6) The licensee shall ensure that the age of the dancers is more than 18 years.
(7) All conditions of the BMC Health Department and the Chief Fire Officer, Mumbai should be followed strictly at all times.
(8) Sufficient number of entry and exit doors should be operative at all times for free, safe and unobstructed movements of the visiting customers. Conditions as laid down in Noise Pollution Control Rules be strictly followed.
(9) The licensee shall obtain NOC from “Ranghbhumi Prayog Parinirikshan Mandal” before starting the performance.
(10) The licensee shall ensure that the character and antecedents of all employees is verified by the police.
(11) The licensee shall not allow any addition or alteration to be made to the premises except without the written permission of the competent authority i.e. DCP (HQ-I) for Mumbai or DCP/SP concerned for other areas.
(12) The licensee shall ensure that no concealed cavity or a room is created within the premises in order to conceal performers/staff.
(13) The licensee shall not appoint any manager or an agent to conduct the business on his behalf without obtaining the previous permission of the licensing authority to be endorsed on the licence.
(14) The licensee shall ensure that either the licensee himself or his manager or agent whose name has been endorsed on the licence by the competent authority shall remain present during the whole time for which premises are open to the public.
(15) The licensee shall ensure that adequate number of CCTV cameras which will live feed continuously to police control room be installed to cover the entire premises which will record the entire daily performance and the same will be monitored by a specially appointed person on a monitor/display. The daily recording of performance of last 30 days would be preserved and will be made available to any competent authority as and when required for viewing.
(16) The licensee shall at all times allow free access to and from such place to any police officer on duty entering the same in the execution of his duty.
(17) The licensee shall not allow any person including performers to smoke either on stage or in entire premises.
(18) Licensee shall ensure that no performance of dance shall remotely be expressive of any kind of obscenity in any manner.
(19) Licensee shall ensure that there will not be any violation of dignity of woman through obscene dances.
(20) Licensee shall ensure that there will not be any showering of any currency notes, coins on performers on stage or anywhere in the premises.
(21) This licence will be revoked if any information or document is found to be false or bogus at a later date.
(22) The licensee should abide by the provisions of the Maharashtra Police Act as well as all other Acts applicable in this context.
(23) The licensee shall conduct his or her occupation of business in such premises in an orderly manner.
(24) Licensee shall comply with the provisions of the Rules for Keeping Places of Public Entertainment in Greater Bombay, 1953.
(25) If the licensee fails to abide by the Rules for Licensing and Controlling Places of Public Amusement (other than Cinema) and Performances for Public Amusement, including Melas and Tamashas, 1960 and conditions mentioned therein, this licence would be suspended or cancelled.
(26) The orders, directions issued time to time from the State Government/competent authority will be applicable and shall be binding on licensee, failing to comply with the same would result in the license would be liable for suspension or cancellation.”
3. The learned Senior Counsel for the petitioner has submitted that the petitioner Association has serious objections in respect of Conditions 1, 2, 5, 11, 12 and 15. As far as Condition 10 is concerned, it is urged by Mr Bhushan, learned Senior Counsel, that the antecedents have to be qualified by criminal antecedents and not “character and antecedents”.
4. The grievance raised in respect of the conditions has to be responded to by Ms Pinky Anand, learned Additional Solicitor General appearing for the State of Maharashtra. For the aforesaid purpose, let the matter be listed on 1-3-2016. It is hereby made clear that no adjournment shall be granted on that day.
(2017) 11 SCC 252
Order dated 2-3-2016
(Before Dipak Misra and Shiva Kirti Singh, JJ.)
Writ Petition (C) No. 793 of 2014
5. On the last occasion, the Court had noted 7 (seven) conditions which had been taken exception to by Mr Jayant Bhushan, learned Senior Counsel appearing for the petitioners. The exceptions relate to Conditions 1, 2, 5, 10, 12 and 15. Condition 1 reads as follows:
“(1) This licence is valid for only one stage of 10 ft × 12 ft in size in restaurant area as per approved plan of the Excise Department for FL-III with non-transparent partition between restaurant and permit room area.”
6. It is submitted by Ms Pinky Anand, learned Additional Solicitor General on the basis of the affidavit that as per the approved plan of the Excise Department for permit rooms with FL-III licence, there is always a necessity for providing a non-transparent partition between the restaurant and the permit room area. It is urged by her that the intention of the Excise Department behind incorporation of the said condition is to keep the permit room area separate from the restaurant area where alcohol is not served.
7. Be it noted, the said Condition (1) has been modified to the following extent:
“This licence is valid for only one stage of 10 ft × 12 ft size in restaurant area/permit room as per approved plan of the Excise Department for FL-III with non-transparent partition between restaurant and permit room area.”
The said condition is accepted by the petitioners and, therefore, we shall not dwell upon the same.
8. As far as Condition (2) is concerned, it reads as follows:
“(2) The stage should cover from all sides by a non-removable partition of 3 ft height.”
In the affidavit filed by the State, the said condition has been modified as follows:
“(2) There shall be a railing of 3 ft height adjacent to the dance stage. There should be distance of 5 ft between the railing and seats for the customers. In respect of dance bars which have secured licences earlier, provisions mentioned above be made binding. It should be made binding on dance bars seeking new licences to have railing of 3 ft height adjacent to the stage and leaving a distance of 5 ft between the railing and sitting arrangement for customers.”
9. Mr Bhushan, learned Senior Counsel would submit that regard being had to the suggestions noted in State of Maharashtra v. Indian Hotel and Restaurants Assn. (2013) 8 SCC 519, the railing of 3 ft height can be put in praesenti subject to the further arguments to be canvassed at a later stage but there cannot be non-removable partition. Having heard the learned counsel for the parties, we accept the submission of Mr Bhushan, learned Senior Counsel and direct that there should be railing of 3 ft height and not the non-removable partition. The railing is meant for creating barrier between the performers and the audience.
10. Condition (5) is to the following effect:
“(5) The licensee is permitted to keep only 4 dancers/artists to remain present on the permitted stage.”
11. It is submitted by Mr Bhushan that he has no objection to the said Condition (5) but it may be clarified that other artists can remain present in the premises to which there is no objection by the learned Additional Solicitor General. Hence, we clarify that four dancers can perform on the stage at one time but there can be other artists at other places inside the premises.
12. Condition (10) reads as follows:
“(10) The licensee shall ensure that the character and antecedents of all employees is verified by the police.”
13. Though there is no suggestion in the affidavit as regards the said condition, it is submitted by Mr Bhushan, learned Senior Counsel, that it has to be restricted to criminal antecedents. We agree with the same. Any employee who is engaged, his/her criminal antecedents are to be verified. It is imperative.
14. Condition (11) reads as follows:
“(11) The licensee shall not allow any addition or alternation to be made to the premises except without the written permission of the competent authority i.e. DCP (HQ-I) for Mumbai or DCP/SP concerned for other areas.”
15. The aforesaid condition is modified to the extent that the premises shall not be altered/modified without the permission of the competent authority under the statute. However, it is hereby directed that if there will be any grievance on this score, the parties are at liberty to approach this Court.
16. Condition (12) reads as follows:
“(12) The licensee shall ensure that no concealed cavity or a room is created within the premises in order to conceal performers/staff.”
17. Mr Bhushan, learned Senior Counsel submitted that he has no objection to the said Condition (12) but there should be a room which can be utilised as a green room. We so direct. Be it clarified, green room means green room in the manner in which it is understood in the classical sense.
18. Condition (15) on which the parties are at real cavil reads as follows:
“(15) The licensee shall ensure that adequate number of CCTV cameras which will live feed continuously to police control room be installed to cover the entire premises which will record the entire daily performance and the same will be monitored by a specially appointed person on a monitor/display. The daily recording of performance of last 30 days would be preserved and will be made available to any competent authority as and when required for viewing.”
19. Having heard the learned counsel for the parties, Dr Rajeev Dhavan, learned Senior Counsel, who sought permission to file an application for intervention and Mr Sandeep Deshmukh, learned counsel for the fifth respondent, we are inclined to modify the said Condition (15) to the extent that CCTV cameras shall be fixed at the entrance of the premises in question but shall not be fixed in the restaurant or the permit area or the performance area.
20. As we have clarified the conditions, the modified conditions along with conditions on which there is no cavil shall be complied with within three days and the respondents shall issue the licences within ten days therefrom. We are sure, the authorities shall act in accordance with the command of this Court and not venture to deviate. Let the matter be listed after two weeks. Liberty to mention.
(2017) 11 SCC 255
Order dated 18-4-2016
(Before Dipak Misra and Shiva Kirti Singh, JJ.)
Writ Petition (C) No. 793 of 2014
21. IA for impleadment is allowed. Let the applicant be added as Respondent 6. Cause-title be rectified accordingly.
22. Heard Mr Jayant Bhushan, learned Senior Counsel for the petitioner, Ms Pinky Anand, learned Additional Solicitor General for the State, Mr Sanjiv Sen, learned Senior Counsel appearing for Respondent 5 and Dr Rajiv Dhavan, learned Senior Counsel for the newly added Respondent 6.
23. This Court, on 2-3-2016, after hearing the learned counsel for the parties, noting the conditions imposed by the State and referring to the decision in State of Maharashtra v. Indian Hotel and Restaurants Assn. (2013) 8 SCC 519, had directed as follows: (See paras 19-20 above)
“19. Having heard the learned counsel for the parties, Dr Rajeev Dhavan, learned Senior Counsel, who sought permission to file an application for intervention and Mr Sandeep Deshmukh, learned counsel for the fifty respondent, we are inclined to modify the said Condition (15) to the extent that CCTV cameras shall be fixed at the entrance of the premises in question but shall not be fixed in the restaurant or the permit area or the performance area.
20. As we have clarified the conditions, the modified conditions along with conditions on which there is no cavil shall be complied with within three days and the respondents shall issue the licences within ten days therefrom. We are sure, the authorities shall act in accordance with the command of this Court and not venture to deviate.”
24. Ms Pinky Anand, learned Additional Solicitor General, appearing for the State of Maharashtra prays for a week's time so that the order can be complied with. It is urged by her that the applications are under process. An affidavit of compliance shall be filed by the Deputy Commissioner of Police, Headquarters-I (Hotel Division) who shall also remain personally present on 25-4-2016.
25. Let the matter be listed on 25-4-2016.
Court Masters