@JUDGMENTTAG-ORDER
V. Dhanapalan, J.@mdashThe petitioner submits that he has filed an application before the third respondent for grant of Municipal Licence for the purpose of holding Indian Classical Dance at Hotel Al Rasheed, Citadel at Door No. 1, 100 Ft. Road, Ellapillai Chavady at Pondicherry. The said application was rejected by the third respondent as per Order dated 12.04.2004 on the ground that there was objection from the Additional District Magistrate and the said order was challenged in W.P. No. 32662 of 2004 and this Court, by order dated 15.04.2005, quashed the said order and remitted the matter to the third respondent with a direction to grant temporary licence, pending consideration of grant of permanent licence.
2. The said order was challenged by the third respondent in Writ Appeal on the ground that when the Municipality is considering the grant of permanent licence, there is no requirement of a temporary licence. Accordingly, the Division Bench, as per judgment dated 10.08.2005 in W.A. No. 1456 of 2005, directed the third respondent to consider the grant of permanent licence for the purpose of holding Indian Classical Dance within a period of three weeks.
3. It is contended by the petitioner that when his application for licence to hold Indian Classical Dance is pending, the four other hotels run by the politicians of Pondicherry who are having the licence to hold Indian Classical Dance, approached the Local Administration Department to ban the issue of further licence for conducting Indian Classical Dance. The officials of the Government of Pondicherry who are having close contacts with the existing four hotels wanted to create a monopoly in favour of those four hotels and with a view to help those hotels, the Government of Pondicherry issued the impugned Government Order dated 20.09.2005, banning issue of fresh licence for performing Indian Classical and Western Dance.
4. The petitioner further contends that the Government Order was not issued in public interest but only as a measure to help the existing four licence holders which is evident by the fact that prohibition is only for issue of fresh licences and not for total prohibition of conduct of Classical Dance in Pondicherry and therefore, the impugned Government Order is issued only with an intention to reject the petitioner''s application for licence and his application alone was pending before the third respondent on the date of the Government Order.
5. Aggrieved by the impugned Government Order, the petitioner has approached this Court invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.
6. The petitioner has challenged the impugned Government Order dated 20.09.2005 (hereinafter referred to as Government Order) on various grounds, viz.,
a. That the G.O. is per se illegal, violative of the constitutional guarantee given under Article 19(1)(g) of the Constitution of India;
b. That by issue of the Government Order, the right conferred on the citizen by the Constitution of India by way of right to profess any profession or to carry on any trade or business, cannot be taken away;
c. That performance of Indian Classical Dance is not a prohibited profession and as such, the State, by way of an executive order, can only regulate the performance but cannot altogether prohibit the same and any such Government Order prohibiting the public entertainment of Classical Dance is violative of the constitutional guarantee as provided under the Constitution of India;
d. That Indian Classical Dance in all its form is encouraged by the Government of India and other State Governments and Classical Dances are performed even in Government functions and for other social gatherings;
e. That there is no object sought to be achieved by the issue of the impugned Government Order inasmuch as the existing licences issued for conducting Classical Dance are not disturbed by the Government Order and therefore, the impugned Government Order is bad for selective discrimination;
f. That the impugned Government Order confers monopoly right on four hotels who are now functioning with the licence issued by the third respondent and such a monopoly right on a citizen is impermissible and it would be an infraction of the inviolable provisions of the Constitution;
g. That there is no power for the Local Administration to issue the Government Order;
h. That the impugned Government Order is against the very principle of local self Government and the Government has no authority to interfere with the licensing functions of the Municipalities;
i. That Section 349 of the Pondicherry Municipalities Act deals with the licences to be issued by the Municipality and that the Government control over the Municipality in respect of issue of licences is nowhere provided in the Pondicherry Muncipalities Act and as such, the impugned Government Order is in conflict with the provisions of the Pondicherry Municipalities Act;
j. That the Government Order contravenes Article 239 of Constitution of India as it is not issued by Lt. Governor of Pondicherry and
k. That the Legislature of Pondicherry has given powers to the Municipal authorities to issue various licences and in this respect, there is no power conferred on the Government to interfere with licensing function of it and therefore, the Government Order dated 20.09.2005 is per se illegal and unconstitutional and needs to be quashed.
7. Mr. R. Thiyagarajan, learned Senior Counsel for the petitioner during the course of his exhaustive arguments, has submitted that this writ petition has been filed challenging the Government Order in G.O. Ms. No. 27/LAS/2005 dated 20.09.2005 on various grounds leading to infringement of constitutional rights and various provisions of the Pondicherry Municipalities Act, 1973 (hereinafter referred to as "the Act") which deals with the subject matter of the writ petition.
8. The learned Senior Counsel for the petitioner has contended that there is no object sought to be achieved by the issue of the impugned Government Order inasmuch as the existing licences issued for conducting Classical Dance are not disturbed by the Government Order and therefore, the impugned Government Order is bad for selective discrimination. In this regard, the learned senior counsel for the petitioner has contended that four other hotels run by politicians of Pondicherry who are having licence to hold Indian Classical Dance approached the Local Administration Department to ban the issue of further licence for conducting Indian Classical Dance. The officials of the Government of Pondicherry who are having close contacts with the existing four hotels wanted to create a monopoly in favour of those four hotels and with a view to help those hotels, the Government of Pondicherry issued the impugned Government Order dated 20.09.2005, banning issue of fresh licence.
9. The learned Senior Counsel for the petitioner has questioned the power of the Government in issuing the impugned Government Order which contravenes Article 239 of the Constitution of India as it is not issued by the Lt. Governor of Pondicherry and has submitted that the Legislature of Pondicherry has given powers to Municipal authorities to issue such a licence to the applicants seeking licence.
10. The learned Senior Counsel for the petitioner, in support of his arguments, has brought to the notice of this Court a document filed in Common Additional Typedset of papers which is a communication dated 30.01.2003 from the Commissioner, Pondicherry Municipality to the Superintendent of Police (North), Law and Order, Pondicherry wherein it is stated as follows:
I am to state that one Thiru. Abdul Razeed has applied for grant of Municipal Licence for the conduct of Indian Classical Dance (Entertainment Programme) at Hotel Al Rasheed, No. 1, Ellapillai Chavady, Pondicherry.
I am therefore to request you kindly to issue "No Objection Certificate" so as to enable us to examine the application.
11. The following endorsement has been made by the Superintendent of Police (North), Pondicherry in the afore-said letter:
S.P. (South) may please see and necessary action
12. In response to the same communication, the Divisional Fire Officer, Pondicherry, has also replied to the Commissioner of Pondicherry Municipality as follows:
With reference to the above, I am to state that Hotel Al Rasheed at No. 1, Ellapillai Chavady, Pondicherry proposed for conducting "Indian Classical Dance" by Thiru M.M. Dinesh was inspected by the official of this Department and found that there is no objection from the Fire Service angle to grant Municipal licence to the applicant, subject to the condition 2 Nos. of CO2 Fire Extinguishers of 4.5 kg. capacity each, must be provided at the place of function as fire precautionary measures.
13. Similarly, the Sub-Inspector of Police, Orleanpet Police Station, Pondicherry, has sent a letter to the Superintendent of Police (North) Pondicherry, which reads as follows:
This is a reference received from the Commissioner, Municipality of Pondicherry, requesting to issue No Objection Certificate....
Necessary enquiries were made and it reveals that the said Hotel was taken as a Lease Deed from the said AL Rasheed on monthly rental basis. Spot was inspected and the parking lot is available. There is no objection on the point of traffic. For information please.
14. It is the contention of the learned Senior Counsel for the petitioner that, from the above, it is made clear that the No Objection Certificate was considered by the authorities concerned in respect of grant of licence and therefore, the grant of licence has to be considered. Instead, the Government has come out with issue of the impugned Government Order dated 20.09.2005, contrary to the established rules and the constitutional guarantee.
15. The learned Senior Counsel for the petitioner, makes a particular mention of the impugned Government Order which reads as follows:
Whereas, u/s 349 of Pondicherry Municipalities Act, 1973, read with Pondicherry Municipalities (Places of Public Resort and Entertainments), Rules 1980 applications are being received for grant of licences for performing Indian Classical and Western Dances and floor shows.
Whereas, in terms of Section 349(3)(a) of Pondicherry Municipalities Act, 1973, G.O. No. 383 dated 30.12.1976 of Local Administration Department was issued.
Whereas, the Government of Pondicherry is satisfied that it is not in public interest to grant any further licences for the purposes mentioned above. Therefore, the Municipal Authorities are directed not to issue any fresh licence for the above-mentioned purposes in any permanent buildings as defined under Rule 2(c) of Pondicherry Municipalities (Places of Public Resort and Entertainments) Rules, 1980.
[Signed by Under Secretary to Government (L.A.)]
16. In regard to the impugned Government Order as mentioned above, the learned Senior Counsel for the petitioner has pointed out the above impugned order only goes to indicate that already existing licences are in force and only in respect of further licences, the impugned Government Order is passed and therefore, he has argued that allowing the existing hotels to continue with the licence for conducting entertainment programmes of Indian Classical Dance and prohibiting the petitioner from conducting the same amounts to discrimination and violation of Article 14 of the Constitution of India.
17. The learned Senior Counsel for the petitioner has pointed out that the Constitution of India, under Part-III, has guaranteed fundamental rights, more particularly, protection of certain rights regarding freedom of speech, etc. under Article 19(1)(g) which provides as follows:
to practise any profession, or to carry on any occupation, trade or business.
18. It is also further provided under Clause 19 (6) as follows:
Nothing in sub-clause(g) of the said clause shall affect the operation of any existing law insofar it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and in particular [nothing in the said sub-clause shall affect the operation of nay existing law insofar as it relates to, or prevent the State from making any law relating to:
i. the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or
ii. the carrying on by the State, or by a Corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.]
19. The learned Senior Counsel for the petitioner has also referred to Sections 349, 350 and 352 of the Act which provide as below:
349. Application and grant of licence:
3(a) If the Commissioner, after consulting such authority or officer as the Government may from time to time, by notification direct, is satisfied
(i) that the enclosed place or building may safely be used for the purpose of public resort or entertainment proposed
(ii) that no objection, arising from its situation, ownership, or the purpose proposed exists, he shall give to the applicant a written licence, signed by him, specifying the enclosure or building and the purpose for which it is to be used. Such licence shall be in such form and subject to such fee and conditions as the Government may, from time to time, prescribe.
350. Revocation or suspension of licence:
The Commissioner may, for reasons to be recorded in writing, revoke or suspend the licence when he has reason to believe:-
a. that the licences has been fraudulently obtained;
b. that the enclosed place or building has been used for other purposes of public resort or entertainment that that for which the licence was granted;
c. that the place or building can no longer be safely used for the purpose for which the licence was granted
d. that any condition of the licence has been contravened.
352. Power to enter place of public resort to inspect licence or to prevent further use:-
It shall be lawful for any officer of police in charge of a station or of higher rank than Head Constable or any other officer duly authorised by the Government by notification, to enter at any time for enclosure or building for which licence is required under this Act, to inspect the licence if any has been issued, and, if there is no licence or if the conditions of the licence are not observed and if he sees reason to apprehend imminent danger to the public, to prevent the further use of such enclosure or building as a place of public resort or entertainment.
20. The learned Senior Counsel for the petitioner has placed reliance on a decision of the Supreme Court reported in
If the power exercised by the Collector was a quasi judicial power-as we hold it to be - that power cannot be controlled by the directions issued by the Board. No authority however high placed can control the decision of a judicial or a quasi judicial authority. That is the essence of our judicial system. There is no provision in the Act empowering the Board to issue directions to the assessing authorities or the appellate authorities in the matter of deciding disputes between the persons who are called upon to pay duty and the department. It is true that the assessing authorities as well as the appellate authorities are judges in their own cause; yet when they are called upon to decide disputes arising under the Act, they must act independently and impartially. They cannot be said to act independently if their judgment is controlled by the directions given by others. Then, it is a misnomer to call their orders as their judgments; they would essentially be the judgments of the authority that gave the directions and which authority had given those judgments without hearing the aggrieved party. The only provision under which the Board can issue directions is Rule 233 of the Rules framed under the Act. That rule says that the Board and the Collectors may issue written instructions providing for any supplemental matters arising out of these Rules. Under this rule, the only instruction that the Board can issue is that relating to administrative matters; otherwise that rule will have to be considered as ultra vires Section 35 of the Act.
21. The learned Senior Counsel for the petitioner has also argued that possibility of abuse cannot be a ground to deny the grant of licence and contended that the impugned Government Order has been passed without affording the petitioner, an opportunity of personal hearing.
22. The learned Senior Counsel appearing for the petitioner has drawn the attention to the fact that Section 350 of the Act, gives the power of revocation or suspension of licence and Section 352 deals with the power to enter place of public resort to inspect licence or to prevent further use.
23. The learned Senior Counsel for the petitioner has argued that the above provisions have given enormous powers to the Municipal authorities to regulate the grant of licence and there is no need for the Government to come out with such an order contrary to the established rules and constitutional rights and contended that in such a situation, the impugned order passed by the Government is exfacie illegal and against the constitutional rights guaranteed under Article 19(1)(g) of the Constitution of India and there is a clear case discrimination motivated by some of the persons who have already had the licence and are conducting entertainment programmes and therefore, it amounts to discrimination and violation of Article 14 of the Constitution of India.
24. The learned Senior Counsel for the petitioner, in support of his arguments has placed reliance on a decision of the Constitution Bench of the Supreme Court reported in
8. The power to issue bye-laws indisputably includes the power to cancel or withdraw the bye-law, but the validity of the exercise of the power to issue and to cancel or withdraw the bye-laws must be adjudged in the light of its impact upon the fundamental rights of persons affected thereby. When the validity of a law placing restriction upon the exercise of fundamental rights in Article 19(1) is challenged, the onus of proving to the satisfaction of the Court that the restriction is reasonable lies upon the State. A law requiring that an act which is inherently dangerous, noxious or injurious to public interest, health or safety or is likely to prove a nuisance to the community, shall be done under a permit or licence of an executive authority, it is not per se unreasonable and no person may claim a licence or permit to do that act as of right. Where the law providing for grant of a licence or a permit confers a discretion upon an administrative authority regulated by rules or principles express or implied, and exercisable in consonance with rules of natural justice, it will be presumed to impose a reasonable restriction. Where however, power is entrusted to an administrative agency to grant or withhold a permit or licence in its uncontrolled discretion, the law ex facie infringes the fundamental right under Article 19(1). Imposition of restriction on the exercise of a fundamental right may be in the form of control or prohibition but when the exercise of a fundamental right is prohibited, the burden of proving that a total ban on the exercise of the right alone may ensure the maintenance of the general public interest lies heavily upon the State.
10. The Notification dated 12.01.1967 issued by the Governor of Madhya Pradesh in exercise of the powers conferred u/s 430(3) of the Act canceling confirmation of the bye-laws made by the Jabalpur Municipal Committee for inspection and regulation of slaughter houses insofar as the bye-laws relate to slaughter of bulls and bullocks, which has the effect of prohibiting the slaughter of bulls and bullocks within the municipality of Jabalpur imposed a direct restriction upon the fundamental right of the petitioner and is ultra vires as infringing Article 19(1)(g) of the Constitution.
The impugned notification though technically within the competence of the State Government, directly infringes the fundamental right of the petitioner guaranteed by Article 19(1)(g), and may be upheld only if it be established that it seeks to impose reasonable restrictions in the interests of the general public and a less drastic restriction will not ensure the interest of the general public. The Court must in considering the validity of the impugned law imposing a prohibition on the carrying on of a business or profession, attempt an evaluation of its direct and immediate impact upon the fundamental rights of the citizens affected thereby and the larger public interest sought to be ensured in the light of the object sought to be achieved, the necessity to restrict the citizen''s freedom, the inherent pernicious nature of the act prohibited or its capacity or tendency to be harmful to the general public, the possibility of achieving the object by imposing a less drastic restraint, and in the absence of exceptional situations such as the prevalence of a state of emergency-national or local- or the necessity to maintain essential supplies, or the necessity to stop the activities inherently dangerous, the existence of a machinery to satisfy the administrative authority that no case for imposing the restriction is made out or that a less drastic restriction may ensure the object intended to be achieved.
11. The sentiments of a section of the people may be hurt by permitting slaughter of bulls and bullocks in premises maintained by a local authority. But a prohibition imposed on the exercise of a fundamental right to carry on an occupation, trade or business will not be regarded as reasonable, if it is imposed not in the interest of the general public, but merely to respect the susceptibilities and sentiments of a section of the people whose way of life, belief or thought is not the same as that of the claimant.
25. It is the further contention of the learned Senior Counsel for the petitioner that, in any event, the power of issuing such an order in directing Municipal authorities not to issue any fresh licence for the above-mentioned purposes in any permanent building as defined under Rule 2(c) of Pondicherry Municipalities (Places of Public Resort and Entertainment) Rules 1950 (hereinafter referred to as "the Rules") is an arbitrary exercise of powers and against the constitutional guarantee and therefore, the impugned Government Order has to be quashed.
26. The second respondent in this writ petition has filed counter and has denied all the averments, claims and contentions contained in the affidavit filed in support of the writ petition except those which are specifically admitted.
27. The second respondent contends that the petitioner preferred an application on 08.12.2003 for the purpose of grant of licence to conduct Indian Classical Dance at Hotel Al Rasheed at No. 1, 100 Feet Road, Ellapillai Chavady, Pondicherry and the said application has not been considered. Hence, he preferred a writ petition No. 22935 of 2003 for a mandamus and this Court, by order dated 05.12.2003, directed the Pondicherry Municipality, to consider and pass orders.
28. Thereafter, a decision was taken on consideration of all the materials necessary and after inter-departmental consultation as per the provisions of the Act that such performance could not be permitted at all, the petitioner was communicated the rejection of his application. Thereafter, he challenged the same by filing W.P. No. 32662 of 2004 before this Court and by order dated 12.04.2004, this Court, taking into consideration the entire fact including the grant of licence to four hotels already, directed the third respondent herein to consider the claim of the petitioner for grant of licence afresh as per law and on merits and pending such consideration, grant a temporary licence for conducting Indian Classical Dance.
29. As against this Order, an appeal was filed in W.A. No. l456 of 2005 before this Court and by Order dated 10.08.2005, this Court set aside the whole order and directed consideration afresh of the claim of the petitioner for grant of licence within three months from the date of the order and also held that in view of the said order, the question of grant of any interim licence does not arise.
30. The second respondent has further contended that the matter was considered again in detail as per the requirements of law. u/s 349 of the Act read with Rules framed thereunder, the basic requirement is to have inter-departmental consultation with Additional District Magistrate and Superintendent of Police. Accordingly, when such consultation was made, the Additional District Magistrate has said that the claim can be considered subject to other conditions being satisfied. The Superintendent of Police, however, by his communication dated 31.08.2005, has objected to the conduct of such performance in the said building and in the said location as well. Based upon the said objection, the third respondent herein rejected the claim of the petitioner for the grant of licence. Therefore, when such statutory requirement of obtaining consent of two authorities is not fulfilled, the question of issuing licence in the context does not arise at all and only in the light of that situation, the Government Order dated 20.09.2005 was issued.
31. The second respondent has further contended that the impugned Government order was issued by the second respondent exercising powers under the Act. u/s 353 of the said Act, the Government may call for and examine the records of any proceedings taken under this Act, may call for any report in connection therewith, may make or cause to be made any further inquiry and may pass any order which it thinks fit. Accordingly, on the basis of adverse report received from the Superintendent of Police, in terms of Section 349(3)(a) of the Act, 1973 read with G.O. Ms. No. 383 dated 30.12.1976, the impugned Government Order was issued not to grant any fresh licences for performing Indian Classical, Western Classical Dances and Floor Shows. Accordingly, it has been decided not to extend the licence granted to Sun Guest House and Fillo Hotel beyond 30.11.2005 which have been challenged in other writ petitions.
32. The second respondent has also contended that other two hotels, viz., Blue Star Hotel and Hotel Mass are conducting the floor shows, in view of orders of the Civil Court restraining the respondents from interfering with the conduct of the classical dances in the said hotels and further action will be taken in due course after examining the legal implications involved in the case of these two hotels and thus, there is no discrimination at all as contended by the petitioner. It is the submission of the second respondent that licences granted to other two hotels, namely Sun Guest House Hotel and Fillo Hotel automatically expired on 30.11.2005 and applications for extension of licences of these hotels have already been rejected by the Pondicherry Municipality vide orders dated 30.11.2005 which is the subject matter of other writ petitions.
33. The second respondent has strongly contended that the Government, after exercising powers as per Rules of Business of the Government of Pondicherry, 1963, made by the President of India, in exercise of the powers conferred by Article 239 and the proviso to Article 309 of the Constitution, Section 46 of the Government of Union Territories Act, 1963 (20 of 1963) and all other powers enabling him in that behalf, issued the impugned Government Order dated 20.09.2005.
34. The Rules provide different definitions for "Administrator" and "Government". "Administrator" has been defined under Rule 2(1)(b) as "The Administrator means the Administrator of the Union Territory of Pondicherry" and the "Government" has been defined in Rule 2(1)(f) as "The Government means the Government of Pondicherry." On the same lines, two different definitions have been given in the Act u/s 2 for the words "Administrator" and "Government". Thus, it is clear that the contention of the petitioner that every Government Order has to be issued by Administrator is wrong, as both are separate entities.
35. The second respondent has pointed out Section 46(1) of the Union Territories Act, 1963 provides as follows:
The President shall make rules-
a. For the allocation of business to the Ministers and
b. For the more convenient transaction of business with the Ministers including the procedure to be adopted in the case of a difference of opinion between the Administrator and the Council of Ministers or a Minister.
36. Relying on the above provision, the second respondent contends that the impugned Government Order has been issued under Rule 17 of the Rules of Business of Government of Pondicherry, 1963 which provides for disposal of cases under the authority of Minister in charge, who may by means of standing orders give such directions as he thinks fit. The Rules of Business have been framed for smooth working of the Union Territory Administration by Government of India and to ensure that each and every matter need not be approved/placed before Administrator. In a Union Territory with Legislature, the business of the Government is regulated by the Rules of Business and in the case of Union Territory without Legislature, the business is regulated by regulations framed by Government of India. The Union Territory of Pondicherry, being Union Territory with Legislature, the orders have been issued strictly as per Rules of Business made by President, exercising powers by Article 239 and the proviso to the Article 309 of the Constitution of India and Section 46 of the Government of Union Territories Act, 1963 and thus, the impugned Government Order dated 20.09.2005 is very much legal and cannot be challenged by the petitioner.
37. The second respondent has submitted that the Government has not infringed the right of the petitioner to carry on their business or profession inasmuch as the respondents have not denied the petitioner the right to run the Hotel business and since performing Classical Dance in an hotel is not a profession/occupation/trade/business, there is no violation of the petitioner''s fundamental right guaranteed under Article 19(1)(g) of the Constitution and that the Government Order has restricted only a particular activity of entertainment in the petitioner''s hotel and the main activity of running the hotel business is not at all interfered with. Therefore, the Government Order is not illegal and cannot be quashed on the ground that it infringes the petitioner''s right under Article 19(1)(g) of the Constitution and hence, the writ petition may be dismissed with costs.
38. Mr. T. Murugesan, learned Government Pleader-cum-Public Prosecutor of Pondicherry appearing on behalf of the respondents herein has mainly contended that the Government has not infringed the right of the petitioner to carry on their business or profession inasmuch as the respondents have not denied the petitioner the right to run the hotel business and since performing classical dance in an hotel is not a profession/occupation/trade/business, there is no violation of the petitioner''s fundamental right guaranteed under Article 19(1)(g) of the Constitution of India.
39. It is further contended by the learned Senior Counsel for the respondents that the impugned Government Order dated 20.09.2005 has been issued Under Rule 17 of the Rules of Business of Government of Pondicherry, 1963, which provides for disposal of cases under the authority of Minister in-charge who may by means of standing orders give such directions as he thinks fit. The Rules of Business have been framed for smooth working of the Union Territory Administration by Government of India and to ensure that each and every matter need not be approved/placed before Administrator. In a Union Territory with Legislature, the business of the Government is regulated by the Rules of Business and in the case of Union Territory without Legislature, the business is regulated by regulations framed by Government of India. The Union Territory of Pondicherry, being Union Territory with Legislature, the orders have been issued strictly as per Rules of Business made by President exercising powers by Article 239 and the proviso to the Article 309 of the Constitution of India and Section 46 of the Government of Union Territories Act, 1963 and thus, the impugned Government Order dated 20.09.2005 is very much legal and cannot be challenged by the petitioner.
40. With regard to the specific contention of the petitioner that the officials of the Pondicherry Government wanted to create monopoly in favour of the other four hotels, the learned Senior Counsel for the respondents has submitted that as regards Sun Guest House Hotel and Fillo Hotel, a decision had already been taken not to renew their licences beyond 30.11.2005. As far as the other two hotels are concerned, the respondents are restrained by the Civil Court from interfering with the performance of classical dances in the said hotels. The matter is connected with non-payment of Entertainment Tax. Similar action is also under consideration of the respondents in respect of the two other hotels in view of the present circumstances and policy decisions taken by the Government without attracting any contempt of court and in view of this, the contention of the petitioner that there is selective discrimination by the respondents cannot be accepted.
41. The learned Senior Counsel for the respondents has contended that as per Section 355 of the Act, 1973, the Government may call for and examine the records of any proceedings taken under this Act, may call for any report in connection therewith, may make or cause to be made any further inquiry and may pass any order which it thinks fit. Accordingly, on the basis of adverse report received from the Superintendent of Police, in terms of Section 349(3)(a) of the Pondicherry Municipalities Act, 1973 read with G.O. Ms. No. 383 dated 30.12.1976, the impugned Government Order dated 20.09.2005 has been issued.
42. The learned Senior Counsel appearing for the respondents further brought to the notice of this Court the provisions of the Rules, wherein Rule 2(c) deals with grant of licences and Rule 26(1) reads as follows:
1. Licenses granted under the Act shall be either annual or temporary.
2. Temporary licences may be granted -
a. in the case of a building or enclosure used for a travelling circus or show, for a period not exceeding one month at a time and
b. in other cases, for a period not exceeding three months at a time.
3. Annual licences shall be granted only in respect of permanent buildings, provided that, for reasons to be recorded in writing, the Commissioner may grant a licence so as to be valid for a period less than one year, in which case, he shall collect only the proportionate licence fee. Temporary licences may also be granted in respect of such buildings, if they are required only for occasional use as place of public resort or entertainment.
4. Temporary licences only may be granted in respect of temporary buildings.
5. In respect of walled enclosures which have no roof or superstructure, either annual or temporary licences may be granted.
6. Any licence granted under these rules may be renewed from time to time at the discretion of the Commissioner:
a. in the case of an annual licence for a further period of one year at a time and
b. in the case of a temporary licence, for such further period as the Commissioner may think fit, but not exceeding at time, the period specified in Clause (a) or (b) of Sub-Rule(2), as the case may be.
7 a The period for which a temporary licence granted under clause (a) of Sub-Rule (2) shall be in force shall not, except with the special sanction of the Government, exceed three months in the aggregate within any continuous period of twelve months.
b The period for which a temporary licence granted under Clause (b) of Sub-Rule(2) shall be in force shall not, except with the special sanction of the Government, exceed six months in the aggregate within any continuous period of twelve months.
43. The learned counsel for the respondents has also referred to Section 104 of the Act which reads as follows:
104. Power to suspend or cancel resolution, etc.
1. The Government may, by order in writing -
(i) suspend or cancel any resolution passed , order issued, or licence or permission granted, or
(ii) prohibit the doing of any act which is about to be done or is being done in pursuance or under colour of this Act, if, in its opinion -
a. such resolution, order, licence, permission or act has not been legally passed, issued, granted or authorised.
b. such resolution, order, licence permission or act is in excess of the powers conferred by, or in contravention of this Act or any other Act of any rule, notification, regulation or bye-law made or issued under this Act or any other Act, or on abuse of such powers or is considered by the Government to be otherwise undesirable.
c. such resolution, order, licence, permission or act is in contravention of any direction issued by the Government, or
d. the execution of such resolution or order, the continuance in force of such licence or permission or the doing of such act is likely to cause danger to himan life, health or safety, or is likely to lead to a riot or any affray.
Provided that the Government shall before taking action under this Section on any of the grounds referred to in clauses (a), (b) and (c) give the authority or person concerned an opportunity for explanation.
44. The learned Senior Counsel for the respondents has contended that sufficient authority to frame any rule or policy decision has been given in the above provision of the Act, 1973, and in exercise of such power only, the impugned order has been issued by the second respondent.
45. The learned Senior Counsel for the respondents has also drawn the attention of this Court to a media report carrying a message of critical comments and analysis about the conduct of classical programme, contrary to public interest and therefore, the question of extending the licence does not arise.
46. The learned Senior Counsel for the respondents contends that since the impugned Government Order refusing grant of any fresh licence for the purpose of conducting Indian Classical Dance, Western Dance and Floor Shows in any permanent building is defined under Rule 2(c) of the Rules, the impugned order issued by the Government is very much legal and valid and in such view of the matter, the writ petition is not sustainable and liable to be dismissed.
47. Heard both sides.
48. Upon perusing the affidavit filed in support of the writ petition and the counter affidavit filed by the respondents and based on the submissions made by the learned Senior Counsel for either side, it is seen that the main challenge to the impugned Government Order is legal, valid and sustainable.
49. It is also seen that the petitioner has firstly questioned the power of the Government in issuing such an order which infringes the very fundamental rights conferred on the citizens under Article 19(1)(g) of the Constitution of India.
50. The second contention of the petitioner is that the power and control provided under the statute of the Act and the Rules in controlling and regulating the grant of licences for performing Indian Classical and Western Dances and Floor Shows in any permanent building as defined under Rule 2(c) of the Rules has been exercised arbitrarily and contrary to the established rights of the petitioner.
51. From the foregoing discussions and submissions made by the learned counsel for the petitioner, in nutshell, it is contended that the impugned Government Order, in effect, is in total infringement of the fundamental rights guaranteed under Article 19(1)(g) of the Constitution of India as it prohibits the Municipal authorities from issuing any fresh licence for the purpose of performing Indian Classical Dance, Western Dance and Floor Shows, though the same has been scrupulously followed over a very long period of time and nowhere it is whispered that there were problems in controlling and regulating grant of licence, suspension, cancellation and inspection thereon.
52. It is the further contention of the learned counsel for the petitioner that the Government Order itself cannot be an order made by the Governor of the State. In support of his contention, he has placed reliance in Paragraph 7 of the decision of the Supreme Court reported in
166. Conduct of business of the Government of a State:
1. All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.
2. Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.
3. The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business insofar as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.
Clause 1 requires that all executive action of the State Government shall have to be taken in the name of the Governor. Further, there is no particular formula of words required for compliance with Article 166(1). What the Court has to see is whether the substance of its requirement has been complied with. A Constitution Bench in R. Chitralekha v. State of Mysore held that the provisions of the article were only directory and not mandatory in character and if they were not complied with, it could still be established as a question of fact that the impugned order was issued in fact by the State Government or the Governor. Clause 1 does not prescribe how an executive action of the Government is to be performed; it only prescribes the mode under which such act is to be expressed. While Clause 1 (sic) in relation to the mode of expression, clause 2 lays down the ways in which the order is to be authenticated. Whether there is any Government Order in terms of Article 166, has to be adjudicated from the factual background of each case. Strong reliance was placed by learned counsel for the appellant on L.G. Chaudhari to contend that for all practicable purposes the decision of the Cabinet has to be construed as a Government Order, because three of the decisions taken by the Cabinet have been implemented. As noted above, learned counsel for the State took the stand that neither in the writ petition nor before the High Court, the Cabinet decision itself was produced. In fact, the Cabinet memorandum and the order of the Cabinet show that no decision was taken to pay any compensation. In this connection, reference is made to the Cabinet memorandum dated 18.03.1993 and Decision 57 of 1999. It was further submitted that even if it is conceded for the sake of argument that such decision was taken, the same cannot be enforced by a writ petition.
We need not delve into the disputed question as to whether there was any Cabinet decision, as it has not been established that there was any Government Order in terms of Article 166 of the Constitution. The Constitution requires that action must be taken by the authority concerned in the name of the Governor. It is not till this formality is observed that the action can be regarded as that of the State. Constitutionally speaking, the Council of Ministers are advisers and as the Head of the State, the Governor is to act with the aid or advice of the Council of Ministers. Therefore, till the advice is accepted by the Governor, views of the Council of Ministers do not get crystallised into action of the State. (See: State of Punjab v. Sodhi Sukhdev Singh and Bachhittar Singh v. State of Punjab). That being so, the first plea of the appellant is rejected.
53. In view of the above decision of the Supreme Court, the learned Senior Counsel for the petitioner goes to show that the impugned order has been issued by the Government of Pondicherry signed by Under Secretary to Government (LA). Therefore, the impugned order is not in conformity with Article 166 of the Constitution of India and it has not been taken on the advice of the council of Ministers and therefore, till the advice is accepted by the Governor, views of the Council of Ministers do not get crystallised into action of the State.
54. It is also the case of the petitioner that the order itself is not in conformity with the provisions of the Act when there are provisions under Sections 349, 350 and 352 further Section 104 gives adequate powers to control, regulate, suspend, cancel, revoke and inspect anything in regard to regulating power of the Government in respect of grant of licence. In such a situation, this impugned order is not at all in conformity with the Act and Rules provided therein and thus, the same is contradictory to the provisions of the Act and the guaranteed rights conferred by statute of the Government.
55. The learned Senior Counsel for the petitioner has also placed reliance on a case reported in All England Law Reports (1968) 1 which reads as follows:
Reliance was placed on a passage in the speech of Earl Cairns L.C., in Julius v. Lord Bishop of Oxford(6). Lord Cairns said that the cases decided (7):
... that where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the court will require it to be exercised.
56. Thus, it is made clear by the learned Senior Counsel for the petitioner that the power vested with a public officer must be exercised and in case, it is not properly exercised, the Court will require it to be exercised. In pointing out the infringement of the rights guaranteed under Article 19(1)(g) of the Constitution of India, the learned Senior Counsel has made it clear that the freedom to practise any profession or to carry on any occupation, trade or business, cannot be restricted unless this freedom has been abused or misused against the public interest, integrity or internal security. In the instant case, the impugned order has imposed a restriction on the Municipal authorities not to issue any fresh licence to the petitioner which, in effect, goes against the very basic freedom to practise any profession or to carry on any occupation, trade or business guaranteed by the Constitution of India.
57. According to the learned Senior Counsel for the petitioner, the performance of Indian Classical Dance is not prohibited by any provision of the Act and Rules and hence, the State, by way of an executive order can, only regulate performance but cannot altogether prohibit the same as the same is encouraged by the Government of India and other State Governments and since Indian Classical Dance is performed even in the Government functions and other social gatherings.
58. It is also the case of the petitioner that the other hotels under the control and authority of the respondents herein have already been enjoying the same freedom and the same is denied to the petitioner and thus, there is a clear violation of Article 19(1)(g) of the Constitution of India and also Article 14 of the Constitution of India insofar as the action of the authorities is selectively discriminative in nature. Thus, I am able to find a force in the arguments of the learned Senior Counsel for the petitioner and it has to be accepted insofar as prohibition of grant of licence is concerned.
59. One other important question involved in this writ petition is the power of the respondent to issue such an impugned Government Order. This is one aspect of the matter where in exercising such power, the Government has adequate, ample and sufficient power to regulate the grant of licence as per Rules of Business of the Government of Pondicherry, 1963, made by the President of India, in exercise of the powers conferred by Article 239 and the proviso to Article 309 of the Constitution, Section 46 of the Government of Union Territories Act, 1963 (20 of 1963) and all other powers enabling him in that behalf.
60. Mr. T. Murugesan, the learned Senior Counsel appearing for the respondents has brought to the notice of this Court the following for consideration:
The Rules provide different definitions for the "Administrator" and the "Government". "Administrator" has been defined under Rule 2(1)(b) as "The Administrator means the Administrator of the Union Territory of Pondicherry" and the "Government" has been defined in Rule 2(1)(f) as "The Government means the Government of Pondicherry." On the same lines, two different definitions have been given in Pondicherry Municipalities Act, 1973 u/s 2 for the words "Administrator" and "Government.
61. Thus, he has made it clear that the contention of the petitioner that every Government Order has to be issued by Administrator is wrong, as both are separate entities. In this regard, he has also pointed out Section 46(1) of the Union Territories Act, 1963 provides as follows:
The President shall make rules -
a. For the allocation of business to the Ministers and
b. For the more convenient transaction of business with the Ministers including the procedure to be adopted in the case of a difference of opinion between the Administrator and the Council of Ministers or a Minister.
62. In view of the above, this Court cannot go into the question of power of the Government in issuing such an order since, as in a Union Territory with Legislature, the business of the Government is regulated by the Rules of Business and in the case of Union Territory without Legislature, the business is regulated by regulations framed by Government of India.
63. Mr. T. Murugesan, the learned Senior Counsel for the respondents has contended that the Union Territory of Pondicherry, being Union Territory with Legislature, the orders have been issued strictly as per Rules of Business made by President exercising powers by Article 239 and the proviso to the Article 309 of the Constitution of India and Section 46 of the Government of Union Territories Act, 1963.
64. In my view, exercise of power by the Government to frame a policy cannot be in conflict with the fundamental rights guaranteed by the Constitution. In the present case, the power exercised by the Government in issue of the Government Order is absolute and this cannot be questioned by the Court. Therefore, the issue of the Government Order is upheld except the conflicting portion which contravenes the fundamental rights guaranteed u/s 19(1)(g) of the Constitution of India and hence, the conflicting portion alone is liable to be struck off.
65. Therefore, the power of the Government in issuing such an order to the extent of prohibiting issue any fresh licence can be interfered with. In other words, there is certainly a need warranting interference with the power of the Government insofar as prohibition to issue further licence which is imposed in the Government Order is unconstitutional since it is found that prohibition to issue fresh licence has taken away the right guaranteed under Article 19(1)(g) of the Constitution of India and also not in conformity with the regulations made by the Act and the Rules made therein.
66. In such view of the matter, the impugned Government Order is quashed to the extent of prohibiting the authorities from issuing any fresh licence insofar as the performance of Indian Classical Dance is concerned as it is an infringement of the fundamental right guaranteed by the Constitution of India and therefore, the particular portion prohibiting issue of any fresh licence has to be struck off.
67. While doing so, this Court is conscious of the larger public interest involved in relation to maintaining public order, decency and morality and the authorities are empowered to regulate the same by invoking the provisions of the Act to prevent any act which is inherently dangerous, noxious or injurious to public interest, health or safety or is likely to prove nuisance to the community. In such a situation, the respondents can very well invoke the provision u/s 352 of the Act or any law time being in force to prevent misuse or abuse of any licence granted or to be granted. Further, it is open to the respondents to amend the Act accordingly, if necessary.
68. In view of the above, the impugned order in G.O. Ms.27/LAS/2005 dated 20.09.2005 is quashed only to the extent indicated above and the issues raised by the petitioner are answered accordingly and the writ petition is allowed to that extent. Consequently, connected W.P.M.P.s are closed. No costs.
