B.V. Nagarathna, J.@mdashThese writ appeals are filed against the order dated 3.7.2009 passed by the learned single judge. Since these Writ Appeals raise common questions of law they have been heard together and are disposed of by this order.
2. Writ Appeal Nos. 2489-2498/09 have been filed on behalf of Hotel Empire while W.A. Nos. 2724-2733/09 have been filed by Osea International Hotel and W.A. No. 2775-2784/09 have been filed by Bruhat Bengaluru Hotels Association. In all these writ appeals the order of the learned single judge dated 3.7.2009 have been called in question. The common issue raised in these writ appeals is with regard to the validity of the order dated 19.5.2009 issued by the second respondent who is the Commissioner of Police, Bangalore, which have been produced as an Annexure-A to the writ petitions.
3. According to the appellants, in Writ Appeal Nos. 2489-2498/2009, they are engaged in hotel business and have a chain of hotels and restaurants called "Hotel Empire" in various places across the city of Bangalore and that, a licence has been obtained to carry on the trade of lodging and restaurants. That in terms of Section 11 of the Karnataka Shops and Commercial Establishments Act 1961 read with Rule 7 of the said Rules of 1963, a notification dated 28.7.1987 was issued by the State Government regulating the opening time and closing time of establishments but the said notification had excluded hotels and such other establishments from the restrictions imposed under the said notification. However, the second respondent namely the Police Commissioner in exercise of powers Section 31(1)(w) of the Karnataka Police Act, 1963 has issued an order by which certain restrictions have been imposed with regard to the opening and closing hours of hotels which are arbitrary, unreasonable and a colourable exercise of power and hence, the same ought to be quashed.
4. It is also the case of the appellants that earlier a notification was issued by the second respondent herein under the provisions of the Karnataka Shops and Commercial Establishments, 1961 which was challenged by way of a writ petition W.P. No. 6344/08. However during the pendency of the said writ petition by another order dated 7.8.2008, the order impugned in the said writ petition was withdrawn and accordingly, the proceedings in the writ petition were concluded. However, in exercise of power u/s 31(1)(w) of the Karnataka Police Act, 1963 the second respondent has issued the impugned order which suffers from unreasonableness, arbitrariness and being in violation of the procedural requirement as provided under the said Act as well as the various provisions of Constitution of India the same requires to be set aside by this Court is the principle contention of the learned Counsel appearing for the appellants.
5. Insofar as Writ Appeal No. 2775-2784 of 2009 is concerned, the same is filed on behalf of the Bruhat Bengaluru Hotel Association, through its president, in which the similar contentions have been raised impugning the notification dated 19.5.2009 issued by the second respondent and legal contentions under the Karnataka Shops and Establishments Act have been raised as also with regard to the procedural requirement under the Karnataka Police Act 1963. Insofar as Writ Appeal No. 2733/09 is concerned the same is filed by the Proprietor of Osea International Hotel and similar prayers have been made in the said writ appeal by challenging the order of the learned single judge which upheld the order of the second respondent dated 19.5.2009 impugned in the writ petitions. As already stated since common questions arise in these writ appeals they have been heard together.
6. We have heard learned senior counsel Sri R.N. Narasimha Murthy, Sri B.V. Acharya and Sri D.N. Nanjunda Reddy for Sri Sandesh Chouta, the appellants and the learned Advocate General, for the respondent-state as well as on behalf of the second respondent.
7. Sri R.N. Narasimha Murthy, learned Senior Counsel for the appellants submitted that the order impugned is passed in without keeping in mind Bangalore is in today''s scenario inasmuch as Bangalore has metamorphosed into a metropolitan city, there is traffic all round the clock and public facilities and the amenities cannot be restricted to particular hours as they have to cater to the floating population also. He further submitted that the order does not mention the circumstances under which the second respondent, police commissioner has been constrained to issue the impugned order and further the records also do not speak anything to that effect. Also, the order says that it has had the previous sanction of the state government but from the records it is not apparent that such an express sanction had been obtained by the second respondent before issuing the impugned order. Drawing our attention to the various sub-sections of Section 31 of the Karnataka Police Act 1963, he has stated that in order to exercise powers u/s 31(1)(w) of the said Act it is necessary that the previous sanction of the State government u/s 31(2) of the Act is obtained and further u/s 31(6) the procedure with regard to previous publication which is a mandatory requirement has to be complied with. However, in terms of the proviso to Section 31(6) of the Act in the event of there being circumstances and also the satisfaction arrived at by the police commissioner order could be made without following the mandatory requirement of previous publication. However, to the Instant case, from the material on record, It Is not at all apparent as to what was the subjective satisfaction which the Police Commissioner had so that the proviso to Section 31(6) of the Act could be invoked thereby dispensing with the mandatory requirement of previous publication. He has also referred to certain decisions of the Supreme Court, namely,
8. Learned senior Counsel has also brought to our notice that an application has been filed in the writ appeal bringing on record the additional grounds with regard to previous publication and that the said application ought to be allowed and these contentions raised in the said application ought to be considered in these writ appeals.
9. Learned Senior Counsel, Sri B.V. Acharya, in his submission has stated that the power specified u/s 31 of the Karnataka Police Act does not extend to the power to fix opening and closing hours of hotel establishments. According to him the power to direct opening and closing of hotels exclusively vests with the State Government and when the State Government by a notification issued in the year 1987 under the Karnataka Shops and Commercial Establishments Act has granted exemptions to the hotels and restaurants with regard to the timings of the opening and closing of restaurants, the second respondent-Police Commissioner cannot nullify the said exemption granted under the aforesaid Act by invoking powers u/s 31(1)(w). He further submitted that the Karnataka Police Act 1963 is a general enactment, while the Karnataka Shop and Establishments Act is a special enactment and therefore, the latter would prevail over the former. He has further submitted that there is non application of mind in issuing the impugned notification dated 19.5.2009 inasmuch as irrelevant considerations have been taken into account and the reasons if at all given for the dispensation of prior publication are not at all relevant. Elaborating his submissions learned Senior Counsel drew our attention to Section 11 of the Karnataka Shops and Commercial Establishments Act 1961 and the earlier notice issued by the second respondent under the said Act to the management of Hotel Empire. Section 11 has to be read with Rule 7 of the Rules made under the said enactment whereby, a notification was issued way back on 28.7.1987 and under the said notification exemption was given to hotels and since Commissioner of Police does not have jurisdiction to issue a notification by invoking the Karnataka Shops & Commercial Establishment Act the earlier writ petition filed by the management of Hotel Empire was disposed of on the withdrawal of the said notification, by order dated 7.8.2008 and presently the impugned order is issued u/s 31(1)(w) of the Karnataka Police Act. He has also stated that Section 31(1)(w) uses the word licensing or controlling, but the said words do not encompass the timings with regard to hotels. He has relied upon the decision of Bombay High Court reported in 2005 (4) Bombay CR 63. On the factual aspects of the impugned notification learned senior counsel has stated that on 19.5.2009 itself the order was drafted and issued on the same day and no draft was prepared and as per Section 23 of the General Clauses Act r/w 31(2)(2) of the Police Act no mandatory procedural requirements have been complied with. Though the said order states that previous sanction of the Government has been taken in terms of Section 31(2)(2) but there is no material which supports the said statement in the impugned order.
10. Per contra, learned Advocate General, Sri Ashok Haranahalli, supporting the impugned order by stated that the Bangalore City is no more what it was a few years ago that there has been increase in liquor consumption and drug culture and on account of these factors there has been increase in crime and criminal activities, there are several incidents which have come to light in recent times and the law and order situation in Bangalore particularly in the context of the activities involving the youth is concerned was taken up at the highest level and there was a meeting held on 22.1.2008 under the Chairmanship of the Chief Secretary and at that meeting the second respondent was also a participant and therefore, the order which is now impugned is as a result of the decisions taken in the said meeting and therefore, the whole issue emanated at the level of the state government and the second respondent initiated action with the approval of the Home Minister.
11. With regard to the additional grounds taken in these appeals he has stated that these grounds have been taken up for the first time and there have been no pleading in the writ petitions and that the state has had no opportunity to counter the said contentions. He has also said that the note sheet dated 19.5.2009 discloses the reasons for the dispensation of previous publication. While referring to the Shops and Commercial Establishment Act 1961 he has said that the object to the said Act is to regulate employment and it is in that context that the opening and closing hours of shops and establishments have been restricted, but the said restriction in timings do not encompass certain establishments such as hotels.
12. Drawing our attention to the provisions of the Police Act he has stated that Section 2(14) pertains to public amusement and Section 2(15) pertains to public entertainment and in the context of Licensing and Controlling of places of Public Entertainment (Bangalore City) Order, 2005 where timings were fixed, the challenge to the same were not successful and that the writ appeals were dismissed by order dated 19.4.2007. He has also referred to another decision reported in
13. As far as questioning the validity of a delegated legislation is concerned he has relied upon a decision of the supreme court reported
14. As far as the aspect regarding previous publication is concerned, it is his submission that there was no need to take previous publication in view of the nature of the order. Distinguishing the decision by the Bombay High Court cited on behalf of the appellants, he has stated that in the said case what was challenged was an administrative order but in the instant case it is a statutory order and further there is no fixation of timings in the impugned order. He has also stated that as far as the argument regarding previous sanction is concerned, there is no pleading to that effect and under the circumstances the state government has not had an opportunity to reply to the said argument. He has further said that since the entire issue emanated from the state government it was not something which was done overnight and therefore, the appellants cannot have any grievance with regard to there being no previous sanction and it is in the context of the state government taking the initiative to control the situation that the second respondent Police Commissioner has issued the order and hence, it mentions that there was previous sanctions of the state government. He has also relied upon
15. In reply, learned senior Counsel, Sri R.N. Narasimha Murthy has stated that as far as previous publication is concerned as well as sanction of the government is concerned, these are vital issues which go to the very root of the matter and hence, the application for additional grounds was filed in the context of the previous publication of the impugned order. He has drawn our attention to the order dt. 7.9.2009 and 9.9.12009 passed by this Court and has stated that if the proviso to Section 31(6) has been invoked in the instant case then the requirements of the said proviso ought to be complied with, whereas it has not been complied with in the instant case. As far as the previous sanction of the government is concerned he says that the defence sought to be made out by the Advocate General that the entire issue emanated from the state government is no defence at all as that would not imply previous sanction as it is necessary that there should be an express sanction before the order is passed u/s 31(1)(w). In terms of Section 31(2)(ii) he has relied upon
16. On hearing both sides, the following points arise/or our consideration:
1. Whether the second respondent-Commissioner of Police, Bangalore City had the jurisdiction to issue the order dated 19.5.2009 u/s 31(1)(w) of the Karnataka Police Act, 1963?
2. If the answer to Point No. 1 is in the affirmative, whether the order dated 19.5.2009 is an unreasonable restriction and hence, violative of Article 19(1)(g) r/w Article 19(2) the Constitution of India?
3. Whether the impugned order dated 19.5.2009 is bad in law in view of there being no previous sanction of the Government as contemplated u/s 31(2) of the Karnataka Police Act 1963?
4. Whether the impugned order dated 19.5.2009 is Issued in compliance of Section 31(6) of the Karnataka Police Act 1963?
17. Before considering the rival contentions it is necessary to extract Annexure-A which is the order dated 19.5.2009 since that is the subject matter of the controversy in these appeals. It reads as follows:
1. Skankar Bidari, Commissioner of Police, Bangalore City, in exercise of powers vested with me u/s 31, Sub-section W, of the Karnataka Police Act, 1963, hereby order that all the places of public entertainment as defined in Section 2 Sub-section (15) of the Karnataka Police Act, 1963 shall remain open from 0600 to 2400 hours only (i.e., from 6 A.M. to 12 midnight) All the places of public entertainment shall remain closed from 0000 to 0600 hours every day (i.e., from midnight to 6 a.m.)
2. If any person owning or having on interest and managing a place of public entertainment is desirous of keeping any particular place of public entertainment open during the period from 0000 to 0600 hours or part thereof, he shall apply in writing to the undersigned duly stating the reasons why he would like to keep open any particular place of public entertainment and the period during which he would like to keep the place of public entertainment open le., during the period from 0000 to 0600 hours or part thereof, and obtain written permission from the undersigned. If any place public entertainment is kept open during the period from 0000 to 0600 hours, he shall be liable for prosecution and penalty u/s. 103 of the Karnataka Police Act, 1963.
3. This order will be applicable to all places of public entertainment situated in the limits of all Police Stations under the administrative control of the Commissionerate of Police, Bangalore City, regardless of the Revenue District or Taluk, in which they are situated.
4. This order will not apply to bar and restaurants, clubs and hotels serving Indian made foreign liquor (CL9. CL4 and CL7 etc) and who have obtained licence from the Excise Department. These places will continue to operate as per the provisions of the Karnataka Excise Act and Rules and licence conditions and shall close at 11.30 p.m.
5. This order will also be not be applicable to places of public entertainment situated within the premises of Bangalore International Airport, Railway Stations and KSRTC and BMTC Bus Stations situated within the limits of the Commissionerate of Police, Bangalore City.
6. This order will come into force from 20th day May, 2009 and will remain in force until further orders.
7. This order is issued with the previous sanction of the Government of Karnataka.
Re; point No 1 and 2;
18. In order to answer these two points which are interlinked, it is also necessary to extract Section 31(1)(w) Section 31(2) and Section 31(6) of Karnataka Police Act 1963, which read as follows:
Section 31(1)(w):- Power to make orders for regulation of traffic and for preservation of order in public places, etc. - (1) The Commissioner and the District Magistrate, in areas under their respective charges or any part thereof, may make, alter or rescind orders not inconsistent with this Act, for - (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;
31(2)(i) The power of making, altering or rescinding orders under Clauses [(a), (b), (c), (e), (f), (g), (h), (1), (J), (k), (l), (m), (n), (o), (p), (q), (r), (s), (t) and (u) and in so far as it relates to any of the aforesaid matters under Clause (z)] of Sub-section (1) shall be subject to the control of the Government.
(ii) The power of making, altering or rescinding orders under the remaining clauses of Sub-section (1) shall be subject to the previous sanction of the Government.
31(6) The power of making, altering or rescinding orders under this Section shall be subject to the condition of the orders being made, altered or rescinded after previous publication, in accordance with the provisions of Section 23 of the Karnataka General Clauses Act, 1899 and every orders made or alteration or rescission of an order made under this section shall be published in the Official Gazette and in the locality affected thereby by affixing copies thereof in conspicuous places near to the building, structure, work or place, as the case may be, to which the same specifically relaters or by proclaiming the same by the beating of drums or by advertising the same in such local newspapers in English or in the local language, as the authority making, altering or rescinding the order rule may deem fit, or by any two or more of these means or by any other means it may think suitable:
Provided that any such orders may be made, altered or rescinded without previous publication if the Commissioner or the District Magistrate, as the case may be, is satisfied that circumstances exist which render it necessary that such orders or alterations therein or rescission thereof should be brought into force at once.
Section 23 of the Karnataka General Clauses Act reads as follows:
23. provisions applicable to making of rules or bye-laws after previous publication. - Where, by any [central act] or regulation, a power to make rules or bye-laws is expressed to be given subject to the condition of the rules or bye-laws being made after previous publication, then, the following provisions shall apply, namely.-
(1) the authority having power to make the rules or bye-laws shall, before making them, publish a draft of the proposed rules or bye-laws for the information of persons likely to be affected thereby;
(2) the publication shall be made in such manner as that authority deems to be sufficient, or if the condition with respect to previous publication so requires, in such manner as the [Government concerned] prescribes;
(3) there shall be published with the draft a notice specifying a date on or after which the draft will be taken into consideration;
(4) the authority having power to make the rules or bye-laws, and, where the rules or bye-laws are to be made with the sanction, approval or concurrence of another authority, that authority also, shall consider any objection or suggestion which may be received by the authority having power to make the rules or bye-laws from any person with respect to the draft before the date so specified;
(5) the publication in the Official Gazette of a rule or bye-law purporting to have been made in exercise of a power to make rules or bye-laws after previous publication shall be conclusive proof that the rule or bye-law has been duly made.
Section 11 of the Karnataka Shops and Establishments Act, 1961 reads as follows:
Opening and closing hours: (1) No establishment shall on any day, be opened earlier than and closed later than such hours as may be fixed by a notification issued by the State Government:
Provided that any customer who was being served or was waiting to be served in any establishment at the hour fixed for Us closing may be served during the quarter of an hour immediately following such hour.
(2) Before issuing a notification under Sub-section (1), the State Government shall hold an enquiry in the prescribed manner.
(3) The State Government may, for the purpose of this section, fix different hours for different establishments or different classes of establishments or for different areas or for different times of the year.
19. While Rule 7 of the Rules made under the aforesaid Act reads as follows:
Daily and weekly hours: (1) No employee in any establishment shall be required or allowed to work for more than nine hours on any day any forty-eight hours in any week:
Provided that the total number of hours of work including overtime shall not exceed ten hours in any day except on days of stock taking and preparation of accounts:
Provided further that the total number of overtime hours worked by on employee does not exceed fifty in a period of three continuous months;
20. The notification issued on 28.7.1987 issued u/s 11 read with Rule 7 is extracted below for immediate reference:
1. Whereas, in Government Notification No. SWL 11 LSC 76, dated 31-12-1976, Government of Karnataka had directed mat with effect from 1st January, 1977, no Shops and Commercial Establishments in me State shall be opened on any day earlier man 6.00 A.M. or closed on any day later than 9-00 P.M.
2. Whereas, keeping in view me overall safety of persons and protection of property of me vulnerable sections of the population of the city of Bangalore and taking into consideration the grave power shortage, strain on the city transport services and to control environmental pollution of the Bangalore Metropolitan areas, as well as to effectively curtail and check sporadic criminal activities by the antisocial elements on the prowl during the night and to reduce pressure on traffic the Government of Karnataka held discussions on 3-7-1987 and 25-7-1987 with the various representatives of the Trade and Commercial Establishments of the State to consider the suggestion by the Federation of Karnataka Chambers of Commerce and Industry, Bangalore to close shops and Commercial Establishments in various urban centres by 7-30 p.m. or 8-00 p.m. as in vogue in other metropolitan cities. The decision thus taken was widely published in all the local newspapers of Bangalore City no 4-7-1987 and 5-7-1987.
3. Now, therefore, in partial modification of Government Notification No. SWL 11 LSC 76, dated 31-12-1976 and in exercise of powers conferred by Sub-section (d) of Section 11 of the Karnataka Shops and Commercial Establishments Act, 1961 (Karnataka Act 8 of 1962), the Government of Karnataka hereby direct that any shop or Commercial Establishment coming under the jurisdiction of Bangalore City Corporation, shall remain finally closed at 8-00 p.m. on all days with effect from 1-8-1987. The existing ''Opening Hour'' shall continue to be in force.
4. However, the said restriction shall not apply to Medical Shops, Clubs, Hotels supplying meals. Loading and Unloading Lorry Transport Organizations, Petrol Bunks and Cinema Theaters.
21. According to learned Senior Counsel, Sri B.V. Acharya, in view of notification dated 28.7.1987, there can be no control of timings of hotels and restaurants since they are exempted under the said notification. Hence, when the State Government has exempted hotels from the purview of the Shops and Establishments Act, 1961, the contention is that the second respondent could not have issued an order by invoking Section 31(1)(w) of the Karnataka Police Act, since the jurisdiction to exercise power with regard to hotels vests only with the State Government and in the guise of exercising control, the second respondent could not have issued the impugned notification when the State Government has already exempted hotels from the notification pertaining to restriction with regard to timings. In fact, it is stated that what was challenged in Writ Petition No. 6344/08, was the notification issued by the second respondent under the Shops and Commercial Establishments Act and after realising that the second respondent has no jurisdiction to exercise power under the said Act, it was withdrawn on 7.8.2008. Accordingly, the writ petition was disposed of and now the exercise of power u/s 31(1)(w) of the Karnataka Police Act in the same terms as it was exercised under the Karnataka Shops and Commercial Establishments Act. Even then, the second respondent has no power to issue the impugned notification in view of the complete exemption granted by the State Government under the Shops and Establishments Act Is the submission. In support of this, reliance has been placed on a decision of the Bombay High Court reported in the case of
22. In the aforesaid decision, a restaurant situated at Tardeo, Mumbai challenged the notification and an endorsement issued under the Bombay Police Act, 1981 in respect of the hours of work of the establishment. In the said decision the Bombay Shops and Establishments Act, 1948 was also considered, wherein u/s 19(1) of the said Act, no restaurant could be opened on any day earlier than 5.00 a.m. and closed later than 12.00 midnight, for service. The proviso thereto stipulated that an employee in a restaurant may be required to close work not earlier than 4.30 a.m. and shall not be required to work later than 12.30 a.m. Section 19(2) provided that subject to the provisions of Section 19(1), the State Government could fix later opening or earlier closing hours for different restaurants or eating houses or for different areas or for different periods of the year. Section 4 provided an exemption from the provisions of the Act under which the State Government was empowered by way of a notification to add, omit or alter any of the entries of the schedule, subject to such conditions, if any, that may be prescribed in the notification. The Second schedule to the Act contains, in pursuance of Section 4, a list of establishments and a statement of those provisions of the Act from which the establishments are exempted. In the said case, the petitioner-establishment was exempted from the opening and closing hours that were specified in Section 19, subject to the condition that the establishment shall not open prior to 12.00 noon or close after 2.00 a.m. The grievance of the petitioner in the said case was that the endorsement made on the eating house licence issued to the petitioner under the Bombay Police Act, 1951 stated that the establishment could remain open till 1.30 a.m. only. According to the petitioner therein, the Police Authorities had no jurisdiction to make the endorsement particularly having regard to the fact that the hours during which the establishment could remain open was regulated by the Bombay Shops and Establishments Act, 1948, when the schedule whereto expressly contemplated that the closing hours would be at 2.00 a.m.
23. In the said decision, the Mumbai High Court held that the Bombay Shops and Establishments Act is an Act to consolidate and amend the law relating to regulation and conditions of work, employment in shops, commercial establishments, residential hotels, restaurants, eating houses, theatres, other places of public amusement or entertainment and other establishments and u/s 4 of the Act, exemption from the provisions of the Act in respect of the establishments, employees and other persons mentioned in the schedule from those provisions were indicated. If the State Government desired to bring about any change in the Second Schedule, it had the power to do so by the simple expedient of a notification under the said Act published in the Official Gazette and held that it would be impermissible by means of an administrative circular to issue directions which would run contrary to the opening and closing hours as they exist in pursuance of the exemption granted in the Second Schedule with reference to the premises of an establishment listed therein and accordingly quashed the endorsement issued under the Bombay Police Act, 1951.
24. As far as Mumbai High Court''s decision is concerned, in the said case, by way of an endorsement the timings of the establishment was varied though there was a statutory exemption under the Bombay Shops & Establishments Act in respect of the petitioner - establishment. Secondly, the High Court also stated that in view of the statutory exemption granted in the second schedule of the said Act in case a variation in timings was necessitated, then there had to be an amendment to the said second schedule of the statute and not by way of an administrative circular being issued contrary to the statutory exemption. In the said decision, the question as to the scope of the Bombay Shops & Establishments Act, 1948 and the Bombay Police Act were not considered in detail as has been done in the instant case. In fact, in the instant case, the scope of the two Karnataka enactments have been considered and it is held that there is no conflict between the said enactments. For the aforesaid reasons, the decision of the Bombay High Court cannot be applied to the facts and circumstances of the present case, particularly, when the impugned order is neither a circular nor an endorsement but a statutory order issued u/s 31[1][w] of the Karnataka Police Act which is in the nature of a delegated legislation.
25. What is stated in the above decision is the fact that the provisions of Bombay Shops and Establishments Act, 1948 provide statutory exemption of the applicability of the Act as indicated in Schedule II to the said enactment. However, as far as Karnataka State is concerned, there is no exemption under the provisions of the Karnataka Act as such, but a Government notification issued u/s 11 read with Rule 7 of the Karnataka Act provides for an exemption from the restriction of timings imposed on other establishments under the notification dated 28.7.1987. Therefore, the exemption from the restriction of timings imposed with regard to the opening and closing hours of shops and establishments viz., 6 a.m. and 12 midnight is not applicable to hotels as stated in the said notification. However, that only implies that as far as hotels are concerned, timings indicated in the said notification i.e. opening hours 6.00 a.m. and closing hours 12.00 midnight would not be applicable to hotels. This does not however mean that there can be no other timings or control which can be made applicable to hotels or any other measure by way of control cannot be exercised under the Karnataka Police Act. Therefore the decision of the Mumbai High Court is not applicable to the facts of the present case.
26. At this stage, it is relevant to mention that the object and purpose of Karnataka Shops and Establishments Act is for the regulation of conditions of work and employment in shops and commercial establishments whereas, the object and purpose of the Karnataka Police Act is for the regulation of police force in the State of Karnataka for maintenance of public order for the prevention of gaming and for certain other purposes. Therefore, they operate in different areas and both the enactments have to be given full effect and any interpretation that as far as restaurants and hotels are concerned, no power could be exercised under the Karnataka Police Act 1963 cannot be the right interpretation.
27. It is submitted that the Karnataka Shops and Commercial Establishments Act, 1961 is a special enactment while the Karnataka Police Act 1963 is a general enactment and therefore, the latter has to yield to the former. The principle that is normally applicable in such cases is that a prior particular law or special law, is not readily held to be impliedly repealed by a later general enactment as according to a learned author on principles of statutory interpretation a particular special law deals only with the particular phase of the subject covered by the general law and therefore, reconciliation is normally possible between a prior particular Act and a later general Act and so the particular Act is construed as an exception or qualification of the general Act. The Supreme Court has also held that a law applicable to a locality or to a class of cases or individuals is a special law as distinguished from a general law, which applies to the whole community. A law which is essentially general in nature may contain special provisions in certain matters and in respect of these matters, it would be classified as special law. On the said principle the Supreme Court has held that the provisions of a Municipal Act which empowered a Municipal Authority to provide for bus stands, were not held to be repealed by a subsequent Motor Vehicles Act which empowered the government or its delegate to do the same. In the case of
28. Similarly Section 36(4) of the Industrial Disputes Act, 1947 which provides that a party cannot be represented by a legal practitioner before a Labour Court, Tribunal or National Tribunal except with the consent of the other parties and with the leave of the Labour Court, Tribunal or National Tribunal, is not affected by Section 30 of the Advocates Act, 1961, which provides that every advocate shall be entitled as of right to practice in all courts and before any Tribunal vide,
29. It is also a guiding principle of statutory interpretation that a statute must be a read as a whole and one provision of the Act should be construed with reference to the other provisions in the same Act so as td make a consistent enactment of the whole statute. Therefore, a construction that reduces one of the provisions to a ''dead letter'' is not harmonious construction as to harmonise is not to destroy. In the same veto, the question as to the relative nature of the provisions, general or special has to be determined with reference to the area and extent of their application either jointly or specially in particular situation as opined by the Hon''ble Supreme Court in the case of Collector of Central Excise Jaipur v. Raghuvar (India) Limited reported in AIR 2000 SC 2027 which is expressed in the maxim Generalia specialibus non derogant and Generalibus specialia derogant (general things do not derogate from special things; special things derogate from general things). Therefore, if a special provision is made of certain matter, it has to be excluded from the general provisions. These principles with regard to two provisions in an Act are also applied in resolving the conflict between two different statutes and In the construction of statutory rules and statutory orders, the said principle has been applied in resolving conflict between Articles 25(2)(b) and 26(b) of the Constitution, in the case of
30. As already stated the object of the Karnataka Shops and Commercial Establishments Act, 1961 is to provide for regulation of conditions of work and employment in shops and commercial establishments and deals only with regard to the conditions of work of employees in shops and establishments whereas the Karnataka Police Act is a general enactment with regard to maintenance of law and order and in view of there being an express exemption of hotels from the purview of the restriction of timings in the notification issued under the Karnataka Shops and Commercial Establishments Act and its Rules would mean that as already stated that hotels could be opened prior to 6 a.m. and even beyond mid-night, without there being any control. The only requirement that is made under the impugned order dated 19.5.2009 is that for the hotels to be kept opened beyond 12 mid night, a permission must be obtained from the second respondent as far as the city of Bangalore is concerned in respect of which the order dated 19.5.2009 applies with regard to certain hotels only. Therefore, in our view there is no contradiction or conflict between the exemption granted under the notification dated 28.7.1987 and the impugned order dated 19.5.2009.
31. In fact, Section 2(14) of the Karnataka Police Act defines "Place of public amusement" to mean 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, while Section 2(15) defines "Place of public entertainment" to mean 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. In the case of
32. Similarly, in the case of Karnataka Live Band Restaurants Association v. State of Karnataka and Ors. in W.A. No. 556/2007 disposed of on 19.4.2007 a Division Bench of this Court to which one of us (Gopala Gowda, J.) was a member, the Licensing and Controlling Places of Public Entertainment (Bangalore City) Order, 2005 regulating activities in conducting cabaret, discotheque and live band in a bar and restaurant was questioned. The Division Bench stated that the conditions imposed in the licence by the designated authority was regulatory in nature and passed the test of reasonableness as provided under Article 19(2) read with Article 19(6) of the Constitution of India, having regard to the object and intention of the Karnataka Police Act and the nature of entertainment that would be provided in a public place and the public admitted to such place and also keeping in view morality of the people, particularly youth of the country which could not be degenerated by allowing the members of the association to carry on with its public entertainment without any restriction. It was also stated that the dignity and honour of the artists and audience had to be upheld or otherwise there would be adverse impact on the society as a whole and create a dent in the cultural values of our society. Referring to the decision of the Supreme Court in the
33. Learned Advocate General referred to two decisions in order to explain the meaning of the expression "control" in the case of
34. On a combined reading of the restriction imposed with regard to shops and establishments by way of a notification dated 28.7.1987, extracted supra, under the provisions of shops and establishment Act and the exemption given to hotels under the said notification as well as a reading of para 2 of the impugned order dated 19.5.2009, would mean that an exemption is given from the restriction of timings indicated in the Shops and Establishments Act as far as hotels are concerned which would imply that hotels could extend their hours prior to 6 a.m. or beyond 12 midnight. But all that is required is for the said purpose is a written permission which has to be obtained from the Police Commissioner, if the hotel is to be kept open beyond 12.00 mid night. In fact, para 2 of the impugned Government Order dated 19.5.2009 in no way traverses on the State Government''s notification dated 28.7.1987 Issued under Karnataka Shops and Establishment Act and its Rules. The notification dated 28.7.1987 by granting exemption to hotels clearly implies that it can open its establishment prior to 6.00 a.m. and extend its hours beyond 12.00 midnight. However, in order to benefit from the exemption under the State Government notification dated 28.7.1987 all that is required is to obtain prior permission of the Police Commissioner. Therefore, the exemption given under the notification dated 28.7.1987, as far as hotels are concerned, is in no way curtailed by virtue of the impugned order passed on 9.5.2009. On the other hand, all that the said order does is to regulate the opening of restaurants beyond 12:00 midnight by obtaining a prior written permission from the second respondent. We do not think that by issuing the said order requiring prior written permission so as to keep the hotels open beyond 12:00 midnight, the exemption granted under the 1987 notification is in any way nullified. The intendment of the prior written permission mandated in the impugned order dated 19.5.2009 is only for the second respondent to have information and control on those establishments, which would be kept open beyond 12:00 midnight. The said requirement of prior written permission in no way curtails the right of hotels to be kept open beyond 12:00 midnight. Keeping in mind the objects of the Karnataka Police Act, we do not think the requirement of prior written permission to keep a hotel open beyond 12:00 midnight is either beyond the scope of the Police Commissioner vis-�-vis Section 31 of the said Act and is not an abuse of the power envisaged u/s 31(1)(w) or in violation of Article 19(1)(g) the Constitution of India, Hence points No. 1 and 2 are answered against the appellants. The requirement regarding obtaining previous permission in case a hotel desires to remain open beyond 12:00 midnight is a reasonable restriction within the meaning of Article 19(6) of the Constitution of India.
35. Under Article 19[1][g] of the Constitution of India, all citizens have the right to practise any profession or to carry on any occupation, trade or business. However, Article 19[6] empowers the State to make any law [including rule or order] in the interest of general public, by imposing reasonable restrictions on the exercise of such right. Licencing and control of timings of Hotels u/s 31[1][w] of the Karnataka Police Act, in the instant case can be considered as reasonable restrictions and in view of the afore noted decision with regard to live bands and video games, we are of the view that the impugned order dated 19.05.2009 does not suffer from violation of Article 19[1][g] or 19[6] of the Constitution of India. Hence points No. 1 and 2 are answered against the appellants.
Re; Point No. 3:
36. By a meeting held on 22.1.2008 under the Chairmanship of the Chief Secretary, Government of Karnataka with regard to extend the working hours of hotels and commercial establishments - the minutes of which is made available to us, - it was discussed that there was no consensus between the statutory authorities as far as regulatory aspects are concerned since each authority was looking into the matter from its own perspective. In the said meeting apart from the Chief Secretary, Prl. Secretary, Department of Home, Labour Department, Urban Development Department and Police Commissioner Bangalore City, Commissioner, Brihat Bengaluru Mahanagara Palike, Additional Commissioner of Police, Labour Commissioner, Excise Commissioner, Addl. Secretary, Law & Justice and Human Rights Department, Joint Secretary(Finance), Joint Commissioner (Health) BBMP, Joint Secretary, Urban Development Department interalia attended the meeting after exhaustive discussion the following decision was taken:
a) In the first instance, the BBMP to identify the localities and roads in and around Kalasipalya and Kempegowda Bus Station where extension of time limit to open beyond 11-30 PM could be given to certain eateries subject to complying the Labour Law. Accordingly, the BBMP shall prepare and furnish such list and obtain clearance from the Police Dept. and send proposals to Labour Dept. through Urban Development Dept. (Action: BBMP and Police Commissioner)
b) The Bar and Restaurants and eating places should not open after 11-30 PM. (Action: Police Commissioner)
c) The Labour Dept. should issue necessary notification for extending the time limit in consultation with Police and the BBMP. (Action: Labour Department)
d) To convene a separate meeting if necessary, with regard to the issues raised by the Home and Exercise Dept. (Action: Home and Exercise Dept.)
37. According to the learned Advocate General, the entire issue which culminated in the order dated 19.5.2009, emanated from the level of the State Government arid it is not as if that the State Government was not aware of the order dated 19.5.2009. Therefore, the said order states that it is issued with the previous sanction of the State Government and that there is no infirmity on this aspect of the matter.
38. As far as this issue is concerned what is relevant is that pursuant to a meeting dated 22.1.2008 in the context of the timings of the hotels to be kept open, wherein certain decisions were taken with regard to further action being taken by the Police Commissioner. Thereafter a notice dated 8.4.2008 was issued to the appellant in W.A. No. 2489-98/2009 under the Karnataka Shops and Establishments Act by the 2nd respondent herein. The said notice was challenged in the W.P. No. 6344/2008. However, during the pendency of the said writ petition on 5.8.2008 the said notice issued by the second respondent herein was withdrawn and the writ petition was accordingly disposed of. Subsequently, a meeting was held on 19.5.2009 under the Chairmanship of the Home Minister and a decision was taken in the said meeting that with regard to the timings of hotels there ought to be a regulation and hence Section 31 of the Karnataka Police Act came to be invoked. Thereafter the impugned order dated 19.5.2009 has been passed by the second respondent. These facts are apparent from the records, wherein letter dated 21.5.2009 written by the second respondent herein to the Additional Chief Secretary, Home Department, Bangalore stating that such a meeting was held under the Chairmanship of the Home Minister and a decision was taken to invoke Section 31 of the Act and thereafter the order dated 19.5.2009 impugned in this writ petition has been passed.
39. Despite the letter dated 21.5.2009 and in the context of the earlier meeting held on 22.1.2008 in respect of the very same subject matter, we are of the view that no previous sanction was obtained from the State Government and that there was violation of Section 31(2) of the Karnataka Police Act. In fact a reading of Section 31(2) of the said Act makes it clear that as far as invoking the power under Clauses (a), (b), (c), (e), (f), (g), (h), (i), (j), (k), (1), (m), (n), (o), (p), (q), (r), (s), (t), (u) and Clause (z) of Sub-section 1 is concerned, it shall be subject to the "control" of the government whereas when the power is exercised under other clauses of Section 31(1), including Clause (w), then it should be subject to the "previous sanction" of the government. The Act makes a distinction with regard to the various clauses of Section 31 wherein in respect of certain orders to be passed under certain clauses there has to be control of the government and in respect of other clauses of Section 31 only a previous sanction has to be obtained. In view of the contents of the letter dated 21.5.2009 as well as the fact that a meeting with regard to the very same purpose i.e., the timings of the hotels, a discussion was held in the highest level in January 2008, and a meeting was held on 19.5.2009 under the chairmanship of the Home Minister, we are still of the view that mention made in the impugned order dated 19.5.2009 does not constitute previous sanction of the State Government. Hence point No. 3 is answered in favour the appellants.
Re; Point No. 4
40. As far as point No. 4 is concerned, it relates to the matter of previous publication. u/s 31(6) of the Karnataka Police Act if any order is made or which has the effect of altering or rescinding previous orders, then it has to be given effect to after previous publication in accordance with the provisions of Section 23 of the Karnataka General Clauses Act 1899 and after the publication in the official gazette and by affixing copies thereof in a conspicuous places in the locality affected or by proclaiming the same by beating of drums or by advertisement of the same in local newspapers in English or in local language. However, proviso to Section 31(6) states that if the Commissioner or the District Magistrate is satisfied, that the circumstances exist which necessitates that it has to be brought into force at once, then the requirement of previous publication can be dispensed with.
41. Before answering this question it is relevant to note that the meeting was held on 19.5.2009 under the Chairmanship of Home Minister and thereafter on the very same day the said order has been published. As already stated this is apparent from the letter dated 21.5.2009 written by the second respondent to the Additional Chief Secretary, Home Department. Under the circumstances there is non-compliance of Sub-section 6 of Section 31 of the Act in as much as there has been no previous publication. In view of this fact this Court passed two orders on 07.09.2009 and 09.09.2009 in order to know as to whether the order was passed by invoking the proviso to Section 31(6) which are extracted as follows:
07.09.2009 W.A. No. 2489-2498/2009
Sri Basavaraj Kareddy, learned Government Advocate is directed to get instructions from the Government on the following points:
(i) Whether prior publication u/s 31(6) of Karnataka Police Act, 1963 is contemplated for the impugned notification?
(ii) If contemplated, whether the same has been duly complied with for the impugned notification?
(iii) If prior publication u/s 31(6) of Karnataka Police Act, 1963 is not complied with what is the stand of Government?
Post the matter on 09.09.2009.
09.09.2009 W.A. No. 2489-2498/2009
In furtherance of our interim order dated 07.09.2009, Sri Basavarqj Kareddy, learned Government Advocate submits that even though prior publication is contemplated u/s 31(6) of Karnataka Police Act, 1963 for the impugned notification, the Commissioner of Police has the power to dispense with the prior publication as per the proviso to Section 31(6) of the Act.
Consequently, the question arises whether the power to dispense with the prior notification, has been exercised by the Commissioner of Police in accordance with law, which would be traced only on production of relevant records. Hence the matter stands adjourned to 7th October, 2009 for production of relevant records and for hearing.
In the meanwhile, the respondents are also directed to file objections.
42. From the said orders which are extracted above, it is clear that the proviso to Sub-section 6 of Section 31(6) has been invoked in order to bring into force at once the statutory order dated 19.5.2009. If that is so, then as submitted by the learned Senior Counsel for the appellant what becomes relevant is as to whether there were circumstances which existed and on the basis of which the second respondent was satisfied, that it is necessary to bring the impugned order dated 19.5.2009 into force at once.
43. From the material on record what is apparent is subsequent to the meeting held in January 2008 there was no general order passed invoking Section 31 of the Karnataka Police Act, thereafter from the letter dated 21.5.2009 it is known that the meeting was held on 19.5.2009 under the Chairmanship of the Home Minister and subsequently the impugned order was issued on the very same day. However, no material as to any grave circumstances being present, on the basis of which the second respondent being satisfied that on account of such grave circumstances, the order has been brought into force at once by virtue of the proviso to Section 31(6) is not at all available either in the statement of objections filed in the writ petitions or from the records. Therefore, we are of the view that there has been no proper exercise of power u/s 31(6) of the Karnataka Police Act in view of there being no previous publication and in the absence of circumstances, proviso to Section 31(6) is not also applicable. The order dated 19.5.2009 therefore suffers from procedural ultra vires and point No. 4 is accordingly held in favour of the appellants.
44. As far as procedural ultra vires is concerned, it is well established that if a requirement regarding previous publication is held to be a mandatory requirement and the same has not been complied with, then in that case, the violation of the procedural norms would be ultra vires of the statute. In the instant case, Section 31[6] of the Act makes previous publication a mandatory requirement. However, proviso to the said section enables the authorities concerned to dispense with previous publication provided there are circumstances which would give rise to subjective satisfaction in the mind of the authority so as to take immediate steps under proviso to Section 31(6) of the Act. No doubt, in the instant case, the State has taken a stand that the proviso has been invoked and hence there has been a dispensation of previous publication in terms of Section 31[6] of the Act. However, since we have held that there is no material to hold that there was an imminent need to issue the impugned order, we are of the view that the case has to fall u/s 31(6) of the Act requiring previous publication and in the absence of the same, the order dated 19.05.2009 is in violation of Section 31[6] of the Act. Hence point No. 4 is answered in favour of the appellants.
45. In this context the relevant case laws cited at the bar is referred to as follows:
46. With regard to the citations referred to by the learned senior counsel Sri R.N. Narasimhamruthy is concerned, reliance has been placed on the decisions of the supreme court in the case of Barium Chemicals Ltd. and Anr. v. Co. Law Board reported in AIR 1967 SC and
47. In the said decision reference has been made to a decision of the Federal Court in the context of Section 2 of the C.P. and Berar Public Safety Act 1948 and to another decision of the Supreme Court in Athmaram Vydya''s case while dealing with Section 3 of Preventive Detention Act 1950, wherein it is observed that though the satisfaction necessary thereunder was that of the Central or the State Government and the question of satisfaction could not be challenged except on the ground of malafides, the grounds on which it was founded must have a rational connection with the objects which were to be attained. Similarly, another decision referred to in the said case is
48. In the case of Rothas Industries which is in the context of Section 235 to 237 of the Companies Act, the Supreme Court on the facts of the said case noted that it was clear that the Government had not bestowed sufficient attention to the material before it before passing the impugned order and while referring Section 237(b) of the Companies Act, the court held that the standard that is prescribed under the said section is not the standard required of an ordinary citizen, but that of an expert and the said power had to be exercised in a reasonable manner. While referring to the decision in Barium Chemicals'' case, it held that the existence of circumstances in question is open to judicial review though the opinion formed by the government is not amenable to be reviewed by the courts and concluded that in the said case the required circumstances did not exist.
49. In the case of
50. Reference is also made to the celebrated decision of the Supreme Court in
51. Then the question now to be considered is that in view of the fact that the order dated 19.5.2009 being declared as ultra vires of Section 31(2) and 31(6) of the Karnataka Police Act, whether the said order impugned in this writ petition and declared invalid can be given effect to or has to be set at naught. In this context it is relevant to note that as stated by the learned Senior Counsel for the appellants as well as the learned Advocate General, that Bangalore City Is no more what it was a few decades or few years ago. The fact that there has been an influx of varied industries, particularly information technology and biotechnology industries as well other allied industries into Bangalore, the economic prosperity and the divergent effects it has had on the city particularly, the adverse consequences, it has on social concerns and the society in general has to be kept in mind, more so in the context of the youth and the unacceptable activities that the youth are presently engaged in with regard to which we are very concerned.
52. In view of the fact that there is a specific object with which the order dated 19.5.2009 has been issued and is in the context of having information and regulation with regard to those establishments which are to be kept open beyond twelve mid night in respect of which only a written permission has to be obtained from the second respondent, we do not think that despite there being non-compliance with the mandatory requirement of Section 31(2) and 31(6), the contents of the order dated 19.5.2009 cannot be given effect to as we have held that said requirement of obtaining permission from the 2nd respondent is not an unreasonable restriction. On the other hand, It would advance the object and purpose of Section 31(1)(w) the Karnataka Police Act. 1963. We are therefore of the view that rather than setting aside the impugned order or keeping the said order dated 19.5.2009 in abeyance, pending re-issuance of a fresh order by the second respondent after complying with the provisions of Section 31(2) and 31(6), and then enforcing the same in accordance with the said sub-section, till then, the requirement stated in the impugned order that a permission has to be obtained in order to keep open hotels beyond twelve mid-night shall be given effect to, since that portion of the order is not in violation of the Constitution of India. We state this because the vires of the notification is struck down only from the point of view of the procedural irregularity as otherwise, the constitutional validity is upheld by us. Hence we are of the view that only because of the procedural irregularity, in that the mandatory requirement of previous publication has not been complied with by the second respondent by itself, would not mean that the effect should not be given to the requirement mentioned in the said order, keeping in mind the object with which the order has been issued.
53. The learned single Judge has also held that in order to have uniformity and taking into consideration the untoward incident which may occur in the late night, the second respondent has imposed a restriction with regard to closing hours of places of public entertainment like hotels seeking permission to keep them open after 12 mid night and that the exercise of power is well within the provisions of Karnataka Police Act and the same is established from the preamble of the notification issued for the said purpose. The learned single Judge has also noted that the second respondent is the jurisdictional competent authority to maintain peace and tranquility in a Cosmopolitan city like Bangalore where different categories of people come and go, apart from there being a growing migration of rural masses. The prior permission to keep the hotels beyond twelve mid night to be obtained from the second respondent Is in the interest of public in general and that the said requirement is a measure of control and regulation keeping in view the realities which is uniformly applicable to all places of public entertainment which Includes hotels run by the appellants. We are In agreement with the aforesaid reasons given by the learned single Judge.
54. Therefore although we have concluded that on account of there being no previous sanction and publication of the order dated 19.05.2009, implies that it is ultra vires Section 31(2) and 31[6] of the Karnataka Police Act, nevertheless, exercising our discretion under Article 226 of the Constitution of India, we do not wish to set aside or keep the said notification in abeyance or come in the way of its enforcement by taking into consideration the laudable object with which it has been issued. Therefore, pending compliance with Section 31(2) and 31[6] of the Act with regard to issuance of the fresh order after previous sanction and publication, the order impugned shall be given effect to. In this context, we place reliance on the decision of the Supreme Court in the case of
55. Hence for the aforesaid reasons we direct the second respondent to re-issue a fresh order in terms of Section 31(2) and 31(6) of the Karnataka Police Act and till then, during the interregnum period the requirement of permission to be obtained by hotels to keep open beyond twelve mid-night shall be complied with by the appellants and all other similarly placed hotels and the order dated 19.5.2009 shall be given effect to.
56. Hence for the aforesaid reasons, the writ appeals are disposed of in the above terms. Parties to bear their own costs.
