The Vijayawada Electronic T.V. Video Games Parlour Owners'' Welfare Association Vs The Commissioner, Vijayawada Municipal Corporation Near Pandit Nehru Bus Station, Vijayawada, Krishna District and 2 Others

@JUDGMENTTAG-ORDER

Hon''ble Sri G. Bhavani Prasad, J.@mdashHeard Sri V. Padmanabha Rao, learned counsel for the petitioner, Smt. G. Jhansi, learned Standing Counsel for respondents 1 and 2 and Smt. Rachana S. Waddepalli, learned Assistant Government Pleader for Home for the third respondent. The petitioner association contended that 30 members of the association are running video games parlours for children at Vijayawada only for their entertainment and the third respondent issued an order u/s 144 of the Code of Criminal Procedure, 1973, in M.C.No. 25 of 2005, dated 18.11.2005, requiring the video games parlours to be run with licences from the Municipal Commissioner, Vijayawada Municipality, under the Andhra Pradesh Places of Public Resort and Entertainment Act, 1988, and that the children were found to be visiting these parlours during school timings by absconding from schools without the notice of the parents. The third respondent further stated about the liability of the owners/Managers of the video games parlours, who contravened either the conditions of the licence or provisions of the Act and further directed children below 18 years of age not to be allowed to play the games during the working hours between 10.00 a.m. and 6.00 p.m. and even on public holidays and working days after 6.00 p.m. Children below 18 years of age should be allowed only when they are accompanied by their parents. The order was without jurisdiction though it was in force for only two months and the first respondent, while renewing the licences to some of the owners of the video games parlours, imposed a condition that the entertainment should not be run between 10.30 p.m. and 7.00 a.m., but not covering the timings mentioned in the order, dated 18.11.2005, of the third respondent. The first respondent issuing such licences earlier u/s 521 of the Hyderabad Municipal Corporation Act, 1955, imposed a condition not to allow children below 18 years of age to play the games and Sections 521 and 622 of the Hyderabad Municipal Corporation Act, 1955, were not complied with when this restriction not to allow minor children below the age of 18 years not to play video games on school/college working days between 10.00 a.m. to 6.00 p.m. without their parents accompanying was imposed. When any statute or Rules do not provide for fixing the age or the timings, the same could not have been imposed by the respondents 1 and 3, more so, when in all other cities and towns in Andhra Pradesh, such interference of the police or the local bodies was not there. The second respondent issued notices to the members of the association on 30.12.2005 again referring to the conditions imposed vide order, dated 23.12.2005, of the first respondent and a copy of the said order, dated 23.12.2005, was not furnished. The members of the petitioner association, therefore, claimed that the illegal interference causes irreparable loss and injury to their business and, hence, they desired the issuance of the licences and imposition of the conditions to be declared illegal and consequently direct the respondents and their subordinates not to interfere with the running of the video games parlours.

2. The first respondent, in his counter affidavit, stated that the places meant for entertainment of children were being misused by some video games parlours by running during school working hours spoiling the career and future of the school children. The restrictions were imposed in the interest of the future of the children. The trade licences were being issued u/s 521 of the statute and the conditions were imposed while issuing the licence itself as empowered u/s 622 of the Hyderabad Municipal Corporation Act, 1955. The conditions were imposed only in the interests of the parents and the children and for no other reason and, hence, the first respondent desired the writ petition to fail.

3. The petitioner association, in its reply affidavit, contended that there was never any misuse of the licences issued and there was no valid or substantial material to accept the contentions. The activity of running video games parlours falls within the Andhra Pradesh Places of Public Resort and Entertainment Act, 1988. The subsequent licences issued on 28.12.2005 trace their issuance to Section 521 of the Hyderabad Municipal Corporation Act, 1955, and it was specifically stated in the said licence that children and students below the age of 18 years should not be allowed during the working hours of schools/colleges, i.e., between 10.00 a.m. to 6.00 p.m. without the parents of the children accompanying them. It is true that the notice subsequently issued on 30.12.2005 by the second respondent referred to an order of the Commissioner of the first respondent, dated 23.12.2005, but it appears from broad human probabilities that that might have been the reference to the licence issued on 28.12.2005, the mention of the date as 23 instead of 28 in all probability being due to a typographical error. Be that as it may, the notice, dated 30.12.2005, also specifically referred to the restriction imposed on the entry of minor children below the age of 18 years on school/college working days between 10.00 a.m. to 6.00 p.m. without their parents accompanying. The copy of the order, dated 23.12.2005, was not furnished by the petitioner, may be obviously due to the above circumstances, but that did not create any disadvantage to any member of the petitioner association, whose licences themselves specifically stated about this restriction. The material papers filed by the petitioner themselves show that preceding the grant of licences on 28.12.2005, the third respondent had promulgated an order u/s 144 of the Code of Civil Procedure, 1973, dated 18.11.2005, referring to about 64 video games parlours within the limits of Vijayawada City being run during school timings resulting in absenteeism among the school going children without notice of their parents. Adverse reaction from the general public and the parents was also referred to and the third respondent directed by the proceedings not to allow children below 18 years of age to play the games on working days between 10.00 a.m. to 6.00 p.m., while it was for other occasions, that it was directed that the children are allowed only if the children are accompanied by their parents. The order was marked to the first respondent with a request to ensure that the above conditions are also imposed while granting or renewing the licences of these Video games parlours. Therefore, it is clear that the third respondent in the performance of his official duty came across the school children going to video games parlours and not to the schools without the knowledge of their parents during working days and the same resulting in resentment among the parents and general public. This situation was not only attempted to be tackled by the Commissioner of Police in exercise of his own statutory powers, but he also requested it to be tackled by the first respondent and the learned Standing Counsel for the first respondent stated that in pursuance of Section 144 of the Code of Criminal Procedure, 1973, orders, a letter was addressed by the Commissioner of Police to the Municipal Commissioner on 22.12.2005, on which the Commissioner directed issuance of notices to video games parlours on 23.12.2005, which was the reference made in the notices, dated 30.12.2005.

4. If the first respondent had such information and request from the third respondent before him based on the information gathered by the third respondent in performance of his duties, the same cannot be considered to have not provided a reasonable basis for imposing the restriction. No reasonable person can say that asking the school going children to confine to schools during the school working days and the video games parlour owners not to allow such students to their parlours in those times as an unreasonable restriction. The respondents 1 and 3 can be safely considered to be discharging their social and statutory responsibility in imposing such a condition.

5. Technical grounds were sought to be raised against the imposition of the condition by referring to a decision of this Court in A.R. Bhoopathi, Proprietor, Venkateswara Iron Works VS. Special Officer, Municipal Corporation, Hyderabad 1979 Andhwr 2 146, wherein the learned Judge was dealing with the imposition of licence fees with reference to Section 521 of the Hyderabad Municipal Corporation Act, 1955, without complying with Section 521(2) of that Act for forming the requisite opinion. Similarly, the petitioner also relied on A.P. Bankers and Pawn Brokers Association Vs. Municipal Corporation of Hyderabad, wherein it was decided by the Apex Court that Section 521 of the Hyderabad Municipal Corporation Act, 1955, is for regularization of a trade or operation or to prevent things from being kept except on certain terms and conditions which may be fixed by the licence and if no terms and conditions in respect of a particular trade or operation can be imposed by the Commissioner, then insistence on getting a licence u/s 521 of the Hyderabad Municipal Corporation Act, 1955, will be a useless formality and not authorized by Section 521 of the Hyderabad Municipal Corporation Act, 1955. The Apex Court further analyzed the fact situation therein that no opinion could have been formed by the Commissioner about the pawn broking and money lending business being dangerous to life, health or property or to be likely to create a nuisance. The situations governed by those two decisions cannot be considered to apply to a situation like the present one and the definition of the word ''nuisance'' u/s 2 Clause 35 includes any act or omission which is likely to cause injury, danger, annoyance or vengeance even in respect of exercise of a public right and as to what amounts to a nuisance is for the subjective satisfaction of the Municipality and cannot be considered to be not with reference to a situation which is likely to create a nuisance from the nature of the business being carried on by the video games parlours and the opinion of the Commissioner cannot be said to be without any basis in view of the material placed before the Commissioner by the Commissioner of Police. Written notices on the effect of the nuisance were admittedly served on 30.12.2005 and the condition has been part of the original licence itself issued on 28.12.2005. So, the principles laid down by the cited precedents cannot be considered applicable herein. The learned counsel for the petitioner also referred to K. Vijay Kumar Vs. Govt. of Andhra Pradesh and Others, which was referring to the untenability of unreasonable restrictions and asking the school children to go to schools and not to video games parlours cannot be considered to be imposing an unreasonable restriction within the meaning of the said precedent.

6. Apart from Section 521, Section 622 of the Hyderabad Municipal Corporation Act, 1955, also enables any licence or written permission to be subject to the restrictions and conditions subject to which the same is granted under the signature of the Commissioner or of a Municipal Officer empowered u/s 119 of the Hyderabad Municipal Corporation Act, 1955, who shall grant the same. While Section 119 of the Hyderabad Municipal Corporation Act, 1955, does not arise for consideration, there are no restrictions or conditions specified u/s 622 of the Hyderabad Municipal Corporation Act, 1955, in imposing the restrictions or conditions subject to which a licence or written permission can be granted. If the condition not to allow school children to the video games parlours during working hours of schools was imposed in the original licence itself under the enabling provision u/s 622 of the Hyderabad Municipal Corporation Act, 1955, the question of complying with any procedure prescribed u/s 521 of the Hyderabad Municipal Corporation Act, 1955, may not be relevant and it is not in dispute that a licence is undoubtedly required from the Municipal Commissioner for the activity of the members of the petitioner association either under the Andhra Pradesh Places of Public Resort and Entertainment Act, 1988, or under the Hyderabad Municipal Corporation Act, 1955, and with reference to Section 622 of the Hyderabad Municipal Corporation Act, 1955, the condition imposed is not one that can be interfered with. While the petitioner association was not granted any interim relief right from the filing of the writ petition till now due to the petitioner not being able to satisfy the Court about the justification for any interim intervention, the fact that within the limits of the other Municipalities and Municipal Corporations, such a salutary restriction was stated to be not imposed on the video games parlours is no ground to interfere with the laudable step taken by the respondents 1 and 3 within the limits of Vijayawada Municipal Corporation. Legal niceties and interpretational issues notwithstanding, the condition imposed so as to prevent children and students below the age of 18 years from playing video games in video games parlours on school/college working days and working hours without their parents accompanying them is discharge of an inevitable social obligation not open to interference on any legal or technical ground and under the circumstances, the writ petition has to fail. Accordingly the Writ Petition is dismissed without costs.