ORDER
1. The petitioner runs a restaurant at Bombay which is a “place of entertainment” within the meaning of clause (10) of Section 2 of the Bombay Police Act, 1951 (“the Act”). As required by the said Act and the rules made thereunder, the petitioner obtained the requisite licence from the Commissioner of Police to keep a place of public
entertainment. As ancillary to his business of running the restaurant, the petitioner also plays in his restaurant, orchestra, vocal music and songs. According to the authorities under the Bombay Police Act, the restaurants which play music are also required to obtain another licence for that purpose, as according to them, playing music in a place of public entertainment amounts to maintaining a place of public amusement. The petitioner was aggrieved by this stand of the respondent — police authorities. According to the petitioner, it did not maintain any place of public amusement but was playing orchestra, vocal music etc. in course of its business of maintaining a place of public entertainment for which it had already obtained a licence in accordance with the law. The case of the petitioner is that licence obtained by them itself allows playing of such music subject only to the condition specified in Rule 21(1) of the Rules governing the grant of the said licence. Apprehending coercive action from the respondents for not obtaining a separate licence for a place of public amusement,the petitioner approached this Court by filing the present writ petition.
2. The contention of the petitioner is that it is not required to obtain any performance licence which is required for maintaining a place of public amusement as it is not maintaining any such place. According to the petitioner, playing of orchestra, vocal music or songs without any consideration is ancillary to its business of running a restaurant which cannot convert the said restaurant into a place of public amusement. In other words, the contention of the petitioner is that playing of music simpliciter of any type does not bring the place within the definition of place of public amusement and in that view of the matter, he cannot be asked to obtain another licence on that count.
3. The learned counsel for the respondents, on the other hand, urged that the activities of the petitioner amounts to “amusement”. According to him, though the petitioner carries on the business of running a restaurant, which is a place of public entertainment, when he plays music therein he does
so for the amusement of his customers and not for his own pleasure and in that view of the matter, his this activity falls within the meaning of ‘amusement’ and the place where such amusement is provided, will be a “place of public amusement” within the meaning of Section 2(9) of the Act. Great emphasis is laid in this connection on the words “music and singing” which find place in the definition of “place of public amusement” in Section 2(9) of the Act. Counsel also places reliance on the “Rules for Licensing and Controlling Places of Public Amusement (other than Cinemas) and Performance for Public Amusement, including Melas and Tamashas, 1960” in support of his contention that playing of music in any form is covered by the expression “performance” and any place where such performance takes place is required to obtain a performance licence.
4. I have carefully considered the rival submissions. I have perused the relevant provisions of the Police Act, 1951 & Rules dealing with the issue of licences for maintaining a place of Public Entertainment and 1960 Rules of Licensing and Controlling Places of Public Amusements and Performances for Public Amusement including Melas and Tamashas. Evidently, music played by the petitioner in his restaurant cannot fall in the latter part of the expression,that is “Performances for Public Amusement including Melas and Tamashas”. Only point that will remain to be scrutinised is whether it falls within the expression “Place of Public Amusement”. The expression “Place of public amusement” has been defined in Section 2(9) of the Act itself. It is in the following terms :
“Place of public amusement” means 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 either on payment of money or with the intention that money may be collected from those admitted and includes a race course, circus, theatre, music hall, billiard room, begatelle room, gymnasium, fencing school, swimming pool or dancing hall;
Section 2(10) of the Act has also defined the expression “place of public entertainment.” This definition reads:
“place of public entertainment” means a lodging-house, boarding and lodging house or residential hotel, and includes any eating house in which any kind of liquor or intoxicating drug is supplied (such as a tavern, a wine shop; a beer shop or a spirit, arrack, toddy, ganga, bhang or opium shop) to the public for consumption in or near such place;
From a careful reading of the definition of “place of public amusement” as given in Section 2(9) of the Act, it is clear that in order to bring a particular place within the ambit of this definition, it is not enough that it is a place where music, singing, dancing or any diversion or game etc. are provided. What is further necessary is that the admission of the public to such place should be “either on payment of money or with an intention that money may be collected from those admitted.” Thus, the second limb of the definition is crucial. It reslricts the expression only to such places where all or any of the activities specified therein viz. music, singing, dances etc. are carried on for public “on payment of money”. Where no payment of money is involved, providing amusements at a particular place itself will not convert such a place into a “place of public amusement”, even if public is admitted to the said place. On many occasions, such activities are arranged at a particular place to which public are freely admitted without any payment of money whatsoever. Such a place will not fall within the definition of “place of public amusement as given in Section 2(9) of the Act. However, there may be cases where the same place is used as a place of public entertainment as well as place of public amusement. In such cases, the authorities under the Act shall be fully justified in insisting upon the owner or occupier of the place of entertainment concerned to obtain a separate licence for maintaining a place of public amusement. Having obtained the licence for one activity, he cannot carry on the other without a proper licence. But a restaurant, which is admittedly a place of public entertainment and which has taken out a licence as required by the Act
and the Rules, cannot be required to obtain a licence for maintaining a “place of public amusement” simply because music is played therein. In fact, the “Rules for Keeping Places for Public Entertainment in Greater Bombay” (framed by the Commissioner of Police, Bombay under Section 33(1)(w) and (y) of the Bombay Police Act as modified by Notification dated 16-12-66), under which the petitioner has been granted the licence, itself contemplate playing of music in places of public entertainment. It is evident from Rule 21 of the said rules which puts some restrictions on the playing of music in such places of public entertainment. Rule 21 runs:
21(1) No person keeping a place of public entertainment shall play or allow any music to be played in such place except in accordance with the following provisions :–
(a) Music shall not be played or allowed to be played in a place of public entertainment at such a tone as to attract an assemblage of persons. Music shall be stopped immediately if a crowd has gathered in front of a place of public entertainment for the purpose of listening to such music.
(b) The source of music or the musical instrument shall he so situated as to be at least thirty feet away from any road, street or other public place.
(c) Notwithstanding any thing contained in clauses (a) and (b) no music shall be played in a place of public entertainment if such place is within a distance of 100 yards.
(i) From a place of public worship, during hours of worship usually observed in such place of worship.
(ii) From any Court house or public office, during the hours of business observed by such Court or office.
(iii) From any college or school, during the hours of studies of such college or school.
(iv) From any hospital and nursing home, during any time.
(2) Without prejudice to the provisions of sub-rule (1) the commissioner of police, may, by general or special order made in this
behalf, direct that no music shall be played or allowed to be played by a person keeping place of public entertainment between such hours as he may prescribe.
Explanation:–
For the purposes of this Rule, “Music” shall include the playing of gramaphones, phonographs, radios, radio gramophones, bands tom-tom, drums, cymbals and any instrumental music.
The restrictions contained in Rule 21(1) on the person keeping a place of public entertainment to play or allow any music to be played in such place clearly postulate the existence of the right of such person to play music in such place. Evidently, music can be played or allowed to be played in a place of public entertainment subject only to those restrictions. Question of obtaining further permission or any other licence for that purpose, therefore, cannot arise.
5. The learned counsel for the respondents also placed reliance on Rule 16(a) of the above rules which provides that no person who holds a licence to keep a place of public entertainment shall make any change in the use of his premises for the purpose of an entertainment which he is not authorised to provide, without obtaining previous permission of Commissioner of Police. As I have already observed above, in the instant case, there is no change of user of the place. The user remains the same, that is, as a place of public entertainment and playing of music is only ancillary, which under the rules itself can be played subject to the restrictions contained in Rule 21 thereof. Rule 16(a), therefore, has no application to the facts of the present case and reliance thereon by the respondents is totally misplaced.
6. Situated thus, the learned counsel for the respondents submitted that playing of music by the petitioner in its restaurant amounts to “musical performance” for which a licence is required under Rule 116 of the “Rules for Licensing and Controlling Places of Public Amusement (other than Cinemas) and Performances for Public Amusement, including Melas and Tamashas, 1960” (“1960
Rules”), These Rules were framed by the Commissioner of Police under clauses (w), (wa), (s) and (y) of the sub-section (1) of Section 33 of the Bombay Police Act. It was pointed out that these rules are not confined to licensing of “places of public amusement” but are also applicable to licensing of places where performance of dramas, songs, dances etc. is given with or without admission fee. The learned counsel also stated that the power to frame rules for licensing of such places is derived from clause (wa) of Section 33(1) of the Act. I have given careful consideration to this submission. Two clauses of Section 33(1) are material for the present controversy. These are clauses (w) and (wa). Clause (w) refers to the power to frame rules for Licensing or Controlling places of public amusement or entertainment. Clause (wa) confers the power to frame rules for Licensing or Controlling in certain circumstances “musical, dancing, minmetic or the theatrical or other performances for public amusement including melas and tamashas”. This clause runs:
(wa) (i) licensing or controlling (in the interest of public order, decency or morality or in the interest of the general public), with such exceptions as may be specified, the musical, dancing, minmetic or the theatrical or other performances for public amusement, including melas and tamashas.
(ii) regulating in the interest of public order, decency or morality or in the interest of the general public, the employment of artists and the conduct of the artists and the audience at such performances;
(iii) prior scrutiny of such performances (and of the scripts in respect thereof, if any, and granting of suitability certificate therefor subject to conditions if any) (by a Board appointed by the State Government for the purpose, either for the whole State or for the area concerned), (the members of the Board being persons who in the opinion of the State Government possess knowledge of, or experience in, literature, the theatre and other matters relevant to such scrutiny) or by an Advisory Committee appointed by the Commissioner, or the District Magistrate in this
behalf, (provisions for appeal against the order or decision of the Board to the prescribed authority, its appointment or constitution, its procedure and other matter ancillary thereto, and the fees (whether in the form of Court-fee stamp or otherwise) to be charged for the scrutiny of such performances or scripts for applications for obtaining such certificates and for issuing duplicates thereof and in respect of such appeals;)
(iv) regulating the hours during which and the places at which such performances may be given;
The expression “musical, dancing, minmetic or the theatrical or other performances for public amusement”….. have not been
defined in the Act. However, in the 1960 Rules, in clause (j) of Rule 2, the expression “Public Amusement Performance” has been defined in the following terms:
“(j) “Public Amusement Performance” means a performance of dramas, songs, dances, minmetics and similar other performances given in a place of public amusement or in any other place, whether with or without admission fee, and to which admission is not restricted, exclusively to the members of any particular institutions;”
Chapter IX of the Rules (containing Rules 116 to 125) deals with performance licences. Rule 116, on which reliance is placed by the respondents, reads as under:
“Performance Licence: No person shall hold a musical dancing, dramatic, minmetic, theatrical or other performances for public amusement, including Melas and Tamashas, or any public exhibition of diversion or game, by whatever name called, unless and until he has obtained a Performance Licence from the Licensing Authority to hold such performance.”
The contention of the respondents is that even if playing of music in the restaurant does not bring the place within the ambit of the expression “place of public amusement” it certainly attracts Rule 116 of the 1960 Rules which makes it obligatory on the part of the person concerned to obtain a “Performance Licence” under that rule.
7. I have considered this submission, but on a careful reading of the above provisions, I find it difficult to accept the same, for reasons more than one. First, clause (wa) of Section 33(1) which confers powers on the Commissioner of Police to frame rules, is confined to licensing or controlling of “musical, dancing, minmetic or the theatrical or other performances for public amusement including melas and tamashas”. It does not extend ipso facto to all forms of music. Similarly, the expression “Public Amusement Performance” as defined in clause (j) of Rule 2 of 1960 Rules means “a performance of dramas, songs, dances, minmetic and similar other performances” given in place of public amusement or in any other place. Rule 116 also prohibits holding of “a musical, dancing, dramatic minmetic, theatrical or other performances for public amusement”. Thus the emphasis is on “performance for public amusement”. Evidently, the object of using these expressions is to impose the requirement of obtaining licence (which itself has been named “Performance Licence”) to performances of these arts for public amusements.
8. Though the word “performance” has not been defined in the Act or the Rules, according to dictionaries, it means “musical, dramatic or other entertainment”. Playing of music in any and every case will not amount to musical performance. “Musical performance” conveys the idea pf performance by musician which is attended by the public for deriving the pleasure of the performance. In other words, “playing pf music or singing of songs etc.” will fall within the ambit of “performance”, only when it is held for public amusement. It will be so, if that musical programme is the principal attraction which has brought to the public to that place, not otherwise. It is well known that ordinarily people go to restaurants for eating food etc. and not for amusement by musical performances. Music played in such restaurants cannot, therefore, be “musical performance” and such restaurant is not required to obtain “Performance Licence” under Rule 116 of the 1960 Rules. But, there may be cases, where a restaurant may also hold “musical performances”. Take for instance a restaurant organising musical programmes of some artists in the restaurant which is attended by public. Such programmes may be termed as “musical performance” and “Performance Licence” may be required because, in that case, the attendance of the public to that place is for amusement — eating is incidental. If the activity of playing of music in a restaurant falls in such category to attract Rule 116, the authority concerned will have to say so and give an opportunity of hearing to the person concerned, if he so likes, to place its facts before the authorities to satisfy them that his activity does not amount to “performance”. Evidently, in the instant case, there is no such allegation against the petitioner.
9. Learned counsel for the Respondents relied on a decision of this Court dated 3-7-1992 in Writ Petn: No. 2752 of 1987 Pradeep Pyarelal Duggal v. State of Maharashtra where it was held that the petitioner who was running a restaurant was not entitled to claim a right to conduct “musical performance” under the licence to keep a place of public entertainment. He is required to obtain a “Performance Licence” under Rule 116 of the “1960 Rules”. This decision, in my opinion, has no application to the facts of the present case because as stated above, the petitioner is not “conducting any musical performance” in his restaurant.
10. I am, therefore, of the clear opinion that under the facts and circumstances of the case, the petitioner does not fall either in the definition of Section 2(9) of the Act or the definition of “Public Amusement Performance” as defined in clause (j) of Rule 2 of the “Rules for Licensing and Controlling Places of Public Amusement (other than Cinemas) and Performances for Public Amusement, including Melas and Tamashas, 1960 (“1960 Rules”) and, as such, it is not required to obtain any separate performance licence under Rule 116 of the 1960 Rules.
11. In the result, the writ petition is allowed. Under the facts and the circumstances of the case, I make no order as to costs.
Certified copy expedited.
12. Petition allowed.