ALANZO TRADEMART PVT. LTD. THR. ITS DIRECTOR SADASHIV D. PANDEYversusTHE DEPUTY COMMISSIONER OF POLICE, HEADQUARTERS-I, LICENSING AUTH (HOTEL BRANCH) AND ANR

           Digitally signed
           by ARUN
ARUN       RAMCHANDRA
RAMCHANDRA SANKPAL
                                                                  -WP-8118-2026-J.DOC
SANKPAL    Date:
           2026.09.17
           15:09:25 +0530




                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CIVIL APPELLATE JURISDICTION
                               WRIT PETITION NO. 8118 OF 2026


  Alanzo Trademart Pvt Ltd,
  A company incorporated under
  the provisions of the Companies Act, 2013,
  having its Registered Office at
  Navish House, Building No. 87, Plot No. 99,
  S.V. Road, Opp. Amore Edge,
  Khar West, Greater Mumbai – 400 052,
  through its Director
  Sadashiv Durgaprasad Pandey,
  aged about 51 years,
  Occupation – Director of the Petitioner Company.                   ...Petitioner

                Versus

  1. The Deputy Commissioner of Police,
  Headquarters – I, Licensing Authority (Hotel
  Branch), Office of Commissioner of Police,
  in front of Crawford Market,
  Brihan Mumbai – 400 001.

  2. The Senior Police Inspector,
  Khar Police Station, Khar (W),                                 …Respondents
  Mumbai – 400 052.


  Mr. Bernardo Reis, with Pratik Dixit, i/b Parampara Mistry, for the
        Petitioner.
  Smt. V. R. Raje, AGP, for Respondent Nos. 1 and 2-State.


                                        CORAM :      N. J. JAMADAR, J.
                                  RESERVED ON :      24th AUGUST 2026
                              PRONOUNCED ON :        16th SEPTEMBER 2026



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JUDGMENT :

1.      Rule. Rule made returnable forthwith, and, with the consent of

the learned Counsel for the parties, heard finally.

2.     By this Petition under Article 227 of the Constitution of India, the

Petitioner takes exception to an order dated 2 nd June 2026 passed by the

Divisional Commissioner, Konkan Division in Entertainment Licence

Appeal No. 81 of 2025, whereby the said Appeal preferred by the

Petitioner against an order dated 10 th October 2025 passed by the

Deputy Commissioner of Police, H.Q-1, Mumbai, (R1), rejecting the

Application for an entertainment licence to operate an orchestra at the

Petitioner's premises, came to be dismissed.

3.    The Petitioner is a private limited company incorporated under

the provisions of the Companies Act, 2013. The Petitioner is engaged in

the hospitality business. The Petitioner runs Magmus Bar and

Restaurant at Navish House, S.V. Road, Khar (West) Mumbai (“the

subject premises”). The Petitioner has all the valid licences to run the

Bar and Restaurant (the establishment) at the subject premises.

4.    On 16th May 2025, the Petitioner submitted an Application to

Respondent No.2 seeking premises licence and performance licence to

operate a live music orchestra under the provisions of Maharashtra

Police Act, 1951 (“the Police Act, 1951”) and the Rules for Licensing

And Controlling Places of Public Amusements (Other Than Cinemas)


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And   Performances     For   Public   Amusement,     Including     Cabaret

Performances, Discotheque, Games, Pool Game Parlours, Amusement

Parlours Providing Computer Games, Virtual Reality Games, Cyber

Cafes, Games With Net Connectivity Bowling Alleys, Card Rooms, Social

Clubs, Sports Clubs, Melas And Tamashas Rules, 1960 (“the Public

Amusement Rules, 1960”).

5.    The Senior Police Inspector, Khar Police Station (R2) conducted a

detailed site inspection and submitted a reasoned report to Respondent

No.1 recording that there was no impediment for granting premises and

performance licences to the Petitioner as the requisite conditions as

prescribed under the Rules were met, and that Respondent No.2 had no

objection to the grant of premises and performance licence for running

the orchestra in the establishment. The Assistant Commissioner of

Police, Bandra, Mumbai, had also issued a No Objection Certificate for

the grant of premises and performance licence to the Petitioner.

6.    Yet, the Petitioner claims, by the order dated 10 th October 2025,

Respondent No.1 rejected the Application on the purported solitary

ground that, the grant of premises and performance licence to operate

orchestra may lead to a law and order problem and thereby disturb the

social harmony, without ascribing any reason to arrive at such

conclusion. Neither any reference was made to the material on the basis




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of which such an inference was drawn nor the basis of the said

assumption was disclosed.

7.    Being aggrieved, the Petitioner preferred an Appeal before the

Divisional Commissioner, Konkan Division. By the impugned judgment

and order, Divisional Commissioner dismissed the Appeal by simply

reproducing the submissions of the parties and the order passed by the

Competent Authority. The Petitioner claims, there was no independent

evaluation of the merits of the case by the Appellate Authority. A bald

observation was made that, the Petitioner did not comply with the

provisions contained in Rule 108 of the Rules 1960.

8.    Being further aggrieved, the Petitioner has invoked the writ

jurisdiction.

9.    An Affidavit in Reply has been filed on behalf of Respondent

No.1. An endeavour was made to support the impugned orders as

having been passed in conformity with the Rules, 1960. It was, inter

alia, contended that the report of the Senior Police Inspector, Khar

Police Station and Assistant Commissioner of Police, Mumbai, were

recommendatory in nature. The Competent Authority was not bound by

those assessments. In discharge of its statutory duties the Competent

Authority was empowered to independently analyze the material and

reject the Petitioner's Application for licence as there was genuine




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apprehension of law and order problem, in the event licence was

granted.

10.   Reference has also been made to a Circular dated 27 th July 2026

issued by the State Government, in Home Department, thereby

restraining the Authorities from issuing fresh or renewing licence to

operate an orchestra.

11.   It was further contended that during the pendency of this

Petition, certain complaints have been received from the private parties

and a crime was registered at Khar Police Station vide CR No. 471 of

2026 for an offence punishable under Section 223 of the Bharatiya

Nyaya Sanhita 2023 (“BNS 2023”) in relation to the subject

establishment.

12.   The Petitioner has controverted the contentions made on behalf

of Respondent No.1 by filing an Affidavit in Rejoinder.

13.   I have heard Mr. Bernardo Reis, the learned Counsel for the

Petitioner, and Smt. V. R. Raje, the learned AGP for Respondent Nos. 1

and 2-the State, at some length. With the assistance of the learned

Counsel for the parties, I have perused the material on record including

the impugned orders.

14.   Mr. Reis, the learned Counsel for the Petitioner, took a slew of

exceptions to the impugned orders. Mr. Reis would urge, the impugned

orders betray an intent to somehow reject the Application for the


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premises and performance licences to operate an orchestra. The

Competent Authority (R1) has not ascribed any reason, as such, for

rejecting the Application on the specious ground that the grant of

licence would lead to a law and order problem. However, as the matter

progressed before the Appellate Authority and this Court, the

Respondents have made efforts to gradually invent reasons for refusing

the licence. Thus the order passed by the Competent Authority (R1)

refusing to grant the licence on the ground that a law and order

situation may arise, without spelling out any details, deserves to be

quashed and set aside, for being sans reasons.

15.   Mr. Reis further submitted that the order passed by the Appellate

Authority   also   suffers   from   the    vice   of   arbitrariness   and

unreasonableness. The Appellate Authority has simply extracted the

contentions of the parties and the order passed by the Competent

Authority and observed that the findings arrived at by the Competent

Authority are proper. The Appellate Authority has also made bald

observations that the Applicant did not satisfy the requirements of the

Rule 108 of the Rules, 1960, and that the grant of licence would lead to

law and order problem, without ascribing any reason.

16.   Mr. Reis submitted that the Appellate Authority, has unjustifiably

discarded the judgment of this Court in the case of Shivaji Sambu




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Waghralkar Vs Commissioner of Police, Navi Mumbai, Maharashtra and

Anr,1 by simply observing the fact-situation in that case was different.

17.   The non-application of mind by the Appellate Authority, Mr. Reis

would urge, is evident from the observations in the ultimate paragraph

of the impugned order that since the Petitioner has committed breach of

the terms and conditions of the licence, action taken by the Competent

Authority (R1) was justifiable. There was no question of the breach of

the terms and conditions of licence as the Petitioner was seeking a

premises and performance licence to operate an orchestra.

18.   Mr. Reis placed strong reliance on the judgment of the Supreme

Court in the case of Hotel Priya, A Proprietorship Vs State of

Maharashtra and Ors2 and a judgment of this Court in the case of

Shivaji Sambu Waghralkar (Supra) to lend support to the submissions

that the licensing Authorities are not free to refuse to grant the licence

by exercising the powers in an unreasonable and arbitrary manner.

19.   Per contra, Smt. Raje, the learned AGP, made a strenuous effort to

support the impugned orders. It was submitted that since the

Authorities have arrived at concurrent findings that the grant of licence

to operate an orchestra would lead to a law and order problem, this

Court, in exercise of its supervisory jurisdiction, need not interfere with




1     2026 SCC OnLine Bom 2409.
2     2022 SCC OnLine SC 204.
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such orders passed on an objective assessment of the fact-situation as it

obtains.

20.   Smt. Raje further submitted that the Petitioner was provided an

efficacious opportunity of hearing both before the Competent Authority

and Appellate Authority. Evidently, the impugned orders have been

passed in observance of the principles of natural justice and

fundamental principles of judicial process. Therefore, such orders are

not open for interference.

21.   Smt. Raje further submitted that on the merits of the matter, since

the Authorities have taken into consideration certain crimes that were

registered against the directors of the Petitioner; that the operation of

the orchestra would lead to unruly behaviour of the persons, who would

frequent the establishment, and increased and unregulated traffic

movement and the altercations with the neighbours and residents of the

area, the inference drawn by the Authorities that the grant of licence

would lead to law and order problem is required to be appreciated in

the light of aforesaid factors. To this end, Smt. Raje, banked upon the

grievances lodged by the occupants of two adjoining premises and the

report lodged by Khar Police leading to registration of CR No. 471 of

2026 for an offence punishable under Section 223 of BNS 2023, against

the Petitioner.




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22.   At any rate, Smt. Raje would urge, in view of the policy decision

of the Government not to grant the performance licence to operate an

orchestra, as documented in the Circular issued by the Government of

Maharashtra, in the Home Department, dated 27 th July 2026, the

Authorities cannot grant licence to operate an orchestra. Therefore, the

Petition deserves to be dismissed.

23.   Before adverting to appreciate the aforesaid rival submissions

canvassed across the Bar, it may be appropriate to have a brief resume

of statutory provisions and Rules which govern the grant or refusal of

the premises and performance licence.

24.   Chapter IV of the Police Act, 1951 contains the provisions under

the heading, “Police Regulations”. Under Section 33 of the Police Act,

1951, the Authorities have been empowered to make rules for

regulation of traffic and for preservation of order in public place, etc.

Clauses (w) and (wa) of sub-Section (1) of Section 33 empower the

Commissioner of Police to make rules, inter alia, for licensing or

controlling places of public amusement or entertainment; 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;

licensing or controlling, in the interest of public order, decency or

morality or in the interest of the general public, with such exceptions as


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may be specified, the musical, dancing, mimetic or the article or other

performances for the public amusement, including melas and tamashas.

25.      In exercise of the powers conferred under Section 33(1) of the

Police Act, 1951, the Commissioner of Police, Greater Mumbai has made

the Public Amusement Rules, 1960. Under Rule 2(k) the “premises” and

under Rule 2(l) the “Public Amusement Performance” are defined as

under:

      (k) “Premises” means any place which is used or is intended to
      be used as a place of public amusement or any place other
      than a cinema theatre, wherein musical, dancing, dramatic,
      mimetic,    theatrical   or   other   performances   or   public
      amusement, exhibition or diversion or game are staged”


      (l) “Public Amusement Performance” means a performance of
      dramas, songs, dances mimetics and similar other performance
      given in a place of public amusement or on any of the
      premises as defined under clause (i) of rule 2 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 institution and includes a Cabaret Performance,
      Discotheque and Games.”


26.      Chapter II of the Public Amusement Rules, 1960 makes

provisions for issue of ‘No Objection Certificate’ for the use of a

premises as a place for public amusement. Under Rule 4, before grant of

No Objection Certificate, the Licensing Authority is enjoined to invite

objections. Rule 5 of the Public Amusement Rules, 1960, provides for

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grant of ‘No Objection Certificate’. It reads, without prejudice to the

authority of the Licensing Authority to refuse or grant licences for

premises and performances under Rules 109 and 110 and 120 of those

Rules, the Licensing Authority may grant in Form “C” a certificate to the

Applicant that there is a no objection to the location of the premises at

the site notified by the Applicant under Rule 3.

27.   Under the scheme of the Public Amusement Rules, 1960, there is

a necessity to have independent premises licence and performance

licence. Chapter VIII of the Public Amusement Rules, 1960, subsumes

provisions in relation to, “Premises Licence”. Whereas Chapter IX

governs, “Performance Licence”.

28.   Rule 107 proscribes the use of premises as a public amusement

unless the person being the owner, tenant or occupier thereof, shall

have obtained a premises licence therefor. Rule 108 prescribes

statements and certificates that shall accompany an Application for

premises licence. Rule 108-A incorporates the requirement that shall be

fulfilled for grant of premises licence. Rule 110 empowers the Licensing

Authority to refuse a premises licence.

29.   In the context of the controversy at hand, it would be imperative

to extract Rule 110 which reads as under:

      “110. Power to refuse licence.— The Licensing Authority may
      refuse Premises Licence, if



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      (a)   The premises appears to him/her to be likely to cause
      obstruction, inconvenience, annoyance, risk, danger or damage to
      the residents or passers by or create traffic problems in the
      locality or may harm national interest or cause law and order
      problem.
      (b)   If he is satisfied after such enquiry as he thinks fit that the
      applicant for licence of the premises in question is not fit or
      unsuitable to grant such licence.”


30.    In the same vein, Rule 116, subsumed under Chapter IX

underscores the necessity of performance licence. It provides, no person

shall hold a musical, dancing, dramatic, mimetic, theatrical or other

performances for public amusement, including Cabaret Performances,

Melas and Tamashas, or any public exhibition or diversion or game, by

whatever name called or provide amusement at any outlets in the form

of Pool or Billiards Parlours, Computer Game Parlours, Virtual Reality,

Game Parlours, Cyber Cafes, Bowling Alleys either on payment of fees,

sale of tickets or on gratis (free of charge), unless and until he has

obtained a Performance Licence from the Licensing Authority to hold

such performance.

31.   Rule 120 reads as under:

      “120. Power to refuse Licence.— The Licensing Authority
      may refuse, except in the case of a Mela, Tamasha and Ras, a
      licence to perform, or exhibit any or all of the plays, or
      exhibitions or any other items of performance included in the
      application for licence if he considers them:
      (a)   to be indecent or of a scurrilous character;

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      (b)    to contain offensive reference to personalities;
      (c)    to wound the susceptibilities of any nation or followers
      of any religion;
      (d)    to be seditious or to be likely to excite political
      discontent;
      (e)    to promote hostile feelings between different classes;
      (f)    to be calculated to cause a breach of the peace; or
      (g)    to be objectionable on any ground other than those
      specified in (a), (b), (c), (d) and (e) and (f).
      The Licensing Authority shall not be bound to state the reason
      for refusing any Performance Licence except in the case of
      ground (g), when he shall give such reason in writing.”
32.    As is evident, Clauses (a) to (f) of Rule 120 empower the

Licensing Authority to refuse licence for the reasons specified

thereunder. Clause (g) which is residuary in nature, provides that

Licensing Authority may refuse the performance licence, if he considers

the performance, “to be objectionable on any ground other than those

specified in Clauses (a) to (f)”. The Licensing Authority need not give

reasons for refusing any performance licence, except in the case of

ground (g), whereunder he is enjoined to record reasons in writing, if

the performance is considered to be objectionable.

33.   In the light of the aforesaid regulatory regime, reverting to the

fact of the case, it appears that the Competent Authority (R1) was

persuaded to refuse the licence, in exercise of the power under Rule 110

though the specific rule was not referred. The Appellate Authority, in

turn, though referred to Rule 108 of the Rules, yet refrained from

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specifying as to which provision of the said Rule the Petitioner did not

comply with. Thus, at best, the power to refuse the licence can be said

to have been exercised by the Authorities under Rule 110 and Clause

(g) of Rule 120 of the Rules, 1960.

34.   If the order dated 10th October 2025 passed by the Competent

Authority (R1) is perused, the solitary reason that is discernible

therefrom is that, the grant of premises and performance licence might

lead to a law and order problem and thereby disturb the social

harmony. The order stops at that. It does not spell out any reason or

divulge the material which would justify an inference that the grant of

licence would lead to a law and order problem. Was it the ipse dixit of

the Competent Authority (R1)? Was there objective material on the

basis of which the Competent Authority (R1) could have formed such

an opinion? Whether the Certificates annexed to the Application or the

Report submitted by the Field Officer justified such refusal?, are some of

the questions, on the anvil of which, the legality and justifiability of the

said order was required to be tested.

35.    Evidently, the Respondents do not profess to contend that the

Reports of the Field Officer were adverse. On the contrary, in the

Affidavit in Reply an endeavour was made on behalf of the Respondents

to play down the Reports of the Senior Police Inspector, Khar Police

Station and the jurisdictional Assistant Commissioner of Police, on the


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premise that the grant or refusal of licence is ultimately in the discretion

of    the   Competent    Authority   and      those   Reports   were    only

recommendatory in nature and not binding on the Licensing Authority.

36.    It would be contextually relevant to note that, the report

submitted that by the Senior Police Inspector, Khar Police Station

(Exhibit “E” to the Petition), makes it explicitly clear that all the

requisite conditions for the grant of the premises and performance

licences were fulfilled by the Petitioner. The Senior Police Inspector

reported that, the establishment was not located in a crowded and

densely populated area; though it was located in a commercial area.

The width of the road in front of the establishment was more than 40

feet, i.e. 90 feet. No religious place or hospital or educational institute

was located within the 75 meters of the establishment. No similar place

of amusement existed within a radius of 75 meters.              There was

adequate provision for the parking of the vehicles of the customers. The

premises was soundproof. And, thus, the Police had no objection to the

premises licence and performance licence being issued to the Petitioner.

37.    The position which thus emerges is that, on the one hand, the

order passed by the Competent Authority (R1) does not indicate, even

remotely, as to what weighed with the Competent Authority in refusing

the licence on the ground that the grant of licence may lead to a law

and order problem. On the other hand, the field report submitted by the


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jurisdictional police indicates that the Application was in order,

complied with the requirements under Rule 108 of the Rules, 1960 and

the Police had no objection for granting the premises and performance

licence.

38.      Undoubtedly, the grant of licence is in the discretion of the

Competent Authority. However, the exercise of the discretion cannot be

said to be completely uncanalised and unbridled. The exercise of the

power is regulated by the Rules. A mere ipse dixit of the Competent

Authority that the grant of licence may lead to a law and order problem,

without anything more, cannot be sustained. The refusal of licence

without there being objective material to bring the case within the

categories under which the Competent Authority is empowered to

refuse the licence, would thus fall foul of the principles of reasonable

and non-arbitrary exercise of power by the instrumentalities of the

State.

39.      In the order passed by the Appellate Authority, a reference was

made to two crimes registered against the directors of the Petitioner, i.e.

CR No. 504 of 2014 and CR No. 359 of 2015. The Petitioner joined

issue by submitting that the prosecutions arising out of those crimes

were quashed and set aside pursuant to an order passed by a Division

Bench of this Court on 11th April 2023 in Criminal Writ Petition No.

4244 of 2016 and the connected matters and, thus, registration of those


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crimes could not have been arrayed against the Petitioner. Copies of the

orders passed in the said Writ Petition dated 11 th April 2023 and

consequential orders passed by the jurisdictional Magistrates disposing

of the prosecutions arising out of the said CR No. 504 of 2014 and CR

No. 359 of 2015, were placed on record. Evidently, the Authorities could

not have referred to and relied upon the registration of CR No. 504 of

2014 and CR No. 359 of 2015 against the Petitioner and others as the

prosecutions arising out of those crimes were already quashed and set

aside by the Division Bench of this Court.

40.   The third limb of resistance to the grant of premises and

performance licence was premised on the complaints lodged by Dr.

Chandreshwar Dode and Trilok Patel, dated 5 th August 2026, making

grievances about the purported unlawful and abusive behaviour of the

customers who visit the Petitioner’s establishment and the resultant

nuisance to the adjoining establishments.

41.   Evidently, those grievances were made after the passing of the

impugned order by the Competent Authority and during the pendency

of the challenge to the impugned order before this Court. The Petitioner

has, in the Affidavit in Rejoinder, referred to the animosity between the

Petitioner and Dr. Chandreshwar Dode on account of the dispute over

use and occupation of the common passage/open space between two

structures and the complaint purportedly lodged by one of the directors


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of the Petitioner against Dr. Chandreshwar Dode leading to registration

of the NC report.

42.    I find substance in the submission of Mr. Reis that the grounds

were sought to be progressively supplemented to justify the refusal of

the premises and performance licence, where none were ascribed in the

first instance.

43.     Article 19(1)(g) of the Constitution of India declares that all

citizens shall have the right to practice any profession, or to carry on

any occupation, trade or business. Right to practice any profession or to

carry on any occupation, trade or business is one of the fundamental

freedoms guaranteed by the Constitution. Under Clause (6) of Article

19, the State is empowered to impose reasonable restrictions on the

exercise of the right conferred by said sub-clause in the interest of

general public. The legality and justifiability of the action of refusal of

licence would thus be required to be tested on the anvil of the

constitutional protection.

44.    The power to impose reasonable restrictions on the right to carry

on any occupation, trade or business is in the interest of general public.

The fact that the competent authorities have granted licences to operate

the premises as an eating house place and even an FL-III licence,

indicates that the extant activity of operating a bar and restaurant,

albeit under requisite licences, cannot be said to be one which is


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prohibited. Nor can the operation of an orchestra or the staging at a live

music performance be said to be inherently dangerous or injurious to

general public.


45.   In a different context, in the case of State of Punjab Vs Devans

Modern Breweries Ltd,3 the Supreme Court enunciated that dealing in a

commodity which is governed by a statute cannot be said to be

inherently noxious and pernicious. The State is entitled to prohibit any

trade or commerce in potable liquor. However, once a licence is granted

to carry on any trade or business, can it be said that a person is

committing a crime in carrying on business in liquor although he strictly

complies with the terms and conditions of licence and the provisions of

the statute operating in the field? The Supreme Court observed that, if

the answer to the said question was to be rendered in the affirmative, it

will create havoc and lead to anarchy and judicial vagaries. It was

concluded, so long as, it is not made impermissible to carry on such

business by reason of a statute, no crime can be said to have been

committed in relation thereto.


46.   The following observations of the Supreme Court are instructive

and hence extracted below.

            “48.   Dealing in a commodity which is governed by a
            statute cannot be said to be inherently noxious and


3     (2004) 11 SCC 26.
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      pernicious. A society cannot condemn a business nor
      there exists a presumption in this behalf if such business
      is permitted to be carried out under statutory enactments
      made by the legislature competent therefor. The
      legislature being the final arbiter as to the morality or
      otherwise of the civilized society has also to state as to
      business in which article(s) would be criminal in nature.
      The society will have no say in the matter. The society
      might have a say in the matter which could have been
      considered in a Court of law only under common-law
      right and not when the rights and obligations flow out of
      statutes operating in the field. Health, safety and welfare
      of the general public may again be a matter for the
      legislature to define and prohibit or regulate by
      legislative enactments. Regulatory statutes are enacted in
      conformity with Clause (6) of Article 19 of the
      Constitution to deal with those trades also which are
      inherently noxious and pernicious in nature; and
      furthermore, thereby sufficient measures are to be taken
      in relation to health, safety and welfare of the general
      public. The courts while interpreting a statute would not
      take recourse to such interpretation whereby a person
      can be said to have committed a crime although the same
      is not a crime in terms of the statutory enactment.
      Whether dealing in a commodity by a person constitutes
      a crime or not can only be the subject-matter of a
      statutory enactment.

      ……

      51.     From the analysis of decisions rendered by this
      Court      in   Cooverjee     B.     Bharucha,      R.M.D.
      Chamarbaugwala, Har Shankar or Khoday Distilleries, it


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      will appear that a person cannot claim any right to deal
      in any obnoxious substance on the ground of public
      morality. The State, therefore, is entitled to completely
      prohibit any trade or commerce in potable liquor. Such
      prohibition, however, has not been imposed. Once a
      licence is granted to carry on any trade or business, can it
      be said that a person is committing a crime in carrying on
      business in liquor although he strictly complies with the
      terms and conditions of licence and the provisions of the
      statute operating in the field? If the answer to the said
      question is to be rendered in the affirmative it will create
      havoc and lead to anarchy and judicial vagaries. When it
      is not a crime to carry on such business having regard to
      the fact that a person has been permitted to do so by the
      State in compliance with the provisions of the existing
      laws, indisputably he acquires a right to carry on
      business. Even in respect to trade in food articles or other
      essential commodities either complete prohibition or
      restrictions are imposed in the matter of carrying on any
      trade or business, except in terms of a licence granted in
      that behalf by the authorities specified in that behalf. The
      distinction between a trade or business being carried out
      legally or illegally having regard to the restrictions
      imposed by a statute would have, therefore, to be judged
      by the fact as to whether such business is being carried
      out in compliance with the provisions of the statute(s)
      operating in the field or not. In other words, so long it is
      not made impermissible to carry on such business by
      reason of a statute, no crime can be said to have been
      committed in relation thereto. The doctrine of res extra
      commercium, thus, would not be attracted, whence a



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             person carries on business under a licence granted in
             terms of the provisions of the regulatory statutes.

             ………

             317. The matter is covered by statutory provisions. The
             court cannot interpret equality, freedom or commerce
             clauses of the Constitution in such a manner so as to take
             away the rights and obligations created under a statute
             on the ground of public morality or otherwise. When a
             statute permits a trade, morality takes a back seat as
             “legislature” as contradistinguished from “judiciary” is
             supposed to be the authority to consider the morality or
             otherwise of certain things prevailing in the society.”




47.   The Supreme Court has thus emphasized that the legislature is

the final arbiter as to the morality or otherwise of the civilised society

and has also to state as to what business in which articles would be

criminal in nature. The society will have no say in the matter. The

Society might have say in the matter which could have been considered

in a Court of law only under common law right and not when the right

and obligations flow out of statutes operating in the field. Health, safety

and general welfare of the public may again be a matter for the

legislature to define and prohibit or regulate by legislative enactments.


48.   To what extent, the Licensing Authority could refuse the

performance licence, if the Applicant satisfied all other requirements

solely on the basis of an unsubstantiated apprehension that the grant of

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licence to operate an orchestra may lead to a law and order problem, is

a matter which warrants a balancing exercise. On the one part, the

guarantee of fundamental freedom to carry on any trade or occupation

or business is to be secured. On the other hand, the general public

needs to be protected from the potential harm that may result from

carrying on the particular trade or occupation. Since the activity is

regulated by statute and rules, and is not per se immoral, dangerous or

inherently injurious, the issue of justifiability of apprehension

presumably premised on morality crops up for consideration.


49.   In the case of Indian Hotel and Restaurant Association (Ahar) and

Anr Vs State of Maharashtra4 while examining the constitutionality of

certain provisions of the Maharashtra Prohibition of Obscene Dance in

Hotels, Restaurants and Bar rooms and Protection of Dignity of Women

(working therein) Act, 2016 (“the Act 2016”) and the Rules framed

thereunder, the Supreme Court reemphasized that the State cannot take

exception to dance performance per se. In the process, the Supreme

Court made the following observations:

            “79.   It needs to be borne in mind that there may be
            certain activities which the society perceives as immoral
            per se. It may include gambling (though that is also
            becoming a debatable issue now), prostitution etc. It is
            also to be noted that standards of morality in a society
            change with the passage of time. A particular activity,

4     (2019) 3 SCC 429.
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      which was treated as immoral few decades ago may not
      be so now. Societal norms keep changing. Social change
      is of two types: continuous or evolutionary and
      discontinuous or revolutionary25. The most common
      form   of     change   is   continuous.    This   day-to-day
      incremental change is a subtle, but dynamic, factor in
      social analysis. It cannot be denied that dance
      performances, in dignified forms, are socially acceptable
      and nobody takes exceptions to the same. On the other
      hand, obscenity is treated as immoral. Therefore,
      obscene dance performance may not be acceptable and
      the State can pass a law prohibiting obscene dances.
      However, a practice which may not be immoral by
      societal standards cannot be thrusted upon the society as
      immoral by the State with its own notion of morality
      and thereby exercise ‘social control’. Furthermore, and in
      any case, any legislation of this nature has to pass the
      muster of constitutional provisions as well. We have
      examined the issues raised in the aforesaid context.

      80.    This brings us to the Principle of res extra
      commercium.      Insofar    as   dance    performances   are
      concerned, it has already been held that it is not res
      extra commercium. We would, at this stage, again refer
      to Indian Hotel and Restaurants Association (1) where
      these aspects are dealt with as under:

                                   …..

             80.2    Injury to Public Morals: The Court
             categorically rejected the contention that the
             dance bars affect or cause harm to public
             morale. In pertinent part, this Court stated
             that: "120. ..In our opinion, the State neither

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                  had the empirical data to conclude that
                  dancing in the prohibited establishment
                  necessarily leads to depravity and corruption
                  of public morals nor was there general
                  consensus that such was the situation…”

                  80.3 Res Extra Commercium: The State
                  Government contended that the dance
                  performances in such establishments affect
                  the    dignity   of   women     and   leads     to
                  corruption of public morals. Thus, the
                  respondent justified that the prohibition is a
                  reasonable restriction necessary “in the
                  interest of general public” as under Article
                  19(6) of the Constitution. This Court
                  categorically rejected the said contention,
                  and held that the respondent “failed to
                  establish that the restriction is reasonable or
                  that it is in the interest of general public”.
                  This    Court    further      added   that     the
                  prohibition fails to satisfy the doctrine of
                  ‘direct and inevitable effect’ to justify such
                  restriction, and the insufficiency of the
                  existing regulatory framework.”

50.   In the case of Hotel Priya, A Proprietorship (Supra), which also

arose out of the conditions imposed on the orchestra performance under

the Public Amusement Rules, 1999 namely, (i) the licencee was

permitted to keep only four women singers/artists and four male

singers/artists to remain present on permitted stage and (ii) only eight

artists were permitted to remain present on the permitted stage (four

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male and four women), the Supreme Court examined the legality and

justifiability of those conditions.

51.      The Supreme Court observed that the impugned gender-cap (i.e.

four females and four males, in any performance) appeared to be the

product of a stereotypical view that women who perform in the bars

and establishments, like the appellants, belong to a certain class of

society. The Supreme Court declared the condition imposing a gender

cap as to the number of women or men, who can perform in orchestras

and bands, in bars licenced under the Rules, 1960 and other allied

provisions, was void. While the overall limit of performers in any given

performance cannot exceed eight, the composition (i.e., all female,

majority female or male, or vice versa) can be of any combination,

declared the Supreme Court. After              referring to the previous

pronouncement in the case of Indian Hotel and Restaurant Association

(Ahar) and Anr (Supra), the Supreme Court observed inter alia as

under:

              “43.   It is thus clear that each of the arguments which
              the state is relying on, were considered in the context of
              challenge to statutory prohibitions, as well as license
              conditions. The arguments advanced in the present case,
              that the restrictions are necessary in the public interest,
              to promote the welfare of women, prevent human
              trafficking in women, and their exploitation, and that
              the restrictions are necessary in the interest of public
              morals, are well worn, and have been decisively

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              rejected. Apart from regurgitating the same rejected
              submissions, the state has not justified, independently,
              how the gender-cap, as for an individual orchestra or
              band, is regulatory.”


52.   The Circular issued by the Government on 27 th July 2026

restraining the Authorities from issuing performance licence to operate

an orchestra/live musical performance, does not advance the cause of

the submission on behalf of the State. It is well settled position in law

that, executive instructions cannot supplant the statutory rules. They

can   supplement/clarify      the     statutory   rules.   Undoubtedly,     the

Government by issue of executive instructions under Article 166 of the

Constitution of India, can supplement the statutory provisions/rules, in

case of any ambiguity or fill in the gaps therein but such executive

instructions cannot supplant the statutory regime which already

occupies the field.

53.   Thus, no mileage can be drawn from the Circular dated 27 th July

2026 issued by the Government in support of the impugned order.

54.   The conspectus of aforesaid consideration is that the impugned

orders suffer from the vice of unreasonableness and arbitrariness in the

exercise of the powers conferred under the Public Amusement Rules,

1960. The Authorities proceeded to refuse the performance licence

despite the Petitioner complying with all the requirements on their ipse

dixit that, the grant of licence will lead to a law and order problem.

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Hence, the impugned orders deserve to be quashed and set aside, and

the Petition deserves to be allowed.

55.     Hence, the following order:

                               :ORDER:

(i)     Petition stands allowed.

(ii)    The impugned order dated 2nd June 2026 as well as the order

dated 10th October 2025 passed by the Licensing Authority refusing the

performance licence stands quashed and set aside.

(iii)   The Licensing Authority shall grant performance licence to

operate orchestra/live music performance to the Petitioner within a

period of four weeks from the date of communication of this order.

(iv)    Rule made absolute in the aforesaid terms.

No costs.

                                               [N. J. JAMADAR, J.]




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