Court has to examine or compare with that of admitted signatures of deceased - instead of discarding as not sent for expert opinion, when the husband clearly says that he can identified the writing of his wife When the appellant, who is the husband of the deceased, has said in his evidence as DW1 that the aforesaid chit (Ext. D19) has been written by the deceased herself and has been signed by her and it also appears from his evidence quoted above that he was acquainted with her handwriting and signature, the Trial Court and the High Court could have recorded a finding one way or the other by comparing her handwriting and signature with some of her other handwritings and signatures under Section 73 of the Evidence Act. In the alternative, the Trial Court and the High Court could have sought for an expert's opinion under Section 45 of the Evidence Act on whether the handwriting and signature were that of the deceased. But unfortunately, neither the Trial Court nor the High Court have resorted to these provisions of the Evidence Act and instead by their own imaginary reasoning disbelieved the defence of the appellant that Ext.D19 could not have been written by the deceased.

Page 1
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(s). 1431 OF 2007
VIPIN JAISWAL(A-I) Appellant (s)
 VERSUS
STATE OF A.P. REP.BY PUB.PROSECUTOR Respondent(s)
JUDGMENT
A.K. PATNAIK, J.
This is an appeal against the judgment dated 11th
December, 2006 of the Andhra Pradesh High Court in
Criminal Appeal No. 544 of 2003.
2. The facts briefly are that an FIR was lodged
by Gynaneshwar Jaiswal on 4.4.1999 at 2.15 p.m. in
Mangalhat Police Station, Hyderabad. In the FIR it was
stated by the informant that his daughter Meenakshi
Jaiswal was married to the appellant on 22.2.1996 and
at the time of marriage he gave sufficient gold
Page 2
2
jewellery, silver items, furniture, electrophinic
gadgets etc., worth above Rs.2,50,000/- but ever since
her marriage, she was subjected to physical and mental
torture by her husband Vipin Jaiswal, her husband's
parents Prem Kumar Jaiswal and Yashoda Bai and her
husband's sister Supriya and her husband and they all
brutally assaulted her on innumerable occasions for not
getting sufficient dowry. It was further stated in the
FIR that on 2.4.1999 the informant received a call from
the appellant and he went to the house of the appellant
along with his relatives to find out what had happened
as well as to give invitation for a function at his
place but they all abused him and the appellant
physically assaulted and pushed him out from the house
but fearing the safety of his daughter and her welfare,
he did not report the matter to the police. It is
further stated in the FIR that on 4.4.1999 at about
1.00 p.m. when he came back home, he was informed on
telephone by his son that Meenakshi had received severe
burn injuries and as a result died in the house of the
appellant. The police registered a Criminal Case under
Section 304B, IPC and took up investigation and
submitted a charge-sheet against the appellant and his
other relatives under Sections 304B and 498A, IPC.
Page 3
3
3. At the trial, besides other witnesses, the
prosecution examined the father of the deceased
(informant) as PW 1, the cousin of PW 1 as PW 2 and the
mother of the deceased as PW 4. The appellant
volunteered to be a witness and got examined himself as
DW 1 and took the defence that the deceased had left
behind a suicide note written by her one day before her
death in which she has stated that she had committed
suicide not on account of any harassment by the
appellant and her family members but due to the
harassment by her own parents. The Trial Court,
however, disbelieved the defence and convicted the
appellant and his other relatives under Sections 304B
and 498A, IPC. The Trial Court in particular held that
there was material that two days prior to the death of
the deceased, her father (PW1) and his relative (PW2)
were called by her and told that she has been harassed
by the appellant and her in laws for not being paid the
amount demanded by the appellant and when PWs 1 and 2
went to the house of the appellant, they were abused by
the appellant and on 4.4.1999, PW 1 and others were
informed by one Suresh Kumar, a neighbour of the
appellant, about the incident. From the aforesaid and
other evidence, the Trial Court came to the conclusion
that the deceased was subjected to torture and
Page 4
4
harassment by the accused, mainly for the reason that
an amount of Rs.50,000/- was not given to the appellant
by PW 1. The appellant and other relatives of the
appellant carried Criminal Appeal No. 544 of 2003
before the High Court and by the impugned judgment, the
High Court acquitted the two other relatives of the
appellant (A2 and A3) but maintained the conviction of
the appellant under Sections 304B and 498A, IPC.
4. At the hearing before us, learned senior
counsel for the appellant submitted that the findings
of the Trial Court and of the High Court with regard to
the demand of dowry are in relation to the demand of
Rs.50,000/-. He submitted that this demand of
Rs.50,000/- is not mentioned in the FIR (Ext. P1). He
further submitted that in any case, the evidence of PW1
and PW4 is clear that this demand of Rs.50,000/- by the
appellant was not a dowry demand but an amount which
the appellant wanted from the family of the deceased to
purchase a computer and set up his own business. He
further submitted that the Trial Court and the High
Court ought not to have disbelieved the suicide note
(Ext. D19) which was in the handwriting of the deceased
as proved by DW1. In this context, he explained that
the signature on the suicide note (Ext. D19) purporting
Page 5
5
to be that of the deceased, tallied with the signature
of the deceased in Ext. D1 which was a hall ticket
issued by Dr. B.R. Ambedkar Open University for an
examination which the deceased took in March, 1998.
5. Learned counsel for the State, on the other
hand, submitted that both the Trial Court and the High
Court have discussed the evidence of the prosecution
witnesses, and in particular, the evidence of PWs 1, 2
and 4 to establish that there was demand of dowry of
not only Rs.50,000/- but other items as well. He
further submitted that Section 2 of the Dowry
Prohibition Act, 1961 defines 'dowry' as any property
or valuable security given or agreed to be given either
directly or indirectly at or before or any time after
the marriage in connection with the marriage of the
parties to the marriage. He submitted that the
expression “in connection with the marriage of the
parties to the marriage” is wide enough to cover the
demand of Rs.50,000/- made by the appellant for
purchase of a computer. He further submitted that so
far as the suicide note (Ext. D19) is concerned, the
same cannot be believed to have been written by the
deceased who was only a matriculate and the High Court
has given good reasons in the impugned judgment why the
Page 6
6
suicide note cannot be believed to have been written
by the deceased. He argued that in any case only on the
basis of the evidence given by DW1, the Court cannot
hold that the suicide note had been written by
the deceased and not by someone else. He submitted that
since the prosecution has been able to prove that the
deceased had been subjected to not only a demand
of dowry but also cruelty soon before her death,
the Trial Court and the High Court have rightly
held the appellant guilty both under Sections 304B and
498A, IPC.
6. We have perused the evidence of PW 1 and
PW 4, the father and mother of the deceased
respectively. We find that PW 1 has stated that at the
time of marriage, gold, silver articles, ornaments,
T.V., fridge and several other household articles worth
more than Rs.2,50,000/- were given to the appellant and
after the marriage, the deceased joined the appellant
in his house at Kagaziguda. He has, thereafter, stated
that the appellant used to work in a xerox cum type
institute in Nampally and in the sixth month after
marriage, the deceased came to their house and told
them that the appellant asked her to bring Rs.50,000/-
from them as he was intending to purchase a computer
Page 7
7
and set up his own business. Similarly, PW4 has stated
in her evidence that five months after the marriage,
the appellant sent her away to their house and when she
questioned her, she told that the appellant was
demanding Rs.50,000/- and that the demand for money is
to purchase a computer to start his own business. Thus,
the evidence of PW1 and PW4 is that the demand of
Rs.50,000/- by the appellant was made six months after
the marriage and that too for purchasing a computer to
start his own business. It is only with regard to this
demand of Rs.50,000/- that the Trial Court has recorded
a finding of guilt against the appellant for the
offence under Section 304B, IPC and it is only in
relation to this demand of Rs.50,000/- for purchase of
a computer to start a business made by the appellant
six months after the marriage that the High Court has
also confirmed the findings of the Trial Court with
regard to guilt of the appellant under Section 304B,
IPC. In our view, both the Trial Court and the High
Court failed to appreciate that the demand, if at all
made by the appellant on the deceased for purchasing a
computer to start a business six months after the
marriage, was not in connection with the marriage and
was not really a 'dowry demand' within the meaning of
Section 2 of the Dowry Prohibition Act, 1961. This
Page 8
8
Court has held in Appasaheb & Anr. Vs. State of
Maharashtra (2007) 9 SCC 721:
“In view of the aforesaid definition of
the word "dowry" any property or valuable
security should be given or agreed to be
given either directly or indirectly at or
before or any time after the marriage and in
connection with the marriage of the said
parties. Therefore, the giving or taking of
property or valuable security must have some
connection with the marriage of the parties
and a correlation between the giving or
taking of property or valuable security with
the marriage of the parties is essential.
Being a penal provision it has to be strictly
construed. Dowry is a fairly well known
social custom or practice in India. It is
well settled principle of interpretation of
Statute that if the Act is passed with
reference to a particular trade, business or
transaction and words are used which
everybody conversant with that trade,
business or transaction knows or understands
to have a particular meaning in it, then the
words are to be construed as having that
particular meaning. (See Union of India v.
Garware Nylons Ltd., AIR (1996) SC 3509 and
Chemicals and Fibres of India v. Union of
India, AIR (1997) SC 558).”
7. In any case, to hold an accused guilty of
both the offences under Sections 304B and 498A, IPC,
the prosecution is required to prove beyond reasonable
doubt that the deceased was subjected to cruelty or
harassment by the accused. From the evidence of the
prosecution witnesses, and in particular PW1 and PW4,
we find that they have made general allegations of
harassment by the appellant towards the deceased and
have not brought in evidence any specific acts of
Page 9
9
cruelty or harassment by the appellant on the deceased.
On the other hand, DW1 in his evidence has stated that
on 4.4.1999, the day when the incident occurred, he
went to the nearby temple along with his mother (A2)
and his father (A3) went to the bazar to bring ration
and his wife (deceased) alone was present at the house
and at about 1.00 p.m., they were informed by somebody
that some smoke was coming out from their house and
their house was burning. Immediately he and his mother
rushed to their house and by that time there was a huge
gathering at the house and the police was also present.
He and his family members were arrested by the police
and after one month they were released on bail. What
DW1 has further stated is relevant for the purpose of
his defence and is quoted hereinbelow:
“While cleaning our house we found a
chit on our dressing table. The said chit was
written by my wife and it is in her
handwriting and it also contains her
signature. Ex. D 19 is the said chit. I
identified the handwriting of my wife in Ex.
D19 because my wife used to write chits for
purchasing of monthly provisions as such on
tallying the said chit and Ex. D19 I came to
know that it was written by my wife only.
Immediately I took the Ex. D19 to the P.S.
Mangalhat and asked them to receive but they
refused to take the same.”
From the aforesaid evidence, it is clear that while
cleaning the house the appellant came across a chit
written in the handwriting of his wife and containing
Page 10
10
her signature. This chit has been marked as Ext. D19
and the appellant has identified the handwriting and
signature of the deceased in Ext. D19 which is written
in Hindi. The English translation of Ext.D19
reproduced in the impugned judgment of the High Court
is extracted hereinbelow:
“I, Meenakshi W/o Vipin Kumar, do hereby
execute and commit to writing this in my
sound mind, consciousness and senses and with
my free will and violation to the effect that
nobody is responsible for my death. My
parents family members have harassed much to
my husband. I am taking this step as I have
fed up with his life. Due to me the quarrels
are taking place here, as such I want to end
my life and I beg to pardon by all.”
It appears from Ext. D19 that the deceased has written
the chit according to her free will saying that nobody
was responsible for her death and that her parents and
family members have harassed her husband and she was
taking the step as she was fed up with her life and
because of her quarrels were taking place.
8. When the appellant, who is the husband of the
deceased, has said in his evidence as DW1 that the
aforesaid chit (Ext. D19) has been written by the
deceased herself and has been signed by her and it
also appears from his evidence quoted above that he
was acquainted with her handwriting and signature, the
Trial Court and the High Court could have recorded a
Page 11
11
finding one way or the other by comparing her
handwriting and signature with some of her other
handwritings and signatures under Section 73 of the
Evidence Act. In the alternative, the Trial Court and
the High Court could have sought for an expert's
opinion under Section 45 of the Evidence Act on
whether the handwriting and signature were that of the
deceased. But unfortunately, neither the Trial Court
nor the High Court have resorted to these provisions
of the Evidence Act and instead by their own imaginary
reasoning disbelieved the defence of the appellant
that Ext.D19 could not have been written by the
deceased.
9. In our considered opinion, the evidence of
DW1 (the appellant) and Ext.D19 cast a reasonable
doubt on the prosecution story that the deceased was
subjected to harassment or cruelty in connection with
demand of dowry. In our view, onus was on the
prosecution to prove beyond reasonable doubt the
ingredient of Section 498A, IPC and the essential
ingredient of offence under Section 498A is that the
accused, as the husband of the deceased, has subjected
her to cruelty as defined in the Explanation to
Section 498A, IPC. Similarly, for the Court to draw
Page 12
12
the presumption under Section 113B of the Evidence Act
that the appellant had caused dowry death as defined
in Section 304B, IPC, the prosecution has to prove
besides the demand of dowry, harassment or cruelty
caused by the accused to the deceased soon before her
death. Since the prosecution has not been able to
prove beyond reasonable doubt this ingredient of
harassment or cruelty, neither of the offences under
Sections 498A and 304B, IPC has been made out by the
prosecution.
10. We accordingly allow this appeal, set aside
the impugned judgment of the High Court and that of
the Trial Court and direct that the bail bond
furnished by the appellant shall stand discharged.
............................J.
(A.K. PATNAIK)
............................J.
(SUDHANSU JYOTI MUKHOPADHAYA)
NEW DELHI,
MARCH 13, 2013

law never demands direct evidence on sub lease = “4. Sub-tenancy or sub-letting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession over the demised property. It is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person into possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the sub-tenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sub-let had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub-lease. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sub-let.” - In our considered opinion, the aforesaid principle of law fully applies to the case at hand against the respondent due to his contradicting stand and by admitting Joynal Mullick’s presence in the suit shop but not being able to properly prove the nature and the capacity in which he was sitting in the suit shop.- the appellants were able to prove the case of sub-letting against the respondent.

1

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.4189 OF 2007
Flora Elias Nahoum & Ors. .... Appellants
Versus
Idrish Ali Laskar …. Respondent
J U D G M E N T
Abhay Manohar Sapre, J.
1. This appeal arises from the final judgment and
final order/decree dated 07.07.2005 passed by the
High Court of Calcutta in F.A. No.416 of 1984
whereby the Division Bench of the High Court
dismissed the eviction suit filed by the appellants
against the respondent and set aside the decree for
2
eviction passed by the Trial Court in their favour
and against the respondent.
2. In order to appreciate the issues involved in
this appeal, it is necessary to set out the facts in
detail herein-below.
3. The appellants are the plaintiffs (landlords)
whereas the respondent is the defendant (tenant) in
the eviction suit out of which this appeal arises.
4. The appellants (plaintiffs) are the
owners/landlords of one shop (room) bearing
premises No.1, Hartford Lane, Calcutta (hereinafter
referred to as “the suit shop”), which was originally
owned by Late Nahoum Elias and Miss Resmah
Nahoum. The present appellants are the
successors-in-interest of the suit shop. They had let
out the suit shop to one - Alfajuddin Laskar on a
monthly rent of Rs.40/-. In the suit shop,
3
Alfajuddin Laskar used to do the business of sale of
eggs under the name “24, Parganas Egg Stores”.
5. Alfajuddin Laskar expired in 1976. The
respondent being his son became the tenant of the
appellants on same terms and conditions. The
respondent, however, closed his father's business of
selling of eggs and started his tailoring business
under the name “New India Tailors” in the suit
shop.
6. In 1978, the appellants filed an Eviction Suit
against the respondent under the provisions of the
West Bengal Premises Tenancy Act, 1956
(hereinafter referred to as “the Act”. The eviction
was claimed on four grounds, viz., default in
payment of monthly rent, bona fide need,
sub-letting and lastly, making of unauthorized
construction in the suit shop by the respondent.
4
7. The respondent filed the written statement and
denied all the four grounds. Parties adduced their
evidence. The Trial Court, by order dated
30.01.1984, partly decreed the suit. It was held that
so far as the grounds relating to default of rent and
bona fide need are concerned, both are not made
out whereas the other two grounds, namely,
sub-letting and making of unauthorized
construction in the suit shop, both stood made out
against the respondent.
8. In this view of matter, the appellants’ suit was
decreed in part against the respondent and the
decree for eviction on the ground of sub-letting and
unauthorized construction made by the respondent
in the suit shop was passed. The respondent was
granted six months’ time to vacate the suit shop
and handover its vacant possession to the
appellants.
5
9. Being aggrieved by the said order, the
respondent filed appeal before the High Court at
Calcutta. The appellants, however, did not file any
cross appeal or cross-objection against that part of
the order by which two grounds, viz., default in
payment of rent and bona fide need were held not
made out. The judgment of the Trial Court thus
became final to that extent.
10. Therefore, the only question before the High
Court was whether the Trial Court was justified in
decreeing appellants’ suit on the grounds of
sub-letting and making of unauthorized
construction in the suit shop.
11. In other words, the question was whether the
Trial Court was right in holding that the ground of
sub-letting and making of unauthorized
construction in the suit shop was made out.
6
12. The High Court, by impugned judgment,
allowed the respondent’s appeal and dismissed the
appellants’ eviction suit. The High Court held that
no ground of either sub-letting or an unauthorized
construction was made out, hence, the suit was
liable to be dismissed in its entirety. It was
accordingly, dismissed.
13. Against this judgment, the landlords felt
aggrieved and filed this appeal by way of special
leave in this Court.
14. Heard Ms. Daisy Hannah, learned counsel for
the appellants and Mr. Zakiullah Khan, learned
senior counsel for the respondent.
15. Having heard the learned counsel for the
parties and on perusal of the record of the case, we
are inclined to allow the appeal and while setting
aside of the impugned judgment, we restore that of
7
the Trial Court and, in consequence, decree the
appellants’ suit in part, as indicated below.
16. There can be no dispute to the legal
proposition that even if the landlord is able to make
out only one ground out of several grounds of the
eviction, he is entitled to seek the eviction of his
tenant from the suit premises on the basis of that
sole ground which he has made out under the Rent
Act.
17. In other words, it is not necessary for the
landlord to make out all the grounds which he has
taken in the plaint for claiming eviction of the
tenant under the Rent Act. If one ground of eviction
is held made out against the tenant, that ground is
sufficient to evict the tenant from the suit premises.
18. As mentioned above, the Trial Court held that
the appellants were able to make out two grounds
for respondent's eviction, namely, sub-letting and
8
unauthorized construction made by him in the suit
shop. The High Court, accordingly, reversed the
findings on these two grounds and dismissed the
suit.
19. We consider it proper to examine first, the
ground of sub-letting with a view to find out as to
whether the plaintiffs (appellants) were able to make
out this ground against the respondent. In other
words, let us first examine as to whether the Trial
Court was right or the High Court was right on this
issue.
20. In order to examine, whether the ground of
sub-letting is made out or not, it is necessary to see
as to how this ground was pleaded and sought to be
proved by the parties.
21. The appellants, in Para 4 of the plaint, pleaded
the case of sub-letting as under:
“4. The defendant after acquiring
right of tenancy in respect of the said shop
9
room after his father’s death, wrongfully
transferred possession of the said shop room
to one Joynal Mallick evidently for creating a
sub-tenant in his favour in respect of the suit
shop room without obtaining the permission
and consent of the plaintiffs.”
22. The respondent, in reply to Para 4 of the
plaint, gave the following reply in Para 9 of his
written statement as under:
“9. The defendant denies the
allegations made in paragraph 4 of the plaint
and in particular denies the allegations that
he has transferred possession of the shop
under his tenancy to one Joynal Mullick or
anybody as falsely alleged.”
23. It is clear from the perusal of the pleadings
that the case of the appellants was that the
respondent has sub-let and parted with possession
of the suit shop to one Joynal Mullick without
appellants’ consent.
24. So far as the respondent is concerned, he
simply denied the appellants’ case in para 9 saying
that he has not sub-let the suit shop to anyone,
10
much less to Joynal Mullick, as claimed by the
appellants.
25. The respondent examined himself as witness
No.1 and examined Joynal Mullick as witness No.2.
26. In examination-in-chief, the respondent
changed his stand and said that he has not sub-let
the suit shop to Joynal Mullick but he is in his
employment. This is what he said:
“It is not a fact that I sublet the shop room
in suit to one Jainal Mullick. Jainal Mullick
is in my employment.”
27. The respondent further in his
cross-examination again changed his stand and in
answer to a specific question put to him as to
whether he has employed any person in his tailoring
business said "no". This was his reply:-
“No. In the tailoring business I have no
employee but the work is done on contract
basis.”
11
28. The respondent then in answer to another
question put to him as to how many persons work
for you on contract basis in his tailoring business,
his reply was- four persons and out of four, Joynal
Mullick and Jahangir Mullick were his employees.
This is what he said:-
“Najrul Islam and Sayed, Volunteers – Besides
these persons there are two other persons
who look after the business in my absence.
They are Jainal Mullick and Zahangir Mullick
volunteers. These two persons are my
employee.”
29. The respondent then was asked another
question, viz., Did he disclose the name of any of his
employee while submitting the declaration form
under the Shops and Establishment Act, his reply
was “no”. This is what he said:-
“I am the owner of the tailoring shop.
Volunteers – fresh declaration has been
submitted about 10/12 days back. In that
declaration I have not declared that these
two persons Jainal and Zahangir are my
employees.”
12
30. The respondent was then asked last pointed
question - whether Joynal Mullick is doing business
in the suit shop. To this, his reply was that Joynal
Mullick is his business partner. This is what he
said:-
“I obtained the trade license from the
Corporation of Calcutta for the business
carried in the shop showing Jainal Mullick
and Zahangir Mullick as my partners in the
business. It is not a fact that Jainal and
Zahangir are not my employees.”
31. Joynal Mullick then in his evidence said that
he is an employee of the respondent for the last 7/8
years and whatever the respondent (his owner) tells
him to do, he does it while sitting in the suit shop.
He stated that, in his presence, the respondent had
constructed "Macha" in the suit shop. He said that
he joined the business under the name "New India
Tailor".
32. Keeping in view the statements of the
respondent and Joynal Mullick, the question arises
13
as to whether a case of sub-letting and parting of
possession of the suit shop in favour of Joynal
Mullick, whether whole or in part, is made out.
33. Section 13(1)(a) of the Act deals with the
ground of sub-letting and provides that where the
tenant or any person residing in the premises let to
the tenant without the previous consent in writing
of the landlord transfers, assigns or sublets in
whole or in part the premises held by him, then it is
a ground for the tenant’s eviction from the tenanted
premises.
34. In our considered opinion, keeping in view the
pleadings and the nature of the evidence adduced
by the parties, the ground of sub-letting, as
contemplated under Section 13(a) ibid, is made out.
This we say for the following reasons.
14
35. In the first place, we find that the respondent
(tenant), since inception, was taking inconsistent
stand on the question of sub-letting.
36. To begin with, he denied having sub-let the
suit shop to anyone in his written statement. Then,
contrary to what he alleged in the written
statement, he said in his examination-in-chief that
Joynal Mullick was his employee. Then, again
contrary to this statement, he said, in next breath,
that Joynal Mullick is his partner in tailoring
business.
37. So far as Joynal Mullick is concerned, he
admitted that he has been sitting in the suit shop
for the last 7/8 years but he has been sitting in a
capacity as an “employee” of the respondent.
38. In our opinion, the contradictory stand of the
respondent and that too without any evidence
clearly leads to an inference that the respondent
15
was unable to prove, in categorical terms, as to
which capacity, Joynal Mullick was sitting in the
suit shop - whether as an "employee" or a "business
partner" or in any “other capacity”.
39. It seems that the respondent was not sure as
to what stand he should take to meet the plea of
sub-letting. He, therefore, went on changing his
stand one after the other and could not prove either.
40. In our view, since the respondent had admitted
the presence of Joynal Mullick in the suit shop, the
burden was on him to prove its nature and the
capacity in which he used to sit in the suit shop.
41. In other words, if Joynal Mullick was the
respondent’s employee then, in our view, he should
have proved it by filling a declaration form, which
he had submitted under the Shops and
Establishment Act to the authorities. But it was not
done. Rather he admitted that he did not disclose
16
the name of Joynal Mullick in the declaration form.
That apart, the respondent could have proved this
fact by filing payment voucher, or any other relevant
evidence to show that Joynal Mullick was his
employee and that he used to sit in the suit shop in
that capacity only. It was, however, not done.
42. Second, if Joynal Mullick was a partner of the
respondent in the tailoring business then the
respondent could have proved this fact by filing a
copy of the partnership deed. However, he again
failed to produce the copy of partnership deed. In
this way, he failed to prove even this fact.
43. Now so far as the appellants are concerned,
they appear to have discharged their initial burden
by pleading the necessary facts in Para 4 and then
by proving it by evidence that firstly, they let out the
suit shop to the respondent and secondly, the
respondent has sub-let the suit shop to Joynal
17
Mullick, who was in its exclusive possession
without their consent.
44. In a case of sub-letting, if the tenant is able to
prove that he continues to retain the exclusive
possession over the tenanted premises
notwithstanding any third party’s induction in the
tenanted premises, no case of sub-letting is made
out against such tenant.
45. In other words, the sin qua non for proving the
case of the sub-letting is that the tenant has either
whole or in part transferred or/and parted with the
possession of the tenanted premises in favour of
any third person without landlord's consent.
46. This Court in Bharat Sales Ltd. vs. Life
Insurance Corporation of India (1998) 3 SCC 1,
while dealing with the case of sub-letting succinctly
explained the concept of sub-letting and what are
its attributes.
18
47. Justice Sagir Ahmad, speaking for the Two
Judge Bench, held as under:
“4. Sub-tenancy or sub-letting comes
into existence when the tenant gives up
possession of the tenanted accommodation,
wholly or in part, and puts another person in
exclusive possession thereof. This
arrangement comes about obviously under a
mutual agreement or understanding between
the tenant and the person to whom the
possession is so delivered. In this process,
the landlord is kept out of the scene. Rather,
the scene is enacted behind the back of the
landlord, concealing the overt acts and
transferring possession clandestinely to a
person who is an utter stranger to the
landlord, in the sense that the landlord had
not let out the premises to that person nor
had he allowed or consented to his entering
into possession over the demised property. It
is the actual, physical and exclusive
possession of that person, instead of the
tenant, which ultimately reveals to the
landlord that the tenant to whom the
property was let out has put some other
person into possession of that property. In
such a situation, it would be difficult for the
landlord to prove, by direct evidence, the
contract or agreement or understanding
between the tenant and the sub-tenant. It
would also be difficult for the landlord to
prove, by direct evidence, that the person to
whom the property had been sub-let had paid
monetary consideration to the tenant.
Payment of rent, undoubtedly, is an essential
element of lease or sub-lease. It may be paid
in cash or in kind or may have been paid or
promised to be paid. It may have been paid in
19
lump sum in advance covering the period for
which the premises is let out or sub-let or it
may have been paid or promised to be paid
periodically. Since payment of rent or
monetary consideration may have been made
secretly, the law does not require such
payment to be proved by affirmative evidence
and the court is permitted to draw its own
inference upon the facts of the case proved at
the trial, including the delivery of exclusive
possession to infer that the premises were
sub-let.”
48. In our considered opinion, the aforesaid
principle of law fully applies to the case at hand
against the respondent due to his contradicting
stand and by admitting Joynal Mullick’s presence in
the suit shop but not being able to properly prove
the nature and the capacity in which he was sitting
in the suit shop.
49. In view of the foregoing discussion, we have
formed an opinion that the appellants were able to
prove the case of sub-letting against the
respondent. 
20
50. We cannot thus concur with the reasoning and
the conclusion arrived at by the High Court and
instead prefer to agree with the conclusion of the
Trial Court insofar as it relates to the ground of
sub-letting. In view of this, it is not necessary to
examine the other ground relating to making of
unauthorized construction by the respondent in the
suit shop.
51. In the result, the appeal succeeds and is
allowed. The impugned judgment is set aside and
that of the Trial Court is restored.
52. The respondent is, however, granted three
months’ time to vacate the suit shop, subject to the
respondent filing in this Court a usual undertaking
that he will deposit the entire arrears of rent up to
the date as per the agreed rate within one month
and will also deposit the mesne profits for a period
of three months up to the date of vacation in
21
advance at the agreed rate and would vacate the
suit shop on or before 30.04.2018.
………...................................J.
[R.K. AGRAWAL]


…...……..................................J.
 [ABHAY MANOHAR SAPRE]
New Delhi;
January 25, 2018 

Order 1 Rule 10(2) of the Code in appellants’ ejectment suit.= who claims to be the co-sharer or/and co-owner with the plaintiffs (appellants herein) of the suit property is neither a necessary and nor a proper party in the eviction suit of the appellants against respondent Nos. 2 to 5. In the eviction suit, the question of title or the extent of the shares held by the appellants and respondent No. 1 against each other in the suit premises cannot be decided and nor can be made the subject matter for its determination.= the Lis in the suit is between the appellants on the one hand and respondent Nos. 2 to 5 on the other hand and the decision in the suit would depend upon the question as to whether there exists any relationship of landlord and tenant between the appellants and respondent Nos. 2 to 5 in relation to the suit premises and, if so, whether the grounds pleaded in the plaint for claiming eviction of respondent Nos. 2 to 5 are established or not. For deciding these two main questions, the presence of respondent No. 1 is not necessary.- respondent No. 1 is neither a necessary and nor a proper party in the suit.; whether directly or indirectly, if recorded by the Trial Court touching the question of title over the suit property, would not be binding on respondent No.1 regardless of the outcome of the suit and respondent No. 1 would be free to file an independent civil suit against the appellants for a declaration of his right, title and interest in the suit premises and in any other properties, if so, and claim partition and separate possession of his share by metes and bounds in all such properties.

1
 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.3018 OF 2008
Kanaklata Das & Ors. ….Appellant(s)
VERSUS
Naba Kumar Das & Ors. …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. This appeal is directed against the final
judgment and order dated 21.09.2006 passed by
the High Court of Kolkata in C.O. No.1759 of 2006
whereby the High Court allowed the application filed
by respondent No.1 herein and reversed the
judgment and order dated 15.12.2005 passed by
the Judge, Small Causes Court, Kolkata in
Ejectment Suit No.1615 of 2000 wherein the Trial
Court dismissed the application filed by respondent
No.1 herein under Order 1 Rule 10(2) of the Code of
2
Civil Procedure, 1908 (hereinafter referred to as “the
Code”) for impleadment as Plaintiff in the pending
ejectment suit.
2. The controversy involved in this appeal is short
and it would be clear from the few relevant facts
mentioned hereinbelow.
3. The appellants are the plaintiffs whereas
respondent Nos. 2 to 5 are the defendants in an
Ejectment Suit out of which this appeal arises.
4. The appellants have filed a suit for ejectment
being Ejectment Suit No.1615/2000 against
respondent Nos. 2 to 5 before the Small Causes
Court at Calcutta for their eviction on the grounds
of non-payment of rent, subletting, and bona fide
need of the suit premises for their personal use
under the provisions of the West Bengal Tenancy
Act. Respondent Nos. 2 to 5 have entered
appearance and are contesting the suit which is
pending.
3
5. In the Ejectment Suit, respondent No. 1 herein
filed an application under Order 1 Rule 10(2) of the
Code praying therein that he may be allowed to
become the co-plaintiff along with the appellants.
Respondent No. 1 sought his impleadment alleging
that he is a member of the appellants’ family and
being so, has a right, title and interest not only in
the suit premises but also in other family properties
as one of the co-owners. It is essentially on these
allegations and with a view to protect his interest in
the suit premises, respondent No. 1 sought his
impleadment in the suit.
6. The said application for impleadment made by
respondent No. 1 was dismissed by the Trial Court
by order 15.12.2005(Annexure-P-7) but it was
allowed by the High Court by the impugned order
giving rise to filing of this appeal by way of special
leave in this Court against the order of the High
Court by the appellants (plaintiffs).
4
7. Therefore, the short question, which arises for
consideration in this appeal, is whether the High
Court was justified in allowing the application filed
by respondent No. 1 under Order 1 Rule 10 (2) of
the Code thereby permitting him to become
co-plaintiff in the Ejectment Suit filed by the
appellants against respondent Nos. 2 to 5 for their
eviction from the suit premises.
8. Heard Mr. Ranjan Mukherjee, learned counsel
for the appellants and respondent No.1, who
appeared in-person.
9. Having heard the learned counsel for the
appellants and respondent No. 1, in-person, who
alone is the contesting respondent in this appeal
and on perusal of the record of the case, we are
inclined to allow the appeal and while setting aside
the impugned order of the High Court, restore the
order of the Trial Court with observations
hereinbelow.
5
10. In other words, we are inclined to dismiss the
application filed by respondent No. 1 under Order 1
Rule 10(2) of the Code in appellants’ ejectment suit.
11. There are some well-settled principles of law
on the question involved in this appeal, which need
to be taken into consideration while deciding the
question arose in this appeal. These principles are
mentioned infra.
12. First, in an eviction suit filed by the plaintiff
(Landlord) against the defendant(Tenant) under the
State Rent Act, the landlord and tenant are the only
necessary parties.
13. In other words, in a tenancy suit, only two
persons are necessary parties for the decision of the
suit, namely, the landlord and the tenant.
14. Second, the landlord (plaintiff) in such suit is
required to plead and prove only two things to
enable him to claim a decree for eviction against his
tenant from the tenanted suit premises. First, there
exists a relationship of the landlord and tenant
6
between the plaintiff and the defendant and second,
the ground(s) on which the plaintiff-landlord has
sought defendant’s-tenant's eviction under the Rent
Act exists. When these two things are proved,
eviction suit succeeds.
15. Third, the question of title to the suit premises
is not germane for the decision of the eviction suit.
The reason being, if the landlord fails to prove his
title to the suit premises but proves the existence of
relationship of the landlord and tenant in relation to
the suit premises and further proves existence of
any ground on which the eviction is sought under
the Tenancy Act, the eviction suit succeeds.
16. Conversely, if the landlord proves his title to
the suit premises but fails to prove the existence of
relationship of the landlord and tenant in relation to
the suit premises, the eviction suit fails. (See-Dr.
Ranbir Singh vs. Asharfi Lal, 1995(6) SCC 580).
17. Fourth, the plaintiff being a dominus litis
cannot be compelled to make any third person a
7
party to the suit, be that a plaintiff or the defendant,
against his wish unless such person is able to prove
that he is a necessary party to the suit and without
his presence, the suit cannot proceed and nor can
be decided effectively.
18. In other words, no person can compel the
plaintiff to allow such person to become the
co-plaintiff or defendant in the suit. It is more so
when such person is unable to show as to how he is
a necessary or proper party to the suit and how
without his presence, the suit can neither proceed
and nor it can be decided or how his presence is
necessary for the effective decision of the suit.
(See-Ruma Chakraborty vs. Sudha Rani Banerjee
& Anr., 2005(8) SCC 140)
19. Fifth, a necessary party is one without whom,
no order can be made effectively, a proper party is
one in whose absence an effective order can be
made but whose presence is necessary for a
complete and final decision on the question involved
8
in the proceeding. (See-Udit Narain Singh
Malpaharia vs. Additional Member Board of
Revenue, Bihar & Anr., AIR 1963 786)
20. Sixth, if there are co-owners or co-landlords of
the suit premises then any co-owner or co-landlord
can file a suit for eviction against the tenant. In
other words, it is not necessary that all the
owners/landlords should join in filing the eviction
suit against the tenant. (See-Kasthuri
Radhakrishnan & Ors. vs. M. Chinniyan & Anr.,
2016(3) SCC 296)
21. Keeping in mind the aforementioned well
settled principles of law and on examining the
legality of the impugned order, we find that the
impugned order is not legally sustainable and hence
deserves to be set aside.
22. In our considered opinion, respondent No. 1,
who claims to be the co-sharer or/and co-owner
with the plaintiffs (appellants herein) of the suit
property is neither a necessary and nor a proper
9
party in the eviction suit of the appellants against
respondent Nos. 2 to 5. In other words, such
eviction suit can be decreed or dismissed on merits
even without the impleadment of respondent No.1.
23. In the eviction suit, the question of title or the
extent of the shares held by the appellants and
respondent No. 1 against each other in the suit
premises cannot be decided and nor can be made
the subject matter for its determination.
24. The reason being that this is not a suit
between the appellants (plaintiffs) and respondent
No.1 where their inter se rights relating to the suit
premises can be gone into but rather is an
ejectment suit filed by the appellants against
respondent Nos. 2 to 5 for their eviction from the
suit premises.
25. Therefore, the Lis in the suit is between the
appellants on the one hand and respondent Nos. 2
to 5 on the other hand and the decision in the suit
would depend upon the question as to whether
10
there exists any relationship of landlord and tenant
between the appellants and respondent Nos. 2 to 5
in relation to the suit premises and, if so, whether
the grounds pleaded in the plaint for claiming
eviction of respondent Nos. 2 to 5 are established or
not. For deciding these two main questions, the
presence of respondent No. 1 is not necessary.
26. For these reasons, we are of the considered
opinion that respondent No. 1 is neither a necessary
and nor a proper party in the suit.
27. We, however, make it clear that any finding
whether directly or indirectly, if recorded by the
Trial Court touching the question of title over the
suit property, would not be binding on respondent
No.1 regardless of the outcome of the suit and
respondent No. 1 would be free to file an
independent civil suit against the appellants for a
declaration of his right, title and interest in the suit
premises and in any other properties, if so, and
11
claim partition and separate possession of his share
by metes and bounds in all such properties.
28. In view of the foregoing discussion, the appeal
succeeds and is allowed. The impugned order is set
aside and the order of the Trial Court is restored.
29. As a consequence, the application filed by
respondent No. 1 under Order 1 Rule 10(2) of the
Code in the aforementioned ejectment suit is
dismissed.
30. The Trial Court is directed to decide the
ejectment suit on merits in accordance with law
expeditiously.

………...................................J.
 [R. K. AGRAWAL]

…...……..................................J.
 [ABHAY MANOHAR SAPRE]
New Delhi;
January 25, 2018 

Section 306 and Section 498-A of IPC- modify the sentence of the appellants appellant No.1-mother-in-law has undergone total jail sentence for a period of 9 months or so out of the jail sentence awarded to her, during the pendency of the appeal. It is also not in dispute that she is now around 75 years of age and is not keeping well. It is also not in dispute that she is presently on bail granted by this Court.-So far as appellant No.2-husband is concerned, he too has undergone around 1 year 1 month approx.- appellant No. 2 has remarried with a girl from the family of deceased, i.e., the deceased's aunt's daughter and since then the relations between the two families have become quite cordial. = So far as appellant No. 1-mother-in-law is concerned, we modify her sentence and reduce the same to already undergone. In this view of the matter, appellant No. 1-mother-in-law is not required to undergo any more jail sentence.; So far as appellant No. 2-husband of the deceased, Rekhabai, is concerned, his sentence is reduced from 5 years to 2 years under Section 306 IPC. So far as sentence of 2 years awarded under Section 498-A is concerned, it is upheld. The fine amount awarded in both is also upheld. Both the sentences are to run concurrently.

1
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1224 OF 2008
Mst. Anusuiya @ Saraswatibai
& Anr. ….Appellant(s)
VERSUS
State of Madhya Pradesh ….Respondent(s)

J U D G M E N T
Abhay Manohar Sapre, J.
1) This appeal is filed by the two accused
persons against the final judgment and order dated
14.02.2007 passed by the High Court of Madhya
Pradesh at Jabalpur in Criminal Appeal No. 419 of
1992 whereby the High Court partly allowed the
appeal and while upholding the judgment dated
02.04.1992 passed by the First Additional Sessions
Judge, Chhindwara in Sessions Trial No.3/91
2
convicting the appellants-accused under Sections
306 and 498A of the Indian Penal Code, 1908
(hereinafter referred to as “IPC”) reduced the period
of their sentence awarded under Section 306 IPC
from Seven years to five years and a fine of
Rs.1000/- each, in default of payment of fine, to
further undergo RI for three months and under
Section 498A, from three years to two years. Both
the sentences to run concurrently.
2) Brief facts:
The case of the prosecution is that the
marriage of Rekhabai(deceased) and
Chandrashekhar (appellant No.2) was performed on
12.05.1989, six months prior to her death.
Appellant No.1 is the mother-in-law of the deceased.
3) On 21.11.1989, a Marg Report was recorded at
Chandameta Police Station that Rekhabai was
brought dead in W.C.L. Hospital Bandkuhee by
3
Gajanand. After preparing the inquest
panchanama(Ex.P/8), the dead body was sent for
post mortem. Dr. R.K. Basor(PW-8) performed the
post mortem and submitted the report (Ex.P/10).
According to PW-8, the death of Rekhabai was quite
unnatural. Thereafter the viscera collected from the
dead body was sent to Forensic Science Laboratory
for Chemical examination.
3) On 25.11.1989, Saligram (PW-1), father of
Rekhabai(deceased), submitted a written report to
the police station, Chhindwara mentioning therein
that her daughter had committed suicide because
her in-laws were harassing her for not bringing
dowry in marriage and demanding one Fan and
Rs.500/- from her parents. He further said that on
19.11.1989, one day before the death of Rekhabai,
his daughter and son-in-law came to his house and
stayed there for the night and on the next morning,
4
his son-in-law again demanded a Fan and Rs.500/-
from him and on not being given the same, he
started quarreling and went away saying that
consequence would be heard of the next day. On
the next day, when Rekhabai suddenly became ill,
Surendra Pathak(CW-1) examined her on the
request of Chandrashekhar and advised him to take
her to the Hospital. On the way to Hospital,
Rekhabai died.
4) On 30.03.1990, report of the Forensic Science
Laboratory was received mentioning therein that the
death of Rekhabai was caused by consuming rat
poison.
5) After investigation, charge sheet was filed and
by order dated 29.12.1990, the case was committed
to the Court of Sessions. The accused
persons(appellants) denied the charges.
5
6) By judgment dated 02.04.1992, the First
Additional Sessions Judge, Chhindwara convicted
the appellants for the offences punishable under
Sections 306 and 498A IPC and sentenced both of
them under Section 306 to undergo rigorous
imprisonment of seven years and a fine of
Rs.1000/- each and in default of payment of fine, to
undergo further rigorous imprisonment for six
months. So far as the sentence under Section 498A
was concerned, both the appellants were sentenced
to undergo rigorous imprisonment for three years.
The sentences were to run consecutively.
7) Challenging the judgment of the Trial Court,
the appellants (accused) filed appeal before the High
Court.
8) The High Court, by impugned judgment dated
14.02.2007, partly allowed the appeal, upheld the
conviction but modified the sentence awarded to the
6
appellants under Section 306 from Seven years to
five years and a fine of Rs.1000/- each, in default,
to further undergo RI for three months and so far as
sentence under Section 498A was concerned, it was
modified from three years to two years. Both the
sentences were to run concurrently.
9) Against the judgment of the High Court, the
appellants (accused) have filed this appeal by way of
special leave before this Court.
10) Heard Mr.Pradeep Misra, learned counsel for
the appellants and Mr. B.N. Dubey, learned counsel
for the respondent.
11) Having heard the learned counsel for the
parties and on perusal of the record of the case,
though we uphold the conviction of the appellants
under both the Sections, namely, Section 306 and
Section 498 IPC, but having regard to the peculiar
facts and circumstances of the case as set out
7
hereinbelow, modify the sentence and accordingly
reduce the period of sentence of both the appellants
as indicted below.
12) We have perused the evidence with a view to
find out as to whether the prosecution was able to
prove their case under the twin Sections, namely,
Sections 306 and 498-A of the IPC, which resulted
in death of Rekhabai and, if so, whether the two
Courts below were justified in convicting both the
appellants and awarding to them the sentence as
detailed above.
13) Having gone through the evidence and
examining the findings of the two Courts on all the
material issues involved in the case, we are of the
considered opinion that no fault can be found in the
manner in which both the Courts below appreciated
the evidence so also no fault can be found in their
8
respective reasoning which resulted in convicting
the appellants.
14) It is a settled principle of law that if there is no
perversity noticed in the findings of the Courts
below and more so when the findings of the two
Court below are of concurrence then such findings
would be binding on this Court while hearing the
appeal under Article 136 of the Constitution. Such
is the case here.
15) It is not in dispute that Rekhabai died within
six months from the date of her marriage. The date
of marriage is 12.05.1989 whereas the death
occurred on 21.11.1989. It is not in dispute that
Rekhabai died due to consuming the poison. It is
also not in dispute that the two Courts, on
appreciating the evidence, recorded a categorical
finding that appellant No. 1, mother-in-law and the
husband (appellant No. 2) had demanded dowry
9
from the parents of the deceased and when they
did not accede to the dowry demand, appellant
No.2- husband threatened the father of the
deceased and deceased herself of the dire
consequences for not acceding to his demand of
dowry.
16) It has also come in the evidence of the
deceased's father (PW-1), which found acceptance to
the two Courts and, in our opinion, rightly that the
appellants used to beat the deceased soon after
their marriage till her death.
17) In the light of the aforementioned findings of
the two Courts below to which we concur, a case
under Section 306 and Section 498-A IPC was
rightly held made out against appellant No. 1-
mother-in-law and appellant No. 2-husband.
18) Indeed when an unnatural death of the
married woman takes place within seven years of
10
her marriage then a presumption, as envisaged in
Section 113-A of the Evidence Act,1972 against the
husband and his relatives is made out. In this case,
the same was duly made out with the aid of
evidence adduced against the appellants. The
appellants, however, in their defense failed to rebut
the presumption and whatever evidence they
adduced in defense was not held enough to give
them the benefit of doubt or clean acquittal.
19) We, therefore, uphold the conviction of both
the appellants under Section 306 and Section 498-A
of IPC
20) This takes us to the next question about the
award of sentence to the appellants under both the
Sections. We may state here that there is no appeal
filed by the State for enhancement of the period of
sentence. In other words, the State or/and
11
Complainant accepted the jail sentence, which was
awarded to the appellants by the Courts below.
21) It is not in dispute that the appellant
No.1-mother-in-law has undergone total jail
sentence for a period of 9 months or so out of the
jail sentence awarded to her, during the pendency of
the appeal. It is also not in dispute that she is now
around 75 years of age and is not keeping well. It is
also not in dispute that she is presently on bail
granted by this Court.
22) So far as appellant No.2-husband is
concerned, he too has undergone around 1 year 1
month approx.
23) Apart from what is taken note of above,
learned counsel for the appellants made a
statement at the bar that appellant No. 2 has
remarried with a girl from the family of deceased,
i.e., the deceased's aunt's daughter and since then
12
the relations between the two families have become
quite cordial.
24) Taking into consideration the totality of
aforementioned facts and, particularly the
circumstances, we are inclined to modify the
sentence of the appellants as under.
25) So far as appellant No. 1-mother-in-law is
concerned, we modify her sentence and reduce the
same to already undergone. In this view of the
matter, appellant No. 1-mother-in-law is not
required to undergo any more jail sentence.
26) So far as appellant No. 2-husband of the
deceased, Rekhabai, is concerned, his sentence is
reduced from 5 years to 2 years under Section 306
IPC. So far as sentence of 2 years awarded under
Section 498-A is concerned, it is upheld. The fine
amount awarded in both is also upheld. Both the
sentences are to run concurrently.
13
27) In view of this, appellant No. 2, who is also on
bail by the order of this Court, has to surrender to
undergo remaining period of jail sentence awarded
to him by this Court. The bail granted to appellant
No. 2 is, therefore, cancelled to enable him to
surrender and undergo remaining period of jail
sentence awarded by this Court.
28) With the aforementioned modification, the
appeal stands allowed in part and the impugned
judgment stands modified accordingly to the extent
indicated above.
………...................................J.
[R.K. AGRAWAL]


…...……..................................J.
 [ABHAY MANOHAR SAPRE]
New Delhi;
January 25, 2018

the Police Commissioner, Bangalore city was required to issue the Order in the year 2005 called "The Licensing and Controlling of Places of Public Entertainment (Bangalore City) Order 2005" (hereinafter referred to as “the Order 2005”) under Section 31 of the Act The Order 2005 with which we are concerned in this appeal was passed by the Commissioner of Police with a view to regulate the running and the functioning of the restaurants providing the facility of displaying “Live Band Music”, “cabaret dance” and “discotheque” in the restaurants.- challenged as unconstitutional - Apex court held the order 2005 is valid one

1
 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.4741 OF 2007
Karnataka Live Band Restaurants
Association ….Appellant(s)
VERSUS
State of Karnataka & Ors. …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) This appeal is directed against the final
judgment and order dated 19.04.2007 passed by
the High Court of Karnataka at Bangalore in Writ
Appeal No. 556 of 2007 (GM-POLICE) whereby the
High Court dismissed the appeal filed by the
appellant herein praying for setting aside the order

2
dated 09.02.2007 passed by the Single Judge of the
High Court in Writ Petition No.27523 of 2005.
2) In order to appreciate the controversy involved
in the appeal, it is necessary to set out the facts
infra in detail including the background facts, which
led to filing of this appeal.
3) The appellant is the Association registered
under the Karnataka Societies Registration Act,
1960 and Rules framed thereunder. The Association
is formed by the persons, who are engaged in the
business of running the restaurants in various
parts of the city of Bangalore (now Bengaluru).
4) In addition to serving food items/beverages to
their customers, the owners of these restaurants
also entertain their customers by displaying "Live
Band Music" in their restaurants. Indeed, the
purpose of providing the facility of "Live Band
Music" is to attract more and more customers in the
restaurants. In some restaurants, the “cabaret

3
dance” and “discotheque” are also performed to
attract the customers.
5) The facility of “Live Band Music" and other two
items in the restaurants gave a cause to the
dispute, which led to filing of the writ petitions in
the High Court of Karnataka in the year 1989 and
later in appeal to this Court by the
appellant-Association and some individual
restaurants’ owners against the State. The dispute
arose with the following background.
6) The Karnataka Police Act, 1963 (hereinafter
referred to as “the Act”), apart from dealing with
several other matters pertaining to police
force/administration, also deals with the subject
"Police Regulations" in Chapter IV of the Act.
7) Section 31, which falls in Chapter IV, deals
with power to make, alter or rescind orders issued
for regulation of traffic and for preservation of order
in public places. This Section empowers the

4
Commissioner and the District Magistrate to make
orders, alter or rescind subject to a caveat that it
should not be inconsistent with the provisions of
the Act.
8) The Commissioner and the District Magistrate
are empowered to regulate the traffic and to
preserve and control the public places. Section 31
(a) to (z) has specified different areas for this
purpose. It is, in exercise of this power, the
Commissioner/District Magistrate of Bengaluru
issued an order in the year 1989 called "Licensing
and Controlling of Places of Public Amusements
(Bangalore City) Order, 1989" (hereinafter referred
to as "the Order 1989"). The Commissioner then
called upon the restaurant owners, who were
displaying "Live Band Music" in their restaurants to
obtain the licences under Order 1989 for running
their restaurants and for displaying the Live Band
Music.

5
9) The restaurants owners felt aggrieved and filed
the writ petitions in the High Court of Karnataka.
According to them, their restaurants wherein they
were displaying "Live Band Music" for entertaining
their customers, was not an activity covered under
Order 1989. It was contended that these
restaurants could not be treated as a place of
"Public Amusement" as defined under Section 2(14)
of the Act, but at best could be treated as a place of
“Public Entertainment” as defined under Section
2(15) of the Act. In other words, the contention of
the writ petitioners was that the applicability of the
Order 1989 was confined only to the places of
"Public Amusement" and since the restaurants were
displaying Live Band Music, their place could not be
termed as the place of public amusement as defined
under Section 2(14) of the Act. It is for this reason,
the provisions of the Order 1989 could not be
extended to their restaurants.

6
10) It was contended that there lies a distinction
between the activities falling in "Public Amusement"
and those falling in "Public Entertainment" as is
clear from the two expressions defined in Section 2
(14) and Section 2 (15) of the Act.
11) The Writ Court (Single Judge) finding
substance in the writ petitioners’ aforementioned
contention allowed the writ petitions and quashed
the order of the Commissioner. However, the
Division Bench in an appeal filed by the State set
aside the order of the Single Judge and while
allowing the State’s appeal dismissed the writ
petitions. The writ petitioners felt aggrieved and filed
appeals by way of special leave before this Court
being Civil Appeal Nos. 1857-1858 of 2000.
12) By order dated 28.11.2002 (Annexure P-3),
this Court allowed the appeals and restored the
order of the Single Judge. It was held that the writ
petitioners’ premises, i.e., restaurants displaying

7
Live Band Music is not a place of "Public
Amusement" but it is a place of "Public
Entertainment". It was held that the Order 1989
was, therefore, not applicable to the writ petitioners’
(appellants’) restaurants for regulating the activities
carried on therein as the same fell outside the
purview of the Order 1989. The operative part of the
order reads as under:
“In view of the aforesaid conclusion of ours,
we are of the considered opinion that the
appellants’ premises which is a “place of
public entertainment” cannot be held to be
also a “place of public amusement” merely
because a live band is also provided in the
place of entertainment where food and drinks
are served and consequently the provisions of
the Licensing Order will have no application
to such premises. The impugned judgment of
the Division Bench of the High Court is set
aside and these appeals are accordingly
allowed.”
13) It is with this factual background, the Police
Commissioner, Bangalore city was required to issue
the Order in the year 2005 called "The Licensing
and Controlling of Places of Public Entertainment
(Bangalore City) Order 2005" (hereinafter referred to

8
as “the Order 2005”) under Section 31 of the Act. It
is this order which gave rise to second round of
litigation in the High Court and now in this appeal.
14) The Order 2005 with which we are concerned
in this appeal was passed by the Commissioner of
Police with a view to regulate the running and the
functioning of the restaurants providing the facility
of displaying “Live Band Music”, “cabaret dance”
and “discotheque” in the restaurants. The details of
the Order 2005 would be mentioned at a later stage
while dealing with the issues.
15) The appellant-Association felt aggrieved by the
Order 2005 filed writ petitions and challenged its
legality and validity. The Single Judge was of the
view that since the Commissioner did not comply
with the procedure laid down in Section 31 of the
Act before issuing the Order inasmuch as he did not
invite any objections from the public at large, the
Order 2005 is bad in law.

9
16) The Single Judge, accordingly, disposed of the
writ petitions and directed the Commissioner of
Police to treat the Order 2005 impugned in the writ
petitions to be the “draft Order” and granted an
opportunity to the public at large to file their
objections as provided in the Act to the proposed
draft Order 2005 and then to proceed in the case in
accordance with law. The Single Judge further held
that since Live Band Music was not being displayed
for a long period in the restaurants, no prejudice
would be caused to the restaurants’ owners, if they
do not display the Live Band Music for a further
period of two months. The Commissioner was,
accordingly, directed to decide the objections, if any,
filed by the parties concerned within two months
and then to proceed in accordance with law.
17) Dissatisfied with the order of the Single Judge,
the appellant-Association and many other
restaurants owners filed intra Court appeal before

10
the Division Bench. The Division Bench dismissed
the appeal. The appellant-Association felt aggrieved
and carried the matter in appeal by special leave
before this Court.
18) This Court by order 02.12.2005 allowed the
appeal in part and permitted the appellant members
to run their restaurants with display of Live Band
Music till Rules are framed. This Court, however,
imposed three conditions on the restaurants’
owners. First, the proposed display of entertainment
would not be used to promote the public gambling
or the game house, it shall not be used for
prostitution and no narcotic substance will be
allowed to be consumed in the restaurants. Second,
the restaurants owners will not organize or allow
any performance or shows, which are immoral,
obscene or indecent and will ensure that there is no
obscenity or indecency in dress, movement or
gesture and will ensure that the performers does

11
not expose their person; and third, the restaurant
owners shall not permit any obscene or
objectionable posters or pictures to be exhibited in
their restaurants. The owners of the restaurants
also gave the undertaking that they would not allow
these three things to occur in their restaurants.
19) The Commissioner then issued the impugned
Order 2005 on 09.12.2005 (Annexure-P-8) after
ensuring the compliances as directed. This gave rise
to filing of the writ petition by the
appellant-Association questioning its constitutional
validity in the High Court of Karnataka.
20) The challenge to the Order 2005 was based
mainly on two grounds. First, the Licensing Order,
2005 violates Article 14 of the Constitution and
being discriminatory in nature, is not legally
sustainable. Second, it infringes the appellant's
fundamental right guaranteed under Article 19(1)(g)

12
of the Constitution and hence ultra vires the
provisions of the Constitution.
21) The Single Judge repelled both the
aforementioned submissions of the
appellant-Association and by order dated
09.02.2007 dismissed the appellant's writ petition.
As a consequence thereof, the Order 2005 was
upheld.
22) The appellant felt aggrieved and filed the writ
appeal before the Division Bench of the High Court.
The Division Bench concurred with the reasoning
and conclusion of the Single Judge and, by
impugned judgment, dismissed the appeal.
23) The writ petitioners felt aggrieved and filed the
present appeal by way of special leave in this Court.
This is how the issue has reached to this Court to
examine the legality and correctness of the Order
2005 issued by the Commissioner under Section 31
of the Act.

13
24) Heard Mr. S.N. Bhat, learned counsel for the
appellant and Mr. V.N. Raghupathy, learned
counsel for the respondents.
25) Learned Counsel for the appellant (writ
petitioner/restaurant owners’ Association) while
assailing the legality and correctness of the
reasoning and the conclusion of the Single Judge
(writ Court) and the Division Bench, reiterated the
same submissions, which were unsuccessfully
urged by the appellant before the two Courts below.
26) Elaborating his submissions, learned counsel
contended that the activity of displaying Live Band
Music in the restaurants with which we are
concerned in this appeal is not an activity of a
nature, which can be brought within the four
corners of Section 31 of the Act so as to regulate its
functioning by the impugned Order 2005.
27) In other words, the submission was that it is
not necessary for the appellant to take licence for

14
displaying the Live Band Music in their restaurants
and such activity can be performed in the
restaurants even without the licence under the
Order 2005, as was being done by them till 2005.
28) His submission was that insistence of the
Commissioner of Police on the restaurant owners to
obtain the licence under Clause 3 of the Order 2005
violates the principle of equality enshrined in Article
14 of the Constitution, as also it infringes their
fundamental right guaranteed under Article 19 (1)(g)
of the Constitution to practice any profession, or to
carry on any occupation, trade or business.
29) Learned counsel urged that the conditions
specified in the Order 2005 to obtain the licence are
unworkable, unreasonable and harsh and thus are
incapable of being implemented. The conditions,
according to the learned counsel, also creates a
discrimination between the two alike restaurants
without any reasonable classification as it requires

15
one restaurant owner to obtain the licence and
exclude other similar restaurant owners from
obtaining the licence.
30) Learned counsel urged that since the
restrictions imposed on the appellant while running
the restaurants are found unworkable or/and
unreasonable, it amounts to infringement of their
fundamental right guaranteed under Article 19(1)(g)
of the Constitution.
31) Learned counsel then elaborated the
aforementioned submissions by referring to various
clauses of the Order 2005 with a view to show their
unreasonableness and harshness in implementation
and contended that the Order 2005 deserves to be
quashed as being unconstitutional.
32) Learned counsel for the appellant filed a
compilation of the cases in support of his
contentions. These decisions are Bijoe Emmanuel
& Ors. vs. State of Kerala & Ors. (1986) 3 SCC

16
615, Secretary, Ministry of Information &
Broadcasting, Govt.of India & Ors. vs. Cricket
Association of Bengal & Ors. (1995) 2 SCC 161,
Tata Press Ltd. vs. Mahanagar Telephone Nigam
Ltd., (1995) 5 SCC 139, Mrs. Usha Uthup vs. State
of West Bengal & Ors., AIR 1984 Cal.268, Sakal
Papers (Pvt.) Ltd. vs. U.O.I., AIR 1962 SC 305,
Indian Express Newspapers (Bombay) Pvt. Ltd. &
Ors. vs. U.O.I. & Ors. (1985) 1 SCC 641, Express
Newspaper(P) Ltd. & Anr. Vs. U.O.I. & Ors. AIR
1958 SC 578, Life Insurance Corpn. of India vs.
Manubhai D. Shah, (1992) 3 SCC 637, R.
Rajagopal @ R.R. Gopal & Anr. Vs. State of T.N. &
Ors., (1994) 6 SCC 632, K.A. Abbas vs. U.O.I. &
Anr. (1970) 2 SCC 780, Mohd. Faruk vs. State of
M.P. & Ors. (1969) 1 SCC 853, Dharam Dutt &
Ors. vs. U.O.I. & Ors. (2004) 1 SCC 712, Cellular
Operators Asson. Of India & Ors. vs. TRAI & Ors.
(2016) 7 SCC 703, M/s Dwarka Prasad Laxmi

17
Narain vs. State of U.P. & Ors., AIR 1954 SC 224,
State of Maharashtra & Anr. vs. Indian Hotel &
Restaurants Asson. & Ors. (2013) 8 SCC 519,
People’s Union for Civil Liberties & Anr. vs.
U.O.I. & Anr. (2013) 10 SCC 1, Raja Video Parlour
& Ors. vs. State of Punjab & Ors. (1993) 3 SCC
708, M/s Noorulla Ghazanfarulla vs. Municipal
Board of Aligarh & Ors. (1982) 1 SCC 484, Andhra
Industrial Works, A.P. vs. Chief Controller of
Imports & Ors., AIR 1974 SC 1539, Dr. Ram
Manohar Lohia vs. State of Bihar & Anr. AIR
1966 SC 740, Delhi Cloth & General Mills Co. Ltd.
etc. vs. U.O.I. Etc., (1983) 4 SCC 166, Illachi
Devi(D) by L.Rs. & Ors. vs. Jain Society,
Protection of Orphans India & Ors., (2003) 8 SCC
413, M.J. Sivani & Ors. vs. State of Karnataka &
Ors., (1995) 6 SCC 289, Indulal K. Yagnik v. State
& Ors. AIR 1963 Guj. 259 and Saia vs. People of
State of New York, 334 US 558 (1948).

18
33) In reply, learned counsel for the respondent
(State) supported the reasoning and conclusion
arrived at in impugned judgment and contended
that the appeal has no merit.
34) Before we proceed to examine the various
submissions urged by the learned counsel for the
parties, it is apposite to take note of the relevant
provisions of the Act and the Order 2005, which
have a bearing over the controversy.
35) Section 2 (14) of the Act defines the expression
"Place of Public Amusement" whereas Section 2(15)
defines the expression "Place of Public
Entertainment". As mentioned above, Section 31
gives power to the Commissioner of the Police and
the District Magistrate to make orders for regulation
of traffic and for preservation of order in public
places etc. Clause (w) of Section 31 deals with
licensing or controlling places of public amusement
or entertainment whereas clause (x) deals with

19
licensing or controlling with such exceptions as may
be specified, the musical, dancing, mimetic or
theatrical or other performances for public
amusement including melas and tamashas.
36) Clause 2 of the Order 2005 defines certain
expressions such as "Cabaret", "Discotheque",
"Educational Institution", "Live Band", "Religious
Institution". Clause 3 deals with obtaining of the
licence. Clause 4 deals with the application for
licence. Clause 5 gives power to the licensing
authority to make inspection of the premises.
Clause 7 deals with grant or refusal of licence.
Clause 8 deals with the seating arrangements in the
premises in question. Clause 9 deals with Notice
Board. Clause 10 deals with renewal of licence.
Clause 11 deals with termination of licence. Clause
12 deals with prohibition of change of the name.
Clause 13 deals with power to stop music. Clause
14 deals with suspension of licence. Clause 15 deals

20
with procedure for cancellation of licence. Clause 16
deals with inspection of licenced premises. Clause
17 deals with notice to the licensing authority and
clause 18 deals with licence fees.
37) Relevant Sections of the Act and the clauses of
the Order 2005 need reproduction in verbatim infra.
Section 2(14) of the Act
“(14) "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 and includes a race
course, circus, theatre, music hall, billiard
room, bagatelle room, gymnasium, fencing
school, swimming pool or dancing hall;
Section 2(15)
(15) "place of public entertainment" means
any place to which the public are admitted
and where any kind of food or drink is
supplied for consumption in 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;”

21
Section 31
Section 31 - 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,--
Clause (w)
(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;
Clause (x)
(x) (i) licensing or controlling with such
exceptions as may be specified, the musical,
dancing, mimetic, or 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
general public, the employment of artists,
and the conduct of the artists and the
audience at such performances;
(iii) prior scrutiny of such performance by a
Board appointed by the Government or by an
Advisory Committee appointed by the
Commissioner or the District Magistrate in
this behalf;

22
(iv) regulating the hours during which and the
places at which such performances may be
given;”
Clause 2 of Order 2005
2. Definitions:
b) ‘Cabaret’ means a form of dance
performed in a place of public entertainment
by dancers or artists or any other person as a
part of musical entertainment;
d) ‘Discotheque’ means a facility provided
at a place of public entertainment to
customers or patrons for singing or dancing
of whatever form or both;
j) ‘Live band’ means music, live or
recorded, provided at a place of public
entertainment, whether or not accompanied
by any form of dancing including cabaret.
Clause 3
3. Obligation to obtain a Licence:- No person
shall open or maintain a place of public
entertainment like live band, cabaret,
discotheque without obtaining a licence
under the provisions of this Order from the
Licensing Authority:
Providing that no such licence shall be
necessary for places of public entertainment
like refreshment room, eating house, coffee
house, boarding house, lodging house, hotel,
tavern or shop where wine, beer, spirit,
arrack or any other kind of liquor, intoxicant
or any kind of food or drink is supplied to the
public for consumption on the basis of a valid
licence obtained under the relevant
provisions applicable for establishing and
maintaining such places of public
entertainment and also supplying the
abovementioned things or services and where
live band, cabaret or discotheque or any

23
other activity of a similar nature is not
performed:
Provided further that no such licence
shall also be necessary to conduct
Yakshagana, bayalata (field drama),
Bharathanatyam, Folk Art, music recital,
vocal or instrumental like Veena, Mrudana
etc.
Clause 4
4. Application for Licence: (1) Every person
applying for a licence to maintain a place of
public entertainment shall make an
application in form No.1 along with the
documents specified therein and his three
recent photographs.
(2) An application can be obtained from the
Licensing Authority on payment of the
specified fee under clause 18 of this Order.
(3) While submitting the application, the
applicant shall appear in person before the
Designated Authority and satisfy him that all
the required information and documents
have been furnished along with the
application.
Clause 5
5. Inspection of the premises- The Licensing
Authority or any officer not below the
rank of Inspector of Police, as may be
authorized by the Licensing Authority
may for the purpose of granting licence, if
necessary, hold an inspection of the site
or premises. The Licensing Authority or
the Officer so authorized may, if need be,
seek assistance of any other authority or
authorities during such inspection.

24
Clause 7
7. Grant or refusal of Licence: (1) The
Licensing Authority shall while deciding to
grant or refuse a licence under this Order
have regard to the following aspects, namely:
(a) the interest of public in general;
(b) the status and antecedents of the
applicant;
(c) availability of parking place
commensurate with the seating capacity;
(d) the possible adverse impact on law and
order;
(e) vicinity of the place to educational or
religious institutions. For this purpose
vicinity shall mean within a distance of
200(two hundred) metres;
(f) that the entertainment does not in any
way incite religious feelings;
(g) that the materials used for the structure
do not pose any kind of fire hazard;
(h) that the proposed entertainment does not
promote public gambling or the premises
shall not be used a gaming house or does not
encourage prostitution or allow the use of
narcotic substances or permit any other
illegal activity;
(i) that the licensee shall not organize or
allow performance of shows which are
immoral, obscene or indecent and ensure
that there is no obscenity or indecency in
dress, movement or gesture or that the
performers indecently expose their person;
(j) the licensee shall not permit any obscene
or objectionable posters or pictures to be
exhibited;

25
(k) that the proposed premises do not cause
obstruction, inconvenience, annoyance, risk,
danger or damage to the residents or to
passerby of such premises;
(l) that all adequate precautions have been
taken in the premises in respect of which the
licence is to be granted to provide for the
safety, convenience and comfort of the
persons attending the programmes therein.
(2) The Licensing Authority on being
satisfied and subject to the provisions of this
Order, may grant a licence to the applicant in
Form-II on such terms and conditions, and
for such period subject to such restrictions as
the Licensing Authority may determine. No
licence shall be granted for a period
exceeding one year. A licence can be
renewed for a period not exceeding one year
at a time:
Provided that where the Licensing
Authority refused to grant licence, it shall do
so for reasons to be recorded in writing and
that order shall be communicated to the
applicant:
Provided further that the licensee may
conduct any show or public entertainment
only between 10.00 hrs. and 23.30 hrs.
However, the licensing authority at his
discretion may permit conducting of shows
or public entertainment beyond 23.30 hrs. on
special occasions not exceeding three such
occasions in a year for each licence.
Provided further that additional
conditions may be imposed by the Licensing
Authority during the period of Licence for
reasons to be recorded in writing and
communicate the same to the licensee.

26
Clause 8
8. Seating arrangements:-
(1) The licensee shall not accommodate more
than twenty persons per nine square meters
in the place of public entertainment:
Provided that the entrance, passage,
corridor, gangway and stage shall be
deducted for the purpose of calculating the
seating accommodation.
(2) There shall be an open space of not less
than five feet wide on any two sides of the
premises where live band or discotheque is
performed.
(3) There shall be at least one emergency
exit in addition to the normal doorway fitted
with doors which open outwards.
(4) There shall be openings sufficiently
wide enough to ensure good ventilation or
there shall be provision for sufficient good air
condition.
(5) One W.C. and one urinal separate for
men and women each for every fifty persons
or less shall be provided.
(6) Any live band performance within the
licensed premises for conducting live band
shall be conducted on a stage which shall be
properly demarcated from the seating area.
There shall be no inter-mingling of
performers with customers/guests on or off
the stage. There shall be a distance of at
least five feet between the stage and first row
of seating area.
Clause 9
9. Notice Board:- (1) Every licensee shall
affix or cause to be affixed at some
conspicuous place at the place of Public

27
Entertainment a board of suitable size on
which shall be written in Kannada and
English, the name and address of the licensee
and the period of licence.
(2) He shall also specify the seating
capacity/maximum capacity of the premises
conducting live band, Cabaret, Discotheque,
as the case may be.
(3) He shall also exhibit at a prominent place
in the premises a photo copy of the licence.
Clause 10
10. Renewal of Licence:- (1) Every
application for renewal of the licence granted
under this Order shall be made at least thirty
days before the day on which such licence is
to expire. The application shall be
accompanied by the licence to be renewed
and the amount of fee as specified in clause
18.
(2) Where an application is made in
accordance with sub-clause(1), the earlier
licence shall be deemed to be in force till the
renewal or refusal of such licence is
communicated to the applicant.
(3) Application for renewal of a licence, not
made in accordance with the provisions of
this clause, shall be liable to be rejected by
the licensing authority.
Clause 11
11. Licence shall terminate with the transfer
of business:- A licence granted under this
Order for maintaining a place of public
entertainment shall not be transferable or
assignable to any other person. Where such
person transfers or assigns his business to
any other person or enters into an agreement
with another person, involving his giving up
of the conduct or control over the business,

28
the licence granted to him shall stand
terminated on and from the date of such
transaction:
Provided that in the case of death of
the licensee, his heir or legal representatives
may make an application within one month
from the date of death to the Licensing
Authority seeking continuance of the licence
for the un-expired term of the licence. No fee
shall be charged for such continuance of
licence.
Clause 12
12. Prohibition of change of name:- A
licensee shall not make any change in the
name of the establishment or use his
premises or allow any other person to use the
premises for the purpose of any other type of
entertainment which he is not authorized
under the licence.
Clause 13
13. Power to stop music: Without prejudice
to the conditions specified in the licence, the
Licensing Authority may, by a general or
special order made in this behalf, direct that
no music shall be played or allowed to be
played during such time as he may direct.
Clause 14
14. Suspension of licence: If any person
maintaining a place of public entertainment
permits prostitution or permits persons to
meet or remain in such place for the purpose
of planning or carrying out an illegal actitity
or violates any of the conditions of this
order, the licensing authority shall have the
discretion to suspend the licence for such
period as he may think fit and direct such
person to close the place for such period as
he may specify. The person to whom such
direction is issued by the licensing authority

29
shall comply with such direction. However,
the period of suspension shall not exceed 30
days at a time.
Clause 15
15. Procedure for cancellation of Licence:
No licence granted under this Order shall be
cancelled until the holder of the licence has
been given a reasonable opportunity of
showing cause why his licence should not be
cancelled.
Clause 16
16. Inspection of Licensed Premises: Every
person maintaining a place of public
entertainment shall, at all times allow free
access to such place to the Licensing
Authority or any police officer not below the
rank of a Police Inspector having jurisdiction
over the area or authorized by the Licensing
Authority to hold inspection as deemed
necessary to ensure and satisfy that the
Licensee has complied with the provisions of
this Order.
Clause 17
17. Notice to the Licensing Authority: Every
person shall, as soon as he voluntarily closes
the place of public entertainment in respect
of which a licence has been granted under
this Order, shall intimate such closure to the
Licensing Authority.
Clause 18
18. Fee:- Licensing Fee for every licence per
annum, shall be as below:
(i) Fresh Licence - Rs.20,000/-
(ii) Renewal - Rs.5,000/-

30
(iii) Application form fee Rs.500/-”
38) There are two Latin legal maxims, which need
to be kept in mind while deciding the questions
arising in this appeal. One is “Salus Populi
Supremo Lex” which means the safety of the people
is the supreme law and the other is "Salus
republicae supremo lex" which means safety of the
State is the supreme law.
39) In our considered view, it is the prime duty,
rather statutory duty, of the Police
personal/administration of every State to maintain
and give precedence to the safety and the morality
of the people and the State. Indeed, both are
important and lie at the heart of the doctrine that
the welfare of an individual must yield to that of the
community. The Act and the Order 2005 are
enacted keeping in view the safety and the morality
of the people at large.

31
40) In our view, whenever the impugned action is
challenged on the touchstone of Articles 14 and
19(1)(g) of the Constitution, we have to keep in mind
the well-settled principle of law laid down by this
Court wherein this Court has examined lucidly and
succinctly the scope and ambit of Articles 14 and
19(1)(g) .
41) So far as Article 14 is concerned, it is useful to
refer to the law laid down in two decisions of this
Court reported in Budhan Choudhry vs. State of
Bihar, AIR 1955 SC 191 and Ram Krishna Dalmia
& Ors. vs. S.R. Tendulkar & Ors. AIR 1958 SC
538.
42) In the case of Budhan Choudhry (supra), the
Constitution Bench of seven Judges of this Court
explained the true meaning and scope of Article 14
as follows:
 “5. … It is now well established that while
Article 14 forbids class legislation, it does not
forbid reasonable classification for the
purposes of legislation. In order, however, to
pass the test of permissible classification two

32
conditions must be fulfilled, namely, (i) that
the classification must be founded on an
intelligible differentia which distinguishes
persons or things that are grouped together
from others left out of the group, and (ii) that
that differentia must have a rational relation
to the object sought to be achieved by the
statute in question. The classification may be
founded on different bases; namely,
geographical, or according to objects or
occupations or the like. What is necessary is
that there must be a nexus between the basis
of classification and the object of the Act
under consideration. It is also well
established by the decisions of this Court
that Article 14 condemns discrimination not
only by a substantive law but also by a law of
procedure.”
43) In Ram Krishna Dalmia (supra), this Court
reiterated the principles which would help in testing
the legislation on the touchstone of Article 14 in the
following words:
“(a) that a law may be constitutional even
though it relates to a single individual if, on
account of some special circumstances or
reasons applicable to him and not applicable
to others, that single individual may be
treated as a class by himself;
(b) that there is always a presumption in
favour of the constitutionality of an
enactment and the burden is upon him who
attacks it to show that there has been a clear
transgression of the constitutional principles;
(c) that it must be presumed that the
legislature understands and correctly
appreciates the need of its own people, that
its laws are directed to problems made
manifest by experience and that its

33
discriminations are based on adequate
grounds;
(d) that the legislature is free to recognise
degrees of harm and may confine its
restrictions to those cases where the need is
deemed to be the clearest;
(e) that in order to sustain the presumption
of constitutionality the Court may take into
consideration matters of common knowledge,
matters of common report, the history of the
times and may assume every state of facts
which can be conceived existing at the time
of legislation; and
(f) that while good faith and knowledge of
the existing conditions on the part of the
legislature are to be presumed, if there is
nothing on the face of the law or the
surrounding circumstances brought to the
notice of the court on which the
classification may reasonably be regarded
as based, the presumption of
constitutionality cannot be carried to the
extent of always holding that there must be
some undisclosed and unknown reasons for
subjecting certain individuals or
corporations to hostile or discriminating
legislation.”
(emphasis supplied)
44) These principles were reiterated by this Court
in Shashikant Laxman Kale & Anr. vs. Union of
India & Anr. (1990) 4 SCC 366 and in a recent
decision of this Court in State of Maharashtra &
Anr. vs. Indian Hotel & Restaurants Association
& Ors. (2013) 8 SCC 519.

34
45) Similarly, so far as Article 19(1)(g) of the
Constitution is concerned, this Article accords
fundamental rights to carry on any profession,
occupation, trade or business. However, the right
guaranteed under clause (g) is made subject to
imposition of appropriate reasonable restrictions by
the State in the interest of general public under
clause (6).
46) As and when the question arises as to whether
a particular restriction imposed by law under clause
(6) is reasonable or not, such question is left for the
Court to decide. The test of reasonableness is
required to be viewed in the context of the issues,
which faced the impugned legislature. In
construction of such laws and while judging their
validity, the Court has to approach the issue from
the point of furthering the social interest, moral and
material progress of the community as a whole.
Likewise, while examining such question, the Court

35
cannot proceed on a general notion of what is
reasonable in its abstract form nor the Court can
proceed to decide such question from the point of
view of the person on whom such restriction is
imposed. What is, therefore, required to be decided
in such case is whether the restrictions imposed are
reasonable in the interest of general public or not.
47) This Court has laid down the test of
reasonableness in the case of State of Madras vs.
VG Row, AIR 1952 SC 196 and very succinctly said
that it is important, in this context, to bear in mind
that the test of reasonableness, wherever
prescribed, should be applied to each individual
statute impugned and no abstract standard or
general pattern of reasonableness can be laid down
as applicable to all cases. The nature of the right
alleged to have been infringed, the underlying
purpose of the restrictions imposed, the extent and
urgency of the evil sought to be remedied thereby,

36
the disproportion of the imposition, the prevailing
conditions at the time, should all enter into the
judicial mind.
48) This Court has further ruled that the
expression "in the interest of general public"
occurring in clause (6) is an expression of wide
import which comprehends in it public order, public
health, public security, morals, economic welfare of
the community and lastly objects mentioned in Part
IV of the Constitution. (See Municipal Corporation
of the City of Ahmedabad & Ors. vs. Jan
Mohammed Usmanbhai & Anr., (1986) 3 SCC 20
and Deepak Theatre, Dhuri vs. State of Punjab &
Ors., 1992 Supp(1) SCC 684).
49) This Court has also ruled, as mentioned above,
that the State has a right to regulate running of any
business by putting reasonable restrictions under
clause (6) in the interest of general public. It was
held in the case of Minerva Talkies, Bangalore &

37
Ors. vs. State of Karnataka & Ors. 1988 Supp.
SCC 176 that the right to carry on the business of
exhibiting cinematograph films, which is governed
by the provisions of Karnataka Cinemas Regulation
Act and the Rules framed thereunder, is subjected
to the rigor of reasonable restrictions and the State
Government has a power to limit/restrict the
exhibiting number of shows in the Talkies in a day.
It was held that such provisions are necessary to
ensure public safety, health and other allied
matters. It was held that imposing such restriction
is essentially regulatory in nature and serves the
purpose of the Act.
50) After taking note of the general principle of law
governing the field, which we have to keep in mind,
we have to examine the question as to whether the
Order 2005, impugned in the appeal, has created
any discrimination or whether the Order 2005 is in
any way unreasonable or arbitrary and lastly,

38
whether it violates the appellant's fundamental right
guaranteed under Article 19 (1)(g).
51) Having examined the questions in the light of
aforementioned general principles of law, we are of
the considered opinion that the Order 2005 does
not suffer from any legal infirmity and is therefore
constitutional. This we say for more than one
reason as detailed infra.
52) First, Section 31 is a valid piece of legislation.
Its constitutionality is not questioned. Second,
clauses (w) and (x) of Section 31 empowers the
Commissioner of Police to issue Order in respect of
the matters specified therein. Third, it is in exercise
of this statutory power, the Commissioner of Police,
Bangalore has issued the Order 2005 to regulate,
control and supervise the activities specified in
clause(w) and (x). Fourth, in the light of these three
reasons, no fault can be found so far as the source

39
of power of the Commissioner of Police to issue the
Order 2005 is concerned.
53) Fifth, the Order 2005 has been issued to deal
with three activities, which are covered by the
expression “Public Entertainment" as defined in
Section 2(15) of the Act. In other words, the
appellant's business activity, viz., running of the
restaurants and display of Live Band and two others
fall under the expression "Public Entertainment".
54) Sixth, in the light of aforementioned
reasonings, Cabaret, Discotheque or Live Band
Music are rightly subjected to the rigor of Order
2005. Indeed, the Order 2005 has been issued only
with a view to control, regulate and supervise the
three performances in the restaurants. Since these
performances are displayed in a restaurant where
public has an access and, therefore, in the larger
public interest, these performances have to be
controlled, regulated and supervised by imposing

40
reasonable restrictions in law under clause (6) of
Article 19(1).
55) Seventh, making it obligatory to obtain licence
under Clause 3 to display Cabaret, Discotheque or
Live Band is a reasonable restriction on the
appellant's fundamental right to carry on the
business of running the restaurants.
56) Indeed, controlling of any business by asking
its owner to obtain licence to do such business is
held to be a reasonable restriction on citizen's
fundamental right under article 19(1)(g) read with
clause (6) and we do not find any illegality in such
regulation.
57) Eighth, conditions specified in Sub-clauses (a)
to (l) of Clause 7, Clause 8 and Clause 9 of the
Order 2005 are well conceived conditions in public
interest. These conditions ensure the safety and the
welfare of the general Public who regularly visits

41
such restaurants to take food and witness the live
performances of the artists in the restaurants.
58) Indeed, if these safety measures are not
adhered to by the owners of the restaurants while
running their restaurants, the general public would
always have a risk of subjecting themselves to the
happening of any untoward incident endangering
their life and safety.
59) At this stage, it is also necessary to take note
of various compliances, which are required to be
made by the Licensee to run their restaurants.
60) Sub-clause (a) of Clause 7 deals with the
interest of public in general. Clause (b) deals with
the status and antecedents of the applicant who
applies for running the restaurant. Clause (c) deals
with availability of parking place commensurate
with the seating capacity. Clause (d) deals with
possible adverse impact on law and order. Clause (e)
deals with vicinity of the place (restaurants) to

42
educational or religious institutions, i.e., 200
meters. Clause (f) provides that entertainment
displayed should not in any way incite religious
feelings of any particular community. Clause (g)
provides that the material used for the structure in
running the restaurants should not pose any kind
of fire hazard. Clause (h) provides that the proposed
entertainment should not promote public gambling
nor the premises be used as a gaming house nor
any attempt be made to encourage a prostitution
nor the premises be allowed to be used for sale or
consumption of narcotic substance nor the licensee
is permitted to carry on any kind of illegal activities
in the premises. Clause (i) provides that licensee
shall not organize or allow performance of shows
which are immoral, obscene or indecent and will
ensure that there is no obscenity or indecency in
dress, movement or gesture or/and the performers
does not indulge in any kind of indecency and in

43
exposing their person. Clause (j) provides that
licensee shall not permit any obscene or
objectionable posters or pictures to be exhibited in
the premises. Clause (k) provides that the proposed
premises do not cause obstruction, inconvenience,
annoyance, risk, danger or damage to the residents
or to passers by of such premises and lastly clause
(l) provides that it must be ensured that all the
aforementioned precautions have been taken in the
premises in respect of which licence is to be granted
to provide for the safety, to avoid any inconvenience
likely to cause to public and to ensure full comfort
to the persons attending the programs displayed in
the restaurants.
61) So far as Clause 8 is concerned, it is important
as it deals with seating arrangements in the
restaurants. It sets out six parameters in
sub-clauses (1) to (6) to control the sitting
arrangements in the restaurants. It also provides

44
that every restaurant shall have at least one
emergency exit in addition to normal doorway fitted
with doors which open outward in the event of
occurrence of any fire hazard. Similarly, Clause 9
provides that how the Notice Board would be
displayed and what will be its contents.
62) In our considered opinion, the conditions
specified in Clauses 7, 8 & 9 directly deal with the
public safety, comforts, convenience, morality and
law and order and we have not been able to find any
kind of unreasonableness or arbitrariness in any of
the abovementioned clauses so as to hold that they
are unworkable for running the restaurant and to
display the three performances.
63) In our view, those who find themselves unable
to ensure compliances of these conditions or feel
that it is not possible for them to comply, may not
display the performances in their restaurants.

45
64) As held above, the public interest, the welfare
and the safety of general public always override the
right of an individual. There is no prohibition for
any individual to carry on such business. However,
if he wishes to carry on such business, he has to
follow the norms and the statutory regulation
framed for carrying on the business. He cannot be
heard to say that he will carry on the business but
without ensuring the norms and the regulations
framed for the purpose.
65) In our opinion, here comes the application of
the two maxims quoted supra while determining the
rights of an individual qua public and the State.
66) Indeed, we can take judicial notice of an
incident occurred in recent past in a restaurant in
Mumbai where life of several innocent people sitting
in the restaurants were lost due to lapses in
ensuring compliance of safety measures. Yet
another incident of the similar nature occurred few

46
years before in Upahar Theater in Delhi where
several innocent people lost their life due to
non-observance of safety measures.
67) When such incidents occur, they never
obliterate from the memories of the citizen and leave
a message to all the stakeholders that steps for
strict compliance must be taken to avoid any such
recurrence in future at any place. We hope that all
the stakeholders will keep our observations in mind.
68) Ninth, all the measures set out in Clauses 7, 8
and 9 need to be complied with in letter and spirit
by every restaurant owner before obtaining the
licence and that they must continue to observe its
compliances during currency of the licence on
regular basis for the benefit, safety and the welfare
of the customers and the residents of the area.
69) Tenth, the Order 2005 has rightly provided a
check on the powers of the licensing authority in
granting or refusing the licence in as much as the

47
licensing authority is now required to give reasons
for rejecting the licence.
70) Such rejection can always be made subject
matter of challenge in the Court of law by an
aggrieved. A provision of this nature eliminates any
kind of arbitrariness on the part of licensing
authority while considering the grant or rejection of
the licence under Order 2005.
71) This takes us to examine another question as
to whether any case of arbitrariness or/and
discrimination in issuing Order 2005 as urged by
the appellant is made out.
72) We are, however, unable to find any case of
arbitrariness or discrimination having been made
out by the appellant so as to attract the rigor of
Article 14 of the Constitution.
73) Indeed, the Order 2005 does not create any
discrimination between the two alike. The
restaurants which are engaged in displaying the

48
three performances specified in Clause 2 (b), (d) and
(j) of the Order 2005 are under legal obligation to
take licence under Clause 3.
74) Learned counsel for the appellant, however,
pointed out the proviso to Clause 3 that it is this
proviso which creates a discrimination inasmuch as
there does not appear to be any justifiable reason to
exclude those restaurants from obtaining the
licence which are conducting Yakshagana, Bayalata
(field drama) or Bharat Natyam, folk Art, Music
recital, vocal or instrumental like Veena or Mrudana
etc.
75) We do not find any merit in this submission
though look attractive at its first blush. First, it is
for the Police Commissioner to decide in its
discretion having regard to the totality of entire fact
situation as to what should be brought within the
ambit of the Order 2005 and what should be left out
from its clutches. Second, there appears reasonable

49
distinction between the two performances because
as rightly urged by the respondent, the
performances specified in the proviso, are not
usually performed in restaurants but are performed
in theaters or/and auditoriums as one time
performance by the artists whereas the three
performing items namely - Cabaret, Discotheque
and Live Band Music are the activities which are
regularly performed and attract more crowd and
lastly the items specified in proviso even if
performed in restaurants does not involve any kind
of indecency or obscenity whereas other three
performances may unless controlled. In our view,
proviso seems more clarificatory in nature.
76) In any case, in our view, if the Commissioner
finds that the performances specified in proviso may
also be brought within the ambit of the Order 2005
then he is always at liberty to include any such
performance in Clause 3.

50
77) We have perused the decisions cited by the
learned counsel for the appellant mentioned above.
In our opinion, there can be no dispute with the law
laid down in these cases. They are, however,
distinguishable from the facts contained therein as
compared to the facts of the case at hand.
78) In the light of the foregoing discussion, we are
of the considered view that the Order 2005 does not
suffer from any arbitrariness or unreasonableness
and nor it infringes the fundamental right of the
appellant guaranteed under Article 19 (1)(g) of the
Constitution of India. In other words, in our
considered view, both the Courts below were
justified in upholding the Order 2005 as being
constitutional and legal.
79) Now we uphold the Order 2005, we consider it
apposite to direct the respondent-Police
Commissioner, Bengaluru to verify and ensure strict
compliance of the licence conditions, including all

51
the conditions of the Order 2005 in relation to all
the Licensees in whose favour, the licences have
been issued so far.
80) The Commissioner will further verify and
ensure that those restaurant owners who have not
obtained licences so far and yet running their
restaurant without holding the licence, such
restaurant owners be granted some reasonable time
to apply for obtaining the licence after ensuring
compliances as provided in the Order 2005, which
alone will enable them to run their restaurants in
conformity with the requirements of the Order 2005.
81) Failure to obtain the licence after granting a
reasonable time to the restaurant owners would
result in closure of their restaurants after giving
them notice of the closure.
82) Before parting, we consider it opposite to take
note of one fact that though clause 7 (K) of the
Order 2005 rightly provides in general to ensure

52
that the proposed premises do not cause any
obstruction, inconvenience, annoyance, risk, danger
or damage to the residents or to passerby of such
premises, but what we find is that there is no
specific clause/condition dealing with control of
noise pollution which is likely to create or rather
bound to create due to regular display and
performance of the three activities in the
restaurants thereby causing disturbance,
annoyance and inconvenience to the near residents
of the nearby area. The Commissioner shall ensure
that no noise pollution is caused to residents of the
nearby area due to any of the three performances in
any restaurant and that remedial steps are taken in
that behalf.
83) Similarly, with a view to avert any untoward
incident due to breaking of fire may be for any
reasons in the licensed premises, appropriate
specific safety measures must be carried out under

53
the guidance of team of experts. These steps are in
public interest and it should be given precedence by
the Commissioner of Police not only at the time of
granting of license but also by doing regular
inspection of the licensed premises without any
lapse on his part.
84) We hope the Commissioner will take into
consideration these observations.
85) In view of foregoing discussion and subject to
aforementioned directions, the appeal fails and is
accordingly dismissed.

………...................................J.
[R.K. AGRAWAL]


…...……..................................J.
 [ABHAY MANOHAR SAPRE]
New Delhi;
January 25, 2018