Judgment:
ORDER
Shivashankar Bhat, J.
1. On 29th September 1993, I directed the Government Pleader to take notice and consequently the authorities are deemed to be represented. The main relief sought for is against the 3rd respondent represented by the Government Pleader. Heard the learned Counsel for the petitioner as well as for respondents-1 to 3 and respondents-4 and 5. Having regard to the nature of the relief sought for in the Writ Petition it was heard for final disposal.
2. The petitioner is aggrieved by the two Endorsements issued by the Police Commissioner, Hubli, directing the petitioner to close the lodging house. The first contention of the petitioners is that the Police Act does not envisage the obtaining of any licence when no food is served in the lodging house. The second contention pertains to the deeming provision in the Licensing and Controlling Order, 1989, based on the following facts.
3. Our of abundant caution petitioner applied for renewal of earlier licence under the provisions of the Licensing and Controlling of Places of Public Entertainment Order 1962 on 19.12.92. If the application is not considered within 12 days the licence is deemed to have been granted as per the said Licensing Order. Therefore, if no official order was issued by 31st December 1992 the petitioner was deemed to have been granted the licence. In the instant case, on 22nd December and on 27th December 1992 petitioner was told that his application was being considered but no order was made till the end of December 1992. For the first time, somewhere in 18.1.1993 or so an Endorsement, Annexure-A, was issued asking the petitioner to close the lodging house for non-renewal of licence. This was followed by another Endorsement dated 20.3.93, Annexure-B.
4. There can be no doubt that the petitioner's application was deemed to have been granted by the lapse of time and therefore the first respondent had no competence to issue the two Endorsements, Annexure-A and B. On this short ground both these Endorsements are liable to be set aside, and they are accordingly set aside.However, it is also necessary to decide the first question raised by the petitioner.
5. The Licensing Order referred above was under the provisions of the Karnataka Police Act, 1963. Section 2(14) defines 'place of public amusement' as follows:
'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;'
Similarly, Section 2(15) is also relevant:
''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 on the premises by any person owning or having an interest in or managing such place and includes a refreshment room, eating house, coffee house, liquor house, boarding house, lodging house, hotel, tavern, or a shop where wine, beer, spirit, arrack, toddy, ganja, or other kind of liquor or intoxicant or any kind of food or drink is supplied to the public for consumption in or near such shop;'
6. To attract Sub-section (14) of Section 2 it is clear that there should be music, singing, dancing or any diversion or game or the means of carrying on the same in the place to which the public are admitted. To attract the provisions of Sub-section (15) of Section 2 either there should be supply of food or the drinks referred in the said provision. Admittedly, in the instant case, there is no entertainment provided in the lodging house. Similarly no food or drink as referred in Sub-section (15) of Section 2 is being served. Therefore, it cannot be held that the lodging house is a place of public entertainment of amusement in the instant case. It is a 'dry lodging house' as could be gathered from the facts disclosed.
7. It is true that the lodging house requires a licence but that licence shall have to be obtained under other provisions such as the City Corporation Act. Obtaining of licence under the Police Act certainly would not arise. Therefore, actually, it was not necessary for the petitioner to seek a licence under the Licensing Order referred above. The learned Government Pleader pointed out that there is a reference to the lodging house in Sub-section (15) of Section 2, It is true that there is a reference to lodging house but that reference is in connection with a place where food or drinks are supplied. A lodging house by itself, where only lodging is provided without any food or drinks being supplied, cannot be brought within the purview of Section 2(15) of the Karnataka Police Act.
8. In view of the above the petitioner shall have to be granted the relief sought for by him. However, Mr. Gachchinamath, appearing for the respondents-4 and 5, seriously questioned the locus-stand of the petitioner to file the Writ Petition. The learned Counsel contended that the premises in question and the lodging business belonged to one Laxmansa Nagendra Merwadi and on his death the properties left by the deceased went to his daughters including the 4th respondent. The other daughter of the deceased is one Shanthabai. According to the petitioner he has married the daughter of the said Shanthabai and in fact he was brought up by the deceased since his childhood and that the deceased had left a will in his favour. These are matters which are pending before the Civil Court wherein a suit filed by the present 4th respondent is pending is O.S.150/88 in the Court of Civil Judge, Hubli. In the said suit an application for receiver was also filed by the plaintiff. The said application was rejected by the trial Court holding that admittedly defendants-2 and 3 in the suit were in possession of the suit properties and the second defendant was maintaining accounts and he was an Income-tax assessee and therefore question of appointing Receiver would not arise. The second defendant in the suit is the present petitioner.
9. This finding of the trial Court was upheld by this Court in M.F.A.994/90 decided on 23.4.1992. This Court while dismissing the Appeal directed the trial Court to dispose of the main suit within 4 months. The fact remains that there is a prima facie finding against the contention of the 4th respondent that the present petitioner has no right to seek a licence to run the lodging house. The finding is that he is in possession of the lodging house and is running the same. That finding cannot be ignored by me while deciding this Writ Petition under Article 226 of the Constitution. Mr. Gachchinamath contended that this Court should take a sympathetic view having regard to the plight of the plaintiff and she has no income at all and she should be provided for. This is a matter for the Civil Court to consider and the said issue cannot be injected into the present controversy in any manner.
10. For the reasons stated above this Writ Petition is allowed. It is declared that no licence is required under the provisions of the aforesaid Licensing Order for running a lodging house wherein neither entertainment nor food for drink is provided or supplied. The impugned Endorsements are also hereby quashed. Rule made absolute.