W.P. Nos. 15866 of 2013, 407, 408, 743, 1070 to 1073, 2238, 3633, 5035, 5887, 5888, 7587, 12109, 14606 to 14608, 18161, 18698, 19702, 21864 and 24629 of 2014. Case: Masti Health and Beauty Private Limited Vs The Commissioner of Police Chennai City. High Court of Madras (India)
| Case Number | W.P. Nos. 15866 of 2013, 407, 408, 743, 1070 to 1073, 2238, 3633, 5035, 5887, 5888, 7587, 12109, 14606 to 14608, 18161, 18698, 19702, 21864 and 24629 of 2014 |
| Counsel | For Appellant: P.S. Raman, SC, B. Rabu Manohar, S. Nagarajan, Srinath Sridevan, B. Rabu Mahohar, Ashok Menon, K. Harishankar, K. Dharmaraj, C. Yokesh, R. Thirumalai, D. Sam Nandhakumar, E.P. Senniyangiri and R. Manimuthu,Advs, and For Respondents: P.H. Arvind Pandian, Additional Advocate General, P. Sanjay Gandhi, AGP, A.P. Balasubramanian and ... |
| Judges | V. Ramasubramanian, J. |
| Issue | Chennai City Municipal Corporation Act, 1919 - Sections 15, 287, 34, 34(1), 347, 347(1), 347(3), 349, 349(11), 35, 353-A, 36, 39, 52, 78; Code of Criminal Procedure, 1973 (CrPC) - Section 94; Constitution Of India - Article 19(2), 226, 23; Immoral Traffic (prevention) Act, 1956 - Sections 10, 12, 13, 13(4), 15, 15(1), 2(i), 2(j), 8, 9; ... |
| Citation | 2015 (1) MLJ 308 |
| Judgement Date | December 09, 2014 |
| Court | High Court of Madras (India) |
Order:
V. Ramasubramanian, J.
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The petitioners in all these writ petitions are running beauty parlours/massage centers/Spas in and around the city of Chennai. They have come up with these writ petitions, seeking the issue of writs of mandamus to forbear the respondents from interfering with the business carried on by them.
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I have heard Mr. P.S. Raman, learned Senior Counsel appearing for the petitioner in W.P. No. 408 of 2014, Messers. S. Nagarajan, Srinath Sridevan, B. Rabu Mahohar, Ashok Menon, K. Harishankar, K. Dharmaraj, C. Yokesh, R. Thirumalai, D. Sam Nandhakumar, E.P. Senniyangiri, R. Manimuthu, learned counsel appearing for the petitioners in the other writ petitions and Mr. P.H. Arvind Pandian, learned Additional Advocate General appearing for the State and Dr. C. Ravichandran and Mr. A.P. Balasubramanian, learned Standing Counsel appearing for the Chennai Corporation.
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Admittedly, the petitioners are running beauty parlours or massage centers or spas. It appears that they are subjected to raids, on a regular basis, by the officials of the Anti-Vice Squad of the Chennai City Police. Therefore, claiming that such raids and the frequent interference by the Police not only spoiled their business but also projected them in poor light and that the same also amounted to an interference with their fundamental right to carry on a lawful business, the petitioners have come up with the above writ petitions.
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Of all the writ petitions on hand, one writ petition stands out. The said writ petition is the one filed by a company by name Influence Enterprises (India) Private Limited in W.P. No. 408 of 2014. This company had already filed a civil suit in C.S. No. 251 of 2009 on the file of the Original Side of this Court, praying for a decree of mandatory injunction to direct the State to formulate Rules and Regulations for conducting spa centres and for a permanent injunction restraining the respondents from interfering with the peaceful conduct of their business.
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Along with the suit, the said company also filed an application in O.A. No. 249 of 2009 for an interim order of injunction restraining the respondents from disturbing or interfering with the peaceful conduct of their business. By an order dated 31.7.2009, K. Chandru, J, allowed the application for interim injunction, holding that the Police have no legal right to prevent a health spa run by a citizen, even if some of the services rendered therein are by persons belonging to the opposite sex. Relying upon the decision of the Supreme court, the learned Judge pointed out that majoritarian impulses rooted in moralistic tradition cannot impinge upon individual autonomy. However, the learned Judge added a word of caution as follows:-
"At the same time, there is no prohibition for the respondent-Police to inspect and take appropriate action in accordance with law, in cases of any criminal activities prohibited by law."
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As a matter of fact, all the writ petitioners rely upon the aforesaid order of K. Chandru, J, in support of their contention that a lawful business run by them, cannot be painted black with the same brush and that the said decision should be treated more or less as a judgment in rem.
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Therefore, at the outset, it is necessary to find whether the businesses carried on by the writ petitioners, are lawful or not. To find out if a business is lawful or not, we must see if it is prohibited by law. If it is not prohibited by law, we must then see if it is atleast regulated by law. If it is regulated by law, it would be lawful so long as it is carried on as per the regulations. Otherwise, it would be unlawful.
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The respondents do not contend that the massage centers/spas etc., run by the petitioners are prohibited by law. They do not even contend that these are regulated by any special law enacted by the Central Government or at least the State of Tamilnadu or that the petitioners are running these centers in violation of such law. If at all there is any requirement under law, for these establishments, it is only the necessity to obtain a license under the Chennai City Municipal Corporation Act, 1919. This is why the petitioners have made even the Corporation as a party to these proceedings.
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The only basis on which the police conduct raids in some of these establishments, is an apprehension or suspicion that activities prohibited by law may be carried on in these premises. The police think that some of these establishments are indulging in offences punishable under the Immoral Traffic (Prevention) Act. Therefore, the issues arising for consideration in these cases, have to be analysed from 3 angles, namely (i) the prescription contained in Chennai City Municipal Corporation Act, 1919 (ii) the provisions of the Immoral Traffic (Prevention) Act, and (iii) the need to regulate massage parlours/spas etc., by law, to avoid friction between both sides.
CHENNAI CITY MUNICIPAL CORPORATION ACT, 1919
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For using any premises within the city of Chennai, for the purpose of carrying on any business, the person seeking to run the business is required by the Chennai City Municipal Corporation Act, 1919, to obtain a valid licence from the Municipal Corporation. Sections 287 to 290 of the Madras City Municipal Corporation Act, 1919, deal with industries and factories. Sub-Section (1) of Section 287 stipulates that no place within the limits of the City shall be used for any of the purposes mentioned in Schedule VI without a licence obtained from the Commissioner and except in accordance with the conditions specified therein.
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But, the Proviso to Sub-Section (1) of Section 287 exempts lodging houses as defined in the Madras Public Health Act, 1939 from the requirement of a licence under the 1919 Act, if the keeper of the lodging house has registered under the Madras Public Health Act, 1939. Sub-Section (2) of Section 287 empowers the Commissioner to prohibit the use of any place within a distance of three miles of the limits of the city, for any of the purposes mentioned in Schedule VI without a valid licence, provided that the Commissioner had issued a public notification in the Official Gazette to that effect and had already obtained the sanction of the State Government. Sub-Section (3) enables the owner or occupier of every place, for the use of which, a licence is required under Sub-Section (1), to apply to the Commissioner.
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Clause (a) of Sub-Section (5) of Section 287 enables the Commissioner to grant a licence specifying the conditions, subject to which, the licence is granted. Clause (b) of Sub-Section (5) obliges the Commissioner to cause a full and complete investigation to be made before granting or refusing the licence. Clause (c) of Sub-Section (5) empowers the Commissioner to revoke or suspend the licence, if the licence had been obtained under misrepresentation or the licensee failed to comply with the conditions stipulated in the licence. Clause (d) empowers the Commissioner even to vary or amend a licence granted under Clause (a). The licence granted under Clause (a) of Sub-Section (5) is valid only for one year as seen from Sub-Section (6). Therefore, Sub-Section (7) provides for renewal.
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Section 288 of the Act deals with the construction or establishment of any factory, workshop or workplace, in which, it is proposed to employ steam power, water power or other mechanical power or electrical power. Section 289 empowers the Commissioner to issue directions for the abatement of any nuisance caused by any kind of fuel used or by the noise or vibration created in a factory, workshop or workplace, in which, steam power or water power or other mechanical power or electrical power is used. Section 289-A empowers the Commissioner to issue appropriate directions for keeping a factory, workshop or other work place, in a cleanly state. Section 289-C empowers the Commissioner or any persons authorised by him to enter upon any factory, or workshop or workplace, subject to the stipulations contained in Sub-Section (1). The State Government is also conferred with powers under Section 289-D to issue orders or directions generally or in any particular case, under Sections 288, 289, etc.
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Section 379-A enables the Commissioner to direct the alteration, removal or restoration of a place to its original state, whenever it is found that an activity, which requires licence under the Act, was carried on without such licence or permission.
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Keeping the above provisions in mind, if we go to Schedule VI, to which a reference is made under Section 287, it is seen that Schedule VI contains a list of purposes, for which, places within the city may not be used without a licence. The purposes or activities, for which, a licence is required, are arranged in the alphabetical order. Beauty parlours, massage centres and spas are not activities, which are included in Schedule VI. But fortunately, Schedule VI contains the following purposes/activities:
(1) Hair-Storing, packing, pressing, cleansing, preparing or manufacturing by any process whatever dyeing or drying.
(2) Keeping a shaving or hairdressing saloon.
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Therefore, it appears that all the writ petitioners herein have obtained licences from the City Municipal Corporation, indicating their business activity to be "keeping a shaving or hairdressing saloon". Fortunately, none of the petitioners has taken a stand that spas and massage centres are not activities included in Schedule VI and that therefore, no licence is required to carry on those activities. If they had taken such a stand, they would have been legally right and I would have been in a fix. The petitioners have chosen to obtain licences from the Corporation, for the activity that is closest to the ones carried on by them at present.
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In so far as the petitioner in W.P. No. 408 of 2014 is concerned, they have gone one step further and they have obtained licence for running a spa itself, though it is not one of the activities listed in...
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