1/8 IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2017 BEFORE
THE HON’BLE Dr. JUSTICE VINEET KOTHARI WRIT PETITION Nos. 35411-416/2017 (LB – RES)
BETWEEN
1. MRS.CYNTHIA W/O PRAVEN AGED ABOUT 38 YEARS OFF/A. A.P. TOWER, BALLAL BAGH KODIALBAIL, MANGALORE R/O “SHEEBA SUHANI” KOTTARA CROSS I STREET BEJAI POST, MANGALORE D.K. DISTRICT – 575004.
2. MRS.SUSHEELA.K.S W/O H.M.NAGARAJ AGED ABOUT 42 YEARS OFF/A. MANJESH ARCADE ASHOKNAGAR, MANGALORE R/O NEAR S.D.C. BANK ASHOKNAGAR POST, MANGALORE D.K. DISTRICT – 575006.
3. MR. SONU PHILIP S/O C.I. PHILIP AGED ABOUT 32 YEARS OFF/A. KANKANADY BYE PASS ROAD KANKANADY, MANGALORE R/O KAIPUZHA HOUSE PAZHAVANGADI POST, RANNY PATHANAMTHITTA DISTRICT KERALA STATE – 689673.
4. MR. MAXIN K. KURIAN S/O K.P. KURIAN AGED ABOUT 36 YEARS OFF/A. BEJAI CHURCH CROSS ROAD BEJAI, MANGALORE R/O SAROJINI SHETTY COMPOUND DHARMANAGAR, ULLALA MANGALORE D.K. DISTRICT – 575020.
5. MR. NAGESH S/O LAXMINARAYAN AGED ABOUT 35 YEARS OFF/A. SONA PALACE BUILDING NEAR INFOSYS TECHNOLOGY KOTTARA BUS STOP JUNCTION KOTTARA, MANGALORE R/O UDDADA BETTU KARAMAR HOUSE, MARAVOOR VILLAGE BAJPE POST, MANGALORE D.K. DISTRICT – 574142.
6. MR. RAKESH SHETTY S/O JAYANAND SHETTY AGED ABOUT 30 YEARS OFF/A. SMART TOWER NEAR K.M.C. HOSPITAL JYOTHI CIRCLE, MANGALORE R/O VYASANAGAR, BEHIND KPT, MANGALORE D.K. DISTRICT – 575004. … PETITIONERS (BY SRI. RAJARAM SOORYAMBAIL, ADVOCATE)
AND
1. THE COMMISSIONER MANGALORE CITY CORPORATION LALBHAG, MAIN ROAD MANGALORE-575003.
2. COMMISSIONER OF POLICE MANGALORE CITY NEAR A.B. SHETTY CIRCLE STATE BANK, MANGALORE-01 D.K. DISTRICT. … RESPONDENTS (BY SRI. K.N.NITISH, ADV. FOR SRI.K.V. NARASIMHAN,ADV FOR R-1;
SRI. D.R.ANANDEESHWAR, HCGP FOR R-2) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 01.07.2017 ISSUED BY RESPONDENT NO.1 VIDE ANNEXURES-A TO A5 AND GRANT AN INTERIM ORDER TO STAY THE EXECUTION OF IMPUGNED ORDER ISSUED BY RESPONDENT NO.1 DATED 01.07.2017 VIDE ANNEXURES-A TO A5.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Mr. Rajaram Sooryambail, Adv. for Petitioners Mr. K.N.Nitish, Adv for K.V.Narasimhan, Adv. for R-1 Mr. D.R.Anandeeshwar, HCGP for R-2.
1. The petitioners have filed these petitions in this court with the following prayers:
“PRAYER WHEREFORE, the petitioner most respectfully prays that this Hon’ble Court may be pleased to:
a) Issue a writ in the nature of Certiorari or any other writ or order quashing the impugned order dated 01.07.2017 issued by 1st respondent vide Annexures-A to A5.
b) Issue any other writ, order or direction as this Hon’ble Court may deem fit to grant in the facts and circumstances of the case including an order as to costs.
INTERIM PRAYER Pending disposal of this writ petition, petitioners pray that, this Hon’ble Court may be pleased to pass/grant an interim order of stay by staying the execution of impugned order issued by the 1st respondent dated 01.07.2017 vide Annexure-A to A5, in the interest of justice.
2. The respondent-Mangalore City Corporation has filed its Statement of Objections and also Additional Statement of Objections along with certain “Mahazar Reports” prepared by the Respondent-Mangalore City Corporation on 01.07.2017. Though it has been observed in the said “Mahazar Reports” that in the Spas run by the petitioners, the Female Therapists were giving massage to the Males in an obscene manner, but no such evidence has been placed on record. No statutory provision has been pointed by the Respondent-Mangalore City Corporation before this Court, which prohibits such an activity of massage being given by the persons of opposite sex. No other evidence or material has also been adduced by the Respondent-Municipal Body about the obscenity part nor any specific notice has been given to the petitioners to controvert this allegation in the “Mahazar Reports” before the impugned order canceling their Trade Licence were passed by the Respondent-Public Body vide Annexure-A5 dated 01.07.2017.
3. The learned counsel for the petitioners has drawn the attention of the court towards a decision of the learned Single Judge of Madras High Court in the case of Influence Lifestyle Stores Pvt. Ltd. Vs. Government of Tamil Nadu [LAWS (MAD)-2009-7-695] quoting the Supreme Court’s decision in the case of Anuj Garg and Others Vs. Hotel Association of India and Others [(2008) 3 SCC 1], and he has submitted that, the running of Spa with the cross massages done by persons belonging to other sex, there was no law regulating the field and therefore, such activity per se could not be prohibited.
4. The relevant portion of Para-8 of the said judgment of the learned Single Judge is quoted below for ready reference:
“8. The Supreme Court in Para-43 of the judgment emphasized that the State’s duty to ensure circumstances of safety which inspire confidence in women to discharge their duties. Para-43 reads as follows:
xxx xxx xxx xxx xxx The cases referred to earlier are all cases where there was a specific legislation curbing such activities. But in the case of running of a Spa with cross massages done by persons belonging to other sex, there is no law regulating the field. The only two provisions under the Madras City Police Act, 1888 is Sections 34 and 35. They read as follows:
xxx xxx xxx xxx xxx “In the light of the above, it can clearly be seen that the respondent- police as on the date has no legal right to prevent an health Spa being operated by any citizen of this Country even if it is done by persons belonging to the opposite sex. As pointed out by the Supreme Court in Anuj Garg and Others Vs. Hotel Association of India and Others (supra) that a majoritarian impulses rooted in moralistic tradition cannot impinge upon individual autonomy. 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.”
The application is allowed to the extent indicated above. No costs. Application allowed.”
5. In view of this legal position and there being no statutory specific legal bar governing the present case, the petitions are disposed of with a liberty and direction to the Respondent-Municipal Body to issue appropriate Show Cause Notice to the petitioners and then, after taking their objections and relevant evidence on record, pass fresh and appropriate orders in the matter before taking any coercive action against the petitioners like that of canceling of Trade Licence itself.
6. The impugned notices/orders issued against the petitioners vide Annexure-A Series dated 01.07.2017 shall not be enforced till such fresh and appropriate orders are passed by the competent authority of the Respondent- Mangalore City Corporation viz., the Commissioner of the said the said Corporation.
The petitions are accordingly disposed of. No costs.
Sd/- JUDGE
KGR (Sl.No.47)