Licensing Authority Cannot Refuse Orchestra Licence On Vague Grounds Of 'Law And Order' Without Objective Material: Bombay High Court

"The State cannot take exception to dance performance per se... a practice which may not be immoral by societal standards cannot be thrusted upon the society as immoral by the State with its own notion of morality and thereby exercise ‘social control’." Bombay High Court, in a significant ruling dated 16 September 2026, held that licensing authorities cannot reject applications for orchestra or performance licences based on mere apprehensions of "law and order" problems without documenting objective material to support such conclusions.

Justice N.J. Jamadar emphasized that the exercise of discretionary power under the Maharashtra Police Act, 1951 and the Public Amusement Rules, 1960 must be reasoned, transparent, and compliant with the constitutional right to carry on trade and business under Article 19(1)(g).

The petitioner, Alanzo Trademart Pvt Ltd, sought a premises and performance licence to operate a live music orchestra at its restaurant in Khar, Mumbai. Despite receiving a positive site inspection report and a 'No Objection Certificate' from the local police, the Licensing Authority rejected the application citing vague concerns regarding social harmony and potential law and order issues. The Divisional Commissioner subsequently dismissed the petitioner's appeal, prompting the present challenge under Article 227 of the Constitution of India.

The primary question before the court was whether the Licensing Authority could exercise its discretion to refuse a performance licence solely on the basis of a generic apprehension of law and order issues without citing objective evidence. The court was also tasked with determining whether executive instructions, such as a Government Circular, could override statutory licensing rules and whether past criminal cases—subsequently quashed by the High Court—could form the basis for denying a new licence.

Discretionary Power Must Not Be Unbridled

The court observed that while the grant of a licence is discretionary, such power is not uncanalised. The Licensing Authority is bound by the regulatory framework of the Public Amusement Rules, 1960. A mere ipse dixit (an assertion without proof) that a licence might disturb public order is insufficient to meet the legal threshold for refusal. The court noted that in this instance, the field reports from the Senior Police Inspector explicitly confirmed that all statutory requirements, including noise control and traffic management, had been met by the petitioner.

No Empirical Basis For Refusal

The bench underscored that the respondents failed to produce any empirical data to justify the rejection. The court rejected the state’s attempt to supplement the initial rejection order with new, post-facto complaints, characterizing this as a move to "progressively invent reasons" where none existed originally.

"The refusal of licence without there being objective material to bring the case within the categories under which the Competent Authority is empowered to refuse the licence, would thus fall foul of the principles of reasonable and non-arbitrary exercise of power by the instrumentalities of the State."

Constitutional Protection of Trade

The court held that operating an orchestra is a legitimate business activity under Article 19(1)(g). Citing State of Punjab v. Devans Modern Breweries Ltd, the court emphasized that activities permitted by statute cannot be condemned by the state on subjective notions of morality. As long as a business complies with the relevant statutes, it cannot be branded as "inherently noxious."

Circulars Cannot Supplant Statutory Rules

The court categorically dismissed the state's reliance on a 27 July 2026 government circular that sought to restrict the issuance of new orchestra licences. Justice Jamadar clarified that while executive instructions can supplement statutory rules, they cannot supplant them. Consequently, the circular could not serve as a valid ground to deny the petitioner their right to operate, especially when the petitioner had fulfilled all criteria prescribed by the 1960 Rules.

"It is well settled position in law that, executive instructions cannot supplant the statutory rules. They can supplement/clarify the statutory rules."

Concluding that the impugned orders were vitiated by arbitrariness and a failure to apply the mind, the High Court quashed and set aside both the order of the Licensing Authority and the Appellate Authority. The court directed the Licensing Authority to grant the performance licence to the petitioner within four weeks, affirming that legitimate business activities cannot be stifled by administrative caprice.

Date of Decision: 16 September 2026