Masti Health and Beauty Private Limited, rep. by its Head of Operations (Chennai) Dr. Binoop Varier vs Commissioner of Police, Chennai City, Chennai-8

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2014 Supreme(Mad) 4463

IN THE HIGH COURT OF JUDICATURE AT MADRAS
V. Ramasubramanian, J.
Masti Health and Beauty Private Limited, rep. by its Head of Operations (Chennai) Dr. Binoop Varier. and Others
Versus
Commissioner of Police, Chennai City, Chennai-8 and Others
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 and all connected pending miscellaneous petitions
Decided on : 9 December 2014

Advocates Appeared:
P.S. Raman, SC for B. Rabu Manohar, S. Nagarajan, Srinath Sridevan, Ashok Menon, K. Harishankar, K. Dharmaraj, C. Yokesh, R. Thirumalai, D. Sam Nandhakumar, E.P. Senniyangiri, R. Manimuthu, for Petitioners P.H. Arvind Pandian, Additional Advocate General, assisted by P. Sanjay Gandhi, AGP, for State A.P. Balasubramanian, Dr. C. Ravichandran, for Respondents

Headnote:
Chennai City Municipal Corporation Act, 1919 - Immoral Traffic Act - Madras City Municipal Corporation Act, 1919 - Sections 287 to 290 - Madras Public Health Act, 1939 - Sub-Section (1) of Section 287 – Claim of compensation - Permanent injunction - Fundamental right to carry on a lawful business - Senior Counsel appearing for petitioner in counsel appearing for petitioners in other writ petitions and Additional Advocate General appearing for State and Standing Counsel appearing for Chennai Corporation - Admittedly petitioners are running beauty parlors or massage centers or spas - It appears that they are subjected to raids on a regular basis by officials of Anti-Vice Squad of Chennai City Police - Therefore claiming that such raids and frequent interference by Police not only spoiled their business but also projected them in poor light and that same also amounted to an interference with their fundamental right to carry on a lawful business petitioners have come up with above writ petitions - Of all writ petitions on hand one writ petition stands out - Said writ petition is one filed by a company by name Influence Enterprises India Private Limited in - This company had already filed a civil suit in file of Original Side of this Court praying for a decree of mandatory injunction to direct State to formulate Rules and Regulations for conducting spa centers and for a permanent injunction restraining respondents from interfering with peaceful conduct of their business – Held, Therefore it is clear that if Government amends Schedule exercising power under Section 347(3) and includes massage parlors health centers spas etc - In Schedule Chennai City Municipal Corporation Act Municipal Council itself may be able to make by-laws under Section 349(11) and (29) for regulating them - Alternatively State Government itself can issue rules under Section 353-A - There is also one more possibility - Chennai City Police Act mandates under Section 34(1) that no enclosed place or building having an area of or upwards shall be used for public entertainment or resort without a license from Commissioner - Word resort is not defined in Act - Under Section 35 of same Act no enclosed place or building shall be used as an eating house coffee house boarding house lodging house hotel gymnasium or fencing school without a license from Commissioner - Section 39 of Act empowers even Commissioner to make rules for ensuring order and decency and for public safety at all places of public entertainment or resort - Power to make rules Commissioner may make rules for ensuring order and decency and for public safety at all places of public entertainment or resort and for regulating times during which places referred to in sections 34 and 35 shall be allowed to be open or used and from time to time may rescind or alter such rules and in case of breach of any such rules or of conditions of license granted under section 36 may order such places to be closed, and while such order is in force such places so ordered to be closed shall be deemed to be unlicensed places - Section 52 of Act empowers Commissioner to order owner or tenant of a house to discontinue to use house as a lodging house for prostitutes or as a brothel if he has reason to believe that house is used as such - In any case Section 78 of Act empowers State Government to make by-laws consistent with Act for more effectively carrying out objects thereof and for preservation of order - Word order would include public order decency and morality - Petition disposed of

ORDER

1. 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.

2. I have heard Mr. P.S. Raman, learned Senior Counsel appearing for the petitioner in W.P.No.408 of 2014, Messers.S. Nagarajan, SrinathSridevan, B. RabuMahohar, 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.

3. 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.

4. 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.

5. 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.”

6. 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.

7. 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.

8. 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 establis

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