'A Democratic Republic, Not A Police State': Madras HC Holds Police Not Empowered To Regulate Timings Of Eateries

Madras High Court has held that police cannot decide the working hours of eateries and restaurants under the guise of law and order problems. The court also observed that it is the bounden duty of police authorities to provide appropriate protection to the eatery shops/hotels/restaurants.Justice Krishnan Ramasamy pointed out that the police does not have the authority to shut down eatery shops/ restaurants by citing law and order problems when they are not accorded such powers after the amendment to Section 35 vide Chennai City Police (Amendment) Act, 2007.By virtue of the amendment, 'Eating houses, hotels, wine shops' were removed from the list of 'places that must be licensed'; these were amended as places that could be run with a 'No Objection Certificate' that could be obtained from the Commissioner with regards to traffic clearance. Therefore, after the amendment, the police couldn't regulate the opening and closing time of eateries, especially at night time when there is not much traffic.Section 39 of the Act empowers the Police Commissioner to make rules for regulating the times during which the places referred to in Sections 34 and 35 shall be allowed to be opened, for ensuring law and order as well as public safety. Prior to the 2007 amendment, Police Commissioner could make rules regulating the timings in respect of the places referred to in the original Sections 34 and 35 of the Act, including eateries and restaurants."...by virtue of the Chennai City Police (Amendment) Act, 2007, the power of the Commissioner to issue licence in respect of eating houses, hotels, etc., was taken away and made the Municipal Corporation to grant licence, however, subject to producing no objection certificate from the Commissioner in regard to traffic clearance. Therefore, by virtue of amendment of Section 35 of the Act, except issuing no objection certificate in regard to traffic clearance...the Commissioner has no power to regulate the opening and closing timings of the said establishments and as such, the police authorities have no role to interfere with the business activities of the same and fix the timings", the court noted in the order.In 2019, G.O Ms No. 60 by Labour and Employment Department, under Tamil Nadu Shops and Establishments Act, 1947 notified that all shops and establishments can be kept open 24*7 as per the convenience of the owners throughout the year, initially for a period of three years. The court noted that an 'establishment' under the TN Shops & Establishments Act include 'restaurant, eating-house, residential hotel' etc. Moreover, Section 13 of the Same Act empowers the state government to fix the opening and closing time of 'establishments' that come under the purview of the Act.Referring to the notification by the Department, the court underscored that it is open to the petitioner to fix his own timings depending on the arrival of customers and workmen engaged. :"Thus, when the said notification is in favour of the petitioner, then, the second respondent Police has no jurisdiction or authority to interfere with the business activities of the petitioner and dictate the closure timings."The court also stated that the Preamble of the Indian Constitution guarantees a democratic republic and not a police state. The court made the above statement in the backdrop of police refusing eateries the permission to function even when they don't have the authority to regulate their timings, thereby depriving the fundamental rights of hotel owners and consumers of food. Such unlawful actions of the police fearing anti-social elements entering the eateries at night can only be equated to 'burning down your own house to get rid of a rat', the court added."...there are two rights in stake here. First, the right of the hotel/restaurant owner to run his business or trade guaranteed under Article 19(1)(g). Second is the right of the customers to consume food which is a part of Article 21. If the State wants to regulate the first right, then the restriction can only be through a law. Such restriction must be reasonable and proportional. Admittedly there is no legal prohibition to operate a restaurant/eatery at late night. Without such a statutory power the Police cannot try to force or coerce these persons to shut their hotels/restaurants simply because they anticipate a law and order issue", the court iterated.In the case at hand, the petitioner who owned a vegetarian restaurant in Kilpauk wanted to keep his shop open till 1.30 PM, whereas the police officials frequently interfered and instructed him to shut down the eatery by 10.30 PM. Though he made a representation to the Commissioner of Police, it was not of much use according to the petitioner.The right to practise any profession or to carry on any occupation, trade or business as enshrined in Article 19(1)(g) of the Constitution will be vitiated if the respondent police continue to interfere with the business...

'A Democratic Republic, Not A Police State': Madras HC Holds Police Not Empowered To Regulate Timings Of Eateries

Sebin James

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