- (1.)HEARD Counsel appearing for the parties. The case of the Petitioner is that he is holding a licence to keep a place of public entertainment under section 33(1) clauses (w) and (y) of the Bombay Police Act, 1951. According to the Petitioner, he is holding a licence under Bombay Shops and Establishment Act, 1948 and a licence issued by the Health Department of the Mumbai Municipal Corporation for running a restaurant of Grade-I. The case of the Petitioner made out in paragraph No.2 of the Petition is that the members of the public are entering the restaurant of the Petitioner for eating food and taking drinks. The case of the Petitioner is that classical/ cultural dance is being performed in his restaurant on recorded music. A case is also made out that recorded music is being played in the restaurant. The case of the Petitioner is that any ancillary activities of playing music, band or classical dance on recorded music does not require a licence. The Petition is filed on the basis of oral threat given on 19th September 1994 by the Officer of Byculla Police Station calling upon the Petitioner to stop the running of the restaurant with the music in his restaurant. The Petition was allowed to be amended. By inserting paragraph 6-A it is contended that the Respondents are not entitled to prevent the Petitioner from having classical or other types of dance under Rule 244 of Tamasha Rules, 1960 in the restaurant.
(2.)THE learned Counsel for the Petitioner placed reliance on the decision of this Court reported in 1993 M.L.J. Page No.1750 (Hotel Deepa Vs. State of Maharashtra). He has pressed into service paragraph No.8 of the said decision. He has placed reliance on decision of the Apex Court in case of Mohan H. Pai Vs. Commissioner of Police, Bangalore & Ors. delivered in Civil Appeal Nos.1857-1858 of 2000 dated November 28, 2002. He submitted that the premises of the Petitioner is being predominantly used as a restaurant and activities of playing music are only ancillary activities and merely because the said activities are continued, it cannot be said that the premises of the Petitioner is a place of public amusement within the meaning of Section 2(9) of the Bombay Police Act, 1951 (hereinafter referred to as the said Act of 1951). He submitted that notwithstanding the said ancillary activities, the place continued to be a place of public entertainment within the meaning of Section 2(10) of the said Act of 1951 and he is holding a valid licence in that behalf.
The learned A.P.P. submitted that when the licence granted to the Petitioner is of a place of public entertainment, there cannot be any music or dance in the place. The learned A.P.P. submitted that no case is made out for interference in this Petition.

(3.)A reference will have to be made to the decision of the learned Single Judge of this Court in case of Hotel Deepa (supra). Paragraph No.8 of the said decision reads thus:
"8. Though the word "performance" has not been defined in the Act or the Rules, according to dictionaries, it means "musical, dramatic or other entertainment". Playing of music in any and every case will not amount to musical performance. "Musical performance" conveys the idea of performance by musician which is attended by the public for deriving the pleasure of the performance. In other words, "playing of music or singing of songs etc." will fall within the ambit of "performance", only when it is held for public amusement. It will be so, if that musical programme is the principal attraction which has brought the public to that place, not otherwise. It is well known that ordinarily people go to restaurants for eating food etc. and not for amusement by musical performances. Music played in such restaurants cannot, therefore, be "musical performance" and such restaurant is not required to obtain "Performance Licence" under Rule 116 of the 1960 Rules. But there may be cases, where a restaurant may also hold "musical performances". Take for instance a restaurant organising musical programmes of some artists in the restaurant which is attended by public. Such programme may be termed as "musical performance" and "Performance Licence" may be required because, in that case, the attendance of the public to that place is for amusement -eating is incidental. If the activity of playing of music of a restaurant falls in such category to attract Rule 116, the authority concerned will have to say so and give an opportunity of hearing to the person concerned, if he so likes, to place its facts before the authorities to satisfy them that his activity does not amount to "performance". Evidently, in the instant case, there is no such allegation against the petitioner."