-: 1 :- wp 8931 of 2009 – IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8931 OF 2009. Shree Kunthu Impex Pvt. Ltd. ..Petitioner. Versus Municipal Commissioner of Gr. Mumbai & Others. ..Respondents. Mr. Atul Rajadhyaksha, Senior counsel with Mr. Pankaj Vernekar i/b Mr. Nagendra Dube for the petitioner. Mr. S. S. Pakale with Mr. M. M. Malavankar for respondent nos. 1 to 5. Mr. G. S. Godbole a/w Mr. Hemang Jariwala i/b M/s. Auroma Law for respondent no.7. Coram : R. V. MORE, J. Date : July 29, 2010. P. C. : 1. Heard learned counsel for the respective parties. 2. It is the case of the petitioner that in the year 2004 respondent no. 7 by inviting the tenders gave their space/premises for restaurant, banquet hall and other connected purposes on leave and licence basis. The case of respondent no.7, on the contrary, is that the business of restaurant was given to the petitioner on the basis of conducting agreement. Respondent no.7 has terminated the said leave and license agreement/business conducting agreement and the proceedings in this regard are pending before the Arbitral Tribunal. 3. The petitioners by obtaining Eating House Licence and Glow sign Licence started restaurant in the premises of respondent no.7. The Easting Housing Licence [for short “EHL”] was valid for the period srp -: 2 :- wp 8931 of 2009 – 1-1-2008 to 31-12-2008 and the Glow Sign Licence was valid for the period 24-10-2008 to 24-10-2009. The petitioners’ EHL was cancelled by the respondent–Corporation by order dated 24th August 2008 on the ground that the petitioners are serving Hooka in their restaurant and on other ancillary grounds. This oder was challenged by the petitioners before this Court in Writ Petition (L) No.1604 of 2008. In the said petition, the petitioners made statement that they will not serve Hooka of any type in their restaurant. The statement was recorded by the High Court and the order dated 24th August 2008 was quashed and set aside. 4. The respondent–Corporation thereafter gave notice to the petitioner on 1st December 2008. By this notice the petitioner was informed that they have restarted the restaurant before reinstallation of EHL. Reference was also made to the complaints made by respondent no.7 against the petitioner. The petitioner was directed to appear before the Assistant Municipal Commissioner “D”-Ward for hearing in this regard. On the basis of notice, hearing was taken by the Assistant Municipal Commissioner, and ultimately the order was passed on 18th June 2009, thereby the petitioner’s alleged request for reinstallation of EHL was rejected and petitioner was directed to stop eating house activities forthwith. This order was challenged by the petitioner before the Small Causes Court, Bombay by filing an appeal, being Appeal No. -: 3 :- wp 8931 of 2009 – 101 of 2009 under section 394 of the Mumbai Municipal Corporation Act, 1888. The petitioner also took out an application for stay to the above order dated 18th June 2009. This application was rejected. The petitioner has challenged both the orders, namely, the order dated 10th September 2009 passed by the Small Causes Court, rejecting the stay application and order dated 18th June 2009 passed by the Additional Municipal Commissioner. 5. Mr. Atul Rajadhykasha, learned senior counsel took me through the order of Division Bench of this Court passed in Writ Petition (L) No. 1604 of 2008 and pointed out that the order dated 24th June 2008 cancelling the petitioner's EHL, was quashed and set aside. Relying upon the judgment of the Supreme Court reported in AIR-1992 SC 1439 [M/s.Shree Chamundi Mopeds v. Church of South India Trust Association] he submitted that quashing of an order results in the restoration of the position as it stood on the date of the passing of the order. He further submitted that the petitioner never applied for reinstallation of EHL. It is his specific stand that the petitioner is not at all required to apply for reinstate of EHL and the respondent–Corporation proceeded on wrong footing that the petitioner is required to apply for reinstatement of EHL and consequently passed the order dated 18th June 2009. He submitted that since the period of EHL has expired, he may be permitted to apply -: 4 :- wp 8931 of 2009 – afresh to the Corporation for renewal or grant of EHL and Corporation may be directed to decide the same on merits in accordance with law, uninfluenced by the earlier orders passed by the Corporation. He also submitted that petitioner shall withdraw the appeal as same will render infructuous once permission to apply for renewal/grant of fresh licence is granted. 6. Mr. Godbole, learned counsel for respondent no.7 submitted that the petitioner may unconditionally withdraw the appeal. He further submitted that since the business conducting agreement is terminated, the petitioner is not entitled to apply afresh for renewal or grant of EHL. Lastly, he submitted that if the petitioner is allowed to withdraw the appeal pending before the Small Causes Court, then the order dated 18th June 2009 passed by the Corporation cannot be challenged before the Single Judge of this Court. 7. Mr. S. S. Pakale, learned counsel appearing for respondent nos.1 to 5, supported the impugned order and submitted that the petition being without any substance, be dismissed. 8. Having considered the rival submissions of respective counsel and having gone through the writ petition and annexures thereto and relevant case laws, I find substance in the submission of learned senior counsel Mr. Rajadhyakshya. The EHL was cancelled on 24th June 2008 -: 5 :- wp 8931 of 2009 – and this cancellation is set aside by the Division bench in Writ Petition (L) No.1605 of 2008, on recording statement of the petitioner that he will not serve Hookah in their restaurant. Once the order cancelling EHL is quashed and set aside, then as held in M/s. Chamundi’s case (supra) EHL automatically stands restored and in that eventuality, obviously, the petitioner is not required to apply for reinstallation of EHL. I find that stand of the Corporation in this regard is misconceived. 9. The impugned order dated 18th June 2009 is passed by the Additional Municipal Commissioner on the basis of notice given on 1st November 2008. The notice is given on the footing that the petitioners are required to obtain reinstallation of EHL. This order, in the light of above observations, does not stand scrutiny of law. The petitioner has challenged this order by filing an appeal before the Small Causes Court, Bombay, being Appeal No.101 of 2009. The period of EHL has already expired on 31st December 2008. In these facts it is always open to the petitioner to apply to the Corporation for renewal / grant of fresh EHL and the Corporation is duty bound to decide the same on merits in accordance with law, after considering the objections of respondent no.7. In the aforesaid facts and circumstances, I dispose of the petition by passing following order. -: O R D E R :- -: 6 :- wp 8931 of 2009 – (i) The statement of learned senior counsel Mr. Rajadhyakshya that the petitioner will withdraw the appeal filed in Small Causes Court, Bombay, being Appeal No. 101 of 2009 is accepted. In view of the statement, the impugned order passed by the Small Causes Court rejecting the petitioner’s stay application will not survive for consideration. (ii) The petitioner is at liberty to apply for renewal/grant of fresh EHL to conduct the business in the premises of Respondent no.7. (iii) In the event of petitioner’s making an application within two weeks from today, the competent authority of the Corporation, shall decide the same as expeditiously as possible and in any case within eight weeks from the date of receipt of same. The competent authority of the Corporation will decide the petitioner’s application independently, on its own merits and ignoring their stand in earlier proceedings, that the petitioner is required to apply for reinstallation of licence. Needless to state that the competent authority shall consider the petitioner's application after giving an opportunity of hearing to respondent no.7. (R.V. MORE, J.)