1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.570 OF 2009 Syed Arif s/o Late Shri Waris Ali .... Petitioner V/s. The State of Maharashtra & Ors. ..... Respondents Mr.A.M.Sarogi, for the petitioner. MR.A.Y.Sakhare, Sr.Advocate a/w Mr.Sandeep Patil, for respondent No.2. Mr.D.P.Adsule, APP, for the respondent State. Mr.Jimi Pochkhanwala, Sr.Advocate a/w Mr.B.Somandy i/by Mr.Vinod Juwale, for respondent No.3. CORAM :P.B.MAJMUDAR, & R.G.KETKAR, JJ. DATE : 25th FEBRUARY, 2010 P.C. 1. By way of this petition, petitioner has prayed that appropriate writ directions may be issued directing respondent Nos.1 and 2 to produce necessary file pertaining to the building known as ‘Mamta’, and appropriate writ may be issued directing respondent Nos.1 and 2 to forthwith close all the illegal activities and commercial use of the premises. Petitioner is one of the occupant of the building known as ‘Mamta’, which is located at 183, Water Field Road, Bandra (W), Mumbai. M/s.Zenzi Torch Hotel Pvt. Ltd., is running a restaurant and bar on the ground floor of the said building. The grievance of the petitioner is that there is a violation of various laws on the part of the said hotel at the time 2 of running the hotel. The grievance was regarding the noise pollution as well as in connection with the bar on the first floor of the premises, which according to the petitioner, was not let out to the said hotel and it is the residential portion in which no commercial activity is permissible. The grievance of the petitioner is that even liquor is served after the stipulated time and that too, in a common open place which is used by the hotel for its customers. It is pointed out that even Corporation has issued notices in connection with certain irregularities. 2. Mr.Pochkhanwala, Senior Advocate, learned counsel for respondent No.3 has submitted that at present hotel is running without violating any laws in any manner. He further submitted that apprehension expressed by the petitioner is not correct and the licence of the hotel is not renewed. During the course of hearing, learned Senior Advocate appearing for respondent No.2, submitted that part of the unauthorized construction of the hotel is removed and for remaining portion, regularization application is given to the Corporation. At the time of hearing, on behalf of respondent No.3, an undertaking has been placed on record, copies of which are given to the petitioner as well as other Advocates appearing in the matter. The said undertaking reads as under:- “I sharad Mathur, the Constituted Attorney and Director of the Respondent No.3 do hereby undertake before this Hon’ble Court as under : - 3 I am authorize to file this undertaking on behalf of the company in light of the Resolution dated 18-04-2009 passed by the company. 1. Zenzi Restaurant and Bar will operate within the timings permissible in law. 2. Liquor will be served to patrons only in the licenced area of the premises. 3. Patrons waiting or seated outside in the waiting area will not be served liquor. 4. The decibel level of the music in the Restaurant/Bar will be in accordance with permissible limits. In light of the above undertaking by me, I respectfully submit that nothing survives in the present petition and the same may be accordingly disposed of by this Hon’ble Court. 3. The said undertaking is taken on record and respondent No.3 shall act accordingly. We accordingly accept the said undertaking. It is clarified that if any proceedings are pending against respondent No.3 at the instance of the Municipal Corporation or at the instance of Police department or Government, such proceedings may continue in accordance with law and this Court would not like to express any opinion on the merits of such proceedings. 4. Learned counsel for respondent No.3 submitted that the first floor of the premises is not used for any commercial activity and this fact as on today, is not in dispute. So far as permission for regularization is concerned, the Corporation may decide the same in accordance with law 4 and in this behalf, if the petitioner has any grievance, he may approach the Corporation. Mr.Sakhare, appearing for the Corporation, states that as on today, no other violations have been noticed by the Corporation and whatever pending proceedings in connection with the said hotel will be decided in accordance with law. We may clarify that in future, if any violation by the said hotel is noticed, the concerned departments is at liberty to take proceedings in accordance with law. Respondent NO.3 shall act as per the undertaking dated 25-02-2010. 5. Earlier undertaking given to this Court, which is reflected in Para No.6 of the order of this Court dated 16-12-2009, shall also continue to operate. Respondent No.3 shall also be bound by the same undertaking. It is further clarified that during monsoon season, if respondent No.3 prefer any application for temporary monsoon shed, it is for the Corporation to take decision as per the policy, but respondent No.3 shall not be permitted to make any pacca constructions on the guise of monsoon shed. 6. In view of what is stated above, the writ petition is disposed of. ( R.G.KETKAR, J. ) ( P.B.MAJMUDAR, J.)