1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2199 OF 1999 1.Willingdon Sports Club & ors. ...Petitioners. vs. 1.Brihanmumbai Mahanagarpalika and another. ...Respondents. --- Mr.Z.Andhyarujina i/b. M/s.Thakordas Madgaonkar, for Petitioners. Ms.S.M.Modle, for Respondents. CORAM: D.K.DESHMUKH & R.G.KETKAR, JJ. DATED: 29th September,2009 2 P.C.:- 1. The petitioner no.1 is a non-profit Company incorporated under the Companies Act. The petitioner nos.2 and 3 are its office bearers. According to the petitioners, the petitioner no.1 Club provides to its members exclusively various sporting facilities viz. Golf, tennis, squash, billiards, badminton etc. According to the petitioners, as a part of its general activities and with a view to serve its members exclusively, the petitioner no.1-Club provides catering services for the benefits of its members and also occasionally to their guests. According to the petitioner no.1, the catering services provided by the petitioner no.1 to its members are incidental to its primary activities as a Sports Club. According to the petitioner no.1, the petitioner no.1 received a notice dated 21.11.1990 from the Respondent no.1-Corporation. By that notice, the petitioner no.1 was asked to take out licence under Section 394 of the Bombay Municipal Corporation Act for conducting eating house. Pursuant to that letter, the petitioner no.1 made an 3 application dated 24.11.1990 for grant of licence for conducting eating house. According to the petitioner no.1, they also deposited some amount with the Corporation for grant of licence. The petitioner no. 1, thereafter received a letter dated 4.11.1993 informing the petitioner no.1 that under Section 394 of the Bombay Municipal Corporation Act, the municipal licence for eating house is necessary, and therefore, the petitioner no.1 should comply with the requirements which are mentioned in the letter in order to get the licence. There was correspondence exchanged between the parties. By communication dated 19.7.1999, the petitioners were informed by the Corporation that their proposal for grant of eating house licence under Section 394 of the B.M.C.Act has been approved, further stating that the petitioner no. 1 has already paid an amount of Rs.2,70,915/- by cheque, but they were again asked to pay an amount of Rs.1,21,715.65. It is at this stage that the petitioners approached this Court by filing this petition claiming that as a club, the law does not require it to take out any eating house licence for 4 providing catering services to its members. 2. The petition is opposed by the Corporation. According to the Corporation, for providing catering services to its members, the petitioner no.1 Club also is required to take out an eating house licence under the provisions of B.M.C. Act. The respondents also relied on the judgment of this Court passed on 20.1.1986 in Writ Petition no.1413 of 1982, which according to the respondents is on identical issue. 3. The learned Counsel appearing for petitioners submits that the petitioner no.1 has been asked by the respondent-Corporation to take out an eating house licence under the provisions of Section 394 of the BMC Act. The learned Counsel submits that the question whether a club which provides catering services to its members is required to take out a licence under Section 394 of the B.M.C.Act, is considered by the Division Bench of this Court in its judgment in the case Sohrab Vakil (Lt.Col.) and another Vs. B.G.Pimple and another, 1992 Mh.L.J. 1498 and this 5 Court has held, after referring the relevant provisions of the Act as also the judgment of the Supreme Court, that for providing catering services to its members, a club is not required to take out eating house licence because providing a catering services only to its members does not amount to eating house within the meaning of the B.M.C.Act. The learned Counsel appearing for respondents, on the other hand, produced before us a copy of the order dated 20.1.1986 passed in Writ petition no.1413 of 1982 to contend that the petitioner no.1- Club is required to take out a eating house licence for providing catering services to its members. 4. Now there is no dispute between the parties that the catering services that the petitioner no.1 provides, is only to its members. The question whether a Club which as a ancillary activities provides catering services exclusively to its members can be said to be running an eating house within the meaning of the Act, fell for consideration before a Division Bench of this Court in the case Sohrab 6 Vakil (Lt.Col.) and another Vs. B.G.Pimple and another referred to above. Perusal of that judgment shows that the Division Bench has in categorical terms held that a club which maintains a facility of catering for its members exclusively as ancillary activity cannot be said to be running an eating house. In our opinion, therefore, the question that arises for consideration in this petition is no more res integra in view of the judgment of the Division Bench in the case Sohrab Vakil (Lt.Col.) and another Vs. B.G.Pimple and another referred to above. So far as the judgment of the learned Single Judge of this Court in the case 1.W.I.A.A.Club Ltd & Anr. Vs. 1.Municipal Corporation of Gr.Bombay & others referred to above, which was relied on by the learned Counsel appearing for respondents is concerned, perusal of that judgment shows that that judgment does not decide any controversy. It appears that initially the WIAA Club had filed a petition claiming that it is not required to take out eating house licence for providing catering services to its members. But when the petition came up for final hearing, it was stated on 7 behalf of the petitioner-Club that now they have decided to engage a contractor for running Canteen and therefore, they are not pressing their contention that they are not required to take out a licence for maintaining the catering services for its members. The learned Single Judge, therefore, did not decide that question in that petition. In our opinion, therefore, the submission made on behalf of the Corporation that the question that arises for consideration in this petition is already decided by the judgment of the learned Single Judge in Writ petition no.1413 of 1982 which was disposed of by order dated 20.1.1986, cannot be accepted. In our opinion, in view of the law laid down by the Division Bench in the case Sohrab Vakil (Lt.Col.) and another Vs. B.G.Pimple and another referred to above, this petition has to succeed. 5. Accordingly, the petition is allowed. It is held that for providing catering services to its members as an ancillary activity, the petitioner no.1 is not require to take out any eating house licence under the provisions of Section 394 of the B.M.C.Act. 8 As a consequence, the respondent-Corporation shall refund to the petitioner no.1 the amount that the petitioner no.1 has deposited for securing an Eating house licence. Rule is made absolute accordingly. No order as to costs. (D.K.DESHMUKH, J.) (R.G.KETKAR, J.)