IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION WRIT WRIT WRIT PETITION (LODG) NO. 1605 OF 2008 PETITION (LODG) NO. 1605 OF 2008 PETITION (LODG) NO. 1605 OF 2008 1. Shree Khuntu Impex Pvt. Ltd. & anr. ] .. Petitioners Versus 1. The Municipal Corporation of Greater] Mubmai & anr. ] .. Respondents Mr. T.N. Subramaniam, senior counsel i/b Ms. Kavita Brid for the petitioners. Mr. A.Y. Sakhare, senior counsel with Mr. N.A. Shaikh for the respondents. Mr. D.D. Madon, senior counsel with Mr. Cyrus Ardeshir i/b M/s. M.V. Deshpande & Co. for Intervenor Shri Krishna Hindu Merchant Club. Mr. Rajiv Narula for Intervenor Mr. Chhadha. CORAM: S.B. MHASE & A.A. KUMBHAKONI, JJ. DATED: 3RD JULY, 2008 P.C. : 1. The learned counsel for the petitioners, on instructions, makes a statement that in the establishment of the petitioner in issue, the petitioner will not serve Hukkah of any type and will carry out the activity as per the licence which has been granted to the petitioners by the corporation in that regard. The statement made by the learned counsel for the : 2 : petitioners is accepted. 2. The learned counsel for the corporation has filed an Affidavit of the Municipal Commissioner Dr. Jairaj M. Phatak, IAS. The affiant has stated thus: "I say that the hukkah facilities being offered at the establishments conducting the business of Eating House, Restaurants, Hotels as well as the Establishments exclusively being used as Hukkah Parlours are doing so in violation of the conditions of Licence issued under section 394 of the Mumbai Municipal Corporation Act, or without having any licence in that regard as well as in violation of the provisions of The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply & Distribution) Act, 2003 and the Rules framed thereunder. In view of the above, in public interest, action in accordance with law will be initiated wherever Hukkah facilities are being offered." 4. This statement in the Affidavit filed by the Municipal Commissioner is also accepted by this court. 5. Mr. D.D. Madan, the learned counsel appearing for the intervenor who is the owner of the premises where the petitioners’ establishment is located, vehemently opposed the Petition. He submitted that apart from the grounds of serving Hukkah, the Intervenors had some other grievances of illegal activities carried out by the petitioners. Therefore, : 3 : he submitted that the petitioners’ licence should not be continued. 6. What we find is that the cause of action for the present Petition is only limited to the cancellation of the licence of the petitioners on the ground of Hukkah being served in the establishment. Now the learned counsel for the petitioners has made a statement, on instructions, that Hukkah will not be served in the said premises. As we have accepted the said statement, we find that the grievance of the Intervenor to the extent of serving of Hukkah stands redressed. For the other grievances of the Intervenors, the Intervenors may file appropriate proceedings before appropriate courts of law and to that extent, liberty is granted to the Intervenors. 7. On recording the statement of the petitioners and the Commissioner of the Municipal Corporation, we find that the grievances of the corporation in respect of serving of Hukkah by the petitioners is redressed; so also the grievance of the petitioners that the corporation is likely to take discriminatory action favouring some other Hukkah sellers stands redressed Therefore, the grievances of the petitioners as well as the corporation are satisfied in view of the statements : 4 : made by each other. 8. We are aware that the orders passed by the corporation under section 394(5) of the Mumbai Municipal Corporation Act are appealable before the Small Causes Court, but since we found that there was an allegation of discrimination made by the petitioners in this petition, we have entertained the petition in view of the provisions of Article 14 of the Constitution of India. We make it clear that in other petitions, if any, whether the petition is to be entertained or not inspite of the alternate remedy available, will be the sole discretion of that bench and, therefore, we leave open that aspect for the consideration of the concerned bench whenever such matters come up before them. 9. In view of the above, we set aside the impugned order No.ACD/365/MOH dated 24th June, 2008 (Exhibit-G to the Petition) passed by the Municipal Corporation which has been challenged in this petition. 10. Writ Petition, accordingly, stands disposed of. Sd/- Sd/- [A.A. [A.A. [A.A. KUMBHAKONI, J.] KUMBHAKONI, J.] KUMBHAKONI, J.] [S.B. [S.B. [S.B. MHASE, J.] MHASE, J.] MHASE, J.]