1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O.C. J. WRIT PETITION NO.2691 OF 2008 Haji M.C. Abdul Kadar (M/s.Hotel Tourist). ...Petitioner. Versus The Assistant Municipal Commissioner & Anr. ...Respondents. ....... Ms.Veena Thadani with Mr.Pradeep J.Ramchandani for the Petitioner. Ms.T.H.Puranik for Respondent Nos.1 and 2. Mr.P.R. Naidu for Respondent Nos.4(a) to 4(d). ...... CORAM : DR. D.Y. CHANDRACHUD, J. November 23, 2009. P.C.: With the consent of Learned Counsel and at their request, the petition is taken up for hearing and final disposal. 2. The Petitioner is carrying on business of a hotel at certain premises being House No.G-12, A.B. Nair Road, Juhu, Mumbai. The challenge in these proceedings is to an order passed on 26th September 2008 by the Assistant Commissioner, K-West Ward by which an Eating House Licence issued to the Petitioner was revoked. 2 The order of the Assistant Commissioner records that the notice to show cause was issued to the Petitioner on 25th June 2008 to rectify certain deficiencies and despite an inspection on 9th August 2008, the deficiencies have not been removed. 3. On 12th November 2008 when the petition came up for admission, a Learned Single Judge of this Court directed that an inspection be carried out of the premises by the Municipal Corporation in order to determine as to whether the deficiencies that were noted in the notice to show cause have been rectified. By an order dated 12th January 2009, this Court recorded that there are, in effect, three major objections to the renewal of the Eating House Licence which was granted initially about thirty years ago. The first objection is that that the process of cooking was carried out in the premises with the help of two LPG Cylinders without the permission of the Chief Fire Officer (CFO). This, the Court noted, was because the CNG connection was not renewed in view of the objections of the landlord. The Municipal Corporation stated that it did not have any 3 objection to the CFO granting permission. The second objection was that the RCC frame work was exposed and the premises did not have a grease trap chamber. The third objection was that the cook and his assistant did not have medical certificates. In so far as the first objection is concerned, this Court recorded that the Court Receiver who is appointed in respect of the premises shall make an application to the CFO for necessary permission within one week. In so far as the second objection was concerned, the Court recorded that this was again a matter for the Receiver and that the Petitioner was willing to the Receiver appointing an Architect to determine whether there were any deficiencies in this regard and for the Architect to remedy the deficiencies at the cost of the Petitioner. These suggestions were accepted and the Court Receiver was directed to do the needful forthwith. The last submission did not survive inasmuch as a statement was made before the Court that the two employees concerned, had the necessary certificates. 4. At this stage, it would be necessary to note that the Court 4 Receiver has been appointed a Receiver of the premises in proceedings independent of the present dispute by an order dated 31st January 1983 which, the Court is informed, continues to hold the field. Subsequent to the passing of the order dated 12th January 2009, a further order was passed by the Court on 3rd August 2009. By the order of the Court, it was recorded that the Receiver had applied to the CFO for permission. The Advocate for the Petitioner informed the Court that the CFO has already granted the necessary permission. In so far as the second objection noted earlier was concerned, the Court recorded that the Receiver had obtained a valuation report in which the cost of rectifying the deficiencies was estimated at Rs.36,000/-. The Petitioner was directed to deposit an amount of Rs.36,000/- with the Receiver and the Receiver was directed to carry out the work within a period of two weeks. By a further order dated 6th August 2009, the Office of the Receiver was directed to obtain a report of an Architect at the expense of the Petitioner. On 20th August 2009, the Court recorded that the Receiver has submitted a report of the Architects, M/s.Parelkar and Dallas dated 17th August 2009 in which 5 the estimated cost of repairs was assessed at Rs.18,500/-. The Receiver was directed to carry out the work through a Contractor on his panel. In the meantime, the Petitioner was directed to comply with the direction issued by this Court on 3rd August 2009. Subsequently, on 18th September 2009, the Petitioner was directed to inform the Divisional Fire Officer of the steps taken in compliance with the order of the CFO dated 27th February 2009. The Fire Officer was directed to issue his no objection subject to compliance with the requirement of the order dated 27th February 2009. The Contractor was directed to carry out the work subject to obtaining requisite permission of the Municipal Corporation. 5. The application submitted by the Petitioner has been opposed by the landlord who has also filed an affidavit and has been heard in these proceedings. 6. Counsel appearing on behalf of the Petitioner has submitted that the Petitioner has now obtained a CNG connection. Moreover, it 6 has been submitted that the work of rectifying the deficiencies in the RCC frame work and related items is being carried out in pursuance of the direction issued by the Court, through the agency appointed by the Court Receiver. 7. The question as to whether the Chief Fire Officer should or should not grant permission or his no objection, is a matter for the authority to decide. These are by their very nature not issues which can be determined by the Court in the exercise of the jurisdiction under Article 226 of the Constitution of India. The authorities concerned while implementing the provisions of the Mumbai Municipal Corporation Act, 1888 must apply their mind to all relevant questions, including the question as to safety and public interest, when they determine as to whether a permission from the point of view of fire hazards should or should not be granted. The Divisional Fire Officer, as already noted earlier, issued an order of 27th February 2009 during the pendency of these proceedings, stating that there would be no objection to the grant of the eating house licence with 7 the help of a CNG facility subject to compliance with certain requirements which are spelt out in the order. 8. Counsel appearing on behalf of the Petitioner has stated that though on 24th September 2009, the Chief Fire Officer was informed that all the conditions had been complied with, the premises were not inspected until date. The letter of the Petitioner dated 24th September 2009, a copy of which is placed on the record, does not contain any elaboration as to how each of the objections is rectified. There is only a bald statement in the letter that all conditions have been complied with and there is annexed a certificate of an agent of Mahanagar Gas Ltd. 9. The Petitioner is permitted to file a fresh representation within a period of of two weeks from today before the Divisional Fire Officer specifically dealing with each one of the requisitions contained in the letter dated 27th February 2009. The Divisional Fire Officer would verify whether the conditions stipulated in the letter dated 27th 8 February 2009 have been complied with, after inspecting the premises. The Divisional Fire Officer shall also consider any representation that may be moved on behalf of the Respondent landlord, namely, Respondent Nos.4(a) to 4(d). The Divisional Fire Officer shall thereupon pass an order within a period of four weeks from the receipt of the representation and communicate his remarks to the Medical Officer (Health). Counsel appearing on behalf of the Municipal Corporation has stated that the Medical Officer (Health) shall reconsider the entire issue and pass a fresh order within two weeks of the receipt of the communication from the Divisional Fire Officer. All parties are directed to abide by the time schedule indicated in the aforesaid direction. Since it is an admitted position that the order dated 26th September 2008 (Exh.U) came to be passed without furnishing an opportunity of being heard to the Petitioner, the order is quashed and set aside only on the ground of a breach of the principles of natural justice. The Competent Authority, in terms of the aforesaid directions, shall pass a fresh order in accordance with law after hearing all the concerned parties. In these circumstances, it 9 would not be necessary to keep the petition pending any further. The Petition is accordingly disposed of in terms of the aforesaid directions. ......