Case: Brihanmumbai Mahanagarpalika  Vs. Willingdon Sports Club

Respondent No.1 provides various sporting facilities, viz., golf, tennis, squash, billiards, badminton, etc., to its members. The Catering Department of respondent No.1 provides catering services to the members and occasionally to their guests. By order dated 21.11.1990, appellant No.2 called upon respondent No.1 to make an application for grant of licence under Section 394 of the Act for the eating house. The latter submitted the application on 24.11.1990. Thereafter, Senior Sanitary Inspector of appellant No.1 sent communication dated 3.12.1990 to respondent No.2 requiring him to submit various documents including NOCs from Assistant Engineer (Buildings and Facilities) and Executive Engineer (Buildings Proposals). In compliance of that letter, respondent No.2 furnished some of the documents. However, nothing appears to have been done for the next two years.3. In May 1993, respondent No.1 approached appellant No.2 for grant of No Objection Certificate for the eating house and permission to keep L.P. Gas Cylinders. Appellant No.2 gave ‘Nofor carrying out the trade of eating house and for L.P. Gas as fuel subject to the followingThe internal roads, passages in the premises & complex of the Club shall be maintained free from obstructions.2) Entrances, exists, passages in both the Restaurants shall be maintained free from obstructions.3) The existing four cabins housing gas cylinders of i) 12 Nos. each of 50 kgs. ii) 18 Nos. each 19.2 kgs. iii) 15 Nos. each. & iv) 8 Nos. each of 19.2 kgs. shall be of brick masonary R.C.C. and as per the plan signed in token of approval.4) The gas installation shall be maintained as per "Industrial & Commercial use of L.P. Gas Rules" and got tested once in year by the gas dealer or any competent authority of inventory to that effect shall be maintained.5) The Gas cabins shall be kept under lock and key.6) Smoking, cooking, heating, use of naked light shall be prohibited near the gas cabins.7) The gas pipes shall be supported, protected from physical damages, painted in red and taken at least 10 cms below the electric wirings/ cables.8) Main shut of valves shall be provided to the gas pipes where pipes enter into the building for promptly closing the valves in case of emergency.9) Tandoors in kitchen on ground floor permitted. However, any other fuel, any gas cylinders shall not be used.10) Premises shall be kept well ventilated by providing Exhaust fans in the kitchens.11) Metal hood covering the burners shall be provided. The ducting shall be taken to roof level or water wash system.12) Fire extinguishers shall be kept as follows:a) One dry chemical powder extinguisher each of 10 kgs. having I.S.I mark & two buckets of sand shall be kept at each of the 4 gas cabins. b) Two dry chemical powder extinguishers each of 10 kgs. & two sand buckets shall be kept in the kitchen of Indian Food. c) One dry chemical extinguisher of 10 kgs. shall be kept in Chinesefrom the appeal paper book)4. After four months, appellant No.2 sent communication dated 4.11.1993 to respondent No.2 for compliance of the requirements communicated by Chief Fire Brigade Officer and also by his department. The relevant portions of that communication are extractedreference to your above application, I have to inform you that your request will be considered subject to satisfactory compliance of the following requirements communicated by Chief Fire Brigade Officer alongwith the requirements of this department within 14 (fourteen) days from the date of receipt of this letter. If you fail to carry out the same within specified time, necessary action under Sec. 394 of Bombay Municipal Corporation Act will be initiated against you which please note.1) The internal roads, passages, in the premises and complex of club shall be maintained free from obstructions.2) Entrances, Exists, passages in both the Restaurants shall be maintained free from obstructions.3) The existing four cabins housing gas cylinders of (i) 12 Nos. each of 50 kgs., (ii) 18 Nos. each of 19.2 kgs., (iii) 15 Nos. each of 50 kgs., (iv) 8 Nos. each of 19.2 kgs., shall be of brick masonry / R.C.C. and as per the plan signed in taken of approval.4) The Gas installation shall be maintained as per "Industrial & Commercial use of L.P. Gas Rules" and got tested once in year by gas dealer or any competent authority of Inventory to that effect shall be maintained.5) The gas cabins shall be kept under lock and key.6) Smoking, cooking, heating, use of naked light shall be prohibited near the gas cabins.7) The gas pipe shall be supported, protected from physical damage, painted in red and taken at least 10 cms, below the electric wiring / cables.8) Main shut of valves shall be provided to the gas pipes where pipes enter into the building for promptly closing the valves in case of emergency.9) Tandoors in kitchen on ground floor permitted, however, any other fuel, any loose cylinders shall not be used.10) Premises shall be kept well ventilated by providing exhaust fan in the Kitchens.11) Metal hood covering the burners shall provided. The ducting shall be taken to roof level or water wash system.12) Fire extinguishers shall be kept as follows:-a) One dry chemical powder extinguishers each of 10 kgs. having I.S.I. Mark and two buckets of sand shall be kept at each of 4 Gas cabins.b) Two dry chemical powder extinguisher each of 10 kgs. and two sand buckets shall be kept in the kitchen of Indian food.c) One dry chemical extinguisher of 10 kgs. shall be kept in Chinesesupplied)(reproduced from the appeal paper book)5. On the same day, i.e., 4.11.1993, appellant No.2 sent another letter to respondent No.2 informing him that the application for grant of trade licence will be considered subject to fulfillment of the followingIn the eating house(a) Where snacks are prepared and served, there shall be at least 3 rooms, one of which shall be used as a dining room, another as kitchen and the third as a store room. The rooms to be used as dining room and as kitchen shall not be less than 9.2903 sq.mt. (100 qt.ft.) each in floor area and not less than 2.440 mt.(8 ft) on any side. The third room to be used as a store room shall not be less than l/3rd of the total area of the dining room and the kitchen upto the maximum of 9.2903 sq. mt.( 100 sq. ft.). The height of all these rooms shall be as required under the Building Bye- Laws of the Bombay Municipal Corporation, i.e. 3.050 mt. (10 feet).(b) Where articles of food other than snacks are to be prepared and served, there shall be at least 3 rooms one of which shall be used as a dining room, another as a kitchen and the third as a store room. The room to be used for dining and kitchen shall not be less than 11.1484 sq. mt. (120 sq. ft.) each in floor area and not less than 2.440 mt (8 feet) on any side. The third room to be used as store room shall not be less than l/3rd of the total area of the dining room and kitchen upto the maximum of 9.2903 sq. mt. (100 sq. ft.), the height of all these room shall be as required under the Building Bye-laws of the Bombay Municipal Corporation, i.e. 3.050 mt. (10 feet)(c ) where only ready-made articles of food are served. There shall be at least two rooms, one of which shall be used for storing ready-made articles of food and the other as a service room. None of the rooms shall be less than 9.2903 sq. mt. (100 sq. ft.) each in floor area and no less than 2.440 mt. (8 ft.) on any side. The third room to be used as store room shall not be less than l/3rd of the total area of the dining room and kitchen upto the 9.2903sq. mt. (100 sq. ft.). The height of all these rooms shall be as required under the Building Bye-laws of the Bombay Municipal Corporation i.e. 3.050 mt. (10 feet)(2) All the rooms shall be well-lighted and well-ventilated naturally or with the aid of artificial means and the cook room and the dining room especially shall have "thorough ventilation."(3) The walls of all the rooms of the Eating House shall either be oil-painted or otherwise rendered impervious to moisture and dirt upto a height of at least 1.83 mt. (6 feet) from the floor and the remaining upper portion above 1.83 mt. (6 feet), if not oil-painted or made impervious to moisture and dirt, shall be limewashed. All the wood-work in all the rooms shall be oil-painted.(4) Water shall be stored for use during non-supply hours in a brass receptacle with a tight fitting cover and a tap. The receptacle shall be placed on a suitable stand at least 381 mt. (15 inches) height above the floor. It shall be tinned from inside whenever necessary and shall be cleaned twice daily and steps shall be taken to see that water is not contaminated in the process of storing or handling.(5) Freely ventilated fly-proof safes and other means shall be provided and meat, milk and other eatables shall be kept in them so as to protect all artificial food from contamination by dust, flies and insects.(6) Metal sanitary dust bin or bins of approved pattern with a close fitting lid for each shall be provided and maintained in good repairs and used for the deposit of waste food and sweepings of the floor etc. and shall be emptied at least once a day at the Mahalaxmi Refuse Siding which is the place appointed by the Municipal Commissioner for the removal and deposit of trade refuse. In the alternate transport facilities provided by Corporation shall be availed of on payment of fixed charges.(7) A sufficient number of table shall be provided in the room used for eating and cooking. The top of each table shall be covered with marble, zinc or some other equally suitable material presenting a non- absorbent even surface. Only clean cloth or other dusters shall be used to clean tables etc.(8) A proper washing place with tap from Municipal Main Measurement shall be provided in the kitchen. Such washing place shall be properly drained and shall discharge over a half channel gully at least 457 mt. (18 inches) away from the drain inlet and in the case of the trade located in Greater Bombay where drainage system does not exit, the arrangement for disposal waste water shall be such as to meet with the approval of Municipal Health Authorities. In the absence of Municipal Water mains in any area, arrangements shall be made to store such quantity of water and in such manner as will be directed by the Municipal Health Authorities.(9) All copper and brass cooking utensils shall be tinned as often as necessary or at least once in two months.(10) No person suffering from any contagious or infectious disease shall be employed on the premises in any capacity.(11) The room used for cooking shall be adequately separated from the room used for eating. All cooking operations including the preparation of bhajias or similar artificial shall be carried out in cooking room only by using kerosene oil stoves, gas or electrical as fuel and fuel of any other kind shall never be used therein.(12) No "Panshop" or other structure shall be put up or allowed to be put at the entrance in such manner so as to encroach on the space or to obstruct light and ventilation of the Eating House.(13) The entire premises of Eating House and all appliance used therein shall at all times be kept in a scrupulously clean and sanitary condition and any practice which may lead to the food being contaminated shall not be employed or permitted to be employed in the storage, handling, preparation or serving of food.(14) No broken, cracked or chipped articles of crockery or other utensils shall be used in the eating house either for preparation of food-stuffs or to serve them.(15) Boards in English and in vernacular prohibiting spitting on the walls or the floor of the trade premises shall be exhibited.(16) A certificate in the prescribed form that adequate water supply by meter measurement has been provided shall be obtained from the Hydraulic Engineer, Bombay Municipal Corporation.(17) A wash-basin with a metered tap and a looking glass shall be provided in a suitable part of the service room of the Eating House and maintained at all times in a clean and sanitary state for use of the visitors.(18) Waiters or other servants employed in the eating house shall always wear clean apparel while engaged in work in the eating house.(19) No part of the eating house shall be used for stocking, storing or keeping unserviceable articles.(20) The management shall take measures to have the premises occupied by Eating House treated with insecticides to rid it of any insect pest at least once in four months either through the Municipal agency or any firm recognised in this behalf.(21) The floor of every room used for eating, cooking or the storage or preparation of food shall be paved with hard impervious material with a smooth and even surface.(22) The eating house or any part of it shall not be used for dwelling purposes, except in the Eating Houses which have separate special arrangements for lodging the customers.(23) No encroachment shall be made on any footpath adjoining the eating house by placing thereon chairs, benches, tables, soda water boxes or any other articles either for the use of applicant or his customers.(24) The entire trade of conducting the eating house and all the operations connected therewith shall be strictly restricted to the area occupied by the concern.(Para 25 is not given in the appeal paper book)(26) No article of food which is adulterated, unwholesome or unfit for human consumption shall be kept, sold or exposed for sale on the trade premises.(27) Requirements of Chief fire brigade officers are out.(28) The applicant produces an authority letter issued by said Club authorising him to hold the licence in hisfrom the appeal paper book)6. While the issue relating to compliance of the conditions enumerated in the two letters dated 4.11.1993 was pending, appellant No.2 sent demand notice dated 14.1.1994 to respondent No.2 for payment of Rs.2,70,915 as licence fees. The respondents paid the amount, but after expiry of the period specified in notice dated 14.1.1994. This prompted appellant No.2 to send notice dated 23.6.1994 to respondent No.1 for payment of additional amount of Rs.1,04,756.25. Respondent No.2 sent reply dated 27.6.1994 citing the opinion of a law firm that the club is not required to obtain eating house licence under the Act because food and beverages are not served for any profit or gain. The appellant did not accept this assertion and demanded Rs.1,21,715.65 towards compounding fee.7. Respondent No.1 and two of its office bearers challenged the demand notice before the Bombay High Court in Writ Petition No.2199/1999 primarily on the ground that catering facilities being provided to its members were incidental to their main activities and the same are exclusively meant for the members and not for the public.8. In the written statement filed by the appellants, it was averred that food items were being prepared by the Catering Department on large scale and a licence was required to be obtained from the point of view of health and safety of the members coming to the club.9. The Division Bench of the High Court relied upon order dated 18.9.1992 passed by a co-ordinate Bench in Writ Petition No.4765 of 1984 titled Sohrab Vakil (Lt.Col.) and another v. B.G. Pimple and another and held that respondent No.1 is not required to take licence under Section 394 of the Act because the catering facilities provided to its members are ancillary to the main activity, i.e., the sporting facilities. The relevant portion of the Highorder is reproducedquestion whether a Club which as 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 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 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

Reasoning:
25. In Balkrishna Karkera v. K.J. Mishra and another AIR 1979 (Bombay) 198, learned Single Judge interpreted Section 394(1)(e)(i) read with Section 471 of the Act andit is pertinent to note that although the expression "eating house" has been defined under the Bombay Municipal Corporation Act, the expression "catering establishment" has not been defined. It is true that the staff canteen run by Accused No. 2 was not open to the members of the public at large and the admission was restricted solely to the employees of the said Company. To that extent Mr. Shrikrishna would be justified in his submission that the staff canteen could not be termed as an "eating house." However, what is significant is the fact that Accused No. 2 has not been charged with carrying on an "eating house" but he has been charged for carrying on a catering establishment. "Catering establishment" is an expression which is wider in its connotation than the expression "eating house" and whether a staff canteen was open to the public or restricted only to a section of the public, it would still fall within the definition of a "catering establishment".In our view, the aforesaid judgments of the Bombay High Court lay down correct law and ratio thereof deserves to be applied for interpreting Section 394 (1) (e) read with Part IV of Scheduleof the Act.27. As a sequel to the above discussion, we hold that the Bombay High Court was not right in relieving the respondents of the obligation to take licence under Section 394(1)(e) of the