IMPORTANT POINT
Gain is different from profit. Even in absence of profit gains derived from offering catering services would make a Club an eating house.

JUDGMENT

G.S. SINGHVI, J.

1. The question which arises for consideration in this appeal filed against order dated 29.9.2009 passed by the Division Bench of the Bombay High Court in Writ Petition No.2199/1999 is whether respondent No.1 is obliged to take licence under Section 394(1)(e) read with Part IV of Schedule ‘M’ of the Bombay Municipal Corporation Act, 1888 (now titled as ‘the Mumbai Municipal Corporation Act, 1888’ – for short, ‘the Act’) for the catering services provided by it to the members and their guests.

2. 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 ‘No Objection’ for carrying out the trade of eating house and for L.P. Gas as fuel subject to the following conditions:

“(1) The 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 Chinese kitchen.”

(reproduced from 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 extracted below:

“With reference 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 Brigad