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TMI Blog2013 (11) TMI 1817X X X X Extracts X X X X X X X X Extracts X X X X ..... ts 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 and complex of the Club shall be maintained free from obstructions. (2) Entr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action Under Section 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 and 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticles 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 1/3rd 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 lime washed. All the woodwork in all the rooms shall be oil-painted. (4) Water shall be stored for use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 met ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating 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 Anr. v. B.G. Pimple and Anr. 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 sport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri T.R. Andhyarujina, learned senior counsel for Respondent Nos. 1 to 3. The Act is divided into 25 Chapters. Chapters IX to XV except Chapter XII contain provisions which are regulatory in nature and are meant for the benefit of public at large. Chapter IX contains provisions for construction of drains and cleaning thereof, connection of the drains of private streets with municipal drains, disposal of sewage, construction of water-closets, privies, urinals, etc. and inspection thereof. Chapter X contains provisions for regulating water supply, inspection of water works, prohibition of building and other acts which may injure sources of water. Chapter XI contains provisions for Regulation of streets, public as well as private and lighting thereof. Chapter XII contains provisions for regulating construction of buildings, removal of dangerous structures, etc. Chapter XIII speaks of grant of licences of surveyors and plumbers and making of Regulations for guidance of licensed surveyors and plumbers and fees, etc., to be charged by them. Chapter XIV contains the provisions relating to municipal fire brigade. Chapter XV contains provisions of scavenging and cleaning of streets and re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... giene, health and safety and also for preventing dangers to life, health and property. Schedule 'M', which is part of Section 394, specifies the articles which cannot be kept in or upon any premises without a licence. Part IV of the schedule specifies trades or processes or operations connected with trades, which cannot be carried on or allowed to be carried on any premises without a licence. These include keeping of an eating house or catering establishment. The object of incorporating the requirement of a licence for an 'eating house' or 'catering establishment' is to ensure that public hygiene is maintained at the place/premises where the food is prepared and/or supplied for consumption. It is also intended to ensure safety of the people engaged in the preparation of food articles and supply thereof as well as all those who consume the articles at the particular place/premises. The No Objection Certificate dated 25.6.1993 issued by Appellant No. 2 shows that the municipal authorities are very much concerned about the safety and health of the people coming to the premises and complex of the club. The first requirement incorporated in that letter is free ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or unfit for human consumption can be kept or sold or exposed for sale in the eating house. These conditions are meant for ensuring that the premises where the food is prepared and supplied are kept clean, adequately ventilated and appropriate measures are taken by those in control of the premises and quality of food is maintained to ensure that there is no compromise with the health and safety of the people. 13. In its publication titled 'Safe Food for Better Health' (2002 Edn.), the World Health Organisation (WHO) has recognized that the availability of safe food is a basic human right because it contributes to health and productivity. Many countries including USA, Australia, Germany, France, Canada, United Kingdom and India have adopted a food safety Regulation mechanism, either through sui generic legislation or through the adoption of global codes prescribed by the WHO and other UN agencies. However, the implementation of these Regulations cannot be guaranteed if there is no monitoring system. It is essential for the success of these Regulations and policies that adequate steps are taken to ensure the compliance to standards by those in the industry. In order to ensur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo parts are extracted below: SCHEDULE IV PART-II GENERAL REQUIREMENTS ON HYGIENIC AND SANITARY PRACTICES TO BE FOLLOWED BY ALL FOOD BUSINESS OPERATORS APPLYING FOR LICENSE. The establishment in which food is being handled, processed, manufactured, packed, stored, and distributed by the food business operator and the persons handling them should conform to the sanitary and hygienic requirement, food safety measures and other standards as specified below. It shall also be deemed to be the responsibility of the food business operator to ensure adherence to necessary requirements. In addition to the requirements specified below, the food business operator shall identify steps in the activities of food business, which are critical to ensure food safety, and ensure that safety procedures are identified, implemented, maintained and reviewed periodically. PART - V SPECIFIC HYGIENIC AND SANITARY PRACTICES TO BE FOLLOWED BY FOOD BUSINESS OPERATORS ENGAGED IN CATERING/FOOD SERVICE ESTABLISHMENTS. In addition to Part-II the Catering/food Service establishment in which food is being handled, processed, manufactured, stored, distributed and ultimately sold to the customers and the persons handl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsumption on the premises for profit or gain. However, if we apply purposive interpretation, then it becomes clear that the catering department of the club which prepares and serves/supplies food to members of the club is covered by the definition of the expression 'eating house'. It cannot be denied that members of club also fall within the ambit of the term 'public'. No doubt, the primary activity of the club is to provide sporting facilities to the members, but the supply of food is an integral part of such activity and the catering department of the club satisfies an essential component of the facilities provided by the club. One can take judicial notice of the fact that many members who avail sporting facilities remain on the premises for a very long period. Therefore, the articles of food become integral part of their activities. Not only this, many join the club in the name of availing sporting facilities only for the purpose of spending their time in leisure and for enjoying the facilities provided by the Catering Department of the club. Thus, even though profit may not be the motto of catering facilities provided by Respondent No. 1, it certainly gains by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eign and Colonia Ships, exp. Hargrove and Co. (1875) LR 10 Ch App 545 in at 546, 547, Jessel MR held that Gain is not restricted to pecuniary or commercial profits, it includes other considerations of value obtained. 21. From the above dictionary meanings and judgment of 1875, it becomes clear that the word 'gain' is not synonymous with the word 'profit'. It is not restricted to pecuniary or commercial profits and includes other considerations of value gained. Any advantage or benefit acquired or value addition made by some activities would amount to 'gain'. Therefore, even though profit is not the motto of the club but the advantage derived by it by supplying food to its members and their guests is certainly covered by the word 'gain' appearing in the definition of 'eating house'. 22. The issue deserves to be examined from another angle. While the expression 'eating house' has been defined in Section 3(ff) of the Act, the expression 'catering establishment' has not been defined. The scope of that expression is certainly wider than the expression 'eating house'. 23. The expression 'catering establishment' came ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use of hotels, eating houses, tea or coffee shops and restaurants within the Municipal Borough and in Part I, which contains definitions, catering establishment has been defined as meaning any place used for the business of sale of any article of food or drink for consumption on the premises and including hotel, eating house, tea or coffee shop or restaurant, pan bidi shops and sugarcane juice shop. This definition would clearly show that a catering establishment means any place used for the business of sale of articles of food or drink and as pointed out by the Supreme Court in State of Bombay v. Hospital Mazdoor (1960) 62 Bom. L.R. 558: ...'trade' according to Halsbury, in its primary meaning, is 'exchange of goods for goods or goods for money', and in its secondary meaning it is 'any business carried on -with a view to profit whether manual or mercantile, as distinguished from the liberal arts or learned professions and from agriculture'; whereas 'business' is a wider term not synonymous with trade and means practically anything which is an occupation as distinguished from a pleasure. It would thus be seen that the concept of earning profits is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the abstract, they are more or less elastic and admit of restriction or expansion to suit the subject-matter. While expressing truly enough all that the legislature intended, they frequently express more in their literal meaning and natural force; and it is necessary to give them the meaning which best suits the scope and object of the statute without extending to ground foreign to the intention. It is, therefore, a canon of interpretation that all words, if they be general and not express and precise, are to be restricted to the fitness of the matter. They are to be construed as particular if the intention be particular; that is, they must be understood as used with reference to the subject-matter in the mind of the legislature, and limited to it. (Emphasis supplied) 25. In Balkrishna Karkera v. K.J. Mishra and Anr. AIR 1979 (Bombay) 198, learned Single Judge interpreted Section 394(1)(e)(i) read with Section 471 of the Act and observed: Now it 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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