A.A Desai, J.:— In these proceedings, the petitioners, inter alia, claim that the Club does not carry any activity of Eating House as envisaged under section 394(e)(i) read with Schedule M, Part IV of the Bombay Municipal Corporation Act, 1888 (‘the Act’) and hence, in the absence of licence under the relevant provisions, are not henceforth liable to be prosecuted.
2. The petitioner No. 2 a Sports Club, amongst others, principally carries an activity of promoting Yachting. To facilitate its members, the Club maintains a Dining Room. The petitioners since did not possess the requisite licence were prosecuted for the offence under section 394(1)(e)(i) read with section 471 of the Act. The learned Metropolitan Magistrate on conviction, awarded a fine of Rs. 250/-. The Club carried an appeal. The appellate Judge has mainly placed reliance on a decision dated 5th August, 1980 delivered in Misc. Petition No. 399 of 1977, The Boots Company (India) Ltd. v. B.M.C, which has broadly followed the principle laid down in a decision (delivered by Tulzapurkar, J.) dated 21st November, 1973 in Criminal Appeal No. 593 of 1972, State of Maharashtra v. M.P Kamat. It is observed therein that profit motive or accessibility to the public are not necessary attributes of trade or business. The appellate Court confirmed the conviction and sentence.
3. Mr. Chandrachud, learned counsel appearing for the petitioners-Club, particularly invited our attention to:
“Section 394(1)(e)—Except under and in accordance with the terms and conditions of the licence granted by the Commissioner, no person shall carry on or allow or suffer to be carried on, in or upon any premises—
(i) any of the trades specified in Part IV of Schedule M…”
The Schedule Entry—
“Trades or processes or operations connected with trades which shall not be carried on or allowed to be carried on in or upon any premises without a licence.”
Section 3(ff) — “Eating House” “means any premises to which the public are admitted and where any kind of food is prepared or supplied for consumption on the premises for the profit or gain of any person owning or having an interest in or managing such premises.”
(Emphasis supplied)
4. Learned counsel mainly stressed upon the phraseography on which emphasis is supplied. He pointed out that as an undisputed position, as per the Constitution of the Club, the services of the Dining Room are restricted to its members and they are occasionally availed by the guests of the members. The management of the Dining Room is carried by the Club. The services of a contractor have not been engaged. The Club does not run the Dining Room by way of trade.
5. The Club is not required to obtain a requisite licence. In support, reliance is placed on a decision in Northern India Caterers (India) Ltd. v. Lt. Governor Of Delhi., (1978) 4 SCC 36 : AIR 1978 SC 1591.
6. The predominant activity of the Club is to promote and to provide facilities to the members for a sporting activity known as Yachting. To carry out this activity successfully, the Club has incidentally provided the Dining Room. It is exclusively meant for the members and is also managed by the members. As such, they serve themselves. As required by defining clause (ff) of section 3 of the Act, it does not cater the needs of any outsider or members of the public. Apparently, Dining Room is a domestic device of the Club, which is incidental to principal activity of sport. The Supreme Court in The Secretary, Madras Gymkhana Club Employees' Union v. The Management of the Gymkhana, AIR 1968 SC 554 held that—
“the club was only a member's club and a member's self-serving institution and not an industry. No doubt the material needs or wants of a section of the community were catered for but that was not enough as it was not done as part of trade or business or as an undertaking analogous to trade or business.”
7. The Dining Room is maintained as facility to the members-participants in Yachting. It could not be in that sense an eating house carried by way of trade, which is considered to be unimpeachable character envisaged under the relevant provisions referred to hereinbefore. Since the Dining Room is a domestic arrangement only for members of the Club, purport of maintaining any hygienic standard, etc. cannot be solicited. Activity of Dining Room does not represent any characteristic of trade, including profit motivation. Obtaining licence by or for such Dining Room cannot rationally be insisted. We, therefore, hold that the activity known as ‘Dining Room’ of the petitioner Club does not attract, in any manner, clause (e) of sub-section (1) of section 394 of the Act. As such, the petitioner-Club is not liable to obtain the licence required for eating house under the relevant provisions.
8. The petitioners further claim for setting aside of the order of conviction passed by the learned Metropolitan Magistrate, which is confirmed by the learned appellate Court. However, we do not propose to interfere with the conviction in these proceedings under Article 226 of the Constitution. The relief in this regard is hereby rejected.
9. The rule is made absolute in terms of prayer clause (b). However, there will be no order as to costs.
Order accordingly.