SARDAR REFRESHMENTS Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The Bombay Shops and Establishments Act 1948 inter alia defines the expression commercial establishment in Clause (4) of section 2 to mean an establishment which carries on any business, trade or profession or any work in connection with or incidental or ancillary to any business, trade or profession. The definition also excludes certain establishments and among them are residential hotels, restaurants, eating houses, theatres and other places of public amusement or entertainment. Clause (8) of section 2 defines the expression 'establishment' inter alia to mean a shop, commercial establishment, residential hotel, restaurant, eating house, theatre, or other place of public amusement or entertainment to which the Act applies. Section 7 of the Act provides for the registration of establishments. Section 19 inter alia provides for the opening the closing hours of restaurants and eating houses. Sub-section (1) of section 19 provides that notwithstanding anything contained in any other enactment for the time being in force, no restaurant or eating house shall be opened on any day earlier than 5 a. m. and closed later than twelve midnight for service. The proviso thereto stipulates that an employee in restaurant or eating house may be required to commence work not earlier than 4.30 a. m. and shall not be required to work later than 12.30 a. m sub-section (2) of section 19 provides that subject to the provisions of sub-section (1) the State Government may fix later opening or earlier closing hours for different restaurants or eating houses or for different areas or for different periods of the year. A power to grant an exemption from the provisions of the Act is conferred in section 4. Section 4 provides that notwithstanding anything contained in the Act, the provisions of the Act mentioned in the third column of Schedule II shall not apply to the establishments, employees and other persons mentioned against them in the second column of the schedule. By the proviso to section 4, the State Government is empowered by notification in the Official Gazette to add, omit or alter any of the entries of the schedule subject to such conditions if any that may be prescribed in the notification. The Second Schedule to the Act contains in pursuance of section 4 a list of establishments and a statement of those provisions of the Act from which the establishments are exempted.

(2.) A restaurant by the name of Sardar Refreshments is in existent for well over two decades at Tardeo. The restaurant has an eating house licence. Entry 268 of the Second Schedule to the Bombay Shops and Establishments act, 1948 which was added by a notification dated 9th September, 1991 of the State Government is in respect of the establishment of the petitioner viz. Sardar Refreshments, 164-A Tardeo Road, opposite B. E. S. T. Depot, Tardeo bombay 400 034. Column 3 of the schedule corresponding to this entry specifies that the establishment is exempted from the provisions of section 19 subject to the condition that the establishment should not be opened on any day earlier than 12. 00 noon or closed after 2. 00 a. m. Thus, in so far as the governing provisions of the Bombay Shops and Establishments Act are concerned, the establishment of the petitioner is duly registered and is specifically listed as one of those establishments which is exempted from the opening and closing hours that are specified in section 19 subject to the condition that the establishment shall not open prior to 12. 00 noon or close after 2. 00 a. m.

(3.) Section 33 of the Bombay Police Act empowers the Commissioner, the district Magistrate or as the case may be the Superintendent of Police to make regulations with respect to the matters listed out in various Clauses of sub section (1). Clause (xa) of sub-section (1) which falls within the jurisdiction of the Commissioner is the registration of eating house including granting a certificate of registration in each case which shall be deemed to be a written permission required and obtained under the Act for keeping the eating house and the annual renewal of such registration within the prescribed period. Clause (w) inter alia provides for the licensing or controlling places of public amusement and entertainment. In Clause (wa) of sub-section (1) provisions has been made for licensing or controlling musical, treatrical and other performances for public amusement including melas and tamashas and regulating the hours during which and the places at which such performances may be given. An eating house is defined in Clause (5-A) of section 2 to mean any place to which the public are admitted and where any kind of food or drink is supplied for consumption in the premises by any person owning or having an interest in or managing such place and includes a refreshment room, boarding house, coffee house and/or a shop where food or drink is supplied to the public for consumption but does not include a place of public entertainment. A place of a public entertainment in Clause (10) of section 2 means a lodging house, boarding and lodging house or residential hotel and includes any eating house in which any kind of liquor or intoxicating drug is supplied. The establishment of the petitioner is not a place of public enter- tainment, since it is stated on behalf of the petitioner that the petitioner does not have a licence under the Bombay Prohibition Act, 1949 nor does it supply any kind of liquor or intoxicating drug. The establishment of the petitioner is also not a place of public amusement within the meaning of section 2 (9). The grievance of the petitioner in these proceedings under Article 226 arises out of an endorsement made on the eating house licence issued to the petitioner under the Bombay Police Act 1951 in which it has been stated that the establishment can remain open between 5 a. m. till 1.30 a. m. According to the petitioner, the police authorities have no jurisdiction to make that endorsement particularly having regard to the fact that the hours during which the establishment may remain open are regulated by the Bombay Shops and establishments Act, 1948, the schedule whereto expressly contemplates that the closing hours would be at 2. 00 a. m.