SEEMA VISHAL THANDANI Vs. MUNICIPAL COMMISSIONER

JUDGEMENT

(1.) The short question that arises for consideration in this petition is whether a licence u/s. 394 of the Mumbai municipal Corporation Act 1888 (for short the mmc Act") is required to be obtained for the purpose of sale of liquor which is served in sealed bottles in a retail liquor shop, not for consumption on the retailer's premises.

(2.) Petitioner holds a licence in form fl II issued to her under section 34 of the bombay Prohibition Act, 1949. Under the terms of the licence, the licencee is allowed to sell foreign liquor in sealed bottles in Shop no. 15, atur Park, Shiv-Parvati Co-operative Housing society, Sion Trombay Road, Chembur, mumbai 400 071. Under Rule 38 of the bombay Prohibition Rules, the liquor is to be sold only in corked bottles, sealed or capsuled. Rule 35 prescribes that the person in charge of the licenced premises shall not permit the liquor to be consumed on the licensed premises. In pursuance of the said licence, petitioner sells foreign liquor in corked bottles, sealed or capsuled, only and the bottles are to be carried by the purchaser holding a valid licence for being consumed at his home or elsewhere but not in the petitioner's shop. Petitioner has also obtained a licence under the Shops and establishments Act for the purpose of running of the shop for sale of liquor. Petitioner however has not obtained any licence, commonly known as a "health Licence" under section 394 of the MMC Act.

(3.) On 5th July, 2005, respondents issued a notice to the petitioner stating that the petitioner was illegally carrying on trade of keeping and selling liquor without a valid licence from the Commissioner as required u/ s. 394 of the MMC Act. By the said notice, petitioner was called upon to discontinue trade of selling of liquor in sealed bottles failing which legal proceedings would be instituted against her without further warnings. That notice is impugned in this petition.