WP/116/2012 of INDIAN HOTELS AND RESTAURANT ASSOCIATION Vs STATE OF MAHARASHTRA on 30 December 2011

Conclusion

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION (L)NO.2920 OF 2011

Indian Hotel & Restaurant Association..Petitioner.

V/s.

State of Maharashtra& Another..Respondents.

Mr. R. D. Soni along with Mr. Gawde i/b. M/s. Ram & Co., for the Petitioner in W.P.(L) No.2920 of 2011. Mr. J. S. Saluja, AGP, for the Respondents.

CORAM: M.L.TAHALIYANI & G.S.GODBOLE,J.J. (Vacation Court)

DATE : 30[th] DECEMBER, 2011.

P.C:-

1Mr. Soni appearing for the Petitioner states that since the Writ Petition is filed for the benefit of 134 members, Court Fees in 134 sets would be paid within two weeks, irrespective of disposal of the Writ Petition. Statement accepted.

2The only substantive prayer in the Writ Petition (L)No.2920

of 2011 reads as under:-

“ That this Hon’ble Court may be pleased to issue a Writ of Mandamus or any other appropriate writ, order or direction directing the Respondents to permit the Petitioners’ members to run their establishments and to play orchestra upto 5.00 a.m. on 1[st ]January, 2012 in accordance with the Circular dated 20[th] December, 2011 which is annexed at Exhibit “I” hereto.”

3Mr. Soni relied upon the permission dated 24[th] December, 2011 granted by Assistant Police Commissioner, Chembur Division, Chember, Mumbai, in favour of Hotel Sant Punjab, thereby granting permission to carry on orchestra till 5.00 a.m.. The learned AGP on instructions from the Officer from the Police Head Quarter states that through oversight and by mistake, the permission to run orchestra till 5.00 a.m. was granted in the aforesaid order dated 24[th] December, 2011 and appropriate modification will be issued. Statement accepted.

4The Deputy Secretary of the Home Department, Government of Maharashtra has already issued a notification under Section 139(1) and 143(H)(iv) of the Bombay Prohibition Act, 1949 which is at Exhibit “I” to the Writ Petition (L)No.2920 of 2011.

5In Writ Petition (L) No.2865 of 2011, which was filed by same Petitioner, the Division Bench of this Court has disposed off the Petition on 23[rd] December, 2011 and it is observed that whether on a particular date, hotels/ restaurant should be allowed to continue upto 1.00 a.m. or 5.00 a.m. is in the realm of the Government of Maharashtra and no directions can be issued by the High Court.

6Notification dated 20[th] December, 2011 is clear and the same does not pertain to extension of time for running of orchestra or does not deal with presence of lady waitresses or singers in the establishment. Since the statutory order does not grant any such permission, in our opinion, High Court cannot grant any such permission which would amount to usurping the statutory powers of the State Government.

7Mr. Soni contends that in the last year, the Government has issued a similar statutory order and had made a statement which was recorded in various judicial orders passed by this Court and, according to Mr. Soni, therefore, the Government should grant same concession this year. It is alternatively submitted that the Petitioner and its members were under a bona fide belief that the same concession is continued for this year also and, therefore, the earlier Writ Petition (L) No.2865 of 2011 was not pressed on merits.

8The argument is completely without substance. The circular is very clear. Despite this, Advocate for the Petitioner in the earlier Petition made a statement that no other points were being pressed. The contention in that regard cannot, therefore, be accepted.

9It is then submitted that the State Government and its

Officers have accepted additional fees for running of orchestra till 5.00 a.m. i.e. beyond 1.30 a.m. from several establishments and, hence, a submission based on Article 14 is advanced. The mere acceptance of fees or mere passing of wrong order in favour of some establishment cannot give any rights to the members of the Petitioner nor can it attract Article 14 of the Constitution of India. Even this submission has no merits.

10We see no merits in the Writ Petition and the same is rejected.

(G.S.GODBOLE,J.)

(M.L.TAHALIYANI,J.)