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Madhya Pradesh High Court · body

2016 DIGILAW 489 (MP)

RAHUL KALRA v. STATE OF M. P.

2016-06-21

P.K.JAISWAL, VIVEK RUSIA

body2016
JUDGMENT : 1. The appellant/petitioner has filed the present petition being aggrieved by order dated 18-10-2011 passed in Writ Petition No. 6926/2011 along with other connected writ petitions. 2. The facts of the case are as under :— The petitioner is engaged in the business of “Cafe and Sheesha Lounge” in the city of Indore in the name and style of “Bistro Beach”. 3. As per the petitioner he is having a statutory license to run his business and he is properly conducting his business lawfully and not violating any law. He further submits that for the purpose of conducting the business he had been completely following the norms prescribed under the Cigarettes and Other Tobacco Products (Prohibitions of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (for short the COTP Act 2003). The petitioner has filed the writ petitions challenging the order dated 18-5-2011 and 21-7-2011 passed by Additional District Magistrate (ADM), Indore, under the provisions of section 144 of Code of Criminal Procedure, 1973 by which a ban has been imposed on smoking hookah in the restaurants in question. The said orders were challenged inter-alia on the ground that the petitioner is following and complying the provisions of COTP Act of 2003 and he cannot be prohibited to run his business under the garb of the order passed under section 144 of Code of Criminal Procedure, 1973 because the period of order passed by ADM under section 144 is valid for the period for a period of two months. It is further contended that the continuance of order beyond the period of two months is not within the domain of District Magistrate, hence the impugned order deserves to be quashed. 4. After notice, reply was filed by the respondents-State of Madhya Pradesh, contended that the petitioner and other similarly placed owners of the Restaurant/Bar/Hotel who are providing hookah to each and every table of the customer which amounts to smoking at public place under the provisions of Prohibition of Smoking in Public Places Rules 2008, but the Restaurant is a public place as defined under section 2(b) of Smoke Free Rules of 2008. It was submitted that after taking into account the over all situation that smoking of hookah in a restaurant is harmful and dangerous to human life, birth and safety and further taking into account the entire material on record, the District Magistrate has rightly passed the impugned order who is competent to pass the order under section 144 of the Code of Criminal Procedure, 1973. The District Magistrate has not extended the order beyond the period of two months. He has passed a fresh order dated 21-7-2011 keeping in view the material available on record before him. 5. That, the present writ petition along with other writ petitions were heard finally. Vide impugned order dated 18-11-2011 the writ petition has been dismissed with a direction to the authorities to ensure strict compliance of the Act of 2003 and Rules of 2008 in the State of Madhya Pradesh by taking appropriate action against the Restaurants, Hotels and Bar who are not complying the statutory provisions of law. The Writ Court has up-held the orders passed by the District Magistrate under section 144 of the Code of Criminal Procedure, 1973. 6. Being aggrieved by order dated 18-10-2011, the petitioner has preferred the writ appeal before the Division Bench of this Court. 7. Shri A. K. Sethi, learned senior counsel for the petitioner submits that the order passed under section 144 are regulatory and not prohibitory in nature. The District Magistrate is not empowered to pass the order beyond the period of two months. He has further submitted that the petitioner is not complying the provisions of the Act of 2003 and Rules of 2008. He has placed reliance over the judgment passed by the Hon’ble Apex Court in the case of Narinder S. Chaddha and others vs. Municipal Corporation of Greater Mumbai and others reported in AIR 2015 SC 756 in which similar issues came up before the various High Courts and the judgments were passed and thereafter Special Leave Petitions (SLP) were decided by the Hon’ble Apex Court. He has referred the finding recorded in Paras 18, 24, 25 and 26 of the said judgment which is reproduced below : Para-18. This takes us to the definition of “smoking” in section 3(n) of the Act of the Act which has been set out hereinabove. He has referred the finding recorded in Paras 18, 24, 25 and 26 of the said judgment which is reproduced below : Para-18. This takes us to the definition of “smoking” in section 3(n) of the Act of the Act which has been set out hereinabove. A perusal of this definition shows that it includes smoking of tobacco in any form with the aid of a pipe, wrapper or any other instrument which would obviously include a Hookah. That being the case, “smoking” with a Hookah would be permissible under Rule 4(3) and the expression “no other service shall be allowed” obviously refers to services other than the providing of a Hookah. It is, thus, evident that the added words in clause (C) of condition No. 35 are clearly ultra vires the Act and the Rules. Para-24. in the Gujarat High Court case, an order dated 14th July, 2011 purportedly made under section 33 of the Bombay Police Act read with section 144 of the Code of Criminal Procedure prohibited hotels and restaurants from providing the facility of hookah and prohibited hookah bars. In the course of a lengthy judgment, the Division Bench referred to the evil effects of smoking and generally of tobacco products and ultimately came to the conclusion that section 33 of the Bombay Police Act would include the power to prohibit, stating that the word “regulate” would include “restriction” and even “prohibition”. Several authorities were stated for this proposition, but the one authority binding on the High Court was missed. In Himat Lal K. Shah vs. Commissioner of Police, Ahmedabad, (1973) 1 SCC 227 , the Supreme Court had to construe the word “regulate” under the very Act i.e. section 33 of the Bombay Police Act. The Court held : “15. Coming to the first point raised by the learned counsel, it seems to us that the word “regulating” in section 33(a) would include the power to prescribe that permission in writing should be taken a few days before the holding of a meeting on a public street. Under section 33(o) no rule could be prescribed prohibiting all meetings or processions. Coming to the first point raised by the learned counsel, it seems to us that the word “regulating” in section 33(a) would include the power to prescribe that permission in writing should be taken a few days before the holding of a meeting on a public street. Under section 33(o) no rule could be prescribed prohibiting all meetings or processions. The section proceeds on the basis that the public has a right to hold assemblies and processions on and along streets thought it is necessary to regulate the conduct an behavior or action of persons constituting such assemblies or processions in order to safeguard the rights of citizens and in order to preserve public order. The word “regulate” according to Shorter Oxford Dictionary, means to ‘control, govern or direct by rule or regulation, to subject to guidance or restrictions’. The impugned Rules do not prohibit the holding of meetings but only prescribed that permission should be taken although it is not stated on what grounds permission could be refused. We shall deal with this aspect a little later.” Para-25. From a reading of Himat Lal’s case, it is clear that the work ‘regulate’ would not include the power to prohibit. Further, section 144 of the Code of Criminal Procedure, 1973, provides a power to grant only temporary orders which cannot last beyond two months from the making thereof (See section 144(6) of the code of Criminal Procedure, 1973) Despite this being pointed out to the High Court, the High Court held : “There is no dispute as regards the position of law and we accepts the contentions on behalf of the petitioners, so far as section 144 of the Code is concerned. However, solely on ground alone the entire action on the part of the Police Commissioner cannot be said to be unlawful or beyond his jurisdiction. Prima facie, we are convinced that the notification invoked under section 144 of the Code was issued with a definite idea and the idea was to immediately give true effect to the addition of the condition in respect of licenses of persons running eating house/restaurant. It appears that the authorities felt that it would be difficult to stop the activity of providing hookah at eating house/restaurant by solely adding one of the conditions not to provide hookah at a eating house/restaurant. It appears that the authorities felt that it would be difficult to stop the activity of providing hookah at eating house/restaurant by solely adding one of the conditions not to provide hookah at a eating house/restaurant. It appears from the affidavit in reply filed by the Police Commissioner that with a view to meet with such an emergent situation prevailing in the city and as it was very difficult to keep constant vigilant and monitoring as regards compliance of the condition which was added in the licence, the Police Commissioner thought fit to invoke section 144 of the Code. Assuming for a moment that the action of the Police Commissioner of the city of Ahmadabad in issuing the notification in purported exercise of powers under section 144 of the Code is not tenable in law by itself would not be sufficient to grant the relief as prayed for by the petitioners. Though we do not find error in the same but assuming for a moment that it is found to be illegal and invalid, the High Court while exercising its extraordinary jurisdiction thereunder can refuse to upset it in public interest. It is a settled principle of law that the remedy under Article 226 of the constituting of India is discretionary in nature an in a given case even, if such action or order challenged in the petition is found to be improper and invalid, the High Court while exercising its extraordinary jurisdiction thereunder can refuse to upset it.” Para-26. We are at a loss to understand the aforesaid reasoning. If section 144 is to be invoked, the order dated 14th July, 2011 would have expired two months thereafter. The High Court went on to state that while administering the law it is to be tempered with equity and if an equitable situation demands, the High Court would fail in its duty if it does not mould relief accordingly. It must never be forgotten that one of the maxims of equity is that ‘equity follows the law’. If the law is clear, no notions of equity can substitute the same. We are clearly of the view that the Gujarat High Court judgment dated 02nd December, 2011 deserves to be set-aside not only for following the Bombay High Court judgment impugned in the appeals before us but for the reasons stated hereinabove. 8. If the law is clear, no notions of equity can substitute the same. We are clearly of the view that the Gujarat High Court judgment dated 02nd December, 2011 deserves to be set-aside not only for following the Bombay High Court judgment impugned in the appeals before us but for the reasons stated hereinabove. 8. He also submits that the Hon’ble Apex Court has held that section 144 of Code of Criminal Procedure, 1973 prohibits the power and grant only a temporary order which cannot lasts beyond two months and are in the nature of regulatory but not including the power to prohibit. He has drawn our attention to Para Nos. 24, 25 and 26 of the judgment given by the Gujarat High Court dated 2-12-2011 has been set-aside in which the Court has held that the word ‘regulate’ means to control the Government or to direct by the rule or regulation and action under section 144 of Code of Criminal Procedure, 1973 by prohibiting the use of hookah in the restaurant was upheld. 9. Mr. A. K. Sethi, learned senior counsel for the petitioner also submits that the impugned judgment is contrary to the judgment passed in the case of Narinder S. Chaddha (supra), hence the present writ appeal deserves to be allowed. 10. In reply, Shri Sunil Jain, learned additional Advocate General for the respondents-State submits that under section 144, the Magistrate has the ample power to pass an appropriate order to deal with the emergent situation which arises in the emergency. If he founds that any act may cause any danger to human life, birth and safety and if such a situation continues, he may pass the appropriate order from time to time. He has further submitted that the use of Hookah in the restaurant providing to the customer at his table is dangerous to human life and safety, hence the Magistrate has not committed any illegality by passing the order under section 144 of Code of Criminal Procedure, 1973. The restaurant owners are not following the provisions of COTP Act of 2003 and Rules of 2008. Hence, it has become necessary for the Magistrate to pass such an order from time to time. The restaurant owners are not following the provisions of COTP Act of 2003 and Rules of 2008. Hence, it has become necessary for the Magistrate to pass such an order from time to time. In respect of his contention, he has placed the order of this Court passed in Writ Petition No. 15487/2014 dated 21-8-2015 in which directions were given to the State Government to comply the provisions of COTP Act of 2003 and Rules of 2008. Para-24 of the said order is reproduced below. Para-24. : Consequently, in my considered opinion, the order impugned Annexure-P/6, passed by the respondent No. 7 is hereby quashed. As the life of the order, Annexure-P/7 has elapsed, however, subject to complying the observations, power under section 144 of Code of Criminal Procedure, 1973, may be exercised by the District Magistrate. Accordingly, this petition is hereby allowed in part with the following directions :— (i) As the sale of tobacco products is strictly prohibited to the persons below the age of eighteen years and up-to hundred yards of the educational institutions in the State, as per section 6 of the COTP Act, 2003, however, directed that in case of any violation action ought to be taken applying the mandate of law. (ii) As per section 4 of the COTP Act, 2003, smoking at a public place is prohibited subject to compliance of Rule 3 and Rule 4 of the Rules of 2008. However, directed that in hotels, restaurants and at other public places smoking can be permitted within the ambit of rule 4 of the 2008 Rules. (iii) The hotel and restaurant owners cannot be permitted to offer Hookah or use of tobacco products by pipe or by “any other instrument” on each and every table under the garb of service, in fact it can be permitted in a smoking area or space only. However, it is directed that smoking may be permitted in hotel and restaurant only in the smoking area or place, otherwise action may be taken in accordance with law. (iv) In view of the discussions made hereinabove and looking to the spirit of section 144 of Code of Criminal Procedure, 1973, the District Magistrate may pass the order in case of emergent situation and to check the anticipated action, visualizing danger to human life, health or safety or disturbance of the public tranquility and in other situations as specified. (iv) In view of the discussions made hereinabove and looking to the spirit of section 144 of Code of Criminal Procedure, 1973, the District Magistrate may pass the order in case of emergent situation and to check the anticipated action, visualizing danger to human life, health or safety or disturbance of the public tranquility and in other situations as specified. But the repetitive orders seems to be of semi-perennial nature which is not permissible in law. 11. We have considered the rival submissions of the learned counsel for the parties and in our considered opinion, the learned single Judge in its judgment dated 18-10-2011 has rightly considered that the Hookah cannot be provided on each and every table of the customer in the restaurant and if the restaurant/hotel owners offers the same to the customer, then the same shall be in consonance with the Act of 2003 and Rules of 2008. In this regard, direction has rightly been given to the State Government and the Authorities to ensure strict compliance of COTP Act of 2003 and Rules of 2008. Hence, in our considered opinion, we need not inclined to disturb the orders and we upheld the directions given by the Hon’ble Single Judge. So far as the issue of passing the order under section 144 of Code of Criminal Procedure, 1973 is concerned. The Hon’ble Supreme Court in the case N. S. Chaddha (supra) has held that if section 144 is invoked then the order would have expired two months. It is further held that section 144 of Code of Criminal Procedure, 1973 provides the power to grant only temporary order which cannot last beyond two months from making thereof and it is in the nature to regulate the powers not to prohibit. 12. In view of the above narrated facts, accordingly, the impugned order dated 18-5-2011 and 21-7-2011 need not to be quashed and it has lost its period of operation and therefore, we allowed the writ appeal in part with the same directions as given by this Hon’ble Court in Writ Petition No. 15487 of 2014, as reproduced above. 13. With the aforesaid, the writ appeal is partly allowed.