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2018 DIGILAW 2785 (JHR)

Kumar Luv Agarwal v. State of Jharkhand

2018-12-18

RAJESH SHANKAR

body2018
ORDER : 1. The present writ petition has been filed for quashing and setting aside the order dated 30.05.2017 passed by the respondent no. 2 - the Deputy Commissioner-cum-District Magistrate, Ranchi enforcing/imposing complete restriction/prohibition from carrying on the business activities concerning smoking of hookah within the district of Ranchi. 2. The learned counsel for the petitioner submits that the petitioner is carrying on the business of Restro & Lounge having a separate space for smoking of hookah. The restriction imposed under the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (hereinafter referred to as the “Act, 2003”) is confined to prohibiting smoking at public places. However, subject to compliance of certain conditions and regulations, the same has otherwise been permitted at some places which includes the airports, restaurants and hotels at designated smoking area or space as defined in rule 2(e) of the Prohibition of Smoking in Public Places Rules, 2008 (hereinafter referred to as the “Rules, 2008”). Moreover, the sale of articles having tobacco is prohibited to be sold to the persons below 18 years of age and the other restriction is that it should not be sold within a radius of 100 yards of any educational institution. It is further submitted that since the Act, 2003 does not prohibit or restrict trade or business of cigarette or tobacco products except certain conditions appended thereto, there is no power vested to the State Government much less the district administration to restrict or close down the business of sale of tobacco & tobacco products. The petitioner has been carrying on the business of Restro & Lounge having a separate space for smoking of hookah and the flavours used in the said business of the petitioner are all herbal molasses which have also been tested by one of the laboratories recognized by the Government of India according to which no nicotine and tar content in the product was being sold by the petitioner. However, the respondent no. 2 arbitrarily by way of a general order, has directed total prohibition on running of Hookah Bars. 3. Per contra, the learned counsel for the respondent-State submits that the order passed by the respondent no. However, the respondent no. 2 arbitrarily by way of a general order, has directed total prohibition on running of Hookah Bars. 3. Per contra, the learned counsel for the respondent-State submits that the order passed by the respondent no. 2 is in conformity with the provisions of the Act, 2003 as also the ratio laid down by the Hon’ble Supreme Court in various judgments rendered in this regard. Section 6 of the Act, 2003 prohibits the sale of cigarettes and other tobacco products to persons below 18 years of age and in an area within a radius of 100 yards of any educational institution. Serving of any form of hookah/shisha in restaurants, lounges, pubs, bars, cafes etc. is in violation of Section 268 and 278 of the Indian Penal Code and Section 4, 5, 6(A), 7 of the Act, 2003 and the Rules, 2008 as amended vide Gazette Notification No. GSR 500(E) dated 23.05.2017. It is further submitted that the order dated 30.5.2017 passed by the respondent no. 2 enforcing/imposing complete restriction/ prohibition from carrying on business activities concerning smoking of hookah within the district of Ranchi has been issued in compliance of the above provisions of the statutes. Several State governments such as NCT of Delhi, State of Uttar Pradesh, Madhya Pradesh, Punjab, Haryana etc. have issued necessary orders prohibiting service of all forms of hookah in restaurants, bars, cafes etc. and strict actions have been taken against the owners who under the garb of running restaurants and cafes were serving hookah. National Green Tribunal in the matter of Manjinder Sing Sirsa vs. Union of India and Others, O.A. No. 610 (479) of 2017 through various orders, has enforced ban on serving of all forms of hookah in restaurants and bars in Delhi. Smoking of herbal or flavoured hookah/shisha whether having tobacco or not is harmful to smokers as well as non-smokers as the smoke carries carbon-mono-oxide and other carcinogens. 4. Heard the learned counsel for the parties and perused the materials available on record. I have gone through the impugned order dated 30.05.2017, whereby the respondent no. 2 has issued a general direction to the concerned officers to take immediate action against the illegal Hookah Bars being operated within the district of Ranchi for violating the law. 4. Heard the learned counsel for the parties and perused the materials available on record. I have gone through the impugned order dated 30.05.2017, whereby the respondent no. 2 has issued a general direction to the concerned officers to take immediate action against the illegal Hookah Bars being operated within the district of Ranchi for violating the law. It has been observed inter-alia that in Ranchi district, Hookah Bar and Shisha Lounge are being run illegally in violation of Section 4, 5, 6(A) and 7 of the Act, 2003, where the boys and girls are also being served tobacco which otherwise pollutes the environment. 5. Before appreciating the rival contention of the parties, it would be appropriate to go through the relevant provisions of the Act, 2003. Section 4 of the Act provides that no person shall smoke in any public place, however, in the hotels having thirty rooms or more, the restaurants having seating capacity of thirty persons or more and in airports, a separate provision for smoking area or space may be made. Section 6 further provides that no person shall sell, offer for sale, or permit sale of cigarette or any other tobacco product to any person who is under eighteen years of age and in an area within a radius of one hundred yards of any educational institution. It may thus be construed that the legislature has not intended to impose complete prohibition of smoking in hotels, restaurants and airports, rather there has to be a separate space in such hotels, restaurants and airports for smoking where in view of the Rules, 2008, no other service would be provided. Moreover, the sale of cigarette or other tobacco products would not be made available to the children under the age of eighteen years and in an area within a radius of one hundred yards of any educational institution. 6. The learned counsel for the petitioner has put reliance on the judgment of the Hon’ble Supreme Court rendered in the case of Narinder S. Chadha and Others vs. Municipal Corporation of Greater Mumbai and Others, (2014) 15 SCC 689. In the said case, the circulars issued by the State of Gujarat, Tamil Nadu and Maharashtra either putting total restriction on sale of tobacco or related products or putting additional condition over and above as provided in the Act, 2003 and the Rules, 2008 were challenged. In the said case, the circulars issued by the State of Gujarat, Tamil Nadu and Maharashtra either putting total restriction on sale of tobacco or related products or putting additional condition over and above as provided in the Act, 2003 and the Rules, 2008 were challenged. The Hon’ble Apex Court while quashing the impugned circulars has held as under: “12. It will be noticed that Section 6 of the Cigarettes Act permits the sale of cigarettes and any other tobacco products, except to persons under 18 years of age and in an area within a radius of 100 yards of any educational institution. It is clear that any condition which prohibits the sale of cigarettes or any other tobacco products in premises licenced by the Municipal Corporation would amount to adding another exception which would be impermissible in law. Mr. Bhatt sought to uphold this condition with a reference to Rule 4(3) as, in his submission, in a smoking area “no other service shall be allowed.” According to him, the sale of tobacco or tobacco related products would amount to a service that cannot be so allowed. 14. It will be seen that Condition 35(C) of the impugned circular essentially reproduces Rule 4(3) of the said Rules and then adds the words “or any apparatus designed to facilitate smoking.” The effect of the added words is that a Hookah cannot be provided by the hotel, restaurant or airport being an apparatus designed to facilitate smoking. 15. Mr. Bhatt sought to derive power for the added words from Rule 3(1)(c) and argued that the Hookah would be “other things” designed to facilitate smoking which would be prohibited under Rule 3(1)(c). 16. We find it difficult to accept this contention because, if carefully read, Rule 3 deals with the prohibition of smoking in public places, which is referable to Section 4 (main part) whereas Rule 4 is referable to the proviso to Section 4. Rule 3 would only apply where there is a total prohibition of smoking in all public places as is clear from Rule 3(1)(a) which makes it incumbent on the owner, proprietor, etc. of a public place to ensure that no person smokes in that place. It is in that context that ashtrays, matches, lighters and other things designed to facilitate smoking are not to be provided in public places where smoking is prohibited altogether. 18. of a public place to ensure that no person smokes in that place. It is in that context that ashtrays, matches, lighters and other things designed to facilitate smoking are not to be provided in public places where smoking is prohibited altogether. 18. This takes us to the definition of “smoking” contained in Section 3(n) 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 35 are clearly ultra vires the Act and the Rules. 19. Looked at from another angle, Rule 3(1)(c) and Rule 4(3) have to be harmoniously construed. If the respondents' contention has to be accepted, Rule 4(3) would be rendered nugatory. What is expressly allowed by Rule 4(3) cannot be said to be taken away by Rule 3(1)(c). For this reason also, Mr. Bhatt's contention will have to be turned down. 20. Sub-clauses (D) and (E) of Condition 35 were stated by Mr. Bhatt to be regulations relatable to buildings which is a purely municipal function within the Municipal Corporation's ken. There is no challenge to the dimensions of the smoking area set out in these sub-clauses. So far as these conditions are concerned, we agree with Mr. Bhatt and the dimensions set out in (D) and (E) will have to be followed in all cases. 21. Since we are deciding this case only on the narrow ground that the High Court is incorrect when it holds that all that the Municipal Corporation did in the present case was to follow the Cigarettes Act and the Rules made thereunder, we need not delve on other aspects that were urged before us. 22. We, therefore, set aside the Bombay High Court judgment and delete the first paragraph of Condition 35 and the added words in (C) of Condition 35. The appeal succeeds to that extent. 23. In the Madras High Court judgment a notice dated 5.7.2011 was upheld by the High Court. 22. We, therefore, set aside the Bombay High Court judgment and delete the first paragraph of Condition 35 and the added words in (C) of Condition 35. The appeal succeeds to that extent. 23. In the Madras High Court judgment a notice dated 5.7.2011 was upheld by the High Court. The notice is obviously ultra vires the Cigarettes Act and the Rules made thereunder as it prevents the owner of the hotel/restaurant from providing tobacco to persons who are not minors and asking such persons affirmatively to stop people from sucking and swallowing tobacco. Further, sale of tobacco can only be prohibited within a radius of 100 yards of an educational establishment and not 300 feet as is stated in the impugned notice. This judgment also deserves to be set aside. 24. In the Gujarat High Court case Temperature vs. Police Commr. 2011 SCC Online Guj 6851, an order dated 14.7.2011, 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. Commr. of Police, (1973) 1 SCC 227 : 1973 SCC (Cri) 280, 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: (SCC pp. 235-236 para 15) “15. Coming to the first point raised by the learned counsel, it seems to us that the word ‘regulating’ in Section 33(o) 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(o) 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 though it is necessary to regulate the conduct and behaviour 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 prescribe 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.” 25. From a reading of case Himat Lal K. Shah vs. Commr. of Police, (1973) 1 SCC 227 : 1973 SCC (Cri) 280, it is clear that the word “regulate” would not include the power to prohibit. Further, Section 144 of the Code of Criminal Procedure provides a power to grant only temporary orders which cannot last beyond 2 months from the making thereof (see Section 144(6) of the Code of Criminal Procedure). 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 accept the contentions on behalf of the petitioners so far as Section 144 of the Code is concerned. However, solely on this 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 licences of persons running eating houses/restaurants. 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 licences of persons running eating houses/restaurants. It appears that the authorities felt that it would be difficult to stop the activity of providing hookah at eating houses/ restaurants 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 vigilance and monitoring as regards compliance of the condition which was added in the licence, the Police Commissioner thought it fit to invoke Section 144 of the Code. Assuming for a moment that the action of the Police Commissioner of the city of Ahmedabad 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 Constitution of India is discretionary in nature and 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.” 26. We are at a loss to understand the aforesaid reasoning. If Section 144 is to be invoked, the order dated 14.7.2011 would have expired 2 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. 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 2.12.2011, Temperature vs. Police Commr. 2011 SCC Online Guj 6851 deserves to be set aside not only for following the Bombay High Court judgment Narinder S. Chadha vs. Municipal Corporation of Greater Mumbai, WP (OS) (Lodg.) No. 1540 of 2011, decided on 11.8.2011 (Bom) impugned in the appeals before us but for the reasons stated hereinabove.” 7. It would thus be evident that the total prohibition of smoking is permissible in the public place, however, in the restaurants having seating capacity of thirty or more persons, hotels having thirty or more rooms and airports, there may be a separate provision for smoking area or space wherein the other services shall not be provided. Further, no person is permitted to sell, offer for sale or permit sale of cigarette or any other tobacco products to any person below the age of 18 years and within a radius of 100 yards of any educational institution. In the aforesaid case, the Hon’ble Supreme Court has, however, held that the definition of “Smoking” as contained in Section 3(n) of the Act, 2003 includes smoking of tobacco in any other form with the aid of pipe, wrapper or any other instrument which includes hookah as well. Thus, the word “no other service shall be allowed” refers to services other than providing of a hookah. 8. The learned counsel for the respondent-State puts reliance on the judgment of the Hon’ble Supreme Court rendered in the case of Murli S. Deora vs. Union of India and Others, (2001) 8 SCC 765 , wherein it has been held as under: “9. Realising the gravity of the situation and considering the adverse effect of smoking on smokers and passive smokers, we direct and prohibit smoking in public places and issue directions to the Union of India, State Governments as well as the Union Territories to take effective steps to ensure prohibiting smoking in public places, namely: 1. Auditoriums 2. Hospital Buildings 3. Health Institutions 4. Educational Institutions 5. Libraries 6. Court Buildings 7. Public Office 8. Public Conveyances including Railways.” 9. Auditoriums 2. Hospital Buildings 3. Health Institutions 4. Educational Institutions 5. Libraries 6. Court Buildings 7. Public Office 8. Public Conveyances including Railways.” 9. In the aforesaid judgment, the Hon’ble Supreme Court has directed for prohibiting smoking in public place. There can be no confusion with the aforesaid proposition. However, in the present case, the issue is as to whether total prohibition can be made on running of Hookah Bar in a separate space provided in a restaurant subject to compliance of the requirements of Section 4 of the Act, 2003 and the Rules, 2008. In view of the judgment rendered by the Hon’ble Supreme Court in the case of Narinder S. Chadha (supra), there cannot be total prohibition. The State authorities have however been empowered to see whether the restaurants providing tobacco products are following the requirements as laid down in the Act, 2003 and the Rules, 2008 only after making proper verification of a particular restaurant and obviously not by issuing a general/blanket order applying it to all the restaurants offering hookah. The learned counsel for the respondent-State while justifying the impugned order, has highlighted the evil effect of tobacco and tobacco products and has submitted that the impugned order has been passed in larger public interest. On going through the Act, 2003 as well as the Rules, 2008, it would appear that certain provisions have been made to have check on such evil effects for which the authorities are competent to take appropriate action to ensure strict compliance of the same. However, they cannot transgress the jurisdictional boundary drawn by the legislature and in absence of any such power conferred by the statute, total prohibition on sale of tobacco products including offering of hookah in restaurant is not legally permissible. 10. In view of the aforesaid discussion, the order 30.05.2017 passed by the respondent no. 2 - the Deputy Commissioner-cum-District Magistrate, Ranchi is quashed and set-aside. However, the authorities will have the power to regulate the use of tobacco products including use of hookah in accordance with law for which they may get any restaurant offering hookah inspected so as to ensure whether the standard prescribed in the Act, 2003 and Rules, 2008 is being followed. 11. The writ petition is accordingly disposed of with the aforesaid observations.