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2019 DIGILAW 2243 (RAJ)

Jan Hitay Jan Sukhaya v. Government of Rajasthan

2019-08-21

MOHAMMAD RAFIQ, NARENDRA SINGH DHADDHA

body2019
ORDER : 1. First of these writ petitions, bearing CW No. 2638/19, has been filed by way of public interest litigation by Jan Hitay Jan Sukhaya, an NGO engaged in public welfare activities and the other writ petitions have been filed by individual hotel/restaurant/food joint owners. The writ petitioner in the public interest litigation has approached this Court with the prayer to direct the Municipal Corporation, Jaipur to strictly enforce and also incorporate the conditions mentioned in the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (for short-'COTPA, 2003') and the Prohibition of Smoking in Public Places Rules, 2008 (for short-"the Rules of 2008') in their licence with a warning that breach of any of those provisions shall entail cancellation of the licence. Other petitioners have approached this Court alleging harassment by police in the name of enforcement of aforementioned laws. 2. Since the public interest litigation was laid before the division bench, the writ petitions, which were filed before the Single Bench, were ordered to be clubbed therewith. This is how all the matters are listed before the Division Bench today. 3. The learned Single Judge of this Court, while issuing notice, in the writ petitions Nos. 11534/19, 11605/19, 11811/19 & 11817/19 to the respondents, passed the interim order in the following terms: "In the meanwhile and till the next date, respondents are restrained from taking any coercive step against the petitioner provided the petitioner did not violate any of the provisions of the Act and Rules involved herein" 4. Shri Kritesh Oswal, learned counsel for the petitioner in the public interest litigation has argued that all the hotels/restaurants/food joints should strictly adhere to the provisions of the COTPA, 2003 and Rules of 2008. He has argued since a hookah also serves a tobacco product to its users, it is covered by "any other tobacco product" referred to in sub-section (5) of Section 7 of the COTPA, 2003. As per the provisions of Section 7(5) of the COTPA, 2003, it is required to be displayed on the hookah, which essentially contains the tobacco products that it contains nicotine and tar contents along with maximum permissible limits thereof and should ensure that such contents should not exceed the maximum permissible quantity thereof as may be prescribed by the Rules of 2008. Learned counsel argued that the Licensing Authority under the Food Safety and Standard Act, 2006 should be required to incorporate the condition in the licence issued to all such establishments that they shall strictly follow the provisions of COTPA, 2003 and Rules of 2008. In this connection, he has relied on the judgment of Delhi High Court in World Lung Foundation-South Asia vs. New Delhi Municipal Council & Ors., W.P.(C) 4579/2012 and CM No. 9509/2012 dated 3rd December, 2012. 5. Learned counsel argued that according to Rule 4(3) of the Rules of 2008, the portion of the hotel/restaurant/food joint earmarked as "smoking area or space" should be used only for the purpose of smoking and no other services should be allowed therein. In this connection, he has referred to the number of photographs of different hotels/restaurants placed on record, indicating that in all such places, food and other eatables are also being served along with hookahs, which shows that many customers, who visit these hotels/restaurants/food joints only for the purpose of consuming food or eatables, per compulsion become passive smokers. He therefore prays that strict compliance of aforesaid Act and Rules should be ensured. 6. Shri S.S. Hora, learned counsel for the petitioner in writ petition No. 11605/19 has submitted that Schedule to the COTPA, 2003 provides for "hookah tobacco" and not "hookah" alone. Hookah may be covered by definition of "smoking" in Section 3(n) of the COTPA, 2003. There is a prohibition for smoking only in a public place, but there is no prohibition in law for providing such service in hotels/restaurants/food joints, subject to compliance of Rule 4 of the Rules of 2008. Rule 4 provides that the owner, proprietor, manager, supervisor or in charge of the affairs of a hotel having thirty or more rooms or restaurant having seating capacity of thirty persons or more may provide for a smoking area or space as defined in Rule 2(e) of the Rules of 2008. 7. Shri S.S. Hora and the other learned counsel for the petitioners have submitted that their clients have been fully complying with the requirements of Rule 4. They have not established "smoking area or space" as per sub-rule (2) of Rule 4, at the entrance or exist of the hotel/restaurant and have distinctively marked such area as "Smoking Area" in English and in vernacular language, Hindi. They have not established "smoking area or space" as per sub-rule (2) of Rule 4, at the entrance or exist of the hotel/restaurant and have distinctively marked such area as "Smoking Area" in English and in vernacular language, Hindi. The interim order passed by this court has merely restrained the respondents from taking any coercive steps against the petitioners, provided they do not violate any provisions of the Act and the Rules, which they are scrupulously complying with. 8. Shri S.S. Hora, learned counsel submits that while the owners of the hotels/restaurants/food joints would be ready to display on the surroundings of the "smoking area or space" warning that tobacco used in hookahs contain the nicotine and tar contents, along with maximum permissible limits thereof and shall ensure that such contents should not exceed the maximum permissible quantity thereof as may be prescribed by the Rules, but displaying such contents on the hookahs itself may cause practical difficulties for them. 9. Shri Rajesh Maharshi, learned Additional Advocate General has referred to large number of challans which the Police in Jaipur City has filed against those found violating the provisions of the COTPA, 2003 and the Rules of 2008. He submits that hookah has become a menace for the society, which is spoiling the youth of the nation and therefore all the regulatory measures are required to be strictly followed. It is submitted that Section 12 of the COTPA, 2003 empowers any police officer, not below the rank of a sub-inspector or any officer of State Food or Drug Administration or any other officer, holding the equivalent rank being not below the rank of Sub-Inspector of Police, authorised by the Central Government or by the State Government, to enter and search any such premises in the manner prescribed, at any reasonable time, any factory, building, business premises or any other place where any trade or commerce in cigarettes or any other tobacco products is carried on or cigarettes or any other tobacco products are produced, supplied or distributed. 10. Shri Rajesh Maharshi, learned Additional Advocate General has submitted that the State Legislature enacted the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) (Rajasthan Amendment) Bill, 2019 prohibiting the insertion of Section 4A in the Act of 2003 as the State amendment completely prohibiting hookah bar. 10. Shri Rajesh Maharshi, learned Additional Advocate General has submitted that the State Legislature enacted the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) (Rajasthan Amendment) Bill, 2019 prohibiting the insertion of Section 4A in the Act of 2003 as the State amendment completely prohibiting hookah bar. But the learned Additional Advocate General fairly admitted that the said enactment has not come into force as the notification thereof appointing the date has not been gazetted. 11. Smt. Naina Saraf, learned counsel appearing for the Municipal Corporation, Jaipur has submitted that the licences to all the hotels/restaurants/food joints are issued under the Food Safety and Standard Act, 2006 by the Medical and Health Department of the State of Rajasthan and the Jaipur Municipal Corporation has nothing to do with it. 12. We have heard learned counsel for the parties. 13. Entry-52 of the List-I of the Seventh Schedule to the Constitution enumerates the subject of industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest. It is under that authority that the Parliament has enacted the COTPA, 2003. The object of COTPA, 2003 would show that the Parliament has enacted that law to prohibit the advertisement of, and to provide for the regulation of trade and commerce in, and production, supply and distribution of, cigarettes and other tobacco products and for matters connected therewith or incidental thereto. 14. COTPA, 2003 has in Section 3(n) defined "smoking" to mean "smoking of tobacco in any form whether in the form of cigarette, cigar, beedis or otherwise with the aid of a pipe, wrapper or any other instruments." "Tobacco products" has been defined in Section 3(q) to mean the products specified in the Schedule appended to the COTPA, 2003, which at item No. 5 incorporates "cigarette tobacco, pipe tobacco and hookah tobacco, as the tobacco products. Obviously, a hookah containing tobacco for consumption by its user would also be covered under the definition of "smoking" given in Section 3(n). 15. Obviously, a hookah containing tobacco for consumption by its user would also be covered under the definition of "smoking" given in Section 3(n). 15. Section 7(1) of the COTPA, 2003 provides that no person shall, directly or indirectly, produce, supply or distribute cigarettes or any other tobacco products unless every package of cigarettes or any other tobacco products produced, supplied or distributed by him bears thereon, or on its label, the specified warning including a pictorial warning including a pictorial depiction of skull and cross bones and such other warning as may be prescribed. Sub-section (2) of Section 7 provides that no person shall carry on trade or commerce in cigarettes or any other tobacco products unless every package of cigarettes or any other tobacco products sold, supplied or distributed by him bears thereon, or on its label, the specified warning. Sub-section (3) of Section 7 provides that no person shall import cigarettes or any other tobacco products for distribution or supply for a valuable consideration or for sale in India unless every package of cigarettes or any other tobacco products so imported by him bears thereon, or on its label, the specified warning. Sub-section (4) of Section 7 provides that the specified warning shall appear on not less than one of the largest panels of the package in which cigarettes or any other tobacco products have been packed for distribution, sale or supply for a valuable consideration. Sub-section (5) of Section 7 provides that no person shall, directly or indirectly, produce, supply or distribute cigarettes or any other tobacco products unless every package of cigarettes or any other tobacco products produced, supplied or distributed by him indicates thereon, or on its label, the nicotine and tar contents on each cigarette or as the case may be on other tobacco products along with the maximum permissible limits thereof. Proviso to sub-section (5) of Section 7 then stipulates that the nicotine and tar contents shall not exceed the maximum permissible quantity thereof as may be prescribed by rules made under this Act. Section 7 in all its sub-sections, by use of phraseology any other tobacco products mandates that any other tobacco product, produced, supplied or distributed, shall bear thereon, or on its label, the specified warning including a pictorial warning including a pictorial depiction of skull and cross bones and such other warning as may be prescribed. Section 7 in all its sub-sections, by use of phraseology any other tobacco products mandates that any other tobacco product, produced, supplied or distributed, shall bear thereon, or on its label, the specified warning including a pictorial warning including a pictorial depiction of skull and cross bones and such other warning as may be prescribed. It further provides that no person shall, directly or indirectly, produce, supply or distribute cigarettes or any other tobacco products unless it indicates thereon, or on its label, the nicotine and tar contents along with the maximum permissible limits thereof. (emphasis supplied) 16. According to Rule 4(1) of the Rules of 2008, the owner, proprietor, manager, supervisor or in charge of the affairs of a hotel, having thirty or more rooms or restaurant having seating capacity of thirty persons or more may provide for a smoking area or space as defined in rule 2(e), which reads as under: "2(e) "smoking area or space" mentioned in the proviso to Section 4 of the Act shall mean a separately ventilated smoking room that: (i) is physically separated and surrounded by full height walls on all four sides; (ii) has an entrance with an automatically closing door normally kept in close position; (iii) has an air flow system, as specified in Schedule I, (iv) has negative air pressure in comparison with the remainder of the building." 17. Rule 4 of the Rules of 2008 provides as under: "4. Hotels, Restaurants and Airports.-(1) The owner, proprietor, manager, supervisor or in charge of the affairs of a hotel having thirty or more rooms or restaurant having seating capacity of thirty persons or more and the manager of the airport may provide for a smoking area or space as defined in rule 2(e). (2) Smoking area or space shall not be established at the entrance or exit of the hotel, restaurant and the airport and shall be distinctively marked as "Smoking Area" in English and one Indian language, as applicable. (3) A smoking area or space shall be used only for the purpose of smoking and no other services shall be allowed. (2) Smoking area or space shall not be established at the entrance or exit of the hotel, restaurant and the airport and shall be distinctively marked as "Smoking Area" in English and one Indian language, as applicable. (3) A smoking area or space shall be used only for the purpose of smoking and no other services shall be allowed. (4) The owner, proprietor, manager, supervisor or in-charge of the affairs of a hotel having thirty or more rooms may designate separate smoking rooms in the manner prescribed as under: (a) all the rooms so designated shall form a separate section in the same floor or wing, as the case may be. In case of more than one floors/wings the room shall be in one floor/wing as the case may be. (b) all such rooms shall be distinctively marked as "Smoking rooms" in English and one Indian language, as applicable. (c) the smoke from such room shall be ventilated outside and does not infiltrate/permeate into the nonsmoking areas of the hotel including lobbies and the corridors." 18. As would be evident from above, sub-rule (2) of Rule 4 prohibits the establishment of "smoking area or space" at the entrance or exit of the hotel, restaurant and mandates that such area or space shall be distinctively marked as "Smoking Area" in English and one Indian language, as applicable. Sub-rule (3) of the Rule 4 requires that a smoking area or space shall be used only for the purpose of smoking and no other services shall be allowed. Sub-rule (4) of the Rule 4 mandates that the owner, proprietor, manager, supervisor or in-charge of the affairs of a hotel having thirty or more rooms may designate separate smoking rooms in the manner prescribed thereunder namely; (a) all the rooms so designated shall form a separate section in the same floor or wing, as the case may be. In case of more than one floors/wings the room shall be in one floor/wing as the case may be; (b) all such rooms shall be distinctively marked as "Smoking rooms" in English and one Indian language, as applicable; (c) the smoke from such room shall be ventilated outside and does not infiltrate/permeate into the non-smoking areas of the hotel including lobbies and the corridors. Authorised Officers mentioned in Schedule-III to the Rules of 2008 shall be competent to impose and collect the fine against the violation of Section 4. 19. In view of above discussion, this Court deems it appropriate to issue the following directions: (1) that all the hotels/restaurants/food joints shall strictly comply with the provisions of Rule 4 of the Rules of 2008 so as to provide a separate "smoking area or space" as defined in Rule 2(e) of the said Rules. Such "smoking area or space" shall not be established at the entrance or exit of the hotel/restaurant and shall be distinctively marked as "Smoking Area" in English and in Hindi and shall be ventilated outside and should not infiltrate/permeate into non-smoking area; (2) that the smoking area or space shall be used only for the purpose of smoking and no other services shall be allowed therein, which means that no eatables/beverages shall be supplied or served in the smoking area or space where only hookah can be exclusively served; (3) that in compliance of Section 7(5) of COTPA, 2003, all such hotels/restaurants/food joints shall display or indicate either on the hookahs, which contains the tobacco products, the nicotine and tar contents along with maximum permissible limits thereof, if the size of the hookah permits, or shall make such information visible by tying the play card of proportionate size on the hookah, to specifically indicate so with pictorial warning of skull and cross bones. Apart from this, all surrounding walls of the smoking area shall also indicate so; (4) that the Licensing Authority of the Medical, Health & Family Welfare Department of the State of Rajasthan shall incorporate in the licence issued to all such hotels/restaurants/food joints, the condition that they shall comply with the provisions of the COTPA, 2003 and the Rules of 2008; (5) that while the police shall not cause any undue harassment to owners of the hotels/restaurants/food joints, but the police officers, who are competent as per the provisions of Section 12 of the COTPA, shall be entitled to inspect any hotel/restaurant/food joints to check whether compliance of the provisions of the COTPA, 2003 and the Rules of 2008, especially Rule 4(3) of the Rules of 2008 with regard to the provision of "smoking area or space" and also that such smoking area is being used only for the purpose of smoking and for no other purpose whatsoever including for serving any other eatables/beverages and that the smoking area are not established at the entrance or exit of such hotels/restaurants/food joints and are ventilated outside and do not permeate into non-smoking area; (6) that if a particular hotel/restaurant/food joint is found to repeatedly violate the provisions of the COTPA, 2003 and the Rules of 2008, the details thereof shall be forwarded to the Licensing Authority by the police for appropriate action as may be permissible in law. 20. The interim orders passed in the writ petitions Nos. 11534/19, 11605/19, 11811/19 & 11817/19 are accordingly modified. 21. List all these matters on 14.10.2019 along with CW No. 11818/2019.