Delhi High Court

World Lung Foundation-South Asia ... vs New Delhi Municipal Council on 3 December, 2012

Author: Rajiv Sahai Endlaw

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Date of decision: 3rd December, 2012

+              W.P.(C) 4579/2012 & CM No.9509/2012

       WORLD LUNG FOUNDATION-SOUTH ASIA
       THROUGH ITS PRESIDENT                  ....... Petitioner
                    Through: Mr. Santosh Kumar, Mr. Rajiv
                             Ranjan Mishra and Mr. Saurabh,
                             Advocates.

                              Versus

    NEW DELHI MUNICIPAL COUNCIL
    THROUGH ITS CHAIRPERSON & ORS.            ..... Respondents
                  Through: Mr. Anil Amrit and Mr. Rohit
                           Dhingra, Advocates for R-1 NDMC.
                           Mr. Jagdish Sagar, Advocate for R-2
                           to 4.
                           Mr. Rajeeve Mehra, ASG with Mr.
                           Himanshu Bajaj, Mr. Ashish Virmani
                           and Mr. Kunal Kahol, Advocates for
                           R-6 UOI.
                           Mr. Nazmi Waziri, Advocate for R-7
                           & 8.
                           Mr. Lalit Bhasin with Mr. Sanjay
                           Gupta, Ms. Shikha Sachdeva and Mr.
                           Ranjan Jha, Advocates for R-9/NRAI.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

JUSTICE RAJIV SAHAI ENDLAW, J.

1. This petition filed in public interest flags the aspect of non-

implementation of the provisions of Cigarettes and Other Tobacco Products

(Prohibition of Advertisement and Regulation of Trade and Commerce,

Production, Supply and Distribution) Act, 2003 (COTPA) and the Rules

framed thereunder including the Prohibition of Smoking in Public Places

Rules, 2008 (Smoke Free Rules). The particular grievance is that Eating

Houses which have been granted licenses, also run Hookah Bars in violation

of the COTPA and the Smoke Free Rules. The petition seeks a mandamus to

the respondents No.1 to 5 Municipal Council/Corporation of Delhi to

incorporate in the licenses granted to the said Eating Houses, a condition to

comply with the COTPA and the Smoke Free Rules and a further direction

for cancellation of the said licenses for violation of COTPA and Smoke Free

Rules. Similar directions are also sought against respondent No.6 Ministry

of Health and Family Welfare (Department of Health), Government of

India, respondent No.7 Government of National Capital Territory of Delhi

(GNCTD) and respondent No.8 Delhi Police. Action with respect to the

Hookah Parlours and Hookah Bars in particular is sought.

2. Notice of the petition was issued. The National Restaurant

Association of India (NRAI) applied for impleadment, which was allowed.

Counter affidavits have been filed by the respondent No.1 New Delhi

Municipal Council (NDMC), respondent No.2 North Delhi Municipal

Corporation and respondent No.3 South Delhi Municipal Corporation,

respondent No.7 GNCTD, respondent No.8 Delhi Police and by respondent

No.9 NRAI to which rejoinders have been filed by the petitioner.

3. The respondent No.1 NDMC in its counter affidavit has pleaded that

vide Circular dated 20 th July, 2012 of the office of the Medical Officer of

Health, all officials have been directed to implement the COTPA and to

impose and collect fines for violation thereof; that though NDMC is not

incorporating the statutory provisions of the COTPA and Smoke Free Rules

in the terms and conditions of the licenses issued to Food Joints but NDMC

takes legal action for violation of the said Rules. It is also pleaded that there

are no Hookah Bars operating in NDMC's jurisdiction and no license to run

any such Hookah Bar has been given in the said area.

4. The North Delhi Municipal Corporation and the South Delhi

Municipal Corporation in their joint counter affidavit have pleaded that by

virtue of Item 3 in Schedule 3 of Rule 5 of the Smoke Free Rules, all

gazetted officers of the said municipalities are empowered to enforce

Section 4 of the COTPA; that the Medical Health Officers of the said

Municipalities are also empowered to enforce the said provisions under Item

10 of the said Schedule; that the said Municipalities have also not, while

granting licenses to Eating Houses, specifically permitted operation of

Hookah Bars therein and the same if being operated are outside the scope of

the license and appropriate action against such establishments shall be

taken.

5. The GNCTD and the Delhi Police in their counter affidavit have

pleaded that the Licensing Unit of the Delhi Police issues / renews

Certificates of Registration under the provisions of the Delhi Eating Houses

Registration Regulations, 1980 and on the strength of Health Trade Licenses

issued by the Municipalities; that no permission has been granted to any

Eating House to operate Hookah Bars / Lounges; that however noticing the

alarming trend of increasing popularity of Hookah Bars / Lounges, a

clarification was sought from the State Tobacco Control Cell and which has

clarified that Hookah / Shisha Bars and Restaurants are public places within

the ambit of Section 4 of the COTPA and Section 5 of the Delhi Prohibition

of Smoking and Non-Smokers Health Protection Act, 1996, and that

smoking is completely banned in public premises and therefore Hookah

Bars are violating the said laws. It was further clarified that Hookah is

covered under Schedule Tobacco Products mentioned under Section 3(p) of

the COTPA. The GNCTD and Delhi Police in their counter affidavit have

re-assured that all Deputy Commissioners of Police of various districts in

Delhi have been instructed to implement the said laws in all strictness.

6. NRAI in its counter affidavit has pleaded that its members are

primarily serving herbal/flavoured hookahs which contain no

nicotine/tobacco and since these hookahs contain no nicotine/tobacco, the

same are not governed by the provisions of the COTPA and can be served in

any part of the Eating House. It is further pleaded that the herbal/flavoured

hookahs come in different fruit flavours and mint flavour. It is asserted that

a restaurant/hotel owner can legally and legitimately provide service of

hookah smoking (tobacco free, nicotine free and tar free) to its customers in

the main restaurant and such customers cannot be made to go to the

segregated area for the reason that they are not indulging in smoking of any

tobacco product. It is yet further pleaded that tobacco free hookah uses

herbal ingredients which are harmless. It is yet further pleaded that storage,

sale, distribution and consumption of tobacco and tobacco products, is not a

licensable trade under any provision of the Municipal Laws and hence the

Municipalities have no power to issue any condition with respect to the

same. It is also their plea that the COTPA and the Rules framed thereunder,

being central legislation, the Municipalities do not have any jurisdiction to

issue any condition with respect to the same, as is sought in the present

petition. Certain other pleas are also taken in the said counter affidavit but

which are not relevant for the present purposes.

7. NRAI has also filed an additional affidavit inter alia pleading that the

Licensing Department of the Delhi Police, have vide Notification dated 28th

September, 2012, included conditions of compliance of provisions of the

COTPA therein, and have vide yet further Notification dated 25th October,

2012, prohibited serving of hookahs / shishas to the customers of the

Restaurants. NRAI of course in the said affidavit has pleaded the said action

of the Delhi Police to be bad and beyond their powers. We may however

notice that no challenge to the said Notifications is made by any party in this

petition. We are thus not concerned with the validity thereof.

8. We have heard the counsels for the parties.

9. The counsel for the petitioner has during the hearing handed over a

compilation of the judgments / orders of various High Courts, stated to be

relevant for the present purposes. Particular, reliance is placed on the

judgment dated 13 th July, 2011 of the Division Bench of the Bombay High

Court in Public Interest Litigation (L) No.111 of 2010 titled Crusade

Against Tobacco (A Branch of the Nell Charitable Trust) Vs. Union of

India, wherein the Mumbai Municipal Corporation was directed to

incorporate necessary terms and conditions in the license of Eating House

including in existing licenses, requiring the licensees to comply with the

COTPA and the Rules framed thereunder and providing for cancellation /

suspension of the license for breach of the said condition. The challenge by

some of the licensees, to the conditions so incorporated by the Mumbai

Municipal Corporation, was negatived inter alia observing that while

interpreting the provisions of the COTPA and the Rules framed thereunder,

regard must be given to Article 47 of the Constitution of India and to the

fact that the same were enacted with the expressly stated objective of

improving public health and in accordance with the resolutions passed by

the World Health Organization (WHO) and further expressed a view that

Municipalities of other regions of the State should also incorporate similar

conditions.

10. The counsel for the petitioner, to meet the plea of the NRAI of the

hookahs served being tobacco / nicotine free, has contended that the said

hookahs also burn charcoal which, under the Municipal Laws, cannot be

stored. He has further contended that even burning of such charcoal is

harmful. It is yet further contended that under the garb of non-tobacco /

nicotine hookahs and by disguising it with flavours, the COTPA and the

Rules framed thereunder, are being violated. It is yet further contended that

common use of hookah by more than one person as in vogue in the Hookah

Bars / Lounges, is itself detrimental to health, enabling spread of contagious

diseases through saliva.

11. Counsel for the North Delhi Municipal Corporation and the South

Delhi Municipal Corporation, has contended that such hookahs are not

within the scope of license issued by the said Municipalities, which pertain

only to food and drinks. It is rather contended that providing/serving

hookahs for smoking is not even covered in the definition of a 'Restaurant'.

He has further contended that the smoking areas in public places are meant

for the patrons / customers smoking their own tobacco products and the

license does not permit the restaurant / hotel to supply equipment for

smoking i.e. hookahs to their customers / patrons.

12. Counsel for NRAI has contended that the hookahs provided by its

members to their patrons / customers, are non-nicotine / tobacco hookahs

and which are not barred under COTPA or the Rules framed thereunder and

its members are being harassed for no reason. It is yet further contended that

in accordance with Rules, exclusive area for smoking is provided, wherever

required.

13. We are of the opinion that the relief now pressed by the petitioner, of

banning of non-nicotine / tobacco hookahs also, for the reason that under the

garb thereof COTPA and the Rules framed thereudner are being violated, is

not only beyond the pleadings in this petition but also not capable of

adjudication in these proceedings. It is for the appropriate authorities, upon

detecting individual violations, to adjudicate whether the COTPA and the

Rules framed thereunder, are being violated or not. Similarly, the reasons

given of harmful effect of burning of charcoal or of other dangers from the

use of hookahs i.e. of spreading contagious diseases, are also beyond the

scope of this petition which is concerned only as aforesaid with enforcement

of the COTPA and the Rules framed thereunder. The counsel for the

petitioner inspite of our asking, has been unable to show any provision of

the COTPA or the Rules framed thereunder, banning charcoal or charcoal

products or use of non-tobacco / nicotine hookahs for the reason of the same

being capable of spreading contagious diseases. Suffice it is to observe that

if the petitioner has any independent right in this regard, it shall be entitled

to pursue the same, as this petition is not concerned with the said aspect.

14. After some hearing, the counsel for the Municipalities as well as the

counsel for the NRAI state that the petition for the reliefs claimed be

allowed. It is the case of NRAI that its members are not violating the

provisions of the COTPA or the Rules framed thereunder and if any

violation is found, the same be proceeded against in accordance with law. It

is further his contention that for the same reason, the NRAI has no objection

if the conditions for complying with the COTPA and the Rules framed

thereunder are incorporated in the license issued to its members including

the existing licenses and if it is also made a condition of the license that

violation shall entail cancellation of the license.

15. The Delhi Police as aforesaid have already incorporated the said

conditions in the licenses issued by it. The counsels for the Municipalities

also state that they have no objection to incorporating such conditions in the

licenses issued by them to such Eating Houses, Food Joints, Restaurants,

and Hotels etc.

16. We accordingly allow this writ petition and:

(i) direct the New Delhi Municipal Council, the North Delhi

Municipal Corporation, the South Delhi Municipal Corporation, the

East Delhi Municipal Corporation and any other Municipality having

jurisdiction in Delhi to incorporate in the licenses issued by it to

Hotels, Restaurants, Eating Houses and Food Joints etc., a condition

requiring such licensees to comply with the provisions of the COTPA

and the Rules framed thereudner and with a further condition that

breach thereof shall entail cancellation of the license. The Delhi

Police which though had incorporated such conditions as aforesaid, to

continue to incorporate the same;

(ii) the aforesaid shall apply to the future licenses issued as well as

to the existing licenses and also to the renewal of the licenses;

(iii) we further direct the Municipalities as well as the Delhi Police

to, upon finding any violation by any of the Hotels, Restaurants,

Eating Houses and Food Joints of the provisions of the COTPA or the

Rules framed thereunder, immediately in accordance with law, cancel

the license and take such other steps as may be necessary / required in

law.