M/S Icafe Hospitality vs State Of Karnataka
2024 Latest Caselaw 3307 Kant

Karnataka High Court

M/S Icafe Hospitality vs State Of Karnataka on 5 February, 2024

Author: M.Nagaprasanna

Bench: M.Nagaprasanna

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                                                                  NC: 2024:KHC:4893
                                                               WP No. 2940 of 2024




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 5TH DAY OF FEBRUARY, 2024

                                                 BEFORE
                             THE HON'BLE MR JUSTICE M.NAGAPRASANNA

                            WRIT PETITION NO. 2940 OF 2024 (GM-POLICE)

                      BETWEEN:

                           M/S ICAFE HOSPITALITY
                           RUNNING A HOTEL UNDER THE NAME "ICAFE - TITLI",
                           SITUATED AT NO.706,
                           3RD FLOOR, WCR 2ND STAGE,
                           9TH CROSS, DR MC MODI HOSPITAL ROAD,
                           RAJAJINGAR, BENGALURU - 560086
                           REPRESENTED BY ITS PARTNER,
                           MR. NEWTON GOIS,
                           S/O CUSTODIO GOIS,
                           AGED ABOUT 40 YEARS,
                           (THE PETITIONER'S IS A PARTNERSHIP FIRM UNDER
                           PROVISIONS OF PARTNERSHIP ACT
                                                                       ...PETITIONER
                      (BY SRI. GOVINDARAJ K. JOISA, ADVOCATE)

                      AND:

                      1.    STATE OF KARNATAKA
Digitally signed by         REPRESENTED BY ITS CHIEF SECRETARY,
PADMAVATHI B K              HOME DEPARTMENT, VIDHANA SOUDHA,
Location: HIGH              BENGALURU - 560001
COURT OF
KARNATAKA
                      2.    THE COMMISSIONER OF POLICE
                            BENGALURU CITY, INFANTRY ROAD,
                            BENGALURU - 560001

                      3.    THE DEPUTY COMMISIONER OF POLICE
                            BENGALURU NORTH DIVISION,
                            YESHWANTHPURA, BENGALURU 560022

                      4.    THE ASSISTANT COMMISSIONER OF POLICE
                            MAHALAKSHMIPURAM SUB-DIVISION,
                            MAHALAKSHMIPURAM,
                            BANGALORE - 560086
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                                                  NC: 2024:KHC:4893
                                              WP No. 2940 of 2024




5.   THE STATION HOUSE OFFICER
     MAHALAKSHMIPURAM POLICE STATION,
     BENGALURU - 560086

6.   THE CENTRAL CRIME BRANCH
     NARCOTIC DEPARTMENT,
     MYSORE ROAD, CHAMARAJPET,
     BENGALURU - 560018
     REPRESENTED BY ITS INSPECTOR
                                                     ...RESPONDENTS
(BY SRI.MANJUNATH K., HCGP)

      THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO i) DIRECTION TO THE
RESPONDENTS NOT TO INTERFERE IN THE BUSINESS OF THE
PETITIONER INCLUDING SERVING HOOKAH TO ITS CUSTOMERS IN
SMOKING AREA IN THE SCHEDULE PROPERTY. ii) FURTHER DIRECT
THE RESPONDENTS NOT TO INSIST UPON THE PETITIONER TO
OBTAIN SEPARATE LICENCE FOR SERVING HOOKAH IN THE
SCHEDULE PROPERTY.

      THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:

                                ORDER

Heard Sri. Govindaraj K. Joisa, learned counsel appearing

for the petitioner and Sri. Manjunath K., the learned HCGP

appearing for the respondents.

2. The petitioner is before this Court, seeking for the

following prayers:

(i) Issue a mandamus direction to the respondents not to interfere in the business of the petitioner including serving Hookah to its customers in smoking area in the schedule property.

(ii) Further direct the respondents not to insist upon the petitioner to obtain separate licence for serving Hookah in the schedule property.

NC: 2024:KHC:4893

(iii) Pass such other further relief by this Hon'ble court deems fit in the circumstances of the case in the interest of justice."

3. The learned counsel appearing for the petitioner

would submit that the issue in the lis stands covered by the

judgment rendered by a Co-ordinate Bench in the case of

MR. M.B. SHIVAKUMAR Vs. STATE OF KARNATAKA AND

OTHERS.1, the Co-ordinate Bench has held as follows:

"Sri Govindaraj K. Joisa, learned counsel for the petitioner.

Sri B.Balakrishna, learned Additional Government Advocate for the respondents.

2. The matter is taken up for hearing with the consent of the parties. It is heard finally.

3. Petitioner is before this Court seeking a writ of mandamus to respondents not to interfere with the lawful activities carried on by the petitioner. Petitioner is said to be running a restaurant wherein the customers are permitted to smoke hooka and respondents are alleged to have interfered with the business of petitioner. Hence, petitioner is before this Court for issue of writ of mandamus to the respondents not to interfere with his business.

4. Under similar circumstances, Coordinate Bench of this Court by order dated 27.02.2017 passed in W.P.No.8140/2017 had considered these aspects and after taking note of the order passed in W.P.No.14226/2015 on 03.09.2015 had held as under:

"4. If that be the position, the use of the instrument known as Hooka cannot be prohibited as long as such smoking is of Tobacco through the

W.P.No.30673/2019 disposed on 24.07.2019

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Hooka and no other prohibited substance is used. Therefore, if the said Hooka is used for any other illegal purpose, certainly the law enforcing authorities including the jurisdictional police would be entitled to take appropriate action in accordance with law.

5. Therefore, the only direction that is required to be issued in the instant petition to the respondents is not to insist upon the petitioner to obtain licence for the use of Hooka in the smoking zone provided by the petitioner in their premises, if such facility is provided only for smoking Tobacco through Hooka. However, if any credible information is received and in the process of monitoring, if any illegal activity is found including use of any banned substance, certainly the respondents or such other law enforcing authorities would be entitled to take action in accordance with law."

In that view of the matter, petitioner would be entitled for similar relief.

5. At this juncture, learned Government Advocate would submit that alleged customers of the petitioner-restaurant under the guise of smoking hooka are likely to indulge in activities, which are unlawful and as such, police authorities should be permitted to keep a check and also smoking having been prohibited in public places, exclusive area for smoking hooka is to be earmarked by the petitioner in the business premises, where the hotel being run and as such, he prays for additional condition also being imposed on petitioner.

6. Said contention deserves to be accepted for the simple reason that under the guise of smoking hooka, customers at the petitioner-restaurant cannot be allowed to use ganja marijuana, etc. That apart, smoking of hooka should not cause inconvenience to other customers since smoking having been prohibited in public places, an exclusive area with separate enclosure requires to be reserved for hooka bar. Hence, in addition to the conditions noted hereinabove an additional condition requires to be imposed on the petitioner and it shall be as under:

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(a) Petitioner shall earmark exclusively a separate area/place(s) with appropriate enclosure in the hotel premise and necessarily after obtaining licence for the purpose of hooka smoking and no other area or portion of premise shall be used by the customers of the petitioner for smoking hooka.

(b) Under the guise of inspection, the respondent-

jurisdictional police shall not harass the petitioner. However, it does not deter them from inspecting the premise at periodical intervals with notice to the petitioner, if necessary.

7. In that view of the matter, instant petition is disposed of by imposing the conditions in the order dated 03.09.2015 passed in W.P.No.8140/2017 and also the additional conditions as noted above. Respondents are hereby directed not to interfere with the legal activities of petitioner. However, liberty as indicated hereinabove would be available to the competent authorities to proceed in accordance with law, if any illegal activities are found in the premises of petitioner.

Ordered accordingly."

4. In the light of the issue standing covered by the

judgment rendered by a Co-ordinate Bench and the facts being

undisputed, the petition stands disposed on the same terms.

Ordered accordingly.

Sd/-

JUDGE KG