Karnataka High Court

Janani Lodging And Restaurant vs The State Of Karnataka on 5 February, 2024

Author: M.Nagaprasanna

Bench: M.Nagaprasanna

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                                                             NC: 2024:KHC:4892
                                                       WP No. 3055 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. 3055 OF 2024 (GM-POLICE)

                BETWEEN:

                      JANANI LODGING AND RESTAURANT
                      DO-NO-8-86
                      (13, 14, 15, 16, 20, 21, 22) 2, 2, 9
                      PARKALA MANIPALA ROAD UDUPI - 576104
                      REP BY ITS PROPRIETOR
                      AMMANNI J HEGDE
                      W/O B JAYARAJA HEGDE,
                      AGED ABOUT 74 YEARS,
                      R/AT 3-15-Sf, 8TH CROSS ROAD,
                      DASHARATHA NAGARA,
                      BADAGUBETTU, NO.80,
                      UDUPI - 576107
                      PROPRIETORSHIP CONCERNED
                                                                  ...PETITIONER
                (BY SRI. NISHIT KUMAR SHETTY, ADVOCATE)
Digitally signed by AND:
PADMAVATHI B K
Location: HIGH
COURT OF            1. THE STATE OF KARNATAKA
KARNATAKA              BY ITS SECRETARY,
                       HOME DEPARTMENT,
                       VIDHANA SOUDHA,
                       BANGALORE - 560001

                2.    THE SUPERINTENDENT OF POLICE
                      UDUPI
                      UDUPI DISTRICT - 576101

                3.    THE ASSISTANT SUPERINTENDENT OF POLICE
                      UDUPI DIVISION (LAW AND ORDER),
                      UDUPI - 576101
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                                                NC: 2024:KHC:4892
                                          WP No. 3055 of 2024




4.   THE DEPUTY SUPERINTENDENT OF POLICE
     UDUPI DIVISION,
     UDUPI - 576101

5.   THE INSPECTOR OF POLICE
     D.C.I.B. SQUAD,
     UDUPI - 576101

6.   THE INSPECTOR OF POLICE
     MANIPAL POLICE STATION,
     UDUPI DISTRICT - 576104

7.   THE SUB INSPECTOR OF POLICE
     MANIPAL POLICE STATION,
     UDUPI, UDUPI DISTRICT - 576104

8.   CITY MUNICIPAL COUNCIL
     UDUPI
     UDUPI - 576101
                                                   ...RESPONDENTS
(BY SRI. MANJUNATH K., HCGP FOR R1 TO R7)

      THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO a) DIRECTING THE R2 TO 8
TO NOT TO INTERFERE IN THE BUSINESS OF THE PETITIONER
INCLUDING THE SERVICE OF HOOKAH TO ITS CUSTOMER IN THE
SMOKING AREA IN THE PETITIONERS SCHEDULE PREMISES.
b) DIRECTING THE R2 TO 8 NOT TO INSIST THE PETITIONER TO
OBTAIN THE LICENSE FROM THE PROVISIONS UNDER CIGARETTE
AND OTHER TOBACCO PRODUCT (PROHIBITION OF ADVERTISEMENT
AND REGULATION TRADE AND COMMERCE, PRODUCTION SUPPLY
AND DISTRIBUTION) ACT, 2003 FOR THE PURPOSE OF SERVING
HOOKAH TO HIS CUSTOMERS.

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

                              ORDER

Heard Sri. Nishit Kumar Shetty, learned counsel

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

HCGP appearing for respondent Nos.1 to 7.

NC: 2024:KHC:4892

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

following prayers:

"a. Issue a writ of Mandamus or in the nature thereof or any other appropriate writ, order or direction, directing the respondent No.2 to 8 to not to interfere in the business of the petitioner including the service of hookah to its customer in the smoking area in the petitioner's schedule premises.

b. Issue a writ of Mandamus directing the respondent No.2 to 8 not to insist the petitioner to obtain the license from the provisions under Cigarette and other Tobacco product (Prohibition of Advertisement & Regulation Trade and Commerce, Production Supply and Distribution) Act, 2003 for the purpose of serving hookah to his customers in the petitioner's schedule premises.

c. Issue such other relief's as it deems fit to grant in favour of the petitioner by this Hon'ble Court in view of the facts and circumstances of the cases, 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.

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

NC: 2024:KHC:4892

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 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.

NC: 2024:KHC:4892

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:

(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

NC: 2024:KHC:4892

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