The petitioner filed the present writ petition for a writ of mandamus directing the respondents not to interfere in the business of the petitioner including serving of hookah to its customers in the smoking area in the schedule property, not to insist the petitioner to obtain a separate licence for serving hookah in the smoking area in the schedule property, to direct the respondent Nos.2 and 3 to withdraw the notice dated 06.02.2017, Annexure-D, and for compensation etc.
2. It is the case of the petitioner that the petitioner is a Company registered with the Registrar of Firms and has obtained trade licence from the second respondent and is carrying out its business as Bar and Restaurant under the name and style INFUSION at No.95/3, I Floor, Marathahalli, K.R.Puram Ring Road, Marathahalli, Bengaluru-560 037. The total area in which the petitioner is carrying out its business is 9000 sq.ft. and it had divided the same into two portions, one non smoking area measuring around 7400 sq.ft. and the other portion for smoking area measuring around 1600 sq.ft. The petitioner is serving hookah to its customers in smoking area. As per law, no license is required for the same. There is no prohibition under any law for serving hookah in smoking area under the provisions of the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003.
3. When things stood thus, the third respondent issued notice dated 06.02.2017, without any authority, stating that the petitioner is carrying out hookah business without taking licence from BBMP, carrying business outside the parameters of law hence as per Sections 353 and 354 of KMC Act, 1976, and Health Block No.35 and 40 broken law. Therefore, petitioner is before this Court, for the relief sought for.
4. I have heard the learned counsel for the parties to the lis.
5. Ms.Shashikala K N, learned counsel for the petitioner vehemently contended that the petitioner has obtained trade licence to carry on the business of Bar and Restaurant and there is no need to obtain separate licence to provide hookah to its customs in the smoking area of the business premises. The notice issued is without any authority of law. Therefore, sought to quash the notice issued by the respondent No.2 and further contended that the respondents should not insist the petitioner to obtain separate licence for serving hookah in the smoking area of the premises. Learned counsel further contended that this Court and the Honble Supreme Court have time and again held that there is no need to obtain separate licence for serving hookah to the customers. Therefore, she sought to allow the present writ petition.
6. Per contra, Sri H. Devendrappa, learned counsel for respondent Nos.2 and 3 has not disputed the fact that the petitioner has obtained licence to carry on the business of Bar and Restaurant. Learned counsel has not produced any provisions or Rules under the KMC Act to show that there must be a separate trade licence for serving hookah to the customers in the premises.
7. Smt. Prathima Honnapur, learned Addl. Government Advocate for respondent Nos.1 and 4 submits that in identical circumstances, this Court, in the case of Muddassar Pasha and others vs. the State of Karnataka and other made in W.P.Nos.2720-2722/2017 dated 31st January 2017 held that there is no need to obtain a separate licence for serving hookah in the permitted smoking area.
8. Having heard the learned counsel for the parties, it is undisputed fact that the petitioner is running a Bar and Restaurant in the name and style INFUSION and has obtained trade licence from the second respondent. The only dispute is, whether the petitioner has obtained separate licence for serving hookah to its customers in the smoking area. This Court, in its order dated 31st January 2017 made in W.P.Nos.2720-2722/2017, at paragraph 4 has held as under:
4. Having noticed the rival contentions, insofar as the provisions contained in COTPA Act and there being no requirement for obtaining licence to smoke tobacco in any forms including through the instrument known as hooka the issue has already been considered by the Honble Supreme Court in the case of Narinder S. Chadha & others vs. Municipal Corporation of Greater Mumbai and others Civil Appeal No.10836/2014. Further this Court in W.P.No.14226/2015 dated 03.09.2015 had also held that the licence is not required for smoking tobacco through hooka, but it has been clarified by this Court that the competent authorities would have the right to take action if the hooka is used for any other illegal purpose and for permitting the use of banned substance. In that circumstance, the law can certainly take its course.
9. The Honble Supreme court, in the case of Narinder S. Chadha & others vs. Municipal Corporation of Greater Mumbai and others Civil Appeal No.10836/2014 at paragraphs 18, 19, 20 and 21, has held as under:
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 No.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. Bhatts contention will have to be turned down.
20. Sub-clauses (d) and (e) of Condition No.
35 were stated by Mr.Bhatt to be regulations relatable to buildings which is a purely municipal function within the Municipal Corporations 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.
10. In view of the above, when the petitioner is carrying on its business by obtaining licence from the concerned authority, question of obtaining separate licence for serving hookah to its customers in the smoking area does not arise.
11. In view of the above, writ petitions is allowed. The impugned notice dated 6.2.2017 issued by the respondent Nos.2 and 3 is unsustainable and is hereby quashed. Respondent Nos.2 and 3 are directed not to insist the petitioner to obtain a separate licence for serving hookah to its customers in the smoking area of the schedule property. Ordered accordingly. Sd/- JUDGE