Judgment:
* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision:
3. d 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 NDMCs 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. No costs. RAJIV SAHAI ENDLAW, J.
CHIEF JUSTICE DECEMBER 03 2012 bs