Hookah Bar-Imabe-II

No Hookah Activities In Eating Houses In Maharashtra: Bombay High Court

FULL PDF ORDER

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION (L) NO. 11498 OF 2023

Sayli B. Parkhi                                                               … Petitioner

                         Versus

State of Maharashtra & Ors.                                         …Respondents

Mr. Mayur Khandeparkar a/w. Mr. Vikramjit Garewal, Mr. Ajinkya Udhane, Ms. Vinali Bhaidkar i/b. Mrs. Pushpanjali Arora for the petitioner.

Mr. Amit Shastri, AGP for respondent no. 1.

Mr. Kunal Waghmare for MCGM.

 _______________________

                                                                                      CORAM:             G. S. KULKARNI

& R.N. LADDHA,  JJ.

                                                                                     DATED:        24 April, 2023     

_______________________

ORAL ORDER (Per G.S. Kulkarni, J.)

  1. Not on board. Upon mentioning, taken on board on a praecipe as moved on behalf of the petitioner.
  2. The question which falls for consideration is whether the petitioner under the terms of a Eating House License granted to her by the Municipal Corporation, would permit serving of “Hookah” or what is claimed as “Herbal Hookah”.
  3. The petitioner has described herself to be an entrepreneur carrying on business under the name and style of M/s.Parkhi Hospitalities and is running a Restaurant/Lounge named “The Orange Mint” at 16 C, Asha Studio, S. T. Road, Chembur, Mumbai.
  4. This petition is moved praying for a relief that the impugned order dated 18 April, 2023 passed by the Medical Officer Health, M/West Ward, directing the petitioner that if within 7 days from the date of said order, activity of serving Hookah/Herbal Hookah, in the service area, by using burnt charcoal, if is found to be continued by the petitioner, the eating house license granted to the petitioner shall be cancelled/revoked, without any further notice.
  5. The impugned order is passed on the backdrop of an earlier Writ Petition filed by the petitioner, being Writ Petition No.501 of 2023. The case of the Municipal Corporation is that two show-cause notices were issued to the petitioner. First show-cause notice was issued on 20 September, 2022 and the second show-cause notice was dated 1 February, 2023. The show cause notices were in relation to the objectionable activity of the petitioner of serving Hookah, stated by the petitioner to be Herbal Hookah. 
  6. The Municipal Corporation has taken a stand that granting of a eating house license under section 394 of Mumbai Municipal Corporation Act, 1888 (for short “M.M.C. Act”) would not permit the petitioner to conduct any Hookah activity including serving of Herbal Hookah. Accordingly, such show cause notices came to be issued, which were subject matter of Writ Petition No.501 of 2023. A co-ordinate Bench of this Court, after hearing the parties disposed of the said Writ Petition by order dated 13 February, 2023 directing that the issues be decided by passing an order on the show cause notices. The said order passed by this

Court reads thus:

O R D E R

  1. Rule made returnable forthwith.
  2. Heard learned counsel for the parties.
  3. At the outset, the learned Counsel for the Petitioner has tendered draft amendment, seeking leave to raise challenge to the show cause notice dated 1st February, 2023 that has been issued during pendency of the proceedings. The amendment is granted. It be carried out forthwith. Re-verification is dispensed with.
  4. It is the case of the Petitioner that, she is proprietor of the restaurant, which is serving Herbal Hookah. The Respondent No.7, who claims to be a Social Activist, had filed complaint against the

Petitioner with the Municipal Corporation, pursuant to which

restaurant of the Petitioner was inspected and further notices were issued. One of the notices issued to the Petitioner is dated 28th September, 2022 stating therein that license condition Nos.8 and 12 had been breached. The Petitioner filed reply to the said notice and the Deputy Municipal Commissioner, on 21st November, 2022, directed the concerned Officer to get a clarification in the matter insofar as, activity of permitting Herbal Hookah was concerned. It is thereafter that the fresh show cause notice dated 1st February, 2023 has been issued.

  1. The Petitioner submits that the show cause notice has been issued without any due authority of law and it is urged that the provisions of Section 394 of the Mumbai Municipal Corporation Act, 1888 are not attracted.
  2. We find that the order under challenge is only a show cause notice which has been issued to the Petitioner. If, the Petitioner raises any permissible ground to indicate that the show cause notice is not justified, it would be for the Municipal Corporation to consider the same and take a decision thereon. The interest of justice would be served by issuing the following directions:
  3. The Petitioner shall, within a period of ten days from today, submit her reply to all the show cause notices including the show cause notice dated 1st February, 2023.
  4. The Medical Health Officer of the MCGM shall grant an opportunity of hearing to the Petitioner and thereafter take a decision on the said show cause notice within a period of four weeks from grant of such hearing to the Petitioner. The Medical Health Officer is free to consider whether the representation of the Respondent No.7 deserves consideration or not.
  • The decision taken by the Medical Health Officer, be communicated to the Petitioner accordingly. Without prejudice to the rights and contentions of either parties, if any adverse order is passed by the Medical Health Officer, the same shall not be given effect to for a period of seven days from the date of service of the order on the Petitioner.
  1. Keeping all challenges on merits open, the Writ Petition is disposed of with the aforesaid directions. Rule accordingly.

No costs.”

(emphasis supplied)

  1. On the above backdrop, the impugned order has been passed after

hearing the petitioner, inter alia directing the petitioner to stop serving hookah, failing which the eating house license shall be cancelled. 

  1. The petitioner has raised two fold contentions, firstly, that the impugned order does not furnish reasons and secondly, the impugned

order is illegal in as much what is stated in the show cause notice was an objection of breach of condition nos. 8 and 12, which would not pertain to any Hookah activity.

  1. We have perused the record. The record contains an inspection report of the Public Health Department of Municipal Corporation dated 18 August, 2022.   The inspection report has categorically observed that the petitioner is serving Herbal Hookah using flame or burnt charcoal at the service area of the petitioner’s eating house. Such inspection report called upon the petitioner to rectify the said activity within seven days, failing which legal action under section 394 of M.M.C. Act shall be initiated.  The relevant extract of the inspection report is required to be

noted, which reads thus:

“Infringement of license condition under section 394 of MMC Act.

Findings -The above mentioned trade was inspected on 18/08/2022 at 2.40 p.m. when Vishruth Ashok Sharma, Age 33 yrs., Manager, was present and found following license condition infringed.

General condition no. 6 -License is not exhibited in the trade premises. 8- Serving Herbal Hookah using flame or burnt charcoal at service area.

You are therefore directed to rectify the above mentioned conditions within 7 (seven) days from the date of reeipt of I.R., failing which legal action under section 394 of MMC Act will be initiated against you which may please note.  Explained in Marthi/Hindi Language.”

  1. A second inspection was undertaken and an Inspection Report dated 16 September, 2022 was prepared, which refers to the Hookah activity being conducted by the petitioner. The relevant extract of the

inspection report reads thus:

“Infringement of license condition under section 394 of MMC Act (Eating House)

Findings -The above mentioned trade, Eating House was inspected on 16/09/2022 at 4.55 p.m. when  Mr. Vishruth Ashok Sharma, Age 33 yrs., Manager, was present and found following license condition infringed.

General condition no.  8- Serving Herbal Hookah using flame or burnt charcoal at service area; 12- Serving the Hookah, other than permitted license which was issued for eating house only.

You are therefore directed to rectify the above mentioned conditions within 7 (seven) days from the date of reeipt of I.R., failing which legal action under section 394 of MMC Act will be initiated against you which may please note.  Explained in Marthi Language.”

  1. There is a third Inspection Report dated 12 January, 2023 which categorically refers to the petitioner conducting an activity of smoking Hookha which was not the permitted activity of an Eating House. It was observed that the trade activity, i.e. smoking may cause fire or otherwise endanger the public safety. The relevant extract of the said inspection

report reads thus:

“Findings –

The above mentioned trade Eating House was visited and inspected by me on on 12/01/2023 at 4.45 p.m. when  Mr. Vishruth Ashok Sharma, Age 33 yrs., person in charge was present and found following license condition infringed.  

General condition no. 12 -License is not exhibited in the trade premises. 8- Serving Herbal Hookah using flame or burnt charcoal at service area.

You are therefore directed to rectify the above mentioned conditions within 7 (seven) days from the date of receipt of I.R., failing which legal action under section 394 of MMC Act will be initiated against you.”

  1. It is on such backdrop, the show-cause notice dated 20 September, 2022 was issued to the petitioner calling upon the petitioner to show cause as to why Eating House license should not be revoked/cancelled in the event the petitioner does not stop the other service activity using flame/burnt charcoal in the service area.  In the said show-cause notice, there is a clear reference to the violation by the petitioner of General Condition no. 8-Using flame/burnt charcoal other than approved in Fire condition in service area and a reference to General Condition no. 12 of License – Conducting the other activity (other than permitted license). The contents of the said show-cause notice are required to be noted, which

reads thus:

“SHOW CAUSE NOTICE

“ Above Eating House M/s. Parkhi Hospitalities (Orange Mint), License No. 887780133, situated at 16C, Asha Studio, S.T. Road, Chembur, Mumbai – 400 071 was inspected by concern Sanitary Inspector on Dtd. 18.08.2022 and Dt. 16.09.2022.  During inspection, following violations of License conditions were observed:

  • General condition No. 8: Using flame/burnt charcoal other than approved in Fire condition in service area.
  • General condition No. 12: Conducting the other activity (other than permitted license).

In view of above, you are hereby directed to submit your explanation within 07 days why the license should not be revoked/cancelled and to stop the other service activity using flame/burnt charcoal in the service area, failure of which, you will be liable for further necessary action of revocation, cancellation of Eating House License without any further notice which you may

please note.”                                                                             

           (emphasis supplied)

  1. The second show cause notice dated 1 February, 2023 was on

similar lines which alleged breach of general condition no. 8, general condition no. 12 and general condition no. 20.  The contents of the said

show cause notice is required to be noted, which reads thus:

“SHOW CAUSE NOTICE NO. 2

                                                                     Above Eating House M/s. Parkhi Hospitalities

(Orange Mint), License No. 887780133, situated at16 C, Asha Studio, S.T. Road, Chembur, Mumbai ~ 400 071. The said License was issued only for Eating House which may please note.

                                                                 The Eating House was inspected by concern

Sanitary Inspector on Dtd. 18.08.2022, Dtd. 16.09.2022 and Dtd. 12.01.2023 and issued Inspection Reports accordingly, during these inspections following violations of the License condition were observed:

  • General condition No. 8: Using flame/burnt charcoal other than approved in Fire condition in service area.
  • General condition No. 12: Conducting the other activity in the License area (activity which is other than permitted license).
  • General condition No. 20: Endanger to public safety.

Show Cause Notice No. 1 was issued on Dtd. 20.09.2022 to yourself which may please be refer for which this office has given sufficient time for rectification of the General Condition No. 8 & 12. Even then as per the Reply Letter Dtd. 19.01.2023 with respective to I.R. No. 0008186 Dtd. 12.01.2023 your said establishment still continue to violate condition no. 8 & 12.

In view of above, you are once again hereby directed

to submit your explanation within 07 days as to why the license should not be revoked/ cancelled, failure of which you will be liable for further necessary action of revocation/cancellation without further notice which you may please note.”

                                                                  (emphasis supplied)

  1. It is on such backdrop, the petitioner was heard by the Designated officer in pursuance of the order dated 13 February, 2023 passed by the co-ordinate Bench of this Court in Writ Petition No. 501 of 2023 (supra) and the impugned order is passed.
  2. The impugned order in detail has referred to the inspection reports dated 18 August, 2022, 16 September, 2022 and 12 January, 2023 inter alia observing that the Eating House conducting such activity of serving Herbal Hookah by using burnt charcoal in the service area was directly in

violation of condition nos. 8, 12 and 20 of the General License Conditions.  On hearing the petitioner, it is observed by the Designated Officer that the Herbal Hookah activity in the Eating House premises is seriously objectionable, as it was endangering the public safety and putting life at risk, thereby breaching General License Condition nos. 8 & 20. The petitioner was accordingly directed to stop such activity within 7 days

from the issuance of such order, failing which further steps to

cancel/revoke the license of the eating house will be required to be taken.

The impugned order is required to be noted, which reads thus:

Office of the Medical Officer of Health

“M/West” Ward Office building,

                                                                                                        Room No. 208, Second floor,

                         Sharadbhau Acharya Marg, Chembur,

                                                                                               Mumbai – 400071.

                     E-mail : mohmw.phd@mcgm.gov.in

To,

Smt. Sayli Bhairavnath Parkhi,

M/s. Parkhi Hospitalities (Orange Mint), 16C, Asha Studio, S.T. Road, Chembur, Mumbai – 400 071.

   Sub.:Cancellation/Revocation of the Eating House Licence   No.887780133 – M/s. Parkhi Hospitalities (Orange Mint).

   Ref.: 1.  Court Order dated 13/02/2023 passed in the Writ       Petition No. 501of 2023 by Hon’ble Shri Justice

     Chandurkar and Hon’ble Shri Justice Chandwani.

  1. Hearing for M/s. Parkhi Hospitalities (Orange Mint) vide letter dtd. ACMW/MOH/ SR-162/Dtd. 13.03.2939

The Eating House M/s. Parkhi Hospitalities (Orange Mint), License No. 887780133, situated at 16 C, Asha Studio, S.T Road, Chembur, Mumbai – 400 071. The said License was issued for Eating House.

During the inspection dtd. 18.08.2022, 16.09.2022, 12.01.2023 it has been observed that, the said Eating House conducting the activity of Herbal Hookah by using burnt charcoal in the service area and thereby directly violating the condition no. 8, 12 and 20 of the General License Conditions, the same has been notified to you, through the Inspection Reports (IR No. 0008068, 0008083 & 0008186).

The Show Cause Notices (Dtd. 20.09.2022 & 01.02.2023) which was issued to you by this office were challenged by you in the Hon’ble High Court vide Writ Petition No. 501 of 2023.

As per the Court order dated 13/02/2023 passed in the Writ Petition No. 501 of 2023 by Hon’ble Shri Justice Chandurkar and Hon’ble Shri Justice Chandwani, the reply of the show cause notices submitted by you on 23.02.2023 has been received by this office on dtd. 23.02.2023 vide no. ACMW/MOH/018946.

With reference to above subject matter, the Hearing has been conducted on 20/03/2023 by this office. In view of the hearing, this office is of the opinion that Hookah activity, i.e., Herbal Hookah activity in the Eating House premises is strongly objectionable as it is endangering to public safety and putting life at risk, thereby breaching General License Condition No. 8 & 20.

In view of this, the following decisions is passed:

  • Only Eating House activity should be carried out under the License No. 887780133 issued to the Eating House – M/s. Parkhi Hospitalities (Orange Mint). No other activity other than permitted License.
  • To stop the Hookah/Herbal Hookah activity at the above Eating House License Premises.

As per the Hon’ble High Court Orders dated 13/02/2023 passed in Writ Petition No. 501 of 2023 by Hon’ble Justice Shri Chandurkar and Hon’ble Justice Shri Chandwani, this office has communicated the decision taken by Medical Officer of Health M/West Ward by this letter.

After 07 days from the date of receipt of this letter, any other activity (i.e. serving Hookah/Herbal Hookah in service area by using burnt charcoal) if found continued by the said Eating House under the License No. 887780133, the said License will be cancelled/revoked

without any further notice which you may please note.

                                                                                          (emphasis supplied)

  1. Khandeparkar, learned counsel for the petitioner has limited contentions in assailing the impugned order. The objections are on technical issues, firstly, that no reasons are given by the Designated Officer/Municipal Corporation in passing the impugned order.  In our opinion, the reasons as contained in the impugned order are more than sufficient to bring home the petitioner’s violation of the terms and conditions of the licence, namely, that the objected activity was the

Hookah activity, which was the entire cause of concern, being the breach of the license conditions.  We are, therefore, not inclined to accept the contention as urged on behalf of the petitioner that the impugned order is not a reasoned order. In our opinion, reasons as set out in the impugned order are sufficient to indicate that the petitioner was in breach of the license conditions in conducting the hookah activity. In the context in hand, it is not expected from the licencing authority that unnecessarily verbose lengthy order be passed as expected by the petitioner.  Explicitly setting out the breach of the terms and conditions of the license on the basis of materials was certainly sufficient.

  1. The second contention as urged on behalf of the petitioner is that Section 394 of M.M.C. Act would not take within its ambit an issue in relation to any Hookah activity. We have perused the provisions of Section 394 of M.M.C. Act, which provides “for certain articles or animals not to be kept, and certain trades, processes and operations not to be carried on, without a licence and things liable to be seized, destroyed, etc., to prevent danger or nuisance”. 
  2. Section 394 of the MMC Act needs to be noted, which reads thus:

Section 394 – Certain articles [or animals] not to be kept, and certain trades, processes and operations not to be carried on, without a licence; and things liable to be seized, destroyed, etc., to prevent danger or nuisance 

(1) Except under and in accordance with the terms and conditions of the licence granted by the Commissioner, no person shall –

  • keep, or suffer or allow to be kept, in or upon any premises,
    • any article specified in Part I of Schedule M; or,
    • any article specified in Part II of Schedule M, inexcess of the quantity therein specified as the maximum quantity (or where such article is kept along with any other article or articles specified in that Schedule, such other maximum quantity as may be notified by the Commissioner) of such article which may at any one time be kept in or upon the same premises wirhout a licence;
  • keep, or suffer or allow to be kept, in or upon anypremises, for sale or for other than domestic use, any article specified in Part III of Schedule M;
  • keep, or suffer or allow to be kept, in or upon anypremises, horses, cattle or other four-footed animals for sale, for letting out on hire or for any purpose for which any charge is made or any remuneration is received, or for the sale of any produce thereof;
  • keep or use, or suffer or allow to be kept or used, in or upon any premises, any article [or animal] which, in the opinion of the Commissioner, is dangerous to life, health or property, or likely to create a nuisance either from its nature or by reason of the manner in which, or the conditions under which, the same is, or is proposed to be, kept or used or suffered or allowed to be kept or used;
  • carry on, or allow or suffer to be carried on, in or uponany premises,-
    • any of the trades specified in Part IV of Schedule M,or any process or operation connected with any such trade;
    • any trade, process or operation, which, in theopinion of the Commissioner, is dangerous to life, health or property, or likely to create a nuisance either from its nature or by reason of the manner in which, or the conditions under which, the same is, or is proposed to be, carried on;

(f) carry on within [Brihan Mumbai] or use or allow to be used any premises for, the trade or operation of a carrier.

  • The State Government may, by notification in the OfficialGazette, add to, amend or delete any item in Schedule M and thereupon, the said Schedule shall be deemed to be amended accordingly but without prejudice to anything done or omitted to be done before such amendment.
  • A person shall be deemed-
    • to have known that keeping any article [or animal] or carrying on a trade, process or operation is, in the opinion of the Commissioner, dangerous or likely to create a nuisance within the meaning of clause (d) or, as the case may be, paragraph (ii) of clause (e), of sub-section (1), after written notice to that effect, signed by the Commissioner, has been served on such person or affixed to the premises to which it relates;
    • to keep or to suffer or allow the keeping of an article [or animal] or to carry on or to allow to be carried on a trade, process or operation within the meaning of clause (d) or, as the case may be, paragraph (ii) of clause (e) of subsection (1), if he does any act in furtherance of keeping of such article or animal or carrying on of such trade, process or operation or is in any way engaged or concerned therein whether as principal, agent, clerk, master, servant, workman, handicraftsman, watchman or otherwise.
  • If it appears to the Commissioner that the keeping of anyarticle [or animal] or the carrying on of any trade, process or operation, in or upon any premises is dangerous or likely to create a nuisance within the meaning of clause (d), or paragraph (ii) of clause (e), of sub-section (1), the Commissioner may, by written notice, require the person keeping the article [or animal] or suffering or allowing it to be kept or the person carrying on the trade, process or operation or allowing it to be carried on, as the case may be, to take such measures (including discontinuance of the use of the premises for any such purpose) as may be specified by him in such notice in order to prevent such danger or nuisance; and if such measures are not taken within the specified time, the Commissioner may seize and carry away or seal such article [or animal] or any machinery or device used in connection with such trade, process or operations. Any article [or animal] or machinery or device so seized and carried away or sealed may be redeemed, within a period of one month from the date of seizure, on payment of such sum and subject to such conditions as to future use or disposition of such article [or animal], machinery or device as may be fixed by the Commissioner in that behalf:

Provided that, if any article [or animal] so seized and carried away or sealed is of an explosive or dangerous nature, the Commissioner may by order in writing cause the same to be forthwise destroyed or otherwise disposed of, as he thinks fit:

Provided further that, if any article [or animal] or machinery or device so seized and carried away or sealed is not claimed and redeemed by the owner or person found in possession thereof, the Commissioner may by order in writing cause the same to be sold by auction or otherwise disposed of as he thinks fit, forthwith if the article [or animal] is of a perishable nature, and in any other case after the expiry of the aforesaid period of one month.

The proceeds of the sale or other disposal (if any) shall, after defraying therefrom the cost of the sale or such disposal, be paid to the owner or person found in possession of the article [or animal] or machinery or device sold or disposed of.

  • It shall be in the discretion of the Commissioner-
    • to grant any licence referred to in sub section (1), subject to such restrictions or conditions (if any), as he shall think fit to specify, or
    • for the purposes of ensuring public safety, to withhold any such licence:

         Provided that, the Commissioner when withholding any such licence shall record his reasons in writing for such withholding and furnish the person concerned a copy of his order containing the reasons for such withholding:

Provided further that, any person aggrieved by an order of the Commissioner under this sub-section may, within sixty days of the date of such order, appeal to the Chief Judge of the Small Cause Court, whose decision shall be final.

  • Every person to whom a licence is granted by theCommissioner under subsection (5) shall-
    • keep such licence in or upon the premises, if any, towhich it relates;
    • put up a board outside such premises on a conspicuouspart, indicating thereon the nature of the article [or animal] kept or the trade, process or operation carried on, in or upon the premises, the municipal licence number, if any, in respect thereof and the name and local address of the owner or occupier or person in charge of the premises;
    • put proper label on the packing or container of everylicensable article to indicate its name, contents and hazardous nature.
  • The Commissioner may from time to time with the approvalof [the Standing Committee] specially exempt from the operation of this section any mills for spinning or weaving cotton, wool, silk or jute or any other large mill or factory.”

                                                                                            (emphasis supplied)

  1. On a bare reading of the provisions of Section 394, it is evident that sub-section (1)(d) categorically provides that except under and in accordance with the terms and conditions of the licence granted by the Commissioner, no person shall keep or use, or suffer or allowed to be kept or used, in or upon any premises, any article or animal, which, in the opinion of the Commissioner, is dangerous to life, health or property, or likely to create a nuisance either from its nature or by reason of the manner in which, or the conditions under which, the same is, or is proposed to be, kept or used or suffered or allowed to be kept or used. Further sub-section (3)(a) provides that a person shall be deemed to have known that keeping any article or animal or carrying on a trade, process or operation is in the opinion of the Commissioner, dangerous or likely to create a nuisance within the meaning of clause (d) or, as the case may be, paragraph (ii) of clause (e), of sub-section (1), after written notice to that effect, signed by the Commissioner, has been served on such person or

affixed to the premises to which it relates.  Sub-section (5) clearly provides that it shall be in the discretion of the Commissioner to grant any licence referred to in sub section (1), subject to such restrictions or conditions (if any), as he shall think fit to specify and for the purposes of ensuring public safety, to withhold any such licence. Proviso below sub-section (5) ordains a remedy to the effect that if any person is aggrieved by an order of the Commissioner under this sub-section may, within sixty days of the date of such order, appeal to the Chief Judge of the Small Cause Court, whose

decision shall be final.  

  1. In our opinion, on a holistic reading of Section 394 of the MMC Act, the contention of the petitioner that the eating house license granted to her permits “hookah activities” or conducting any “hookah parlour” under the terms and conditions of the eating home license, is totally untenable. The canvass of Section 394 of the MMC Act, is quite broad to take within its ambit articles, trade, operations, which are dangerous to life, health or which are likely to create nuisance, as quite extensively described in the provision.  The intention of the legislature can be derived from the explicit wordings of the provision, when it takes  within its ambit issues inter alia in regard to articles, trade, process or operation which in the opinion of the Commissioner are dangerous to life, health or property or are likely to create nuisance “either from its nature” or by reason “of the manner” in which or the conditions under which the same  are or are proposed to be used and carried on.  Thus, a narrow interpretation cannot be attributed to Section 394.  It is also clearly seen from Section 394 that it is the discretion of the Municipal Commissioner to grant an eating house license, hence if the discretion is exercised by the Municipal Commissioner within the parameters of law, there is no question of any applicant for grant of the eating house license claiming any absolute legal right to be entitled to a license.  It also cannot be conceived that an activity which is not specifically permitted under the terms and conditions of license, would be deemed to be included in any license conditions. Such reading of the license conditions would lead to an absurdity. 
  2. It thus cannot be countenanced that grant of a license to conduct an eating house is deemed to include a license to conduct Hookah activities. Such cannot be the interpretation of Section 394 of the MMC Act. The Municipal Commissioner in granting license is certainly required to apply his mind to such issues which are dangerous to life, health or property of the citizens, as also, on issues which are likely to create a nuisance either from its nature or by reason of the manner in which, or the conditions under which, the same are interalia used, kept or suffered, as clearly ordained by Section 394(1)(d) of the MMC Act. In our opinion, in the present case, the Municipal Commissioner, has appropriately exercised his discretion and authority to prevent the petitioner from conducting the smoking/Hookah activities of the nature carried out by the petitioner.
  3. This apart, if the connotation of Section 394 of the MMC Act as

canvassed on behalf of the petitioner, is accepted, it would be nothing but doing violence to the said provision, as such interpretation would mean that once an eating house license is granted, it would deem to include permission to conduct activities of a hookah parlour, or other similar activities. Certainly such object and intention of the legislature can neither be derived nor attributed to the provisions of  Section 394 of MMC Act. Even otherwise, it may not be possible even for the eating house to control the ingredients of the hookha once the apparatus is in the custody of the customers. Illustratively, in a restaurant or eating house, where children, women and elderly visit for refreshments/eating, it cannot be expected that hookha is one of the menus being served and more particularly of the category as offered by the petitioner using flame or burnt charcoal.  This would amount to an absolute nuisance in so far as an eating house is

concerned. Further, if this is to be a reality, the impact it would create on such customers at the eating house can just be imagined.

  1. We are thus not persuaded to accept any of the contentions as urged on behalf of the petitioner. By the impugned order, the petitioner has been rightly prevented from undertaking Hookah activities. 
  2. Khandeparkar has drawn our attention to an order dated 15

July, 2019 passed by the co-ordinate Bench of this Court in Criminal Writ Petition No. 2719 of 2019 in Ali Reza Abdi vs. The State of Maharashtra & Ors.  The observations as made in paragraph 9 of the said order are relied upon by Mr.Khandeparkar, wherein the Division Bench in the context of the criminal proceedings it was dealing, observed that the Municipal Commissioner has taken a stand by stating that the hookha parlours do not fall within the ambit of eating house and therefore do not fall within the provision of Section 394 of the MMC Act. The Division Bench then proceeded to make an observation on which emphasis is laid by Mr.Khandeparkar that the contention of the Municipal Commissioner appears to be the effect that under the MMC Act, no licence is required for the hookha bar. The Division Bench in such case was examining as to whether the product “Soex” contains tobacco, nicotine, narcotic or any psychotropic substance.  In such context, the Court also examined the provisions of the 2018 Amendment to the Cigarettes and Other Tobacco Products Act,2003 (COTPA Act). This was the case in which no action as akin to the action taken in the present petition, was taken by the Municipal Corporation. The Court examining such issue, made such passing observations on the stand of the Municipal Corporation.  In our considered opinion, such observations as noted above would certainly not assist the petitioner. The relevant observations as made by the Division

Bench in the said order read thus:-

“9. Mr. Gole, learned counsel for respondent no. 2Municipal Corporation place on record the communication dated 10.01.2018 issued by the Municipal Commissioner of the Bombay Municipal Corporation to the Additional Chief Secretary (HOME).  This communication is of Municipal Commissioner’s response to the Additional Chief Secretary in pursuant of the letter from Commissioner of Police regarding Hookha Parlours in Mumbai City.  The Municipal Commissioner made his stand clear by stating that hookha parlours do not fall under the ambit of eating house and therefore do not fall within the provision of Section 394 of the Mumbai Municipal Corporation Act under notified trades for license.  In short, the contention of the Municipal Commissioner is that under MMC Act no license is required for the hookha bar.  However, the police officers are empowered to take legal action for the infringement of the conditions imposed under COTPA Act as well as taking action on the hookha Parlours where drugs/narcotics are provided and consumed which falls under the purview of Police Department.

  1. In the light of the above it is clear that the petition is filed on a mere apprehension and as long as the petitioner complies with the provisions of COTPA and do not serve any prohibited substance in the hookha Parlour then no action can be taken against them. However, it is made clear that if it is found the petitioner is selling/using any substance prohibited under the COTPA Act then surely the action can be taken against him. We find that at this stage no declaration more than what is stated above is necessary.”

(emphasis supplied)

  1. The petitioner’s reliance on the said order passed in Criminal Writ Petition No. 2719 of 2019 (supra) is totally unfounded also for the reason that the issue, subject matter of consideration in the present case is an issue, on an action being taken by the Municipal Corporation against the petitioner for breach of the licence conditions, which was not the case in the proceedings of the said criminal writ petition. The present case is not a case of an activity of a pure hookha parlour, as the case of the petitioner is purely on eating house license granted to her and whether it would include hookha activities. Also, the observation of the Division Bench as emphasized by Mr. Khandeparkar is not on any interpretation on Section 394 of the MMC Act.
  2. Before parting, we may observe that in the present case, Municipal Commissioner taking into consideration the facts and circumstances of the case and the overall situation has appropriately used his discretion in taking the impugned decision, also bearing in mind the requirements of the license conditions. It cannot be overlooked that the Municipal Commissioner is not expected to keep a continuous vigil on the hookah trade/activities of the petitioner including on the petitioner’s claim of its herbal ingredients and to a further claim that they are not affecting the “health” and/or creating a nuisance, as specified in the license conditions, to run an eating house. Once it is clear that hookah activities are not part of the Eating House license conditions, such activity cannot be permitted.

If it is permitted every eating house in the city can provide “hookah”, the nature of which the Municipal Commissioner in the normal course of his duties cannot ascertain.  This would result in a situation beyond one’s imagination and totally uncontrolled.

  1. It may also be observed that when licensing provisions are incorporated in municipal legislations, the same are required to be interpreted keeping in mind the object of the legislation, which would include achieving societal welfare and public good not only from the point of public health but avoidance of public nuisance.
  2. In the light of the above discussion, we find no merit in the

petition.  The petition is dismissed.  No costs.

                                             (R.N. LADDHA,  J.) (G. S. KULKARNI, J.)

FULL PDF ORDER

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