IMPORTANT POINTS
Definition of sale being exhaustive, ‘service’ cannot be included in it.
Smoking in public places is prohibited but permitted in specified smoking areas. Prohibiting sale of cigarettes and providing hookah by eating places in such zones is ultra vires the Act and the Rules.
Power to regulate u/s 33, Bombay Police Act does not include power to prohibit.
Section 144 CrPC is a temporary measure. No order can be sustained for more than two months.
Prohibiting Hookah bars u/s 33 Police Act and 144 CrPC is illegal.

Headnote:(a) Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply & Distribution) Act, 2003 – Section 6 and Rule 4(3), Prohibition of Smoking in Public Places Rules, 2008 – Condition no. 35, Circular dated 4th July, 2011 – Condition 35 prohibiting keeping or selling or providing any tobacco or tobacco related products in the licenced premises – Section 6 not prohibiting sale of tobacco products – Rule 4(3) prohibiting any other service in smoking area – Sale and service not interchangeable terms – Service cannot be included in sale – Condition ultra vires Act and Rules. (Para 12, 13)
       [1979] 1 S.C.R. 557 – Relied upon
       (2004) 7 SCC 68; (1969) 3 SCC 838; (1989) 2 SCC 541– Referred
       (b) Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply & Distribution) Act, 2003 – Section 3(m) – Definition of sale – ‘Means’ and ‘includes’ – Exhaustive – ‘Service’ cannot be included in such definition. (Para 13)
       1995 Supp (2) SCC 348 – Relied upon
       (c) Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply & Distribution) Act, 2003 – Section 4 and Proviso r/w Rule 3 and 4, Prohibition of Smoking in Public Places Rules, 2008 and Condition 35(C), Circular dated 4th July, 2011 – Rule 3(1)(a) dealing with prohibition in public places and referable to section 4 – Rule 4(3) deals with smoking in specified smoking area and referable to Proviso to section 4 – “Smoking” as defined in section 3(n) with a Hookah would be permissible under Rule 4(3) – Expression “no other service shall be allowed” referring to services other than the providing of a Hookah – Including Hookah in “or any apparatus designed to facilitate smoking” in condition 35(C) ultra vires the Act and Rules. (Para 16, 17, 18)
       (d) Prohibition of Smoking in Public Places Rules, 2008 – Rules 3(1)(c) and 4(3) r/w Condition no. 35, Circular dated 4th July, 2011 – Have to be read harmoniously – Permissibility of smoking in specified areas under Rule 4(3) – Cannot be taken by Rule 3(1)(c) which applies to public places and not specified smoking areas. (Para 19)
       (e) Condition no. 35, Circular dated 4th July, 2011 – Sub-clauses (D) and (E) of Condition No. 35 – Regulations relatable to buildings – Purely municipal function within the Municipal Corporation’s ken – Directed to be followed in all cases. (Para 20)
       (f) Bombay Police Act – Section 33 r/w section 144, Code of Criminal Procedure, 1973 – Gujarat Government prohibiting use of hookah bars u/s 33 of the Act with help of section144, CrPC – Power to regulate – Does not include power to prohibit – More over orders u/s 144 can last only for two months – Prohibitory order bad in law. (Para 24, 25)
       (1973) 1 SCC 227 – Relied upon
       (g) Administration of Justice – Judicial propriety – Equity – ‘Equity follows the law’ – Where law is clear, no notions of equity can substitute the same – Prohibiting hookah bars u/s 144 CrPC – Not sustainable. (Para 26)
       Facts of the case:
       In the first case, namely, civil appeal arising out of SLP(C) No.30832 of 2011 – Narinder S. Chadha v. Municipal Corporation of Greater Mumbai, a judgment of the Bombay High Court dated 11th August, 2011 disposed of a writ petition and ultimately decided that the impugned circular dated 4th July, 2011 only implemented the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply & Distribution) Act, 2003 and the Prohibition of Smoking in Public Places Rules, 2008 and dismissed the challenge to the said circular.
       Similarly, in cases arising from Chennai and Ahmedabad, similar circulars/notices were under challenge and in both the impugned judgments in SLP(C) Nos.19247-19248 of 2012 (Temperature v. Deputy Police Commissioner, Zone-1 Ahmedabad) and SLP(C) No.8143 of 2014 (Robustaa (Hyglow Café) v. The Commissioner Corporation of Chennai), the Gujarat and Madras High Courts followed the Bombay High Court judgment dated 11th August, 2011 and, consequently, dismissed the writ petitions filed before them.
       Finding of the Court:
       Impugned judgments are not sustainable.
       Result: All appeals allowed.

JUDGMENT

R.F. Nariman, J.

1. Leave granted.

2. In this batch of matters, we are concerned with the Municipal Corporations of various cities implementing the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply & Distribution) Act, 2003. In the first case before us, namely, civil appeal arising out of SLP(C) No.30832 of 2011 – Narinder S. Chadha and others v. Municipal Corporation of Greater Mumbai and others, a judgment of the Bombay High Court dated 11th August, 2011 disposed of a writ petition in which several wide ranging contentions were urged, and ultimately decided that the impugned circular dated 4th July, 2011 only implemented the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply & Distribution) Act, 2003 (hereinafter referred to as the “Cigarettes Act”) and the Prohibition of Smoking in Public Places Rules, 2008 (hereinafter referred to as the “Rules”) and dismissed the challenge to the said circular. Similarly, in cases arising from Chennai and Ahmedabad, similar circulars/notices were under challenge and in both the impugned judgments in SLP(C) Nos.19247-19248 of 2012 (Temperature etc. v. Deputy Police Commissioner, Zone-1 Ahmedabad and Others) and SLP(C) No.8143 of 2014 (Robustaa (Hyglow Café) v. The Commissioner Corporation of Chennai and others), the Gujarat and Madras High Courts followed the Bombay High Court judgment dated 11th August, 2011 and, consequently, dismissed the writ petitions filed before them. It is from these three judgments that appeals have been preferred.

3. Mr. C.U. Singh, learned senior advocate appearing on behalf of the appellants in the civil appeal arising out of SLP(C) No.30832 of 2011 made wide ranging arguments on the genesis of the Cigarettes Act and the fact that it was legislation made under Entry 52 List I read with Entry 33 List III of the 7th Schedule to the Constitution of India. He cited Godawat Pan Masala Products I.P. Ltd. & Anr. v. Union of India & Ors., (2004) 7 SCC 68, particularly the concluding paragraph 77 (6) stating that the Cigarettes Act is a special Act dealing only with tobacco and tobacco products, while the Prevention of Food Adulteration Act, 1954 is general and must therefore yield to the Cigarettes Act. He also cited Bajinath Kedia v. State of Bihar & Ors., (1969) 3 SCC 838 for the proposition that once the requisite declaration under Section 2 of the Cigarettes Act is made, the State Government is denuded of any power to legislate in the field occupied by the Cigarettes Act. He also cited Paluru Ramakrishnaiah & Ors. v. Union of India & Anr., (1989) 2 SCC 541 for the proposition that executive instructions and conditions cannot be contrary to statute or statutory rules. Ultimately, however, he contended that there were three features of the impugned circular which required to be struck down being ultra vires the Cigarettes Act and the Rules made therein.

4. The first condition did not allow a licensee of a restaurant to keep or sell or provide any tobacco or tobacco related products in any form in the licenced premises. This, according to him, was contrary to Section 6 of the Cigarettes Act and the Rules made thereunder. Further, smoking areas which are to be used only for the purpose of smoking cannot have any apparatus designed to facilitate smoking. This in his respectful submission puts a bar on Hookah smoking and is also outside the scope of the Cigarettes Act read with the Rules.

Further, smoking area dimensions laid down in paragraphs (D) and (E) of Condition No.35 were also conditions which one did not find either in the Cigarettes Act or in the Rules made thereunder and, hence, were ultra vires. Other learned counsel appearing for other appellants and interveners adopted the arguments of Shri Singh.

5. Mr. R.P. Bhatt, learned senior counsel appearing for the Municipal Corporation of Greater Mumbai argued

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2014 Supreme(SC) 867

Cases Referred (6)