(Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA)

As common questions of fact and law are involved in this batch of petitions, they were heard together and are being disposed of by this common judgment and order.

In all the writ petitions the prayers are common. The petitioners who have been issued licence under Section 33 of the Bombay Police Act, 1951 to run eating house/restaurant in the city of Ahmedabad have preferred these petitions with the following prayers :-

“(A) Your Lordships may be pleased to hold and declare that the respondent no.1, his officers, servants, etc. have no power, authority and/or jurisdiction to make any further endorsement on the licence of the petitioner – Licence Holder and thereby to restrain the petitioner establishment to run Hukka Bar.

(AA) Your Lordships may be pleased to quash and set aside the circular/notification dated 14.07.2011 issued by the Commissioner of Police, City Ahmedabad.

(B) Your Lordships may be pleased to hold and declare that any further endorsement made on the License of the petitioner by the respondent no.1, his officers, agents, etc., if any, is illegal and the same is not binding to the petitioner – License Holder and in conformity with the provisions of Cigarettes and Other Tobacco Products Act, 2003 and the Cigarettes and Other Tobacco Products Rules, 2008 framed thereunder and further be pleased to hold and declare that preventing the petitioner from carrying on their lawful and legal business by the respondents is in violation of the rights conferred upon the petitioner under Article 19(1)(g) of the Constitution of India.

(C) Your Lordships may be pleased to direct the respondents, their agents, servants, etc. not to create any hindrance or obstructions in the smooth running of Hukka Bar as per the conditions of the original license and not to restrain the petitioner from giving service of Hukka Bar on the basis of further endorsement made on the license, if any, and permit the petitioner to run the Hukka Bar in accordance with law.

(D) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to permit the petitioner to run the service of the petitioner of Hukka Bar, as mentioned in the title clause of this petition and further be pleased to direct the respondents, their agents, servants, etc. not to disturb and/or create any hindrance.

(DD) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to stay the operation, execution and implementation of the circular/notification dated 14.07.2011 issued by the Commissioner of Police, City Ahmedabad.”

Brief facts relevant for the purpose of deciding these petitions can be summarised as under :-

1. The petitions have been preferred mainly challenging the jurisdiction of the Police Commissioner of the city of Ahmedabad in issuing the notification under Section 144 of the Criminal Procedure Code and under Section 33(1) of the Bombay Police Act, 1951 (for short, 'the Act of 1951') imposing a complete ban and prohibiting providing hookah at eating house/ restaurant.

2. Petitioners are running restaurants on the strength of licence/permission granted by the Police Commissioner of the city of Ahmedabad on their giving an undertaking to abide by all the conditions which may be imposed upon by the Police Commissioner under the Act of 1951. The licences are issued to open 'eating house' as defined under Section 2(5A) of the Act of 1951.

3. It appears from the record that a notification dated 2nd December 2005 was issued by the Police Commissioner of the city of Ahmedabad imposing two conditions for regulating hookah bar: (1) a separate cabin would be provided over and above the other general area for providing food in the restaurant and that hookah would not be provided in the common area of the restaurant; and (2) that hookah would not be provided to the persons below the age of 18 years.

4. Record reveals that thereafter on 14th May 2009 further eight conditions w