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TMI Blog2014 (12) TMI 1303X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Caf) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the Act and Rules nothing was really added to what is already there. Miss Pinky Anand, learned Additional Solicitor General appearing on behalf of the Union, broadly supported Mr. Bhatt's stand. 6. In view of the rival contentions, the point that needs to be decided in this case is in a narrow compass. We have basically to see whether the impugned circular dated 4th July, 2011 travels outside the Cigarettes Act and the Rules or merely seeks to implement the said Act and the Rules as they stand. 7. For a determination of this case, it will be necessary to set out the relevant statutory provisions. First, the Cigarettes Act- "Section 3- Definitions. - In this Act, unless the context otherwise requires,- (k) "production", with its grammatical variations and cognate expressions, includes the making of cigarettes, cigars, cheroots, beedis, cigarette tobacco, pipe tobacco, hookah tobacco, chewing tobacco, pan masala or any chewing material having tobacco as one of its ingredients (by whatever name called) or snuff and shall include- (i) Packing, labeling or re-labelling, of containers; (ii) Re-packing from bulk packages to retail packages; and (iii) The adoption of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other tobacco products in certain places or to persons below the age of eighteen years.- (1) Any person who contravenes the provisions of section 6 shall be guilty of an offence under this Act and shall be punishable with fine which may extend to two hundred rupees. (2) All offences under this section shall be compoundable and shall be tried summarily in accordance with the procedure provided for summary trials in the Code of Criminal Procedure, 1973 (2 of 1974). Section 31. Power of the Central Government to make rules.- (1) The Central Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act. (2) Without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely: - (a) specify the form and manner in which warning shall be given in respect of cigarettes or other tobacco products under clause (o) of section 3; (b) specify the maximum permissible nicotine and tar contents in cigarettes or other tobacco products under the proviso to sub-section (5) of section 7; (c) specify the manner in which the specified warning shall be inscribed on each package of cigarettes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, assigned to them in the Act. 3. Prohibition of smoking in a public place.- (1) The owner, proprietor, manager, supervisor or in charge of the affairs of a public place shall ensure that: (a) No person smokes in the public place (under his jurisdiction/implied). (b) The board as specified in schedule II is displayed prominently at the entrance of the public place, in case there are more than one entrance at each such entrance and conspicuous place(s) inside. In case if there are more than one floor, at each floor including the staircase and entrance to the lift/s at each floor. (c) No ashtrays, matches, lighters or other things designed to facilitate smoking are provided in the public place. (2) The owner, proprietor, manager, supervisor or incharge of the affairs of a public place shall notify and cause to be displayed prominently the name of the person(s) to whom a complaint may be made by a person(s) who observes any person violating the provision of these Rules. (3) lf the owner, proprietor, manager, supervisor or the authorized officer of a public place fails to act on report of such violation, the owner, proprietor, manager, supervisor or the authorized officer shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le issuing licences under Section 479 of the Mumbai Municipal Corporation Act so as to comply with the provisions of the Cigarettes Act and the Rules made thereunder. This was directed to be done within a period of six weeks. It is as a result of this direction that the impugned circular dated 4th July, 2011 was issued in which Conditions 35 to 37 in general conditions of licence issued under Section 394 of the Mumbai Municipal Corporation Act were to be added. These conditions read as under: "Condition No. 35: The licensee shall not keep or allow to keep or sell or provide any tobacco or tobacco related products in any form whether in the form of cigarette, cigar, bidis or otherwise with the aid of a pipe, wrapper or any other instrument in the licensed premises. The Commissioner may permit smoking area as per Section 4 of Cigarette and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce Production Supply and Distribution) Act, 2003 (COTPA) in an eating house having seating capacity of thirty persons or more. The smoking area shall mean separately ventilated smoking room that: is physically separated and surrounded by full height walls on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the existing licenses and any breach of the same shall entail suspension/revocation of the said License. All the concerned Officers of the Health Department are directed to take special drive against those eating houses against whom complaints of serving hukkah are received and take stringent action by following due procedure." 10. Mr. Bhatt appearing for the Municipal Corporation urged that this circular would be valid being issued under Section 394 (1)(d) of the Mumbai Municipal Corporation Act which reads as under:- "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- (d) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t we may go to the case itself, Electa B. Merrill v. James W. Hodson [1915 B LRA 481] from which the statement has been derived. Holding that the supply of food or drink to customers did not partake of the character of a sale of goods the Court commented: "The essence of it is not an agreement for the transfer of the general property of the food or drink placed at the command of the customer for the satisfaction of his desires, or actually appropriated by him in the process of appeasing his appetite or thirst. The customer does not become the owner of the food set before him, or of that portion which is carved for his use, or of that which finds a place upon his plate, or in side dishes set about it. No designated portion becomes his. He is privileged to eat, and that is all. The uneaten food is not his. He cannot do what he pleases with it. That which is set before him or placed at his command is provided to enable him to satisfy his immediate wants, and for no other purpose. He may satisfy those wants; but there he must stop. He may not turn over unconsumed portions to others at his pleasure, or carry away such portions. The true essence of the transaction is service in the sati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lause (f), with which we are concerned, where the distinction between "sale" and "service" has been done away with. In the present case, the well established distinction between "sale" and "service" would continue to apply in view of the definition of "sale" contained in Section 3(m). It will be noticed that the definition is a "means" and "includes" one. It is well settled that such definition is an exhaustive definition (see: P. Kasilingam and others v. P.S.G. College of Technology and others 1995 Supp (2) SCC 348 at para 19). There is thus, no scope to include "service' in such a definition. Further, even if we were to accept Mr. Bhatt's contention, Rule 4(3) would become ultra vires Section 6 of the Act inasmuch as it would prohibit the sale of cigarettes and other tobacco products in a smoking area in hotels, restaurants and airports, thus, adding one more exception to the two exceptions already contained in Section 6. It is, thus, clear that this condition would be ultra vires the Cigarettes Act and the Rules properly so read. 14. It will be seen that Condition No. 35(C) of the impugned circular essentially reproduces Rule 4(3) of the said Rules and then adds the wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0. 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 Corporation's 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. 22. We, therefore, set aside the Bombay High Court judgment and delete the first paragraph of Condition No.35 and the added words in (C) of Condition No.35. The appeal succeeds to that extent. 23. In the Madras High Court judgment a notice dated 5th July, 2011 was upheld by the High Court. The notice is obviously ultra vires the Cigarettes Act and the Rules made thereunder as it prevents the owner of the hotel/restaurant from providing tobacco to persons who are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " would not include the power to prohibit. Further, Section 144 of the Code of Criminal Procedure provides a power to grant only temporary orders which cannot last beyond 2 months from the making thereof (see Section 144(6) of the Code of Criminal Procedure). Despite this being pointed out to the High Court, the High Court held: "There is no dispute as regards the position of law and we accept the contentions on behalf of the petitioners so far as Section 144 of the Code is concerned. However, solely on this ground alone the entire action on the part of the Police Commissioner cannot be said to be unlawful or beyond his jurisdiction. Prima facie, we are convinced that the notification invoked under Section 144 of the Code was issued with a definite idea and the idea was to immediately give true effect to the addition of the condition in respect of licences of persons running eating house/restaurant. It appears that the authorities felt that it would be difficult to stop the activity of providing hookah at eating house/restaurant by solely adding one of the conditions not to provide hookah at a eating house/restaurant. It appears from the affidavit-in-reply filed by the Police Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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