ASN 1 PIL-111.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION PIL LODGING NO.111 OF 2010 WITH CHAMBER SUMMONS NO.208 OF 2011 Crusade Against Tobacco. ...Petitioner. Vs. Unionof India and ors. ...Respondents. Mr. Sanjay Kadam and Apeksha Sharmai/by M/s.Kadam & Co. for the Petitioner. Mr. Rajiv Narula & A.Dasgupta i/by M/s.Jhangiani Narula Associates for petitioners in WPL No.1540/2011. Mr.K.R.Belosay, “A” Panel Counsel for State. Mrs.Geeta Joglekar for Respondent-BMC. Mr.Ravindra Kadam with D.P.Singh for Respondent -UOI. CORAM : MOHIT S. SHAH, C. J. AND SMT. ROSHAN DALVI, J. DATE : 05 October 2011 PC: Our attention has been invited to the fact that the circular No.HO/14432/C, which was issued by the Municipal Corporation for Greater Mumbai in Public Health Department regarding incorporation of Condition Nos. 35 to 37 in the licence issued for Eating House under Section 394 of the Municipal Corporation Act, the legality of which has been upheld in the order dated 13 July 2011 is dated 4 July 2011 and not ASN 2 PIL-111.sxw 1 July 2011. The learned counsel for all the parties agree that since the said circular is dated 4 July 2011, necessary correction may be made in the order dated 13 July 2011. Accordingly, order dated 13 July 2011 shall be corrected in so far as date of circular of the Municipal Corporation for Greater Mumbai is concerned i. e. instead of 1 July 2011 the date shall be read as 4 July 2011. 2 In Paragraph 18 of the order dated 13 July 2011 this Court has expressed a view that similar conditions ought to be incorporated by the Municipal Corporations and the Municipal Councils in other regions of the State and the learned counsel for the State has made a statement that proper instructions will be issued within one month. Mr. Belosey, learned counsel for the State has placed on record circular dated 6 August 2011 of the Urban Development Department of the State Government issued to the Commissioners of All Municipal Corporations, Chief Officers of all Nagarparishad and Nagarpachayat. 3 The learned counsel for the petitioner submits that inspite of the incorporation of Condition Nos. 35 to 37 in the existing licenses issued to Eating Houses under Section 394 of the Municipal Corporation Act, the said conditions are not being complied and enforced in letter and spirit. 4 We find that Section 471 read with Section 394 of the Mumbai Municipal Corporation Act, 1988 provides consequences of contraventions of the terms and conditions of the licence issued under ASN 3 PIL-111.sxw Section 394 of the Act entailing prosecution and punishment for each offence with fine which may extend to Rs.25,000/- with minimum fine of Rs.5000/-. 5 Accordingly, the Municipal Corporation for Greater Mumbai shall enforce conditions including condition Nos. 35 to 37 incorporated or deemed to have been incorporated in the licenses for Eating Houses and lodge necessary prosecutions. We further direct that when such prosecutions are lodged by the Municipal Corporation Mumbai, the concerned Metropolitan Magistrate shall take up such cases for hearing and decide them within two months from the date of institution of the complaints. 6 We also find that the provisions of Smoking Rules 2004 provides that the Authorized Officer mentioned in Schedule 3 of the Rules is competent to act and compound the offences committed under Section 4 of the COPT Act, 2003. The following officers, amongst others are authorized to impose and collect fine for violation of Sec.4. i) Inspectors of Health (All public places within their jurisdiction); ii) Police officer not below the rank of Sub Inspector or any Officer of State Food or Drug Administration or any other officer, holding the equivalent rank being not below the rank of Sub Inspector of Police; iii) the Officers of State Food & Drug Administration not below the rank of police officer; ASN 4 PIL-111.sxw iv) Representative Post office in their jurisdiction; v) Inspectors of Schools, District Education officer and Education Inspectors. 7 It is thus clear that Inspector of Health under the Municipal Corporation Act as well as Police officer not below the rank of Sub Inspector of Police are competent to impose and collect fine in respect of violation of provisions of COTP Act and the Smoke Free Rules. We direct the respondents to depute their officers at all relevant places to exercise powers and carry out their corresponding duties in the above regard whenever situations merits. 8 In our order dated 13 July 2011 and the subsequent judgment dated 11 August 2011 this Court has already held that condition Nos. 35 to 37 incorporated or deemed to have been incorporated in the licence issued for Eating House by the Municipal Commissioner are for the purpose of enforcement of the provisions of COTPA Act and the Smoking Free Rules and therefore, officers who are prescribed as authorized officers in Schedule III in the Free Smoke Rules are authorized to recover and collect the fine under COTP Act. 9 Section 4 directs that no person shall smoke in any public place and the only exception for smoking is in a separate smoking area and separate smoking place in a hotel having thirty rooms or a restaurant having seating capacity of thirty persons or more. Further, in ASN 5 PIL-111.sxw the airports, a separate provision for smoking area of space may be made. It is, therefore, clear that the provisions of Smoke Free Rules and the provisions of smoking under Condition No.37 incorporated by the Municipal Corporation for the Greater Mumbai are a part of the implementation of the aforesaid provisions of Section 4 of the COPT Act. We, therefore, declare that the Officers described as authorized officers in Schedule 3 of the Prohibition of Smoking in Public Places Rules, 2008 are competent to impose and collect fine against the violation of Section 4 and therefore also consequential violation of smoke free rules and Condition Nos. 35 to 37 incorporated or deemed to have been incorporated by the Municipal Corporation in the licence for eating houses issued under Section 394 of the Municipal Corporation Act. We also make it clear that the prosecution to impose fine under Section 471 of the Mumbai Municipal Corporation Act would be available against the owners/Proprietors /Managers or any other person in-charge of the restaurant which have provided smoking area or smoking places. The above officers shall be allowed to collect fine from any person smoking in violation of COPTA and Smoke Free Rules as also lodge prosecution under Section 471 read with Section 394 and Condition Nos. 35 to 37 of the License under Section 394 of the Act. 10 The learned counsel for the petitioner has also invited our attention to the Office Memorandum dated 27 July 2011 of Government of India in Ministry of Health and Family Welfare wherein the serious consequences of smoking or chewing tobacco are highlighted. As per the estimate of the Global Youth Tobacco Survey India ASN 6 PIL-111.sxw (GYTS-2009-10) the prevalence of tobacco use among adults (15 years and above) is 35% with 47.8% of men and 20.3% women consuming tobacco in one form or other. It also indicates that 14.1% of children in the age group 13-15 are now consuming tobacco products. Hence, the growing usage of tobacco in all age groups is a matter of serious public health concern in India. This epidemic is also a burden on the government exchequer, as per the Health Cost Study conducted by ICMR/AIIMS in 1998-99 the cost of treatment of just three diseases caused by tobacco use i. e. Cancer, lung diseases and cardiovascular diseases was Rs.30,833/- crores. The Office Memorandum thereafter referring the COPTA and the Smoke Free Rules Office states as under. “Although most of the provisions under COTPA has been notified, but its implementation at National as well as sub-national level has not been satisfactory, since the states do not have the necessary wherewithal to implement as well as monitor the Act/Rules. This Ministry has received numerous complaints about the blatant violation of the rules across the States. In additional there are a number of court cases challenging the various provision under the Act across various courts of the country. The proposal for setting up a National Tobacco Regulatory Authority is still under consideration for quite sometime. The proposed NTRA will built legal capacity for proper defence of court cases and also en-capacitate the states to effectively implement the anti tobacco laws.” 11 It is thus clear that the proposal for setting up NTRA ASN 7 PIL-111.sxw authority is under active consideration of the Central Government. It appears that so far such regulatory authority has not been set up. We therefore, expect the Central Government to take necessary steps for setting NTRA as expeditiously as possible and preferably by 31 December 2011. 12 In case such regulatory authority is not set up by 31 December 2011, the petitioner will be at liberty to institute fresh PIL. 13 In view of the above clarifications and directions we are of the view that nothing further is required to be done in the public interest litigation at this stage. However, looking to the grievance being made by the learned counsel for the petitioner and the petitioner himself, who is present in the court, we leave it open to the petitioner and any other concerned person to file fresh Public Interest Litigation, if and when necessary to do so. 14 However, in order to ensure that orders in the present petition are enforced, the petitioner has to be provided with necessary protection for some time. It is, therefore, directed that protection with security provided to the petitioner shall continue for the period of three months from today. It will be open to the petitioner to seek directions, if any, in this behalf. 15 The PIL is disposed of in terms of the above directions and clarifications. ASN 8 PIL-111.sxw 16 Since PIL is disposed of, Chamber Summons No.208/2011 does not survive and the same is accordingly disposed of. CHIEF JUSTICE ( SMT. ROSHAN DALVI, J. )