IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.08.2011 CORAM: THE HONOURABLE MR.JUSTICE V.DHANAPALAN W.P.No.16881 of 2011 & M.P.Nos.1 and 2 of 2011 Robustaa (Hyglow Cafe), 24/67, Halls Road, Kilpauk, Chennai-600 010, rep. by its Partner N.Vishal Kumar .. Petitioner Vs. 1. The Commissioner, Corporation of Chennai, Ripon Building, Chennai-600 003. 2. The Health Officer, Corporation of Chennai, Ripon Building, Chennai-600 003. 3. S.Julius Sekar, Secretary, Rukshan Annexe Association, No.4(7), Siva Sankaran Street, Kilpauk, Chennai-600 010. (Third respondent impleaded as per Order dated 22.7.2011 in M.P.No.3 of 2011 in W.P.No.16881 of 2011) .. Respondents Writ Petition under Article 226 of the Constitution of India, praying for issuance of a Writ of Mandamus, forbearing the respondents from in any way interfering with the business at Robustaa Restaurant, No.24/67, Halls Road, Kilpauk, Chennai-600 010, pursuant to the licence granted by the first respondent in Licence Code K070071590/2010-2011, dated 23.3.2011. For petitioner : Mr.V.Selvaraj for M/s.B.Rabu Manohar For respondents: Ms.V.M.Velumani, Spl.Govt. Pleader for RR-1 & 2 Mr.M.Kamalanathan for R-3 https://hcservices.ecourts.gov.in/hcservices/ ORDER By consent of the learned counsel appearing for the parties, the Writ Petition itself is taken up for disposal. 2. Whether prohibition of running a restaurant, permitting using tobacco products, such as "Hookah" in the residential locality, is justified and in accordance with law ? is the important question, to be decided in this Writ Petition. 3. The petitioner-restaurant has sought to forbear the respondents from in any way interfering with the business at Robustaa Restaurant at No.24/67, Halls Road, Kilpauk, Chennai-600 010, pursuant to the licence granted by the first respondent in Licence Code No.K070071590/2010-2011, dated 23.3.2011. 4. According to the petitioner, the restaurant was started in January 2011. The petitioner applied for licence before the first respondent and it was granted to the petitioner in Licence Code No. K070071590 in its order dated 8.2.2011 and the licence was valid upto 31.3.2011 and the petitioner also paid the necessary licence fee of Rs.12,650/- to start the restaurant, namely for vegetarian food like Italian with Indian Fillings (Pizza, Pastam etc.), Indian Starters and Rices, Coolers , Coffees, Shakes and Deserts, Sandwiches and more Indian dishes. 5. Basically, the restaurant is a small eat-out-joint in Kilpauk area catering to the needs of the middle class people. The terms and conditions of the licence have been set out in the licence granted under Section 279 of the Chennai City Municipal Corporation Act (hereinafter referred to as 'the CCMC Act'). The said licence was renewed by the order of the first respondent on 23.3.2011 for a further period of one year after the payment of the required licence fee and it is valid upto 31.3.2012 and till date, this licence has not been cancelled by the first respondent. In addition to the above licence, the petitioner has obtained fire service licence and has been maintaining the restaurant as prescribed by the first respondent, by following the rules and regulations and kept the restaurant tidy and clean. 6. While so, the second respondent issued a notice under Section 379-A of the CCMC Act, intimating the following defects, which are to be rectified: (a) Chimney (smoke outlet) should be raised to six feet from the surrounding structure. (b) The use of tobacco products inside the restaurant should be stopped immediately. (c) Using tobacco with smoking should be prevented immediately, otherwise causing public health nuisances. https://hcservices.ecourts.gov.in/hcservices/ (d) Food handlers should be medically examined by payment of necessary fee. (e) Burning of any kind of cooking articles outside the premises should be prevented. (f) To obtain neighbours' NOC and produce. (g) Sound nuisance from the eating house causing public health nuisance be stopped. 7. For the above notice, the petitioner-restaurant gave a reply to the second respondent on 2.5.2011 complying with all the defects as mentioned in the said notice, dated 25.4.2011. The petitioner also intimated that the chimney is raised to six feet above the neighbouring buildings, as requested by the second respondent and tobacco products were not in use inside the restaurant and separate zone has been earmarked for tobacco users. It was also mentioned that smoking of tobacco was prohibited inside the restaurant except in a particular zone and in the said reply-letter, it was further mentioned that necessary fee has been paid for medical examination of the food handlers and no burning of any kind of cooking articles outside the premises is taking place. NOC has been obtained from the adjacent owners of the building and there was no sound nuisance from the eating house and causing public health nuisance at any point of time. 8. In such a situation, one Rukshan Annexe Association (impleaded third respondent in this Writ Petition), which is a residential complex situated behind the petitioner-restaurant, in its letter addressed to the first and second respondents on 14.4.2011, stated that the petitioner is causing health hazards and environmental pollution. It was also mentioned that the nuisance has been caused to the residents. The Rukshan Association seems to have sent another letter on 11.6.2011 to the respondents 1 and 2 to take action on the petitioner and the petitioner should function only in strict compliance of the rules prescribed by the public authority and a copies of the said letters were also sent to the petitioner by the said Association. Thereafter, the petitioner immediately requested the office bearers of the Rukshan Association to have a meeting with them, which was organised on 17.6.2011 at 12.15 p.m. in the petitioner-restaurant and the grievances were considered and in furtherance to that, the petitioner's Engineers were consulted and by using the knowledge of technical personnel, the entire matter of running the restaurant was streamlined so that the residents of the Rukshan Association do not have any problem. The petitioner also sent a letter to their office bearers of the Association on 1.7.2011 intimating that all their grievances have been rectified and there will not be any complaints in future from them and also informed them that they are looking forward for a long and happy relationship with their esteemed Association. https://hcservices.ecourts.gov.in/hcservices/ 9. By the time, the Association sent a complaint to the Tamil Nadu Pollution Control Board, to which, the Tamil Nadu Pollution Control Board sent a letter on 17.6.2011, stating that the officials of the Board visited the petitioner's premises on 17.6.2011 and requested to take the following measures within a fortnight and furnish the progress of the same immediately: (a) To remove the motor of the kitchen chimney from ground floor and to place it in a suitable place of the building to avoid noise nuisance. (b) To extend the kitchen chimney exhaust at the terrace to the mid of their terrace building. (c) Washings of the vessels at the backyard shall be stopped strictly before 7 p.m. daily. (d) Copy of the licence obtained from the Corporation of Chennai. (e) Copy of the licence obtained from the Fire Service Department. 10. Pursuant to that, the petitioner has written a letter of the District Environmental Engineer, Pollution Control Board on 22.6.2011, stating that the chimney has been turned to the other side and the civil work for the same will be completed within 10-15 days and it was also completed and the same was also intimated to the Association. However, the second respondent issued a notice to the petitioner on 5.7.2011, stating that the petitioner is also selling tobacco products and violated Section 44 of the Tamil Nadu Public Health Act, 1939, calling upon the petitioner to give a reply within seven days and in the said notice, it was mentioned that the tobacco products are being administered, which is harmful to the health, and the environment is polluted due to tobacco administration to the clients and the same violates Section 6(b) of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, supply and Distribution) Act, 2003 (for short, 'the Tobacco Products Prohibition Act'). Further, the officials of the respondents 1 and 2 sealed the premises of the petitioner at around 6 p.m. on the same day, i.e. on 5.7.2011 and have restrained the petitioner from doing business. The petitioner immediately sent a reply to the first respondent on 8.7.2011, stating that they will abide by all the rules and regulations imposed by the respondents 1 and 2 and they are willing to run the restaurant without giving any room for adverse notice and requested the respondents 1 and 2 to permit the petitioner to run the restaurant, since licence was still in force. They have also undertaken the same in the stamp paper of Rs.20/- and gave it to the respondents 1 and 2 on 8.7.2011, but till date, the respondents 1 and 2 have not permitted the petitioner to re-start the business, since the petitioner is serving tobacco products in the restaurant. https://hcservices.ecourts.gov.in/hcservices/ 11. The only reason put forward by the respondents 1 and 2 is that the petitioner is serving tobacco products, namely Hookah in the restaurant. It is their case that the Hookah is a leisurely enjoyment of people and people smoke Hookah sitting around in street cafes, exhaling sweet smelling smoke of Hookah tobacco which is unlike any other tobacco. Hookah tobacco is essentially a damp blend referred to as maassel and this blend contains tobacco leaves with molasses or honey or fruit pulp or semi-dried fruit, depending upon the taste of the smoker. According to the petitioner, it is also a common practice among some smokers to include the pomegranate juice or rose oil to this blend to add extra flavour to the Hookah tobacco. As Hookah made its way into the Western society, many new and aromatic fruit flavours were introduced with the Hookah fruit flavoured tobacco, which is now the most famous. 12. Although many traditional Hookah smokers do enjoy the more traditional Hookah tobacco, but most people nowadays enjoy puffing the dark flavoursome wet mixture or aromatic Hookah fruit tobacco, which comes in outstanding flavours such as vanilla, apple, mint, lemon, passion, fruit, raspberry, guava and this succulent list goes on. Hookah tobacco is mainly 70% molasses and flavouring and just 30% tobacco and 0.05% nicotine. Most types of Hookah tobacco contain almost no tar content, and this mix is what gives the tobacco its aromatic and delicious quality. As Hookah tobacco by composition is wet and so, it is smoked with the help of a Hookah charcoal. Instead of lighting the tobacco directly, it is heated with the help of a coal placed in a tin foil or a wire mesh which is positioned either above or in the bowl holding the wet mixture of tobacco. Once lit properly, this wet tobacco lasts a smoker a very long time, mostly requiring the coal to be lit again and again. In Hookah etiquette, it is considered very disrespectful if any one lights a cigarette near a place where a Hookah is being enjoyed, cigarette tobacco is not tolerated by Hookah smokers in their aromatic environment. The Hookah tobacco is not only aromatic, but also has no harmful effects on the smoker, as the tobacco is never actually burned, but just heated, it produces a fewer number of carcinogens, which have the most harmful results on the smoker. 13. It is the petitioner's case that a Division Bench of the Bombay High Court, had for the first time, directed the Municipal Corporation of Mumbai to incorporate such terms and conditions while issuing licences under Section 479 of the Mumbai Municipal Corporation Act. The Division Bench also suggested that the Municipal Corporation shall have to incorporate the necessary terms and conditions in the licences including existing licences to provide that licensees shall comply with the aforesaid statutory provisions. It was also directed that the same should be done within six weeks from the date of the order, i.e. 5.5.2011. The Municipal Corporation of Mumbai, following the directions issued by the Division Bench of https://hcservices.ecourts.gov.in/hcservices/ the Bombay High Court, issued circulars to the restaurants, indicating as follows: (a) Restaurants serving Hookahs should have a seating capacity of 30 persons or more and have a separate smoking area. (b) Smoking area should not be established at the entrance or exit of the restaurant. (c) They should be distinctively labelled 'smoking area' in English and Marathi. (d) Smoking area should be used for smoking only and no service (food/beverage) should be allowed. (e) Smoking area should be separately ventilated in the following way: It should be physically separated and surrounded by full height walls on all four sides and it should have an entrance with an automatically closing door, which should normally be kept in closed position. (f) The air from the area should be exhausted directly outside and should not mix with the air supply for the other parts of the building. It should be fitted with a non-re-circulation exhaust ventilation system, an air cleaning system, or a combination of the two. (g) The smoking area should have negative air pressure in comparison to the other parts of the building. Thus, the Mumbai Municipal Corporation issued the above guidelines and permitted the use of Hookah in the city of Mumbai. 14. Similarly, High Court of Andhra Pradesh also considered the case and granted interim order of injunction restraining the respondents therein from interfering with the business of the petitioners in serving of flavoured Hookahs to their customers, unless any violation of the provisions of Act 34 of 2003 or any other enactment which governs the serving of flavoured Hookahs is pointed out. 15. That being the position, the petitioner has not violated any provisions of the Tobacco Products Prohibition Act, more specifically Section 6(b). However, the petitioner-restaurant undertakes that they will not sell Hookah to any person below 18 years and there are no schools or colleges within the radius of 100 yards from their restaurant and the action taken by the respondents are totally illegal and unwarranted. 16. It is the further case of the petitioner that many restaurants in the city of Chennai are still serving Hookah to their customers and no action had been taken against them and only the petitioner and a few others are being targeted for the reasons best known to the respondents 1 and 2 alone and thus, the petitioner's fundamental rights under Articles 14 and 19(1)(g) of the https://hcservices.ecourts.gov.in/hcservices/ Constitution, are grossly affected. Having no other efficacious alternative remedy, the petitioner invoked the writ jurisdiction under Article 226 of the Constitution of India and filed the present Writ Petition. 17. The first respondent has filed counter affidavit, inter- alia stating that the allegations contained in the affidavit of the petitioner, are denied, except those that are specifically admitted. According to the respondents 1 and 2, the Corporation of Chennai has issued licence only for Robestaa Hyglow Cafe to run the restaurant, but the petitioner was running Hookah Bar instead of restaurant by using cancer causing tobacco products unauthorisedly and causing public health hazards by way of emanated noxious smoke. Further, there is no proper chimney in the restaurant and the running of the Hookah Bar is an illegal mode of business. As per CCMC Act, under Section 279, the petitioner has obtained licence for the restaurant, in which it is mentioned that the licence was only for running the restaurant. The petitioner is running Hookah Bar with cancer causing tobacco products and the youngsters and youth especially in the age group of below 20 years, were smoking/inhaling tobacco products and emanated noxious carbon-monoxide affecting the neighbouring residents as well as the youngsters who are spoiling themselves and it becomes a public nuisance in and around the area. The petitioner is not entertaining the middle class people in the Hotel for having food. The petitioner was serving tobacco products to the upper class youngsters for Hookah smoking, because, the products are sold at very high cost, such that, per user, the charge is Rs.800/- approximately. 18. The Rukshan Annexe Association at Sivasankar Street, Kilpauk, Chennai-10, has written a complaint letter to the Chief Minister's Cell, vide reference No.130017, dated 16.6.2011 against one Mr.N.Rajesh Kumar and N.Vishal Kumar, the original licence holders that they are running a Hookah Bar with restaurant at Old No.67, New No.24, Halls Road, Kilpauk, Chennai-10 and they further stated that the harmful pollution and irritating unbearable chimney noise affects the life and health of all neighbouring residents as well as causing public nuisance. The Association also prayed to close the illegal trade immediately. Similar petition was received by the respondents 1 and 2 from the Rukshan Annexe Association, dated 14.4.2011 and 11.6.2011. Subsequently, the respondents 1 and 2 issued notice under Section 279 of the CCMC Act on 25.4.2011 with immediate effect and asked the petitioner to comply with the sanitary conditions. The respondents also directed the petitioner to stop the Hookah Bar and use of all related cancer causing tobacco products. Even on 5.7.2011, the respondents issued a notice under Section 44 of the Tamil Nadu Public Health Act to the petitioner to stop the using hazardous cancer causing tobacco products in the residential locality immediately. The respondents issued a notice under Section 6(b) of https://hcservices.ecourts.gov.in/hcservices/ the Tobacco Products Prohibition Act, which prohibits the sale of tobacco products in the area within a radius of 100 yards of any educational institution and also asked the petitioner to stop the Hookah Bar activity in the limit of 300 feet educational institutions locality. But, the petitioner had not complied with and continuously ran the Hookah Bar illegally and against the Tobacco Products Prohibition Act. The fire licence was obtained for running eating house, but the petitioner emanated the noxious smoke without proper chimney and endangering to neighbouring residents by way of running Hookah Bar. Hence, the petitioner's entire contention is false and baseless and the petitioner also wrongly mentioned in the affidavit that the notice under Section 379-A has been issued and it is under Section 279 of the CCMC Act. 19. In the counter affidavit, the respondents-Corporation of Chennai stated that the petitioner has not complied with the sanitary conditions and was running Hookah Bar upto the last day, unauthorisedly and inspite of several warnings by the respondents, the petitioner neither stopped his illegal activities, nor rectified the immoral activities. The respondents made inspection several times including Zonal Health Officer, Sanitary Inspectors and Sanitary Officer, Food Inspector and it was found that the petitioner supplied tobacco products to the customers for Hookah in the entire area and there is no separate zone for using the tobacco products as the petitioner falsely stated in the affidavit. During the inspection, the respondents found hundreds of pockets of tobacco with display "Tobacco causes cancer" and those tobacco pockets in the Store Room of the petitioner's Hookah Bar were duly sealed by the respondents. The relevant evidence in relation with the illegal and immoral activities of the petitioner, is furnished before this Court. The respondents have taken necessary relevant steps in controlling the illegal activities of the petitioner under due process of law. 20. The petitioner has accepted the illegal and immoral business to the Rukshan Annexe Association in the reply dated 11.6.2011. The petitioner assured that they will rectify the defects. Therefore, the petitioner has full knowledge about the endangered Hookah products, which were emanating cancerous smoke. The petitioner intentionally with an ulterior motive, to spoil the young generation, purposely even after several warnings by the respondents, continued the Hookah business without any hesitation. The petitioner also accepted the defects and that there was no proper chimney in the Hotel. The existing chimney was in the back side and not properly erected. Hence, the officials of the Pollution Control Board also issued instructions to the petitioner for erection of chimney. Even during the inspection made on 6.7.2011, the petitioner had not erected the smoke outlet/chimney and hazardous chemical smoke emanated which causes heavy air pollution in and around the neighbouring areas as well as polluting the nature. The petitioner purposely violated the conditions of licence and running the Hookah https://hcservices.ecourts.gov.in/hcservices/ Bar without bothering the public health, public nuisance and spoiling the youth society. 21. It is further averred in the counter affidavit that the World Health Organisation (WHO) and public health agencies as well as the Mumbai news-letters briefed about the running of Hookah tobacco products as below: (a) Hookah smoke contains high levels of toxic compounds, including tar, carbon-monoxide, heavy metals and cancer-causing chemicals (carcinogens). In fact, Hookah smokers are exposed to more carbon-monoxide and smoke than are cigarette smokers. (b) As with cigarette smoking, Hookah smoking is linked to lung and oral cancers, heart disease and other serious illnesses. (c) Hookah smoking delivers about the same amount of nicotine as cigarette smoking does, possibly leading to tobacco dependence. (d) Hookah smoke poses dangers associated with second hand smoke. (e) Hookah smoking by pregnant women can result in low birth weight babies. (f) Hookah pipes used in Hookah Bars and Cafes may not be cleaned properly, risking the spread of infectious diseases. 22. Like many tobacco products, use of the pipes is linked to lung cancer and other respiratory and heart diseases. Water pipe tobacco smokers are exposed to cancer-causing chemicals and hazardous gases, such as carbon-monoxide. Water pipe users are also exposed to nicotine, the substance in tobacco that causes addictive behaviour. Despite knowing the dangers of water pipe smoking, one study found that most (more than 90%) beginning water pipe smokers believe cigarette smoking is more addictive than water pipe smoking. The same study also found evidence that the use of water pipes is increasing throughout the world. Hence, the Hookah Bar is very endangering to public and public health and therefore, the petitioner's contention is false and baseless. 23. According to the respondents 1 and 2, the petitioner is trying to mis-interpret the judgment of the Division Bench of Bombay High Court and the direction of the Court was to Corporation of Mumbai to frame rules for running Hookah Bar. The High Court directed the Corporation of Greater Mumbai to frame stringent Rules as conditions for grant of licence for running a Hookah Bar or permitting smoking in the restaurant. The Police Department was also directed to inspect the restaurants and inform Corporation Officials about the violations, if any. In this case, the petitioner has not sought permission or licence to run Hookah Bar or permit smoking in the Restaurant. Therefore, the sealing of the premises is legal and https://hcservices.ecourts.gov.in/hcservices/ valid. The premises where the petitioner is running the Hookah Bar is within 100 meters of school, church and destitute home situated at No.62, Halls Road and another school at No.70, Halls Road, Kilpauk, Chennai-10. 24. The hazardous smoke emanated is let out harming the general public. The petitioner is spoiling especially the youngsters to use Hookah. Ultimately, on inspection, it was found that the young boys and girls smoking Hookah spread over the entire premises. Considering the activity of the petitioner, violating the entire condition of the licence and with related number of evidence, the respondents 1 and 2 have sealed the petitioner's premises to avoid public issues. The petitioners have not initiated any proceedings against the same, and the respondents 1 and 2 prayed for dismissal of the Writ Petition. 25. After the filing of the counter affidavit by the respondents 1 and 2, the petitioner has filed an additional affidavit, stating that they have been permitting and serving Hookah in the restaurant at a separate enclosure as contemplated under Section 7 of the Tobacco Products Prohibition Act. The term "tobacco product" as contemplated under Section 3(p) under the Tobacco Products Prohibition Act, includes cigarette tobacco, pipe tobacco and Hookah tobacco as contemplated under the Schedule therein and as such, it is not a banned product and therefore, the petitioner has not violated any terms and conditions of the licence issued by the Corporation of Chennai on 8.2.2011 and 23.3.2011 under the provisions of the CCMC Act. Further, the petitioner has made a statement in the