Narinder S. Chadha And Ors vs Municipal Corpn Of Greater Mumbaui & Ors

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 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) A smoking area or space shall be used only for the purpose of smoking and no other service(s) shall be allowed.

The Licensee shall comply with the aforesaid conditions and breach of any of the condition shall entail cancellations/ suspensions/ revocations of License.

The proposal regarding inclusion of the smoking area in the licensed area of Eating House shall be approved by the concerned DEHO.

A notice may be issued to all the existing Eating Houses Licensees that condition nos. 35 to 37 shall be deemed to be incorporated 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."

20. 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.

26. We are at a loss to understand the aforesaid reasoning. If Section 144 is to be invoked, the order dated 14th July, 2011 would have expired 2 months thereafter. The High Court went on to state that while administering the law it is to be tempered with equity and if an equitable situation demands, the High Court would fail in its duty if it does not mould relief accordingly. It must never be forgotten that one of the maxims of equity is that `equity follows the law'. If the law is clear, no notions of equity can substitute the same. We are clearly of the view that the Gujarat High Court judgment dated 2nd December, 2011 deserves to be set aside not only for following the Bombay High Court judgment impugned in the appeals before us but for the reasons stated hereinabove.

27. All the appeals are allowed in the aforesaid terms. There will be no order as to costs.

December 08, 2014.