Bombay High Court upholds Municipal Commissioner’s rejection of serving Hookah/Herbal Hookah at a restaurant with an eating house license

Bombay High Court

Bombay High Court: In a petition filed by the petitioner, an entrepreneur carrying on business under the name and style of Parkhi Hospitalities and is running a Restaurant/Lounge named “The Orange Mint” at Mumbai, challenging the impugned order dated 18-04-2023 passed by the Medical Health Officer directing the petitioner to restrict the activity of serving Hookah/Herbal Hookah, in the service area, by using burnt charcoal, failing which, the eating house license granted to the petitioner shall be cancelled/revoked, without any further notice. A division bench of G S Kulkarni and R S Laddha JJ., held that taking into consideration the facts and circumstances of the case and the overall situation has appropriately used his discretion in taking the impugned decision, also bearing in mind the requirements of the license conditions.

The case of the Municipal Corporation is that the grant of an eating house license under Section 394 of the Mumbai Municipal Corporation Act, 1888 would not permit the petitioner to conduct any Hookah activity including serving Herbal Hookah. Thus, two show-cause notices were issued to the petitioner in relation to the objectionable activity of the petitioner of serving Hookah as Herbal Hookah. Pursuant to this the petition was filed and an impugned order was passed.

The issue under consideration is whether the petitioner under the terms of the Eating House License granted to her by the Municipal Corporation, would permit the serving of “Hookah” or what is claimed as “Herbal Hookah”.

The Court noted that, on a holistic reading of Section 394 of the MMC Act, the contention of the petitioner that the eating house license granted to her permits “hookah activities” or conducting any “hookah parlour” under the terms and conditions of the eating home license, is totally untenable. The intention of the legislature can be derived from the explicit wordings of the provision, when it takes within its ambit issues inter alia in regard to articles, trade, process, or operation which in the opinion of the Commissioner are dangerous to life, health, or property or are likely to create nuisance “either from its nature” or by reason “of the manner” in which or the conditions under which the same are or are proposed to be used and carried on. Thus, a narrow interpretation is not tenable.

The Court opined that it is the discretion of the Municipal Commissioner to grant an eating house license, hence if the discretion is exercised by the Municipal Commissioner within the parameters of the law, there is no question of any applicant for grant of the eating house license claiming an absolute legal right to be entitled to a license. The Municipal Commissioner in granting license is certainly required to apply his mind to such issues which are dangerous to life, health or property of the citizens, as also, on issues which are likely to create a nuisance either from its nature or by reason of the manner in which, or the conditions under which, the same are inter-alia used, kept or suffered, as clearly ordained by Section 394(1)(d) of the MMC Act.

The Court remarked that, in a restaurant or eating house, where children, women, and elderly visit for food, it cannot be expected that hookah is one of the menus being served and more particularly of the category as offered by the petitioner using flame or burnt charcoal. This would amount to an absolute nuisance as far as an eating house is concerned.

Thus, the Court held that the Municipal Commissioner, has appropriately exercised his discretion and authority to prevent the petitioner from conducting the smoking/Hookah activities of the nature carried out by the petitioner.

[Sayli B Parkhi v State of Maharashtra, 2023 SCC OnLine Bom 1044, decided on 24-04-2023]

Advocates who appeared in this case :

Mr. Mayur Khandeparkar a/w. Mr. Vikramjit Garewal, Mr. Ajinkya Udhane, Ms. Vinali Bhaidkar i/b. Mrs. Pushpanjali Arora for the petitioner.

Mr. Amit Shastri, AGP for respondent no. 1.

Mr. Kunal Waghmare for MCGM.

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