No Fundamental Right To Run A Hookah Bar, Activity Falls Under 'Res Extra Commercium': Allahabad High Court

The Allahabad High Court (Lucknow Bench) recently observed that citizens do not possess a fundamental right to run a hookah bar, as such activities fall under the legal doctrine of res extra commercium (things outside/beyond commerce). The observation was made by a division bench of Justice Alok Mathur and Justice Amitabh Kumar Rai while hearing a writ petition filed by Emperio Grand Pvt. Ltd, which runs a hotel and restaurant business in Lucknow. It was the case of the petitioner that it holds a license to operate "Food Services-Restaurants" issued by the Department of Food Safety and Drug Administration, but is not being permitted to run a hookah bar on its premises. The petitioner submitted that it had earlier moved the HC with a plea which was disposed of with a direction to the persons affected to apply to the statutory authority in accordance with law for the grant of a Hukkah Bar. However, it was submitted that to date, no such licence has been granted to the petitioners. Furthermore, it was submitted that the petitioner felt threatened that the police may restrain them and their customers from running the Hukkah Bar. Therefore, it prayed for a direction to the state government to permit it to operate a Hukkah Bar within its establishment. Against the backdrop of these submissions, when the Court asked whether the petitioner had obtained any specific licence to run a Hukkah Bar, the bench was informed that no such licence had been issued to date. Based on this admission, the High Court observed thus:"Accordingly, prima facie this Court is of the considered view that the petitioners do not have a fundamental right to run a Hukkah Bar, such an activity falls under the realm of res extra commercium"In this regard, the High Court heavily relied on the Supreme Court's 1995 Judgment in PN Krishna Lal versus Govt. of Kerala, wherein the Top Court had observed thus: "The State has the power to prohibit trade or business which are illegal, immoral or injurious to the health and welfare of the people. No one has the right to carry on any trade or occupation or business which is inherently vicious and pernicious and is condemned by all civilised societies. Equally no one could claim entitlement to carry on any trade or business or any activities which are criminal and immoral or in any articles of goods which are obnoxious and injurious to the safety and health of general public…Prohibition of trade or business of noxious or dangerous substance or goods, by law is in the interest of social welfare". Consequently, the High Court observed that only if the petitioners obtain a proper licence can they be permitted to run a Hukkah Bar, subject to compliance with the terms and conditions of such a licence. Thus, refusing to pass any interim order in favour of the petitioner, the High Court directed that the matter be listed and connected with a larger bunch of already pending matters concerning the legality of hookah bars across the state.Here, it may be noted that in the leading connected writ petition (Writ-C No. 10713 of 2023), the High Court is currently dealing with the issues as to whether the 2017 amendment to the Prohibition of Smoking in Public Places Rules, 2008, completely restricts hookah operations. While the petitioners rely on unamended rules and the 2014 Supreme Court's Judgment in Narinder S. Chadha And Ors vs Municipal Corpn Of Greater Mumbaui & Ors to justify the running of Hukkah Bars, the State contends that the amended Rule 4(3) strictly prohibits "any kind of service whatsoever" within smoking zones. Hearing a bunch of cases in December last year, a bench of Justice Shekhar B Saraf and Justice Manjive Shukla directed the police authorities to inspect and photograph existing establishments in Lucknow.In the subsequent hearing, the State Government was asked to clarify under which provision of law it was proceeding against the petitioners, and also to clarify whether there is specific legislation with regard to banning Hookah Bars in the State.The matters will be heard next on July 14.

No Fundamental Right To Run A Hookah Bar, Activity Falls Under 'Res Extra Commercium': Allahabad High Court

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No Fundamental Right To Run A Hookah Bar, Activity Falls Under 'Res Extra Commercium': Allahabad High Court

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