Hookah Parlours Can Run Subject To Municipality License, Inspection By Police For Compliance: Telangana High Court

The Telangana High Court has held that a hookah shop will require separate and specific permissions from the City Police and Municipal Department to run and cannot function on the basis of having a hotel/restaurant license.

"A conjoint reading of Section 6 read with Section 4 of COTP Act clearly indicate smoking of tobacco in any form is prohibited in public places like Hotels, Restaurants and Airports. Rule 4(3) of the Rules, 2008, a smoking area or space shall be used only for the purpose of smoking and no other service(s) shall be allowed. A careful reading of the above provisions, would indicate that the Hotels and Restaurants where normally food is supplied, are prohibited from smoking of any tobacco product, unless a separate area is made to allow smoking. Therefore, the contention of the petitioners that the licence obtained by them to run the Hotels/Restaurants also allows them to have smoking of hookah and run hookah centres is not tenable."

Background:

Justice C.V. Bhaskar Reddy was hearing a batch of petitions filed challenging the interference by the Police in running Hookah Parlours in the city of Hyderabad. The petitioners contended that similar petitions were filed in 2014 and 2017 and were decided in favour of the hookah parlours and thus the interference by the Police officials was unwarranted. Find the full story here.

The main issue that arose for adjudication before the Court was whether a Restaurant/Hotel licence was sufficient to run a Hookah parlour and if so whether the interference by the police officials was warranted.

The petitioner contended that they were running the Hookah parlours well within the parameters of law after securing all required Hotel/restaurant licences.

The main contention raised by the respondents/ Police Officials was that since section 4 of the COTP Act allows restaurants having a seating capacity of over 30 individuals, to designate a separate area for smoking, the restaurants/petitioners were running hookah parlours in the designated smoking areas and had not disclosed specifically that the trade was mostly selling hookahs. The Respondents further contended that be that as it may, the restaurants had not even disclosed whether a smoking area had been designated within the premises of their restaurant.

It was further contended that the previous judgements had not recognised the separate existence of a hookah parlours and hence they were subject to the scrutiny of the Officials and the provisions of the COTP Acts.

The Court noted that as per section 3(k) of the Cigarettes and Other Tobacco Products Act, 2003 (COTPA) that defines 'production' the production of Hookahs has been included in the definition; meaning that, production, sale and consumption of hookahs would be covered under the COTP Act.

The Court also appreciated, that the Government of India by way of Notification in 2017 has prohibited restaurants from involving themselves in acts of services within the premises of the smoking area and section 12 of the COTP Act, allows a Police official, not below the rank of the Sub-inspector to make inspections to ensure compliance in accordance with the Act.

The Court also held that a cursory reading of the judgements passed by the Courts in previous and similar matters would reveal the Court has not recognised the independent existence of a Hookah parlous and in light of the Notification passed by the Government, Police Officials are duty bound to ensure compliance making their interference lawful.

"Having regard to the above, and taking into consideration, consistent view taken by this Court in the aforesaid Writ Petitions, this Court do not find any illegality in police officers, entering into the premises and searching the same, so as to find out whether the owners of the restaurants have contravened or violated any of the provisions of the COTP Act and Rules made thereunder."

The Court conceded to the argument advanced by the counsel for respondents and observed that the Hookah Pralours could not function in the designated smoking area and needed specific permissions from the Police as well as the Municipality to function.

"Therefore, the conditions imposed by the Municipal Corporation for granting trade licence to run Hotels/ Restaurants are varying from the conditions that are incorporated under the provisions of COTP Act. The licence obtained for running Restaurants which have the seating capacity of thirty persons or more does not confer any right to the petitioners to convert the same as a place of smoking area or to run hookah centre."

Breakdown of permissions required:

The Court noted that 'public place' is not only defined under the COTP Act but also the Hyderabad City Police Act, 1348 Fasli and both definitions are more or less synonyms of each other. Adding to that, the Court observed that as per Chapter III of the City Police Act, the Commissioner of Police was entitled to make rules and regulations for the preservation of order; and thus held:

"Since the City Police Act, confers power over the amusement Centres/restaurants, which are defined as “public place” under the COTP Act and as per Rule 4 of the Prohibition of Smoking in Public Places Rules, 2008 permission is required specifying smoking area. In view of the powers being conferred on the Commissioner of Police, under the City Police Act, the police are having power to supervise the business establishments of the petitioners and seize the hookah centres if there is any violation of the provisions of the COTP Act. Therefore, to establish hookah centres, permission from the concerned authority has to be obtained under the provisions of City Police Act."

The Court also noted that since the Hookah Parlours were also consuming charcoal, they would need permission from the Greater Hyderabad Municipal Corporation (GHMC) as stipulated under Section 521(1)(b) of Greater Hyderabad Municipal Corporation Act, 1955.

In Conclusion, the Court has upheld the right of Hookah Parlours to run without hindrance provided, they secure licences in accordance with the law and also upheld the right of police officials to make inspections to ensure compliance and subsequently take action if required.

Smoking of Hookah is prohibited for any individual below the age of 18.

W.P.No. 46505 of 2022 & Batch

Counsel for petitioner: Habeeb Adubakar Alhamed, Omar A Pasha,T. Prasanna Kumar, Rajesh Maddy, Pranay Bahuguna, Meesalal Vinod Kumar, Mohammed Abdul Quadeer, K. Muralidhar, Mohammed Asifuddin, Dida Vijaya Kumar.

Counsel for respondent: GP for Home.

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